Category Archives: psa

Knockout bill KOs logic, advances in legislature


Listen, if you’re going to propose a bill that criminalizes a “trend” in assaultive behavior and you want to single out juveniles for especially harsh treatment, you better have a more concrete response than this:

Verrengia said it was difficult to determine how many of the attacks have occurred when he was asked Monday if there was any evidence suggesting that a large number have been committed by 16- or 17-year-old offenders.

“I tried to wrap my arms around it, I tried to get statistics, but it’s very difficult to do so by virtue of the present reporting requirements by various law enforcement agencies,” he said. “. . . I think if you were to ask [victims] how many assaults have there been throughout the state of Connecticut, they would say, ‘One too many.’”

You know why he couldn’t “get statistics”? Why he tried to wrap his arms of justice around this issue and failed? I mean, if the ‘knockout game’ is such a big problem that you need to specifically legislate against it in ass-backwards ways, shouldn’t the statistics be abundant? Shouldn’t there be data flowing out your rear hole?

A DuPont heir update and a reminder that the media generally sucks at criminal justice reporting

Remember two weeks ago when you were outraged like never before that the rich, pedophilic, no-good trust fund bastard Robert H. Richards IV, aka “the DuPont heir” got away with no jail time because he “wouldn’t fare well in jail” according to some liberal activist judge in Delaware? Remember that you were so angry that he was rich and therefore got special treatment and you wanted to burn him instead of burning down the system that encourages such disparities?

Now, do you also remember that generally speaking the media is god-awful at reporting on criminal justice?

So, when the former meets the latter, who do you think you got fooled into fake outrage? You. That’s right. You got suckered. Again.

Potential juror thinks defendant is guilty before trial; gets to sit on jury and find him guilty (Updated)


Here is another in the long line of legal fictions: that you get an impartial jury of your peers. Let’s leave aside the peer part for now, because there’s already been much study on the lack of any real peers in juries selected these days and focus on the “impartial” part.

Impartial, in this context, is supposed to mean someone who doesn’t come to the trial with any predispositions. Someone who is able to be fair, listen to the evidence, and conscientiously apply the law to the  facts, regardless of whether one emotionally agrees with the result compelled by those facts.

In reality, we aren’t stone robots. Everyone comes in with preconceived notions. In these days of increasing polarity, we have ever stronger opinions about crime and criminal justice and especially those icky child molesters.

So we come to our legal fiction: rehabilitation. That’s when the judge asks an obviously biased venireperson enough questions that they eventually get the hint, no matter how stupid they are, and end up saying the magic words “I think I can be fair in this case”. Doesn’t really matter what they’ve said prior to that point, once we get to that incantation, the juror is deemed impartial and fit to serve on the jury.

You’d be a fool, however, to think that the juror has actually changed his or her views. Just ask Jose Felipe Velasco:

Jose Felipe Velasco insists Orange County Judge David A. Hoffer cheated him out of a fair trial by placing a juror on the supposedly neutral citizen’s panel after she repeatedly declared the defendant guilty before hearing any evidence.

But you knew that anyway from the title of this post. So how bad could it have really been? Very bad.

  1. Why didn’t the defense exercise a challenge to unilaterally get rid of the juror? I don’t know. The article doesn’t give a reason and I’m not privy to the transcript or the proceedings. It’s possible that the defendant may have run out of challenges at this juncture.

Some more thoughts on the du Pont heir and the courage of our convictions

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

As the Robert H. Richards “du Pont” heir story has gained steam across the internet, there have generally been two sorts of reactions (and this includes reactions to my post from yesterday):

  1. How can you defend these people?1
  2. Money lets an obviously guilty man walk away free after he admitted to committing this horrible crime.

Since my post yesterday was apparently unclear and there has been a great deal of discussion surrounding this subject (some civil but mostly not), I thought I’d take a second attempt at clarifying the rationale of my post and some of the misconceptions and fundamental problems with the Internet’s objection to the outcome in this case. A fool’s errand, no doubt, but I have nothing else to do.

