Defense attorney Marc Victor’s client was facing 30 days in jail and a $500 fine.
The crime: recklessly allowing a dog to chase and injure a cow.
“The injury that was alleged in my case, which went to trial by the way, was stress to a cow. They called an expert who got up on the stand and said, ‘Oh, the cow was stressed, this is how cows display stress,’” Victor said.
The crime, listed in Arizona’s statutes governing agriculture, is one of 671 misdemeanors and 246 felonies that reside outside the state’s criminal code, Title 13 of the Arizona Revised Statutes.
The Arizona Prosecuting Attorneys Advisory Council, or APAAC, has begun a review of Title 13 and all of the criminal provisions in the 45 other titles, said Kim MacEachern, the group’s staff attorney.
Only two sets of statutes, one regulating bonds and one regulating trusts, estates, and protective proceedings, have no criminal provisions, according to a report by the Arizona Legislative Council, a committee whose staff writes legislation and conducts research.
MacEachern said APAAC is taking a big-picture look at all of the criminal provisions to make sure they’re working the way they are supposed to.
“That’s one issue, how do we even know what all the criminal laws are when they’re all so spread out like that,” MacEachern said.
She said it will take much work to get a grasp of all of the regulatory requirements driving the individual criminal provisions. For example, the state might be required to have a certain state law if it is participating in a federally funded program.
MacEachern said the advisory council has taken a break from the project while the Legislature is in session, but will resume afterwards.
Victor, who won his case involving the stress-inducing dog, said he thinks there are too many crimes on the books and too much overlap.
That’s not even counting all the federal laws — and each municipality has its own set of ordinances, he noted.
“I’ve got people coming in with crimes I’ve never heard of and I’ve been practicing criminal law for 22 years,” Victor said.
He said the Legislature should shrink the number of state criminal provisions to a basic set and put them all in the criminal code, which would provide reasonable notice to all of what is a crime.
Victor, who ran for U.S. Senate in 2012 as a Libertarian, said all crimes that don’t involve a victim and regulate morality should also be abolished.
He said many crimes that target very specific conduct can be scrapped and prosecuted under a more broadly defined crime such as trespassing or fraud.
For example, Arizona has a law, punishable by up to 1.5 years in prison, against using force or trickery to prevent the Legislature or a lawmaker from meeting.
Victor said the law isn’t necessary because it could be still be prosecuted as a criminal offense.
“How do you commit this without committing a trespass or a fraud?” he said.
The ‘crime du jour’
Judge Kenneth Fields was a Maricopa County Superior Court Judge for 18 years. He said he and his fellow judges would always view the beginning of a legislative session with humor and foreboding, waiting to see which “crime du jour,” pushed by prosecutors or constituents, would be put into law.
Fields said he often saw prosecutors run to the Legislature on a reflex to a court ruling that was unfavorable to them, or claim they need a much more defined statute to make it easier for them to prosecute.
He said many of the laws that came into existence during his time on the bench could have been prosecuted under the statutes that existed before the new law had the prosecutor simply done adequate research.
“I hate to say this when I talk about prosecutors, but be creative, go to the books,” Fields said.
Fields said he sees the evolution of the criminal code much like the mission creep, or the gradual shift in objective, that take hold in military campaigns.
Criminal codes are re-written every 30 or 40 years and the Legislature immediately starts adding on to it and adding other crimes to other titles.
For example, lawmakers might put a certain offense under statutes governing The Department of Revenue because the agency is the one that will be tasked with enforcement.
Arizona overhauled its criminal code in 1938, 1959, 1978, and 1994.
“If I wasn’t a lawyer, wasn’t a judge, just as a taxpayer I’m astounded at how much effort and money goes into creating more and more criminal statutes, criminal offenses without taking a good look at why do we need this, do we have something that will cover this already,” Fields said.
Very interesting article, and points out the need for the review that is progressing. However, APAAC ought to invite public defenders and private criminal defense attorneys to also provide input.