Law & Justice: January 2006 Archives

This is the first in what will probably turn out to be a series of posts (as the political scene develops) about lawmakers attempting to take advantage of the recent personel changes on the Supreme Court to overturn Roe v. Wade.

South Dakota Lawmakers consider banning abortion in the state.

The bill will be called the Woman's Health and Life Protection Act. It will ban abortion, but won't prosecute a doctor who performs one to save a woman's life.

And the lawmaker who's introducing the bill says he thinks now is the right time to try and over-turn Roe vs Wade.

Rep. Roger Hunt says, "Abortion should be banned."

Those four words will likely lead to many others in the South Dakota House and Senate as lawmakers will decide whether to criminalize abortion in the state. The bill's supporters are using findings from a controversial abortion task force report recently given to the legislature.

Hunt says, "DNA testing now can establish the unborn child has a separate and distinct personality from the mother. We know a lot more about post-abortion harm to the mother." ...

Sunday, Hunt and other anti-abortion advocates held an event promoting their legislation. They say now is the time to pass it, because other states are considering similar bills and because with new Chief Justice John Roberts, and possibly Samuel Alito, the US Supreme Court is changing.

I think the time is ripe for change, and as other pundits have pointed out overturning Roe v. Wade will actually be a political boon to the Democratic Party because it will reduce the impact of an issue that has dominated their party for decades, to the detriment of their political fortunes. When abortion is back in the democratic, state-level political arena, Democrats will be able to free themselves from the vice-grip that the far-left abortion industry has on them at the national level and begin to turn some attention towards other matters that are more attractive to the median voter.

I'm a fan of Home Depot, but it pisses me off to see municipal governments tearing down churches to build "super centers". In our post-Kelo world -- in which the Supreme Court has ruled that it's ok for governments to use their eminent domain powers to take private property from one party and give it to another in order to increase tax revenue -- I expect that tax-exempt groups like churches will get the worst end of the stick every time.

Since the Supreme Court's controversial Kelo decision last summer, eminent domain has entered a new frontier. It’s not just grandma’s house we have to worry about. Now it’s God’s house, too. “I guess saving souls isn’t as important,” says Reverend Gildon, his voice wry, “as raking in money for politicians to spend.” The town of Sand Springs, Oklahoma, has plans to take Centennial Baptist — along with two other churches, several businesses, dozens of small homes, and a school — and replace them with a new “super center,” rumored to include a Home Depot. It’s the kind of stuff that makes tax collectors salivate. It’s also the kind of project that brakes for no one, especially post-Kelo. “I had no idea this could happen in America,” says Reverend Gildon, after spending Monday morning marching in the Sand Springs Martin Luther King Day parade. ...

What’s most egregious about this application of eminent domain is that there’s already plenty of room for development, even if the pesky church sticks around. Many community residents were happy to sell their property. Two other churches in the area decided to move to Tulsa. Other structures in the area were dilapidated and ready for the deal. The way things are now, Centennial Baptist Church could easily live side-by-side with new stores, houses, or businesses. Yet Centennial remains in the crosshairs — even though two nearby national chains, a taxpaying McDonald’s and a taxpaying O’Reilly’s muffler shop, have been left alone.

Yet another reason that the power of government should be limited. Perhaps the Supreme Court will feel a little differently if Justice Souter's house gets demolished to build a museum to lost liberty.

Fortunately my church is in a residential district, so it's less likely to be stolen by the city for commercial development.

(HT: BizzyBlog and Todd Zywicki.)

Here's an incredible story from Vermont: a child molester who raped a 10-year-old girl many times over the course of four years has been sentenced to 60 days in jail.

There was outrage Wednesday when a Vermont judge handed out a 60-day jail sentence to a man who raped a little girl many,many times over a four-year span starting when she was seven.

The judge said he no longer believes in punishment and is more concerned about rehabilitation.

Prosecutors argued that confessed child-rapist Mark Hulett, 34, of Williston deserved at least eight years behind bars for repeatedly raping a littler girl countless times starting when she was seven.

But Judge Edward Cashman disagreed explaining that he no longer believes that punishment works. ...

Judge Cashman also also revealed that he once handed down stiff sentences when he first got on the bench 25 years ago, but he no longer believes in punishment.

"I discovered it accomplishes nothing of value;it doesn't make anything better;it costs us a lot of money; we create a lot of expectation, and we feed on anger,"Cashman explained to the people in the court.

If you've read my ealier posts on crime and punishment you may not be surprised to learn that I agree with this judge -- in a way. I'm a big believers in punishment, but prison terms often aren't the best way to punish an offender. Mark Hulett may simply need to be executed, but even if that's too harsh he should face public beatings and humiliation in addition to any imprisonment. Make the punishment fit the crime. Perhaps being put in stocks in a public square for four years would be ample punishment and also encourage him to change his ways.

