Most low-income Americans cannot afford a lawyer to defend their legal
interests, no matter how urgent the issue. Unless they are in a criminal case,
most have no access to help from government-financed lawyers either.
In civil proceedings like divorces, child support cases, home foreclosures,
bankruptcies and landlord-tenant disputes, the number of people representing
themselves in court has soared since the economy soured. Experts estimate that
four-fifths of low-income people have no access to a lawyer when they need one.
Research shows that litigants representing themselves often fare less well than
those with lawyers. This “justice gap” falls heavily on the poor, particularly
in overburdened state courts.
There is plenty the government, the legal profession and others can do to
improve this shameful state of affairs. With the economic downturn, only around
two-thirds of law school graduates in 2010 got jobs for which a law degree is
required, the lowest rate since 1996. That leaves the other third — close to
15,000 lawyers — who, with financial support from government and the legal
profession, could be using their legal expertise to help some of those who need
representation.
While the Constitution requires that defendants in criminal cases be provided a
lawyer, there is no such guarantee in civil cases. The Legal Services
Corporation, created by Congress, gives out federal grants that provide the bulk
of support for legal aid to the poor. Over the decades, that budget has shrunk —
it was $404 million in 2011, about one-third less than it was 15 years ago,
adjusted for inflation. The House Appropriations Committee has proposed reducing
that to $300 million for 2012. The cut would be devastating; the budget should,
instead, be increased.
Half of the people who seek help from legal aid offices are already turned away.
Some offices are so understaffed that they must engage in triage, so that in,
say, domestic abuse cases, they will only assist someone seeking a restraining
order against a violent partner if that person is in immediate danger of being
hurt again.
State bar associations could help address these needs by requiring lawyers to
report their pro bono service — such disclosure would likely increase many
lawyers’ service to the recommended 3 percent to 5 percent of their paid work.
Another step is to allow nonlawyers into the mix. The American Bar Association
has insisted that only lawyers can provide legal services, but there are many
things nonlawyers should be able to handle, like processing uncontested
divorces.
Legal education must also change. The Carnegie foundation recommends that all
law students be given experience in public advocacy, of which providing legal
services is one kind. At the same time, law schools should expand loan
forgiveness programs for legal services lawyers. A few have such programs, but
most schools do not — and not enough schools view tuition as a source to help
support future legal-services lawyers.
The justice gap is widening. Government, law schools and the profession need to
work together to redesign and fortify the grossly deficient legal services
system.
That children under the age of 5 make it through the day, more often than
not, without grievous bodily injury is something of a miracle, one of the many
that present themselves to people once they become parents. But even young
children have an instinct for self-preservation, which is why I find it even
more mystifying how rarely those creatures — stick-wielding, stone-chucking,
body-flinging — actually harm others.
The inevitable close calls leave even watchful parents in a guilty cold sweat,
praying in gratitude to whatever playground deity intervened before push turned
to shove-that-preschooler-right-off-the-slide.
And then, every once in a while, the magic of close calls fails. The stick meets
eye, the sled careens into shins — or, as happened in April 2009 on East 52nd
Street, a 4-year-old on training wheels collides with a woman using a walker.
That woman, Claire Menagh, broke her hip (and, several months later, died of
unrelated causes, at age 87). Her estate sued not only the two mothers whose
4-year-olds had been riding their bicycles on the sidewalk, but the children as
well, for negligence.
This month, a judge ruled that the case against the 4-year-old girl involved
could proceed (the family of the boy named in the suit did not file a motion for
dismissal). Reading the judge’s ruling — which cites cases dating to 1928, and
suggests that a 4-year-old could be held to the standard of some mythical
“reasonable child” of that age — I kept flashing back to images from my
college-era art history class: medieval baby Jesus, looking more like miniature
adult Jesus, a representation of children as small adults so outdated as to seem
almost incomprehensible through the lens of modernity.
Even as we expect our children to be ever more precocious — bilingual before
kindergarten; too old at 4 for picture books, thank you; capable of showing us
around our iPhones — somehow we never expect them to be ever more adult;
certainly not so adult as to be potentially liable for negligence. One of my own
4-year-old twin sons not only believes Batman lives and breathes, but assumes he
will someday grow up to be Batman. I have little fantasy that he is “reasonably”
anything in particular when it comes to his judgment.
On Friday, parents and others in the neighborhood where the accident occurred
shook their heads at the absurdity of suing someone so young, even as they
acknowledged that the sidewalk was, as Meg Chamberlin, who lives on the block,
put it, “a gray zone.”
In the condensed spaces of New York, where bedrooms double as playrooms and
kitchens as home offices, the sidewalk is both throughway and backyard, which
city officials recognize: it is indeed legal for children 12 and younger to ride
bikes on the sidewalk. One resident of the apartment complex, who said she did
not want to be quoted because of tensions there, said the community had long
been divided between parents and nonparents over issues like how late children
could play in the back of the building and how loudly.
Ms. Chamberlin, a mother of children ages 3 and 5, said the lawsuit had only
heightened her own sensitivities about how she parents in the city.
“You don’t want to be superhovering parents,” she said; but she no longer feels
she can take the chance that her child will veer unexpectedly into those shared
spaces. Caught up in conversation, Ms. Chamberlin did not notice that an older
woman and her companion had halted, blocked in their path by her stroller.
“Excuse me,” the older woman said loudly, at which point Ms. Chamberlin hastily
stepped aside, pulling the stroller. Resolution reached; lawsuit avoided.
The sheer density of New York — all that crowding, all those eyes — is what
makes parenting often feel like a hotly contested performance. “On playgrounds,
I mostly spend my time having imaginary arguments with other parents who are
secretly judging me,” the singer Jonathan Coulton, a Brooklyn parent, recently
posted on Twitter.
