It looks like we spotted the trend.  Unfortunately.

Last week we noted that, when faced with an ambiguous statute, some on the Supreme Court are now willing to read new language into the statute, rather than toss it back to Congress to do it right.  And we wondered if that might be a harbinger of what was to come in the “honest services” cases of Black, Weyrach and Skilling.

Well, those cases came down this morning, and sure enough the majority decided to read in new language, rather than toss out the statute for being vague.

It’s great for the defendants, whose honest-services convictions got tossed.  But to get there the Court had to change the rules.  Now, judicial invention is a perfectly acceptable method of statutory interpretation… so long as the new language is what “everybody knows” the statute really meant to say.  And that’s bloody dangerous. 

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We’ve been paying close attention to this issue (see other posts here, here, here and here), as have many others, because the feds love charging people with honest services fraud.  It’s so vague and open-ended, that it potentially criminalizes any activity that’s outside one’s job description.  That makes it a great catchall when you can’t prove something more substantive.  But it’s also not at all what Congress intended.

“Honest services” fraud was originally a judge-created law.  There wasn’t any statute criminalizing it, it just sort evolved via common law, accepted in all the Circuits.  But we don’t do common-law crimes in this country, for one thing, and the mail fraud statute didn’t say anything about intangible rights, so in 1987 the Supreme Court threw out the common-law version of honest services fraud.  If Congress wanted to criminalize it, then that was up to Congress.

The idea was pretty simple: If you had a position of trust, and you abused that position for private gain (say, by taking bribes or kickbacks), then you were depriving people of the services you ought to have been giving them had you been honest.  You were getting paid under the table to do your job wrong.  So in 1988 Congress came up with 18 U.S.C. § 1346.

But the language didn’t say anything about abusing a position of trust.  Instead, it just said that fraud included a scheme “to deprive another of the intangible right of honest services.”  And didn’t define what “the intangible right of honest services” meant.

And nobody knew what it meant.  That’s how prosecutors liked it, because real-life corruption charges are notoriously difficult to prove.  It’s hard to get solid evidence of bribery and kickbacks, especially when the only real evidence would have to come from the parties themselves.  But if the feds could skip all that and just charge a mail/wire fraud, based on this amorphous intangible thing nobody really understood, then they could prosecute all they want with just the barest modicum of evidence.  And so they did.

But now, in the Black, Weyrach and Skilling cases, the Supreme Court was asked to find the statute unconstitutionally vague.

Instead, however, the Court has decided to read the statute as if it had been written properly, instead of making Congress go back and do it right.

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In Skilling v. U.S. (opinion here), the Court ruled that §1346 only covers bribery and kickbacks.  Since none of the defendants in Black, Weyrach and Skilling were charged with any bribery or kickbacks, these charges had to be dismissed.

But nowhere in the statute does it mention bribery or kickbacks.  And the feds have used it to prosecute any number of things that involved neither.  So clearly the feds, at least, understood it to mean more than just bribery and kickbacks.  And the Circuits that upheld such convictions understood it to mean more than that. 

Nevertheless, despite the fact that a lot of smart and reasonable people understood the statute to cover more than just bribery and kickbacks, the Court’s decision today says that everyone knows that’s what the statute meant.  Because everyone knows what Congress really meant to say, the statute’s not unconstitutionally vague.

Due process requires a penal statute to define the offense definitely enough so that ordinary people understand what’s prohibited, and so that it is not enforced arbitrarily.

The Court said ordinary people understand what’s prohibited — not in light of the way it’s actually enforced these days, which is unpredictable at best — but in light of the way the common-law doctrine had evolved prior to 1987. 

It’s obvious that Congress meant to embody that common-law doctrine, which dealt pretty much with bribery and extortion.  So if you interpret the statute to only encompass such acts, it’s not unconstitutionally vague.  Everyone knows you’re not supposed to do that stuff.

Seriously.  That’s the relevant portion of the opinion, in a nutshell.  “Yeah, it’s vague as written, but if it were written to say what Congress meant to say, then it’s not vague.  So we’ll interpret it as if it had been written properly.”

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Justice Ginsburg wrote the opinion.  Part III is the section that deals with this issue (it begins on page 34 of the opinion).  As to Part III, she was joined by Roberts, Stevens, Breyer, Alito and Sotomayor.

