Posted on October 15, 2008 by Walter Reaves

It's not always a crime

Both Simple Justice, and Truth in Justice, recently commented on the reversal of a criminally negligent homicide conviction in New York. The 17 year old defendant was on his way home when he lost control over his car while going through a turn. He had 3 friends with him, who all died. The defendant was speeding, and only had a junior license. The Court of Appeals concluded that was not enough to make the conduct criminal.

Sometimes people have a hard time accepting that some actions are not crimes. Criminal statutes are generally designed to punish intentional conduct; you know something is wrong, but you do it anyway. You don't always have to intend the result; for instance, you might get in a fight, and during the fight the other person trips, and hits his head, resulting in serious injury. You may still be guilty of an aggravated assault, if serious bodily injury resulted.

All but a few criminal offenses require a mental state. There are three - intentionally, knowingly and recklessly. Recklessness means you aware of the risk, but ignore it. In the assault example, you know something might happen. You can be reckless, and be just as guilty as if you act intentionally.

Sometimes you don't need a mental state at all.  Intoxication manslaughter is one of those offenses. If you intoxicated, and involved in an accident, you are guilty. The State doesn't have to prove the accident was the result of your drinking, they just have to prove you were legally intoxicated. Sometimes its nothing more than bad luck; both for the defendant, and the other parties.

So why should you be guilty if you don't have the necessary intent? The theory is strict liability - you are responsible for the consequences of your actions, no matter what your intent is. If you drive while intoxicated, you are responsible for whatever happens. Some may think it fair, and some may not.

Not everything has to be crime. We have a civil justice system that is designed to handle disputes. We would be better off if we let the civil justice system handle some of those disputes, and not make everything a crime. After all, we have more than enough people in jail already.

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Posted on August 20, 2008 by Walter Reaves

Stacked sentences - is it fair?

A jury in Waco, Texas recently sentenced a defendant to 20 years for intoxication manslaughter, the maximum sentence. There were also two people injured in the accident, and the jury sentenced him to 5 years for each of those (intoxication assault). The judge stacked the sentences, and he ended up with 30 years.

There was nothing improper about what the judge did, but the question is whether its right. There are several offenses where sentences can be stacked - sexual assaults are the most common. Those offenses can also be combined in a single indictment, which means one indictment can contain several separate offenses.

There are several problems I see with stacked sentences. One problem is with offenses like intoxication manslaughter, where there is no intent to kill anyone, or hurt anyone. Whether one person is in another car, or ten people, is nothing more than luck (bad luck for the other driver). Is it really worse because there are three people, instead of one? Looking at it from the standpoint of the defendant's conduct, you would have to say no.

Another problem is sexual assault cases. Many times, one incident may consist of several possible offenses. For example, in an indecency case, touching the breast and genitals are separate offense. So is contact with the mouth. It's not uncommon for one incident - that may last no more than a few  minutes, to end up in three or more offenses. The result is that instead of facing a potential sentence of 20 years, the defendant is looking at a 60 year sentence. The threat of that happening results in a lot of pleas.

If the legislature wants to increase sentences, they have the right to do so. They shouldn't allow the State to do it through the back door though, which is what happens with stacked sentences.

The most serious problem I see is that the decision to stack sentences is left to judges. If you are going to allow juries to sentence people, then let them do it. As it is, they have no say in how the sentence they assess is carried out. Even worse, they are not even told the judge can, or cannot stack sentences. Its not uncommon for jurors to ask whether the sentences can be stacked, only to be told they are not to concern themselves with that. Why can't they know that, when they are the ones deciding what the sentence should be?

I'm sure it will never happen, because the legislature is not going to support anything that appears to be soft on crime. But some consistency needs to be brought back to sentencing, especially in sexual assault cases. Jurors also shouldn't be kept in the dark - they should know that a judge may be allowed to ignore what they worked so hard to resolve.

Instead of this, my guess is the only thing that will  change is  more offenses will be added to the list of those that can be stacked.

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