Pet Peeve: people who don't understand the law.

This is the second, I believe, in my Pet Peeve line of posts. My first was about the constitution, so its kind of related.

Now, much like the constitution, I don't expect everyone to know or understand all the minutia or vagueries of the law. However, if you are going to go on a rant about this and that, calling for prosecutor's heads, or planning the demise of a judge's career, then I think you should at least know what it is you are talking about.

I use this story as an example. I know some of you never, ever, go to the links I provide, which frankly really cuts down on how much you can understand about what I am saying, but for you, this is a story about Kamilyn Hadley, who left her child in her car, and the child died. Now, this post is not for me to say how I feel about what she did. It is clear that it is a tragedy, and I cannot fathom such a lapse in the regular everyday thought process. But, this post isn't dedicated to hashing and rehashing her guilt or how she should be punished, she is merely going to be used as an example. Or, maybe more specifically, the comments on the trib story will be used.

If you go to the above link, and read the comments that people left, you will find pages of wild eyed anger. Anger at her, anger at the prosector, but mostly anger at the judge for this 'travesty'. My post here will mostly be in response to some of the rantings of a poster named Utahlady. This 'lady' spews her vitriol mostly surrounding the idea of getting Judge Allphin voted off the bench, and putting in place a law that would be minimum 15 years for this crime. There are two massive flaws with her anger. I'll touch on each in turn.

First, a judge can only (or at least should only) rule on what is in front of him. In this case, what was in front of Judge Allphin was a class A misdemeanor. From my experience prosecuting misdemeanors in SLC, I can tell you this, the vast majority are resolved through plea agreements. The vast majority never spend one moment in jail. Probation is the rule rather than the exception, and this is even more especially true for a first time offender. That is the way of it, you can disagree with the why, but one cannot argue against the reality that that is how misdemeanor prosecution is handled. Anyway. Judge Allphin had a misdemeanor in front of him, the most he could find her guilty of was a misdemeanor. The biggest penalty he could give her would be a year in jail. He could not have punished her any more than that, period.

To be angry at the judge for not giving her serious prison time is asinine.

Second, several people voiced the desire to change the law, to make this crime punishable by 15 years, minimum. Here is where my biggest pet peeve comes into play, and also the idea that people ranting, should really understand at least a little about something, before the go off on a rant. Let me lay out a little basic criminal law. In order to be guilty, one has to have intent (if you've seen law and order, or legally blonde, thats the Mens Rea, criminal mind). The only exception is in strict liabilty, which there is only one strict liability crime that I can think of, so that doesn't pertain. Here are the different intents as spelled out in Utah Law (you'll find this at Utah Code Annotated 76-2-103 for anyone interested).

Intentional

Knowingly

Recklessly

Negligently (and since this is criminal law, this refers to criminal negligence)

In the example of the recent death of the baby, it seems that everyone can agree that it was negligence, some just want it to be punishable as if it were one of the higher culpabilities.

These different intent levels are a foundational part of criminal law. They put into law the idea that the more one knows about the consequences of ones actions, and the more willingly one does it, the more culpable. In my opinion it is one of the least arguable portions of criminal law, period.

Unfortunately, in cases like this, people think (or don't think) with their emotions. Luckily, these people rarely have enough power to do anything. And, luckily, we have Judges like Michael Allphin.

In the interest of openness, it should be mentioned that Judge Allphin was my Stake President for years and years. I personally know him, and think he is a great man. That does not, however, affect the legal analysis I put forward.