Supreme Court Poised to Limit Computer Fraud Statute

Suppose your employer prohibits using the company computer system for personal purposes. You’re aware of the policy but you’re also a little behind on your Christmas shopping, so while logged in at work you spend some time on Amazon buying gifts. If your boss found out you might expect to be reprimanded, maybe even fired. You probably wouldn’t think you were potentially subject to federal prosecution. But under a legal theory advanced by the government before the U.S. Supreme Court last week in Van Buren v. United States, your holiday shopping could indeed be a crime. Fortunately, the Court seems poised to reject the government’s approach.

computer hacker

The Computer Fraud and Abuse Act

The criminal law in question is called the Computer Fraud and Abuse Act, or CFAA, 18 U.S.C. §1030.  The CFAA is the primary federal statute used to prosecute computer-related crime. It’s a complicated statute with a number of different sections. But in general, the CFAA prohibits breaking into a computer to harm that computer or steal information, commonly known as hacking. It prohibits sending malicious code or viruses that damage a computer or that allow the sender to obtain information without authorization — including “phishing” schemes. The CFAA also prohibits trafficking in computer passwords and extortion by threats to harm a computer or the information it contains.

A high-profile recent case involving the CFAA was the July, 2018 indictment brought by special counsel Robert Mueller of twelve Russian intelligence officers for computer hacking related to the 2016 presidential election. The indictment charges that the Russian agents hacked into computers and email accounts used by scores of individuals and organizations associated with the Hillary Clinton campaign and other Democratic organizations. The lead charge in that indictment: conspiracy to violate various provisions of the CFAA.

Van Buren v. United States

The Van Buren case argued before the Court last week involves a particular subsection of the CFAA, 18 U.S.C. §1030(a)(2)(C). Under that subsection, a person commits a crime whenever he “accesses a computer without authorization or exceeds authorized access, and thereby obtains information” from that computer. The term “exceeds authorized access” is further defined to mean, “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” §1030(e)(6). The issue in Van Buren is the proper interpretation of the term, “exceeds authorized access.”

The defendant, Nathan Van Buren, was a police officer in Cumming, Georgia.  As part of an FBI sting, he ended up accepting several thousand dollars from Andrew Albo, an informant cooperating with the FBI. In exchange, Van Buren agreed to search a police database for a vehicle license plate number Albo gave him. (Albo told Van Buren the car belonged to a woman he had met at a strip club and he wanted to be sure she was not an undercover police officer.) Van Buren performed the search for Albo in the Georgia Crime Information Center database. He had been trained on the use of that database and knew he was allowed to use it only for legitimate law enforcement purpose.

Van Buren was convicted for violating section 1030(a)(2). There was no question he was authorized to access the police database. But the government argued Van Buren had exceeded his authorized access, and thereby obtained the license plate information, by performing the search for an improper purpose – namely, in exchange for a bribe. 

Image of US Supreme Court, which decided the Bob McDonnell case
United States Supreme Court

Van Buren’s Position

In their briefs to the Court, Van Buren and those amici who support him argued that Section 1030 is, at heart, a computer hacking statute. It is primarily aimed at conduct that is the electronic equivalent of breaking and entering. According to Van Buren, the prohibition against exceeding authorized access therefore criminalizes obtaining information only when a person has no right at all to access that information. An example would be a Pentagon employee who is authorized to use the Department of Defense computer system for limited purposes related to her job, but then uses a stolen password to gain access to a different part of that system she is not authorized to view.

Van Buren unquestionably had the right to enter the database and access license plate data. In this instance he did so for an improper reason: because he had been bribed. That might subject him to job discipline or some other legal sanction, but it does not, Van Buren argued, violate the CFAA.  “Exceeding authorized  access” does not apply to obtaining otherwise accessible information for an improper reason. It applies, he argued, only when the defendant had no right to access the information under any circumstances.

Van Buren cited a number of examples of the potential consequences of the government’s position. Suppose workplace policy prohibits an employee from using the company’s computer system for social media, but she uses that system to log onto Facebook. Or an employee has a work-provided Zoom account that is to be used only for business but uses it for a group family chat on the weekend. Or someone uses a dating website but, in violation of the site’s terms of services, lies in his profile about how tall he is or about his age and then obtains information about potential partners.