Self-consciously, a mother or father intervenes in children’s disputes at the
risk of being deemed a helicopter parent; or maybe that parent does not hover,
indulging in a rare moment of conversation, or God forbid, a complete train of
thought, at the risk of being judged a bad caregiver — or, worse, having a child
sued for negligence.
At MacArthur Park on East 49th Street, the closest playground to where the
accident occurred, a yellow ribbon had been strung around the gate on Friday,
with a surprisingly lawyerly caveat: Enter at Your Own Risk. The ribbon had a
Halloween twist — spooky images in black were printed there as well — but it
seemed, that day, appropriate for any playground at any time of year. Young
children, so fragile, so tender, can also be a menace, a force of nature, like a
tornado — and wholly unpredictable, like tornadoes.
Accidents happen; we all try not to get carried away.
May 23, 2009
The New York Times
By WILLIAM YARDLEY
SEATTLE — A woman with pancreatic cancer has become the first person to die
under a law passed last year allowing doctor-assisted suicide in Washington,
according to an advocacy group that pushed for the law.
The woman, Linda Fleming, 66, of Sequim, Wash., died Thursday evening after
taking lethal medication prescribed by a doctor under the law, according to a
news release by the group, Compassion and Choices of Washington. The release
said Ms. Fleming received a diagnosis of Stage 4 pancreatic cancer a month ago,
and “she was told she was actively dying.”
Ms. Fleming was quoted in the release as saying: “I am a very spiritual person,
and it was very important to me to be conscious, clear-minded and alert at the
time of my death. The powerful pain medications were making it difficult to
maintain the state of mind I wanted to have at my death.”
In November, voters approved the Death with Dignity Act, 58 percent to 42
percent, making Washington the second state — after Oregon — to allow assisted
suicide. The laws in both states have been deeply controversial, particularly
among religious groups. Washington passed its law after the United States
Supreme Court in 2006 rejected an effort by the Justice Department to block
Oregon’s law, which took effect in 1998.
In Montana, a state judge ruled in December that doctor-assisted suicide was
legal under the state’s Constitution, but the state is appealing that decision.
Steve Hopcraft, a spokesman for Compassion and Choices, said the group was “not
leading a campaign in any other state right now.”
The Washington and Oregon laws allow terminally ill patients who are at least 18
and have been found mentally competent to self-administer lethal drugs under the
prescription of a doctor.
In Oregon, 401 people used the law through 2008. Since the law took effect in
Washington in March, six prescriptions for lethal medication have been
dispensed, but a spokesman for the State Department of Health, Donn Moyer, said
it had not received any forms saying a patient had used the medication. Under
the law, doctors who write such a prescription have 30 days to report that it
had been used.
Mr. Moyer, saying privacy laws prevented the state from providing information
about a specific death, said he could not confirm Ms. Fleming’s death.
In Oregon, not everyone who received a prescription has taken the drugs.
Some critics fear that physician-assisted suicide will pressure people with
terminal illnesses who have low incomes or are disabled to end their lives to
avoid becoming a financial burden to loved ones. Supporters cite studies that
they say have refuted that idea.
Ms. Fleming, who was divorced, filed for bankruptcy in 2007 with $5,800 in
credit card debt, according to court records and a lawyer who had represented
her, Hugh Haffner.
Mr. Haffner said that when she filed for bankruptcy, Ms. Fleming, a former
social worker, had been unable to work because of a disability and lived in
subsidized housing on $643 in monthly disability checks.
Virginia Peterhansen, who said she had befriended Ms. Fleming about six months
ago through a book group, said Ms. Fleming bought a 1982 Oldsmobile station
wagon days before she was told she had cancer and that she had hoped to learn to
contra dance.
Robb Miller, the executive director of Compassion and Choices of Washington,
said that he had spoken to Ms. Fleming and that, although he was unaware of her
bankruptcy filing, her situation presented “none of the red flags” that might
have given his group pause in supporting her. He said Ms. Fleming’s two children
and her former husband “were involved and supported her choice.”
In the late
summer of 1985, Kurt Parrott, a 15-year-old who loved baseball and Pac-Man, was
thrown from his motorcycle in Opelika, Ala. The buckle of his helmet failed, and
he died when his bare head hit the pavement. Mr. Parrott’s mother sued the
Italian company that made the helmet, and an Alabama court awarded her $1
million.
The company refused to pay. And last year, when lawyers for the Parrott family
tried to collect in Italy, they were blocked by the Italian Supreme Court.
The court said that a peculiarity of American law — punitive damages — was so
offensive to Italian notions of justice that it would not enforce the Alabama
judgment.
Most of the rest of the world views the idea of punitive damages with alarm. As
the Italian court explained, private lawsuits brought by injured people should
have only one goal — compensation for a loss. Allowing separate awards meant to
punish the defendant, foreign courts say, is a terrible idea.
Punishments, they say, should be meted out only by the criminal justice system,
with its elaborate due process protections and disinterested prosecutors. It is
not fair, they add, to give plaintiffs a windfall beyond what they have lost.
And the ad hoc opinions of a jury, they say, are a poor substitute for the
considered judgments of government safety regulators.
Some common-law countries do allow punitive damages, though in limited
circumstances and modest amounts. In the United States, by contrast, enormous
punitive awards are relatively common, although they are often reduced or
eliminated on appeal. Last month, for instance, the United States Supreme Court
heard arguments in the Exxon Valdez case, where a jury’s initial award of $5
billion was later reduced to $2.5 billion.
Still, such awards terrify foreign courts.
“The U.S. practice of permitting a lay jury to exercise largely discretionary
judgment with limited constraints in awarding punitive damages is regarded
almost universally outside the U.S. with a high degree of disfavor,” said Gary
Born, an American lawyer who works in London.
Foreign lawyers and judges are quick to cite particularly large American awards.
