Talossan Criminal Code: an outline

[Baron Alexandreu Davinescu]

5.4.   In addition to any other punishment authorized by law, a court may order revocation of citizenship (as described elsewhere in this Lexhatx) upon conviction for a misdemeanour, only if the court determines, based on the offender's potential for rehabilitation and any aggravating circumstances of the offense(s), that any lesser punishment is unlikely to deter the offender from repeating his or her criminal behavior.

This should be deleted, or we should be honest and just state that revocation is a possible punishment for all crimes.  Putting it this way is just misleading, I think, since it basically says, "Only serious and terrible crimes that we call felonies may lead to losing your citizenship but not really, actually anything can."

[Baron Alexandreu Davinescu]

A court may order the suspension of all or part of any sentence, for a period of time not to exceed two calendar years. At the end of the period of suspension ordered by the court, the suspended punishment is rescinded if the offender has not violated any condition of the suspension.

This seems weird.   Two years is not a long time for probation, especially for serious crimes.  I'd suggest five years.

[Baron Alexandreu Davinescu]

Are you open to some more work on the crimes definitions?  Since the goal is to throw out all precedent except for Talossan precedent (not a goal I agree with, but c'est la vie), then a few of these definitions become way too broad.  Some are great, but I'm looking in particular at things like fraud and harassment.

[Baron Alexandreu Davinescu]

7.2.10.  Bringing Talossa into disrepute. Any Talossan citizen who has brought Talossa into disrepute, through being convicted by a credible foreign court which is deemed to abide by Talossan values, of a crime established at trial to have involved fraud, harassment, bribery, physical or sexual violence or threats thereof, commits:
7.2.10.1.        A felony if sentenced to penal servitude of more than 2 years.
7.2.10.2.        A serious misdemeanour otherwise.

Quick rewrite for readability:

7.2.10.  Bringing Talossa into disrepute. Any Talossan citizen who has been convicted by a credible foreign court, which has been deemed to abide by Talossan values, of a crime established at trial to have involved fraud, harassment, bribery, physical or sexual violence or threats thereof, has committed the crime of bringing Talossa into disrepute to the following degrees:
7.2.10.1.        A felony if sentenced to penal servitude of more than 2 years.
7.2.10.2.        A serious misdemeanour otherwise.

First quick read suggests the following problem: we are asking that part of the trial judgment include judging whether or not a foreign court is both credible and abides by Talossan values, but we're not defining either of those very squidgy ideas.  Definitions of these terms should be added to the definitions section.

[Miestră Schivă, UrN-GC]

I've noted all the above and will hopefully reply when other events are less pressing. In the meantime it would be good to hear other voices.

[Miestră Schivă, UrN-GC]

adding in some basic provisions about this would probably be a good idea, ie: "A single action of a defendant may be considered to break more than one law and may be charged accordingly."

Sure, why not. (now section 1.3)

5.4.

This should be deleted, or we should be honest and just state that revocation is a possible punishment for all crimes.  Putting it this way is just misleading, I think, since it basically says, "Only serious and terrible crimes that we call felonies may lead to losing your citizenship but not really, actually anything can."

Sure, why not - it was only there because it's in the existing law (as A.5.2.2). Should we think about something else to deal with the "habitual criminal", though?

Two years is not a long time for probation, especially for serious crimes.  I'd suggest five years.

Sure, why not.

Are you open to some more work on the crimes definitions? ... Some are great, but I'm looking in particular at things like fraud and harassment.

Sure, why not; but I don't want them to become too complicated. The definition of harassment comes from Wisconsin law, whereas the definition of fraud comes from the dictionary.

Quick rewrite {of 7.2.10} for readability:

Thanks!

we are asking that part of the trial judgment include judging whether or not a foreign court is both credible and abides by Talossan values, but we're not defining either of those very squidgy ideas.  Definitions of these terms should be added to the definitions section.

Hmmm. You know, I forgot that I put the term "Talossan values" in there, and I'm not sure I still like it, so happy to hear alternatives. I think honestly we have to go at this through a negative definition - i.e. it's far easier to declare that a Court is not "credible" or doesn't abide by our values than the other way around (i.e. it doesn't provide a fair trial in the way we would recognize it in Talossa, because of lack of judicial independence or serious bias against certain kinds of people.)

But honestly, very glad to hear you seem to like the direction I've gone in with this. Thanks again to Marcel for the idea. Speaking of which...

