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Category Archives: Criminal Law

Virtual Acts, Real Consequences

Two stories caught my attention this week.  The first (see here and here) concerns two Dutch teenagers convicted for “virtual theft” and sentenced to a total 360 hours of community service for pressuring another teenager to transfer a virtual amulet and virtual mask to their account in the game RuneScape.  The court reasoned that the amulet and mask were goods under Dutch law, so their forced transfer is theft.  Apparently the defendants relied on more than virtual pressure to accomplish the crime–they “beat up and kicked their victim” and “threatened him with a knife.”

The second deals with a Japanese woman who, angered when her virtual husband in the game Maple Story divorced her, logged onto the game using the virtual-ex’s identity and password and killed his character.  Japanese police arrested her on suspicion of illegally accessing a computer and manipulating electronic data, crimes that carry penalties of up to 5 years in prison and $5,000 fines.  During police questioning the woman explained her actions:  “I was suddenly divorced, without a word of warning.  That made me so angry.”  The woman did not engage in real-world revenge.

Aggravated Harassment

Legal Blog Watch reports (via Sui Generis) that New York state is amending the crime of Aggravated Harassment to include electronic communication such as email and text messages.  Such amendments are necessary to create prosecutable cases that avoid the square-peg-in-a-round-hole nature of the government’s charge that Lori Drew violated the Computer Fraud and Abuse Act  in connection with Megan Meier’s suicide.

Lower Drinking Age?

Would lowering the drinking age to 18 reduce the amount of binge drinking on college campuses? The Amethyst Initiative, started by the former president of Middlebury College, believes it would, as reported in College chiefs urge new debate on drinking age. The Initiative, represents presidents from about 100 colleges and universities, is “calling on lawmakers to consider lowering the drinking age from 21 to 18.” The proposal carries counter-intuitive appeal: reduce problem drinking by reducing legal impediments to acquiring and possessing alcohol. Mothers Against Drunk Driving opposes the proposal because it believes it would lead to more fatal car crashes; “MADD officials are even urging parents to think carefully about the safety of colleges whose presidents have signed on.”

I don’t know what impact a lower drinking age would have on binge drinking on campuses. Doing so would remove the forbidden-fruit allure of under-age drinking for those over 18, and that would somewhat change the social dynamic that leads to problem drinking. Since both typically occur when one is 18 alcohol consumption would still be linked to going off to college and experiencing greater freedom from adult supervision. One could argue that the drinking age should be lowered to 16, to enable teenagers to experience legal drinking when most are still living under their parents’ roofs. The causes of binge drinking are complex and drinking age is just one factor.

This topic comes up often in class. Not surprisingly, most students oppose the current laws. Students routinely ignore and subvert them. Anecdotal experience tells me that more than 50% of underaged students possess a phony ID at some point before they turn 21, which puts them at risk for arrest and a criminal record. Laws that criminalize a large number of people for customary behavior encourage disrespect for law: “when beer is outlawed, only outlaws will have beer.”

One cannot ignore MADD’s point about traffic fatalities. I believe (relying on someone I trust who researched this subject extensively a few years ago) there was a direct correlation between raising drinking ages to 21 and reducing alcohol-related fatalities. Opposing MADD is political suicide for state legislators.

This is unfortunate. It takes off the table solutions other than more rigorous law enforcement and stiffer penalties for underage drinkers. These don’t work, as our experience with harsher drug laws shows. It’s a plain fact that college students are going to drink. Solutions that don’t start with this fact–solutions of the “just say no” variety–are doomed to fail.

Solitary: Followup

There’s an update to the story about the two Louisiana prisoners who’ve spent 36 years in solitary confinement. It comes via an NBC News press release:

NBC News has confirmed that after 36 years in solitary confinement, inmates Herman Wallace and Albert Woodfox have been moved out of solitary into a shared dormitory setting at Louisiana State Penitentiary at Angola with approx 17 other inmates. The rules and requirements of their new living situation are unclear but they are now allowed outside for a few hours a day in a group setting. Wallace and Woodfox are still appealing their original convictions and maintain their innocence but at least the issue of their “Cruel and Unusual punishment” in solitary confinement seems to be resolved for now. Wallace and Woodfox were moved into their new living quarters on Monday March 24, 2008. Their civil and criminal cases are still pending.