Julian Lew, a barrister in London, recalled a Mississippi court’s $400 million
punitive award against a Canadian company in 1995 with scorn. “It did bring
America into total and utter contempt around the world,” Mr. Lew said.
Yet there are signs that the gap between the United States and the rest of the
world is narrowing, as American courts and legislatures start to limit punitive
awards and other countries start to experiment with them.
Punitive damages have deep roots in American and English common law, but their
nature has changed here over time. “Until well into the 19th century,” Justice
John Paul Stevens of the Supreme Court wrote in 2001, “punitive damages
frequently operated to compensate for intangible injuries” like pain and
suffering or emotional distress.
These days, driven by the structure of the American civil justice system,
entrepreneurial plaintiffs’ lawyers and the populism they embrace, punitive
damages are used to send messages to large corporations, to fill gaps in
regulation and to reward successful plaintiffs with multiples of what they have
lost. Distinctive features of the American legal system — civil juries, class
actions, contingency fees and the requirement that each side bear its own
lawyers’ fees — all play a role in amplifying punitive damages.
Punitive damages are so embedded in the American legal system that the rationale
for them is rarely explored. One of the best explanations came from a German
Supreme Court decision in 1992, which said the concept had four main purposes:
to punish the offender for “uncivilized conduct,” to deter the offender and
others from doing similar things, to reward the plaintiff for enforcing the law
and so improve “general law and order,” and to supplement inadequate
compensatory damages.
The case decided by the German court, like the one involving Kurt Parrott, was
an effort to enforce a judgment from an American court against a defendant who
had no assets in this country and refused to pay. Ordinarily, it is a relatively
routine matter to ask a foreign court to enforce an American court judgment. Not
so when punitive damages are involved, even where the conduct in question is
shocking.
The German case, for instance, involved sexual abuse. In 1985, a state court in
Stockton, Calif., entered a $750,000 judgment, including $400,000 in punitive
damages, against Eckhard Schmitz for abusing a 13-year-old boy. Mr. Schmitz
would not pay, and he fled to Germany while he was appealing a 13-year criminal
sentence for engaging in sex with other teenage boys.
But the German court nonetheless said that the dangers of allowing punitive
awards outweighed the benefits. The plaintiff should not get a windfall, the
court said, and should not be allowed to act as a “ ‘private public prosecutor’
infringing the German state’s monopoly on punishment with its associated
safeguards.”
The German court did enforce the $350,000 compensatory award. The Italian court,
by contrast, refused to enforce any of the $1 million award to Kurt Parrott’s
mother because the Alabama judge had not said how much of it was for
compensation and how much for punishment.
But “the tide may be about to change,” John Y. Gotanda, a law professor at
Villanova, wrote last year in The Columbia Journal of Transnational Law.
“Traditional hostility to American awards of such damages may be dissipating.”
That is partly a consequence of changes here. American courts and legislatures
are experimenting with ways to limit punitive damages, often in response to
lobbying and litigation from business groups that say huge punitive awards are
arbitrary, unfair and hurt the American economy.
Five states — Louisiana, Massachusetts, Nebraska, New Hampshire and Washington —
ban or severely limit punitive damages. Others restrict the amounts awarded.
Some states, responding to the criticism that the awards are a windfall for the
plaintiffs, require that a part be turned over to the states.
The United States Supreme Court has in the last decade or so started to impose
its own limits. In 1996, it ruled that a $2 million punitive award in an Alabama
consumer fraud case involving a $4,000 compensatory award was excessive, given
that the harm was merely economic, far exceeded the maximum punishment the state
could have imposed and was disproportionate to the compensatory award.
In 2003, the court said that the ratio between punitive and compensatory awards
must typically be in the single digits to be constitutional. It struck down a
$145 million punitive award in an insurance fraud case where the compensatory
damages had been $1 million.
At the same time, courts in a few countries around the world are expanding the
availability of punitive damages.
The Tribunal Supremo in Spain, for instance, enforced a $1.3 million punitive
award in a Texas trademark and unfair competition case in 2001. The Supreme
Court of South Australia in 2005 indicated that it would consider enforcing
American punitive awards where they involved “brazen and fraudulent conduct.”
Perhaps most notably, the Canadian Supreme Court in 2003 upheld a $50,000
punitive award in a Florida land dispute, saying it “does not violate our
principles of morality.”
Justice Louis LeBel explained, with an air of resignation, why this was so,
saying there was nothing in the American approach that was inherently offensive
to Canadian ideas of basic fairness.
“It is simply a different policy choice,” he wrote, “and it affords U.S.
plaintiffs a level of protection of which they ought not necessarily to be
deprived just because the defendant’s assets are here.”
Even in Germany, which flatly rejected an American punitive award in 1992, there
are signs of change, said Franco Ferrari, a law professor at the University of
Verona in Italy. “The traditional compensatory regime has been permeated by
punitive elements,” he said.
In cases involving a fake interview with Princess Caroline of Monaco,
intellectual property and employment discrimination, he said, German courts have
started to award damages that seem to be meant to punish as well as compensate.
Kurt Parrott’s mother, Judy Glebosky, learned about the Italian Supreme Court’s
decision from a reporter. Her lawyers had turned the matter over to an
international collection agency and had not bothered to tell her that she had
lost.
The case seemed simple to her.
“I bought Kurt a helmet that was supposed to be the best,” Ms. Glebosky said.
“It did not perform, and I lost Kurt.”
Questions about punitive damages seemed academic to her, if not heartless.
“A million-dollar award is really nothing,” she said. “It’s really not enough to
punish any large company in this day and age, and it certainly does not bring
back Kurt.”
October 17, 2007
By ADAM LIPTAK
The New York Times
American Exception
Without Parole
This is the first in an occasional series of articles that will examine
commonplace aspects of the American justice system that are actually unique in
the world.