As a representative example, take Emily Bazelon at Slate. A professor at Yale, Ms. Bazelon and I are usually on the same side of things and in agreement on almost all points. Which is why I was disappointed to see her deviate from sensibility and let her emotions overcome her in her condemnation of Richards and the judge. For instance:

Richards, who had no previous record, also has the benefit of money and family connections. He pleaded guilty to one count of fourth-degree rape after his daughter told her grandmother, at the age of 5, that she didn’t want “my daddy touching me anymore.” (Richards was convicted in 2009—the details of the case are only coming out now because of a lawsuit his ex-wife recently filed against him.) In Delaware, fourth-degree rape is characterized as a violent felony, and the sentencing range goes up to 15 years in prison. But Jurden seems to have decided to treat Richards primarily as a patient, noting that he had “significant treatment needs which must be met.”

Like I said, that’s one goal. And I should mention that the judge’s ruling was in line with the guidelines for this crime issued by a Delaware sentencing commission, which (despite the 15-year range on the books) call for a prison term of zero to 2½ years. The problem is that when a father (or anyone) abuses a small child, the zero end of the guidelines are a travesty. In general, I’m in favor of sentencing guidelines, like Delaware’s, which aim to nudge judges toward greater leniency overall. That’s because over time, punishment tends to ratchet only in one direction: up. Sentencing reform for truly nonviolent crimes, especially drug and gun possession, is very much in the interest of justice. But to let off a convicted child rapist, who just happens to be living off his trust fund in a mansion, thanks to his wealthy and famous family? That seems like the definition of injustice.

If you read her remarks – and they’re only two paragraphs you lazy bastards – you’ll note that she, in essence, agrees with me but cannot bring herself to side with the judge because child molester. Hers, unfortunately, is the most nuanced and honest take out there, so you can only imagine what the others are saying.

So in order to deconstruct, let’s start with some facts. First, the specific facts of this case and then some truisms about the criminal justice system.

The specific facts of this case

It is important to remind ourselves that this occurred in 2009 and has only come to light now because Richards’ ex-wife has sued him.

In 2009 Richards was charged with rape in the second degree prior to trial. On the eve of trial, the prosecutor offered a plea deal and dropped the charges to rape in the fourth degree, which apparently carries a sentencing range of zero to 2 1/2 years. Richards accepted, admitted his guilt as part of the plea and was sentenced to 8 years’ probation.

In doing so, the judge noted that Richards had significant mental health needs which were better met at a long-term sex offender treatment facility, where he would be admitted.

So: an eve of trial change of charges by the prosecutor in this case who knows more about it than you, and a judge citing significant mental health issues based on information you don’t have.

Generally agreed to information about sex assault cases of minors and the sentencing of individuals in the criminal justice system

Child molesters are pretty much the worst. They’re the only category of defendants that some criminal defense lawyers will refuse to defend. The cases are awful to work on because they involve little children mostly and unsympathetic defendants.

Prosecutors are zealous and harsh, victim advocates are annoying as fuck, judges are strict and severe because, well, who the hell wants this kind of backlash, right? Legislators have mandated absurd penalties and many of them are mandatory and automatic. In other words, in the vast majority of cases, sex offenders are spending a very, very long time in jail.

A lot of these cases resolve short of trial for a variety of reasons, the primary being that families don’t want their little children to take the stand and testify and relive the horror. They want to spare the kids that trauma. Another reason is that defendants want to take the shorter sentence, which would be offered up front in exchange for not putting the kids through the trauma.

Yet another reason, of course, is that an allegation doesn’t equate to guilt. And as prosecutors and defense attorneys start to prepare in earnest for trial, they sometimes uncover information that makes a plea offer pertinent. Maybe the witness had falsely accused someone of something similar in past, or had a reputation for lying, or they learned something about the defendant that made him extremely sympathetic or the medical records don’t match the story and then a balancing starts: what number is worth the risk of a conviction or acquittal. It happens often enough that cases resolve on the eve of trial, or during jury selection, or after evidence.

Each case is different. And that’s another important issue here that must be understood: each case is different. The criminal justice system cannot be set up as one-size-fits-all and this applies to sentencing too. The individual sentence meted out in each case must depend on the harm alleged and the individual circumstances of the person to be punished. That is universally accepted by all. Otherwise there would be no need for minimum and maximum sentences. There would only be one sentence for each crime that would be imposed regardless of any mitigating or aggravating factors.

The next thing is probation. Sex offender probation is the worst. It’s usually considered a remarkable feat if an offender makes it through these generally very-lengthy probations without ever being re-arrested for a technical violation. When you understand how onerous these probations are, only then will you realize how amazing that is.

