New Revenge-Porn Statute Policy

The easier a statute makes it to regulate undesirable speech, the less constitutional the statute. For example, Texas Penal Code Section 15.031, Criminal Solicitation of a Minor is more difficult for a prosecutor to prove than Section 33.021(c), Online Solicitation of a Minor because the former requires proof of the specific intent that a crime be committed, but the latter (in subsection (d)) dispenses with that requirement.

Given the choice between a statute that makes his job more difficult, and a statute that makes his job easier, a prosecutor will tend to choose the latter.

So, given the choice between a constitutional statute and an easier-to-prove-but-more-likely-unconstitutional statute a prosecutor will choose the latter. He will naturally choose “not having to prove specific intent” over “having to prove specific intent.”

If legislators and prosecutors listened to me, the legislatures wouldn’t be writing unconstitutional statutes and the prosecutors wouldn’t be enforcing them. But I’m not going to change anyone’s mind by arguing with people who say things like, “Speech, by the mere virtue of being speech, does not receive First Amend­ment pro­tec­tion by default” and then get huffy when told that they are ignorant.

So instead of continuing to argue with political hacks like Mary Anne Franks about whether a statute that makes it easier than current law to publish revenge porn would be constitutional (it would not), from now on I will encourage the passage of such statutes without regard to their unconstitutionality. If it’s an option, prosecutors will prosecute people under these statutes, rather than under more-difficult-to-prove-but-more-likely-constitutional statutes, until at some point someone points out to the courts that the statutes are unconstitutional. Then the statute will be tossed out, along with the convictions of everyone prosecuted before the courts figured out that the statutes were unconstitutional. It’ll be too late then for the State to go back and prosecute everyone under the more-difficult-to-prove statutes.

“But Mark,” you say, “What about the wrongdoers who your plan will in the end be set free because the legislature and the prosecutors couldn’t be bothered to read Stevens and Alvarez for themselves?”
That, friends and neighbors, is not my problem.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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17 Responses to New Revenge-Porn Statute Policy

  1. Mike Paar says:

    “Then the statute will be tossed out, along with the con­vic­tions of every­one pros­e­cuted”

    What is the name of this you allude to that sees to it that the convictions of everyone will be tossed? Or are we relying on prosecutors to dig through their files and voluntarily file the motions to vacate?

  2. Josh C says:

    But Mark, what about the supposed “wrongdoers” who will be caught up in expensive, years-long court battles because no-one pushed to avoid facially unconstitutional laws?

    • Mark Bennett says:

      It’s a fair question.

      I’ve written enough on the topic already, preaching to the choir. I’m not going to keep banging my head against the wall when the people arguing for the statute are intellectually dishonest and nasty.

  3. Josh C says:

    No-one has a right to demand that you work for the public good, and you have plenty of laurels to rest on. I do hope mere intellectual dishonesty and nastiness aren’t enough to silence you though.

    Your cost/benefit calculus is your own, as it should be. As encouragement though, are causes worth supporting because they are easy and pleasant, or because they are just and worthy?

    • Mark Bennett says:

      Please use the threaded reply button.

      I’m good at lawyering, but not at politicking. When you make bacon, you don’t waste your energy wrestling with the pigs.

  4. Josh C says:

    I’m sorry; mobile edition doesn’t show anything that looks like a threaded reply. Also, the link to leave mobile edition just reloads the page (in mobile edition).

  5. Fred says:

    Question: Regarding people who get convicted and punished under a statute that is later declared unconstitutional, do they have any remedies available (other than the usual expungement)?

    Can they seek compensation under Texas’ wrongful conviction system?

    Can they sue under Section 1983 for civil rights violations?

    • Mark Bennett says:

      Probably neither.

      Take a look at Section 103.011 here for the first. I don’t think the courts will interpret “actual innocence” as “not a crime.”

      Under Section 1983, the people depriving the defendant of his rights had no reason to know that they were doing so unlawfully; I think this would protect them.

      It’s questions like this that make me realize how extraordinary a result I got last week.

      • Fred says:

        I disagree with your first point. In my opinion the guy would be ‘actually innocent’ because he was not convicted of something. Isn’t the standard ‘innocent until proven guilty’? So if his conviction was reversed, then he was never convicted. It was an illegal law. And to me that would be a nullity, like it never happened, right?

        This is not something that was revered on a technicality like a bad search or a Brady or Miranda violation. Thus, I think it is distinguishable from your run-of-the-mill reversals.

        Plus, you cannot be convicted of something that is not a crime. It’s not the guy’s fault that the Leg wrote an unconstitutional statute. If the statute is declared to be null & void, then the guy is Actually Innocent, in my opinion.

