New Mexico’s “three-strikes” law is heading to the state senate for an overhaul after House Bill 56 recently passed. New Mexico currently has a “three-strikes” law in place that automatically increases the sentences of three-time violent felons to life imprisonment.
A third-time New Mexico offender faces life in prison regardless of where the previous two felonies took place. There are five different criminal acts listed within the current statute:
The purpose of the statute is to protect society from repeat violent criminals. If you take a closer look, you’ll notice the statute weighs heavily on crimes that result in “great bodily harm.”
How Would the Proposed Bill Amend the Three-Strikes Law?
House Bill 56 proposes to add 16 new crimes to the list that would warrant a life sentence. Among those crimes added is voluntary manslaughter, aggravated assault with intent to commit a violent felony, third-degree aggravated battery, second or third degree shooting at a dwelling or occupied building, second or third degree criminal sexual contact of a minor, armed robbery, aggravated arson, and aggravated battery upon a peace officer to name a few. In addition to the expanded list of crimes, the bill also removes language referencing “great bodily harm” within that statute itself.
Is This a Good Idea?
The financial implications of more inmates with a life sentence are great. A greater chance of life imprisonment means more offenders will opt for juries adding even more costs and clogging the already full New Mexico court dockets. On the flip side, less crime means avoiding expenses related to victimization. However, financial and administrative implications don’t outweigh the safety of our communities.
Aside from the financial and administrative effects, opponents of the bill state that the removal of the great bodily harm requirements potentially puts repeat non-violent offenders at risk for a life sentence that don’t truly deserve it. The best example in support of this argument is kidnapping. Under the current law, one must be convicted of kidnapping resulting in great bodily harm to the victim to earn a life sentence. The new bill removes the great bodily harm requirement, which means any kidnapping will essentially suffice.
First-degree kidnapping involves only “injury” and not great bodily harm. No actual harm is needed to fall within second-degree kidnapping. Those against the bill argue that you could be unnecessarily sentenced to life imprisonment by simply holding someone by the arm to take money from them. But, do we really want kidnappers to be released simply because they didn’t cause great bodily harm? Keep in mind that this would only count if it were their third violent felony.
If you take a closer individual look at each crime added, you will find that most require great bodily harm as a factor within their defined statutes. For example, let’s take a look at statute 30-17-6:
Aggravated arson: Aggravated arson consists of the willful or malicious damaging by any explosive substance or the willful or malicious setting fire to any bridge, aircraft, watercraft, vehicle, pipeline, utility line, communication line or structure, railway structure, private or public building, dwelling or other structure, causing a person great bodily harm.
The key distinction between arson and aggravated arson is the harm involved; it’s the harm that escalates arson to aggravated arson. The majority of the crimes added to House Bill 56 are violent in nature themselves, so removing the great bodily harm language isn’t really necessary to change the intent of the bill, but leaving the language in isn’t really harming anything either.
Other states that have three-strikes laws allow life sentences for non-violent crimes because their statutes are written and applied broadly. However, New Mexico is not one of them. New Mexico’s three-strike laws is very narrowly applied. So much so that no one offender is currently serving a life sentence under the current statute.
Allowing additions of violent crimes that would warrant a life sentence seems reasonable in order to prevent repeat violent offenders from further harming society. Should the language be modified to protect non-violent defendants from unintentional consequences? Probably. Allowing room for judicial discretion for individuals that may not deserve such a harsh sentence would be a great start and keeping the great bodily harm requirements ensures the statute will be applied narrowly and only to violent offenders as originally intended.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
Children who create heinous crimes are often tried as adults. In many circumstances, it’s the right thing to do. Children who are “old” enough to kill are old enough to receive an adult punishment. That punishment is life in prison or death at the government’s hands. Is that tough punishment the correct punishment? According to the U.S. Supreme Court, the answer is no.
In a 6-3 decision, the Court made a 2012 ruling retroactive. That ruling made mandatory life imprisonment without the possibility of parole unconstitutional. Justice Anthony Kennedy wrote prisoners should be given the opportunity to show their crimes don’t make them permanently corrupt.
Can Little Killers Become Law-abiding Adults?
Justice Kennedy also mentioned restoring hope for children to live their lives outside prison walls. Children who commit adult crimes are just like other children. They are constitutionally and fundamentally different from adults in:
There’s one problem. Is it possible those prison walls will change the childrens' prospects for being reformed? They’ve spent their lives with adult criminals. They’ve spent most of their informative years behind bars. They are working from a deficit. Is it too much to ask them to become law-abiding citizens when some adults can’t resist become repeat offenders?
Of course, there’s statistics to prove and disprove the questions asked. The bottom line is this: Children should be allowed to receive a second chance. Living a childhood behind bars is punishment enough.
