Saturday, November 7, 2009

The laws, not the technicalities, are the problems

In her Wednesday, October 21, 2009 column in the News & Observer, titled “File this under 2 wrongs,” Ruth Sheehan blames technicalities in the law for what appears to be two miscarriages of justice. The cases referenced in her article are the release of 20 violent felons who were sentenced to life, and consequences for defense attorney Johnny Gaskins, who was convicted of depositing funds in a way to avoid IRS notification of the deposits.

With regards to the release of felons, laws were enacted by the North Carolina General Assembly in the 1970’s that defined the length of a life sentence as being 80 years. This was followed by a law which cut sentences in half, which in essence meant that defendants sentenced to life would be required to serve a maximum of no more than 40 years behind bars. Members of the General Assembly, who should have been looking out for the welfare of the public, did not consider the consequences of their actions in passing this law, which is straightforward. The Court of Appeals and the state’s Supreme Court, agreed with the inmate who ignited a firestorm when he proclaimed he had served his “life” sentence, as defined by laws passed in the 70’s. His release, as is the release of others, is not due to a “technicality” but rather to sloppy legislating.

Instead of placing blame on the 1970’s North Carolina General Assembly, the media is directing the public’s ire towards the inmates who stand to benefit from its gross miscue. Had the state’s senators and representatives been more attentive and committed to conscientiously fulfilling their duties, than enriching themselves personally and professionally, there is less likelihood that such an unintentional outcome would present itself. The “lifer” who was incarcerated and probably read law books and newspapers, was obviously more motivated to achieving his goals than the politicians were in passing sound legislation.

As for Attorney Gaskins, the federal law is clear that it is a crime to try and deceive a banking institution in an attempt to avoid triggering IRS notification when making large cash deposits. In this case, the severity of the crime, I feel, should be conditional with the intent of the depositor. Because Mr. Gaskins reported all monies deposited and paid taxes on them, it is obvious that his “criminal” manner of depositing was not for the purpose of defrauding the IRS of taxes due. Mr. Gaskins definitely deserves leniency, and if anything, what he did should be categorized as nothing more than a misdemeanor. What Mr. Gaskins did, as determined by the jury, was clearly in violation of the law. It is not its interpretation that needs changing, but rather the law, possibly to include intent and/or fraud.

So, I respectfully disagree with Ms. Sheehan that the release of prisoners and Mr. Gaskins’ conviction on depositing practices were due to technicalities. In these cases the laws were unambiguous and correctly interpreted by the courts and the jury. The lesson to be taken from these episodes is that the lawmakers of the state need to be conscientious, to take their duties seriously, and to pass laws that will protect the public and assure that people are not unjustly punished.


William L. Anderson said...

Keep in mind that "structuring" is a "crime" only because the government has declared it to be. This "crime" came about because Congress wanted to be able to give federal prosecutors more leverage in dealing with people accused of other crimes.

"Structuring" was never intended to be a stand-alone "crime" and why is the "criminal" number $10,000? Why not $15,000 or $5,000? We are dealing with arbitrary numbers here.

Once upon a time in America, a "crime" was classified as malum in se in which the act itself was seen as criminal. However, most federal "crime" fall into the malum prohibitum category in which an act is a "crime" because the government says it is so. There is a huge difference between the two.

In the first case, the law generally is clear and well-understood. In the second, we are dealing with vague statutes that are written not to protect the public, but to make members of the public more vulnerable to the whims of a prosecutor.

Unfortunately, people like yourself have bought into the malum in se categories as though they were meaningful in the historical sense of law. They are not. Malum in se is relatively new to American law, although it was a tool of tyrants like Caligula and Nero. Caligula used to post his "laws" in tiny print on boards erected so high that no one could read what the new laws might say. Thus, a citizen would be under a cloud as he or she did not know if an action fell into legal bounds or not.

Federal criminal law is not much better. Federal prosecutors have been able to twist the fraud and racketeering statutes to include actions that are legal and moral and bundle them into these fictitious statutes. No American can keep up with the thousands of federal criminal laws, yet the courts have ruled that "ignorance is no excuse," so I would say that the federal government has taken us back to Caligula. Not a proud time in the history of law in this country.

Nifong Supporter said...

To William:

Thanks for the interesting and insightful professorial comments. Much appreciated.