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September 26, 2006 in Alaska Life | Permalink | Comments (1) | TrackBack (0)
There is one major and obvious difference between life as a public defender and life in private practice: how (and when) you are are paid. As a PD, I never had to worry about whether a client had enough money, or if I would get enough clients, or whether I was going to get paid. Of course, I also did not have the ability in my job to turn away cases, for whatever reason. So, I now sit up and pay attention when I see something that could increase the bottom line.
Realizing that, I think that this afternoon, I am going to go hit the bars increase my earning potential.
September 15, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack (0)
Alaska has the dubious distinction of having the highest rate of sexual assaults in the country. For this reason, the Alaska legislature this year dramatically increased the sentences for those convicted of sexual offenses. Now, this bill was signed in April and took effect in July. I'm writing about it now because I have been pondering this situation for a while and there are a few things I want to make clear.
Before I do, I want to point out that I am not in favor of sexual violence against anybody. I don't think I should have to point that out, but I am not making apologies for rapes or molestations in any way. I am, though, wanting to suggest that we keep matters in perspective. And I have some suggestions for better ways to deal with this crime in Alaska.
First, even though we have the highest rate of sexual assault, the numbers are not very large. Part of the 'need' for this bill was that sexual assaults rose by more than 20% between 2000 and 2003. Sounds bad, right? Well, realize that they rose from roughly 500 in 2000 to 600 in 2003. But once again fell in 2004 to about 550. What we are seeing is just the normal fluctuation in numbers.
Second, this bill is premised on the idea that sexual assaults are knowing or intentional conduct. In the Journal text, it is clear that the Alaska legislature was focusing upon sexual predators. The discussion focuses primarily upon those who sexually abuse younger children. The discussion also deals with knowing or intentional behavior:
"In Senate Bill 218, the low end of the range for the most serious sex offenses is higher than the mandatory minimum or low end of presumptive sentences for some crimes that result in death. This is intentional and not anomalous. Sex offenses cause great harm to victims, their families and to the entire community. Death has always been seen as the greatest harm that could be inflicted by an offender. But death can be caused by reckless conduct. Sex offenses are not reckless - they are at the very least knowing, and often intentional."
This discussion is very interesting, but it is wrong legally. Before explaining that statement, let me explain to the uninitiated how criminal law works in general and then in Alaska. To be convicted of a crime, the State must prove that a person not only acted a certain way, but also thought a certain way. This type of thinking is called 'mens rea'. For example, murder in the first degree usually requires at a minimum that the offender intended to kill the victim. If I shoot someone by accident, then I might be guilty of reckless or negligent homicide, but not of first degree murder. It is a legitimate defense to argue that a client is indeed guilty, but of a lesser crime than the one of which he is accused.
Alaska has four different mens reas: intentionally, knowingly, recklessly, and negligently. Intentionally means that you act with a specific goal in mind. It is the mens rea in first degree murder, burglary, and attempted crimes. Knowingly means that you actually know what you are doing. Reckless means that the offender ignored a 'substantial and unjustifiable risk' that his conduct would create a certain result (such as playing Russian roulette). Negligence, in the criminal sense in Alaska, means being so grossly unaware of a substantial and unjustifiable risk as to be criminal, basically.
In Alaska law, if a statute governing criminal behavior does not specify a mens rea, then the mens rea is knowing regarding conduct and reckless regarding circumstances. As you might guess, the sexual assault statutes do not specify a mens rea. For sexual assault in the first degree, then, the State must prove that a defendant knowingly engaged in sexual penetration of some type (digital, penile, or foreign object). The circumstances portion governs whether any consent was given. Thus, a defendant cannot escape punishment by saying he did not know no consent was given. Rather, the State only has to prove that the defendant ignored a substantial and unjustifiable risk that the victim did not consent.
Now, the average reader of this blawg might wonder what the big deal is. What difference does it make and why am I spending so much time on it? Alaska, like most other states, does not allow voluntary intoxication to be a defense to a crime. (There is a limited exception in that it can be a defense to an intentional mens rea. This has the practical effect of lowering crimes - first degree murder becomes second or manslaughter; burglary becomes trespass, etc. While it is a legal defense, I must say that it has not worked in the cases I have tried, nor am I aware of it having worked. Any lawyers with different results are free to post their stories in the comments section below). I can say, based upon almost seven years of practice throughout this state, handling a great many sexual assault cases, that extreme alcohol abuse is the norm for most Alaska sexual assault cases.
