There are stories about a guy who gets a terrible beating from cops because he wasn’t sufficiently respectful and obsequious, and they could.  These are bad stories, often terrible stories, but they come out because there is someone who cares about the fellow beaten.  What about some homeless guy, a person who barely exists in our society. 

Who would know if the cops beat him to death for nothing?  Who will care.  Via Carlos Miller‘s pixiq page :

Kelly Thomas, a 37-year-old homeless man with schizophrenia, kept calling for his father as police beat and tased him repeatedly.

But his father, a retired Orange County sheriff’s deputy, was not around.

It wasn’t until after Thomas slipped into a coma and was hospitalized with multiple injures that his father saw him.

And by then, it was too late. Thomas never recovered. The 135-pound man died five days after his run-in with Fullerton police.

Thomas’ father, a retired Orange County sheriff’s deputy, has asserted that officers used excessive force to subdue his son, who was unarmed, slight and of medium height.

After seeing his son’s injuries and talking with witnesses, Thomas told the Register his son “was brutally beaten to death.”

“When I first walked into the hospital, I looked at what his mother described as my son … I didn’t recognize him,” Thomas said. “This is cold-blooded, aggravated murder.”

Thomas, citing witnesses, said officers hit his son with the butts of flashlights even after he stopped moving.

He said his son was probably off his medication and didn’t understand officers’ commands.

While no one may ever take the place of Joseph Rakofsky as an object lesson of how not to bootstrap one’s improper behave as a lawyer into an internet phenomenon, there are other, more experienced lawyers who seem determined to give Little Joe a run for his money.

Via  Techdirt, Florida lawyer Joel Hirschhorn went the full bluster route.  According to his website, his Miami firm is “nationally renowned” in criminal and white collar defense, which makes sense given his URL of acquitall.com.  This could explain why I’ve never heard of him, not being sufficiently appreciative of lawyers who are nationally renowned. 

Nonetheless, it appears he found time away from being nationally renowned to stray into first amendment law on behalf of his online sports betting client and go after commenters at 800Notes.

800notes is one of those sites that gets even more bogus legal threats than we do. The site which lets its users track and discuss telemarketers recently received a threat from a lawyer, Joel Hirschhorn, representing a guy named Adam Meyer, who sells some sort of “Adam Wins” sports betting thing. Not surprisingly, the 800Notes page for “Adam Wins” has a number of comments, many of which are from people who are not fans of Adam or his telemarketing. Adam’s lawyer, Hirschhorn, mistakenly threatened the site 800Notes with defamation for the comments on those pages. Of course, as is well established in both the statute and in the case law, 800Notes is protected from liability on the comments of its users thanks to both Section 230 of the CDA and basic common sense about who’s legally liable for statements.

Paul Levy [from Public Citizen], representing 800Notes then called Hirschhorn to explain the law to him… only to have Hirschhorn abruptly hang up on him:

I then called Hirschhorn myself to try to discuss the law with him and to give him the names of cases from both the Florida Supreme Court and federal trial and appellate courts in Florida that support the immunity of Forte’s company; I also hoped to explain the Dendrite process to him so that, assuming he could prove falsity and damages, he could pursue the anonymous posters if that was his client’s choice. Hirschhorn bragged that he is not just a member but the founder of the First Amendment Lawyers Association, but acknowledged that he himself did not know anything about the law in this area; instead, he said, he hires others who know the law to help him.

Defendant Walter K. Olson (Olson, also sometimes called Internet Bully and Internet Stalker or Overlawyered defendant), is an individual, a citizen and resident of the State of New York., a lawyer who now lives in Washington D.C. where he moved to become an instigator for the ultra right wing policies of Cato and who with Frank runs Overlawyered for the benefit of ultra right wing organizations and their trustees, and who assists Frank by editing the defamatory publications on Overlawyered to bring discredit on lawyers and judges whose views and experience may be different than his by failing to investigate the facts, false reporting, ignoring mandates of judges and lying to the public.