I'm not a lawyer, but here's a list of special circumstances that can affect the penalty for murder/killing in the state of California, based on my reading of sections 187 - 199 of the California Penal code.

Special circumstances that reduce or eliminate the penalty:

• Victim was an unborn child and the killing was a lawful abortion performed with the mother's permission
  
• Extreme emotional or mental disturbance
  
• Victim was a participant in homicidal conduct or consented to the homicidal act
  
• The offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his or her conduct
  
• Extreme duress or under the substantial domination of another person
  
• The ability of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was impaired as a result of mental disease or defect, or the effects of intoxication
  
• The age of the defendant at the time of the crime
  
• The defendant was an accomplice to the offense and his or her participation in the commission of the offense was relatively minor
  
• "Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime"
  
• When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent
  
• When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner
  
• By public officers and those acting by their command in their aid and assistance, either
  • In obedience to any judgment of a competent Court
    
  • When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty
    
  • When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest
• When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person
  
• When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein
  
• When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed
  
• When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace

Special circumstances that increase the penalty:

• Intentionally killed victim "because of the victim's disability, gender, or sexual orientation or because of the defendant's perception of the victim's disability, gender, or sexual orientation"
  
• Defendant previously served a prison sentence for first or second degree murder
  
• Prior criminal activity with or without a conviction, unless the defendant was actually acquitted at trial
  
• Prior felony convictions
  
• The murder was intentional and carried out for financial gain
  
• The defendant was convicted previously of murder in the first or second degree
  
• The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree
  
• The murder was committed by means of a destructive device, bomb, or explosive planted, hidden, or concealed in any place, area, dwelling, building, or structure, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings
  
• The murder was committed for the purpose of avoiding or preventing a lawful arrest, or perfecting or attempting to perfect, an escape from lawful custody
  
• The murder was committed by means of a destructive device, bomb, or explosive that the defendant mailed or delivered, attempted to mail or deliver, or caused to be mailed or delivered, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings
  
• The victim was one of the following and was intentionally killed for actions taken while on duty:
  • peace officer
    
  • former peace officer
    
  • federal law enforcement officer or agent
    
  • firefighter
    
  • witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and the killing was not committed during the commission or attempted commission, of the crime to which he or she was a witness; or the victim was a witness to a crime and was intentionally killed in retaliation for his or her testimony in any criminal or juvenile proceeding
    
  • prosecutor or assistant prosecutor or a former prosecutor or assistant prosecutor of any local or state prosecutor's office in this or any other state, or of a federal prosecutor's office
    
  • judge or former judge of any court of record in the local, state, or federal system in this or any other state
    
  • juror in any court of record in the local, state, or federal system in this or any other state
    
  • operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle operated on land, including a vehicle operated on stationary rails or on a track or rail suspended in the air, used for the transportation of persons for hire, or the victim was a station agent or ticket agent for the entity providing such transportation, who, while engaged in the course of the performance of his or her duties was intentionally killed
• The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity. As used in this section, the phrase "especially heinous, atrocious, or cruel, manifesting exceptional depravity" means a conscienceless or pitiless crime that is unnecessarily torturous to the victim
  
• The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies:
  • Robbery in violation of Section 211 or 212.5
    
  • Kidnapping in violation of Section 207, 209, or 209.5
    
  • Rape in violation of Section 261
    
  • Sodomy in violation of Section 286
    
  • The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288
    
  • Oral copulation in violation of Section 288a
    
  • Burglary in the first or second degree in violation of Section
    460
    
  • Arson in violation of subdivision (b) of Section 451
    
  • Train wrecking in violation of Section 219
    
  • Mayhem in violation of Section 203
    
  • Rape by instrument in violation of Section 289
    
  • Carjacking, as defined in Section 215
• The murder was intentional and involved the infliction of torture
  
• The defendant intentionally killed the victim by the
  administration of poison
  
• The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death
  
• The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang

Unfortunately I'm not a patent attorney and am thus out of my depth regarding actual patent law, but a friend and I were just discussing the concept of "obviousness". To my understanding, in order for an idea or process to be patentable it can't be "obvious" to a typical person in the field -- it has to be "novel". In my recent discussion, my position was that an idea is almost guaranteed to be novel if no one is doing it and it turns out to be profitable. Profitability plus lack of action implies that no one has thought of the idea.

My friend was arguing that there are some ideas that are so incredibly obvious that no one writes about them, that no one thinks will be profitable, and that actually are profitable once someone does them -- but I don't think that's the case. There may be some such ideas, but considering that people are wont to try vast numbers of ideas on the mere suspicion that they might be profitable, it's hard to believe that there are many obvious, profitable ideas that everyone thinks will be unprofitable.

Thus, my argument was that no matter how obvious an idea may seem in hindsight, if no one has done it or written about it, and it turns out to be profitable, then the idea is almost certain to be novel.