BIRMINGHAM, Ala. — In December, the United Nations took up a resolution
calling for the abolition of life imprisonment without the possibility of parole
for children and young teenagers. The vote was 185 to 1, with the United States
the lone dissenter.
Indeed, the United States stands alone in the world in convicting young
adolescents as adults and sentencing them to live out their lives in prison.
According to a new report, there are 73 Americans serving such sentences for
crimes they committed at 13 or 14.
Mary Nalls, an 81-year-old retired social worker here, has some thoughts about
the matter. Her granddaughter Ashley Jones was 14 when she helped her boyfriend
kill her grandfather and aunt — Mrs. Nalls’s husband and daughter — by stabbing
and shooting them and then setting them on fire. Ms. Jones also tried to kill
her 10-year-old sister.
Mrs. Nalls, who was badly injured in the rampage, showed a visitor to her home a
white scar on her forehead, a reminder of the burns that put her into a coma for
30 days. She had also been shot in the shoulder and stabbed in the chest.
“I forgot,” she said later. “They stabbed me in the jaw, too.”
But Mrs. Nalls thinks her granddaughter, now 22, deserves the possibility of a
second chance.
“I believe that she should have gotten 15 or 20 years,” Mrs. Nalls said. “If
children are under age, sometimes they’re not responsible for what they do.”
The group that plans to release the report on Oct. 17, the Equal Justice
Initiative, based in Montgomery, Ala., is one of several human rights
organizations that say states should be required to review sentences of juvenile
offenders as the decades go by, looking for cases where parole might be
warranted.
But prosecutors and victims’ rights groups say there are crimes so terrible and
people so dangerous that only life sentences without the possibility of release
are a fit moral and practical response.
“I don’t think every 14-year-old who killed someone deserves life without
parole,” said Laura Poston, who prosecuted Ms. Jones. “But Ashley planned to
kill four people. I don’t think there is a conscience in Ashley, and I certainly
think she is a threat to do something similar.”
Specialists in comparative law acknowledge that there have been occasions when
young murderers who would have served life terms in the United States were
released from prison in Europe and went on to kill again. But comparing legal
systems is difficult, in part because the United States is a more violent
society and in part because many other nations imprison relatively few people
and often only for repeat violent offenses.
“I know of no systematic studies of comparative recidivism rates,” said James Q.
Whitman, who teaches comparative criminal law at Yale. “I believe there are
recidivism problems in countries like Germany and France, since those are
countries that ordinarily incarcerate only dangerous offenders, but at some
point they let them out and bad things can happen.”
The differences in the two approaches, legal experts said, are rooted in
politics and culture. The European systems emphasize rehabilitation, while the
American one stresses individual responsibility and punishment.
Corrections professionals and criminologists here and abroad tend to agree that
violent crime is usually a young person’s activity, suggesting that eventual
parole could be considered in most cases. But the American legal system is more
responsive to popular concerns about crime and attitudes about punishment, while
justice systems abroad tend to be administered by career civil servants rather
than elected legislators, prosecutors and judges.
In its sentencing of juveniles, as in many other areas, the legal system in the
United States goes it alone. American law is, by international standards, a
series of innovations and exceptions. From the central role played by juries in
civil cases to the election of judges to punitive damages to the
disproportionate number of people in prison, the United States is an island in
the sea of international law.
And the very issue of whether American judges should ever take account of
foreign law is hotly disputed. At the hearings on their Supreme Court
nominations, both John G. Roberts Jr. and Samuel A. Alito Jr. said they thought
it a mistake to consider foreign law in constitutional cases.
But the international consensus against life-without-parole sentences for
juvenile offenders may nonetheless help Ms. Jones. In about a dozen cases
recently filed around the country on behalf of 13- and 14-year-olds sentenced to
life in prison, lawyers for the inmates relied on a 2005 Supreme Court decision
that banned the execution of people who committed crimes when they were younger
than 18.
That decision, Roper v. Simmons, was based in part on international law. Noting
that the United States was the only nation in the world to sanction the juvenile
death penalty, Justice Anthony M. Kennedy, writing for the majority, said it was
appropriate to look to “the laws of other countries and to international
authorities as instructive” in interpreting the Eighth Amendment’s prohibition
of cruel and unusual punishment.
He added that teenagers were different from older criminals — less mature, more
susceptible to peer pressure and more likely to change for the better. Those
findings, lawyers for the juvenile lifers say, should apply to their clients,
too.
“Thirteen- and 14-year-old children should not be condemned to death in prison
because there is always hope for a child,” said Bryan Stevenson, the executive
director of the Equal Justice Initiative, which represents Ms. Jones and several
other juvenile lifers.
The 2005 death penalty ruling applied to 72 death-row inmates, almost precisely
the same number as the 73 prisoners serving life without parole for crimes
committed at 13 or 14.
The Supreme Court did not abolish the juvenile death penalty in a single stroke.
The 2005 decision followed one in 1988 that held the death penalty
unconstitutional for those who had committed crimes under 16.
The new lawsuits, filed in Alabama, California, Florida, Missouri, North
Carolina and Wisconsin, seek to follow a similar progression.
“We’re not demanding that all these kids be released tomorrow,” Mr. Stevenson
said. “I’m not even prepared to say that all of them will get to the point where
they should be released. We’re asking for some review.”
In defending American policy in this area in 2006, the State Department told the
United Nations that sentencing is usually a matter of state law. “As a general
matter,” the department added, juvenile offenders serving life-without-parole
terms “were hardened criminals who had committed gravely serious crimes.”
Human rights groups have disputed that. According to a 2005 report from Human
Rights Watch and Amnesty International, 59 percent of the more than 2,200
prisoners serving life without parole for crimes they committed at 17 or younger
had never been convicted of a previous crime. And 26 percent were in for felony
murder, meaning they participated in a crime that led to a murder but did not
themselves kill anyone.