My idea for maximum punishments would be something like this:
Felony -- 5 years of civil disability and/or ℓ500 ($750)
Severe misdemeanour -- 1 year of civil disability and/or ℓ100 ($150)
Misdemeanour -- 6 months of civil disability and/or ℓ50 ($75)

An ordinary misdemeanour doesn't carry civil disability, by definition - but apart from that, sure, why not.

Check out the updated version: https://docs.google.com/document/d/1OfQlUZrowS4frssyea6-SLxz8Pcss5WNNxyKud82lQw/edit?usp=sharing

[Baron Alexandreu Davinescu]

Sure, why not - it was only there because it's in the existing law (as A.5.2.2). Should we think about something else to deal with the "habitual criminal", though?

I would be inclined to simply leave that up to the discretion of the sentencing judge, myself, but I don't feel strongly either way.

Hmmm. You know, I forgot that I put the term "Talossan values" in there, and I'm not sure I still like it, so happy to hear alternatives. I think honestly we have to go at this through a negative definition - i.e. it's far easier to declare that a Court is not "credible" or doesn't abide by our values than the other way around (i.e. it doesn't provide a fair trial in the way we would recognize it in Talossa, because of lack of judicial independence or serious bias against certain kinds of people.)

Looking at the text again, I think we're going to need to put in an actual process for the "established at trial" bit, since it's very ambiguous about what that would mean.  I would suggest that the best way to accomplish this would be to create a special kind of judicial hearing.  This is something that happens in all sorts of ways in different courtrooms.  For example, many American courts that have abolished cash bail will decide whether or not to keep someone in custody based on a special "dangerousness hearing."  This would just put in place a process to resolve the standard you're setting into law.

As I see it, you're suggesting two things need to be resolved to meet this standard:

1. Was someone convicted of a crime that matches the definition of stuff we really don't like?
2. Was this conviction fair (ie, was it in a place like Auckland or a place more like Tehran)?

I think that in the vast majority of cases, the second question will be one of just checking the box.  It's not often going to be in dispute about whether or not a conviction was actually fair, especially if we are clear that the specifics of the trial really aren't the question.  We don't want people trying to argue that they had ineffective counsel, for example.  So we can probably handle these questions in that order, and the central part of the process will just be the very simple question of whether a conviction qualifies as "bribery" or whatnot.  I don't really worry about anyone getting persecuted or railroaded with such a process.

Before continuing, does all of that seem correct to you?

[Ián Tamorán S.H.]

A court may order the suspension of all or part of any sentence, for a period of time not to exceed two calendar years. At the end of the period of suspension ordered by the court, the suspended punishment is rescinded if the offender has not violated any condition of the suspension.

This seems weird.   Two years is not a long time for probation, especially for serious crimes.  I'd suggest five years.

Be careful to define, within Talossan Law, the meaning of the word "probation"... I believe its meaning differs on the two sides of the Atlantic.

[Ián Tamorán S.H.]

....
Hmmm. You know, I forgot that I put the term "Talossan values" in there, and I'm not sure I still like it, so happy to hear alternatives. I think honestly we have to go at this through a negative definition - i.e. it's far easier to declare that a Court is not "credible" or doesn't abide by our values than the other way around (i.e. it doesn't provide a fair trial in the way we would recognize it in Talossa, because of lack of judicial independence or serious bias against certain kinds of people.)
....

My personal opinion is that Talossa should accept NO other court as binding over Talossa. That is, if a citizen is convicted in some foreign court of some offence, then it is up to a Talossan Cort in the first instance to accept or ignore that foreign ruling. "Does the alleged offence contravene Talossan Law?" is the first question, and "Has the foreign court reached its opinion in a manner that seems, to Talossa, to be just?".  Thus we, in Talossa, should decide, case by case, whether to proceed under Talossan Law and jurisdiction, and are not inevitably bound by any external judgement (except, as I try always to remind us, for offences against human rights as internationally recognised).
In most cases this will be an easy decision - for example, an offence committed in and tried in California is very likely to be accepted within Talossa with no further real questioning; but an offence allegedly committed in Iran, and tried there, requires careful - very careful - inspection by us before we proceed. I have Iranian friends whose tales should not be listened to if you are at all queasy; some of my friends are refugees here in the UK on the basis of their having spoken publicly about police brutality.

Thus, I suggest, Talossa should accept the rulings of NO foreign courts, except those upholding internationally recognised human rights.  This would mean that we have no obligation to define within our Laws the meaning of "just" and "unjust" in foreign courts, but only in our own.

