Nowhere is it worse than with sex crimes. We’ve criminalized everything, and we’ve ratcheted up the punishments. The system now hands out life sentences like it’s giving candy to trick-or-treaters on Halloween. The luckiest defendants get probation, but it may be debatable whether they’re luckier at all. The government pries into and controls every aspect of their lives. They take lie detector tests about their most intimate details. They go to therapy and group meetings where they’re made to feel like slime. They’re kept away from minors, even their own children, and they’re told where to live, with whom to associate, and what technologies they can and can’t use. Many are forced to spend their whole lives reporting to someone. So the public can know about the miserable life they’ve been ordered to lead, we make them register too.

With regard to registration, I’m almost a little proud of my state. In Arizona, we’ve only made sex offender registration mandatory for certain offenses. For other offenses, it’s up to the court. I say I’m “almost” a little proud, however, because registration is only permissive in theory. In practice, courts begin with the presumption everyone should have to register. On occasion, they even say so. Better safe than sorry, right? Judges worry defendants might do something bad to someone if they don’t have the added stigma of publicly humiliation. To prevent theoretical future harm to presently unknown victims, courts do very real harm to the poor defendants standing in front of them.

People can find themselves standing before a judge and begging not to have to register for all kinds of things. Judges have discretion to order registration for defendants who masquerade as a minor in an adult film, for adult business violations that amount to little more than zoning, for strip club owners who don’t adequately keep minors out, for people who offend others with their sex acts, for guys who take a leak by the side of the road, and for adultery. That’s just the tip of the iceberg. An Arizona court’s authority to order registration is actually broader than you’d probably ever imagine because a defendant can be ordered to register for any crime committed with sexual motivation. Drive drunk to get laid? Steal a Hustler from a gas station? You may have something else to worry about. After you plead guilty, the government may go tell your friends and family and neighbors you’re a convicted sex offender.

No matter how absurd the charges may seem, what judge wants to risk it? Sexual motivation may be a broad concept, but it still means the crime somehow involved sex. Sex is scary. What if the defendant is really bad deep down and just got caught doing something not so bad? Being safe rather than sorry means we have to ruin lives. You can’t make an omelette without breaking some eggs. Plenty of good eggs get broken in our quest for security. We can pretend we only ruin bad guys’ lives, but that’s not the way it works. People know that deep down. They just don’t care.

The problem is at the root of our culture. In fact, it’s the foundation of most people’s outlook on the world. We don’t care about freedom or virtue. We care about quality of life, and we want to preserve it. We’ve developed the erroneous belief that the power of the state isn’t the biggest threat to our well-being, but rather the source of it. We are capable of holding that belief because we’ve been so stable for so long. It’s also because the bad things the government does happen to people who seem different from us. In criminal law, that means we pretend the government’s evil deeds are only focused on people who’ve done something wrong. That way we don’t feel bad for them.

All of this keeps getting closer to home for ordinary Americans. The government expanded what’s illegal little by little, then lots by lots. We aren’t all officially criminals yet, of course, but we will be soon at this pace. Even when we get there, people may still be thinking better safe than sorry because we won’t be catching everyone. By the time the government creep has crept over all of us, the punishments will be so harsh we couldn’t fight it if we wanted. We won’t see the error of our pathological thirst for safety until the government is so big and bad it’s undeniable to even the dumbest among us that the government has always been the real threat to our safety. Until then, not being sorry is here to stay.

Although there’s plenty of lip service given to the contrary, with one defendant after another, courts start with the assumption they’re going to impose registration. Rather than start with the idea that a person should be left alone unless there’s good reason to think the public might need registration to be protected from him, they start with a mindset that somehow justifies the public humiliation of other human beings as a default because of a vague fear they might regret something sometime in the future. It’s a symptom of a diseased worldview. It’s all about thinking we’re better off safe than sorry.

We may well end up a nation of single mothers by the time people figure out there’s something wrong. I should look on the bright side, though. Fathers won’t be able to see their kids because the terms of their sex offender probation won’t allow it, but luckily, kids can keep up with their dads online through the sex offender registries.