The new report focuses on the youngest offenders, locating 73 juvenile lifers in
19 states who were 13 and 14 when they committed their crimes. Pennsylvania has
the most, with 19, and Florida is next, with 15. In those states and Illinois,
Nebraska, North Carolina and Washington, 13-year-olds have been sentenced to die
in prison.
In most of the cases, the sentences were mandatory, an automatic consequence of
a murder conviction after being tried as an adult.
A federal judge here will soon rule on Ms. Jones’s challenge to her sentence.
Ms. Poston, who prosecuted her, said Ms. Jones was beyond redemption.
“Between the ages of 2 and 3, you develop a conscience,” Ms. Poston said. “She
never got the voice that says, ‘This is bad, Ashley.’ ”
“It was a blood bath in there,” Ms. Poston said of the night of the murders
here, in 1999. “Ashley Jones is not the poster child for the argument that life
without parole is too long.”
In a telephone interview from the Tutwiler Prison for Women in Wetumpka, Ala.,
Ms. Jones said she did not recognize the girl who committed her crimes.
According to court filings, her mother was a drug addict and her stepfather had
sexually molested her. “Everybody I loved, everybody I trusted, I was betrayed
by,” Ms. Jones said.
“I’m very remorseful about what happened,” she said. “I should be punished. I
don’t feel like I should spend the rest of my life in prison.”
Mrs. Nalls, her grandmother, had been married for 53 years when she and her
husband, Deroy Nalls, agreed to take Ashley in. She was “a problem child,” and
Mr. Nalls was a tough man who took a dislike to Ashley’s boyfriend, Geramie
Hart. Mr. Hart, who was 16 at the time of the murders, is also serving a life
term. Mrs. Nalls said he deserved a shot at parole someday as well.
(a) A
person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both.
(b) Each party to an offense may be charged with commission of the offense.
(c) All traditional distinctions between accomplices and principals are
abolished by this section, and each party to an offense may be charged and
convicted without alleging that he acted as a principal or accomplice.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by
Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER. (a) A person is
criminally responsible for an offense committed by the conduct of another if:
(1) acting with the kind of culpability required for the offense, he causes or
aids an innocent or nonresponsible person to engage in conduct prohibited by the
definition of the offense;
(2) acting with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense; or
(3) having a legal duty to prevent commission of the offense and acting with
intent to promote or assist its commission, he fails to make a reasonable effort
to prevent commission of the offense.
(b) If, in the attempt to carry out a conspiracy to commit one felony, another
felony is committed by one of the conspirators, all conspirators are guilty of
the felony actually committed, though having no intent to commit it, if the
offense was committed in furtherance of the unlawful purpose and was one that
should have been anticipated as a result of the carrying out of the conspiracy.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by
Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.03. DEFENSES EXCLUDED. In a prosecution in which an actor's criminal
responsibility is based on the conduct of another, the actor may be convicted on
proof of commission of the offense and that he was a party to its commission,
and it is no defense:
(1) that the actor belongs to a class of persons that by definition of the
offense is legally incapable of committing the offense in an individual
capacity; or
(2) that the person for whose conduct the actor is criminally responsible has
been acquitted, has not been prosecuted or convicted, has been convicted of a
different offense or of a different type or class of offense, or is immune from
prosecution.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by
Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
SUBCHAPTER
B. CORPORATIONS AND ASSOCIATIONS
Sec. 7.21.
DEFINITIONS. In this subchapter:
(1) "Agent" means a director, officer, employee, or other person authorized to
act in behalf of a corporation or association.
(2) "High managerial agent" means:
(A) a partner in a partnership;
(B) an officer of a corporation or association;
(C) an agent of a corporation or association who has duties of such
responsibility that his conduct reasonably may be assumed to represent the
policy of the corporation or association.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by
Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.22. CRIMINAL RESPONSIBILITY OF CORPORATION OR ASSOCIATION. (a) If conduct
constituting an offense is performed by an agent acting in behalf of a
corporation or association and within the scope of his office or employment, the
corporation or association is criminally responsible for an offense defined:
(1) in this code where corporations and associations are made subject thereto;
(2) by law other than this code in which a legislative purpose to impose
criminal responsibility on corporations or associations plainly appears; or
(3) by law other than this code for which strict liability is imposed, unless a
legislative purpose not to impose criminal responsibility on corporations or
associations plainly appears.
(b) A corporation or association is criminally responsible for a felony offense
only if its commission was authorized, requested, commanded, performed, or
recklessly tolerated by:
(1) a majority of the governing board acting in behalf of the corporation or
association; or
(2) a high managerial agent acting in behalf of the corporation or association
and within the scope of his office or employment.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by
Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 4, eff. Sept. 1, 1975; Acts 1993,
73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.23. CRIMINAL RESPONSIBILITY OF PERSON FOR CONDUCT IN BEHALF OF
CORPORATION OR ASSOCIATION. (a) An individual is criminally responsible for
conduct that he performs in the name of or in behalf of a corporation or
association to the same extent as if the conduct were performed in his own name
or behalf.
(b) An agent having primary responsibility for the discharge of a duty to act
imposed by law on a corporation or association is criminally responsible for
omission to discharge the duty to the same extent as if the duty were imposed by
law directly on him.
