Every once in a while, a reader will send us a suggestion for something he or she deems “blogworthy.” We welcome these ideas, as we are clearly incapable of coming up with a full blog’s worth of original material. Most of the time, though, it doesn’t turn out to be something that fires us up, or other things prevent us from writing about it, or whatever. Often, we agree that it’s a neat issue that’s worth writing about, but for whatever reason we just can’t put it into words the way we would like to. Again, we appreciate all the suggestions, and we hope you understand that even if something is blogworthy, it doesn’t necessarily mean that we’re worthy of blogging it.
This all leads up to this. We got an email from a loyal reader pointing to a story and suggesting blogworthiness. In the course of writing him back and explaining why I wasn’t going to blog about it, I ended up writing more than I usually write in a regular post. So, I just decided to convert it into a post.
Our reader pointed us to this New York Times story about a federal case involving a juvenile who burned up a marina housing former President Bush’s boat. I agreed with our reader that it is blog-worthy. In fact, UNC Law Prof Eric Muller felt that way three months ago. (Without paying for the old NYT story, I can’t be sure, but apparently that was when the issue came up in the First Circuit, and the new story is about stuff happening in the district court.) (I also seem to recall that Eugene Volokh posted on this, but always have a devil of a time with his search function, so I couldn’t find the post in a timely fashion. But be advised, it’s out there somewhere.)
Anyway, I think I pretty much agree with Muller’s take that criminals have to take their victims as they find them. The example in his post was the street mugging of former colleagues of his in the U.S. Attorney’s Office, a case which was prosecuted federally. Part of my agreement on this has to do with my being a federal employee, I’m sure. But if your victims turn out to be the president — or his boat — well, tough. What’s most interesting here is that if this were purely a matter of whether it should have been prosecuted federally, it’s (virtually) a no-brainer. In most circuits, the U.S. Attorney’s certification that a juvenile case is of federal interest is an unreviewable exercise of prosecutorial discretion. (That’s the procedure — the USA has to certify it under a statute, but it simply amounts to a statement that this is a case worth their time.) And even in the circuits that allow for such review, it’s a very deferential standard. And even if it weren’t, I think you can make the argument that an arson that destroys a former president’s property creates a substantial federal interest. For one thing, we don’t want kids to do it if they think they can get off with a slap on the wrist in a state juvenile court. For another, we don’t want adults to use juveniles as pawns to do this sort of thing (even if we could always prosecute the ringleader federally, we don’t want to give him any incentive to use a patsy to do the dirty work.) Finally, we want national standards of treatment for these case, rather than Arkansas sending some kid to juvie for a few years for defacing the Clinton library while California gives a kid a parade for torching the Nixon library.
But, the twist here is that the Maine U.S. Attorney who brought the charges said that the fact that it was George Bush’s boat didn’t have anything to do with it! If that’s true, you’ve got to wonder why he brought charges at all, unless he really has a thing for arson cases or something.
Apparently, the original charging decision isn’t an issue here (perhaps because the defense recognizes it’s a loser). Instead, the challenege is over where the kid was sent (a prison in Pennsylvania). The U.S. Bureau of Prisons doesn’t operate a juvenile facility, and according to the Times story, the First Circuit said that the district judge “had not sufficiently considered the location and rehabilitative capabilities of the detention facility chosen by the government as required by federal law.”
So, even if the kid got sent to the wrong prison, it doesn’t look like the argument is going to be over whether he should be in prison at all. That ship has sailed (pun intended), and one has to wonder if the Times is trying to make this sound more sinister than it ought to be. My bottom line is that, even though my guess is that the Maine U.S. Attorney’s Office probably had better things to do, it’s not unreasonable that this was a federal case. And that means hard time. It’s sad, but them’s the breaks. It looks like the kid might be better off in a different prison, but his best bet may be applying for the first pardon issued by the current President Bush.