Who knew Wally was so evil?  But then there’s the libertarian thugs:

Defendant Reason.com is another Internet bullying site organized under the laws of the State of California, with its principal place of business in Los Angeles, California. It is one of the mouthpieces for Overlawyered.com and its mentors, Manhattan, Cato and Enterprise, which are co-conspirators, and is the attack dog for inter alia,

The Reason Foundation, a euphemism for the policies and goals of the Libertarian Party, a right wing fringe element that espouses what amounts to an abandonment of the institutions of our Republic and its substitution with a Government by putative journalists, self appointed intellectuals and right wing pundits but whose real goal is to work with Overlawyered.com and Olson, Frank, Manhattan, Cato and Enterprise, and their respective trustees to assassinate the character of individuals chosen for that purpose because they are a threat to the America without laws Reason Foundation wants. Reason Foundation raises funds for their anti-consumer, anti-Government, anti-court, anti-judge and often anti-Semitic, anarchistic views by proving to their donors how vicious they can be on their various media sites including Reason television,

Reason.com and Reason magazine Reason.com attempts to accomplish these ends by re-publishing with new commentary publications of Overlawyered, Frank and Olson for the purpose undermining the civil justice system in the United States, by forming an Internet tag team so if one of them is silenced for their falsity, the other simply republishes with more false and defunctory cormment to keep the libel alive.

The idea is to whip up a frenzy to prove their dedication to the causes of the Libertarian party, much like the Nazi’s of the early 1930s, which will cull more donations from their very rich donors and blind them to the dangers to American institutions of their radicalism. It is believed and therefore averred that employees or agents of Reason. com are the anonymous bloggers.

And this is only paragraph 6 of the Wolk complaint (broken up from its single paragraph form into smaller, more readable bites), and already we’ve got the Nazis involved.  Nothing ever ends well when the complaint compares the defendants with the Nazis, or when the plaintiff wears a tin foil hat.

What this reflects is the arrogance of lawyers in believing that they can control the internet.  Neither bluster nor averment is going to bend the internet to our overwhelmingly mighty lawyer will.  I know, it’s hard to fathom that the world doesn’t shake when we threaten or act, but the internet is a different animal from anything we’ve ever before known.

As lawyers, it’s time to come to grips with some hard realities that now exist and appear likely to be the norm going forward.  First, we are subject to ridicule online just like Babs Streisand.  Expect that every swing of your big lawyerly muscle is going to be rebroadcast in unkind terms by a lot of people who carry weight on the internet that lawyers can only dream of.

Second, expect that our claims and allegations will be subject to scrutiny far beyond our wildest dreams, and there’s a darn good chance that if there’s a flaw, any flaw, even the slightest, it’s going to be magnified beyond your wildest imagination and become a testament to your incompetence.

And third, and most importantly, regardless of all else, the internet is populated some very smart and some very crazy folks.  If the former don’t get you, the latter will.

In other words, it’s a game that’s very hard to win, even if you’re absolutely right.  To be fair, however, few of these internet antagonists are anything close to right, making the likelihood of perpetual online humiliation and ridicule a near certainty.

If your purpose is not to look pathologically stupid on the internet in perpetuity, then don’t do it.

I got a twit from a young lawyer who I’d never heard of before.  He had few followers on twitter, and was likely new to social media and trying to find some other criminal defense lawyers to hang with.  He made a funny twit, and I like funny twits, so I clicked on his name to see more about him.

What I happened on was this exchange.

Via Doug Berman, law professors Oren Gazal-Ayal and Avishalom Tor take a stab at addressing the theoretical problems with plea bargaining by what they call “the innocence effect.”

Many scholars argue that plea bargains should be curtailed because they facilitate wrongful convictions.  Others contend that plea offers can only benefit innocent defendants, by offering them an alternative to the risky trial, which may lead to a much harsher sentence. Yet even while drawing contradictory conclusion regarding this practice, both camps in the debate agree that plea bargains often lead innocents to plead guilty.  They simply argue about the normative implication of this result.

The decades-long plea bargaining debate is based on a combination of scholarly beliefs and theoretical models, with little systematic evidence to support either position.  The present article draws on a diverse set of empirical findings to reveal the innocence effect, whereby innocents are significantly less likely to accept plea offers than their guilty counterparts, even when these offers appear objectively attractive in light of the evidence against them and the expected sanction at trial.  