To get a client released from custody, I needed to get her accepted into an approved rehab facility. She could only get into the approved rehab facilities by doing an intake appointment. The facilities only set intake appointments for people who are out of custody.

Initially, I would encounter similar situations and become angry. I assumed they were caused by incompetence and thought the people in charge would fix it if they knew what they’d done. Although my anger began to diminish as I encountered those situations over and over again, it flared back up when I finally realized that the people in charge often not only knew what they’d done, but did it for a reason.

These days, when I see a Catch-22, I assume some bureaucrat planned it. I’m right more than frequently than you might think. I regularly see just how far the government will go to create an unfair situation that ensures a certain result without actually having to demand that result. Government incompetence, though pervasive, isn’t universal. Sometimes, things that appear to be incompetence are actually cleverness, albeit evil bureaucratic cleverness.

It would’ve been too easy for the government to just say that it didn’t want my client released. We all know that’s what it wants, but people might get upset if it came out and said it. It figured out a creative way around that problem.

Creating a Catch-22 may seem needlessly complex, but it usually gets the desired result. At the very least, it ties up a defense lawyer for a little while, and it doesn’t make it look like the big bad government is refusing to release people who need to be released. It’s a win-win-win situation for everyone except the real human being involuntarily caught up in the system.

I almost feel as if I should be impressed by the irritating creativity the government musters from time to time.

Unlike those sentencing options, I’ve never much liked the idea of court-ordered fines. It’s easy for me to understand why restitution, supervision, and even incarceration are available options to a sentencing judge. I’m not inherently skeptical about a judge’s motivation in ordering any of those as part of a sentence. That isn’t the case with fines.

I think there’s something fundamentally wrong about a judge with a cushy job and lots of power ordering a poor defendant to give money to a taxpayer-funded court. It’s always struck me as problematic that a judge can lawfully order another person to pay the judge’s employer. It only seems worse to me taking into consideration the fact Arizona has elected judges in many jurisdictions as well as strange things like judicial productivity credits. I think it’s ridiculous that we give the power to order fines to people whose re-election hopes and salaries can hinge on the financial situation of the entity to which the fines are going. It should come as no surprise to anyone that courts frequently bury defendants in all types of fines, surcharges, fees, and assessments. If I can punish you by making you give me and my boss your money, why wouldn’t I?

Yesterday afternoon, I saw a typical exchange between a judge and a defendant as I waited to get a new court date from the clerk in a misdemeanor jurisdiction. It went something like this:

Judge: You haven’t made any payments on your fine.
Defendant: I don’t have any money. I can’t find work. My kids are hungry.
Judge: That’s what you said last time.
Defendant: I’m really trying, I promise. The economy is bad. I’m trying to find work.
Judge: What’s changed between this time and last time?
Defendant: Nothing. I was trying to find work then too. I’m bound to find something sooner or later. Please give me more time.
Judge: You said that last time. Why shouldn’t I just throw you in jail and get it over with?
Defendant: My family needs me. We can’t even afford a fridge. Or a stove. We’re behind on rent. I need to find work.
Judge: I’ll give you one more chance. No matter what, you’re going in next time unless you pay your fines in full
Defendant: Thank you, I promise I’ll do my best.

Given the court and the hour of the day, I imagine the defendant owed the fines in an old DUI case. He had probably been ordered to pay the minimum fine and surcharge, which total over a thousand dollars. He probably had to pay a couple hundred dollars for mandatory alcohol screening plus hundreds more for the recommended alcohol classes. He probably had to pay for his own incarceration costs too. Because of the conviction, if he wants to drive, he probably has to pay about a hundred dollars a month for the mandatory interlock device, and he’d probably have to pay hundreds of extra dollars each year to have special SR-22 insurance. Like with most people, his DUI at some became a money pit. I’m sure it also made it especially tough for him to find work, as lots of jobs won’t hire people with DUIs.