Scalia, joined by Thomas and Kennedy, said the Court should not have rewritten the statute, but should have found it unconstitutionally vague.  “In transforming the prohibition of ‘honest-services fraud’ into a prohibition of ‘bribery and kickbacks,’ [the Court] is wielding a power we long ago abjured: the power to define new federal crimes.  See United States v. Hudson, 7 Cranch 32, 34 (1812).”  A vague statute cannot be saved “by judicial construction that writes in specific criteria that its text does not contain, see United States v. Reese, 92 U.S. 214, 219-221 (1876).”

Once again, we agree wholeheartedly with Scalia.  His opinion delightfully picks apart the errors of the majority’s statutory interpretation.  Our favorite passage is this one:

Arriving at that conclusion requires not interpretation but invention.  The Court replaces a vague criminal standard that Congress adopted with a more narrow one (included within the vague one) that can pass constitutional muster.  I know of no precedent for such “paring down,” and it seems to me clearly beyond judicial power.

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Unfortunately, Scalia’s wrong.  There is precedent.  This Court is creating it as you’re reading this.  Last week’s Dolan decision was the start of a rule expressly permitting judicial invention as a method of statutory interpretation.  Today’s Skilling decision is a major adoption of that rule.

We wish it were otherwise, but it would be foolish to expect the Court to not apply that rule in future cases.

Still, it’s a good outcome.  Honest-services fraud is no longer a tool for lazy prosecution of cases that couldn’t otherwise be proven.  We just wish the Court had done it right, and thrown out the law entirely.

There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all three cases.  We’re going to be shocked and appalled if the statute survives the month.  (Read more of our commentary here.)  The feds also see this going the way of the dodo, as evidenced by their rush to add other charges to prominent cases after the first oral arguments in December.

Holder v. Humanitarian Law Project

This one also delves into the constitutionality of a law, this one intended to stop people from providing assistance to terrorists.  Like the honest services statute, however, 18 U.S.C. § 2339B(a)(1) is pretty darn vague.  It also seems to limit perfectly lawful speech, which would also be unconstitutional.  The feds (represented by nominee Elena Kagan) seem to want the law interpreted very broadly, to maximum effect, but during oral arguments the Supremes expressed deep problems with the statute.  It might get kicked back to the lower courts for more fine-tuning of the issues, though, rather than an outright invalidation of the law.

Dillon v. United States

There are a lot of federal inmates serving unfairly long sentences, due to the bizarre discrepancy in sentencing for crack vs. powder cocaine.  (See our latest piece on this here.)  In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack cases.  In 2008, that was made retroactive, so prisoners could get resentenced.  Dillon wanted to get resentenced.  But he wanted more than the 2-level reduction.  He wanted a departure from the Guidelines recommendation itself, as permitted by Booker.  But the feds say Booker only applies to full sentencing proceedings, not to resentencings like this — this is just an adjustment of the guideline range that should have been applied to a pre-Booker sentence.  As Scalia pointed out at oral argument, that would require the courts to essentially disregard Booker.  And given the universal loathing of the crack/powder disparity, we think a finding for Dillon would give the courts the ability to take the injustice into account and impose variance sentences more proportional to those for powder.

McDonald v. City of Ohio

A follow-up to the Heller case a couple of years ago, which said as a matter of federal law that the Second Amendment recognizes an individual right to own a gun, which predated the Constitution.  In McDonald, the issue is whether that applies equally to the states as well, or whether the states can limit or regulate the right to bear arms.  The Court seems likely to narrowly rule that the 2nd Amdt. is incorporated into the 14th, and that the right’s a fundamental one that all the states have to respect, but not get into whether this limitation or that regulation is constitutional.  Those details can be dealt with in the lower courts on remand.

Magwood v. Patterson
Holland v. Florida

Habeas cases that we admit not reading up on when they were argued.  In Magwood, the defendant already won a federal habeas petition, and got resentenced.  Now he’s got a second federal habeas, challenging the new sentence on constitutional grounds.  He could have challenged the original sentence on those same grounds.  So the issue is whether this new petition is a “second or successive” claim that has to be rejected under the AEDPA.  Just on a gut level, we don’t think the defendant’s got much of an argument here. 

Holland deals with a defendant whose habeas petition was filed too late, due to the negligence of his attorney.  The defendant wants the limitations period tolled equitably, in the interests of justice.  Florida says equitable tolling should never be allowed.  Seems like the Court’s going to allow it, but clarify when it’s available.

-=-=-=-=-

Also, we’re still waiting on an important case out of New York’s Second Department, which might create a new emergency exception to the warrant requirement.  Fingers crossed.