(c) If an individual is convicted of conduct constituting an offense performed
in the name of or on behalf of a corporation or association, he is subject to
the sentence authorized by law for an individual convicted of the offense.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by
Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.24. DEFENSE TO CRIMINAL RESPONSIBILITY OF CORPORATION OR ASSOCIATION. It
is an affirmative defense to prosecution of a corporation or association under
Section 7.22(a)(1) or (a)(2) that the high managerial agent having supervisory
responsibility over the subject matter of the offense employed due diligence to
prevent its commission.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by
Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 5, eff. Sept. 1, 1975; Acts 1993,
73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
In the
1960s, Chief Justice Earl Warren presided over a Supreme Court that interpreted
the Constitution in ways that protected the powerless — racial and religious
minorities, consumers, students and criminal defendants. At the end of its first
full term, Chief Justice John Roberts’s court is emerging as the Warren court’s
mirror image. Time and again the court has ruled, almost always 5-4, in favor of
corporations and powerful interests while slamming the courthouse door on
individuals and ideals that truly need the court’s shelter.
President Bush created this radical new court with two appointments in quick
succession: Mr. Roberts to replace Chief Justice William Rehnquist and Samuel
Alito to replace the far less conservative Sandra Day O’Connor.
The Roberts court’s resulting sharp shift to the right began to be strongly felt
in this term. It was on display, most prominently, in the school desegregation
ruling last week. The Warren court, and even the Rehnquist court of two years
ago, would have upheld the integration plans that Seattle and Louisville, Ky.,
voluntarily adopted. But the Roberts court, on a 5-4 vote, struck them down,
choosing to see the 14th Amendment’s equal-protection clause — which was adopted
for the express purpose of integrating blacks more fully into society — as a
tool for protecting white students from integration.
On campaign finance, the court handed a major victory to corporations and
wealthy individuals — again by a 5-4 vote — striking down portions of the law
that reined in the use of phony issue ads. The ruling will make it easier for
corporations and lobbyists to buy the policies they want from Congress.
Corporations also won repeatedly over consumers and small stockholders. The
court overturned a jury’s award of $79.5 million in punitive damages against
Philip Morris. The Oregon Supreme Court had upheld the award, calling Philip
Morris’s 40 years of denying the connection between smoking and cancer
“extraordinarily reprehensible.”
In a ruling that will enrich companies at the expense of consumers, the court
overturned — again by a 5-4 vote — a 96-year-old rule that manufacturers cannot
impose minimum prices on retailers.
The flip side of the court’s boundless solicitude for the powerful was its often
contemptuous attitude toward common folks looking for justice. It ruled that an
inmate who filed his appeal within the deadline set by a federal judge was out
of luck, because the judge had given the wrong date — a shockingly unjust
decision that overturned two court precedents on missed deadlines.
When Chief Justice Roberts was nominated, his supporters insisted that he
believed in “judicial modesty,” and that he could not be put into a simple
ideological box. But Justice Alito and he, who voted together in a remarkable 92
percent of nonunanimous decisions, have charted a thoroughly predictable
archconservative approach to the law. Chief Justice Roberts said that he wanted
to promote greater consensus, but he is presiding over a court that is deeply
riven.
In the term’s major abortion case, the court upheld — again by a 5-4 vote — the
federal Partial-Birth Abortion Ban Act, even though the court struck down a
nearly identical law in 2000. In the term’s major church-state case, the court
ruled 5-4 that taxpayers challenging the Bush administration’s faith-based
initiatives lacked standing to sue, again reversing well-established precedents.
In a few cases, notably ones challenging the Bush administration’s hands-off
approach to global warming and executions of the mentally ill, Justice Anthony
Kennedy broke with the conservative bloc. But that did not happen often enough.
It has been decades since the most privileged members of society — corporations,
the wealthy, white people who want to attend school with other whites — have had
such a successful Supreme Court term. Society’s have-nots were not the only
losers. The basic ideals of American justice lost as well.
December 6, 2006
The New York Times
By LINDA GREENHOUSE
WASHINGTON, Dec. 5 — The Supreme Court rejected the
government’s interpretation of immigration law on Tuesday, ruling that a
noncitizen is not subject to mandatory deportation for a drug crime that, while
a felony in the state where the crime was prosecuted, is only a misdemeanor
under federal law.
The 8-to-1 decision restored to one category of immigrants, caught in the nearly
impenetrable maze where immigration law and criminal law meet, the ability to
avoid automatic deportation and the other dire consequences of being guilty of
an “aggravated felony.”
The category is made up of immigrants convicted of simple drug possession in
states that treat those offenses as felonies. Federal law treats possession in
most instances as a misdemeanor. But in the government’s view, possession when
deemed a felony under state law became a “drug trafficking crime,” which under
federal immigration law is an “aggravated felony” that strips an immigrant of
the right to seek relief from automatic deportation, to seek asylum, or ever to
return legally to the United States.
Writing for the majority on Tuesday, Justice David H. Souter said the
government’s interpretation was based on a strained and implausible reading of
the definition of “drug trafficking crime” in the federal criminal code.
Thousands of immigrants every year might benefit from the ruling, according to
Jayashri Srikantiah, a law professor who heads the Immigrants’ Rights Clinic at
Stanford Law School and who filed a brief on behalf of Jose Antonio Lopez, the
immigrant whose Supreme Court appeal led to the decision, Lopez v. Gonzales, No.
05-547.
In an interview, Ms. Srikantiah said the decision was informed by “a sense of
proportionality” and of the “real world consequences” of subjecting legal
residents convicted of minor offenses to automatic deportation.
The Immigration and Nationality Act contains a list of aggravated felonies that
includes “a drug trafficking crime.” This phrase, in turn, is defined not in the
immigration law, but in the criminal code as “any felony punishable under the
Controlled Substances Act,” the basic federal narcotics law.
The government’s position was that “any felony” meant any crime that was
considered a felony either under federal law or in the state where the
prosecution took place. In this way, a conviction for simple possession could
become a drug trafficking offense and hence an aggravated felony, which is what
happened to Mr. Lopez.
A Mexican who was a permanent legal resident of the United States, Mr. Lopez
pleaded guilty in a South Dakota state court to aiding and abetting another
person’s possession of cocaine. That crime is a felony in South Dakota, although
the analogous offense is a misdemeanor under federal law.
