The guy in the OP would be charged under the old wording or new wording. How or what “most people” consider to be a WMD or destructive device or big boomstick doesn’t matter in court. It’s the laws definition that matters. You can’t be convicted of crime that hasn’t been previously defined by law.
The point is, by relabeling the crime to use words that commonly mean something much worse, you are trying to cause a miscarriage of justice. You are trying to punish the defendant for a much worse crime that he actually committed.
What if they “rename” a DUI to “attempted vehicular manslaughter of innocent children” (since theoretically you might have crashed into a vehicle carrying kids while drunk)
What if they “rename” jaywalking to “attempting to cause traffic accidents by abusing basic human decency”
Carrying a concealed firearm into somewhere it isn’t allowed : “creating the conditions for a mass shooting”
Yelling “fire” in a movie theatre is now “attempted murder by trampling”.
And so on.
Imagine how this looks if the jury decides to find the defendent not guilty of “possession of a weapon of mass destruction”. What if they are wrong, and the defendant gets his hands on another WMD? Imagine how many innocent people could die. Screw that, reasonable doubt doesn’t apply in his case.
Same thing goes for the penalty phase : the judge cannot very well give the defendant a light sentence for possession of a WMD…
The name of the offence is irrelevant to the question of whether you are guilty of it. The elements of the offence are defined in the legislation; conviction requires that those elements be proved beyond a reseasonable doubt; if they are, then you’ll be convicted. This is so whether the offence is called “possession of a WMD” or “cuddling a fluffy bunny”.
The name of the offence is equally irrelevant to the question of what sentence you get. The statute creating the offence will also stipulate the penalty, or range of penalties, and if there is a range of penalties - there usually is - then general sentencing legislation and/or precedent will determine what factors influence where within that range your particular sentence will fall. The name of the offence is not one of the relevant factors to be taken into account. Doing five years for “possession of a WMD” is no more, and no less, pleasant than doing five years for “cuddling a fluffy bunny”.
Besides, I’d quibble with the view that a bomb is not a weapon of mass destruction. What these weapons have in common is that they are by nature indiscriminate; they don’t target who they kill in the way that a bullet does. Bombs are by nature indiscriminate.
The fact is that someone was making a bomb and they were arrested for making a bomb. Calling it an “explosive device” or a “WMD” doesn’t change the fact that he was making a bomb to kill/maim/injure a number of people.
“Oh my, you’re making a bomb!”
“Oh my, you’re making an explosive device!”
“Oh my, you’re making a WMD!”
Which version means something worse than the others?
Which version is a “much worse crime” than he actually committed?
He made a bomb and was arrested for making a bomb. Legally, according to the wording of the law, it’s a WMD.
Both UDS and doorhinge are assuming that the law is actually enforced rigorously and technically by robotic judges and juries, and that emotions play no part in it.
Nothing could be farther from the truth. The name of things matters hugely. Very little is rational in the legal system. For that matter, the people cooking up the laws paid little or not attention to things like facts in cooking up what the crimes were and what the penalties should be.
Do you think there is some actuarial table they were following that said "if we give a drug dealer 5 years instead of 2, it means less net crimes committed or a lower recidivism rate or some other factor being optimized?
Should a murderer be punished with 10 years, 20 years, or life?
Apparently there is some evidence out there, but lawmakers ignore it in favor of political considerations. This is how we ended up in a country that imprisons more people per capita yet does not have less crime.
So, yeah, if the guys found in possession of the bombs were charged under “youthful indiscretions with high explosives” or “attempted jackassery”, it absolutely would make a difference even if the law read the same way otherwise.
(shortened for clarity.)
I’m not sure what, “read the same way otherwise” means?
Juries bring their own experiences and prejudices with them. It’s up to the prosecutor to make it’s case against the alleged bombmaker. It’s up to the judge to explain the law. It’s the juries responsibility to decide if the prosecutor actually made it’s case beyond a reasonable doubt.
If things were different, things would be different. Is there a law against “youthful indiscretions with high explosives”?
But the judge (and the jury, if they are involved in sentencing) known the facts of the case. They have lived with them for days, possibly, weeks, scrutinising them in considerable detail and considering the motives, circumstances, etc surrounding the offence.
You seem to be suggesting that in considering their verdict and their sentence, they will be more motivated by the short title given to the the offence in general than by the detailed facts of this particular offence, that they are familiar with. I’m not seeing any evidence for this, and it doesn’t strike me as a plausible assumption.
This kind of hyperventilation in the naming of offences isn’t done with a view to influencing judges and juries. It’s done to appeal to voters.
A large portion of the time, this doesn’t really happen. If you read the case reports from convicts who were later exonerated, in most of them you quickly realize that reasonable doubt existed in their cases from the very beginning. Somehow, the jurors were incapable of understanding the concept of “uncertainty” and pretty much went with their “gut” and convicted anyway. I’ve seen hundreds of examples of this. And the judges just sit there and let it happen, and appeals judges rarely lift a finger either.
