Posts Tagged ‘Statutes’

Let’s Make a New Law!

Thursday, October 24th, 2013

Any moderately well-informed person these days is aware of the shocking injustices that happen whenever criminal laws get written by people who don’t really understand what criminal law is, or how it works. (Brilliant summary here.) They tend to create crimes that are ill-defined, overbroad, and usually an overreaction to the perceived harm. The results can be pretty bad.

How much more cause for concern, then, when the proposed crime violates not only the fundamental principles of criminal jurisprudence, but cherished individual rights that have nothing to do with crime?

And how much more cause for concern, then, when those who catch potential problems are not engaged in thoughtful debate, but are instead shouted down and accused of malicious and reprehensible conduct?

It looks like that’s what’s been going on recently in an ongoing debate over proposed “Revenge Porn” legislation that’s floating around out there. At first the shenanigans were amusing to watch, but lately it’s turned into a distressing train wreck online. A law has been proposed in reaction to something with a lot of emotional pull, thoughtful people have voiced concerns that it may be a bad law, and its proponents have responded less with reasoned debate than with emotional backlash. Those who disagree are shouted down as stalkers and assholes; their comments are deleted so that others may not see them.

Ignoring whether either side is right or wrong, what a terrible blow this has been to the credibility of the law’s proponents. Think how insecure they must be in their own assertions to react so defensively. How much confidence can than inspire in the rest of us?

-=-=-=-=-

“Revenge Porn” is pretty much what it sounds like. You’re in a relationship with someone, they let you have some nude pix, then there’s a breakup and you feel bitter and to get back at them you post their nudes online for the world to see. It’s a nasty, cruel thing to do. It’s not hard to imagine society thinking the practice to be so bad that it deserves to be punished. It’s easy, in other words, to see Revenge Porn as something that might be criminalized.

Some law professors have been pushing a model statute that would criminalize the practice. So far, no big deal. This is something that law professors are expected to do.

None appear to be professors or practitioners of criminal law, though. That’s not encouraging. Those reviewing the language will therefore probably want to keep an extra-sharp lookout for things like imprecise (or missing) mens rea, over-inclusive definitions, and conflated or confused concepts, etc. Nothing personal, just a normal precaution. You get this stuff all the time.

An extra wrinkle comes from the fact that posting a nude picture of your ex counts as “speech” for First Amendment purposes. And the First Amendment doesn’t let the government criminalize speech, except in very tightly controlled circumstances. Even the most awful, painful, hurtful and distressing speech (such as that of the Westboro Baptist “Church”) is not something that gets criminalized in this country.

-=-=-=-=-

This is a criminal law blog, not a First Amendment forum, and so it’d be somewhat off-topic to get into whether or not Revenge Porn is something that can be criminalized without running afoul of Freedom of Speech. But it is pertinent to note that the professors’ interpretation of the 1st Amendment here is not universal — and it is also relevant to examine how they have reacted to the ensuing disagreement.

To be fair, the law’s proponents are from academia, where disagreement (often) = bullying and criticism (sometimes) = hate speech. Where speech is generally not very well protected, in the first place. Where debate can be frowned upon and contrary points of view shouted down, removed from newspaper bins, at times even persecuted and hounded out. You ain’t seen petty vindictiveness until you’ve seen someone challenge the orthodoxy. You don’t get this from the better professoriate, of course — there are plenty of wonderful academics who welcome healthy debate, the chance to make their case or (as the case may be) get a new point of view. But there are plenty of others who prefer to point to their credentials and their peer-acceptance as proof of their correctness, and who get the most defensive when challenged.

You can usually tell which kind of academic you’re dealing with based on how they react to a contrary position. The ones who are pushing the Revenge Porn law, sadly, seem to be falling into the lesser camp so far. This is not good for their credibility.

So to the extent that First Amendment practitioners are in dispute with these particular academics, one might be inclined to conclude that the practitioners could perhaps be more likely to be correct.

-=-=-=-=-

But again, this is a criminal law blog. So how does the law look from the perspective of our criminal jurisprudence?

Not… not so great.

Here’s what the model statute says:

Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.

(a) Definitions: For the purposes of this section,
1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.
3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.