The discussion I heard really bothered me, just like it always does. I hear it all the time. The court, which has ordered a fine, is demanding payment. The defendant, who probably couldn’t even afford decent representation, is stuck trying to pay what most people would consider an enormous amount of money. I’ve found that judges rarely show even the slightest hint of understanding in such situations. I often notice quite the contrast between the shabbily-dressed defendant with work-worn hands and the judge with an expensive watch and delicate hands peeking out from beneath his black robe. I think about how sick it is that a guy who’s walking home to his house with no fridge because he’s too poor to get his license reinstated or buy appliances could be ordered by a judge who’s probably driving his Lexus back to a big home in Paradise Valley to pay a fine to a court housed in a multi-million-dollar building. The court doesn’t need his money. It means the world to him and his family though.

I think the message is supposed to be that crime doesn’t pay. It’s too bad that message is false. Crime does pay. If you get away with it or if you’re the government, that is. Regardless, even if the message was true, it wouldn’t matter. That guy with the DUI lost his license. He went to jail. He attended court then classes then victim impact panels. His life was disrupted and he and everyone around him suffered. Now, some rich guy is threatening to mess up his life and his family’s life a little more because he’s too poor to line the coffers of the rich guy’s even-richer boss. With the crime long since past, the message is not that crime doesn’t pay, but that the system and the people in it can be very, very cruel. It may not have the same ring to it as crime doesn’t pay, but at least it’s true.

From now on, I will purchase whatever I want no matter what it costs. The days of budgeting and saving are over. I will make sure I open many accounts and make my finances as complicated as possible. I will borrow more than I can afford to pay back. I will borrow it so quickly that nobody can reduce my credit limit in time. I’m going to do my best to figure out some way to set my own credit limit too, and if I’m successful, I’ll set it so high that my creditors’ heads will explode.

My plan will not have any negative repercussions because I know from the news that I have all of Washington behind me. After reading the news, I know that democrats and republicans in congress alike will put consumer credit reporting agencies under investigative scrutiny when they drop my beloved credit score. You hear that, Experian? Equifax? Transunion? Downgrade my rating and some powerful people are going to restrict your influence before you know what hit you. Democratic Rep. Barney Frank and Republican Rep. Randy Neugebauer will be on it right away, calling for you to have a smaller role in determining my creditworthiness. Democratic Rep. Dennis Kucinich will tirelessly investigate if there’s some way you guys could have benefited financially from your decision, and a bunch of other democrats will get severely peeved about mistakes you made estimating the deficits caused by my unbelievably complex financial plan. Everyone will agree that your ratings are worthless because you failed to predict the financial crisis I created.

Washington will see that none of the consequences of my actions are my fault at all. Again thanks to the news, I know that our wise leaders will see that my terrible credit score and subsequent difficulties purchasing more jet skis and Margaritaville Frozen Concoction Makers are no reflection of me, but rather of the influence of the Tea Party movement. Democratic Rep. Debbie Wasserman Schultz knows a bunch of tyrants when she sees them, and you just can’t bargain with those jerks. I’m sure they’ll play some part in blocking the more comprehensive bargain I’ll want on my debt ceiling after I start to feel the crunch.

The news tells me that Democrat Senator Tim Johnson would jump to my aid. He’ll accuse those who might hold me accountable as being “irresponsible”, citing the horrific “spillover effects” I might experience, like increased interest rates. The agencies and creditors’ game of political punditry simply will not go unnoticed. Even Obama will jump to my aid by disputing the naysayers’ political judgment and challenging their competence. With the amount of spending I’ll be doing, I’m gonna be way too big to fail. I can do whatever I want because what I want is so important that I shouldn’t have to worry about details like whether I can actually afford it.

My plan is foolproof, so please, don’t bother telling me how I’m wrong. The news is clear. With Washington on my side, I’ll be just fine.

How much braking power do you have? How much acceleration do you have? How does the road surface feel? How does your car feel? Do you have enough grip? Can you push it more, or are you at the edge? Where is the edge? How do you know you’re there? Are your inputs smooth? Where is the weight of the car? Front or back? How is it affected by throttle or brake? Do you need to change it? How and to what extent? Where’s the best line? Can you see it? Where are the other cars? There are countless things to consider, and those are just a few. As you get better on the track, the things you begin to notice on public roads are astounding.