The “thesis,” to the extent it can be called that, is that innocence has an impact on a person’s decision to accept a plea bargain.  And the sun rises in the morning.  More interesting is that the lawprofs argue that innocent defendants are singularly resistant to plea bargaining, such that the fears of innocent people being induced to plead guilty by sweet deals is exaggerated.

That innocent defendants, at least at the outset, resist pleading guilty is hardly worthy of a law review article or a really cool name like “the innocence effect.”  But the argument used to prove its existence is that the evidence against innocent defendants is inherently weaker than that against guilty defendants, because (duh) they’re innocent.  This is what comes from theoreticians:

Innocence, in this setting, plays only a minor role, if at all. True, one should hope that innocent defendants, on average, face weaker cases (i.e. a lower probability of conviction at trial). Yet, most weak cases are dismissed at earlier stages; the risk to innocent defendants is substantial mainly in the rare situations where the case against them is relatively strong. Moreover, according to the shadow of trial model, plea bargains are just as likely in strong and weak cases. Prosecutors only need to adjust the offer to the probability of conviction in order to reach an agreement. Thus, weaker cases result in more lenient plea bargains, and stronger ones in relative harshness, but both result in an agreement.

Admittedly, when the case is weak, the parties must rely on charge bargaining to make the necessary adjustment, in order to avoid judicial rejection of the agreed sentence. But it is hardly an obstacle. Charge bargaining in weak cases is not the exception; it is the norm all around the country. Thus, even if the evidence against innocent defendants is, on average, weaker, the likelihood of plea bargains is not dependent on guilt.

The reliance on evidence as the deciding factor, further exacerbated by the authors’ reliance on those subsequently found to be innocent, is that it ignores all the nice folks who are either innocent or overcharged who are never subsequently exonerated.  This, of course, can’t be in the world of the theoretical.  This reinforces the naive belief that it’s all about evidence, the argument that defendants perpetually make when confronted with the harsh reality of the courtroom.

The question confronting every defendant, whether innocent or guilty, is what are the chances of winning at trial.  The answer is controlled by a few factors, not all of which are savory.  One factor is whether their lawyer is capable of trying a case, which should come as no shock to anyone.  Another is whether the defendant has anything to offer to contradict the testimony against him.  Few do, regardless of whether they’re innocent or guilty, which should also come as no shock. 

The primary factor, which comes into play in the authors statistical analysis of the innocence effect, is the trial tax.  Is a defendant willing to roll the dice and risk the punishment likely to come after trial when he could cop out to less.  The authors argue that this concern, that innocent people will take this option, isn’t as serious as we all make it out to be.

What a load of crap.

I’ve defended innocent people.  I’ve defended guilty people.  The evidence is the same.  The outcome is the same, whether dismissal, conviction or acquittal.  And no scholar would be able to tell the difference.

Guilty people tend to be much easier to represent, as they understand what they’ve done, anticipated the possibility of being arrested and prosecuted, and tend to be far more prepared to deal with it.  They take calculated risks with far greater equanimity.  It’s a cost of doing business.

Innocent people bay at the moon.  It’s unfair.  It’s unjust.  And it changes nothing.

The evidence needed to convict a person need be no stronger than a cop on the stand saying the magic words, with that honest, I’m-here-to-protect-you, law enforcement look on his face, that assures conviction.  They rarely break down and cry when you catch them in a lie.  They just use one of the handful of excuses they keep at the ready for why they can’t remember every detail and sometimes make a mistake, which doesn’t change the fact that they saw what they saw and found what they found.  Why would they lie?

But of course, they do lie.  They lie about the guilty and innocent alike.  Sometimes it’s a big lie, but most of the time it’s little lies, enough to get past the minor hurdles. 

Innocent defendants, however, are all full of fight at the outset, but fade quickly.  They get tired of having the threat of gargantuan sentences hanging over their head, the pressure of thinking, every night, all night long, about what they did to God that he would punish them this way.  They think of their children without a parent for decades.  They think of all the people who tell them that no one ever wins. No one.

These are the innocents who don’t catch the break of making it onto the radar of law professors conducting an empirical study, because they look just like the guilty.  These are the anti-innocents, because they’ve pleaded guilty in the hope that they won’t die in prison.  And you will never know who they are, and you will manufacture empirical studies that will ignore them because their conviction is so mundane that it defies your simplistic expectation that evidence proves anything.

