On the Law of Unintended Consequences

When the Arizona legislature passed House Bill 2459 (awaiting signature), its members (or at least those who voted for it) probably didn't stew much about the fact that it's pretty clearly unconstitutional.  Instead, I imagine, they recognized a problem (in the age of the internet, it's possible to be nasty over the internet) and decided that something had to be done.  Here's what they did (and I'm quoting Scott Greenfield who in turn quotes first the bill and then Eugene Volokh).

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

It's grown tedious discussing what's wrong with such laws. Use a curse to characterize a supporter of this law on your iPhone and you've committed a crime?  What a bunch of assholes. Oops, guilty.

So, under the statute, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would be a crime: It’s said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else.

Of course, it's pretty much always a bad idea for legislators (and others with the power to enforce their will, I should add) to decide that they need to do something.  What happens, you see, is that something quickly becomes anything.  But anything typically achieves nothing.  Actually, that's not true.  Rather, the anything rarely achieves the desired result.  It does, however, achieve (typically) the wrong things.

I could carry on at length here about TSA as an example, but it's such an easy target, it hardly seems worth the typing.

There are the various versions of SORNA, the sex offender registration and notification acts.  They're designed to let everyone know where sex offenders who have paid their debt to society live so their houses can be burned down the neighbors can tell the children to play with Uncle Charlie or sign up to be altar boys instead.  SORNAs don't actually prevent sex offenses.  They just distract the cops from their real jobs.

There are the Stand Your Ground laws, too.  But really there's nothing much to add about the Trayvon Marting/George Zimmerman affair.  A young man is dead, seemingly for no good reason.  And while the rush to judgment (Zimmerman: Hero or Monster? You Make Up the Facts and the Law) is unseemly, it does seem pretty clear that if Zimmerman didn't have a gun, he wouldn't have shot Martin.  Whether he was secure in the shooting because he believed himself protected by the law is a completely different question.

And of course there was the law against crush videos.

But it's not just laws designed to address the big stuff we all fear daily.  (Remember the folks who thought it a miracle that the man who stopped to help a distressed child didn't abduct her and chain her in a basement for decades because that's what at least half of all men would have done.)

Really, it's just about every time they try to solve a perceived problem with the legal system.  Consider, if you will, marriage.  Forget the contentious stuff.  I'm not talking now about same-sex marriage or DOMA.  No, I'm talking about the horrible problem of people marrying their close relatives. It's illegal everywhere and a damned good thing because if you could legally marry a close relative why it's pretty clear that almost everyone would and then we'd all be living in what's stereotypically thought to be West Virginia.

Anyway, Ken Lammers in Virginia actually did what good lawyers do.  He read statutes and followed their language and discovered that . . . wait for it . . . 

It's illegal to marry in Virginia if you were ever divorced.

At least maybe.  They didn't mean to make it a crime.  And maybe nobody will get prosecuted for it.  But some cop on a morals crusade and the next thing you know the newlyweds are being strip searched at the local lockup.

I've quoted before the words of a fine judge who told me once that legislators should never be allowed to mess with criminal law.

They just fuck it up.

The Sausage Factory

"Shit happens."

One of my clients was alleged to have said that, dismissively, after watching on television the news story about a murder he had committed a couple of hours earlier.  

Shit happened to him, too.  He'll have to serve 30 full years in prison before he's first eligible for parole.  If the law at the time had allowed a sentence of life without the possibility of parole, he'd have gotten it, but the reality is that the Parole Board will almost surely see to it that he serves something very close to that.  It certainly won't let him out after "just" 30 years.

It's been a long time since I handled that case, probably 17 years or so ago.  I haven't tracked my client's progress through Ohio's prison system, and I'm not looking him up now.  But I'd lay odds that he's at the Toledo Correctional Institution.  That's where most of the serious bad guys from Toledo end up.  For its own reasons, the prison system mostly prefers to put prisoners close to their homes.