[Baron Alexandreu Davinescu]

A court may order the suspension of all or part of any sentence, for a period of time not to exceed two calendar years. At the end of the period of suspension ordered by the court, the suspended punishment is rescinded if the offender has not violated any condition of the suspension.

This seems weird.   Two years is not a long time for probation, especially for serious crimes.  I'd suggest five years.

Be careful to define, within Talossan Law, the meaning of the word "probation"... I believe its meaning differs on the two sides of the Atlantic.

The probation process is already included in the bill as devised by the Seneschal.  But I do agree, Senator Tamoran: sometimes people can come to startling conclusions about the meaning of words, and we should sharply scrutinize anything that might be ambiguous.

[Miestră Schivă, UrN-GC]

As I see it, you're suggesting two things need to be resolved to meet this standard:

1. Was someone convicted of a crime that matches the definition of stuff we really don't like?
2. Was this conviction fair (ie, was it in a place like Auckland or a place more like Tehran)?

I think that in the vast majority of cases, the second question will be one of just checking the box.  It's not often going to be in dispute about whether or not a conviction was actually fair, especially if we are clear that the specifics of the trial really aren't the question.  We don't want people trying to argue that they had ineffective counsel, for example.  So we can probably handle these questions in that order, and the central part of the process will just be the very simple question of whether a conviction qualifies as "bribery" or whatnot.  I don't really worry about anyone getting persecuted or railroaded with such a process.

Before continuing, does all of that seem correct to you?

I believe that all this is correct, but I also like Ián T.'s approach. I think we have to keep in mind that we don't want a process which is so strict or so complicated that it just won't be used.

We should keep in mind the only precedent for this situation - the I. Canún situation - and whatever standard we raise, we should think: how would the I. Canún case have played out under this standard? I mean, I would like to believe that whether a foreign court ruling is credible would be a box-ticking exercise: but unless I'm very mistaken, at the time of the Canún case, certain prominent Talossans were saying that the US court ruling was not credible, based on their conservative political beliefs about how it's "too easy" to be convicted of  sexual violence these days.

I wouldn't be averse to excising 7.2.10 and debating it separately, if the rest of the bill is uncontroversial and won't attract a Royal veto.

[Baron Alexandreu Davinescu]

I believe that all this is correct, but I also like Ián T.'s approach. I think we have to keep in mind that we don't want a process which is so strict or so complicated that it just won't be used.

I have to admit that I don't really understand any differences with Ian's approach.  It seems like he's just agreeing with the current proposal in kind of an elliptical way.  Isn't the whole point of what we're doing that it's an effort to separate out credible convictions from the unjust garbage, rather than to accept them uncritically?

We should keep in mind the only precedent for this situation - the I. Canún situation - and whatever standard we raise, we should think: how would the I. Canún case have played out under this standard? I mean, I would like to believe that whether a foreign court ruling is credible would be a box-ticking exercise: but unless I'm very mistaken, at the time of the Canún case, certain prominent Talossans were saying that the US court ruling was not credible, based on their conservative political beliefs about how it's "too easy" to be convicted of  sexual violence these days.

I know that some people were initially hesitant to just assume that Iusti did something really wrong when they just first heard that he'd been convicted of something, but I don't think anyone opposed action after the facts became known.  I certainly think it would be really hard for anyone to try to argue that American courts weren't largely credible (despite my own liberal grumblings on the topic).

I agree, anyway, that we should be thinking of that case.  But we should also be thinking about other possible cases: the deeply unpopular jerk (or political dissident) who gets convicted of something relatively harmless.  We need to assume that someone will try to abuse the power we're giving to the people in charge, and build in reasonable safeguards.

I wouldn't be averse to excising 7.2.10 and debating it separately, if the rest of the bill is uncontroversial and won't attract a Royal veto.

I don't know of any reason why any of this would draw a veto, since as far as I can see, none of His Majesty's objections would remain if the process and rule-of-law issues were fixed.  Obviously I can't speak for His Majesty, but everything seems on the up-and-up (even though we might want to bug Sir Cresti to take a look once we're farther along).

[Baron Alexandreu Davinescu]

1. Was someone convicted of a crime that matches the definition of stuff we really don't like?
2. Was this conviction fair (ie, was it in a place like Auckland or a place more like Tehran)?