Thinking back about every lap, every group meeting, and every time I’ve had someone else in the car giving me pointers, there’s one thing I’ve never heard anyone mention: the speedometer. Looking down at your speedometer is the last thing you want to do. In fact, it’s a totally useless instrument because the data it provides is pointless. You don’t know when you’re about to lose control based on the speedometer. It doesn’t tell you when or how to brake or to apply throttle. If instructors told wannabe racecar drivers to drive based on the speedometer, every lap would result in a giant pile-up after the first few turns.

The things that make someone a better driver are things that involve awareness. Doing anything well, and safely, requires awareness more than anything. Sadly, though, being aware is a subtle thing. A police officer can’t sit by the side of the road with an awareness-meter, stopping every person who doesn’t meet the minimum standard. You can’t cite someone for inattentiveness unless it’s manifested in some sort of physical symptom that’s prohibited by law. Like most subtle things, awareness isn’t valued by most people. The average driver doesn’t pay attention to much of anything. Most people drive by following traffic signs and signals. Most people are terrible, dangerous drivers who are completely ignorant of their own surroundings.

We have too many rules. I pass hundreds of signs every day telling me what I can’t do. Those signs don’t travel at highway speeds. They don’t have motors and weigh tons and have deadly morons driving them, but we’re legally obligated to obey them. People look out for signs and the iron-fisted bean-counters who sit by the side of the road enforcing them. They couldn’t care less about other motorists. The only thing most motorists lack more than awareness is courtesy.

I put a few thousand miles on my motorcycle last week, riding from Phoenix to Boston. In every single state, I saw someone do something perfectly lawful, extremely common, and unsafe beyond belief. In most states, I saw dozens of people do things like that. Passing one billboard after another telling people to “look out for motorcycles,” I got cut off or had my lane otherwise invaded over and over again. Motorists know an officer won’t stop someone for not looking out for motorcycles. On the other hand, everyone knows you can get a ticket in a split second if you start looking out for motorcycles and inadvertently ignore that little needle in your dash, one of the few things in your field of vision that really doesn’t matter.

I abhor speed limits. When I argue against them, most people roll their eyes as if I’m suggesting we go back to the middle ages. They fear we’ll descend into anarchy. They imagine everyone going as fast as their little cars can go, and it scares them. The idea doesn’t bother me at all. If it gets one person’s head up or results in one person paying a little closer attention to something other than a speedometer and a bunch of worthless signs, I’m all for it. Awareness is never a bad thing in driving or in anything else. It shouldn’t be as uncommon as it is, and the first step to increasing it is to take away worthless security blankets like speed limits. I’d sure feel a lot safer without them.

I’m going to exercise some self-control, luckily, and write more than bad jokes. You see, representative Weiner wants to take leave from the house of representatives. I’m disgusted, and it isn’t because of the photos. It’s because other prominent politicians, like “Democratic leader” Nancy Pelosi, are saying things like this snippet from the article linked to above: “Weiner ‘has the love of his family, the confidence of his constituents and the recognition that he needs help. I urge Congressman Weiner to seek that help without the pressures of being a member of Congress.’” Ugh.

Not only is my mind constantly in the gutter, but I’m apparently not very compassionate either. I just don’t have it in me to feel bad for a guy who votes for his own pay-raises, makes a bigger salary with better perks than anyone I know who actually does something useful for society, and who seems to be able to merely “take leave” from his cushy taxpayer-funded job after getting busted for disseminating pictures of his junk. I can’t help but think that, if he was your average American, after this kind of public debacle, he wouldn’t have the love of his family or the confidence of anyone save those lucky ladies who got to check out the goods and liked what they saw.

It’s two different worlds for the rulers and the ruled. If I was publicly humiliated after doing something like that, I’m pretty sure my clients wouldn’t take too kindly to me taking a few months to find myself. I’d be going to court and doing my job despite the snickers from everyone who knew. If necessary, I’d be finding myself when I wasn’t taking care of my other responsibilities. Everyone but the ruling elite would probably find themselves in the same situation.

Why do we put up with this? Personally, I don’t care what he sent or to whom he sent it so long as he continued to do his job. I do care about one of the luckiest men on earth being able to use a ridiculous sex scandal as an excuse to take a vacation from his great job to work on what the lemmings who elected him probably believe to be a character flaw. Try that the next time you do something stupid and wish you could avoid showing your face to people that know. It makes me sick, but then again, maybe I just have Weiner envy.