 In each of these examples, the person has the right to access the information that was obtained, but did it in ways or for reasons that were not authorized. That is Van Buren’s situation as well. If the government is correct, he argued, then all of the people in those examples are criminals: they exceeded their authorized access by violating workplace policies or website terms of service.

Computer law expert Professor Orin Kerr, who filed an amicus brief, agreed with Van Buren and framed it this way: the CFAA prohibits someone circumventing technological barriers, such as a password requirement, to obtain information the person is not otherwise authorized to obtain. It does not apply to someone who merely ignores verbal or written barriers, such as instructions from an employer or requirements in a website’s terms of service. Here Van Buren violated police department policy, but he did not breach any technological barriers to obtain the information. Accordingly, the CFAA should not apply.

US Dept of Justice
U.S. Department of Justice

The Government’s  Response

The government responded that Van Buren’s argument ignores the plain text of the statute, and that the text is enough to decide this case. The statute prohibits exceeding authorized access and thereby obtaining information “that the accesser is not entitled so to obtain.” The key, the government argued, is the word  “so.” If Van Buren is right, that “so” is unnecessary. Congress would have just written “that the accesser is not entitled to obtain,” and Van Buren would be in the clear. But the word “so” in the phrase “so to obtain” means that the manner or circumstances of obtaining the information matters: “so” means that the defendant was not entitled to obtain the information under the circumstances in which he did, even if he could have properly obtained it under other circumstances. The statute therefore governs insiders who have some limited authority to access the relevant computer information but exceed those limits.

As for Van Buren’s hypotheticals about everyday computer users suddenly becoming criminals, the government argued those concerns are wildly exaggerated. Such cases are not being prosecuted, and Van Buren has not identified any such cases in the past that led to a sustained conviction. Potential cases involving people using Facebook at work are just a fantasy. They would never be brought in the real world.

The government also suggested that the hypothetical cases posed by Van Buren might not violate the statute because of other statutory terms. For example, the government argued that the term “authorization” means a user has been granted specific, affirmative, individualized permission to use the system. It might not apply to websites such as Facebook that simply take all comers who are willing to open an account.

The  Oral Argument – Reviewing the Parade of Horribles

During the oral arguments on November 30, several of the Justices appeared skeptical of the government’s arguments and concerned about the potential breadth of the statute.

The Court spent a good deal of time discussing Van Buren’s “parade of horribles,” the hypotheticals about all those who might be ensnared by the government’s interpretation. Justice Thomas wondered whether the parade was real, asking whether there were any real-world examples of the types of cases Van Buren was warning against. Jeffrey Fisher, counsel for Van Buren, admitted there were no recent examples. But he pointed out that the Court has repeatedly held it can’t approve a sweeping interpretation of a criminal statute based on the government’s promise that it will enforce it benevolently.

Chief Justice Roberts and others raised the idea of a different parade of horribles: bad actors who could NOT be prosecuted if Van Buren’s interpretation is adopted.  What about a bank employee, for example, who has legitimate access to computer files containing customer social security numbers but then accesses those files to steal the numbers and sell them? Fisher responded that other criminal laws would cover most such misconduct. Justices Gorsuch and Sotomayor appeared to agree that, given the number of federal and state criminal laws available, any such misconduct not covered by the CFAA could likely still be prosecuted.

Justice Sotomayor and others pressed the Assistant Solicitor General Eric Feigin on his suggestion that other terms, such as the definition of “authorization,” could control the sweep of the CFAA. She said the government was relying on narrower definitions that did not appear in the statute itself. Fisher also had noted in his briefs that there was no precedent for those narrower interpretations and that the government was merely raising them as hypotheticals, not committing to follow them.

Justice Kagan pressed both attorneys on the role of the word “so.”  She noted it requires an antecedent and asked each side what they thought “so” referred back to. Fisher replied that “so to obtain” merely refers to using a computer to obtain the information. That means it would not be a defense for an employee who hacked into a portion of the office computer to argue that he could have gotten the same information by some other means anyway. Even if that were true, he was not entitled “so” to obtain it – in other words, by hacking the computer.

Feigin argued that “so” referred back to the circumstances under which the defendant was obtaining the information. Van Buren was not authorized “so to obtain” the license information because the way he obtained it violated the workplace restrictions covering his use of the database.

Justice  Neil Gorsuch
Justice Neil Gorsuch

A Pattern of Government Overreach

I think the Court is likely to rule in Van Buren’s favor and reject the government’s sweeping interpretation of the CFAA. The battles over the significance of the word “so” are fascinating (at least to legal nerds), but in the end I don’t think they yield a clear winner. In light of that, the Court is likely to adopt the reading that avoids vastly increasing the scope of federal criminal law.