Last night, we attended a domestic violence forum sponsored by the Children’s Aid Society here in Manhattan. We’ve been involved with the CAS for many years, and they do some pretty awesome things for kids in intense situations. And domestic violence is a deep and complex social issue we come across plenty. So we figured it might be worth checking out, and maybe come away with some new insights.

It was, and we did, but not in the way we’d expected. There was very little discussion of the causes of domestic violence, the various patterns of behavior of abusers and victims, what actions work to stop it and what doesn’t work, and challenges to be overcome in reducing the incidence of domestic violence. Those are sort of the kinds of topics we expected a domestic violence forum to get into, but unfortunately the talks were pretty much surface discussions of what the speakers do in their jobs, and the kinds of things they deal with.

That’s okay, we guess. The speakers were social workers, and most of the audience seemed to be social workers. So it’s probably nice that they got to hear what others in their field are seeing. But for anyone with a passing familiarity with domestic violence issues, there wasn’t much we’d consider enlightening.

Except for one thing.

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Some in the audience expressed concern about getting ACS (our child-protective-services agency) involved, especially in cases of spousal abuse. They felt uncomfortable, even guilty, knowing that ACS — like pretty much every child-protection agency you’ve ever heard of — is more likely to do harm than good to the families it breaks up, by taking the children away. A mother who’s already being victimized by her husband or boyfriend now gets doubly victimized by losing her children, and the children are traumatized for life. “How can we justify getting ACS involved,” they wanted to know; “how can we live with ourselves afterwards.”

The unanimous response from the panelists was yeah, it feels bad, but you can’t blame yourself for making the call. It’s the abuser’s fault, not yours.

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Where to begin with that attitude? It neatly summarizes everything that is wrong — not just broken, but wrong — with the way we handle domestic violence in this country.

Now believe us, we are fully aware of the horrific abuse that some spouses and children suffer. There are absolutely cases where the best thing to do is get the kids the fuck out of the house. But most cases aren’t like that. More often than not, kids are hauled into foster care or some other form of detention. They’re torn from their parents, suffering very real soul-raping trauma, something no child deserves. They’re taken away from the home “where the love is” (as one of the panelists put it), and forced to live in essentially state custody, in often non-nurturing environments where they get to lose something like one IQ point for each month they stay there. And the trauma is life-changing. Permanent. It cannot be undone.

Well, at least that doesn’t happen to kids unless there’s good reason for it, right?

Well, no. That’s not right at all.

You see, that social worker at the hospital is going to call in ACS if she merely suspects the kid might be in danger. Mere suspicion is enough. There need not be any actual proof. Panelists gave examples of what might justify their suspicion: a child is clinging a little to her mother, a child’s tone of voice, subtle body language. Seriously, that’s all it takes.

And what kind of danger are we talking about? Not necessarily the obvious stuff. Not a danger that the kid herself is being hit or anything. No, the kid’s in danger of (get this) witnessing her mother being abused.

And what kind of abuse are we talking about? Hitting, sure. But also name-calling, that counts too. Being mean, that’s psychological abuse. Restricting how much money the wife gets to spend, that’s abusive. Being bossy about how the wife dresses, that’s abuse too. Basically anything that can be interpreted as the man trying to have some kind of control over the woman counts as abuse.

So if the social worker gets a hint that the kid might be witnessing Daddy calling Mommy names, the social worker gets to call ACS. And the kid gets taken away. And that family is destroyed forever.

And get this, too: The social worker is perfectly justified in reporting Mommy for mistreating her kids. Mommy’s the one being abused, sure, but the kids saw it! She’s guilty of failing to protect them from witnessing her getting abused. Words from the panelists, I’m not making this shit up.

And the social workers get to sleep at night, because they can tell themselves it’s not their fault, it’s the abuser’s fault. At least, the fault of the guy they sorta kinda suspected might be an abuser.

You think that doesn’t happen? You bet your ass it happens.

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Another staggering comment was about situations where a woman makes a false allegation of abuse. We all know it happens. When we were in the DA’s office, we got trained on dealing with this kind of situation, the false accusation, because we all know it happens. Happens in rape, too. There’s this certain subset of women who, for reasons of control or embarrassment or vindictiveness, will try to get the guy in trouble with the law. Maybe they want to get back at him for breaking up with her. Maybe they had sex they now regret. Maybe they want to show they guy who’s boss. Whatever the reason, they call the cops.

