Thursday, November 12, 2009

Strictly Speaking

Strict liability is bullshit.

An ex-soldier handing in a found sawed-off shotgun faces five years in an English prison for illegal possession of a firearm. Of course, he only possessed it in order to get it off the streets and turn it into police:

A former soldier who handed a discarded shotgun in to police faces at least five years imprisonment for "doing his duty".

Paul Clarke, 27, was found guilty of possessing a firearm at Guildford Crown Court on Tuesday – after finding the gun and handing it personally to police officers on March 20 this year.

The jury took 20 minutes to make its conviction, and Mr Clarke now faces a minimum of five year's imprisonment for handing in the weapon.

In a statement read out in court, Mr Clarke said: "I didn't think for one moment I would be arrested.

"I thought it was my duty to hand it in and get it off the streets."

The court heard how Mr Clarke was on the balcony of his home in Nailsworth Crescent, Merstham, when he spotted a black bin liner at the bottom of his garden.

In his statement, he said: "I took it indoors and inside found a shorn-off shotgun and two cartridges.

"I didn't know what to do, so the next morning I rang the Chief Superintendent, Adrian Harper, and asked if I could pop in and see him.

"At the police station, I took the gun out of the bag and placed it on the table so it was pointing towards the wall."

Mr Clarke was then arrested immediately for possession of a firearm at Reigate police station, and taken to the cells.

The story goes on to say that Mr. Clarke's intent is irrelevant because gun possession is a "strict liability" offense, meaning that no matter how one comes into possession of a banned item or substance, or whether or not one had mens rea--criminal intent--he is technically guilty.

This is doubly frustrating because he faces "at least" five years in prison. Like some gun and other criminal offenses in the United States, Mr. Clarke is poised to lose five years of his liberty for doing the right thing because of mandatory minimum sentencing laws.

One-size-fits-all laws are pernicious. While most of these laws were crafted to bring uniformity and fairness to criminal sentencing--consistency , generally speaking, is a good thing--they become inflexible barriers to true justice in many cases. As I have said before, judges should be allowed to assess the facts of any given case to bring about a just conclusion to a criminal matter. Statutory constraints like "strict liability"--particularly when coupled with mandatory minimum sentences--cross the line from proper legislative decisionmaking into what should be exclusively judicial purview. Stripping judges of their ability to judge mitigating factors--or, in this case, undisputed facts that should have led to immediate dismissal--can result in the state committing crimes against its citizenry.

While I'm not familiar with the English criminal justice system, given that America's common law is a direct descendant of English common law, there has to be some executive or other official that can issue a pardon for this man. They should issue that pardon immediately, in addition to an apology.

Last year, I wrote a piece for reason on mandatory minimum sentences as they applied to ex-(and hopefully future) NFL star Plaxico Burress, that can be found here. Also, in today's WSJ, the feds are rethinking mandatory minimum policy. Let's hope (against hope, probably) that they get this right, at least on a federal level.

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