During his questioning of Feigin, Justice Gorsuch raised what I think is a key point. He noted there has been a string of cases in recent years where prosecutors have sought to expand the scope of federal criminal law in pretty sweeping ways. In each case, the Court has rejected the government’s position. I wrote about that trend in this post: White Collar Crime, Prosecutorial Discretion, and the Supreme Court. It stems both from the Court’s approach to federal criminal law in general and from a characteristic of white collar statutes like the CFAA in particular.

In general, the Court is reluctant to read federal criminal laws expansively, at least absent a clear sign of Congressional intent. In McNally v. United States in 1987, where the Court first rejected the theory of honest services fraud, part of its rationale was a concern that the government’s interpretation would dramatically increase the scope of federal criminal law. Just last year in Kelly v. United States, the Court reaffirmed that  principle when it unanimously rejected the government’s attempt to use federal fraud statutes to prosecute the defendants in the Bridgegate scandal. The Court noted that the defendants’ behavior was deplorable, but that not every instance of political misconduct amounts to a federal fraud.

White collar statutes in particular often raise concerns about their potential scope. They are written broadly to avoid loopholes that may be exploited by clever criminals. They deal not with clear crimes like assault or robbery but with fuzzier concepts such as fraud and corruption whose parameters are less well-defined. As a result, they often sweep within their terms conduct that most would agree does not merit  a federal prosecution.

For example, if I call in sick and lie to my employer so I can go to the ball game, that fits all the legal requirements for federal wire fraud. Fortunately, we don’t see cases of such truant employees clogging the federal courts. That’s because of prosecutorial discretion: prosecutors exercising good judgment about which cases are actually worth bringing and which should not be pursued even if they technically violate the statute.

But that discretion must be exercised wisely. In cases raising concerns about the scope of federal criminal statutes, the government’s response often has been, essentially: “Trust us. You should interpret the statute broadly, to allow us flexibility to pursue the appropriate cases. We’d never bring the trivial or outrageous cases that the defendant is claiming would result.”

That’s also what the government is saying in Van Buren: trust us, we’d never prosecute the employee who does holiday shopping at work. But in recent years the Court has been increasingly unwilling to take the government at its word. Instead, it has narrowed the statutes in question to limit prosecutors’ discretion.

Consider, for example, the Court’s 2016 decision in McDonnell v. United States, the corruption prosecution of the former governor of Virginia. McDonnell and his allies presented their own parade of horribles to the Court. They argued that if the government’s sweeping interpretation of “official act” in bribery law were adopted, federal officials would be at the mercy of prosecutors who might charge bribery based on politicians engaging in routine political courtesies. Part of the government’s response was, essentially, “we won’t bring those kinds of cases and never have.” That wasn’t enough for the Court: it unanimously rejected the government’s argument, threw out McDonnell’s conviction, and drastically narrowed the scope of bribery law.

To explain this Supreme Court trend, at least in part, the Justice Department need only look in the mirror. These are often self-inflicted wounds. The “trust us” argument becomes harder when the case that lands before the Court seems to involve a poor exercise of prosecutorial discretion.  This was true, for example, Yates v. United States, where prosecutors used an obstruction of justice statute with a twenty-year penalty to prosecute a captain who threw undersized fish overboard to avoid a civil fine. Or Bond v. United States, where a woman put Drano on the doorknob and mailbox of her romantic rival, causing a minor skin irritation, and was charged with a chemical weapons offense carrying up to life in prison.

When such cases make it to the Supreme Court, it becomes harder for the government to argue the Court should entrust prosecutors with criminal statutes that sweep as broadly as possible. That’s what led Justice Gorsuch to remark during the Van Buren argument that the Solicitor General’s office should not act as a mere “rubber stamp” when questionable cases stretching the boundaries of federal criminal law are brought by U.S. Attorneys.   

In this case Van Buren’s conduct does seem worthy of prosecution. But it also seems clear there were other ways  to punish him, either with other federal statutes (he was also charged with honest services fraud, but that charge may face a McDonnell issue) or with a Georgia state prosecution for bribery or other crimes. There is no need for the Court to stretch the boundaries of the CFAA based a concern that there is otherwise no way to punish someone like Van Buren.

