The Measure of a New Criminal Law

I've been trying to come up with a model for determining what the effects of a new criminal procedure statute are and think I've come up with a workable model. 

[Elitist] E5 . . . E4 . . . E3 . . . E2 . . . E1 . . . 0 . . . D1 . . . D2 . . . D3 . . . D4 . . . D5 [Democratic]

[Defense] D5 . . . D4 . . . D3 . . . D2 . . . D1 . . . 0 . . . P1 . . . P2 . . . P3 . . . P4 . . . P5 [Prosecution]

 R5 . . . R4 . . . R3 . . . R2 . . . R1 . . . 0 . . . O1 . . . O2 . . . O3 . . . O4 . . . O5

[Individual Rights]-5 . . . -4 . . . -3 . . . -2 . . . -1 . . . 0 . . . 1 . 5 [Societal Order]

 

You could picture this as a 3D model, but I'm not competent enough with 3D modeling to give you a graphic much above crayon level. So, you'll get it as coordinates: [Statute] (D1,0,R2).

Elitist-Democratic: There is a disturbing tendency in the American judicial system to move toward autocracy. This seems to happen no matter the political leanings of those passing laws and it's understandable behavior.  Juries are messy and the ultimate indicator of local democratic decision making. The best form of this would be a jury finding innocence-guilt and, if it finds a defendant guilty, setting the sentence. And that perturbs just about anyone in the legal system from lawyers to judges to legislators. Juries are inefficient, inconsistent, and consider factors they shouldn't no matter how often they're told not to. Their primary sin in the eyes of the legal elites is that they are not a controlled, predictable factor and everyone hates that. A D5 here would be a system in which juries are a default that has to be waived by both parties and the judge, juries sentence, and even upon a plea of guilty juries sentence in serious crimes (rape, murder, robbery). A E5 here would be a system in which juries are theoretically allowed at the behest of the defense only, but for all practical purposes are banned by a combination of laws, practices, and procedures. Virginia's current location on this scale is probably somewhere between a E3 to E4 (and I doubt many States are different). Very good in theory. Withering on the vine in reality.

Defense-Prosecution: Pretty self explanatory. As a side note, let me say that in order to avoid any bias, I used a random number generator (1-5=Defense; 6-10=Prosecution) to choose which would be positive and which would be negative numbers. I even went best three out of five (Number Order was 8,7,8,3,5).

Individual Rights - Societal Order: While these two don't necessarily oppose each other, in every society they are going to conflict at some point. Thus, they make a useful semi-dichotomy.

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Let's test this out by running Virginia's brand new jury selection law (voir dire) through it. § 19.2-262.01 is a law which generally repeats much of the normal processes already used, but hidden in its core is  this gem:

The court and counsel for either party may inform any such person or juror as to the potential range of punishment to ascertain if the person or juror can sit impartially in the sentencing phase of the case.

This overrules a Virginia Supreme Court decision that rejected this as an obvious call to jury nullification. Those against this law point toward that conclusion. Those in favor tend to avert their eyes, grin, and assert that the second part of that sentence is for real and not a rice paper thin excuse. And then there are the truly dedicated superprosecutors who tell me I'm an idiot, rub their hands together, get malicious grins, and start muttering something about "whitherspooning" - not that I have the vaguest idea what they're talking about (some of you guys are slightly scary - and you, the guy in the back from Pitcairn County, stop cackling - no cackling is allowed on the blog).

Anyway, I rate this part of the statute § 19.2-262.01 (D5,D3,R3).  

[D5] You can't get much more democratic than to give information to a jury that has nothing to do with actual guilt or innocence and allow them to have it to nullify if they disagree with the punishment assigned the crime. 

[D3] Despite the joke above, does anyone actually believe that a judge will allow extensive whitherspooning in a theft case or a DUI? This will play out most often in the defense's favor in the form of jury nullification.  

[R3] Order would call for the determination of innocence or guilt to be decided without any collateral issues coloring the decision. Telling the potential sentence introduces a factor that will either be neutral or break in favor of the defendant that has nothing to do with whether the defendant committed the crime of which she was accused. It's not exactly a constitutional right, but it is a statutory right awarded to the defendant by the General Assembly.

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Next, I'll try to find enough time to do this in future posts for the proposed statutes of the August session of the Virginia General Assembly.

 

 

[addendum] I changed from a positive/negative system to the way it is above to avoid any implications of value judgment in the use of negative number.

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Purposeful Confrontation in Northern Illinois City

I was looking for information about proposed social programs which are being proposed to replace police departments and this popped up. I think it might have been because of the very last question where the Superintendent says Chicago needs both.

This is last weekend. The attackers came with a shield to the front and overhead and weapons to bombard the clearly unprepared Chicago police officers. It's hard to say how many people are involved in the attack, but it looks like more than the officers on site. The objective appears to have been for the attackers to bombard the officers from behind their shields in order to get the police to do something that could be used as propaganda.

Does the ADA Override a Governor's Mask Requirement?

If you've talked to anyone about masks (or gone within a mile of social media) since they became the latest thing that is going to save us all, you've heard several arguments for and against their effectiveness. To be clear from the outset, I think they are an effective tool for stopping someone with congestion who is coughing, sneezing, or having nasal discharge from spreading the disease.¹ I think when they are used by the asymptomatic they do little to keep anyone from catching a disease and are a long-tail solution with minimal effectiveness.² However, it doesn't terribly bother me when I wear one in public. If the irrationally fearful are soothed somewhat by an asymptomatic person (me) walking past them wearing a mask at a grocery store that I know probably only changes their chance of getting the disease (were I infected) from something like .00003% to something like .00001% ³ then I'm okay with giving them a little respite from the fear the media has done its level best to drum up and drive home every second of every day.

That said, let's address the argument that's now being used to support their use. (1) You have a right not to wear a mask, but (2) a business also has the right to exclude you for not wearing one. That's true as far as it goes, but leaves out the third element: (3) It's still a governmental action if the government requires the business to do it. That third step changes this from something under trespass law based on personal preferences of the business (no one wearing Steelers gear may enter this store⁴) to the business acting as government's enforcement arm (sin tax imposed by a State on anyone buying Steelers gear, but collected by the merchant). A day to day customer may not care about the difference; all that's really pertinent to him is that his shopping experience has had burdens placed upon it. However, understanding who is requiring the wearing of masks makes a difference in understanding how far the mandate can go.⁵ Your mandate comes from your State government and it's probably from your governor speaking per ipsum without the specific approval of your legislature.⁶ The State government can hide its individual mandates by requiring private businesses to enforce its mandate, but the mandate is still a State government mandate.

And therein lies the rub. People and businesses (1) know the federal government's laws carry more weight than the States' laws⁷ and they (2) know the Americans with Disabilities Act (ADA) exists. Businesses have a positive requirement under the federal law and regulations to accommodate people with disabilities. They are also not allowed to inquire as to the nature of a disability.⁸  For public accommodations - such as a store - a disability includes being "regarded" as having an impairment that significantly limits a life activity.  28 CFR 36.105.  The federal government requires "disability" to be given a broad interpretation. 28 CFR 36.101(b).

Faced with a preemptive federal law, many businesses are not stopping anyone who enters their stores without masks. They are assuming that the unmasked person has a disability which the business is not allowed to ask the unmasked about. It's also amazing how quickly I heard people saying that if questioned they would pull out the disability card and refuse to answer what their disability is because the question is illegal to ask.⁹  A lot of people and businesses are applying the ADA as they understand it with an understanding that it overtops any directive the governor can dictate that businesses require people to mask.

Are they right? Can a business use this as a defense when the Virginia governor's health department brute squad comes knocking at the door? 

It appears so - assuming the courts operate in a dispassionate manner, interpreting the law strictly without letting themselves be influenced by the ongoing panic or politics. On the other hand, the ADA is supposed to make businesses accommodate disabilities and 30 out of 35 customers at a store not wearing masks isn't accommodating disabilities - it's 30 people taking advantage of a loophole to avoid a dictate from the governor. It ends up being a questionable loophole provided by federal regulations against questionable dictates being mandated by governors without specific backing from their legislatures.

Do I expect to see big lawsuits about this? No. I do not. Let's be honest. On the one side you have governors who are engaging in health theater. They aren't going to start shutting down Wal-Marts and grocery stores. On the other side, the companies with enough money and resources to fight something like this in federal court are supremely uninterested in doing anything other than making money and protecting themselves against lawsuits from people with actual disabilities. Sure, were they to deny entry to a person with COPD or heart issues because they weren't wearing a mask the companies could face a lawsuit of their own, but their argument would be that that person is endangering himself by simply being at the store. And the odds of such a lawsuit getting anywhere before all this fades away are low indeed (federal courts consider snails to be speedsters).

That fact renders this a mostly intellectual exercise for lawyers. For regular persons its just another gubernatorial imposition which quiets the strident and is at best tolerated and at worst ignored by the majority. At least this time it's a relatively minor imposition.¹⁰ 

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¹ This is the much lauded person urinating on you scenario we all heard when people were first pushing masks. No pants means the person hits you. You panted means it provides a slight barrier before soaking through. Pants on him stops the fluid from ever reaching you. The scenario is true as far as it goes, but it only makes sense if it assumes incontinence. Otherwise there is no threat of you getting wet. It works the same way for sneezing and coughing.

  

²  Think your governor is implementing the best available solid, rational, scientific solutions? Then ask yourself why none of them have banned air-conditioning. Viruses die in heat and humidity. COVID-19 has been proven to follow the same pattern. Human beings can survive without air conditioning making our spaces cold and dry. Some of us are old enough to remember the days before AC when we all had to make do with *gasp* fans and iced drinks to survive the Summer. If we banned AC from public accommodations and homes of anyone under 60 it would likely make a bigger dent than masks. You think any governor is going to be brave enough to do this? 

 

³ Those numbers are WAG's folks. Anybody who tells you that they can give you accurate numbers for an uncontrolled situation such as this is full of bunkum.

⁴  Clearly, I am only using this as an example because some places ban sportswear because gangs have been known to wear sports clothing to indicate their affiliation, not because the Steelers are evil incarnate perhaps only surpassed in their ghastliness by the St. Louis Cardinals.

  

⁵  Please note that I am not addressing the various arguments that the mandate itself is a burden on the constitutional rights of individuals. Of course it is. Almost any action undertaken by government burdens an individual's constitutional rights. The question is whether the burden is so much that it is not allowed and I'm not addressing this question today.

 ⁶ No, will not opine on the legality of this in each State. There are 50 States for goodness sake. I know I don't have much of a life, but even I haven't got the time to look at the constitutions and laws of all fifty States and opine on each.

⁷   "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." US Constitution Article VI.  This is expanded upon by the preemption doctrine which says the if federal law conflicts with State laws the federal law shoves the State law to the side and is the law that applies.

⁸  See 29 CFR 1630.13(a) (cannot inquire about disability before offering a job), & 29 CFR 36.302(c)(6) (cannot inquire about the disability of a person entering with a service dog). Arguably the latter forbids the question entirely: "A public accommodation shall not ask about the nature or extent of a person's disability." Even if it doesn't it's a clear indicator of where the law stands.

⁹  I live in the land of former coal miners. Heart problems, lung issues, and long term physical injuries have given a lot of people a working knowledge of disability law.

¹⁰ And, judging from what I see, one that has faded fast. I imagine there are places where it may be strongly enforced and followed, but where I spend my time there was a surge in use immediately after our governor's dictate which fell off in days. Go to a gas station, fast food restaurant, or your local grocer and the only people you see wearing masks are the employees and a good number of times they're following the governor's example and wearing them under their chin.

A moment in Court: I Decline!

Jane Smith is having a hearing to determine whether she is competent to stand trial and she demands to speak to Judge Greene. It wasn't my case so I didn't see the whole thing, but it caught my attention when I walked into the courtroom and Jane started talking about the Judge's ex-wife.

Judge Greene's head bobs back and all the attorneys in the courtroom look over at Jane and then up at the Judge. For her part, Jane doesn't even notice. She just starts describing the atrocities that the Judge's ex has done to her in the jail. After a little of this Judge Greene gets his feet back under him and interrupts Jane.

"Ma'am, I don't have an ex-wife."

This, of course, bounces right off Jane and she keeps going. For the next fifteen or so minutes I'm walking in and out of the courtroom trying to take care of my case, but each time I walk in Jane is trying to convince the Judge that he has an ex-wife, she works at the jail, and she has been doing terrible and strange things to Jane.

Finally, things start to wrap up. To absolutely no one's surprise, the Judge finds Jane incompetent.

"Ma'am, I'm ordering that you be transferred from Pitcairn County Jail to Better Minds Mental Care Hospital for treatment to restore you to competency."

"I decline."

The Judge had started to write some notes so his decision could be reduced to a written order, but at Jane's statement his head comes back up looking bemused.

"Excuse me?"

"I decline to go to Better Minds."

Up to this point, the Judge has been remarkably calm and patient considering the fact he just found out that he has an ex-wife who is apparently tormenting inmates at the local jail. Now he looks like the patience might be slipping a little bit.

"Ma'am, I can't force you to cooperate with treatment, but you're going to Better Minds. If you don't cooperate you'll probably be there longer than you need to be."

"I decline to go to Better Minds and I decline any treatment."

At this point, I have to leave the courtroom to deal with some absolutely vital matter (probably had to sign some discovery order or something). I never saw how the case ended exactly. However, I have to say that the "I decline" defense is a novel and interesting one. All sorts of innovative uses come to mind. 

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Judge:  For the crime of bank robbery, I sentence you to 20 years in Black Plague Supermax Penitentiary.

Defendant:  I decline.

Judge:  Ummmm . . .  Okay, how about 10 years at New Hope Medium Security?

Defendant:  I decline.

Judge:  Okay, look, I have to sentence you to something. How about we take advantage of our Canadian prison exchange program? You spend two years in a Canadian penitentiary where they feed you caribou steaks and sauteed truffles while apologizing to you every day because the unenlightened bank tellers couldn't understand the robbery from your point of view and how it wasn't really your choice but a reflection of societal failures? How about that?  I do have to warn you that Canadian prisons are infested with house hippos and you will probably be forced to eat poutine, which is considered cruel and unusual punishment here in the States. Still, most people think that's balanced out by the daily hockey games and availability of maple syrup for every meal.

Defendant:  Yeah, okay. I can take that.

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I think any defense attorney who doesn't recommend this exciting, new technique to their client may be committing malpractice.

2020 New Virginia Criminal Laws

Before you watch, open New_Laws_2020(a).pdf . If that link doesn't work, go to kenlammers.com and under New Laws open the file that says New_Laws_2020. You'll need it to understand what I'm talking about. I start at the beginning of the document and work my way through to the end.

Sorry that the sound is out of sync for the first twenty or so minutes. I've tried to fix this for a couple hours with different programs and eventually gave up. At about the twenty minute point it fixes itself.