This isn’t to say that plea bargaining is a bad thing because it puts innocent defendants in prison in order to avoid the risk of trial.  It’s to say that theoreticians, scholars, can’t tell an innocent person from a guilty person any more than a cop, judge or jury. 

There’s no magic to this system. It treats everybody like dirt.  Got an “effect” for that?

An arrest is a curious thing.  It’s the justification for the government to seize a person physically, for agents to stick their hands into places that would land ordinary people in prison.  It’s sufficient reason put a person in a cell, for a day or two, and deprive him of the ability to go about his routine. 

Yet, the presumption of innocence, a phrase given lip service by judges who may not hold it as dear as their words might suggest, would suggest that more is needed before we do all these unpleasant things to people.  After all, the only thing needed to arrest someone is a cop’s decision to do so, which could be explained by his observation of a violent act, or his desire for some overtime, or his use of power to teach someone a bit too mouthy for his tastes that he can make their life miserable whenever he wants.  The latter is wrong, but there’s no penalty for being wrong. Not really.

But in United States v. Mitchell,  the Third Circuit held otherwise.  From the WSJ Law Blog :

In 2009, Pennsylvania federal judge David Cercone ruled that the collection of DNA from someone not convicted of a crime would constitute an unreasonable search and seizure, in violation of the Fourth Amendment. DNA samples, Cercone reasoned, carry much more private information about a person than a mere fingerprint.

But in an 8-6 ruling, the 3rd Circuit reversed, holding that people arrested have “a diminished expectation of privacy in their identities.” Those privacy interests, the court concluded, were outweighed by the need for law enforcement to correctly identify people who are charged with crimes, determine their criminal history, potentially link them to unsolved crimes and promptly rule out involvement in a crime in cases in which the DNA does not match that found at the scene, the Post-Gazette reports.

The decision relies on two justifications, the “diminished expectation of privacy” of people arrested, and the “need” of law enforcement to obtain and utilize DNA for identification.  These, the court concluded, outweighed privacy.

The reasonable expectation of privacy, the  rule of Katz that has guided Fourth Amendment law since 1967, hasn’t worked out terribly well because it is, by definition, subject to the sensibility of judges.  They decide what we believe to be reasonable.   Dan Solove has  argued strenuously that Katz is a failure, which, while true, is like blaming the gun because the shooter pointed it at you.  Any weapon that leaves discretion in the hands of people inclined to use it poorly is going to turn out to be a bad tool.  Bad, bad tool.

To the extent a person arrested has a diminished expectation of privacy, it’s not a matter of choice, but because the government has thrust it upon him.  The arrested person is an innocent person.  He may be in fact innocent, or by law innocent, but innocent he is until that status changes by conviction.  The only thing that’s happened is that someone, maybe a police officer or maybe some other person, has leveled an accusation against him. 

The accusation by another person doesn’t have any connection to a person saying to himself, sighing, “oh well, I don’t believe that my privacy should remain intact.”  Rather, the person anticipates that he will be questioned, and have fingers stuck into clothing and body parts, because the government has been doing that to people for so long that we are all aware, at least to some extent, of the process.  We know that they don’t ask “may I,” but just do it.  It’s got nothing to do with what our relinquishment of expected privacy, but with law enforcement control being forced upon us.  That we’ve seen it happen in the movies doesn’t mean we like it or accept it, but that we know what they’re going to force us to do.

More importantly, the Third Circuit weighs privacy against the needs of law enforcement.  Balancing tests are a particularly nefarious means of enforcing constitutional rights, as they not only eliminate any potential for absolute rights, but substitute our individual determination of the relative value of our rights for those of judges.  It’s a lot easier to trivialize the rights of another, particularly when contrasted with the needs of system of which one is a part. 

Judges preside over criminal cases, and see the merit of convicting criminals and the need to facilitate law enforcement to achieve that end.  Many people cheer them on, angry about crime and in favor of using every weapon available to put criminals away.  Far fewer people are concerned about the nuanced distinction between criminals and people arrested.  As with the diminished expectation of privacy, they are familiar with innocent until proven guilty.  But it’s all a bunch of words, since they are fully prepared to sacrifice a few (other) innocent people to assure that the guilty get what they deserve.