I sat in chambers last month and listened to a seasoned judge talk about how he’d love to continue a trial but couldn’t because “they” were getting onto him about granting too many continuances. This is a man who can, and probably has, imposed the death penalty at some point. He clearly has a boss. Probably more than one. His bosses tell him how to do his job. Given the fact judicial retention elections are not exactly close calls, his bosses aren’t the voting public. Some group of people I don’t know is able to tell him how to do his job.

I see judges having bosses as a big problem. I don’t oppose higher courts reviewing lower courts’ rulings because I get to read why they do what they do. They have a building and offices and courtrooms. They sign their names to decisions. When some mysterious controlling force known only as “they” is telling a guy in a robe how to decide my client’s case, that’s a different story altogether. I can’t talk to them about it because I don’t know who they are. I can’t plead my case to them. What happens in court is being shaped by forces I’m not aware of and can’t control. It’s scary stuff.

I see the problem extending far past the judiciary. More or less every person with whom I discuss politics feels that no single person should have any real power. Everyone seems happy knowing that “they” have all the power. Power needs to be vested in committees or entities because institutions make people feel comfortable. A single politician may be bribed, but hundreds of them are okay. I’ve yet to speak with someone who thinks their congressman would make a good dictator. Somehow giving a whole bunch of idiots the same incredible power to share makes it better.

The root of the problem is that with big government, big business, and big everything else, there’s still a boss. In institutions, everybody has a boss. Always. There’s going to be someone at the top with all the powers you’re scared to give a single person. It might be the politician’s rich donor or the judge’s domineering spouse, but there’ll be someone. The questions isn’t whether we should give all of the power to a single person or group of people. That’s inevitable. The real question is whether we want to know who those people are.

I saw Obama on the television giving a speech yesterday. He was short on details, but his message seemed to be that Americans don’t have to make any sacrifices. We don’t have to cut entitlements or defense spending. We’ll just tax the rich, do some other things I’m apparently not smart enough to understand, and we’ll reduce our debt by fifty-gazillion dollars. Like I said, he was a little short on details. I got the point though.

Before becoming a lawyer, I would’ve probably been fine with taxing the rich to death. I didn’t really know who they were. I didn’t even know what made someone rich in the eyes of the government. I assumed they’d be vacationing in the Hamptons all summer and Aspen all winter, so I’d never meet any of them anyway. They were people in suits and ties, like lawyers. Damn rich lawyers.

I really had no idea how little lawyers, even the ones the government calls rich, actually made. I know better now. They may be rich by some measure, but after taxes, they look a lot worse than pretty much anyone I know who works for the government or gets a W-2.

When starting a firm, most lawyers put themselves in the exact same crappy situation. The money isn’t going to be steady for a while, so they don’t put themselves on payroll. They form a business entity with pass-through taxation. Those aren’t bad things, but they can be dangerous.

Let’s say the business pays $2000 a month for every single necessity, like an office, malpractice, health, and other insurance, office supplies, and all marketing or advertising. Not bad, right? Lean and mean. On the personal side, let’s say the new solo has monthly personal expenses totaling about $2000. About half of that is student loans, and the rest is rent and food and everything else. If anything, that’s less than most new lawyers have in the way of monthly expenses.

Using those numbers, if the business struggles and only makes exactly $4000 each month for the first year, April 15th will be a terrible day. Your accountant will probably tell you that you need to cough up thousands. That’s thousands you don’t have because you spent everything you earned trying not to starve. You’ll have barely made it from a financial standpoint, as every cent went to some necessary expense. You took no vacations and saved no money. You couldn’t make quarterly payments because most of your money went to student loans. Those are the student loans the government made so easy for you to get when you were a dumb teenager and now won’t let you discharge in bankruptcy.

The government doesn’t care that you didn’t actually make any money. There’s no deduction for the hundreds of hours of pro bono or reduced-rate work that tend to accumulate in the first year. Some of your essential business expenses, like bigger office items that must be capitalized and meals with other lawyers, are also not fully deductible. It doesn’t matter that you took some of Brian Tannebaum’s good advice and spent your last $20 not eating alone by taking a master in your field out for a cheese crisp. You spent it on the best (and perhaps most tasty) business investment there is, but only half of that is deductible. You should have saved enough to cover the self-employment tax on the taxable half.

Welcome to the world of a new solo or small firm. It’s living paycheck to paycheck professional-style, and there’s no guarantee you’ll ever get another fee to write another paycheck. The only financial consolation is that you will hopefully grow your business so quickly that you can soon put yourself on payroll, make huge quarterly payments when times are extra good, and pay a smaller percentage of what you tried to save the year before each April 15th. It sure feels great. You’ll being forking over more cash both as a total and as a percentage of your business’s income, but at least you’ll be losing it gradually. You’ll only truly realize just how much Uncle Sam takes every mid-April. It’s easier that way, trust me. If you’re lucky, one day, probably a day when you still feel like you don’t have an extra cent to spare anywhere, you’ll realize you’re one of the rich people Obama wants to tax. Congratulations!

There’s a purpose to this story, and it isn’t just to demonstrate that I’m an irritable jerk when the middle of April rolls around each year. The moral of the story is that you really should want to be a lawyer before you make the jump. Most lawyers are solos or small firms. You probably won’t get rich and famous hanging out a shingle. You’ll probably have a fulfilling, interesting career. That has to be enough. Just because you’re a lawyer, and even if you’re a rich lawyer according to the internal revenue code, you’re probably not that rich. More lawyers live like my example than live like the lawyers you see on television. It’s something to think about before becoming a lawyer, even if you’ll only really have to stop and think about it every April 15th if you do decide to do it.

Well, first off, I definitely see what Mark sees. But I also see something dwelling deep within our society that’s now becoming apparent on the surface. I see that the government, just like most people these days, is on a mission to stamp out awesomeness.

It’s easy to make rules that seem logical and keep people neatly in line. Tell people that violence is at all times wrong. “It never solves anything.” Except when the government uses it, that is. The people obey the government. They choose their positions on issues and how they react to events, like the events depicted in that video, based on a perverted but seemingly logical groupthink. Deciding based on the collective, supposedly reasonable delusion that we can have absolute safety or absolute order or absolute anything, we effectively destroy any and all potential for something really awesome happening.

I love the idea of a bully getting taken down by his victim. In his post about people’s response to the video, Mike Cernovich at Crime & Federalism hit the nail on the head: “The video touches on what Carl Jung or his student Joseph Campbell would call a universal archetype. Deep within our DNA, we hate bullies.” The video is awesome. What happened was awesome. The mere thought of what happened in the video is awesome. Mike’s probably right about why I think that.

In the crazy violence-doesn’t-solve-anything, let’s-all-get-along, no-one-hurt-anyone-else-ever world we live in, the fact something is awesome doesn’t serve as justification at all. No matter how strongly we appreciate something or relate to it deep down, if we can’t convince others that it fits in our boring, ordered system of perpetual uneventfulness, it’s outlawed.

In general, I love the idea of victims fighting back. Innocent homeowners shooting a violent intruder, a store-owner capturing a thief, and any number of tables-turned scenarios get me fired up. They’re awesome. That’s the primary reason why it’s all discouraged by the government.

Putting the intruder or thief through the criminal justice system sucks. They’ll likely get a disproportionate sentence unrelated to the wrong long after the fact, or they’ll get away with it. When they’re starving or bored or high after plotting revenge and new crimes for years in one of the criminal boot camps we call prisons, they won’t remember the time they spent in custody when they think about doing it again. They’d probably remember that time they got shot in both kneecaps.

I love taking a car around a racetrack. Few things feel better than dragging a knee as you take a motorcycle around a sharp corner. Going to the shooting range or just hiking into the wilderness to set up targets and waste some ammo is a blast. These are all awesome things. I cannot justify to a group of nannies why they should let me waste tires or gas or bullets doing something dangerous. That the things I have described are fun and awesome is enough for me. It isn’t enough for them.

