LegalMatch: Criminal Law

When The Punishment Doesn’t Fit The Crime

I never thought I would write another law blog about DVD rentals.  Although under entirely different circumstances (Netflix “outing” their customers), the most interesting legal issues can sometimes be found in the funniest places. 

Case and point: A Littleton, Colorado judge issued an arrest warrant for a local teenager who has $30 in overdue DVD’s from the local library.  When the teen recently got pulled over for a routine traffic violation, he was placed in jail for 8 hours in accordance with his arrest warrant.  The best part is that the overdue DVDs had actually been returned a week before the arrest!

Call me crazy, but overdue DVD’s should not have jail time as the punishment.  I am pretty sure the fine itself is the punishment, but that’s just me.  Perhaps the Colorado judge read about the 12 year old New York student who was taken from her classroom in handcuffs for doodling her name on her desk in erasable markers.  Yes, erasable markers.

Growing up, kids learn that they are punished when they do something wrong.  And when they do something really bad, they get in bigger trouble.  This simplistic philosophy guides the legal system for punishment of those individuals that break the law.  Petty theft carries a much lesser punishment than a murder charge.  And rightfully so.

There are a lot of sentencing options depending on the crime committed.  A recent LegalMatch study revealed an interest in changing and lessening punishments and an increasing interest in alternative sentencing.  Traditionally, when an individual gets convicted of a crime, the judge has the option to impose fines, jail time, probation, or a combination thereof.  With alternative sentencing, an individual may have to do community service, be placed on house arrest, or some form of work release.  Although I don’t believe any type of sentencing is really necessary for DVD’s or doodling, alternative sentencing is a much more rehabilitative approach to crime and punishment and offers an opportunity to shape the punishment to the individual personality of the offender. 

Placing individuals (teenagers and children nonetheless) under arrest for minor infractions is absolutely ridiculous and an embarrassment to the legal system as a whole.  No system is perfect but egregious punishments like the two examples above should not happen. 

By: Violet Petran

Is The Threat Of Being Sprayed With Breast Milk Assault? Yes, Yes It Is

No one likes listening to authority.  Whether you’re an 8 year-old being forced by your parents to clean your room or a 38 year-old being forced by your boss to review Excel spreadsheets until the wee hours of the night, no one wants to do what they’re told.  But you know why you have to do it?  Because, like your mommy always told you, because they said so.  And nowhere is this all encompassing authoritative reason better illustrated than when you’re in jail.

Apparently a women from Kentucky (or as they’re known locally, a Kentuckian and not a Kentuckinite as I’ve been saying for years) who was in jail for alcohol intoxication allegedly assaulted a deputy by squirting breast milk in the deputy’s face.

You’re probably thinking, “What?” for a couple of reasons: 1) How was the inmate able to whip her mammary glands without the guards becoming suspicious?  2) Breast milk can go that far?  3) Is spraying breast milk really assault?  And 4) Kentuckian?

The answers: 1) The inmate was changing into her uniform so whipping out said mammary glands wasn’t so unusual. 2) Apparently yes, but who knows how close she was.  3) Yes, more on this later.  And 4) I know, huh?!?

The notion that spraying liquid on someone can be assault may seem a little foreign or (using every lawyer’s favorite word) attenuated.  But in this case it probably seems a little more understandable since it’s a bodily fluid – especially because it’s breast milk.  Though I’m sure many of you can think of a few more disgusting human fluids to toss at someone, human milk is just weird to me.  I mean the whole process of pregnancy, shooting out a baby, and then producing milk just seems too … cow-ish to me. 

Anyway, yes spraying liquid on another person can not only be assault, but you may be surprised that it can also be battery.  Actually the more I think about it, most people who haven’t subjected themselves to the useless study of law will probably be surprised by a lot of the distinctions made in it.

First, to understand why this is a legal issue, a clarification about the difference between assault and battery is in order.  In regular English, the two words are synonyms for each other with no real distinguishable differences.  But in the legal world, assault means the attempt or threat of inflicting harm onto another.  Whereas the battery means when one actually physical harms another person.  The two are treated as two different crimes, meaning assault can occur without battery if the attacker doesn’t actually hurt the victim and even stranger, battery can occur without assault.  The latter situation can occur when a victim gets attacked from behind, the victim doesn’t see the attack coming and therefore cannot perceive the threat of harm and thus the attacker is only guilty of battery.