(b) Exceptions:
1) This section shall not apply to lawful and common practices of law enforcement, the reporting of unlawful conduct, or legal proceedings.
2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.

…..

Holy cannoli, where to begin…?

The first problem is one of good old mens rea: It criminalizes disclosing the image without the subject’s consent, regardless of whether the actor knew about it one way or the other, or meant to do so without consent. It criminalizes the act where the subject had a reasonable expectation of privacy, regardless of whether the actor knew or had any reason to know it. The only mens rea here is whether the image was disclosed intentionally.

It’s a strict liability crime. Whenever you see that, huge red flags should be popping up in your head screaming “INJUSTICE AHEAD!” Sure it doesn’t criminalize accidentally dropping a photo out of your wallet, but it does criminalize showing it to people with the mistaken belief that your wife was cool with it — or without the knowledge that she had since changed her mind.

The second problem is one of conflated concepts. “Reasonable expectation of privacy” is a concept of Fourth Amendment law — of procedural rights, not of criminal liability. It is a term of art that has been defined in a fairly convoluted fashion over the years in such a way that the average layman couldn’t give you an accurate definition of the phrase if his life depended on it. His liberty would depend on it, here. The authors probably don’t mean for this phrase to have the meaning & baggage it carries in Fourth Amendment jurisprudence. They just think it sounds good. And so there is inherent confusion in the statutory language. It is not clear what is actually meant here. And where there is vagueness in criminal law, where there is room for interpretation, there is room for cops and prosecutors to screw over the regular Joe. And if you don’t think that happens, you’re not getting out enough. When you see conflated concepts and room for interpretation, those red flags ought to be screaming at you even louder.

The third problem is one of unclear writing. Seriously, what do the “consent” and “reasonable expectation of privacy” clauses modify? Does this refer to images that are disclosed without consent, or taken without consent? Does this refer to images that were disclosed under circumstances where someone had an expectation of privacy, or taken under such circumstances? Is it criminalizing pictures of sexual acts that were nonconsensual? What about images that were taken by someone else, and then given to you by your ex? What about images that someone else forwarded to you, or you found online, and had no way of knowing whether they were consensually/privately taken or disclosed (whichever verb applies)? It can be read all of these different ways.

There is literally no way of knowing for sure what conduct is criminalized here. As written, it outlaws all kinds of behavior its authors probably didn’t mean to punish. It is overbroad as hell. You hear those red flags? Since when do flags scream? These are. Get some earplugs.

Strictly from a criminal perspective, this is a god-awful statute. It’s another one of those “think of the children” “take back the night” “let’s name a statute after the victim” kinds of legislation that pave an eight-lane superhighway to hell with their good intentions.

-=-=-=-=-

You want a statute that works? (Again, ignoring any First Amendment concerns.) Here’s one I banged out in court this morning while waiting for a case to be called. Zero research or deep thought went into it:

…..

DEFINITIONS:

(A) “Private Sexual Image” = any media containing:

(i) an image taken in a non-public place, and in a non-commercial setting…

(ii) of a living person whose identity is readily ascertained from the contents of the image…

(iii) and depicting that person’s unclothed genitalia, buttocks, or female breasts, or depicting that person engaged in sexual intercourse, oral sex, manual-genital contact, or other such sexual behavior…

(iv) and which has not previously been “distributed” as that word is defined herein.

 

(B) “Distribute” = make publicly available by any means, including displaying in public or in a publicly-accessible medium, sharing via any communication or peer-to-peer arrangement, and any other method that makes a duplicate of the image available to others. Excluded are private acts of showing the image, without duplication or transmission, to individuals or small groups of people.

 

CRIMES:

Any person who, with the intent to harass, shame, or defame another person:

(1) distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of that other person;

(2) when he knows, or a reasonable person similarly situated would know, that he does so without the consent of that other person; and

(3) thereby does harass, shame or defame that other person

is guilty of a Fucking Nasty Crime.

 

Any person who, with the intent to harass, shame, or defame another person:

(1) distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of that other person;

(2) when he knows, or a reasonable person similarly situated would know, that he does so without the consent of that other person

is guilty of a Nasty Crime.

 

Any person who

(1) intentionally distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of another person;

(2) when he knows that, or recklessly disregards whether, he does so without the consent of that other person

is guilty of a Crime.