As the government influence in my life increases, I suspect I will see an uptick in the need for me to justify things that are awesome. We all will, no matter what it is you do that’s awesome. If it’s really that awesome, then it almost certainly can’t be justified to the kind of people in charge. When I watch the video and hear about the reaction, I think about that.

To answer Mark’s question, what I see is an example of awesomeness, something that may not be around for too long if the majority of people have their way.

Take hindering prosecution, for instance. In Arizona, a person commits the offense of hindering prosecution if, with the intent to hinder the prosecution of another person for any felony, the person renders assistance to the other person. A person can render assistance by knowingly preventing by means of deception anyone from performing an act that might aid in the prosecution of the other person.

I have a client who was in custody last summer, sitting on the chain in court waiting for a hearing. An officer came to court to get a handwriting exemplar from another inmate on the chain, and my client advised the other inmate not to provide it. My client told the other inmate he shouldn’t do it because there was no order. When the officer showed the other inmate the order, my client told him not to sign anything because it was incomplete. Although the order was completed and signed at some point that morning, my client might have been right at the time.

In the end, the other inmate listened to my client, and my client was later charged with hindering prosecution. It was charged as a class 2 felony because the other inmate was accused of murder. Although I question whether the state had anything to prove my client knew the other guy’s charges, the crime as charged carried a mandatory sentencing range of 10 to 35 years. The presumptive sentence was 15.75 years.

My client couldn’t fathom how what he did was illegal. The officer didn’t have an order, so why should that guy have to give a handwriting sample? The order he got later wasn’t complete, so why should he have to follow it? My client thought he was protecting another inmate’s rights. Maybe not the smartest thing to do, but is that really a serious felony offense?

The state would try to show intent to hinder by explaining my client wasn’t a lawyer. Where did he come off advising someone else about what he was legally obligated to do? He must have intended to hinder the officer, right? Without a doubt, my client knowingly rendered assistance to the other inmate, and the exemplar certainly might have aided the prosecution. The state probably wouldn’t have bothered to get it otherwise.

That leaves only whether my client used means of deception to prevent the other inmate from giving the exemplar. In the end, the case would hinge on whether the jury thought my client’s statements, which an officer would claim were untrue because the order was eventually signed, constituted means of deception. Those are words that aren’t explained anywhere in the Arizona Revised Statutes or in any case law. Considering the penalty, my client would have to take one heck of a gamble to find out what a jury thinks they mean.

“This is America!” “I have a right to free speech!” “That order wasn’t signed!” “Since when is giving good advice illegal?” My client couldn’t understand how what he did could possibly be a crime. It was hard to explain to him that his defense could just as easily be a factual basis for a plea of guilty. At trial, a jury of non-lawyers interpreting undefined terms would decide. Is that a chance worth taking?

I could go on and on about other clients with cases involving largely undisputed facts. I can’t even count how many cases I’ve handled where the defense was that the state’s version of events, if true, doesn’t constitute an offense. In each case, I wished that the rules allowed me to file a motion for summary judgment. Unfortunately, the criminal justice system here doesn’t work like that.

I once represented a devoted school district volunteer charged with theft and fraudulent schemes for reallocating grant money for legitimate purposes before the formal approval process was complete. Did reallocating funds exactly as requested and later approved but prior to notice of approval constitute converting control of the funds from an authorized use to an unauthorized use? That was a 3-to-12.5-year question for my client. The risk was too high, so my client never got to ask a jury.

I’ve represented a client charged with felony flight for driving safely and under the speed limit for less than a quarter-mile but taking two slow turns before stopping for the officer behind him. Could that incident, which lasted under 3 minutes from sirens to arrest, be considered willfully fleeing? No one disputed the facts, and we did take that one to a jury; they decided it was enough to constitute flight.

Like my hindering prosecution client, I often find myself wondering how some things can be illegal. This is America, right? Since when is giving advice a crime? Efficiently spending money for a school? Pulling off the main roads to safely stop for an officer? Isn’t this America? Isn’t this a free country? I’m reminded of the words of the great Randy Marsh:

America it is, but free we are not. Whatever you’ve done, no matter what it happens to be, is probably illegal. Just hope the government doesn’t get you in its sights.