Stretching The Law

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

You may have no argument with the result. That's my whole point. But you should be plenty worried about the process which achieved it.

For example, O.J. Simpson this week was sentenced to 33 years in prison (he'll serve perhaps 10) for the most comical, unserious robbery and kidnapping conspiracy ever dreamed up in the minds of men.

Gun or no gun, let's please stipulate that none of the rest of us would have ever suffered the same fate as Simpson and Company after they barged into a hotel room in Las Vegas to steal (or "get back") sports memorabilia. We wouldn't have been indicted as heavily as they where, tried as aggressively as they were, and we wouldn't have been convicted by our peers based upon the testimony of the prosecution's icky witnesses.

Despite the trial judge's lame pre-sentencing comments (about how Simpson was being punished for his current crime and not his past ones), we all know precisely why Simpson was targeted in Nevada the way that he was - by police, prosecutors and, ultimately, jurors. It is society's late-arriving, curiously-conformed "payback" for Simpson's own shameful conduct and the fact that many people (many white people, anyway) believe that he was wrongly acquitted in California of the 1994 murders of Ronald Goldman and Nicole Brown Simpson.

Anyone want to make the contrary argument with a straight face?

Now, you could look at the irony of Simpson's fate - convicted for conduct more becoming a Marx Bros. film than a crime after being acquitted of a savage double-murder - and simply play the karma card: the law "finally caught up to Simpson."

I prefer a slightly more candid description when looking at this situation: people in power bent the scope of the law like a slinky to achieve a goal (Simpson in prison) that most of the rest of society had made clear it would accept, no matter what the circumstances. That most of you hoped for 14 years that Simpson would get railroaded doesn't make it any more ethical or moral that in the end he was.

But O.J. was not the only victim of prosecutorial over-reaching. Take Lori Drew. You may know her better as the nasty mother who created a fictional MySpace page to be mean to a young woman who then tragically killed herself.

Now, as horrible as we all think this may be, there is no crime against what Drew did. Not yet.

Both federal and state prosecutors in Drew's home state refused to prosecute. Society was at that moment stuck between the slow creep of the law of technologies (like, who is liable to whom on the Internet) and the rapid pulses of the people who wanted Drew to pay for playing some sort of role in the young woman's suicide.

In the old days (like, five years ago), the Drew case might have spawned a new round of legislation prohibiting cyber-bullying. Indeed, that still may occur. What is new, it seems to me, is that Drew was tried anyway by a federal prosecutor in California, and now convicted of misdemeanors for violating the Computer Fraud and Abuse Act.

Trust me when I tell you that the Act does not say much about cyber-bulling. But that didn't stop the prosecutor from stretching it to cover Drew.

And it didn't stop the trial judge from protecting Drew's rights any better. She did not receive reasoned justice based upon well-defined rules. She received frontier justice, with the law contorted to create a crime where none has existed before.

There's more. On Friday we learned that a federal indictment has been handed up against five of the six Blackwater Worldwide security guards who killed 17 Iraqis in a 2007 bloodbath in Baghdad. Because the men are American, and because America forced the Iraqis to accept legal immunity for contractors, the men couldn't be charged with murder, or assault, or terrorism under Iraqi law. And because the killings took place in Iraq, the men typically would have been free from U.S. criminal statutes as well. The scope of our domestic laws has never extended to all corners of the world.

Except for now.

Stymied by the current state of the law, and feeling political and diplomatic pressure to do something about the tragedy that took place that day, the feds have decided to charge the guards anyway under the … wait for it … Anti Drug Abuse Act of 1988!

That's a Reagan-era statute designed to go after drug traffickers enacted during the depths of the crack epidemic. The Associated Press reports that the statute calls for 30-year sentences for crimes (drug-related or not) involving the use of machine guns.

Trust me again when I tell you that the drafters of the Act did not contemplate that its provisions would be used 20 years later to indict private contractors serving in a foreign country who had nothing whatsoever to do with crack or any other illegal drugs.

Supporters of the case against the guards will say that the government ought to use every legal weapon in its arsenal to prosecute people who do bad things. But this is not Eliot Ness going after Al Capone on tax evasion charges; this is Eliot Ness going after Al Capone for stock fraud.

When bad conduct occurs beyond the expressed scope of our criminal laws, it seems to me that we have two choices as a nation governed by the rule of law: We can take our time, do things right, and generate new laws to govern that conduct; or, we can play it fast and loose and pretend that our existing criminal statutes stretch over turf their drafters never would have recognized.

The first path ensures fairness and notice and many other forms of due process. The second path is not just lazy, it sets a terrible precedent.
By Andrew Cohen