Thursday, April 19, 2007

Letter from Slashdot Editor

I received this letter from Slashdot:

In your article you proposed for Slashdot, in which you wrote about a conviction for creation of Child Pornography, in which you said, law can not be partly unconstitutional, like woman can not be partly pregnantNice analogy but it fails. Pregnancy is an either-or condition.

A statute, however, can be partially effective in the same way a computer program can have bugs or errors in one part but still be useful in some other part.I'd like to note I'm not a lawyer either, but I do understand how the law works.
A statute defining a crime essentially has two parts: the definition of what is prohibited or the definition of what constitutes a crime by failing to perform a duty, and what the penalty to be imposed upon that crime.Now, it is conceivably possible that the portion of the law defining what the crime is could be unconstitutional, or the portion of the law defining the penalty could be unconstitutional, or they could both be unconstitutional. If the definition of the crime is found unconstitutional, a conviction under the law cannot stand at all. In the case of Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Supreme Court found part of the Communications Decency Act (the "CDA"), unconstitutional on First Amendment, which made the law making it a crime to have certain objectionable material on a website accessible by minors.
Since the definition of the crime in this case was struck down, the law itself becomes unenforceable. However, certain other provisions of the law, specifically the Safe Harbor provisions which give immunity for liability to a website or ISP that carries someone else's content which is libelous, were upheld. The law was partially unconstitutional; and the court struck down the part that it considered was. As a result, since the definition of the crime was struck down, there is no crime.But if the penalty is found unconstitutional, if there is a lesser penalty that can be constitutionally imposed, the court would then reduce the penalty to what is valid. For example, back in 1972 both the California Supreme Court (in California v. Anderson 64 Cal.2d 633) and the U.S. Supreme Court (in Furman v. Georgia, 408 U.S. 238) decided that the imposition of the death penalty as applied to murder cases was unconstitutional. California's Supreme Court found in Anderson that it violated the state constitutional provision because the state's constitution prohibits penalties which are cruel OR unusual, while the U.S. Supreme Court in Furman found the penalty to be both cruel AND unusual.By your logic, therefore every person convicted of murder at the time should be set free because the law cannot be partially unconstitutional. Instead, the court removes the part of the law that is void and leaves the rest.Now, in the case of the death penalty cases, the provision declaring the crime was not found to be unconstitutional, only the penalty.
It's still within the power of the state to punish people for killing others.So, either cases would have to be retried as to the penalty if there was no substitute penalty, or, a lesser penalty than was originally applied would be used if one was available.Since the alternative penalty for death sentences was life, it caused all death sentences to be commuted to life in prison (with possibility of parole). It also meant that if any person was ever arrested for a murder committed prior to the court's decision, they could not be sentenced to death because the portion of the law at the time which fixed the penalty as death was unconstitutional. In California, the state Constitution was changed, plus every state that wanted to keep the death penalty changed their laws to make the imposition withstand constitutional challenge, and four years later the U.S. Supreme Court would uphold the death penalty in Gregg v. Georgia and Woodson v. North Carolina, 428 U.S. 153 (1976).A law is a type of contract in which it has certain provisions, if a contract provision is declared illegal, the court strikes the illegal provision (and anything requiring its operation) but leaves the rest. This happened in the case of sales of real estate that had illegal covenants, like prohibiting sales to negroes. The contract was not declared void, just the illegal covenant. The sale was still valid and the new owner can even sell the place, it's just that the former owner cannot enforce the covenant.If a court decides some provision of a law is unconstitutional, this doesn't affect the rest of the law if it can operate without the prohibited provision. Now, if a person is convicted under a law that is partially declared unconstitutional, if their conviction could still stand under the law without the provision, then it may uphold the conviction. As for the last part of your comment "Arguments by court looks unprofessional, there was no real computer forensic specialists and experts. Also why state should not prove there was not spyware, porn pop ups, trojan horses."Unfortunately, you get the defense you can afford. Probably the guy got a public defender who didn't know that much about computers, he might not have been granted funds for experts, and quite possibly his appellate counsel didn't know enough to ask about it. The prosecution only has to prove beyond a reasonable doubt, the defense is the one who has to try to rebut that doubt by raising issues relating to possible reasons why the defendant didn't do it or the evidence is inadequate to sustain a conviction.
If you think that one is crazy, consider the case of two kids under 18 who were having sex. Now, because their ages were close, it wasn't a crime in the state they were in. Most states have changed their laws so that if two people are within 3 years of age of each other (4 in some states), even if one of them is under 18 it's either no longer a crime or it's a misdemeanor instead of a felony. However, they decided to make a video of what they were doing and keep it around. They didn't send it to anyone else, but because one of them mailed it to the other, they were convicted of producing child pornography and the conviction was upheld on appeal. It was perfectly legal for them to have sex but it was a felony crime for them to tape it. The court made some specious argument how the law is protecting them against exploitation. How, exactly, does giving them a felony conviction is going to protect them, is something I'm unclear on.

No comments: