The Rotenberg Center: Sarbox's Next Casualty?

            In a case with eerie similarities to the Bush administration’s destruction the CIA “torture tapes,” the Judge Rotenberg Educational Center, 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.

            The federal 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.

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