Thursday, June 24, 2010

Give 'em a foot and they'll take a mile

Yesterday, Ohio criminal defense attorney Jeff Gamso wrote on his blog Gamso - For the Defense about the case of Robert Stevens who was charged with a criminal offense for marketing videos of dog fights. Mr. Stevens was being prosecuted under a law designed to criminalize so-called "crush" videos that depicted small animals being crushed to death.

Los federales decided that the prohibition on crush videos should extend to videos of dogs being hurt, maimed and killed in dogfights. The Supreme Court saw otherwise and declared the law unconstitutional.

Mr. Gamso's premise was that governments enact bad laws because of bad facts that, despite promises the scope of the law will be limited, often are used in ways not foreseen at the time the law was passed. This overextension of the penal code is a grave threat to our liberty and must be fought at every opportunity.

Let's face it, anytime you can get the National Association of Criminal Defense Lawyers and the Heritage Foundation to agree on something -- you've got a problem. And that's just what happened back in May when the two organizations teamed up to draft Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law. The problem, according to the paper, is the extension of so-called strict liability crimes in the white-collar and environmental arena. There is no question that mistakes happen in the business world -- but since the basic calculus of criminal law is Crime = Act + Intent, subjecting persons to criminal prosecution who demonstrated no intent to break the law is either absurd or frightening.

And then there's the good ol' automobile that is now, according to prosecutors in vehicular crimes, a deadly weapon.

According to Article 1.07(a)(17) of the Texas Penal Code, a deadly weapon is (a) "a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury" or (b) "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury."

It's that second definition that can make everything from a car to a can opener to a pencil a deadly weapon. The word capable completely eliminates the need to show a person intended to use the object in question as a deadly weapon. The word capable also enables the government to overcharge people accused of committing criminal acts, thereby putting more pressure on them to plead out to what they should have been charged with in the first place.

Somehow I'm not thinking that's not what was intended.


Jeff Gamso said...

Of course, the in-some-ways more frightening possibility is that it's exactly what was intended.

Houston DWI Attorney Paul B. Kennedy, said...

Do the legislators not understand what they're doing when the write the law or are they just looking for any excuse to clamp down on civil liberties?

Jeff Gamso said...

I haven't lived in Texas since 1989, but the lege there is really not that much worse than the Ohio General Assembly. And the rule here is both - and then some: They don't know what they're doing, but if they can criminalize behavior, they will, and they really don't believe in any civil liberty except the right to bear arms.

Of course, I'm older than you - and maybe more cynical.