Finally, a lot of people accused of committing crimes like these have mental health issues. And I don’t mean ADHD. They have either been molested themselves or have severe personality disorders and have never gotten treatment or are borderline mentally retarded, if not below the threshold. That’s not to say that all of them have mental health issues, but a fair number most certainly do.

Now that we’ve covered all of that – if you’re still reading – let’s move on to the problems I have with the reaction to this case. It’ll be like a follow your own adventure.

Does everyone – regardless of circumstance – convicted of such a crime deserve to go to jail?

That is the fundamental, threshold question. If your answer to this is yes, then the rest of the conversation is unnecessary. We will never agree. But just to poke a bit further, is the answer the same if you learn that the defendant is retarded with an IQ of 50? What if you learn that the defendant is paranoid schizophrenic? What if you learn that the defendant is 15 years old and the victim is 5? What if you learn that the defendant was severely raped as a child by his parents for the first 12 years of his life and hasn’t adjusted to society and doesn’t know how to interact with others?

If you’ve answered yes to any of those questions, then it was as I suspected all along. Your outrage isn’t that a child molester got to go home, it’s that this child molester did.

Assuming that treatment may be necessary in the right case, instead of jail, why isn’t Richards deserving of that?

Assuming, as we must, that in some situations some defendants may deserve not to go to jail, but instead to go to a hospital or some treatment, the question then becomes why is this guy going up your ass a mile?

Remember what we know about this case: the charges were substituted to lesser charges by an apparently seasoned prosecutor who knows the facts of the case to a charge that carries a sentence of 0 to 2.5 years. The judge cited ‘significant mental health needs’ which would have been presented to her in a sealed confidential report that only both sides have access to. Based on that information, the judge determined that probation was appropriate. Other prosecutors interviewed in the news article didn’t seem outraged or shocked. This tells us this wasn’t out of the ordinary. It’s also worth nothing that this was 5 years ago and that he hasn’t been re-arrested for violating any conditions of his probation or for committing any new offenses.

On the other hand, we – you and I – don’t know squat.

So while I understand the temptation to yell “CHILD MOLESTER”, we have already moved past that stage and are at a more evolved stage of this discussion.

Now let’s take money out of the equation for a second. Imagine a poor guy named Richard Thompson who also was accused of this crime, but at the last second the prosecutor offered him a sentence with a range of 0 to 2.5 years. A different judge orders a psychiatric evaluation and determines that he has ‘significant mental health needs’. The judge says “Mr. Thompson I have two choices: either I send you to jail where you will not get any treatment that you so desperately need or I can send you to a treatment facility where you will get treatment and that will increase the likelihood that you will not commit another crime like this again. Unfortunately, there is no facility in this state that fits the latter need. There is one out of state, but you have to pay for it yourself.”

Mr. Thompson cannot. Are you upset at this scenario? Are you upset just like Mr. Tarloff in NY who, by most accounts, deserved to go to a mental hospital instead of jail?

If you say “well he deserves to go to treatment, but if there’s no treatment he should go to jail”, then you haven’t made any progress at all. It isn’t an “either-or” situation. What is more appropriate? Having determined that the latter is more appropriate it is not right to send the man to jail because there are no alternatives.

Sadly this is reality and there are thousands of people in that situation.

Now, Mr. Richards happens to be able to answer this judge’s question in the affirmative. “Yes judge I can afford the treatment myself.” The judge says “great, because that’s what I think you need”. Off he goes2.

Assuming that both deserve treatment and one gets it because he can afford it and one doesn’t because he can’t, who’s the villain? Is it the rich guy? Or is it the system that doesn’t provide necessary services for the poor? Everyone who needs the same immediate treatment that Richards did should have access to it and judges shouldn’t have to choose between that or jail.

If you read into this that Richards got offered a sentence with 0 years as a possibility because he’s rich and the judge sentenced him to that 0 years because his money influenced her decision, then that’s a bias that you have that’s unsupported by anything that’s been reported.

The system fails thousands of people all over the country every day. They’re a mix of rapists and child molesters and drug addicts and gang bangers and murderers and drunk drivers.

That one of them had the fortune to provide for himself the services that the system should, but could not, is not an indictment of him, it’s an indictment of the system.

And even if you hate him and the money he represents and think he should’ve gone to jail, isn’t the idea that the only place he got treatment was outside of a penal institution make you take notice? Aren’t those thousands of mentally ill people populating our prisons worthy of your outrage?