In Van Buren’s case, the Court is likely to continue the trend identified by Justice Gorsuch. It will likely reject an expansive interpretation of the CFAA that turns almost all ordinary Americans into potential criminals. In this case, that’s the right result.

You may now return to your Amazon shopping.

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The Rush to Criminal Remedies

A series of recent prosecutions has me thinking about the proper role of criminal remedies. There seems to be a trend in recent years for the public – and some prosecutors – to leap to criminal prosecution as the first option in response to various kinds of misconduct.  Don’t get me wrong — as a former prosecutor I have no problem with criminal remedies when appropriate. But as I tell my students on the first day of class: there’s a lot of conduct that is immoral, unethical, or just downright sleazy, but isn’t criminal and doesn’t need to be. I think we may be losing our sense of when prosecution is the right response and when some alternative, less severe sanction might be appropriate.

The Gray Areas

 In my white collar crime class we routinely discuss the availability of other remedies for conduct that potentially could be prosecuted. This is particularly important in white collar criminal law. After all, if you have a violent crime like a homicide or robbery, there’s little question that criminal prosecution is the appropriate response. We’re not going to respond to a homicide by saying, “Well, let’s just let the victim’s family file a civil suit.”

White collar cases, by contrast, often involve misconduct that falls into a gray area. The cases involve fuzzier criminal concepts like fraud and corruption, where criminality may be less clear-cut. There generally is no victim of physical violence; most harms are economic. For such misconduct there is usually a wide range of alternative remedies available: civil penalties and fines, private civil lawsuits, administrative sanctions, professional discipline (loss of professional licenses or loss of a job or career), even just the sanction of public disgrace and humiliation. In cases involving political misconduct, voters can respond at the ballot box by throwing the offender out of office.

Non-criminal remedies and sanctions almost always are much more efficient. Criminal sanctions are cumbersome and difficult to impose. Grand jury investigations and trials are time consuming and resource-intensive. They require the government to meet the highest burden of proof in the law: guilt beyond a reasonable doubt, found by a unanimous jury. By using civil proceedings the government may obtain many of the same remedies faster and with a lower burden of proof. Society as a whole often may be better served by resolving much misconduct with non-criminal sanctions.

Criminal prosecution should be reserved for the most extreme misconduct, the most severe violations of society’s rules. Criminal convictions may result in the harshest sanctions society can impose: the loss of liberty. Many other types of penalties are available in both civil and criminal proceedings, but only in a criminal case can the offender be sent to jail. The hammer of criminal penalties therefore should be reserved for those cases that truly deserve it.

There is a lot of play in the joints with concepts like fraud and corruption, and white collar statutes are notoriously broad. It is far easier to stretch those statutes to argue they should apply to particular misconduct that, unlike a homicide or burglary, on its face may not be obviously criminal. That’s why prosecutorial discretion plays such a crucial role in white collar crime. In a white collar case it’s often unclear whether criminal sanctions are necessary and appropriate. Making that decision requires good judgment and the sound exercise of discretion.

A number of recent cases and investigations have me questioning whether at least some prosecutors are losing sight of these principles. In some cases, I don’t think the conduct was criminal at all. With others, even if it’s possible to come up with a creative criminal theory, I think the misconduct would have been better addressed through non-criminal remedies.

The NCAA Corruption Case

Exhibit one is the NCAA corruption case, which I’ve written about several times (on the blog here and here, and in the Washington Post here). The defendants are aspiring sport agents and representatives of the sportswear company Adidas. They engaged in a scheme to pay the families of star high school athletes $100,000 or more in exchange for an agreement to attend and play basketball at particular universities whose athletic programs were sponsored by Adidas. They were convicted of fraud in New York and are currently appealing to the Second Circuit Court of Appeals.

The remarkable thing about this prosecution is that in the absence of the NCAA rules, there would be no fraud theory at all. There was nothing illegal about the payments; it’s not a crime to pay someone to induce them to attend a particular school. The defendants did not want to harm the universities – just the opposite. They would only succeed and profit if the universities did as well. And the evidence indicated that the coaches at the universities knew this scheme was going on, or at the very least willingly looked the other way.

But the payments violated NCAA rules, which prohibit college athletes from receiving any kind of compensation. Having ineligible athletes on their rosters exposed the universities to potential sanctions from the NCAA – a private organization that the universities voluntarily joined. Prosecutors charged that the defendants defrauded the universities by secretly paying the athletes, thus exposing the universities to those potential sanctions.

