Category: Law

. . . I shall achieve in time:
To let the punishment fit the crime
The punishment fit the crime.

—The Mikado

I had mixed feelings reading this story, which reveals that one in 75 American men is in prison. On the one hand, I’m very much in favor of strong sentencing laws, and the crime rate is down. If figures like that are really needed to control the crime problem, I don’t have a problem with it.

On the other hand, I’m not convinced that chucking people in prison is always the best way for malefactors to be punished. Corporal punishment is an alternative to prison that has served many societies well and is less harmful to a person’s ability to lead a productive, law-abiding life after punishment than prison is. Some countries that use it have fewer people in prison and also have lower crime rates (remember the whole Singapore caning controversy from a few years ago?). Prison, by contrast, tends to serve as simply a school in how commit further crimes and that hardens criminal in a destructive lifestyle.

I also have a basic desire to see justice be done, and this means that the punishment must fit the crime. For some crimes, punishments are presently waaaay out of whack with the actual harm caused by the crime.

A few years ago I was making a pilgrimage to the Holy Land, and on the flight to Tel Aviv the stewardesses (who were remarkably surly with the passengers–to the point of unprofessionalism) began threatening the passengers with $50,000 fines for lighting a cigarette outside of the smoking area. I’m sorry, but no matter how much one may oppose smoking, the idea that lighting a cigarette in the non-smoking section does $50,000 worth of damage to the community is simply crazy.

A similar area where the punishment is way out of whack with reality is in copyright law. Punishing offenders who are pirating copyrighted works for sale is one thing, but hitting people with $540,000 law suits because their daughters downloaded a few songs from the Internet for private use is similarly bonkers. The songs themselves would cost a few dollars, and even magnifying the fine for the bad example set by the offending daughters setting a bad example for others, one still comes nowhere near the kind of life-ruining damage done by the potential fine. The punishment is simply incommensurate with the offense and thus unjust.

As long as whacko special interest groups are able to get legislation like this passed to protect their interests with the threat of massive retaliation, though, I don’t see this changing.

The Federal Trade Commission is now requiring the subject-line labelling of sexually explicit spam, as well as not putting porno pictures where they will automatically start loading in the preview pane of your e-mail client.

No doubt, many will disregard this law and use servers outside the US to evade the requirement, but if it cuts down on the sexually explicit junk mail clogging the nation’s e-mail boxes even a little, it will be worth it.

In this article on the subject, a lawyer for the porno spam purveyors is yelping about freedom of speech.

I’m sorry, but no.

My e-mail account is a private forum (else everyone in the world would be entitled to read my e-mail), just as my postal mailbox is. Freedom of speech does not give anybody the right to cram my postal mailbox or my e-mail account with offensive messages that I didn’t ask for and don’t want.

To send such items to me over my objection is mail harrassment, and I hope the people who commit it are prosecuted to the full extent of the law (which I hope is further strengthened from where it is now).

It isn’t often that I’d agree with something published in an editorial in a British newspaper, but I do agree with this one. I’ve been concerned for some time about the implications of genetic privacy, and if we want to keep from being victimized (e.g., by being denied insurance or employment) on account of our genetic profile, we need to get a system of strong genetic privacy laws in place.

Everybody has a gene that predisposes them to something bad lurking somewhere in their genetic code.

A thoughtful editorial by a law professor on the impact that new technologies (particularly new reproductive technologies) are having and will continue to have in the future. Raises a lot of questions that need answering.

Also mentions a TV show (Century City) that it sounds like I’m going to have to check out.

Favorite quote from the editorial:

I asked my law students whether a person with plant or animal genes would still be protected by the US Constitution. One replied, “If it walks like a man, quacks like a man, and photosynthesizes like a man, it is a man.”

Recently I was asked to do a blurb for the reissuing of Ed Peters’ book Annulments in the Catholic Church: Straight Answers to Tough Questions. Here is what I wrote:

“This is the must read book on annulments. It is the best book on the subject, bar none. Dr. Peters has written a clear, no-nonsense book that enables one to understand the annulment process and the reasons for it. In a day when so many books distort the Church’s teaching on marriage and annulment, Dr. Peter’s book explains the subject in an honest, balanced, and accurate manner. It is a treasure and is simply indispensible for everyone interested in or concerned about annulments.”

Originally issued under the title 100 Answers To Your Questions On Annulment, it is now at last back in print under a new title.