So then, the process of deciding if we should give any credibility to the court.  I don't know what we'd call it.  Maybe a crieisteac'ht - a credit-hearing?  I'm fond of a good portmanteau neologism, but not married to it.

The person in question is going to be unlikely to defend themselves, so they need state representation -- does the public defender proposal already here cover them enough?

The thing to probably do, if we think about how it will play out, is that a prosecutor would just need to bring charges that pass a hearing with a judge, who would need to decide based on a set of standards we set.

Maybe something like this:

A charge of bringing Talossa into ill-repute may only proceed to prosecution if a judge, after a full and fair hearing conducted in the presence of counsel for the accused, determines that the foreign conviction meets the following criteria:
1. The conviction is likely to qualify as the crime of bringing Talossa into ill-repute under the terms of 7.10.1,
2. The conviction took place after a full and fair hearing in a competent court of law.

[Miestră Schivă, UrN-GC]

Still thinking about this. Feel free to talk amongst yourselves.

[GV]

without the class system, there are no maximum lengths for civil disability or maximum amounts for fines now.

ESB got 18 years civil disability, which was later overturned, which IMHO was ridiculous. 5 years maximum civil disability? 500 louis maximum fine (which would be half our total treasury)?

Perjury definition corrected.

Such a fine could be 'paid' by way of a contribution to any non-religious charitable organization with proof of contribution being sufficient as the 'fine' having been 'paid'. 

[GV]

Still thinking about this. Feel free to talk amongst yourselves.

We need a durable and specific definition of 'treason'.

[Miestră Schivă, UrN-GC]

Still thinking about this. Feel free to talk amongst yourselves.

We need a durable and specific definition of 'treason'.

7.2.1 Whoever knowingly endangers the existence of the Kingdom of Talossa, its laws, institutions and state property, by enlisting or attempting to enlist the aid of non-Talossans, commits the felony of treason.

[Baron Alexandreu Davinescu]

without the class system, there are no maximum lengths for civil disability or maximum amounts for fines now.

ESB got 18 years civil disability, which was later overturned, which IMHO was ridiculous. 5 years maximum civil disability? 500 louis maximum fine (which would be half our total treasury)?

Perjury definition corrected.

Such a fine could be 'paid' by way of a contribution to any non-religious charitable organization with proof of contribution being sufficient as the 'fine' having been 'paid'.

Making this a general rule seems like it could lead to problems, with people deliberately donating to abhorrent causes to "stick it" to those who force them to pay a penalty.  Maybe it might make more sense to adapt it into a provision in the law which directs that BHAID issue recommendations on what part of a fine might be donated by the state and to which charities, where they deem appropriate?  Same result with more flexibility and less risk.

[Miestră Schivă, UrN-GC]

The person in question is going to be unlikely to defend themselves, so they need state representation -- does the public defender proposal already here cover them enough?

That was what I wrote it specifically to do, but I value any suggestions for improvement.

A charge of bringing Talossa into ill-repute may only proceed to prosecution if a judge, after a full and fair hearing conducted in the presence of counsel for the accused, determines that the foreign conviction meets the following criteria:
1. The conviction is likely to qualify as the crime of bringing Talossa into ill-repute under the terms of 7.10.1,
2. The conviction took place after a full and fair hearing in a competent court of law.

This is, like, 90% of the actual burden of proof for the crime, so I'm not sure it makes sense to put it into a preliminary hearing before a judge? Like, you'd want to have a "double trial"? If the accused has to retain and instruct counsel, exactly how are they saved any hassle by going through this process?

There is also the problem of: why is this crime so special that it needs a "double trial"? As opposed to, I dunno, treason or harassment within Talossa?

I get your point about not wanting to open the door to political prosecutions. But any crime can be open to a political prosecution. If you were to ask Lord Hooligan, I'm sure he'd say his own prosecution (out of the aftermath of the ESB Affair) was a political hit-job. If you want to avoid political prosecutions in general, then I would suggest something like a grand jury system. One which wouldn't indict a ham sandwich like its US equivalent, though.

[Miestră Schivă, UrN-GC]

Maybe it might make more sense to adapt it into a provision in the law which directs that BHAID issue recommendations on what part of a fine might be donated by the state and to which charities, where they deem appropriate?  Same result with more flexibility and less risk.

Or, much more simply:

A fine shall be payable to the Burgermeister of Internal Revenue, or to any appropriate charitable institution as the Cort may direct, and shall be considered paid upon receipt for that payment being received by the Cort.