And now they’ve started a process they can’t stop. The system rolls in, and rolls over everything. The guy gets arrested. There’s an order of protection. He can’t come home now. He can’t help with the kids. He can’t talk to her. Maybe the kids get taken away, to get them out of the situation. Maybe the guy goes to jail, gets a record, maybe not. She can cry all she wants that she wants him home again, but it’s not her call any more. The machine cannot be turned off. And at the end of the day the family is destroyed over something that never happened in the first place.

This happens, sure, but how do you tell that situation apart from the equally common situation where a woman really is being abused, and she makes up stories to try to get back together with the abuser?

That’s a real problem. You’ll get a woman who needs that relationship, no matter how badly she gets hurt. You put her in a shelter, secret and safe where she and other victims like her are hidden from the men who would hurt them, and she’ll call her man to come get her, ruining the secret for all of them. Sometimes, that kind of relationship is just all they know, they grew up seeing that kind of relationship. More often, it’s a psychological addiction. The make-up periods after each incident are so good, she needs them. So she keeps going back. The abuse gets worse each time, but so do the make-ups. And if something isn’t done in time, she’ll wind up dead. That happens, too.

So how do you tell them apart? It requires some real judgment and probably some pretty specific training, so we were curious to find out how the experts try to spot the false accusations from the false retractions.

We asked one of the social workers, after the function. And we were told that this is a false premise: there is no such thing as a woman who alleges abuse where none occurred. If a woman says it’s happening, then it’s happening.

When pressed to at least consider the possibility of a false allegation, which we could attest to from cases we’ve actually handled, the social worker said it doesn’t matter. If someone’s making that kind of allegation, then something has to be happening at home that justifies state action.

Yes, something is happening. It’s a failure to even look for the possibility of innocence.

It’s bad enough when the police do it. But at least with the police there is some recourse through the criminal process. But in the bureaucracy of public social manipulation work, there’s nothing we can do but watch with dismay as injustice piles on injustice.

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These injustices are only a symptom, of course, of a broader illness.

It’s the result of putting too much power in the hands of people who can’t handle it. We know they can’t handle it, so we don’t give them a lot of leeway to exercise their judgment. We’re afraid that, if the people in these jobs were given discretion, they’d abuse it or misuse it. So to minimize injustices, we give them bright-line rules to follow, and take away their discretion.

But it is precisely that, the bright-line rule, which causes injustice. A person without discretion, who knows that a certain call is unnecessary or unjust, or who simply feels in their gut that it’s wrong, still has no choice. They must either do the wrong thing, or get in trouble. So they do the wrong thing.

This is, of course, an appealing situation for those of a nastily bureaucratic mindset. Little people who have their one bit of authority in this world, and who delight in using that power, because it’s all they have. When they’re just reviewing filings at a clerk’s office, or telling you you’re in the wrong line at the DMV, they’re merely an annoyance. But when they have the power to fuck up your life, they are dangerous.

It’s an appealing situation for that kind of person, so guess what kind of person is drawn to the job? We’re not saying all, or even most social workers in these roles are anything like that. It doesn’t matter. The point is that enough of them are. And plenty more simply lack the guts or judgment or experience to do the right thing.

We place far too much authority in the hands of people who can’t handle it. So it should be no surprise that injustice is routine.

With power must come the discretion to exercise it. And the greater the power to mess with people’s lives, the more discretion must be given. That’s why prosecutors are given so much discretion. Social workers need to be given that discretion as well.

And they need to be more carefully chosen. The people at the function last night were all very smart and capable. But let’s face it, this particular field doesn’t always get the best and brightest. That’s why we have these bright-line rules, again. Because we recognize they’re not the best or the brightest, so we can’t trust them to do the right thing, so we give them a command that requires no judgment, only mechanical reaction. Hiring people based on their ability to exercise good judgment would do much to make the problem go away.

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We’ve probably just offended a significant chunk of our readers. That’s okay, we’ll still sleep well tonight. It’s not our fault, it’s just this system and that lying son of a bitch, Johnson! We would never hurt you. You know that.

But please feel free to respond and let us know how you feel.

Gideon v. Wainwright, 372 U.S. 335 (1963) guarantees that criminal defendants who cannot afford a lawyer must be provided one by the state. In a groundbreaking decision today, New York’s highest court ruled that “serious questions have arisen in this and other jurisdictions as to whether Gideon’s mandate is being met in practice.” And these questions are significant enough to warrant a class action against the State of New York by criminal defendants left to suffer the consequences.