However, the question here is whether spraying milk on someone can really cause actual harm to them.  Well, maybe in most cases it can’t cause physical harm aside from when it lands on a person who has some sort of rare skin disease that causes them bleed out if lactose touches them.  But seriously, in the criminal law world actual physical harm isn’t as big of an issue.  What matters is the attempt and physical contact itself.  Assault and battery laws are designed to prevent people from freely being able to touch and threaten other people without consequence.  What the law does in most states is typically create different degrees of punishments based on the severity of each assault and battery, usually with the first degree denoting the highest level of severity and so forth.  Hence terms such as first degree assault and third degree battery.

Anyway, the lesson here is an old one: Keep your hands, feet, elbows, breast milk, flying shoes, etc. to yourself.

By: Andrew Dat

Trial By Ordeal: Did It Actually Work?

 

Probably not.  But a fairly prominent economist seems to think that there may have been something to it.

 

In case you’re not familiar with the concept, trial by ordeal was what passed for due process in medieval times. Essentially, the defendant would be subject to some test, or “ordeal,” which, theoretically, has 2 possible results. If one result occurs, the defendant is innocent; if the other occurs, he’s guilty. It was usually something ridiculous like “let’s throw the defendant in the lake, and if he drowns, he’s guilty, if he lives, he’s innocent.” Or it might have been the other way around – they did some silly things back then.

 

To be fair to the author, his thesis seems to be that those superstition-based practices were only useful in determining guilt and innocence if the superstitions on which they were based were widely believed.

 

Think of the fable about using a soot-covered pot with a rooster in it to catch a thief.  An angry mob believes that there is a criminal among them, and one enlightened fellow says that he has a magic pot – when the guilty person touches the pot, the rooster will crow. Everyone supposedly touches the pot, and the rooster doesn’t make a peep. Soon enough, the mob is calling for Mr. Smarty Pants’ blood. He calms them down, and tells everyone to raise their hands. All but one of the men have soot on their hand. The man with the clean hand is your thief.

 

Those with clear consciences touched the pot, knowing they had nothing to fear. Believing that he would be found out, the guilty man didn’t touch it. This would, of course, not work if nobody believed that a pot with a rooster in it could detect guilt.

 

If trial by ordeal determined guilt and innocence with better-than-chance accuracy, it was probably not due to divine judgment (as the superstition held); rather, it was due to the fact that everyone involved believed that God was judging the accused and would determine the outcome of the trial accordingly.

 

For example, if a suspect willingly submits to the trial, it can be assumed that they’re probably innocent. If they have to be dragged kicking and screaming, they’re probably guilty. Knowing this, the priest administering the test could manipulate the (quite complex and vague) rules to suit his desired outcome.

 

The article got me thinking: what role does superstition play in the modern justice system? 

 

For example, the ritual of having a witness in a court of law swear on the Bible to tell the truth is based on the premise that lying is a sin, and will be punished by God. Of course, the deterrent value depends entirely on the witness’ belief in God and the immorality of lying. Perhaps that’s why many modern oaths (the one given in California courts) for example, omit or minimize the religious references, and instead focus on the earthly consequences of lying under oath – being charged with perjury.

 

Or look at what commonly happens in jury trials – a lawyer asks an impermissible question, and before opposing counsel can object, the witness answers it. The judge instructs the jury to disregard the question and answer. This is based on the idea, which doesn’t seem to have any more bearing in reality than superstition, that the jurors can simply push what they heard out of their minds, and dutifully refrain from considering what they heard, even subconsciously, in deliberations. We all know that most human beings simply aren’t capable of doing this, yet the judicial system operates under the assumption that they are, and the trial system that we have wouldn’t be able to operate if this, and other, legal fictions were not treated as true.

 

Really, that seems to be all there is to it: there are certain systems that work only because we believe that they work. Of course, the criminal justice system should seek to abandon the use of superstition entirely – in an age of DNA evidence and modern investigatory techniques, it’s absurd to rely on the supernatural to determine guilt or innocence.

 

I think that some of the commentors on the website where the article was posted missed the author’s point – he argued that, in some cases, it might be beneficial, from both an economic and legal standard, to leverage superstition where it exists. He certainly doesn’t seriously believe that we should bring back the trial by ordeal; he is simply observing that when everybody believes something, that belief can be useful. 

By: Rusty Shackleford

Historical Controversy Surrounds Waterboarding, Labeling It a War Crime.