So who’s the privileged one? Him? Or you, with your luxury to absent your convictions when standing by them would leave a bad taste in your mouth.

This moral convenience is why it isn’t hard to understand the failure of the nomination of Debo Adegbile.



  1. Easily. I sleep like a King, too.
  2. As a side note, the accounts of him being an ‘unemployed trust fund baby’ sitting in his mansion without a job lend credence, in my mind, to the theory that he has mental health issues. I wonder if he is unemployed not by choice, but because his cognitive disabilities make it impossible for him to be productive and thus he stays at home. But anyway, that’s rank speculation.

The disparity in the criminal justice system isn’t wealth, it’s what we’re willing to stand up for

Oh justice, you sweet, schizophrenic [p]sychotic fiend. How mercurial are your ways; how confusing are your methods; how undecipherable are your goals. Yet there you stand – venerable, sexy and ultimately out-of-my-league.

For who else – and where else – would bring three stories so oddly juxtaposed? First, in Delaware, a judge sentenced a man identified as “a wealthy du Pont heir” to probation for fourth-degree rape1 reasoning that he “will not fare well” in a level 5 prison. According to the RawStory article (which leaves out significant relevant portions as seen below):

According to court records [Robert H. Richards IV] is listed at 6 feet, 4 inches tall and weighing between 250 and 276 pounds.

Court records do not cite any physical illnesses or disabilities.

Meanwhile, Digby is just as horrified as you are, but at this story of a severely mentally ill man in NY just convicted of a murder. This was his third trial. The first one was halted because he was crazy2 unstable. Don’t take my word for it: look at him.

He's the one who looks out of place. Photo belongs to NYT/Bryan R. Smith

He’s the one who looks out of place. Photo belongs to NYT/Bryan R. Smith

He brutally murdered one woman during a robbery gone bad and maimed another man. So what’s the issue?

  1. Unsure if this is a DE technical term or newspaper-ese.
  2. Technical term.

Grand juries, search warrants, revenge porn – oh, my, or: today at the legislature

For a short session of the legislature, there sure have been a large number of criminal justice bills already raised and considered by some committees. Today is no different, with a large number of “groundbreaking” bills being considered by the Judiciary committee. The public defender’s office and the CT Criminal Defense Lawyers Association have submitted written testimony on some or all of these bills1. What follows is what my testimony would be if they’d let me into the Capitol after that one time with the monkey and the backscratcher.

The Investigative Subpoena One Person Grand Jury Reform Bill


A perennial favorite of prosecutors, this bill has made its way back to the legislature. Year after year they bring up this bill, seeking to give themselves the power to just subpoena whoever and whatever to their office to conduct their investigations. Year after year this bill is defeated. But you gotta hand it to them, they keep trying.

And this iteration is slightly different. Instead of seeking to give themselves the power, they vest it in a “one person grand jury” – the presiding judge of the judicial district courthouse.

The rest of the shit is the same. As I wrote extensively last year, their standard for issuing subpeonas is the lowest, most nebulous, undefined piece of nonsense I’ve ever seen: the interests of justice.

What does that mean? Nothing. It’s not a real thing. It’s a free pass. The bill explicitly removes a requirement of probable cause and replaces it with this interest of justice nonsense.

What’s worse is that there’s no limitation on when the investigative grand jury can be used. Under the law as it existed, the State’s Attorney had to make a showing that they’d made an effort using normal investigative tools. They have to show that their regular methods weren’t working and they needed this invasive tool to make one last ditch effort at cracking a case. If they hadn’t tried their normal methods, they had to include a statement saying why. In other words, accountability.

This proposal does away with that and replaces it with the sort of investigative subpoenas that are coercive and dangerous.

But go ahead, keep trusting the State to do its business in secret. That’s never backfired on us.


The “revenge porn” bill


This is the bill that seeks to specifically criminalize the act of taking a nude photograph of a person who you were once intimate with and distributing that photograph on the internet without their permission.

Let’s be clear: it’s a totally douchey thing to do. It’s violative of someone’s trust and makes you out to be a complete asshole.

But is it a crime? Should it be a crime? Can it be a crime? These are the important questions.

As I understand it (and you really should read this post by Mark Bennett for a complete deconstruction of its unconstitutionality), a picture is speech. So when a picture is made public and the government seeks to put restrictions on it, it becomes a question of the Freedom of Speech which implicates the First Amendment.