The problem with DNA is that if it was merely a really good means of identification, and nothing else, it might not prove more troubling than a fingerprint, and perhaps be far more useful given that fingerprints aren’t nearly as good for identification as people see on TV.  But this is a setup.  DNA isn’t used for identification on arrest, which would take far too long and be far too expensive, as the Third Circuit’s decision might suggest.  Rather, it’s purpose is to be placed in a databank so that the government can accumulate DNA from all the people it can.  If it could get away with it, they would collect DNA from every newborn, still pure, just in case.

And of course, the use of DNA goes far beyond the handful mentioned by the court, well into areas of personal privacy that nobody on the court wants to mention.  The government wants this too, but is smart enough not to mention it.

So the Third Circuit, the court that gave us Sam Alito, has ruled that our expectation of privacy is diminished when we, innocent all, come into the clutches of law enforcement.  The Third Circuit has ruled that law enforcement’s need for DNA is more important than our need for privacy.  By doing so, they have diminished our expectation that the court’s rulings demonstrate a concern for constitutional rights, as any right can be balanced away. 

That’s all it takes to lose a right.  As technology advances, courts will balance them away, and our expectations of the legitimacy of judges to serve as the bulwark between the power of the government and the rights given by the Constitution will diminish.  It’s not the test, but the hands into which the test is placed. 

I received an email asking if I would do a podcast for someone or something named Rocket Lawyer.  I responded by asking who Rocket Lawyer might be, as the email took for granted that I would have a clue, and why I would want to spend my time doing Rocket Lawyer’s podcast. 

I heard back from Eva Arevuo, who informed me that she “co-hosted” and “produced” the podcast, with this blurb about the biz:

Rocket Lawyer is an online legal services company where we connect people looking for advice on anything from writing a will, to immigration issues, to estate settlement, to an independent lawyer who has chosen to work with us.

For the better part of a decade, Della Tarpinian has been locked in a Kafkaesque battle with a trade association she doesn’t belong to, the Kentucky Bar Association. She’s been fined $5,000 and ordered to pay the costs of her investigation, for violating rules that the average non-lawyer might find maddeningly vague and hard to understand.

After a lengthy investigation, the Kentucky Bar determined that Tarpinian’s clients couldn’t possibly have figured out how to fill out the paperwork they filed in court, without her coaching them behind the scenes. What surprised Tarpinian — and many other document-preparers around the country — is that the Bar could drag her before the state Supreme Court and have her fined for, as she sees it, competing against its members. Especially since a jury acquitted Tarpinian of similar charges in a 2004 criminal trial, after less than half an hour of deliberations.

“They only charge people that’s making money,” said Tarpinian, who has a paralegal degree and worked in a lawyer’s office before opening her own document-preparation firm in Owensboro. “It’s so ambiguous, so unclear.”

His point has merit, as attempts to fine-tune a definition of the practice of law, drawing a line bright enough that a non-lawyer can know what conduct is prohibited.  Fisher further notes that some “favored” entities, such as realtors, manage to fly below the radar, preparing contracts for the most significant purchase in most people’s lives that evade scrutiny in many states.

This self-regulatory scheme bothers experts like Gillian Hadfield of the University of Southern California Law School, who thinks lawyers can use it to squelch  competition and innovations such as automated legal document services. 

Gillian has long made the point that legal services are priced well outside the ability of many Americans to pay, yet they’re held to standards of legal expertise in their dealings.  Her point is undeniable, though her solutions to the problem, one of which is opening the practice of law to all comers, is likely to cause far more problems than it cures.

Enter the legal forms for lay-people business, like Rocket Lawyer and its better known competitor, Legal Zoom, offering inexpensive paperwork which shifts the burden to purchasers to figure out what documents they need, how to properly use them and suffer the consequences on their own.  The  WSJ Law Blog notes that Legal Zoom, cash machine for former O.J. lawyer Bob Shapiro, is the target of a class action.

The case claims that LegalZoom, which sells do-it-yourself wills, leases and other documents online, is illegally practicing law in the state of Missouri.