 

DEFENSES.

It shall be an affirmative defense to all of these crimes that, when the image in question was originally taken, it was reasonable to expect that it would later be viewed or possessed by people other than those who were a subject of the image, the person taking the image, and the person accused of distributing the image.

It shall be an affirmative defense to the Fucking Nasty crime that the image in question was transmitted to the accused via electronic or other means whereby the image could be “forwarded” or otherwise duplicated and transmitted to third parties.

…..

There, quick and easy. There’s probably stuff to fix in there, as well, and again who knows if it’d pass constitutional muster on other grounds, but it’s hardly as overbroad or prone to injustice as the one those professors are promoting.

I bet you can do it even better. You are cordially invited to tear my suggestion apart in the comments, and provide your own language. Have at it!

Understanding the law

Friday, March 8th, 2013

A lot of the law is extremely formulaic. True, human intelligence is required to spot issues, devise strategies, and (most importantly) persuade decisionmakers. But in its actual application, the law is often little more than a series of IF-THEN decisions. A computer could be programmed to do it. This is just as true of corporate taxation as of advanced constitutional law. A law student could outline those courses with nothing more than a flowchart and do okay on the exam.

Knowing the formula is important. It’s specialized knowledge that you usually have to go to law school to get. But it’s only knowledge. It’s not understanding.

It’s like baking a cake. If you know the recipe, you can go step by step through the process and get a decent cake on the other side. If you don’t know the recipe, you’re likely to wind up with a big mess. But knowing a recipe that works isn’t the same as knowing why it works. It’s not going to help you if your ingredients suddenly change, or something new is added into the mix, or you have to use an oven with a very different temperature. In that case, if you want to make a cake, you’re going to have to understand the chemistry of what’s going on, the effect that the ingredients and how they are combined and the heat and the time have on the final result.

Knowledge is the what. Understanding is the why.

Most students can demonstrate their knowledge on an exam, and they’re lumped together in the curve. It’s the rare students who demonstrate their understanding who get the outlier As, however.

In fact, there are professors out there who will announce to the class that the final exam is going to cover things that never came up in class. Topics that were never discussed. Issues that aren’t in any of the books. The students will have to say, based on their understanding of why the law is the way it is, what the answer in that unfamiliar area ought to be.

These are awesome professors. If you ever get one, cherish the experience. Because you’ve lucked into someone who teaches the why, as well as the what. And you are going to be so much better equipped to deal with the law as it changes.

The law does change. Whatever field you practice in, the law is going to change during your career. If you know where the law is coming from, you’ll have a pretty good idea of where it’s going. And more importantly, whichever way it goes, you’ll get why. You’ll understand it better. You’ll be able to use it better, advise your clients better, persuade a court better.

So how does get this understanding?

What you’re looking for is policy. An underlying philosophy or purpose that explains the statutes and cases. What were the lawmakers and judges trying to do? What was the point of view that drove how they did it?

You’d think this would be easy — just look at the legislative record to see all the arguments for and against, the court opinions spelling out in excruciating detail precisely where they were coming from.

But if you try doing that, you’ll soon learn it’s not easy at all. The stated reasons for statutes, regulations and caselaw are inconsistent as hell. They’re all over the map. And what’s more, people are only human. The reasons we give for our actions are rarely the same as our true, unstated motives. We may not even be fully aware ourselves of the actual policies we’re acting on — most of the time because we haven’t reflected enough to actually know what they are, and so they remain unconscious, subliminal. And our brains are wonderfully adept at justifying after the fact.

So it’s a puzzle. The narrators are not telling you the truth. They’re not lying to you, but they’re not telling you the truth. The trick is to pick out the clues from what they say, from the situations they’re reacting to, from the problems they’re trying to solve, and from (most importantly) what they actually do. It takes a fair amount of insight into one’s fellow human beings to solve this puzzle.

And this is what sets apart the merely adequate law professor from the superstar. The adequate professor makes sure you understand what the various disparate laws happen to be. The superstar gives you an insight that explains them all (or most of them, anyway).

Which way would you prefer to learn them all?

Now, there are lots of ways to explain what’s going on. How do you know which theories are best?