As Mark explains, the bills don’t seek to criminalize all pictures posted, only pictures posted that meet certain criteria: nudity, non-consensual.

That’s a content-based restriction: you’re restricting speech based on the content of it. For example, in 2010 in U.S. v. Stevens, the Supreme Court refused to find that “crush videos”2 were illegal.

But let us assume, for the purposes of this post, that “revenge porn” should and can be criminalized.3 What would a bill look like? CT’s proposal is:

(a) A person is guilty of unlawful dissemination of an intimate image when, with the intent to harass, annoy, alarm or terrorize another person, such person electronically disseminates, without the consent of such other person, a photograph, film, videotape or other recorded image of (1) the genitals, pubic area or buttocks of such other person, or the breast of such other person who is female with less than a fully opaque covering of any portion of such breast below the top of the nipple, or (2) such other person engaged in sexual intercourse, as defined in section 53a-193 of the general statutes.

I’m just going to list the problems with this in bullet format, because it’ll be easier:

  • The “Intent to annoy” language. That’s exceedingly vague and a terribly low standard that’s so variable dependent on the person being so “annoyed”. Your face is annoying to me. Are you a criminal now?
  • “Electronically disseminates”. The bill seeks to criminalize electronic dissemination but nowhere defines that. What if I show the picture to my dying brother in the hospital room? What if I post it on a flyer on a lamppost outside my house?
  • “The genitals, pubic area or buttocks” apparently don’t need to be naked. So I can take a picture of your fat ass as you bend over to pick up a McFry and put it on the internet and now I have to go to jail because you have low self-esteem.
  • This might already exist. Here’s “Breach of Peace in the 2nd Degree“, which states, in relevant part: (a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person. Doesn’t that hit every note on the revenge porn bill? Why do we need a separate one again?4

The Search Warrant That Tracks Your Movement and Gets Your Email and Social Media


It’s innocuously named, but it covers a wide swathe and is important also for what it doesn’t cover. Primarily, the bill purports to bring into line our statutes to comply with two cases: U.S. v. Jones (the GPS case) and State v. Esarey (a case about out of state warrants for email). Also, this bill has nothing to do with the scope of search warrants for the search of your cell phone. That’s the subject of an upcoming column.

As for the GPS. the bill states that police can seek a warrant if they believe that “probable cause to believe that a criminal offense has been, is being, or will be committed and that the use of a tracking device will yield evidence of the commission of that offense”.

So almost immediately we hit upon the first problem: how will a tracking device provide evidence of a crime that has already been committed? Because the warrant seeks to authorize the attachment of a device that tracks the movement of a person or object. So unless that movement in the future (for up to 30 days – another problem with the length of time) corroborates a crime in the past, I see that portion as problematic.

Next, the scope. As it currently stands, there is no limitation on the scope of the data collected and what it can be used for. For example, if the warrant states that the data is being sought to prosecute a high-level drug trafficker and the data shows that the suspect was at the residence of his girlfriend, who has a protective order against him, can the information be used to prosecute him for that? Just like warrants for the searches of homes are very specific as to what can be sought and seized, so should any warrant for this “tracking data”.

If not, doesn’t it become closer to those general warrants the founding fathers of our country so hated?

Speaking of general warrants, the other part of the bill that seeks to address State v. Esarey also succumbs to the same problem. The section incorporates the warrant requirement discussed above and applies it to out of state providers of data “or business entity that provides electronic communication services or remote computing services to the public”. In other words, your email providers and Facebook and Twitter.

Now imagine that: the police believe that you are about to commit a crime, so they get a judge to issue a warrant for your emails. As we’ve already discussed above, with a lack of particularity requirement in the statute, they get everything. EVERYTHING. All your emails.

Who’s to say they can’t read your emails and go on fishing expeditions to find other things that may be evidence of other crimes? Who’s to say they can read your emails and try to find crimes to fit what they see?

Worse, notice isn’t immediate, so you can’t move to quash the subpoena in time or file a motion seeking to limit its scope. The statute says that they have to let you know within 48 hours, but the company has only 5 days to provide all that data. There’s no provision that says they have to turn over the data unless there’s a motion to quash filed.