It is a bit different in some of the bigger cities, but the typical sexual assault in Alaska happens at drinking parties, events, whatever. To give an example, I know of a case in Kotzebue in which a young woman went to a drinking party. She drank to the point of blacking out. The next day, she learned that there had been some pretty wild sex seen by several people the night before. She began asking around and discovered, to her horror, that she was the person involved. She pressed charges, claiming she would have never consented to such sexual penetration. The fellow involved was about as drunk as she was. He went to trial and was represented by a very good attorney. Unfortunately, he was convicted.
Now, maybe it's just me. Maybe I'm just a softy, a liberal, or whatever. But I cannot for the life of me equate what happened at that party with strong arm rape. I just cannot. And I don't think that somebody should get 25 years in prison for doing that.
So I would make a suggestion: the Alaska Legislature should make the mens rea of sexual assault intentional with regard to conduct and knowing with regard to circumstances. This would mean that in order to be convicted, the State would have to prove that a defendant intended to sexually penetrate someone (or sexually touch someone, for a lesser degree of sexual assault), and that the defendant knew that person did not consent. This change would focus upon what the Alaska Legislature ostensibly intended to focus upon: the sexual predator. It would, if followed, remove drunk sex from the justice system but would indeed catch those who know that the victim does not consent.
This would also have the effect of lowering Alaska's crime statistics so that we might not be the state with the highest rate of sexual assault. While this may be seen as cheating, i.e., changing the definition, I think it would also provide a more accurate picture of the rate of sexual assaults in Alaska. For years, the majority of sexual assaults in this state have been drunken sexual encounters coupled with regrets the next day. By making this change, the Alaska crime statistics would reflect more of what most people would consider to be true sexual assaults.
September 15, 2006 | Permalink | Comments (2) | TrackBack (0)
I am covering some cases for another sole practitioner while she's on maternity leave. She is handling several cases for the Office of Public Advocacy, contracting to represent people who would otherwise be represented by staff attorneys. As part of this, I am handling some children's cases for the first time since I was in the public defender's office. For those of you not in the know, children's cases are the cases in which social workers remove kids from a home because they are in danger, etc. In Alaska, those cases are abbreviated CINA (pronounced "China) cases, short for Child In Need of Aid.
What I want to know is why we decided to give the state such authority over how we deal with our children. The typical rejoinder is along the lines of "Well, children shouldn't be in a home where they are being abused", the abuse typically understood to be physical or sexual. I don't really have an issue with that statement as a principle, but gradually, we have expanded the definition of 'harm' to include a great deal of matters and have made the state too powerful in these cases. Domestic violence and drug use are used to justify removing kids from the home. Remember that domestic violence, as statutorily described, includes situations in which someone is placed in fear. So, a raised voice can count as grounds for a conviction for domestic violence (I've seen it happen, but not to my clients). Why should someone's kids be taken out of the house because of an argument? Why should parents have to go through some classes because of an argument in front of kids? Why should the state have such authority? Beats me.
Drug use is another ground that causes me to wonder where we went so nuts. Granted, when you raise this issue, most people picture the scene in Trainspotting with the parents lying in a heroin-induced coma while toddlers meander around the room in disgusting diapers. (That's not the only memorable scene from Trainspotting, but it is the one most applicable here anyway.) A parent under scrutiny of OCS can have a child removed for a positive drug screen, despite the fact that we have yet to quantify any drug amount/drug effect other than alcohol. We have studied the effects of alcohol to the point that we know what it means for someone to have a .05% blood alcohol content, , a .10% BAC, whatever. Scientifically, though, we have no idea what it means to have a THC level of .05%, or a cocaine level of .02%. Nobody knows, but we just remove kids anyway.
Now, let me be up front: there are few ways to destroy your life or your relationship with your kids as thoroughly as to abuse drugs. I am not seeking in any way to apologize for or justify drug abuse. But we take kids away from their parents simply because parents choose to put certain chemicals into their body and we have no idea how much the parents' behavior is in fact affected by the drugs. Furthermore, we take a zero tolerance approach when we do not do so with the most dangerous drug of all: alcohol. Imagine the state removing your kids because they found that your BAC was .04% (what it would be after consuming roughly 2 beers within an hour). You would be justifiably outraged, yet the idea that one can use chemicals recreationally is absolutely rejected by the federal and state governments in this country. (Jacob Sullum, though, shows the complete hypocrisy of the government in his book Saying Yes: In Defense of Drug Use. It is a very though provoking book and I would read it again if I could remember to whom I loaned it.) Interestingly, part of the reason we have no information to quantify the effects of various controlled substances on the body is because the federal government does not allow such testing.