        If it was me, I think you ought to go ahead and file a claim for compensation. If you get denied, sue, and then see how it all plays out. If you win, it would sure serve as a disincentive for the state to not write unconstitutional laws. Plus, it would seem that public policy would dictate that these people – who were wrongfully convicted under an unconstitutional statute through no fault of their own (‘cuz they did not do anything illegal after all!), should get some form of compensation.

        Many people have served time in prison over this, as you know. So what do you do? Rob Kepple on the TDCAA website has already stated that he was responsible for the language of this statute. He said “it seemed like a good idea at the time.” http://tdcaa.infopop.net/eve/forums/a/tpc/f/157098965/m/9667033216 Well WTF dude?!? I’m supposed to do 10 yrs in prison on YOUR bogus statute because it “seemed like a good idea at the time” to violate my fundamental constitutional rights? A guy loses his job, his money, his family, his reputation, – and his liberty – all because “it seemed like a good idea at the time” and the state gets to walk away from it all and pretend it never even happened.

        Does that seem right to you, Mark?

      • Mark Bennett says:

        “I don’t think the courts will inter­pret ‘actual inno­cence’ as not a crime'” is not a point to which your disagreement is relevant unless you have lots of experience practicing in Texas courts.

        You have to actually read the statute. You might think that “actually innocent” includes “convicted under a void statute,” but the only subsection that might arguably apply is (B): “based on a court finding or determination that the person is actually innocent”; the question is not merely whether he is innocent, but whether a court has found him actually innocent. I don’t think Texas courts will interpret a finding that the statute is void as an implicit finding that the person is actually innocent. I could be wrong, I’ve been surprised before, but your anonymous opinion is worthless.

      • Fred says:

        So how about this, when you go into court with your guy, and you ask for your dismissal, you argue that the court needs to include language that your client is actually innocent. You argue that the statute was a void statute and every conviction is a nullity. If the DA argues the opposite, you make him look like a fool and a person more interested in violating peoples’ rights than in seeing justice done.

        Use that time when you are getting the dismissal paperwork to make your argument for language that would allow your guy – and other guys – to make a claim for compensation. Even if your guy doesn’t quality for compensation, since he never was convicted or went to jail, you still argue for the language anyways so that it will be easier for other guys who have gone to jail to get the language included in their orders.

        The last time that I can think of something like this happening was when Texas’s sodomy law was declared unconstitutional by SCOTUS. Lots of people all over the U.S. were effected.

      • Mark Bennett says:

        The last time that I can think of something like this happening was when Texas’s sodomy law was declared unconstitutional by SCOTUS. Lots of people all over the U.S. were effected.

        Really?

        Were there people in prison for sodomy? People registering as sex offenders for sodomy? Had anyone even been convicted of sodomy in the last 30 years?

      • Fred says:

        To answer your question, “Were there peo­ple in prison for sodomy? Peo­ple reg­is­ter­ing as sex offend­ers for sodomy?” I would respectfully point out that at the time of the Lawrence decision in 2003, the penalty for violating a sodomy law varied very widely from jurisdiction to jurisdiction among those states retaining their sodomy laws. The harshest penalties were in Idaho, where a person convicted of sodomy could earn a life sentence. Michigan followed, with a maximum penalty of 15 years imprisonment while repeat offenders got life.

      • Mark Bennett says:

        Yes, Fred, I read Wikipedia too, and no, that doesn’t answer my question.

        That Idaho could put someone in prison for life for sodomy doesn’t mean it had enforced the statute at all in 30 years.

        Please try harder. I’d really like an answer.

      • Mark Bennett says:

        Hardwick, of Bowers v. Hardwick, was arrested in ’82—21 years before Lawrence—but he was not prosecuted; he had to sue for declaratory judgment. That appears to have been a setup, as does Lawrence v. Texas.

  6. Michael Geiser says:

    I have one small problem with the post:

    “until at some point some­one points out to the courts that the statutes are uncon­sti­tu­tional. Then the statute will be tossed out, along with the con­vic­tions of every­one pros­e­cuted”

    I just don’t one to be one of the people waiting years in prision for the statute to be deemed uncon­sti­tu­tional. No one shoud be “one of the people waiting years in prision”

    I understand the need for limited immunity for prosecutors doing their job, but it is not limited enough IMHO. Prosecutors are professionals and experts and as such have an obligation to do more than “see if the jury will convict”. In a very real sense they have denied the person on trial their freedom before and during the trial. Professionals are held to a higher standard of conduct than non-professionals; Prosecutors for the most part do not have this check/balance.

    Admittedly, few abuse their position and you hear about the few unjust extreme instances and not the vast majority of instances where people do the rigt thing

    • Mark Bennett says:

      I will spread the word among criminal-defense lawyers that the statute is unconstitutional, so that all defendants have a fair shot at getting a lawyer who will challenge the statute. If criminal-defense lawyers aren’t asleep at the switch there will be no reason for a single person to go to prison for a facially unconstitutional statute.

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