Last week, Missouri federal judge Nanette K. Laughrey partially rejected LegalZoom’s motion for summary judgment and set the case for trial on August 22.

In a statement issued yesterday, LegalZoom said that if the plaintiffs win at trial, it could dramatically impact the  availability of self-help legal books and forms in Missouri.

Dramatically?  Isn’t that the point, to shut down document mills that make good money off photocopies and take no responsibility for the well-intended folks who are trying to figure out whether the form will means their children will eat after they pass or their life-savings will escheat to the state?  Try asking your fertile octogenarian about cy pres.

David Butsch, plaintiffs lawyer in the class action contends:

“The state licensure of attorneys was established to protect the public from those untrained and uneducated in the practice of law,” Butsch said. The preparation of wills and other legal documents “may seem simple to a layman, but they aren’t,” he added. “There are consequences of signing a will . . .and those consequences can be great and they can’t be properly communicated by a company over the internet.”

True, but:

Aren’t online legal documents, however crude, preferable to having folks go without any form of legal guidance? In response, Butsch noted that there is now a glut of legal talent in the market, with many law graduates unable to find full-time employment. That fact, he said, has made customized legal help from practicing lawyers increasingly affordable. “I know quite a few lawyers who offer a quality legal service at very good rates,” he said.

A terribly lame response, both because it’s not necessarily the case, and even if lawyers are a dime a dozen at the moment, there’s nothing to suggest things will remain that way.  He may know “quite a few lawyers,” but what Butsch knows is no more meaningful than anybody else’s self-serving, unverified anecdotes, and hardly a basis for a class action.

The problem, the unaffordability of competent legal representation combined with the vague definition of what constitutes the practice of law, has opened society up to a bunch of putative solutions that are every bit as dangerous and troubling as the problem.  “Pick your poison” isn’t really a viable method of addressing the problem.

I’ve long argued that we need to do better than offering the public the opportunity to pick from only bad choices when it comes to the availability of legal services.  In the meantime, however, I have no plans on playing a pawn in someone else’s marketing scheme for a product I consider to be potentially ruinous to the public.   Whether it’s the unlawful practice of law, or just a really dangerous idea, remains to be seen, but it’s not something to which I’ll let my reputation.

One problem is that there are crimes no one knows exist.  Another problem is that there are crimes that don’t require, as an element of culpability, that one knows one committed it.  The second caused United States District Judge Mary Scriven to hold Florida’s narcotics delivery statute unconstitutional in  Shelton v. Florida DOC (via the NACDL).

“Actus non facit reum nisi mens sit rea” – – except in Florida.*

*Florida exempts itself from the age-old axiom: “The act does not make a person guilty unless the mind be also guilty.”

Not surprisingly, Florida stands alone in its express elimination of mens rea as an element of a drug offense. Other states have rejected such a draconian and unreasonable construction of the law that would criminalize the “unknowing” possession of a controlled substance.

Sounds crazy?  Of course, as we would hold the postman guilty of delivery of drugs for carrying a package to a mailbox, even though he had no clue what was inside.  There’s nothing blameworthy about it, but Florida didn’t care.

The requirement to prove some mens rea to establish guilt for conduct that is criminalized is firmly rooted in Supreme Court jurisprudence and, as reflected in the ineffectual response by the State to this petition, cannot be gainsaid here. Well established principles of American criminal law provide:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. . . . [T]o constitute any crime there must first be a ‘vicious will.’

Morissette v. United States, 342 U.S. 246, 250 (1952).

Absolutely correct.  And so the Florida strict liability drug delivery statute is unconstitutional, as it should be.  But what of the myriad other crimes that are strict liability?  Say, for example, drunk driving, perhaps the most commonly prosecuted crime in the nation.  People haven’t got the slightest clue what their blood alcohol content might be, whether .06 or .12, and thus can’t know whether their driving is perfectly lawful or completely unlawful.

[A] strict liability offense has only been held constitutional if: (1) the penalty imposed is slight; (2) a conviction does not result in substantial stigma; and (3) the statute regulates inherently dangerous or deleterious conduct. See Staples v. United States, 511 U.S. 600, 619-20 (1994).