As with any other field of study, the simplest theory that explains the most data is best.

So for example, you might have a ton of cases that seem to be all over the place, if you just take the judges at their word. They seem to be espousing a given principle, but their decisions keep pushing the law in a different direction. That tells you that the real reason isn’t the one they’re saying. Maybe it’s emotion. Maybe it’s a desire for a certain outcome no matter what. Maybe it’s just pandering to a perceived public opinion. Maybe it’s just a backroom deal.

And those surface reasons give you a clue to the unspoken philosophy behind them. In a criminal case where the court is performing some impressive legal gymnastics, it could simply be that the desire to punish this guy is more important than any protections the law might have given him. (That’s the opposite of the rule of law, by the way. A good example of saying one thing but doing another.)

You can also watch as repeated reliance on the spoken, but incorrect, principles leads to bizarre outcomes. The exclusionary rule is a good example, where the courts keep saying it’s about deterring the police from violating your rights, when in reality it does nothing of the sort. The rule is intended not to make the police think twice but instead to ensure that violations of your rights don’t get used against you. And you can see how repeated insistence on its deterrent purpose erodes the rule — because in situation after situation the court recognizes that there is no significant deterrent effect, and so says exclusion wouldn’t matter here.

This kind of thing goes on in almost every field of the law.

The trick to understanding is actually formulaic: 1) Look at the facts and the outcome; 2) Look at the stated justifications; 3) Note any disconnects; 4) Apply your own understanding of human nature, various philosophies, history, culture, etc., determine likely explanations for the disconnects; 5) Select the explanation that explains the most data with the least complexity.

Go on, try it!

On Overcriminalization: There’s nothing new under the sun

Monday, June 11th, 2012

As we’ve mentioned perhaps a dozen times by now, we do this illustrated guide to law in our rare moments of free time. (Latest post on self-defense law is here.) We make every effort to avoid citing case names or statutes in that guide, because they’re almost never necessary for an understanding of the actual concepts. We also try not to waste time on what the law used to be. It’s common for those who popularize specialized fields of knowledge to tell the story of how a given field has evolved, devoting the bulk of their writing to what people once thought, before getting to how things are right now — and we hate that. Cut to the chase, already!

But the next installment’s going to be about the sources of criminal law, and it would be sort of disingenuous to simply cut to the chase there (“elected officials pass statutes and ordinances, and agencies adopt regulations, now move along” — that’s not really the whole story, is it?). In this particular case, it seems necessary to at least summarize a history of how English and American criminal laws all came about. Because that history is still a big source of the criminal laws we deal with now — occasionally in weird ways.

It’s a fascinating history, and we’re barely going to touch on any of it in our comic. But the surprising thing is how rarely anyone has touched on it at all. The history of criminal procedures is extremely well-documented (and byzantine in its complexity); but if any of you are History majors looking for a topic for your senior thesis or a dissertation, we might just mention that the history of the laws defining crimes is far from exhausted, hint hint.

There are two or three halfway-intelligible histories out there, written during various centuries, and each author makes the same complaint that they’re writing in a vacuum. Each, however, refers heavily to Sir William Blackstone. So we were re-reading bits of his Of Public Wrongs this morning over our coffee (thank you Google Books!) when a thought started nagging in the back of our brain.

It was hard to pin down the idea, but then we had it: Overcriminalization. For a while now, people who pay attention to the law have complained that there are too many crimes, with irrationally high penalties, and that this leads not only to injustice but to the law itself losing its legitimacy. Lately, this idea has begun to gain traction among political types as well. People are starting to realize that, as we’ve written several times before, the problems come from a number of sources: vindictive laws being passed without much forethought in response to notorious one-off cases; progressive politicians outlawing more and more offensive behaviors; reactionary politicians ratcheting up the punishments for everything; and perhaps most insidious of all, unelected bureaucrats imposing criminal penalties on countless (and as yet uncounted) regulatory infractions. It’s so bad that nobody knows for sure what’s a crime and what isn’t, and especially in the federal system the penalties can far outweigh the severity of a given offense.

