Thursday, May 26, 2011

Solving prison overcrowding.

The U.S. jails more people per capita than almost every other nation.  Prisons and jails generate big business, from construction to staffing and everything in between.  The phyrric war on drugs and "getting tough on crime" provide the human fodder.

Legislators fear being labled soft, meekly passing laws mandating jail or prison, increasing sentences and adding more and more punishing laws to the already huge volume of possible crimes.  Too many judges lack the courage, conviction or sense to say no to law enforcement's never-ending demand for more power.  Prosecutors clamor for more tools.  The result of course is that the "land of the free" has become the home of the inmate.

Recently the Supreme Court issued a decision (Brown v. Plata) ordering California to release thousands of inmates on grounds that overcrowding led to cruel and unusual punishment.  Anyone who has visited a prison or jail likely would agree.

A week later the same court decided Kentucky v. King, a decision (further) eroding the 4th Amendment (the one supposedly guaranteeing against unreasonable, i.e. warrantless, searches and siezures) by empowering police to bust into a person's home if police decide its inhabitants sound like they may be destroying evidence.  Bottom line is even more people will be subject to increasingly suspect arrest, prosecution and incarceration.

The solution?  Stop destroying the 4th Amendment further to empower police.  That Amendment has been so diluted over the years that its exceptions would take thousands of pages to list, explain and justify.  For all intents and purposes the government can do whatever it wants in the name of "law enforcement."

The Founding Fathers intended the language of the Constitution to be understandable by the common person.  It was written to limit government power.  Two hundred plus years of legal meddling and sophistry have changed that.

This latest example - widening the door to let more people into prison just to have to open another to let them out - underscores how absurd the situation has become.

Wednesday, May 25, 2011

Is battered Giants fan's lawsuit against Dodgers a winner?

Adding to its list of woes on and off the field, the Los Angeles Dodgers apparently now must defend against a lawsuit brought by severely injured Bryan Stow, alleging negligence (and related claims)partially contributing to the notorious assault and battery he suffered at the hands of some Dodgers (?) fans in March.  Does the lawsuit "have legs" (borrowing a phrase many personal injury lawyers use)?  (For the story see

If you visit a house, bar, movie theater, store or any other private property, the owner and anyone else in control has a legal duty to prevent reasonably foreseeable injury.  This duty is heightened if you are more than just dropping by, say if you were invited there or bought a ticket to be there.  A classic example taught in many law schools is the person visiting an apartment complex who is attacked in an unlit stairwell.  Is it really so farfetched to foresee such an attack, or someone slipping and falling at an icy gas station, or a fan being assaulted at a stadium lacking proper security, especially if there is a history?

To be sure, there are all kinds of legal theories possibly limiting the claim or recoverable amounts, but attending a baseball game is not so inherently dangerous an activity as to prevent a negligence-based claim in an situation like Mr. Stow's (for example, certain activities are considered so dangerous that some states have expressly limited the right to bring a lawsuit, i.e. skiing, horse-back riding, rafting, sky diving etc.).

Whether Mr. Stow succeeds will of course depend on the particular circumstances and evidence of the attack and injuries, including whether it was reasonable to expect the Dodgers to have done more towards prevention.

Tuesday, May 24, 2011

Is it child-abuse to smoke marijuana in a car containing a child?

Local newspapers ( ( report the arrest by Boulder police of a young woman police say smoked pot in her car while an infant was in the back seat, presumably based on the cop's claim that she smelled pot in the car.  The woman also is now charged with possession, driving while under the influence of drugs and no having insurance.  She is innocent until proven otherwise.

It's not unusual for police and prosecutors to tack on a child-abuse charge in cases where they arrest a driver they say might be drunk while there are children in the car.  From that point of view it is no surprise police would do the same with someone supposedly high from smoking pot.  Main problems include (1) "child abuse" is a very vaguely defined crime ,and (2)  the decision to charge is highly discretionary (as are so many "crimes" these days), resting almost exclusively on the cop's word.

Look at the main Colorado statute, CRS 18-6-401.  It says a person commits child abuse "if such person causes an injury to a child's life or health, or permits a child to be unreasonably placed in" a threatening situation, "or "engages in a continued pattern of conduct that results" in "mistreatment."

Does this woman supposedly smoking marijuana in a car containing a child meet the definition or intent of that crime?  What about smoking a cigarette?  Listening to loud music?  If driving while using a cell phone increases the risk of an accident, is that child abuse too?  Where is the line drawn and who draws it?

Unfortunately, in our justice system where an increasing number of so-called social problems are dumped for lack of a better alternative, it could take a year or more and alot of money for this woman to find out.  Most likely we'll never know since most defendants will take even a bad "deal" to avoid the pain and uncertainty of defending against criminal charges, a sad fact upon which the system survives.