Dissenting Justices See Another Issue at Play in Freeing Child Inmates
The dissenting judges, or the three who voted against the ruling, saw a bigger issue in the decision. The 2012 and current decision are a bid at getting rid of life without parole and the death penalty for children altogether. In fact, the justices claimed it was a “devious” way of eliminating the life without parole for juvenile offenders.
Both decisions may ultimately make it hard to sentence children who commit harsh crimes. The 2012 decision eliminated the death penalty for juveniles. Now the current decision essentially takes away life without parole. The question becomes how will juveniles who commit heinous “adult” crimes be punished? Life with parole isn’t tough enough.
It gives juvenile offenders a chance to commit an adult crime without worrying about the future. At some point, when they are ready, they’ll repent for their crimes. The parole board will set them free. For some of them, they’ll be able to do the time.
What about state’s rights? States do have a right to sentenced children to life without parole. It’s unknown what will happen in the nine states that have disproportionally sentenced children to life in prison without the possibility of parole. It takes away all the state’s right to sentence minors in whatever manner the state(s) want.
The Court Cited the Eighth Amendment as a Reason to Strike Down the Without Parole Option
Whether you oppose the justices’ decision or not, it’s an Eighth Amendment issue. The Eighth Amendment of the U.S. Constitution focuses on cruel and unusual punishment. In criminal cases, no one is allowed to be subjected to punishment deemed too cruel, such as excessive bail or fines. Life without the possibility of parole is cruel and unusual because children who commit crimes mature. Once they are adults, they are serving disproportionate sentences.
In Montgomery v. Louisiana, the petitioner was 17 years old when he killed a deputy sheriff in 1963. He received life without the possibility of parole. Almost 50 years later, he’s still servicing his sentence. If he’d receive life with the possibility of parole, he would have a second chance by now. He could’ve built his life. The keyword is “built”, not rebuilt. He was a teenager who committed an adult crime, but he never had a chance to become an adult outside of prison.
It’s hard for many victims of child killers to agree they deserve a chance at a new life. However, the Constitution guarantees everyone the right not to receive a cruel sentence. It’s the criminal system that has decided children who commit adult crimes should be sentenced to adult punishment. The juvenile justice system is supposed to reform children committing crimes. However, many believe adult sentences are a way to cast off these children because are useless to society. It’s only a matter of time before the focus is placed on giving children life with the possibility of parole. It doesn’t guarantee they will be freed. It gives them a chance.
Authored by Taelonnda Sewell, LegalMatch Legal Writer
New Yorker James Ryan may go to prison for a crime he didn’t commit. His case will test the limits of criminal consequences because he’s accused of killing a police officer while he was leaning against a highway guardrail.
Criminal law allows someone who didn’t directly kill another human being to be accused, charged, and sentenced for murder. Felony murder is any killing that happens during a commission of an inherently dangerous felony, such as burglary. The defendant may not have intended to kill someone during the felony. However, if someone does die during the felony, the defendant is liable for that person’s death under felony murder.
No Inherently Dangerous Felony Occurred in Ryan’s Case
Ryan, a 28-year-old part-time college student, is charged with 16 criminal charges, which include:
According to prosecutors, Ryan was charged with the crimes because he was drinking and driving on the Long Island Expressway. His Toyota allegedly clipped a BMW. He stopped his vehicle further down the road in a high-occupancy lane. His Toyota was then hit by another vehicle. The second accident turned his vehicle sideways.
A short time later, another driver apparently didn’t see Ryan’s Toyota. The driver of the SUV hit his vehicle, then struck the police officer on the scene. The SUV driver was never charged with the police officer’s death, but Ryan was.
Prosecutors claim that Ryan’s blood-alcohol level, or BAC, was 0.13 percent. That’s above the state’s 0.08 percent legal limit.
Initially, a state judge dismissed the charges. The judge found the officer’s death was the fault of the SUV driver. Later, a state appeals court reinstated the 16 charges. It found it was reasonably foreseeable that Ryan’s conduct could cause a collision that would cause the officer’s death.
The prosecutors and appeals court are viewing this case in terms of criminal causation/foreseeability. Foreseeability is a legal term you see a lot in personal injury. In criminal law, it means the same thing. The victim’s death was a foreseeable result of the defendant’s conduct.
There’s a problem with this argument.
Intervening Causes Make Ryan Not Guilty of the Crime
Too many things had to happen for Ryan’s conduct to foreseeably cause the officer’s death. Let’s list the number of things that happened to cause the officer’s death:
The first reason why he shouldn’t be charged with a crime is the term “intervening cause.” It occurs when there’s some interruption between a defendant’s actions and the ultimate harm to the victim.
Prosecutors would likely argue that Ryan was a dependent cause of the officer’s death. If he wasn’t drinking and driving, the officer wouldn’t be dead.
