Example: Texas Transportation Code § 545.252, which relates to the requirement to stop at railroad crossings. It provides:
It does NOT characterize this as a misdemeanor, and it is not criminal in nature.
In contrast, § 545.401, which relates to reckless driving, clearly states that violation IS is a misdemeanor, and punishable by a fine, confinement in county jail for not more than 30 days, or both.
What do you have to say to this? Technically?
Until Georgia’s sodomy laws (which made both oral and anal sex illegal between consenting adults of both homosexual and heterosexual partners) were overturned, I was committing a felony several times a week.
Now you may be thinking that this was a harmless, antiquated law and that no one was ever sent to prison for consensual sex, but you would be wrong. I have a brother-in-law who spent five years in prison for it. His real crime was making an enemy of the sherriff in his small town. This law was freqently used to convict people that the D.A. couldn’t get on other charges, but wanted to send to jail. For instance, the case that finally got this law overturned: Powell v. the State.
n 1997, Anthony San Juan Powell testified while being tried on a rape charge that the sex he had with a woman in his home was consensual and included oral sex. The jury acquitted him of rape but convicted him of violating the state’s sodomy law. He was sentenced to five years in prison.
There are also many cases of people going to jail on statutory rape when the partners are both male. For instance, the law is willing to let it slide when an eighteen or nineteen year old male has sex with a sixteen or seventeen year old girl, but if both are male, the ‘officially adult’ boy is likely to go to jail. Also the case if the eighteen year old boy is black and his partner is an underaged white girl.
On the other side of the spectrum, I had a boss a few years ago who managed to crash into a cop car, doing eighty mph, drunk, with cocaine in his car, who got off with community service(which he bought his way out of) and probation.
Hamlet, I’m fine with judicial, and jury, discretion and sentencing lattitude. I share your disdain for mandatory sentencing guidelines in statutes. What seems the most dangerous, and yet at the same time the most potentially beneficial, is prosecutiorial lattitude. The anecdote shared by XaMcQ is a negative example, I’m sure there are many positive examples as well. The difference here is the power is concetrated ina prosecutor’s hands versus a judge, who is not an advocate for any position, or a jury of the accused’s peers.
I think the system should start punishing lazy and stupid legislatures instead of building prosecutorial lattitude into something on which a person must rely on to avoid being punished for violating a stupid law.
Enjoy,
Steven
Re: Texas traffic laws and misdemeanors…eh, you’re both right, kinda. The Transportation Code does refer to some fine-only traffic violations as misdemeanors in places, or refers over to the Penal Code as a Class C. Trans. Code § 545.413, dealing with not wearing your seat belt, states “(d) An offense under Subsection (a) is a misdemeanor punishable by a fine of not less than $25 or more than $50. An offense under Subsection (b) is a misdemeanor punishable by a fine of not less than $100 or more than $200.”
Still, nobody actually thinks of fine-only and Class C misdemeanors as real “crime” crimes, they’re just ticketable offenses (although you can get arrested for many of them, see Atwater v. Lago Vista). The Penal Code says a Class C conviction doesn’t impose any sort of “legal disability or disadvantage.” They’re more or less just misdemeanors in name only.
Geez, I start threads, wait patiently for responses, only to see them disappear into the Hamster Black Hole pretty quickly. Then I start this one, and am obliged to be away from the internet for a day, and it already has 80+ posts. Sorry I disappeared.
You are basically right in your interpretation of my OP, Bricker; while whether the fact that just about everybody routinely commits traffic infractions calls into question those laws as well is a valid question, I think addressing that point would expand the scope of this thread so much as to dilute any purpose to this discussion.
Anyway, about that discussion. I am not “antioverpunishmentalism”, my two main concerns are one that has been addressed in some detail - selective enforcement, and another, which hasn’t been addressed as much - effect on respect for the law.
I am a legal romantic. I believe that law is society. Without a consistent code of behavior, civil society cannot exist. But where that code of behavior has expanded to the point where a goodly chunk of the population is or has been in violation of it, is it consistent anymore? Has punishment become less of “you violated the norms of society” and more “you were in the wrong place at the wrong time (when the cop showed up)”?
Arghh, more to say, but have to go now…
Sua
I’m probably a lot older than you. Back when I was a regular pot smoker, it was a felony. And I believe it still is in many places. There were (and still are) lots of people doing MAJOR time for pot offenses from back in the day. They’ve relaxed it quite a bit in the Chicago area. Face it…the jails would be filled to the rafters if they continued with the ridiculous criminalization standards they once had.
A question for the ages!
Me?
Every last one.
All utterly irrelevant to the conversation.
Yeah, you’d think something with a name like that would be illegal in Texas.
You don’t think so? I don’t have a problem with your first sentence, but here you’re committing a fallacy which is done often on this board; picking up your widest brush and wiping out reality to support your argument. How is it “not the case” that laws are selectively enforced only according to harm? The burden of proof is on you.
