In a case with eerie similarities to the Bush
administration’s destruction the CIA “torture tapes,” the Judge Rotenberg
a school in Canton, MA, for special needs students, is
reportedly being investigated by state prosecutors over its destruction of
videotape evidence. According to a page-one story in today’s Boston Globe,
the school electroshocked one student 77 times and the other 29 times after a
prank caller posing as a supervisor ordered the treatments, and then erased (by
recording over) video surveillance footage of the bizarre incident.
In her Globe article, reporter Patricia Wen
suggests that the school’s destruction of the videotapes may result in state
criminal charges. What she does not address is the very real possibility that
the school could be indicted federally instead. As libertarian-minded pundits
like Tim Lynch at Cato Institute have pointed out, federal jurisdiction is
increasingly being asserted over what were once considered quintessential state
matters. As I describe in my forthcoming book, tentatively titled Three Felonies a Day: How the Feds Have Made
All of Us Potential Targets, what makes this phenomenon possible is that
vague and pliable nature of modern federal criminal statutes. If the Norfolk County
DA’s office is unable to piece
together a criminal charge against the Rotenberg
Center, they can call up their
colleagues at the U.S. Attorney’s Office in Boston, who – unfortunately, in my view –
have the tools at their disposable to do the job.
obstruction of justice statutes have recently become even more vague and
pliable, thanks to provisions included in the Sarbanes-Oxley Act of 2002, which
I’ve written about in my current Boston
Phoenix “Freedom Watch” column
detailing the prosecution of a Connecticut lawyer for destroying the hard drive
of a computer containing child pornography. If that lawyer could be indicted
for obstruction, even though he had no reason to believe that an investigation
against his client was brewing, then surely the Rotenberg Center,
which had already received calls from investigators asking to see the tapes, is
exposed to some danger.
I do not
approve of this creep of federal criminal jurisdiction into state matters, and
I approve even less of the vagueness of these new federal obstruction statutes.
And, in fact, I have considerable sympathy for the work that the Rotenberg
Center does with disturbed children who present very considerable challenges.
However, the fact of the matter is that the folks at the Rotenberg Center who
had anything to do with the destruction of the “shock tapes” should be prepared
for both state and federal investigations.