In some states, those judges are popularly elected. Again, imagine how it would look if they let a defendant go for a crime with a hysteria inducing name, even if the evidence were shoddy.
There are probably a few things to mention.
There are certainly times when a prosecution is launched with the intent of seeing how far a statue can be stretched. If a conviction is returned it does change the law in effect, whilst no conviction tends to define the edge. It isn’t a great way to do things, but it happens.
The guy was caught with two bombs. So, if not possession of WMDs, what more appropriate statute is on the books in that jurisdiction that he could and should be charged with?
There is no doubt that the Weapon of Mass Destruction title is seriously stretched, but that happened a long time ago. A nuke will level a city and kill a hundred thousand people in a second. Chemical and biological weapons can kill similar numbers. World wide of course the humble conventional bomb has killed many many more. It has struck a lot of people that the WMD title has always been deliberately slanted. Adding conventional bombs is really catching up with sanity. In all these, it isn’t the “mass destruction” that really matters anyway, and it never did. A much better term would be Weapons of Indiscriminate Death - WoID[sup]*[/sup]. But we started with nukes, and so WMD stuck.
When you look at people and not nations with WMDs, you are talking terrorists or similar, releasing Sarin in the Tokyo underground is clearly a WoID. 7 people died, hundreds affected. The Boston Marathon bomb killed three and tore apart many others. That did invoke a WMD charge. It certainly counts as a WoID.
So, would people be happier if the charge was “possession of a weapon of indiscriminate death”?
In the end it will be a judge and jury that decide. But judges are usually not fools, and I can’t see one getting the slightest bit of bad press knocking the charge of possessing WMD’s down with a statement like “he is just a stupid kid not a terrorist” and putting him away for a little while anyway. OTOH, the Boston bombing was not the work of a stupid kid.
- You heard it here first.
I agree. We should call something what it is, as much as possible. True, legal definitions often don’t match popular ones. Frequently, this is due to important technical legal issues. In this case, it’s idiotic. A pipe bomb simply is not a WMD, and it’s silly to legally define it that way.
The first two are synonymous. The third is (potentially) significantly worse, based on the meanings of the words in the phrase. Legally, according to a poorly written law, all three are synonymous.
I’m sure we’ve had laws on the books against unlicensed explosive devices since well before 9/11, and those are what we should be using.
I would, because words have meanings, and it’s best when we use them accordingly.
True: that was terrorism, and should have been tried as such, rather than using a term that is generally reserved for weapons that kill huge numbers of people. The Boston bombing didn’t involve a WMD, other than by a silly legal definition that obscures rather than illuminates. Even McVeigh didn’t use a WMD.
The WMD definition in the law is ridiculous and should be held as such. We don’t need to redefine WMD as “bomb”. We already have perfectly good words for that: “bomb” and “explosive device”.
And in this case the law is wrong. Both from a conceptual point of view, a man on the street when asked whether a pipe bomb is “WMD” would say no. The fact the law say “yes” is wrong. Legal codes should represent crimes as they commonly understood by the people in whose name they are being enforced.
It is also wrong from the point of view of protecting the public, one of the reasons for punishments is to act as a deterrent for people considering committing a crime. This guy in the OP is already being charged with making a WMD, so he has no incentive not to try and make an actual WMD.
But getting back to the OP (and away from GD terriotory), Lungfish’s link answered the OP pretty succinctly:
It was part of the Violent Crime Control and Law Enforcement Act of 1994, and the “destructive devices” language adopted into the WMD statute comes from the National Firearms Act of 1937. Other areas of the federal code referring to WMDs have a requirement that the device must be capable of causing a “mass casualty event,” but the WMD charge doesn’t. Federal prosecutors have still been pretty judicious in its use and limiting it to actual mass casualty attacks, though; the Slate article Lungfish links to upthread is a pretty good explanation.
Not at all. Federal judges aren’t stupid, and federal sentencing guidelines allow for the dangerousness of the conduct to be taken into account (along with a host of other issues like prior criminal record, etc.). A kid screwing around with a small pipe bomb for “fun” simply isn’t going to get the same punishment as a guy making a truck bomb intending to disperse Anthrax. For that matter, home made radiological or biological bombs aren’t inherently more dangerous than a conventional bomb - a radiological bomb consisting of a few sticks of dynamite packed with radioactive material is going to be far less destructive than the OKC bombing.
I can see the argument that it’s a poorly named law, but it’s not particularly poorly written - it effectively criminalizes extremely dangerous conduct that we want to see criminalized. As to the title of the offense, the argument that the title prejudices the judge or the jury can just as easily go the other way - a juror could vote to acquit a defendant based on the same arguments made here that a conventional bomb isn’t a weapon of mass destruction by one’s own understanding of the term, even if the defendant’s conduct falls squarely within that that the law criminalizes.