In a lengthy opinion (viewable here), Chief Judge Lippman goes out of his way to point out that this is not a Strickland issue about whether defendants are getting ineffective assistance of counsel. The issue is whether the state is denying them counsel, period.

In order to allow the class action to go forward, the court had to find that there’s a basis for that suit, that looked at in the light most favorable to the plaintiffs they actually have a case. So what did the court see here?

Judges are deciding who is or is not “indigent” for the purposes of assigning counsel, and there are no standards for that determination. There’s no rhyme or reason to it. There’s no consistency. People who perhaps should be getting a public defender wind up never getting a lawyer at all. There’s a huge Due Process and Equal Protection violation right here.

Defendants are arraigned without having a lawyer present. Bail gets set in amounts they could never afford. And they wind up languishing in jail without representation, even for minor offenses. They lose their jobs in the meantime, and lose their homes when they can’t pay the rent, and their families suffer enormously.

Defendants appear in significant court appearances without counsel. They enter into pleas without a lawyer. This despite the clear language of CPL 180.10(5) forbidding a court from proceeding without counsel, unless the defendant has knowingly agreed to it.

In instances where lawyers do get appointed, they’re incompetent. They don’t confer with their clients. They don’t learn the case. There’s a different lawyer at each proceeding, just as unfamiliar with the case as the previous one. They don’t respond to client inquiries however urgent. They either miss court appearances, or if they do appear they’re unprepared to proceed.

The appointed lawyers waive important rights, without first conferring with their clients and getting authorization. They make “virtually no efforts on their nominal clients’ behalf,” as the opinion puts it.

“Actual representation assumes a certain basic representational relationship.” The facts here show the opposite, that there are “serious questions as to whether any such relationship may be really said to have existed.” In other words, counsel may have been appointed, but there was never any real attorney-client relationship. This is not ineffective representation — it is the absence of representation.

Apparently, according to the opinion, the main reason for the woeful lack of representation by the public defenders is “inadequate funding and staffing.” This makes sense, to some degree. Most counties in New York look on the state’s application of Gideon as an unfunded mandate, which makes it both unpopular and unlikely to be high on the priority list when budgets are set. Besides, it’s only going to go towards the defense of bad guys, right? So who cares if they get the short end of the stick?

The allegations pertain to five upstate counties, but this is stuff we’ve seen elsewhere and in other states as well, so bizarre as these claims may sound to the unititiated, we can tell you that they ring true to us. Heck, just last month we took over a public defender’s case in New Jersey, where the client had been sitting in jail for a month on $100,000 bail without once even having met his public defender. We got retained, met with the kid, did the work the PD should have done, and got that bail knocked down to $5,000. That kid should have been walking around a month earlier, and would have been if the system there worked, which it didn’t. And just this morning we were in a NY State courthouse, where we saw a public defender round up all the legal aid defendants out in the hallway and harangue them, shut down anyone who tried to ask a question, and otherwise so distress all the indigent clients that one came over and begged me to take her case with the promise that she’d find some way for her family to pay ourfees. (We declined, because we’re really quite expensive, but another less-expensive attorney took her up on it.) Anyway, the point is we see this kind of stuff every day in places outside the five counties named in the lawsuit. The system really is broken, and it’s time to fix it.

One thing that’s really interesting to us is that this case is being brought collaterally, as a civil class action, rather than as a series of individual post-conviction appeals. The defendants in the criminal actions are the plaintiffs in the class action. As the court points out, there is no reason why the defendants should wait until their cases are over, and pursue their claims on appeal. They’re perfectly within their rights to go right to civil court whether or not their criminal cases are still pending. But to be honest, the thought never occurred to us before. And yet, there’s nothing astonishing about the idea apart from the fact that it hasn’t really been done before. “This action properly understood,” explains the court, “as it has been by distinguished members of the prosecution and defense bars alike, does not threaten but endeavors to preserve our means of criminal adjudication from the inevitably corrosive effects and unjust consequences of an unfair adversary process.” There is no reason why the class members here cannot seek to enforce their right to counsel, and compel the state to provide that counsel as is their right.

And a civil court certainly has the power to compel the state to do its job. That’s one of the most beautiful things about our judicial system. It’s one of the main reasons we went into law in the first place. So we’re happy to see the Court of Appeals making the right call here. It remains to be seen whether the class members can prove their case, but at least now they’re getting the chance to make it.

So we took a few minutes just now to check out some headlines with Google’s “Fast Flip” news browser (which, by the way, is super-cool). And this headline totally caught our eye: “Some Sex Crimes Get a Pass – Why?”