However, Ryan’s conduct wasn’t a foreseeable cause of the officer’s death because of an independent superseding cause. An independent superseding cause is an action having nothing to do with a defendant. If the independent superseding cause is unforeseeable and causes harm, a defendant isn’t criminally liable.
The SUV Driver was the Independent Superseding Cause of the Officer’s Death
For Ryan to be responsible for the officer’s death, every event must link together to form a chain of events. Now the prosecutor is alleging all the events link together to make Ryan guilty. They don’t.
The link connecting the chain of events broke when the SUV driver struck Ryan’s Toyota and the officer. The SUV driver admitted to not seeing the Toyota at the time of the accident. The driver is responsible for the officer’s death, not Ryan.
Ryan’s part in the accident stopped after he parked his vehicle in a high-occupancy area of the highway. It doesn’t matter if he was drinking prior to the SUV driver causing the officer’s death or not. If the SUV driver was paying attention, the officer would be alive today.
What happened to the officer wasn’t a freak accident or without criminal liability. Instead of prosecuting Ryan though, the criminal justice system should pursue the SUV driver. It’s easy to make an example of a drunk driver. Drinking and driving is wrong. However, overcharging someone for a crime they didn’t commit isn’t justice.
Authored by Taelonnda Sewell, LegalMatch Legal Writer
Recently, a federal appeals court determined that wearing an unearned medal of honor is protected by the First Amendment.
Back in 2007, Elven Joe Swisher was convicted under the Stolen Valor Act of 2005, a law that considered it a misdemeanor offense if you lied about obtaining military honors. Swisher often wore various medals in public and at one time in court as a witness in an attempted murder trial.
A new version of the Stolen Valor Act was then enacted by President Obama in 2013. This version punished those who fraudulently represented that they received military honors to “obtain money, property, or other tangible benefit.” It was under this new version of the law that Swisher decided to appeal his conviction.
The appeals court determined that wearing medals, even if fraudulently, does convey a message. And, even if that message is a lie, lies are still protected under the First Amendment in this circumstance.
What Is the Stolen Valor Act?
The Stolen Valor Act was first enacted back in 2005 to prevent the unauthorized wearing, manufacturing or selling of military decorations and medals. Violating the law would be treated as a misdemeanor with a monetary fine and some jail time depending on the type of medal or honor that was fraudulently worn.
By 2012, the Supreme Court struck down the Act because it unconstitutionally regulated speech, and was therefore in violation of the First Amendment.
In 2013, a new version of the Stolen Valor Act was enacted. Violation of the law now included the “intent to obtain money, property, or other tangible benefit” through fraudulently holding yourself out to have earned a military medal. Just lying about receiving these honors would no longer be enough to violate the law.
What Is Protected Speech?
The First Amendment protects expression of belief from government interference. In other words, the government cannot censor your speech or conduct if you are trying to convey a message.
Most speech is considered protected from government restriction or interference. For a government law to restrict speech constitutionally, they must be able to pass the most stringent level of scrutiny. Under a strict scrutiny analysis, the government must provide a compelling government interest, and they must have narrowly tailored the law to achieve that interest.
There are lesser protected forms of speech such as obscenity and fighting words that only need to meet an intermediate level of scrutiny.
Should Lying about Earning Military Honors Be Protected Speech?
Although lies can be an annoyance, and even occasionally destructive, they remain protected speech depending on the circumstances.
Some lies are lesser protected than others. Some forms of defamation and falsehood in commercial speech are lesser protected, so the government only needs to pass an intermediate level of scrutiny to regulate the content of that speech. Also, lying for the sake of inciting a riot or crowd chaos is also lesser protected speech. Generally speaking, lies that cause some form of harm to at least one individual have a lower level of scrutiny than truthful expression.
However, the Supreme Court determined that the message conveyed in wearing medals is a message worthy of full protection, even if it is a fraudulent one. There are many reasons why these kinds of lies should remain protected speech. First of all, if the law were to apply to all circumstances, an actor portraying a military hero or veteran and wearing medals would be in violation of the law.
Second, if the Stolen Valor Act had not been updated in 2013 to include the “monetary” clause, then what would the harm be for someone to lie about earning medals for the sake of lying? When Congress first drafted the version of the Act in 2005, their intent was to basically prevent devaluing the “integrity of the military honors system” and the efforts that an individual went through to obtain those honors.
However, with that said, confirming someone’s military record is no longer as difficult as in the past. The government maintains databases of military records and search websites that are privately run such as the Home of Heroes can also provide results for whether someone has earned a particular medal. In the current era of Google, ferreting out the truth in a situation is no longer as difficult.
When Swisher testified during an attempted murder trial, he wore a purple heart. Wearing medals while on the stand as a witness have the tendency to bolster a witness’s credibility. After all, would a decorated war veteran, especially one who sacrificed his personal well-being to earn a purple heart, lie on the witness stand? Swisher’s testimony could have been taken under greater consideration because of his appearance as a decorated war veteran.