See? Was that so bad? Here you acknowledged that of course some selection is based on harm, while not letting go of the (well-founded) assertion that it also happens on the basis of race. See how nice it is when we put down the broad brush and stop playing with absolutes?
Well, we all know that you have to register as a sex offender for showing (female) breasts in public during a protest. 
You may have never smoked pot outside of California/Alaska/wherever, but I would wager most of the board’s (ex-)stoners have. I have, and I’ve been busted for it too. (The charges were dropped.)
BTW, here’s something most stoners don’t think about: it’s not illegal to smoke pot in most places, or to be high; only to possess or sell it. In Arizona, where I got busted, it is illegal to be high because the body is defined as a container and thus any substance “in” it is said to be under possession. Grumblesnarks. But like I said, the charges were dropped, so oh well…
And if I commit a felony, and if the charge is dropped because of technicalities, am I a felon? What if a jury returns a verdict of “not guilty”?
For purposes of this thread, the issue is whether you factually committed the crime. It’s the honor system – did you, or didn’t you? It’s irrelevant if a jury found you not guilty – the question is, did your conduct actually violate the law?
Am I felon if all my crimes happened before I was 18? What about if I was a emancipated minor for some of them?
Is it a felony to fail to file taxes if they owe you money? I know it’s a crime, but is it a felony?
I have never committed a felony, and I am not a felon, but I came very close to becoming one anyway.
Reading your little tale makes me take an opportunity to offer the best piece of legal advice I can (IANAL): After they read you your rights, SHUT THE FUCK UP- and say nothing but “I want to speak to my/an attorney” and “Am I free to go?”. This goes triple if your attoney has told you to STFU. You cannot- no matter how innocent you are- talk your way out. All you can do is make things worse. Do not rise to their baiting of “What do you have to hide?” Or “Don’t you want to cooperate?” (if they say the last, you might say “I did, until you read me my rights. I want to speak to my attorney. Am I free to go?”)
Even though Bricker and I disagree fairly often, I’ll bet he agrees with me here! 
Actually I was talking about telling on myself. I long ago learned that if you don’t want others to know something about you then don’t tell those “others,” any of them.
Especially if they are not your own.
Your advice is sage for nearly all cases, but not in my case – mine was an exception to the rule. Had I kept my mouth shut and heeded the advice of my attorneys explicitly, my situation would have played out far worse than it did. Win or lose, I did not want to go to trial and I did not want to accept a plea bargain. The only thing acceptable to me was for my case to be dropped. It was a gamble, but one I needed to take. Sometimes it pays to be aggressively proactive when you are right.
BTW: Even though I was indicted by grand jury, I was never formally charged (only threatened), therefore my rights were not read.
However, if you do want to buck conventional wisdom and talk, I recommend at least having the following points in order:
No, I’m not a felon, multiple or otherwise. Other than speeding now and again, and running the occasional yellow-turning-red light or other minor traffic sins, I can’t think of any crimes or offenses I’ve committed. I’ll be glad to join Lemur 866’s and Bricker’s club of law-abiding citizens.
IMHO, the OP greatly overstates the criminality of the American public. Are there dumb laws out there? Sure. (U.S. Grant once said the best way to get a bad law repealed is to vigorously enforce it). Are fewer people charged than actually commit crimes? Of course. Do prosecutors sometimes abuse their discretion? Alas, yes. When I was a prosecutor, I always tried to remember that my ethical duty was to see that justice was done, not simply to notch another conviction on my belt. I’d just as soon dismiss charges against a clearly innocent person as get a guilty person convicted. I fully acknowledge that not all prosecutors share that view, however.
The American system of law, as a whole and for all its faults, is still one of the best in the world, and perhaps most importantly for this discussion, contains the mechanisms of self-correction: legislative revision or repeal, review by an independent judiciary, a Constitution and a Bill of Rights which most people around the world would be glad to live under (notwithstanding these documents’ current travails, due to this particular White House and Dept. of Justice), pardon and commutation. But it could be better, and we each have a responsibility to make it so.
And I also have to say: Nags Head on a honeymoon? Great idea. But Fayetteville?
I agree wholeheartedly with this strategy. However…I’m not clear on this…does everything you say after your rights are read RECORDED in some way? If you said something prior to the Miranda being read, how do you prove you didn’t say it AFTERWARD? I know many places record the formal questioning, but don’t some places still use long-hand notes? Just curious.
If there is a dispute of this nature, it’s settled by the judge. A suppression hearing is held, and witnesses are called. The judge hears their testimony, observes their demeanor, and weighs the credibility. He then rules for the prosectution.
(Sorry. Old wounds that never heal.)
I was about to howl with indignation until I got to the punch line…I would merely add that the five people who have successfully suppressed illegally obtained evidence (approximatly 1/10 of 1% of all illegally obtained evidence) did so after undergoing serious detriment in the form of bail premium or months of incarceration, etc.
Plus, they don’t give you back the drugs, anyway.
Now, I know your probably using hyperbole here, but do you have any credible cite to back up any part of your outlandish statement?