That’s a damn good question! What do you mean, some sex crimes don’t get prosecuted — that’s appalling! Either the crime is something society doesn’t think worth punishing, or prosecutors aren’t doing their job! So we checked it out.

What we found instead was a totally inane article on the Huffington Post, leading off with the following lines:

Sometimes the simplest sounding questions spark the most profound discussion.
What’s our purpose on earth?
Why is the sky blue?
Why do we have a statute of limitations on sex crimes?
I mean, really, why give the criminal any break at all? By placing a limit on how far back the prosecutor can go to punish a sex predator aren’t we telling countless victims that the justice system doesn’t apply to them?

The author, one Diane Dimond (titled “Modern day journalist,” whatever that means), asked around and got some decent answers. Connecticut defense attorney Mickey Sherman explained that statutes of limitations protect people’s right to be notified in a timely manner that they could face criminal charges. Prosecutors from New Mexico and California explained that legislatures decide how long a statute of limitations ought to be, reflecting what the people think is fair.

So what did Ms. Dimond conclude?

I came away thinking the real answer as to why we allow this is because that’s the way it has always been done.

Fortunately for the rest of us, she and victim advocate Wendy Murphy have a solution:

Someone … needs to confront the head of the judiciary committee in every state legislature where the time limits are short and ask only one question: “Why do you want a child rapist to EVER stop looking over his shoulder, wondering if the cops have finally caught up with him?”
…
There is no Statute of Limitations for murder or treason and I would submit sexual assault is just as life-damaging and heinous a crime. Let’s demand we abolish this foolish statute.

Hmmm. How about we don’t.

First of all, if you’re concerned about a child rapist, the clock won’t even start ticking on that statute of limitations until the kid turns 18. That, plus the 7- 10- or 15-year period most states have, would probably be plenty of time for someone to bring it up.

Second, nobody in their right mind disputes that rape can be a horrible thing. But to equate it to murder or treason (which in the U.S. means trying to get Americans killed in wartime) shows a remarkable lack of judgment and perception. Nothing is as remotely “life-damaging” as forcibly taking the life of another.

See, there’s a concept that some things really are worse than other things. Not everything is equally bad. Shoplifting is not a good thing, either. Do you want to have to “look over your shoulder” for the rest of your life because you stole a pack of Fruit Stripe twenty years ago? Of course not.

No, at some point you’re going to want to be able to just get on with your life. At some point, society is going to recognize that you need to move on without worrying about whether you could face criminal penalties — which typically involve the loss of liberty and property.

Also, if society really wanted to punish you for your offense, and if the victim really wanted to go after you for it, then it’s going to happen sooner rather than later. If nobody has bothered to bring it up for ten years, should you really be forced to worry about someone springing that gum theft on you ten more years from now? Of course not.

We as a society recognize that this would simply be unjust. And that’s why we have statutes of limitations. Not because “that’s the way it’s always been,” but because that’s what we happen to think is fair.

Now the statute of limitations for stealing a pack of gum is going to be pretty short. It’s not the crime of the century, so if anyone wants to prosecute you for it they’re going to have to do it within a year or two.

As crimes get more and more severe, their limitations periods get longer. The absolute worst crimes — taking another’s life, and warring against one’s own society — get no limitations period.

Rape is pretty damn bad, though. So most states give it a pretty long limitations period — 7, 10 or 15 years are common.

And guess what: Some states actually don’t have any limitations period for the worst rapes. Alabama, California, Delaware, Florida, Idaho, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Jersey, New Mexico, North Carolina, Rhode Island, South Dakota, Vermont, and Virginia all permit the worst rapes to be prosecuted at any time. That’s 19 states that already do just what Ms. Dimond wants.

Does that mean the other states are backwards or wrongheaded? Of course not. One of the beauties of American government is that people in different parts of the country get to write their own laws, to reflect their own local mores. Something that’s a crime in New Mexico might be perfectly legal and encouraged in Ohio. The people, through their elected legislatures, get to write the laws that suit them best. And as times change, they can modify their laws as they see fit.

So the fact that New York has a 5-year statute of limitations means that’s how long New Yorkers are willing to give for an adult victim to come forward, the police to figure out whodunit, and charges to be filed. If New Yorkers thought it would be fair to all concerned to extend that period, they could do so. Or they might decide that Utah has it right, and reduce the time to 4 years.

By all means, if you think a law should be changed, write your legislators and tell them so. But try to give them better reasons than what the HuffPo posted there.