However, the falsehood of Swisher’s medals is not a sufficient amount of harm to make this form of lying less protected. Any case brought to trial will have testimony from a variety of witnesses, and it will have evidence supplied from a variety of sources. It becomes the juror’s duty to determine whether the evidence as a whole provides guilt beyond a reasonable doubt. Swisher’s testimony would not stand alone as the only form of evidence at that trial. So, Swisher’s false credibility is probably a minor issue compared to all the evidence presented as a whole during that trial.
But this is why the Stolen Valor Act had to undergo revision. The 2005 version lacked the tangible harm required for the government to regulate the fraudulent conduct. The current Stolen Valor Act now covers this essential element to ensure its constitutionality because not all lies are unworthy of protection.
Authored by Emily Yu, LegalMatch Legal Writer
Martin Shkreli became a leading contender for most hated man in America after he raised prices on life-saving cancer and AIDS medication from $13.50 to $750 a pill. But karma seems to have caught up with Shkreli. Shkreli has been arrested and charged with two counts of securities fraud, three counts of conspiracy to commit securities fraud, and two counts of wire fraud.
The official charges, or indictment, against Shkreli allege that he was involved in three fraudulent schemes.
The first allegation is that Shkreli repeatedly lost money for investors in his hedge funds, MSMB Capital and MSMB Healthcare, and lied about the losses. Shkreli allegedly told an investor that his $1.25 million investment in MSMB Capital was worth over $1.3 million, even though the fund had no assets and had stopped trading a year before he made the statement.
The second allegation is that Shkreli induced investments through misrepresentations about the performance of MSMB Healthcare. Allegedly, Shkreli concealed the collapse of MSMB Capital from potential investors to induce investments in MSMB Healthcare.
The last allegation is that Shkreli misappropriated assets in Retrophin, Inc, a biopharmaceutical company founded by Shkreli, by using its assets to “satisfy his personal and unrelated professional debts.” Shkreli allegedly transferred Retrophin shares to MSMB Capital, even though MSMB Capital never invested in Retrophin. Due to the fraudulent transactions, Retrophin and its investors lost in excess of $11 million.
Shkreli’s Criminal Charges
Shkreli has been charged with a violation of Rule 10b-5, the rule governing securities fraud. Securities fraud is any fraud perpetrated in connection with the sale of a security. In other words, any scheme, untrue statement, or misrepresentation intended to deceive an investor of stocks or other investments qualifying as securities.
Under 10b-5, the prosecutor must establish that the defendant engaged in a fraudulent scheme, made a material misstatement or omitted material information in connection with the purchase or sale of a security and the defendant acted willfully. If Shkreli is convicted of securities fraud, he could face a 20 year prison sentence, fines, and restitution, requiring him to refund the victim investors.
Defendants charged with security fraud often assert good faith defenses. A defendant may present evidence to a jury that he or she in good faith believed that the alleged fraudulent statements or omissions were true or that they relied on faulty professional advice (i.e. advice of an accountant or attorney).
In prior civil suits, Shkreli has stated that some of the alleged transactions occurred with his attorney’s “blessing,” and thus, he may present a good faith reliance defense in the criminal case.
Shkreli has also been charged with conspiracy to commit securities fraud and wire fraud. To establish a conspiracy, the prosecutor must show that there was an agreement between two or more people to commit an offense and that the defendant or a co-conspirator took steps to actually commit the offense.
Generally, the prosecutor must establish that the defendant had the intent to commit the underlying offense. In this case, the prosecutor must establish that Shkreli intended to commit wire fraud or securities fraud. If convicted of conspiracy Shkreli could be fined, subject to a five year imprisonment, or both.
To establish conspiracy to commit wire fraud, the prosecutor must establish that Shkreli had the intent to commit wire fraud. Wire fraud is established when the defendant uses interstate wire communications to facilitate or carry out a scheme to defraud with the intent to deprive another of money or other property. For instance, telephoning a co-conspirator in another state to plan to scam investors. Wire fraud convictions can lead to 20 year prison sentences and fines.
Like securities fraud, defendants may assert a good faith defense in addition to the puffery defense. The puffery defense generally applies to when a salesperson exaggerates to sell a product with statements indicating that a product is “the best ever made.” Courts have generally found that a reasonable consumer is unlikely to rely on such statements, and thus, puffery is a defense to wire fraud in the salesperson context.
It is unlikely that Shkreli would be able to use puffery as a defense if the allegations against him are true. Assuming the prosecutors can establish that Shkreli knew his statements to investors were untrue, Shkreli could face convictions on several criminal charges. This wouldn't help the consumers who need access to affordable medication, but at least his investors have some sense of closure.
Authored by Robin Sheehan, LegalMatch Legal Writer