It’s a very odd fraud case where the defendant has no intent to harm the victim and the senior representatives of the supposed victim are in on the scheme. It’s even more odd when violating the rules of a private, voluntary association through otherwise lawful behavior can be leveraged into a criminal fraud theory.

This did not need to be a criminal case. The NCAA needs to clean house, but federal prosecutors don’t need to do it for them. People shouldn’t go to jail for violating the rules of a private organization by behavior that was otherwise lawful.

Appropriate sanctions for violating the NCAA rules: the Adidas representatives lose their jobs. The universities get fined or otherwise disciplined by the NCAA. The coaches who participated get fired. Maybe Adidas loses the right to sponsor some athletic programs. And players who took part in the scheme are declared ineligible for NCAA play – and probably go on to play in the NBA and make a fortune.

The Varsity Blues Case

 The college admissions scandal known as “Varsity Blues” is more complicated, because the dozens of different defendants are culpable to different degrees. I’ve written about this case on the blog here and here and in the Post here. The case features two different kinds of schemes involving parents cheating to help their students gain admission to elite universities. The mastermind at the center of both schemes was college counselor Rick Singer.

In the entrance exam scheme, parents paid to have someone correct their child’s answers on admissions tests like the ACT, or take the test for them, to improve their score. In the sports recruiting scheme, parents made much larger “donations” to the university to have their students admitted as recruited athletes. Sometimes this money went to bribe the coaches, who agreed to admit students even though they didn’t play the sport in question. Sometimes some or all of the money went to the athletic programs at the schools. Some of the cases also involved the parents and Singer creating phony athletic profiles falsely indicating that the student was a star athlete in the relevant sport.

As with the NCAA case, in the Varsity Blues investigation there often was no discernible harm to the supposed “victims.” The universities received tuition dollars from the students who were admitted. In many cases the athletic programs received substantial sums of money as well.  In fact, in a recent ruling related to sentencing (where the dollar amount of the loss is important to calculating the sentencing guidelines), the judge recently found there was no loss to the universities. If there is no discernible financial harm to the “victims,” it should at least make you stop and question whether you have an appropriate criminal fraud case.

But what about the truly deserving students who were not admitted – aren’t they the true victims here? Well, yes, but not for criminal purposes. These defendants had no relationship to any such unidentified applicants and owed them no duty. The criminal charges are structured as a fraud against the universities and the testing companies, not against other students. The non-admitted students are victims of the defendants’ cheating in a societal sense, but not in a criminal one.

As I mentioned, the facts of these cases vary widely. For Singer and for the coaches who accepted hundreds of thousands of dollars in bribes to admit unqualified students in violation of the duties they owed to their university employer, I’ve got no problem with criminal sanctions. But for many of the parents, the picture is more complicated. It’s not clear all of them had the kind of intent we normally would require for a criminal conviction.

Consider one example: actress Felicity Huffman, who pleaded guilty and was recently sentenced to fourteen days in prison. Her case is relatively simple. She was not involved in the sports recruiting scheme. She simply paid $15,000 (a relatively modest amount, in this investigation) to have someone help her daughter cheat on the ACT.

That conduct is deplorable. But if you boil it down, it means Huffman was prosecuted and sent to jail for cheating on a test. It’s expensive and sophisticated cheating, to be sure, but that’s still all it is. If a future student manages to sneak in some unauthorized notes to the testing center and cheats on the ACT, are we now going to prosecute that student for fraud when she applies to college? What about a student who “embellishes” his entrance application – claiming he was captain of the debate team, for example, when in fact he was only a minor participant. How about a student who, once admitted, cheats on a calculus test? Are all of these now “fraud” and subject to criminal prosecution?

The conduct in the Varsity Blues case is reprehensible. It rightly caused widespread outrage based on the sense of privilege and entitlement demonstrated by the wealthy parents. But it’s not at all clear that a federal criminal prosecution is the appropriate response in all the cases.

Appropriate sanctions for cheating on your child’s college admissions test: your child gets kicked out of school. You forfeit any tuition dollars that you paid. The school gets to keep any other “donations” you made in connection with the cheating. You are publicly humiliated and disgraced, and your career suffers as you lose your acting gigs. And – perhaps the most severe sanction — you have to spend a lifetime trying to explain to your child why you did what you did and trying to remedy that breach of trust.

