CommenTerry

A Tale of Two Cases

Two recent criminal cases in my part of the country have, once again, made me question the fairness of our criminal justice system. The cases involved two local women who had no previous criminal record.

In the first case, a highly touted babysitter was hired to care for a two-year-old boy. One afternoon, the child was being particularly noisy and bothersome. His caretaker reacted by retrieving a heavy crate-like object and placing it over his crib to keep him from standing up. However, the energetic youngster soon discovered a way to escape. Unfortunately, as he was in process of doing so, his neck became trapped between the heavy object and the crib. As a result, he was asphyxiated before the sitter took note of what was going on. She was found guilty of involuntary manslaughter and will be sentenced later this year. The judge has warned her to come prepared to go to jail.   

In the second case, a payroll clerk for a local school system embezzled $38,000 from the county over a 2 ½ year period. She had been diverting the money into her own bank account and spending it on her family members. She was ultimately caught and fired from her job. She was indicted by a grand jury on 46 felony counts, but made a deal with prosecutors by pleading guilty to nine of them. Still, though, she could have been sentenced to over 100 years in prison. The judge sentenced her to 90 years in prison, but suspended all of it on the condition that she serve six months in the county jail. More than like likely, she will be able to serve her entire sentence on weekends.

Now, let’s compare the two cases. The babysitter was guilty of a momentary error in judgment that was never intended to produce the results that it did. On the other hand, the payroll clerk committed her crimes over the course of 2 ½ years. Her goal was to steal, and that’s exactly what she did. She knew she was committing a felony and thereby risking a long prison sentence, but the money was more important to her. She didn’t stop until she was caught. She would likely still be doing it, had she not been caught. Any of us, like that babysitter, could make a bad, spur-of-the-mount decision when feeling pressed or frustrated. Very few of us would do what that payroll clerk did, i.e., plan out a long-term crime.   

If the babysitter is sentenced to more than six months in jail and/or is not allowed to serve her sentence on weekends, it will be a gross miscarriage of justice and a crying shame.

Only These Things Merit the Death Penalty

Earlier, I mentioned that the death penalty should only be used for a few types of murder, but I didn't elaborate at that time. They are as follows: gang-related murders, organized crime "hits" (those who plan, order, and/or carry them out), any murder committed by someone who has previously been convicted of murder, murders of prison inmates by other prison inmates, serial murders, execution-style murders, murders involving torture or intentional extended death, murders of people who couldn't pay their drug, gambling, and/or prostitution-related debts, murders of empty-handed police officers, and intentional murders by those in the process of committing armed robbery or burglary.

Some Kind of Hero?

Recently, the law that established Virginia’s so-called “abusive driver fees” was ruled unconstitutional by a Henrico Country General District Court judge. His ruling was based on the fact that the extra fees do not apply to out-of-state drivers and therefore violates the Constitution’s equal-protection clause.

While I don’t have any particular problem with this ruling, I do have a problem with the person whose case was used to bring it about. What we have here is a man who has been arrested six times for driving on a suspended license – just the kind of person for whom the law in question was designed. According to his lawyer, he is thrilled to “part of something larger.” I think he should be part of something larger alright – something like the state prison system! However, this miscreant -- who only received 10 days in jail and $250 fine for his latest offense --apparently thinks he should be treated like some kind of freaking hero. In reality, he’s nothing but a common criminal and a pariah to society. It’s high time that he be treated as such.

Driving Too Fast for Conditions?

Almost every state has a subjective and arbitrary traffic rule on its books that can punish drivers for “driving too fast for conditions,” even though they may not necessarily be exceeding the posted speed limit. Drivers are ticketed for this offense mainly after having an accident as a result of skidding or sliding on a wet, snowy, or icy roadway. The rationale is that a reasonable and prudent driver should supposedly know the maximum speed that he or she can safely drive under adverse conditions. However, there are a couple of problems with this assumption.

First, very few drivers are skilled enough to be able to discern what a safe speed is under all possible conditions. There’s just no concrete guidance for the rest of us who need it. There is just one speed posted at a time and it does not change, regardless of the conditions. There’s no sign, for example, that says “the speed limit is 55 on clear, dry day; 45 when it’s raining; 35 when it’s snowing; and 25 when there’s ice on the road.” Of course, even if there were such signs, one wouldn’t always know when there was ice on the road, as many of experienced and prudent drivers have been fooled by “black ice.”

Second, based on the way the tickets are handed out, this assumption seems to be based on a false premise – one that says if a driver has an accident during adverse conditions, it is because he or she is driving too fast for those conditions. The simple fact is that not all accidents that occur during adverse conditions are a result of speed. In many cases, an accident will occur even if a driver is only doing five miles per hour. On the other hand, some drivers speeding along at 60 MPH in the same conditions will be lucky enough to avoid an accident.

Don't Punish Carelessness and Forgetfulness So Harshly

No one should ever have to go jail for an act of carelessness or forgetfulness. There are times when people should be fined for this and have civil suits brought against them, but incarceration should never be an option. All of us, without malice, are forgetful and careless every day of our lives. Jail should be reserved for those guilty of intentional misconduct which threatens the lives, health, and property of others (for example, those common lowlifes who were looting, shooting, and raping on the streets of New Orleans in the aftermath of Hurricane Katrina).

Columnist Mourns Demise of Thought-Policing Laws

Columnist Maggie Gallagher, in a recent column, laments the fact that the courts have put the kibosh on two laws that would have punished people for child pornography, even when their activities were limited to creating, using, or possessing material for which no actual children are used. As a libertarian, I'm glad the courts shot down those laws down. The way I see it, if there is no victim, there is no crime. Why is that so hard for people like Ms. Gallagher to understand?