Shit also happened to Keith Dressel, too.  He was a detective in the Toledo Police Department.  The shit in his case was Robert Jobe who shot Dressel to death while Dressel was trying to arrest him.  Although Jobe was only 14 at the time of the killing, the state tried him as an adult, attempted to convict him of aggravated murder so that he could get sentenced to life without the possibility of parole.  The jury said no, it's simple murder (plus a firearm specifiction).  That means 18 to life.  His first parole hearing will be in 2024. The Parole Board won't let him out then, either.  Shit happens.

Then there's the officer's widow, Danielle.  Her husband's murder was obviously traumatic.  Shit that happened to her.  I've heard stories about her continuing bitterness.  She wanted, they say, young Jobe to get death, which wasn't a legal option.  She's embittered at the system, they say, that insists on giving rights to people who are charged with hurting cops.  These are stories, word on the street.  I've never met her.  I don't pretend to know the depth of her pain and the bitterness she feels.  But some of it is public.

I wrote this, in a different context, back in October.

In Toledo, the other day, some guys were on trial for assaulting cops. The verdict didn't go as the state (and the cops) hoped. See, the jury just didn't believe the police version of what happened. That led to considerable community outrage, including this letter to the editor of the Blade from Danielle Dressel, the widow of an officer killed on the job. She writes:

The detectives were doing their jobs, working on an ongoing investigation, when they were called names by these attackers. The detectives identified themselves as police officers. These men not only physically attacked the detectives, but attempted to steal their guns and badges. Out of the seven men who attacked our officers, only three were tried, and only one was convicted of misdemeanor assault. This is tragic.

Don't misunderstand me. I feel for her. But she wasn't there. She doesn't know that the officers were called names. She doesn't know that they identified themselves. She doesn't know that the defendant's tried to steal guns and badges. She believes it because it's the police version. She believes it because she's on their side. She believes it because to her, all cops are victims. I understand why she might feel that way given her history. But her blind belief that whatever the police say is true, that infallibility (if not invulnerability) comes with the job, doesn't make it so.

The jury knew better. So the jury must be at fault.

Like I say, shit happens.

Jobe has been in prison for a couple of years.  He's been held in a youth facility because he was under 18.  But now he's legally an adult, so they're putting him in adult prison.  Toledo Correctional.  Danielle Dressel is, according to WTVG-TV, the local ABC station, "furious."

One of our comforts was knowing that, okay, he's going to get out in 17 years, but he's not here. He's away from us. And now we have to deal with the fact that he's right down the street.

Frankly, and I don't mean to be callous about this, I don't know what there is for her "to deal with." It's not like she's going to be bumping into Jobe at the grocery store or the gym.  They'll be "neighbors" only in the most attenuated sense of the word.  She won't see him.  He won't see her.

He's taken away my son's father. My son will never get to see him again. We will never get to see Keith again, yet Robert Jobe has the ability to see his mom anytime she wants to come visit.

So maybe that's it.  It'll be easier for Jobe to see his mother when she wants to see him.  But really, that's about Jobe's mother, not about Jobe.  I've lost a husband and my children have lost a father.  So the killer's family should suffer just as much.  Shit should happen.

The Hatfields and McCoys might have understood.  (Disclosure, I know some descendents on both sides of that feud.  Good people who don't hold a grudge.  That was then, this is now.)

And it's not just Danielle.  Dressel's mother is furious, too.  But she's not just fuming to the media.  

Keith's mother, Lorraine, is furious the family wasn't notified before Jobe was moved. But the state doesn't have to do that. Lorraine says she plans to take action and contact state lawmakers.

Make way for Dressel's Law.  Coming soon to a state near you.

I'm not sure what it will be.  

• Permanent banishment from the community where the crime occurred?
• Permanent banishment from the community where the criminal lived?
• The right of the putative victim or survivor of crime to determine the location of the punishment?
• Crime victim control over conditions of confinement?

Something else?

Whatever it is, shit will happen.

Because, you know, it does.  And it's not something to treat dismissively.  But do they have to dump it on everybody's lawn?