Why did reading Blackstone bring this to mind? Because apart from merely commenting on the state of the law in the mid-1700s, Blackstone was arguing for reform. He wanted a law that was more utilitarian, more deterrent than retaliatory, more enlightened — and above all, more simplified. He complained that the criminal law as it stood in his time was a tangle of writs and statutes, with new offenses being created all the time without anyone knowing about it. All the different sources of penal laws, and all the previously unknown offenses, were “a snare for the unwary.” The law had ratcheted up over the preceding centuries, so that the number of capital offenses was enormous, and severe punishments were prescribed for the pettiest offenses. All this led to judges refusing to impose the prescribed penalties, while at the same time leading to a growing contempt for criminal laws in general.

Yup, sure sounded familiar. Overcriminalization is something that just seems to … happen… in mature systems. In Blackstone’s time, it happened because of a rapidly-growing administrative role of government, because of officials trying to look tough on crime, because of vindictive one-off laws, because of not thinking things through, and because of simple intertia. Yup, totally familiar.

Still, whenever people start talking about overcriminalization, they don’t start throwing around old Blackstone quotes. Instead, they usually come out with an aphorism they ascribe to Tacitus: “The more numerous the laws, the more corrupt the government.” Which is unfortunate because (1) that phrasing implies a meaning that Tacitus did not intend; and (2) what the old boy really was saying was so much more apposite.

What was Tacitus saying in his Annals, Book III part 27? He’s talking about how the laws were getting out of hand in Ancient Rome:

Pulso Tarquinio adversum patrum factiones multa populus paravit tuendae libertatis et firmandae concordiae, creatique decemviri et accitis quae usquam egregia compositae duodecim tabulae, finis aequi iuris. nam secutae leges etsi aliquando in maleficos ex delicto, saepius tamen dissensione ordinum et apiscendi inlicitos honores aut pellendi claros viros aliaque ob prava per vim latae sunt. hinc Gracchi et Saturnini turbatores plebis nec minor largitor nomine senatus Drusus; corrupti spe aut inlusi per intercessionem socii. ac ne bello quidem Italico, mox civili omissum quin multa et diversa sciscerentur, donec L. Sulla dictator abolitis vel conversis prioribus, cum plura addidisset, otium eius rei haud in longum paravit, statim turbidis Lepidi rogationibus neque multo post tribunis reddita licentia quoquo vellent populum agitandi. iamque non modo in commune sed in singulos homines latae quaestiones, et corruptissima re publica plurimae leges.

Which my antique Church & Brodribb translation has as:

After Tarquin’s expulsion, the people, to check cabals among the Senators, devised many safeguards for freedom and for the establishment of unity. Decemvirs were appointed; everything specially admirable elsewhere was adopted, and the Twelve Tables drawn up, the last specimen of equitable legislation. For subsequent enactments, though occasionally directed against evildoers for some crime, were oftener carried by violence amid class dissensions, with a view to obtain honours not as yet conceded, or to banish distinguished citizens, or for other base ends. Hence the Gracchi and Saturnini, those popular agitators, and Drusus too, as flagrant a corrupter in the Senate’s name; hence, the bribing of our allies by alluring promises and the cheating them by tribunes vetoes. Even the Italian and then the Civil war did not pass without the enactment of many conflicting laws, till Lucius Sulla, the Dictator, by the repeal or alteration of past legislation and by many additions, gave us a brief lull in this process, to be instantly followed by the seditious proposals of Lepidus, and soon afterwards by the tribunes recovering their license to excite the people just as they chose. And now bills were passed, not only for national objects but for individual cases, and laws were most numerous when the commonwealth was most corrupt.

So he wasn’t saying “the more corrupt the government happens to be, the more laws there will be.” He was saying “there were ups and downs, but generally there was a strong correlation between how many criminal laws we had and how broken our government was at the time.” (The word “corrupt” having the older more general meaning of “debased, decayed, changed in bad ways” — the way we’d say “a corrupted hard drive” today — in addition to the more specific modern meaning of “venal, self-serving, bribe-taking etc.”)

And what Tacitus was saying in general was the same thing that Blackstone was saying: there were too many criminal laws, often conflicting, created not for the general need but in order to curry favor with the people, to react to one-off cases, etc. etc.

Yup, sure sounds familiar. Just like old Ecclesiastes said, “there’s nothing new under the sun.” (Or didn’t one of the Epicureans say that first? Or was it one of the older Vedas?)