The press release came to me from my sister-in-law twice-removed (or whatever her kinship is) who produced the original story. Kudos to her for exposing this story to the light.

Solitary

Here’s an NBC News story about two inmates who’ve spent 36 years–that’s not a typo–in solitary confinement in Louisiana’s Angola prison. My first legal job involved representing prisoners in the Massachusetts prison system, and I had many clients in solitary. The first client I represented in a disciplinary hearing spent five years in solitary, which I considered to be inconceivably long–and I represented that client in 1975, an inconceivably long time ago, when the subjects of this story had already been in solitary for almost three years. Like most worthwhile TV news stories this one deserves more depth. Full disclosure: I am related by marriage to the the producer of the story.

No explanation

Steve Kazmierczak, the Northern Illinois University graduate student who opened fire in a lecture hall this week, killing five students and wounding many more before killing himself, was not the archetypal brooding loner. Reportedly he “was revered by the faculty and staff and students alike,” “nice,” “engaging,” “motivated” and “responsible.” He purchased and registered the murder weapons, a 12-gauge shotgun and 9-millimeter pistol, legally from a gun dealer. He had recently stopped taking medication for an as-yet unreported condition and had shown some erratic behavior, but nothing that raised alarms. He left no note and there is no reported connection between Kazmierczak and the students he killed. We like to think that there is always something that could have been done, but that’s not so here. On the continuum of senseless killings, these murders are at the extreme.

What Was He Thinking? Department

USA Today reports that Steven Zahorksy of Bridgeport, Connecticut posted an ad on Craigslist–”Mary Jane in Fairfield County”–offering to sell half-ounces of “A Plus” marijuana for $220 and “B Plus” marijuana for $160. A Stamford police officer spotted the ad, arranged to meet Zahorsky at an I-95 rest stop, and there exchanged $320 cash for three-quarters of an ounce. (I guess there was a $10 discount for the extra quarter-ounce.) Police then arrested Zahorsky whose reported response was, in essence “Wha? Marijuana? Whaddya mean? I stopped for a burger.” In his wallet was $320, in his cellphone was the officer’s phone number, and in his apartment were more marijuana, hallucinogenic mushrooms, a digital scale (are triple-beam balances too old-school) and a shotgun. The moral of this story is _____________________.

Georgia Teenager Freed

Genarlow Wilson, serving a ten-year prison sentence for engaging in consensual oral sex with a 15 year-old girl at a New Year’s Eve party when he was a 17 year-old high school student, has been freed by the Georgia Supreme Court. The court ruled 4-3 that his sentence constituted cruel and unusual punishment. His mandatory ten-year sentence for aggravated child molestation “horrified” his jury, which did not know the penalty attached to their guilty verdict, and focused considerable attention on the problems inherent in mandatory sentences and in overbroad child-protection laws. Matt Towery, the Georgia legislator who drafted the original bill that formed the basis for the law under which the court convicted Wilson, explains that the “legislation would never had impacted Genarlow Wilson had it passed into law as it was originally written.” Towery’s draft bill was merged with another that raised the age of consent in Georgia from 14 to 16, turning Wilson’s consensual partner into a child victim. The revised bill included a “Romeo and Juliet” provision that treated consensual sex between a 14 or 15 year-old victim and a defendant who was not more than three years older as a misdemeanor, but this provision did not apply to oral sex. Put such a law in the hands of a zealous “law and order” prosecutor incapable of looking past the letter of the law and this is the result.

Janus-Faced

Just the headline of Adam Cohen’s op-ed piece in today’s New York Times–Larry Craig’s Great Adventure: Suddenly, He’s a Civil Libertarian–put me in mind of an old joke: “A liberal is a conservative who has been arrested.” Indeed Cohen offers up this punch line as he calls Craig to task for his belated embrace of civil rights after a senate career in which he supported judicial nominees eager to dial them back. What Cohen doesn’t mention is the other part of the joke: “And a conservative is a liberal who has been mugged.”