The other interesting thing is that I have never represented a parent who harmed their child in any way when that parent was under the influence of solely marijuana (or cocaine or methamphetamine, for that matter). Yet I have represented a lot of parents and other relatives who have beaten, tortured, forcibly sodomized, or even killed their kids when they were drunk. Alcohol remains legal, yet marijuana, cocaine or meth are not. I was taught in civics class that the difference would be because the legislature has carefully examined the different aspects and made a careful judgment on the matter. My experience teaches that the difference is because the alcohol lobby is more respectable, older, and a lot wealthier. Maybe it's just me, but I would think that it is a lot worse for kids to be put into foster care than to stay at a house where mom or dad smoke some pot or do some coke.
At this point, the typical rejoinder is that a person on drugs is not really aware of his or her surroundings and could potentially harm the child, either directly or through neglect. Maybe. As I note above, I have seen a lot more kids injured because the parents were drunk than because they were stoned or high or tripping. But let's grant the argument for argument's sake. What is being argued is that we are taking kids away from parents because of what the parents could do, not because of what the parents have actually done. Now, if a parent is beating a child, the argument is much stronger that the child needs to be removed in order to prevent further beatings. Yet removing a child because mom or dad could harm the child while on drugs does not make a great deal of sense as a general policy. We cannot take away somebody's liberty based upon what they could do, but only based upon what they have done. We cannot force someone to pay a monetary judgment except for previous harms.
Courts do grant injunctions when the future threat appears to be irreparable and there is no other remedy. But while temporary injunctions are easier to get than permanent orders, it is still harder to get equitable relief in civil cases than in children's cases. Why? Why is it so easy for OCS to invade our homes, take our children, and force us to kiss their ass before we get our kids back? Its just something that's been going through my mind as I have been dealing with some of these cases.
September 11, 2006 in Law | Permalink | Comments (3) | TrackBack (0)
I know I haven't done anything since May. I would like to say that I have some excuse, but I don't think I do. Part of it is that I was frankly burned out when I left my previous job. Private practice has been good, but I have not been very aggressive so far. It's nice having just a few cases. I have been coming into the office pretty regularly, but also taking more than my share of days off to babysit, goof off or whatever. I took a day off a couple of weeks ago to go to the Alaska State Fair with the fam.
There have been a few posts sort of rumbling around in my head as I debate whether I should publish them or not. I think ultimately I will publish them, but not right now. I am still writing/editing them and I don't think they're ready. I think when I finally publish them, I won't need to describe which posts they are.
In the meantime, what else have I been doing? Keeping iTunes in the black. I don't have cable, but I've been purchasing some TV shows for my iPod. First, I've really enjoyed the first season of Weeds. The writing is really good. I love the character of Doug, the semi-Republican stoner accountant who is always looking for some more smoke. The show's also introduced me to some new music, particularly Sons and Daughters. I don't know if it's just Showtime, but I also have been watching Free for All, a truly warped animated show. I think that the shows are enhanced when I watch them on my iPod. Frankly, I think watching paint dry on a video iPod would be cool. Of course, Apple has some special event next week, so it will probably be a new iPod that I cannot justify.
Otherwise, I have been really enjoying James McMurtry and Ray Wylie Hubbard, particularly Hubbard's Snake Farm album. I cannot remember when I have enjoyed an album as much as that one. Did some halibut fishing before the season really got going. Put a new front porch/stairs on the house. I was hoping to do some moose and bear hunting, but vehicle repairs ate the money I set aside for that trip.
I've read quite a few books, more than I can list here. Some that stick out are Salt, A World History, which is a rather fascinating look at how salt has literally shaped world history; Ballad of the Whiskey Robber, a look at post communist Hungary. There are some others, but I don't remember them off the top of my head right now. I'll probably blog about them later. So, in the meantime, know that I have not died or abandoned this site. I'm going to write soon about Alaska's screwed up sex offense laws, ex-Gov Frank's obsession with marijuana and the FBI comes to Alaska. See you soon.
September 08, 2006 | Permalink | Comments (5) | TrackBack (0)