-=-=-=-=-

Blackstone actually gives us some hope. For his proposed reforms actually were taken to heart — in the new United States, of all places. As the new states were formed, and began creating their laws practically from scratch, they were ideally suited to put these new progressive ideas in place. There was no hidebound tradition to adhere to, no entrenched bureaucracy to upend. Blackstone called for a stripped-down, principled criminal law, and American legal thinkers tried to make it so. Crime was (for the first time in history, really,) identified as an offense against the State, and not the more personal kind of moral offense or private conflict. Lawmakers and judges began to try to explicitly think through different levels of intent and culpability — not as thoroughly as would be done in the mid-20th Century, but still in significant ways. Deterrence replaced retaliation as the driving force of enlightened thought on punishment. These were not frontier hicks making the laws, but educated progressive thinkers well aware that they were creating something new, and trying to get it right the first time.

We don’t have a new nation to start from scratch again, but at least there is precedent for reform. England came around, too — if a bit more gradually. (We probably don’t want another Sulla, though.)

It’s happened before, it could happen again. There’s nothing new under the sun!

 

 

 

Grammar Police Fail

Wednesday, December 1st, 2010

 

So everyone from the Washington Post to Fark is reporting gleefully about the recent acquittal of a Northern Virginia man charged with failing to stop for a school bus picking up kids.  The defense attorney is getting kudos for pointing out that the law, when rewritten 40 years ago, omitted the word “at.”  The resulting language, agreed the judge, only criminalizes a driver who fails to stop a school bus that was stopped.  Absurd, but Virginia doesn’t let judges add words to statutes by interpretation, even if they’re absurd.

So far, so good.  We’re all in favor of forcing the government to do its job properly before being able to impose a criminal punishment.  And one of our pet peeves is poorly-drafted statutes and regulations, many of which seem to have been written by junior high dropouts.  Passing a stopped school bus is incredibly dangerous and richly deserving of criminalization, but we have no problem with someone getting off on a technicality of bad drafting.  A poorly or vaguely drafted statute does not provide the notice of criminal liability that is a basic element of Due Process, and the state shouldn’t be allowed to punish someone for violating it. (See “Honest Services.”)

But on actually reading the statute, we have to say the judge screwed up.  Here’s what it says:

A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

The error here is not the omission of the word “at” after the word “stop.”  It’s the inclusion of a gratuitous comma after the word “direction” — a comma which is artless, but nonetheless does not change the meaning of the sentence.

Here’s the sentence with the “at” included:

A person is guilty of reckless driving who fails to stop at, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

That reads even worse.  That’s where the “at” was before amendment.  (But the statute also had a lot of other language as well that was deleted or replaced.  It read fine before it was amended.)

Here’s the sentence with the gratuitous comma removed:

A person is guilty of reckless driving who fails to stop, when approaching from any direction any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

This makes perfect grammatical sense.  It’s still artlessly written, but it scans.  You’re guilty if there’s a bus stopped to pick up or drop off kids, and you don’t stop, no matter whether you’re coming from behind or ahead or the side.

As written, it still says that.  The extra comma (a bane of ancient legal writing) doesn’t change the meaning one way or the other.

Speaking as a card-carrying Grammar Nazi, the judge was simply wrong to think it meant you’re guilty if you fail to stop a school bus you approached.  The same misreading could be used to say you’re guilty if you fail to stop your own car for the purpose of taking on or discharging children.  The Commonwealth cannot appeal from an acquittal, so this case is over, but the defense really was in the wrong here.

How would we have written it?  To convey the same meaning, we’d probably draft something like this:

A person is guilty of reckless driving if he fails to come to a full stop a safe distance away from a school bus that is stopped on any road for the purpose of taking on or discharging children, regardless of the direction in which he is traveling.

Or some such.

Anyway.  Kudos to the defense lawyer — it’s still a perfectly valid victory, and in a way it’s nice to have a foolish judicial decision in the defense’s favor for a change.  But it’s a good thing that driver didn’t hit a kid.  His actions still count as reckless under any definition of the word.

Decent, law-abiding citizen? Go directly to jail.