The book si the best there is. No other book on annulments even comes close to this one. Given the prominence of the subject today–especially for those interested in apologetics–it is a must read book.

GET IT.

Quite a bit if you ask me.

A reader writes:

What does excommunication do? What is the definition of excommunication? What is its purpose? How has it changed in the new law versus the old law?

Let’s start with the first question: what excommunication does. Here is what the Code of Canon Law says it does:

Canon 1331

§1. An excommunicated person is forbidden:

1° to have any ministerial participation in celebrating the sacrifice of the Eucharist or any other ceremonies of worship whatsoever;

2° to celebrate the sacraments or sacramentals and to receive the sacraments;

3° to exercise any ecclesiastical offices, ministries, or functions whatsoever or to place acts of governance.

§2. If the excommunication has been imposed or declared, the offender:

1° who wishes to act against the prescript of §1, n. 1 must be prevented from doing so, or the liturgical action must be stopped unless a grave cause precludes this;

2° invalidly places acts of governance which are illicit according to the norm of §1, n. 3;

3° is forbidden to benefit from privileges previously granted;

4° cannot acquire validly a dignity, office, or other function in the Church;

5° does not appropriate the benefits of a dignity, office, any function, or pension, which the offender has in the Church.

If you read the above, you will see that most of the effects of excommunication will affect clerics rather than laypeople. For the average layperson, the principal effects are that he cannot receive the sacraments or perform any ecclesiastical ministries or functions (e.g., being an extraordinary minister or lector).

Now for the second question: how excommunication is defined. The current Code does not offer a definition, however the 1917 Code of Canon Law does:

Canon 2257

§1. Excommunication is a censure by which one is excluded from the communion of the faithful with the effects that are enumerated in the canons that follow and that cannot be separated.

The problem with this definition–which raises the subject of the fourth question (how the new law differs from the old)–is that there are elements of it that obviously do not apply in the new law. The most prominent of these is the idea of exclusion from the communion of the faithful (i.e., ecclesiastical communion rather than Eucharistic Communion). This is simply not one of the censure’s effects under current law. If I were to propose a contemporary definition, it would probably be something like: “Excommunication is a medicinal penalty which has the effects ennumerated in Canon 1331 of the Code of Canon Law.”

You’ll notice that I just referred to excommunication as a “medicinal penalty.” This brings up the third question (what excommunication is for). A medicinal penalty, also known as a censure, is a penalty intended to bring about repentance on the part of an offender so that he may be fully reconciled with God and the Church. Canon Can. 1312 §1, 1° notes that “medicinal penalties, or censures . . . are listed in cann. 1331-1333.” Since excommunication is listed in 1331, it’s one of those.

On the fourth question, there is much more that can be said. The current law on excommunication differs markedly from the former law (including, for example, a dramatic reduction in the number of offenses that may result in excommunication). Unfortunately, blog entries have limited space, so I hope this will suffice for now.

I tend not to read the writings of pundits, liberal or conservative, because I find them too prone to spin and rhetoric and not prone enough to serious data collection and analysis. As a result, I find Thomas Sowell fascinating. He produces a higher level of analysis, with better data underlying it, and that makes him worth reading.

We’re approaching the 50th anniversary of the Brown vs. Board of Education decision, and this week Sowell has been doing a retrospective on the decision, attempting to analyze its effects–positive, neutral, and negative.

It’s in three parts: Part 1, Part 2, Part 3.

The series is worth reading, though I think it’s weakest part is the third. It’s interesting, but I don’t know how much it has to do with Brown. In the piece, Sowell links the Brown decision to the era of judicial activism–which would be better termed “judicial legislation”–that it introduced. I don’t know that I buy that. While it’s true that Brown stood at the beginning of a major upturn in the amount of judicial legislation going on by the Supreme Court, I don’t know that this can be said to be an effect of Brown. It seems to me that one could equally well say that the Warren Court was simply more willing to legislate from the bench than prior courts and that Brown was just an early effect of this underlying tendency, not a cause of the judicial legislation that followed.

It’s been a while, though, since I did a lot of reading on the history of the Court, so that could be wrong. It could be that the Brown decision emboldened the court to engage in judicial legislation and established a willingness to engage in it that had not previously existed. I’d have to go to research to try to figure out which is the case and, since I haven’t done that research, I’ll be content for now with pointing out both possibilities.