Three Felonies A Day - How The Feds Target The Innocent

The problem with letting prosecutors not prosecute to the full extent of the law on their own judgement allows for selective favouritism, like white college kids getting off with a warning where a black street kid gets serious time.

Relying on prosecutors to be lenient or "do the right thing" places the defence in the wrong hands - a court that allows a strong defence to succeed over or moderate a prosecution should be at the heart of the justice system.

http://www.publishersweekly.com/pw/by-topic/digital/copyrigh...

  The Association of American Publishers and Google’s 
  agreement last week to settle the publishers’ long-running 
  litigation over Google’s library scanning program put an 
  end to the lengthy and expensive suit, but without 
  resolving any of the underlying copyright and fair use 
  issues. The main component of the deal: copyright owners 
  with books scanned by Google under its library program can 
  choose to “opt out” of the program and have their books 
  removed. Of course, that settlement condition is something 
  Google has offered copyright owners with books in the 
  program all along.

Had Aaron scraped say 10-100k rather than 4M articles and done some innovative NLP/data mining on the text (like Google N-grams), then showed that to JSTOR, despite the lack of up-front consent he might well have been able to get more or convince them to open up, especially if this 10-100k experiment showed monetization potential and could allow JSTOR to move to an open access model. Sadly, we'll never know.

Aaron was not a bad guy, nor did he seem to ever act with malicious intent. He broke some rules, certainly, but should the punishment for rule breaking be the destruction of someone's life or should it be just enough of a push to make them avoid rule breaking while keeping them a productive member of society?

We are long past that point, which is the reason for the post title (and the book from which it's drawn). Even the lawyers don't understand areas of the law that are outside their own narrow specialty.

The root of the problem is the federalization of criminal law. People used to say "Don't make a federal case out of it!" because that used to mean something - federal cases were for the Al Capones of the world and people who interfered with the mail.

Over the years Congress (with the acquiescence of the courts) has essentially shed any constitutional limits on its power. Federal law now applies everywhere (in the world) and to everything. The solution isn't mandatory sunset provisions - lots of laws have sunset provisions already and they're just routinely extended. The solution is a federal government that's limited to the powers delineated in its charter.

That means, for example, you could have a federal law against importation and transport of drugs across state line, but possession and sale could only be regulated at the state level. Same with guns, speed limits, "assault weapons", currency transactions, and damn near everything else against federal law. As Joe Citizen you would know that things you did wholly inside your state couldn't be illegal under federal law outside of a few narrow areas.

The way it works now is everyone is a felon, and if the feds want you they can throw a hundred minor charges at you that all carry 3-5 years, so you're looking at 500 years in jail... unless you take a plea. Innocent or guilty you take the plea. God only knows how many innocent people are rotting in jail because they didn't want to risk life in prison over something relatively minor.

And, case law is completely impractical for any average citizen to even find, let alone read and understand.

I like to ask these friends the provocative question, "so, when are you guys going to make the laws easier for average people to understand." And, they facetiously reply, "What, you want us out of a job?"

And, they're right. There is no incentive for anyone in the legal hierarchy to make laws more accessible. Maybe our legislatures can fix it. But, we Americans consistently elect into office more lawyers.

As a software development analogy, that's like hiring programmers to decide the features and interfaces of the systems that they will get paid to maintain. And, there's a reason that good software depends on people of different disciplines (designers, product managers, subject matter experts) coming together.

I have a sneaking suspicion that it's not so clear. I'd love to be proven wrong, though!

I expect it's possible there have been and are people who push laws with exactly that intention.

But my suspicion is that for the most part, the process isn't driven by scheming tyrants behind the legislation, and that most laws are probably passed with the intention of solving a specific problem.

It's only as they accumulate, as law enforcement and prosecutors learn how to push them as tools, and as courts accept and support such use that they're woven into a broader net that can catch "anybody."

Confronting this is different from confronting those who proverbially "mean to rule" -- it's confronting what it means to have rule-of-law itself.