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.

Ambiguity and hate crime legislation

Key Sun, Ph.D., a psychologist and associate law professor at Central Washington University, has his own interesting take on what's wrong with the Matthew Shepherd Hate Crimes Prevention Act. While he welcomes the bill's intentions, he fears that language of the bill makes prosecution under the act all but impossible.

He points out that the criminal law definition of a crime must (in most instances) define the mens rea, or criminal intent, of the actor. In Texas we categorize crimes by whether the accused acted intentionally, knowingly, recklessly or negligently. A crime in which the accused intended to cause the result is much more serious than a crime in which the accused acted with criminal negligence.

The Shepherd Act defines a hate crime as one in which "the defendant intentionally selects a victim... because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability or sexual orientation of any person."

The problem, according to Dr. Sun, is that this definition substitutes the alleged victim's status for the defendant's mens rea. "Because of..." is not the same as "acting intentionally or knowingly."

Criminal law is, and should only be concerned with, defining what is, and what is not, a crime. It is not the purview of the penal code to provide an explanation of why a crime occurred. That is the job of the criminologists, sociologists, psychologists, psychiatrists and commentators.

The crimininalization of bad choices

I came across this blog posting on Twitter one day and it made me think.

One of the cornerstones of our criminal justice system is the presence of intent in the commission of a bad act.  A bad act without intent may be a civil tort (i.e. negligence) without being a criminal act. The Texas Penal Code recognizes four degrees of culpability and the severity of a bad act is determined, in large part, by the degree of culpability that can be proven.

However, in the federal system there has been a steady movement toward result-oriented crimes -- in other words, the bad act itself.  This can be seen in the increasing number of regulatory crimes that have been created over the past century.  No longer must los federales prove that John Doe meant to violate the federal regulatory scheme, now it's enough that a regulation was broken.

It's a way of trying to pin the blame for an event onto a person.  Sure, in some of the giant corporate scandals of this decade people made decisions that they knew violated the law; but some citizens have been charged with crimes solely because they made bad choices or acted upon bad advice.

Rational minds can differ with any course of conduct.  An executive can also make an honest decision that he thinks comports with the law that doesn't.  That doesn't make him a criminal.