A Society That Eats Its Young

            When I was growing up in Brooklyn, where the only pets that landlords allowed us to have came encased in a glass bowl, I was fascinated by guppies, a species of fish that, oddly (at least I thought at the time), eats its live-born young. In order to save the offspring, you have to be pretty alert to scoop either the babies or the parents out of the tank shortly after the blessed event. This behavior of the lowly guppy came to mind in the past few days, as I’ve been reading about the likely decision of state prosecutors to charge M.I.T. sophomore Star Simpson with engaging in a criminal hoax.

Simpson (not to be confused with the mischievous cartoon characters of the same name – although my wife Elsa Dorfman predicts that the case will in fact appear shortly in an episode of “The Simpsons”) triggered a terrorism scare at Logan Airport last week when she appeared at an information booth wearing a sweatshirt with a lit circuit board on the front connected to a 9-volt battery, and carrying a glob of Play-Doh in one hand, according to Boston Herald reporter Maria Szaniszlo, who told me that she actually was shown the “hoax” device. Suffolk County  District Attorney Daniel F. Conley told the Herald that he would seriously consider charging the loopy but reportedly brilliant student with wearing a “hoax device…with the intent to cause anxiety, unrest, fear or discomfort to some person or group of persons.”

            As I told the Herald, while wearing my criminal defense/civil liberties lawyer’s hat, there is no way prosecutors can convince twelve sane jurors that a student, wearing such a sweatshirt with the flashing lights tacked onto the outside rather than hidden underneath her clothing, was actually trying to perpetrate a hoax that she was a suicide bomber. Ms. Szaniszlo, after examining the device, told me that she thought that if she were a passenger and spotted the device, she would have notified airport security. Well, that may be reasonable, I noted, but it is completely unreasonable for trained security personnel to think that this kind of display was a suicide bomber’s vest. I noted that not once in the annals of the history of suicide bombers is there a single instance, to my knowledge, where the bomber wore the device outside rather than underneath his or her clothing. “Yes,” the reporter finally agreed, “I suppose that defeats the whole purpose of trying to sneak the suicide bomb into the airport.” Precisely!

            Once can’t help but be reminded of last year’s terrorism hoax imbroglio, in which police and prosecutors called a virtual red alert over “Aqua Teen Hunger Force” lighted circuit boards placed on bridges and roadways in the Boston area by performance artists Sean Stevens and Peter Berdovsky.  I wrote at the time that it was much ado about nothing, and that no serious Homeland Security or police agent should have reacted as they did at the time. I pointed out that those two defendants, likewise charged under the hoax device statute, would likely be acquitted. Attorney General Martha Coakley, obviously aware that it was not a case she could win, struck a deal that dropped all criminal charges and instead required both men to perform eighty hours of community service.

            Both of these episodes came to mind this past Sunday as I read the lead story in The Boston Sunday Globe “Ideas” section, about the catastrophic social impact of the huge number of citizens, especially young black males, who have done or are doing time in the nation’s penal systems. “Fueled by the war on drugs, ‘three-strike’ laws, and mandatory minimum sentences, America's prisons and jails now house some 2.2 million inmates - roughly seven times the figure of the early 1970s. And Americans are investing vast resources to keep the system running: The cost to maintain American correctional institutions is some $60 billion a year.” writes Christopher Shea.

            Clearly there are criminals, of all ages, who pose a grave threat to society and should be locked up. But in less clear-cut cases involving young people, like Simpson, or the tens of thousands of young men arrested on drug possession charges every year, one must consider if putting them in jail, and spending precious resources to keep them there, is really for the betterment of our country. This newfound tendency to throw the book at our youth is a reckless one.

It wasn’t always this way. In the early days of my law practice, I represented some very smart MIT students who had figured out a way to make long distance telephone calls while bypassing the phone company’s billing system. It was a real crime, for which they could have actually been convicted (in contrast to the more recent performance artists), and yet, in the end, the phone company decided not to press charges. Instead, it hired the students to work in the company’s security department in order to use their superior skills in order to thwart other technological attacks on the system. The wise disposition did more to enhance the nation’s (and the phone system’s) security than any ill-considered prosecution would have.

If Star Simpson has a half-way decent lawyer, the prosecutors should back off completely. If she decides to take the most risk-averse approach, she might make a deal to be placed on probation, with the charges dismissed at the end of the period. And so the student’s life and career are not likely to be jeopardized by this bit of over-reaction by our rapidly growing national security sector. But we still have to ask two questions: One – why can’t these national security types distinguish a possible terrorist attack from an obvious joke or piece of performance art? And, two – why do we as a society insist on using the criminal justice system to eat our young?

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