An article published in the Washington Post in 2006 has been brought to light to expound on legal circumstances surrounding waterboarding. The piece, entitled “Waterboarding Historically Controversial,” highlights several conflicting examples of U.S. legal consideration of the interrogation technique—one declaring it a war crime, and others protecting it as an acceptable post-9/11 “coercive method.”

Waterboarding was initially cited as a war crime during World War II, when Japanese officer Yukio Asano was tried for using the interrogation technique against a U.S. civilian. Asano was sentenced to 15 years of hard labor as punishment for his crimes.

In 1963, 16 years after Asano’s conviction, the CIA kept now-declassified manuals outlining a similar technique. After 9/11, CIA interrogators were once again given permission to use waterboarding torture techniques against “higher-level Al-Queda operatives,” despite the fact that even presidential hopefuls like John McCain have recognized waterboarding as being “no different than holding a pistol to [a person’s] head and firing a blank” [1]. Again, I’ll cite the Geneva Conventions, which prohibit (among other things) “mutilation, cruel treatment, and torture.”

While the debate here seems solely centered around whether or not waterboarding is torture (as the U.S. government has continuously said that it does not condone torture and long ago signed on to each of the Geneva Conventions), it is difficult to say that something that puts people in immediate and aggressive fear of their lives is anything but that.

[1] "Waterboarding - The 'Un-Torture.'" Matthew Good (www.matthewgood.org).

 

by Kate Beall

Bush Threatens To Veto Bill That Bans Waterboarding Torture.

More information on the Waterboarding torture case is available through the Huffington Post.
Check my previous entry, "Is Waterboarding Torture, or an Interrogation Technique?" for legal specifics on the situation.

by Kate Beall

Is Waterboarding Torture? Or an Interrogation Technique?

Those who have been following the heated debate around “waterboarding” were treated to news today about the House’s ban of this cruel interrogation technique. This method of “interrogation” involves the simulation of death by drowning. By sealing the mouth of the victim with plastic or cloth and then pouring water over their upturned face, interrogators are able to trick the brain into believing that it is drowning by allowing a small amount of water into the victim’s lungs. CIA agents undergoing a controlled experience of this kind of inquisition lasted only an average of 14 seconds before begging for release.

Until recently, US Attorney General, Michael Mukasey would not confirm whether or not waterboarding constituted a form of torture, saying only: “If it amounts to torture, then it is not Constitutional” [1].

 

What we do know is that illegal interrogation techniques include the use of physical force, “such as torture” [2]. Mental torture or coercion, such as brainwashing and drugging, are also in violation of United States laws and are further prohibited by the rules set down by the Geneva Convention. These  Geneva Convention laws were put in place to uphold the constitutional protection against cruel and unusual punishment and to protect both citizens and soldiers from the horrors of war. Prisoners of war are thus also protected by these regulations, and prisoner rights violations are a matter of serious consequence.

With this stroke by the House, waterboarding may finally find itself officially determined to be an act of torture—but the White House still stands by with a threat to veto the bill. The final say thus lies with the stroke of the President’s pen.

by Kate Beall

TASER Deaths and Injuries Abound.

TASERs have become a hot-topic in the media of late, from the videotaped collegiate of “Don’t tase me, bro!” e-fame to more somber cases like last week’s tasing of an innocent deaf man. But what is only beginning to come to surface is the death toll exacted by police usage of TASERs on noncompliant or resisting victims.

TASERs and stun guns were initially introduced in 1969 as a less-lethal alternative to firearms, and are currently produced by TASER International, Inc. However, growing controversy surrounding the shock weapons has called their usage into question. Over 20 taser-related deaths have been recorded in the past year alone, and loose-handed usage of tasers has even brought Amnesty International into the fray. Amnesty currently condemns Taser usage as inhumane.

 

The confusion surrounding TASER usage can be blamed at least partially on TASER International, who have been one of the few institutions to conduct research on the effects of their weapons. Such research on its own necessitates a certain amount of skepticism, as vested interests in the success of TASER products hardly makes for neutral reporting. 

For those who have sustained injuries as a result of being tased, or those who have lost a loved one to a TASER-related death, litigation is an option. You can file a product liability claim against the manufacturer (in this case, TASER International) and hope that your lawyer can prove that a defect was responsible for your injury or loss.

However, until further research is done on the immediate and long-term effects of TASER usage on human beings, it is impossible to say whether those lawsuits will be successful. In the meantime, people continue to die.

by Kate Beall