Bridgegate

 The “Bridgegate” prosecution is another example of the expansive and inappropriate use of criminal remedies. (See my blog post here and Post article here.) The defendants engaged in a scheme to close inbound lanes on the George Washington Bridge, causing four days of massive traffic gridlock in Ft. Lee, NJ.  They falsely claimed they did it to conduct a traffic study, but in fact they did it to punish the mayor of Ft. Lee for refusing to endorse governor Chris Christie for re-election.

There was tremendous public outrage over this political stunt. Ultimately the defendants, who were Christie appointees, were prosecuted and convicted for fraud. The government’s theory is that the defendants defrauded the Port Authority of the salaries of the employees who were ordered to carry out the sham traffic study and the lane closures.

The Supreme Court recently agreed to review those convictions, and I expect the Court will throw them out. This “fraud” theory has no limiting principle, because almost every case of political misbehavior will result in some public employee time being expended. The defendants were not lining their own pockets. There was no law or regulation that mandated a certain lane configuration, and they had the authority to order the change. There was nothing inherently improper about the work they ordered the other employees to do – the only thing improper was their motive. They essentially were prosecuted for engaging in New Jersey hardball politics and lying about their true reason – the kind of thing that politicians, for better or worse, do all the time. This did not need to be a criminal case.

Appropriate sanctions for political mischief that is otherwise lawful: The career of the politician involved suffers from the public backlash. (This actually happened — Christie’s political career took a major hit from the scandal. He left office in disgrace and his presidential ambitions quickly withered.) The employees involved should be fired. (This also happened.) There could be possible civil suits if anyone was injured as a result of the traffic gridlock. And all involved are publicly disgraced and humiliated.

The Curse of Binary Thinking

 Part of what I think is going on with many scandals these days is a kind of binary thinking when it comes to misconduct: either something is criminal or it’s basically OK. Consider, for example, the Mueller report.

On the Russian “collusion” question, Mueller did not find evidence of a criminal conspiracy between the Russians seeking to influence the election and members of the Trump campaign. There were lots of contacts with the Russians, and the Russians were eager to help, but there was insufficient evidence of an actual criminal agreement to work together.

Many on the left reacted to this conclusion with something close to outrage. Look at all the contacts between the campaign and Russians! How could there not be a crime? But again, behavior can be reprehensible without being criminal. The Trump campaign knew that Russia was trying to help them win by using, among other things, emails stolen from their opponent. They welcomed and encouraged that help and did not report the various outreach efforts from the Russians. Even if not criminal, this is not OK.

The Trump administration’s response to the Mueller report has exhibited the same binary approach: “no crime – so nothing to see here.  Let’s move on.” But just because something isn’t criminal doesn’t mean it’s not a problem. Our standards for our elected officials should be higher than simply that they managed to avoid indictment. And it doesn’t mean there should not be some other kind of serious non-criminal consequences — whether that’s impeachment or just the results of the next election.

The same thing applies to these other scandals. Saying it’s not criminal doesn’t mean that the conduct of the defendants in those cases was okay. It just means that criminal sanctions are not necessarily the right response to the misconduct.

The Loss of Social Control

 I had a professor in law school who defined law as organized social control. His thesis was basically that the more other connections, norms, and informal means of responding to misbehavior you have in a society, the less law you need – and vice versa. If your neighbor is playing their music too loud and you know your neighbors and have ties within your community, you go talk to them and ask them to turn it down, maybe enlisting other neighbors to help. If you don’t know them, you call the cops – relying on the law to impose some social control.

Maybe that’s part of what is going on here. We see fewer alternative means of effective social control and so turn to criminal law for a solution. Many of the norms and informal controls that used to govern social and political behavior seem to be disregarded or shattered more and more routinely, with no apparent consequences. The super-wealthy and privileged seem to cheat, whether on taxes, college admissions, or elsewhere, and get away with it. Politicians lie repeatedly and pay no apparent political price. The Trump administration defies subpoenas and resists traditional congressional oversight, with few apparent consequences. The president himself calls for the investigation and jailing of his political opponents, and chants of “lock her up” are still a feature at his rallies. If people feel like nothing else is working, they may reach for criminal sanctions as a first resort rather than a last resort, looking for the law to impose some order in our lives.

I don’t know what the solution is, but we need a societal re-set on the appropriate use of criminal remedies. We can’t prosecute our way out of the current chaos.

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