Actually, yes, if he’s sentenced in Pennsylvania state court. Pennsylvania integrates actuarial risk assessments into their sentencing guidelines. Similar rules apply in federal court -the defendant isn’t going to be sentenced based on the title of the offense, he’s going to be sentenced according to federal sentencing guidelines regarding the level of the offense, the dangerousness of the conduct, the number of prior criminal convictions he has, any mitigating or aggravating factors that would justify a downward or upward departure from the guidelines, and so on. The title really doesn’t enter into it. Dzhokhar Tsarnaev’s sentence will be based on the gravity of the facts of his offense and the very real damage he did when he killed and maimed several people and injured hundreds more, not the title of the offense he was charged with.
OK, I think we’re making some progress. You believe that calling a pipe bomb a WMD might confuse the jury. As an ex-juror, my aim was to listen to the case as it was presented. However, I never served on bomb-making case. I listened to the judges instruction and the prosecution and defense lawyers and witnesses. It was up to me to decide if I felt the defendant was guilty of whatever they were charged with.
Assuming Joe Doaks is charged with building a bomb (but not a nuclear bomb). Based on the evidence, Doaks did indeed build a bomb (but not a nuclear bomb). Should the law distinguish between the two? For sentencing, I would say yes. I consider the building of a nuclear bomb to be a much more serious crime. As far as my finding Doaks guilty, I would say no. Building a nuclear bomb doesn’t make Doaks “more” guilty. It’s been proven beyond a reasonable doubt that Doaks built a bomb. He’s guilty.
Legal codes were written to describe crimes as they would commonly be understood by the people in the legislature, court-related professions, and law enforcement. Many criminals would also understand the laws based on their experience breaking them. That is why it’s always a good idea to talk to a criminal lawyer when you are, or might be, charged with a crime. They speak legalese.
The man-on-the-street is subjected to many popular, ever-changing idioms. Most people would understand what had happened if they were told that Jane Doaks had “popped a cap in someone’s ass during a drive-by”. Some legal codes might define “drive-by” but I’m pretty sure that no codes define “popped a cap”. The wording of legal codes can’t be changed every time the public comes up with a new, more colorful, term for an old criminal activity.
I have no idea why Joe “Buckshot” Biden pushed a bill that expanded the legal definition of WMD to include bombs, pipe bombs, explosive devices, etc…
I can only assume the reason generic pipe bomb = WMD, is that it is probably easier to ease up on someone who was just blowing up his neighbor’s mailbox while still allowing you to throw the book at the guy planting hundreds of larger pipe bombs all over a city and indiscriminating killing and maiming people, even though both might have to be charged with the same ‘crime’.
Clearly it would seem more ‘fair’ if we could dissect the nature of the bomb and its potential destructive power into better categories, with a corresponding range of penalties to go with them, but I would argue that all this would do is allow defense attornies even more ability to get guilty clients off. And they would argue there was never enough dissecting. It also puts the onus on the prosecutor to be an expert on the case when the charge is made. After all, even the bomber may not have known how deadly his bomb was when he made it. And will you treat the bomber the same if you catch him blowing up a large bomb bomb in a field that kills a cow, versus a small bomb in a day care center that only horribly maims 10 children? And how do you measure intent? So now you’re the prosecutor, and you have some kind of complex chart system where you have to measure intent on one axis and destructive power of the bomb on another to charge this guy with “malicious mayhem in the 7th degree”. Whoops, it should really have been in the 6th degree, as his lawyer points out, because he used TNT as his explosive instead of RDX as you originally thought, so now he goes free.
Much depends on one’s subjective threshold for when destruction becomes “mass”. That is why the law does not define the offence in terms requiring the jury to decide that question.
To my mind, some bombs clearly qualify as WMD, such as the Timothy McVeigh bomb. Blowing up an entire building is pretty “mass”.
The question then arises, how to define the threshold between WMD bombs and pipe bombs. One might think about the size of the bomb, but as Yarster points out, a small bomb might have devastating effects in, say, a crowded place and a large bomb might just be used for spectacle. And the mass of a bomb doesn’t take into account it’s destructive effect. A kg of C4 is obviously more destructive than a kg of home made dodgy black powder.
Slicing and dicing the definition that takes into account the above factors leads to terrorists gaming the rules - finding explosives that are not mentioned in the list (much like drug dealers invent “designer” drugs that haven’t yet been put into the definitions in legislation) to beat the system, or arranging things so that they use sub-threshold amounts with maximum effect (such as on trains) or keep a number of sub threshold amounts separate, only assembling the final bomb just before use.
I would adopt what Yarster said in his first paragraph above.