Mr. Lopez served 15 months in state prison and was then placed in federal
deportation proceedings as an aggravated felon. After unsuccessfully contesting
the designation before the immigration service and the United States Court of
Appeals for the Eighth Circuit, in St. Louis, he was deported to Mexico.
The Supreme Court’s decision makes Mr. Lopez eligible to apply for the
administrative relief from deportation known as “cancellation of removal,” an
option that was foreclosed by his designation as an aggravated felon.
In analyzing the government’s position that any offense “punishable” under the
Controlled Substances Act therefore became a “drug trafficking” felony, Justice
Souter said that “there are a few things wrong with this argument, the first
being its incoherence.” While “trafficking” ordinarily meant “some sort of
commercial dealing,” he said, “commerce, however, was no part of Lopez’s South
Dakota offense of helping someone else to possess.”
Justice Souter continued that while the government’s argument appeared
implausible, that was “not to deny that the government might still be right;
Humpty Dumpty used a word to mean ‘just what he chose it to mean — neither more
nor less,’ and legislatures, too, are free to be unorthodox.”
But in this instance, he said, if Congress meant to define drug trafficking in
such an “unexpected” way, “Congress would need to tell us so, and there are good
reasons to think it was doing no such thing here.”
Justice Souter said that under the government’s interpretation, a central part
of federal immigration law, deportation, would depend not on a federal judgment
about the seriousness of an offense, but on “varying state criminal
classifications.” He added, “We cannot imagine that Congress took the trouble to
incorporate its own statutory scheme of felonies and misdemeanors if it meant
courts to ignore it whenever a state chose to punish a given act more heavily.”
The court’s conclusion was that “a state offense constitutes a ‘felony
punishable under the Controlled Substances Act’ only if it proscribes conduct
punishable as a felony under that federal law.”
Justice Clarence Thomas was the lone dissenter, observing in his opinion that
“without doubt, Congress could have written the definition with this limitation,
but it did not.”
This was not the first time the Supreme Court has resisted a categorical
interpretation of immigration law by the executive branch. In a unanimous
opinion two years ago, the court ruled that contrary to the government’s view,
driving under the influence of alcohol was not a “crime of violence” for which
an immigrant could be subjected to automatic deportation.
October 19, 2006
The New York Times
By CHARLES MURRAY
Las Vegas
LAST week President Bush signed a law that
will try to impede online gambling by prohibiting American banks from
transferring money to gambling sites. Most Americans probably didn’t notice or
care, but it may do significant political damage to the Republicans this fall
and long-term damage to Americans’ respect for the law.
So, a month before a major election, the Republicans have allied themselves with
a scattering of voters who are upset by online gambling and have outraged the
millions who love it. Furthermore, judging from many hours of online chat with
Internet poker players, I am willing to bet (if you’ll pardon the expression)
that the outraged millions are disproportionately electricians, insurance
agents, police officers, mid-level managers, truck drivers, small-business
owners — that is, disproportionately Republicans and Reagan Democrats.
In the short term, this law all by itself could add a few more Democratic
Congressional seats in the fall elections. We are talking about a lot of people
(an estimated 23 million Americans gamble online) who are angry enough to vote
on the basis of this one issue, and they blame Republicans.
In the long term, something more ominous is at work. If a free society is to
work, the vast majority of citizens must reflexively obey the law not because
they fear punishment, but because they accept that the rule of law makes society
possible. That reflexive law-abidingness is reinforced when the laws are limited
to core objectives that enjoy consensus support, even though people may disagree
on means.
Thus society is weakened every time a law is passed that large numbers of
reasonable, responsible citizens think is stupid. Such laws invite good citizens
to choose knowingly to break the law, confident that they are doing nothing
morally wrong.
The reaction to Prohibition, the 20th century’s stupidest law, is the archetypal
case. But the radical expansion of government throughout the last century has
created many more.
For example, all employers are confronted with rules and regulations from
Occupational Safety and Health Administration and the Equal Employment
Opportunity Commission that they regard with contempt — not because they cut
into profits, but because they are, simply, stupid. They impede employers yet
provide no collateral social benefit. And so employers treat the stupid
regulations as obstructions to be fudged or ignored. When they have to comply,
they do not see compliance as the right thing to do, but as placating an agency
that will hurt them otherwise.
The same thing applies to lesser degrees to all of us who find ourselves doing
things that we know are pointless (think of various aspects of tax law) only
because we fear attracting a bureaucracy’s attention. For millions of Americans,
our day-to-day relationship with government is increasingly like paying
protection to the Mafia — keeping it off our backs while we get on with our
lives.
The temptation for good citizens to ignore a stupid law is encouraged when it is
unenforceable. In this, the attempt to ban Internet gambling is exemplary. One
of the four sites where I play poker has blocked United States customers because
of the law, but the other three are functioning as usual and are confident that
they can continue to do so. They are not in America, and it is absurdly easy to
devise ways of transferring money from American bank accounts to institutions
abroad and thence to gambling sites.
And so the federal government once again has acted in a way that will fail to
achieve its objective while alienating large numbers of citizens who see
themselves as having done nothing wrong. The libertarian part of me is heartened
by this, hoping that a new political coalition will start to return government
to its proper functions. But the civic-minded part of me is apprehensive.
Reflexive loyalty to the rule of law is an indispensable cultural asset. The
more honest citizens who take for granted that they are breaking the law, the
more their loyalty to the law, and to the government that creates it, is eroded.
ATLANTA— ON different sides of the country, in different worlds of power and
influence, Susan V. Smith and O. J. Simpson are accused of murder by unspeakable
means. The difference is in the price the criminal-justice system will exact if
they are convicted, in a nation where the application of the death penalty is
inconsistent.