Saturday, October 30th, 2010

 

Odds are, if you’re reading this, you’ve lived an admirable life.  You applied yourself in school, got a good job, and worked hard to be a valuable member of your community.  Through your own efforts, you’ve probably earned a position of respect and responsibility.  Maybe you run your own shop, or you’re a partner in a firm, or you’re a military officer.  Your ethics are beyond reproach.  You’re raising your kids to be loyal, kind and brave.  You, dear reader, are doing everything right.

And you, dear reader, can very easily find yourself in the defendant’s seat.  In the crosshairs of a federal or state prosecution.  Facing serious prison time.

For what?  For nothing, that’s what.  You yourself may have done nothing wrong, but our criminal law has devolved so far, so fast, that you can find yourself being prosecuted anyway.

The worst effects can be seen in federal law.  As the regulatory state has expanded, as the “nanny state” has expanded, as the role of the federal government has expanded, the nature of federal criminal law has changed dramatically.  Stuff that nobody in their right mind would consider “criminal” has nevertheless been made into a federal crime, not just by congressional statute, but by regulatory fiat.

Regulatory crimes are the worst, because agency regulations are never (more…)

It’s Just Stupid: How the feds screwed up their lawsuit challenging Arizona’s immigration law

Wednesday, July 7th, 2010

 

Now that we’re all immigration lawyers, we figured we’d better take a gander at the complaint filed yesterday by the feds, seeking to strike down Arizona’s new immigration law.  The feds say Arizona’s law is preempted by federal law and policy, and so must be struck down under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2.  (You can read the complaint for yourself here.  The text of the law can be found here.)

After reading the complaint in its entirety, we have to say that it’s mostly stupid.

The law was hotly criticized by the Obama administration even before it was enacted back in April, so it’s no surprise that this action was filed.  We’re surprised it took this long to do it.  And we’re even more surprised, given how long it took, that the feds did such a shoddy job of it.

In broad strokes, Arizona wants to deter illegal aliens from sticking around in Arizona.  To that end, among other things, the law:

  • Tells Arizona police they have to verify someone’s lawful presence if, during an otherwise lawful stop, they have reasonable suspicion that the person might be here unlawfully.  §11-1051(B) [referred to as Section 2 in the complaint].
  • Amends existing law, permitting police to make a warrantless arrest if the officer has probable cause to believe that a misdemeanor or felony has occurred, to add that the police can make a warrantless arrest on probable cause to believe the suspect committed an offense for which he could be deported.  §11-1051(E) [in Section 2 of the bill, but perplexingly referred to as Section 6 in the complaint].
  • says Arizona citizens can sue for money damages if any Arizona state or local official or agency “adopts or implements a policy” of not enforcing federal immigration laws to the extent permitted by federal law.  §11-1051(G) [Section 2].
  • makes it a crime of trespassing to be present in Arizona in violation of federal law.  §13-1509(A) [Section 3].
  • amends existing state law against smuggling human beings (§13-2319 [Section 4]) to permit the police to stop a car they reasonably suspect to be in violation of both a traffic law and the already-existing law against smuggling.
  • prohibits illegal aliens from seeking work in the state.  §13-2928(C) [Section 5].
  • makes it illegal for “a person who is in violation of a criminal offense” to transport or harbor illegal aliens.  §13-2929(A) [Section 5].

The general argument the feds make is deliciously ironic: Requiring compliance with federal law would conflict with federal law.  At first glance, it seems like everyone at the DOJ who approved this complaint skipped Logic 101, and listened instead to John Cleese’s logic monologue on the Holy Grail album.  But this is not really the stupid bit.

Their argument is more along the lines of (1) the feds get to determine policy of how and when the feds enforce their own laws; (2) Arizona isn’t telling the feds what to do, but it’s going to be enforcing the same laws more thoroughly; so (3) Arizona is messing with the feds’ policy.  This is one of the stupid bits, because nowhere does Arizona tell the feds what to do or how to do it.

The Complaint commits some intellectual dishonesty, however, to make it seem so anyway.  They repeatedly misquote the Arizona law to say a citizen can sue “any” official or agency for failing to enforce the immigration law.  They make it sound like Arizona citizens could sue federal officials for failing to enforce federal law.  But that’s not at all what is said.  The Arizona law only (more…)