Note that this is in the conjunctive, such that all three conditions must be met for a strict liability crime to pass constitutional muster.  Few today would argue that driving drunk isn’t inherently dangerous conduct, largely because we’ve been bombarded for decades with the message.  Of course, a few decades ago, drunk driving penalties were still fairly trivial, the loss of the privilege of driving and maybe a 30 day sentence.  There was little stigma, it being the sort of offense that would cause others to mutter, “there but for the grace of God…”

But decades of MADD and SADD and BADD have changes all that, with drunk driving being tantamount to murder, whether inchoate or real.  Penalties for repeat offenders aren’t counted in days, but years and decades.  And yet it remains a strict liability of offense, without the perpetrator aware that his blood alcohol content exceeds the legal, and notably arbitrary, maximum.

Another strict liability crime, statutory rape, similarly defies the Staples analysis.  If the age of consent is 18, for example, and a woman a day shy of the magic age has sex with a man a week more mature, but claims to be of age and has every appearance of a woman one day older, the crime has nonetheless been committed even though the man has neither knowledge nor reason to believe that he’s done anything wrong. 

Of course, this wasn’t viewed as a terribly horrendous crime long ago, but more an anomalous situation demanding a stern reminder to keep one’s mitts off of under age women.  Today, however, the stigma and punishment are monumental, as sex offender registries abound (but this isn’t punishment, it should be noted, since it’s called “civil” and therefore doesn’t count) following lengthy and draconian sentences. In this age of pedophilia, there is no sex offense, so broadly defined as to include public urination, that won’t ruin a person forever.  And in this case, not even the third factor, inherently deleterious conduct, applies, as no one can argue that the woman, a day later, had so ripened that no harm done.

Society’s attitudes toward crime shift, often significantly, over time, with one becoming more heinous and commanding more severe punishment, while the laws criminalizing conduct get stuck in the mindset at the time they are enacted.  Strict liability laws, the ones where legislatures decide that blameworthiness is just too much trouble to prove, and the ones where courts deem them too trivial to be worthy of full constitutional protection, are passed and approved at times when nobody seems terribly concerned. Times change.

The notion of strict liability crimes is itself anathema to the fundamental belief that crimes require blameworthiness, though many in the public couldn’t care less about culpability when there’s a harm to be avenged. That Florida took it to the extreme in Shelton, an absurd elimination of the element of knowing delivery (which isn’t likely to help the multitude of defendants convicted under the statute for whom the time to seek habeas relief has come and gone) gives rise to rethinking its propriety in general.

There aren’t many crimes, if any, that carry no stigma and harsh consequences anymore.  Particularly now, with  potential employers searching criminal records and the internet to remind others forever of any wrong ever committed, the mere conviction for anything stands to destroy any future normalcy.

It’s time to revisit the constitutionality for all strict liability offenses, and to recognize that there is no crime so trivial that it’s unworthy of basic constitutional protections.  It’s time to return the notion of blameworthiness to conduct deemed criminal.

H/T WSJ Law Blog

Stephen Colbert, at his finest.

In the New York Post, Virginia Backaitis writes about how deep, dark criminal pasts, whether childhood indiscretions or trivial, unrelated matters, come back to bite otherwise competent and qualified job applicants in the butt, and they never know about it.

When he was downsized from his job as a software engineer last winter, Ted Brown (not his real name) figured scoring his next gig would be a cinch. His cloud-computing skills were in high demand and he had a stellar reputation in his industry.

“I was sure that companies would be lining up to get their hands on me,” he says.

And that’s exactly how it played out at first. There was the manager who wooed Brown over a dinner of scotch and beef tenderloin, and promised a five-figure signing bonus. He said he’d send an offer via FedEx — but it never arrived. When Brown called, he was told that they’d decided to go with someone else who was “a better fit.”

From Lenore Skenazy at Free-Range Kids, a Delaware mom put her three-year-old down for a nap, and then went to take one herself.  That’s how a good parent does it, exhausted from the daily grind plus caring for a child, the only safe time to sleep is when your kid sleeps.  Except this time.

Unbeknownst to her, her daughter then got up and managed to get out of the house. When police found the little girl later, they went looking for the mom and charged her with child endangerment.