In Union, S.C., prosecutors say Mrs. Smith, 23, a woman once unknown outside the
little mill town where she was born, drowned her two young sons in a dark lake
and lied to the outside world for nine days in October, claiming a young black
man stole her babies as she stood screaming at the side of the road. She made
about $17,000 a year, worked as a secretary in a textile mill and drove a Mazda.
Prosecutors want her to die in the electric chair.
In Los Angeles, prosecutors say the famous Mr. Simpson, who once ran untouched
through N.F.L. defenses and television rent-a-car commercials, stalked and
viciously cut and stabbed to death his former wife and her companion. He had
assets of about $10 million, in mansions, beachfront condos and Ferraris. Mr.
Simpson, whose trial begins tomorrow, does not face California's death penalty.
At first glance, or sniff, it smells. Why is a rich and famous person spared the
ultimate penalty, yet it looms over a relatively poor, obscure one?
Somewhat surprisingly, respected legal experts on either side of the capital
punishment debate say that while money is often an issue, it was not the driving
influence in the prosecutorial decisions in how to proceed against Mr. Simpson
and Ms. Smith.
The 'Mirror Theory'
This time, they say, the key factor is what prosecutors see in the faces of
their communities, what law professors and lawyers call "the mirror theory."
"The life-and-death decision is made on trivial grounds, and tends to reflect
the community's prejudices," said Franklin Zimring, director of the Earl Warren
Legal Institute at the University of California at Berkeley.
In the past, the mirror has borne a predictable image. People on death row are
still disproportionately poor and black. But this time the black defendant is
wealthy and famous, and it is the white female defendant who is on trial for her
life -- a rare prospect for execution, since only one woman has been put to
death since the Supreme Court allowed executions to resume in 1976.
To make a death-penalty case forcefully, prosecutors still have to pursue a
strategy not entirely unlike those of race-baiting prosecutors in the past. They
have to transform a client from one of "us," a member of the human community, to
one of "them," the predators who would destroy it.
That is hard to do with a football hero, and much easier with a mill worker
accused of drowning her babies, even if she was an honors student voted "most
friendly" in high school, said lawyers who specialize in death penalty cases.
"Simpson is like a member of the family, so much a part of American life," said
Stephen Bright, an Atlanta attorney and expert on capital murder trials. "As a
result, it is much more like having a friend or family member accused of a
crime. Susan Smith is defined publicly only by the crime."
There are other factors, said Mr. Bright, not the least of which is geography.
South Carolina, which leads the nation in incarcerations per capita, has a
reputation as a law-and-order state. When Mrs. Smith was formally charged, a
bloodthirsty crowd outside the courthouse screamed its outrage, saying she
should be locked in a car and drowned in the same lake where her children,
3-year-old Michael and 14-month-old Alex, died.
"This is an opportunity for national publicity," said Mr. Bright, "to exploit
the death penalty politically."
Even though capital punishment statistically appears to be no real deterrent to
crime, and even though it has wrecked county budgets -- some counties have had
to raise taxes to finance capital murder trials, which are more expensive that
other criminal trials -- the embrace of the death penalty is driven by "the
passion of the moment," said Mr. Bright.
The prosecutor, Thomas Pope, said last week he decided to seek the death penalty
after hearing the views of hundreds of people, including the family of Mrs.
Smith and her estranged husband, David.
Not everyone in Union County clamored for retribution in kind. Sheriff Howard
Wells took a political risk when he said it would be better to spare his county
the media spotlight and expense, emotional and financial, of a capital trial.
"What the Los Angeles prosecutor did was, on balance, braver than what the South
Carolina prosecutor did," said Mr. Zimring.
But politics was also a driving force in the Simpson case. Los Angeles County
prosecutors knew that putting a national hero on trial for his life might
alienate the public and the jury that is drawn from it. The Los Angeles County
Prosecutor, Gil Garcetti, "engaged in damage control," said Mr. Bright,
explaining that if Mr. Garcetti had pushed for the death penalty, he might have
guaranteed an acquittal.
Choosing not to seek the death penalty against Mr. Simpson, however, was not a
departure from the norm in Los Angeles County. His case -- loosely defined as
"domestic," involving a defendant with no felony convictions -- did not fit the
profile for successfully prosecuted capital crime in California.
The decision was made by a prosecutors' screening committee that looked at all
aspects of the case. Some prosecutors also discussed the matter with black
leaders in Los Angeles. Mr. Garcetti's office issued a short statement
acknowledging the concerns of the community, but said the decision not to seek
the death penalty came "independent of those concerns." Mr. Simpson instead
faces life in prison if convicted.
The Family of 'Us'
In the South Carolina case, Mrs. Smith said she was distraught over personal
problems and close to suicide, and planned to die with her children. Somewhere,
somehow, she supposedly changed her mind, but not soon enough to save her
children.
But many in Union believe she killed her children because a man she had been
dating said he was not ready for "a ready-made family."
It is her attorney's job to humanize her, to bring her back into the family of
"us," and in that she has an expert in David Bruck, one of the nation's most
respected defense attorneys in capital cases.
"It's very frustrating that I can't tell her story now," said Mr. Bruck, who
will wait for the trial. "If I could, the public would take a different view."
Ernest van den Haag, a retired professor of law and public policy at Fordham
University, believes in the death penalty and says both crimes are brutal enough
to warrant it. But he does not believe Mr. Simpson, because of who he is, was
ever in any real danger of getting the death penalty. And he thinks it is a
tactical mistake to seek the death penalty in the Smith case, as it would have
been in the Simpson case. "Public opinion is against Mrs. Smith now," he said,
"but it will shift in her favor."
Mr. van den Haag added that the death penalty, like any form of punishment, is
never exact. "It's a lottery," he said.
Photos: O. J. Simpson does not face execution.
(Reuters); Susan V. Smith
does. (Associated Press)