The Wiretapping/Eavesdropping Bills


This is one strange bill. Not by itself. By itself it’s a “revision” to the eavesdropping statute. It states that no one shall record a private telephonic conversation without alerting the other party in various ways and obtaining that party’s consent. It then lays out various exceptions, including ones for law enforcement and:

(4) Any party who records a telephonic communication, provided the intent of the recording is to memorialize evidence of a crime before, during or after the fact and the unaltered and undisclosed recording must have been submitted to law enforcement within a reasonable amount of time;

One of the exceptions is also the corporation that provides these telephone services as defined in C.G.S. 53a-187(a)(1). This is important when you combine this bill with the next; it becomes a little confusing as to its purpose.


Remember that 53a-187 I just cited above? This one makes changes to that bill. And the change is good, but it’s still a bit confusing in context. The change essentially is that the exception to unlawful wiretapping doesn’t apply to law enforcement acting in the scope of their duties. “Scope of their duties” is amended to now include:

when such official (1) has probable cause to believe that the cellular radio telephone has been used in furtherance of the commission of a crime and has obtained a search warrant that authorizes wiretapping of the cellular radio telephone, or (2) is otherwise authorized by state or federal law to engage in wiretapping of the cellular radio telephone.

There is, of course, already a whole set of wiretapping statutes (54-41a-41u) which aren’t mentioned anywhere.

So I’m confused. Why did we need the previous bill? What does this do? What do any of them do to the actual wiretapping statute?

More importantly, why was this necessary? What are we trying to fix? Is there a problem of law enforcement listening to conversations without warrants and/or PC and if so, why haven’t we heard about it?

Now you know. Call your legislator.


  1. I wrote this post yesterday at which point the testimony had not been posted. I haven’t seen it; I don’t know it; my opinion is mine alone.
  2. Videos of animals being tortured and killed.
  3. As Marc Randazza, First Amendment lawyer extraordinaire and someone who just got a $350,000 judgment against a revenge porn site operator says, there is no greater incentive to stop revenge porn than a civil damages law that would allow victims to sue the pants off the perpetrators.
  4. To see the dangers of vague laws that enforce one person’s dislike of another’s speech, see Krukowski v. Swords in which the prosecution for Risk of Injury was smacked down by the Federal District Court of CT.

Mama said knock you out


What can be more frightening to the innocent man walking down a city street, minding his own business, when a bunch of thugs comes out of nowhere, and for no apparent reason, violently strikes that innocent man causing him physical injury?

Nothing, which is why there was widespread panic last year about the emergence of a new activity that further signaled the moral decay of America’s urban youth: the knockout game.

A game in which seemingly innocent people were randomly targeted to be punched in the head for no other reason than apparent boredom on the part of the hooligans.

And so it comes as no surprise that this viral act of violence that has put fear into the minds and hearts of innocent city working folk and has caused our urban areas to become veritable fields of random assaults has brought about a strict new legislative fix: by God we’ll fix ’em.

The new bill, proposed by legislator and Police Officer Joe Verrengia of West Hartford, CT, would make a “knockout” punch a felony punishable by up to 5 years in jail1. The bill states (and I’ve reproduced the entire section because context is relevant):

(a) A person is guilty of assault in the second degree when:

(1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or

(2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm; or

(3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(4) for a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to such person, without his consent, a drug, substance or preparation capable of producing the same; or

(5) he is a parolee from a correctional institution and with intent to cause physical injury to an employee or member of the Board of Pardons and Paroles, he causes physical injury to such employee or member; or

(6) with intent to cause the loss of consciousness of another person, he causes such injury to such person by a single punch or kick or other singular striking motion.

As you can see from the entire statute reproduced above, (6) is redundant. We must, of course, concede that “loss of consciousness” is “serious physical injury”. Putting aside caselaw that states that a fist or shoe can indeed be a dangerous instrument (thus covering subsections 2 and/or 3), subsection (6) seeks to carve out a specific subset of subsection (1), i.e. causing of serious physical injury. Subsection (1) has no restrictions on the type of injury (loss of consciousness) or the manner in which it is caused (single punch or kick).

So, simply put, (6) is useless. But that’s not all. The bill would make a conviction of subsection (6) have a mandatory prison sentence of at least 2 years.

  1. There is a public hearing scheduled today, which you might be able to watch here.
  2. That I pulled out of my ass.
  3. Or maybe try this on for size.
  4. If I could ask the proponent of the bill one question, it would be this: do you have any statistics to back up the fact that this is an actual real thing? Maybe someone who does have an opportunity to ask that question should.