Lenore asks why, instead of charging mom, they didn’t just help mom.  She sums it up:

When we criminalize the ups and downs of normal life, we start making it seem as if living that normal life (which inevitably involves some mistakes and surprises) is criminal. That’s when we start believing we need to take extraordinary precautions against unlikely events, and hovering over our kids out of fear for them and fear for ourselves — we could be blamed!

Whether we get crazy out of fear of being charged with a crime isn’t clear to me.  Few of us think much about it, not truly believing we, fine, upstanding, law-abiding citizens, could ever be charged with a crime because we’re the good guys.  No matter what we read about, see or hear, there’s a bone in our head that says only bad people get arrested.  Good people have nothing to fear.  We have nothing to fear.

It’s not until a bizarre event happens to us or someone who touches us that this becomes real.  We enter the incomprehensible world of the legal system, where nothing works the way the platitudes say it should, that the realization that Kafka wasn’t nuts hits home.

But in Lenore’s story, a different issue presents itself.  The mother did what pretty much every mother does. Fathers too.  She did what good mothers do.  And then, something went badly awry, as the toddler got loose and she was blamed.  With a slight variance in circumstances, picture the mother at the mall whose 3-year-old wandered away when she wasn’t looking for a second. That’s all it takes, as any parent knows, for a kid to escape.  It’s not a stretch to have the child found and the mother arrested for endangerment.

While the numerosity of laws criminalizing conduct is unknown, the nature of conduct being criminalized has become clear.  Don’t make a mistake.  Don’t leave any possibility that an accident might happen.  Are you less than perfect?  Then you’ve committed a crime.

Tolerance for human imperfection has reached an all-time low.  Before you scream about the government and its henchmen, look in the mirror. 

The other day,  a commenter felt compelled to express that a father who made the mistake of putting a gun in the drawer of a night table, and whose 3-year-old found it and, somehow, managed to kill himself, was criminally blameworthy.  The accidental loss of his son wasn’t enough.  Prosecution for his crime was needed as well.  This wasn’t some nasty East Texas crank, as the commenter informed me, after my dismissive interest in her views, that she was an experience appellate criminal defense lawyer of some import, at least to her.  Yet she felt an accident demanded conviction.

Is this a product of marketing, that interest groups hoping to bring about a perfect world where no child, perhaps no person, is ever harmed by anything, ever?  Consider the influence groups such as MADD have had in crafting drunk driving laws that lack rational foundation and vilify a broad swathe of otherwise law-abiding society.  That they’ve been incredibly effective is beyond dispute; and the more than sufficiently sober drive who had an alcoholic beverage and ends up in an fatal accident, even one not of their own fault, is deemed as blameworthy as the sociopath who commits a random, intentional murder.

There’s no arguing the relative merit.  When someone is harmed, someone must be blamed.  When someone could potentially be harmed, someone must be at fault.  No longer do we accept the concept of stercus accidit, that in the natural course, bad things sometimes happen.  While we can usually explain how it could have been avoided if only a person did something differently, we are no longer concerned with the normalcy of the choice, but with the severity of the outcome.

No normal human being wants to see a child harmed. Heck, we don’t want to see anyone harmed.  If only accidents didn’t happen, if we could anticipate every potential problem and, through our diligence and prescience, make it go away.  But we are not that excellent a species, not even the best of us.  To err is human.

The culpable state of recklessness, where we perceive a risk is so grave that harm can be fairly said to be inevitable, yet make the decision to ignore it, is one thing.  For me, even this remains too vague and presumptuous, too subject to the overlay of other people’s sensibilities in many instances, that it fails to provide a sufficiently clear line to distinguish conduct deserving of criminal sanction from that reflecting the imperfection of humanity.

But we’re coming to the point where no mistake is tolerated.  Indeed, many would argue we’ve reached, even passed, that point.  That we’re all criminals based on the plethora of crimes is beyond cavil; that we better pray every day that nothing goes wrong in our lives lest we not only suffer the tragedy of a loss, but the insult of prosecution that will follow, is the world we’re facing.

We can’t do this to ourselves and others.  We’re not good enough to survive such a vision, and we don’t deserve to be held to a standard that no person can achieve except by mere luck.  Accidents happen, not because we’re criminals but because we’re human.

H/T Radley Balko