I'm proud to live in a country that does not police thoughts, no matter how disgusting we all may feel those thoughts are. But Gallagher even admits that this is her goal when she writes, "the problem we want to resolve in passing laws banning child pornography is not adults' lust for profits, but their lust for children." In other words, they're focusing on the lust itself (thoughts), rather than actions. Excuse me, but how does one go about resolving people's negative thoughts? I’m not sure, but it’s quite obvious that some people try to do it by passing crazy laws.

However, even if Ms. Gallagher could make a successful argument that these laws do not equate to the policing of thoughts, there is still a problem here. The laws in question are also attempting to shift the burden of proof from the accusers to the accused. Advocates of such legislation have concluded that it is so difficult to prove some cases of actual child porn that an accused pornographer should be forced to prove that his simulated or fantasy material isn't really derived from and/or is not just as harmful as actual child porn. That's like saying that some murder cases so hard to prove that we are now going to allow a jury to convict a person of murder for burning or hanging someone in effigy, which is much easier to prove. 

Don't get me wrong -- I'm not trying to play the role of an apologist for child molesters. Like any other sane person, I believe those who produce, distribute, or finance real child pornography should be punished severely. But what Ms. Gallagher is advocating is nothing more than zealotry and fanaticism run amok. Those who produce and/or possess only fantasy child porn are not harming any child by doing so. The courts notwithstanding, the “art” argument is irrelevant here. The point is that it is ridiculous, immoral, and just plain un-American to punish people who have not done harm to anyone. So far, the courts have agreed. God bless the USA!

Double Jeopardy by Any Other Name

I don't care what the courts have said; trying someone twice for the same crime is unconstitutional double jeopardy. Changing the name of the crime or calling it a federal crime the second time around doesn't matter -- it's still the same crime. To me, it's like trying someone for murder and then, when the jury finds them not guilty, trying them for "killing" at a second trial.

Justice, Not Lectures

Our court system was established for the purpose of meting out justice, not lectures. But how many times have you seen someone like Judge Judy or Judge Joe Brown excoriate a plaintiff or defendant, even though that person was not misbehaving in the courtroom? I've seen it happen quite often on those TV shows when the judge did not like the way the plaintiff was making his or her case or did not like what the defendant did to cause him or her to be brought to court.

I'm sure this goes on in real courtrooms as well. We need to change our laws to allow people to respond in kind, without the fear of being held in contempt of court, to judges who do this kind of thing. In other words, when a judge yells at you (for something other than improper courtroom conduct), you should have the right to yell back at that judge.

Don't get me wrong -- I'm not advocating anarchy in the courtroom. It's just when a judge shows disrespect for a litigant for no good reason, then that judge has forfeited his or her right to demand respect.

Is Piracy Really the Same as Stealing?

The movie and music industries like to compare the piracy of their products to the stealing of physical items like DVDs, CDs, and tapes. But is it really the same? While I don't condone piracy or illegal downloading or copying of any kind, I just don't think this comparison is all that valid.

The major flaw in their logic is their apparent assumption -- a real stretch, in my opinion -- that anyone who pirates a movie or song would have bought it legitimately, had they not been able to pirate it. Therefore, according to their logic, every movie or song that is pirated represents a loss of revenue.

I don't believe this is the case at all, as I doubt that more than 20% of those who do this kind of illegal downloading or copying would otherwise buy the items in question. Most of these people are simply "freebie hunters" who will eagerly take any of these items they can get for free, but would never buy any of them.

There's one other thing that makes pirating a bit different from stealing physical items, even if we assumed that every act of piracy resulted in a lost sale. Physical items are purchased and stored by retailers. The majority of the price of an average retail item is derived from its cost. Most of the remainder comes from overhead items like rent, employees' salaries, insurance, etc. Only a small portion of the retail price represents some potential profit. When that item is stolen, it is a direct loss to the retailer. It was something he or she had to pay for and now has nothing to show for it. In addition, the rent, salaries, and insurance still have to be paid.

On the other hand, piracy (sticking with our assumption) results only in lost sales. No one is having something they paid for confiscated or taken away from them. Even for the retailer, it usually just means that he or she won't be stocking as many of the items that are being pirated. Of course, it may also mean that some items already bought and stocked will never be sold for the desired price. But these items can always be dumped somewhere -- on EBay, if nowhere else -- at bargain-basement prices.

Wide Net Leaves Children Unprotected

An article in USA Today points out something I've been concerned about for quite some time. Our knee-jerk reaction to all the recent highly-publicized cases of child molestations/murders has been counterproductive. We have cast too wide a net in pursuit of people who might hurt children. In fact, some of the laws we've rushed to pass in order to protect children from predators might be having the opposite effect and making them less safe.

The problem lies in the way many states define sex offenders -- those who are required to register and are forbidden from living or working within a given distance of schools, playgrounds, etc. Often included among those who get this dubious distinction are people found guilty of nothing more than urinating in public or indecent exposure and older teens convicted of having sex with their younger teen girlfriends or boyfriends. Often, no distinction is made between these people and those who rape children.

There are now so many people on some sex offender lists that police and prosecutors are finding it impossible to keep up with all of them. As a result, many of the real predators are falling through the cracks and harming children over and over again. People who do not present serious risks or dangers to our children should be promptly removed from these lists. This would free up our law enforcement officials to go after those who do. The time has come to get this done.