Criminal Code Reform Act

[Sir C. M. Siervicül]

WHEREAS, 31RZ14 and 35RZ21 have provided the Kingdom with a comprehensive Criminal Code, but

WHEREAS, our Criminal Code was not drafted by Talossans and does not take into account the unique circumstances and needs of the Kingdom, and

WHEREAS, recent events illustrate the need for reform Talossan criminal justice system with a view to tailoring it to our aforementioned circumstances and needs, and

WHEREAS, the severity of certain offenses under the Criminal Code should be enhanced to reflect the especial threat such offenses pose to public order in the Kingdom,

THEREFORE, the Ziu hereby enacts that,

1. The abolishment of common law crimes contained in section 939.10 of the Criminal Code and the abolishment of common law penalties in section 939.61(3) of the Criminal Code shall not be construed to infringe upon the inherent authority of the courts to criminally punish contempt of their authority.

2. Authorized punishments:

(a) Banishment. Banishment may be ordered in conjunction with revocation of citizenship in any felony case. Banishment prohibits the former citizen from entering the territory of the Kingdom of Talossa. A former Talossan who has been banished may not be reinstated as a citizen.

(b) Revocation of citizenship. A sentence of revocation of citizenship directs the Chancery to remove the offender from the list of Talossan citizens. Simple revocation is without prejudice to a future reapplication for citizenship. Revocation of citizenship may be ordered under the following circumstances:

i. Felonies. If a court determines not to impose a sentence of imprisonment pursuant to subparagraph (c) below, the court shall order that the citizenship of the offender be revoked and that he or she be banished from Talossa. In all other felony cases, revocation may be ordered in the discretion of the court.

ii. Misdemeanours. In addition to any other punishment authorized by law, a court may order revocation of citizenship 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.

(c) Imprisonment. Nothwithstanding any other provision of the Criminal Code, upon conviction of any crime for which a sentence of imprisonment is authorized by law, a court shall not order imprisonment as part of a sentence unless the offender is physically present to order into custody, and the Attorney General certifies that appropriate resources are available to the government to carry out the sentence of the court.

(d) Civil disability. Civil disabilities may be imposed in conjunction with a suspended sentence upon conviction of any crime for which imprisonment is authorized, but where a sentence of imprisonment or revocation of citizenship has been suspended pursuant to section 3 of this act. Civil disabilities differ from conditions of suspension in that civil disabilities are intended to be punishment in themselves, and violation of a civil disability is punishable as criminal contempt of court rather than as violation of a condition of suspension. Civil disabilities apply to the offender only during the period of suspension (or any lesser portion thereof specified by the court), and may include any or all of the following:

i. Bar from holding national executive office

ii. Bar from holding national judicial office

iii. Bar from holding national legislative office

iv. Bar from holding provincial office

v. Bar from performing military service

vi. Bar from service in the Royal Household

vii. Bar from posting on Wittenberg

(e) Fines. When a fine or forfeiture is imposed as a component of any sentence, the court shall specify the the period within which the sum must be paid, which period shall not be less than thirty days. The court may, in the interests of justice, allow the offender to pay the sum in more than one installment, according to a schedule prescribed by the court. Willful failure to pay a fine or forfeiture within the time provided is punishable as criminal contempt of court.

(f) Restitution. When imposing sentence for any crime or forfeiture, a court, in addition to any other penalty authorized by law, shall order the offender to make full or partial restitution to any victim of a crime considered at sentencing or, if the victim is deceased, to his or her estate, unless the court finds substantial reason not to do so and states the reason on the record. The court must specify a reasonable period of time, not less than thirty days, within which the offender must make restitution. Willful failure to make restitution within the time provided is punishable as criminal contempt of court. Court-ordered restitution shall not bar any victim from pursuing any civil remedies available at law to recover any amount or type of damages not covered by the order of restitution.

(g) Reprimand. In all criminal and forfeiture cases, a court may reprimand the offender in addition to (or in lieu of, where no minimum punishment applies) any other authorized punishment.

3. Suspended sentences:

(a) A court may order the suspension of all or part of any sentence, for a period of time not to exceed three times the maximum period of imprisonment authorized for the crimes of which the offender has been convicted, except that no suspension shall be for a period shorter than six months when the maximum period of imprisonment is less than two months the maximum period of suspension is six months. In forfeiture cases, a forfeiture may be suspended for a period of up to six months. 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.

(b) If a court determines, by a preponderance of the evidence, that the offender violated any condition of his suspension during the period of the suspension, the suspension shall be revoked and the original punishment imposed. Nothing in this paragraph shall be construed to prohibit prosecuting an act violating a condition of suspension as a criminal offense in its own right, either in the same or a separate action as the revocation of suspension.

(c) Refraining from committing any further crimes or forfeitures is an implicit condition of every suspended sentence. Other conditions which may be imposed by the court include, but are not limited to:

i. Injunction from requesting or accepting royal honours

ii. Injunction from violating Wittiquette

iii. The performance of a fixed amount of community service under the supervision of a public body or not-for-profit organization, as directed or approved by the court.

4. Increased penalties for certain offenses against public peace and order:

(a) Whoever commits any of the acts prohibited by section 947.0125(3) of the Criminal Code, relating to the unlawful use of computerized communication systems, is guilty of a class C misdemeanour.

(b) Whoever commits any of the acts prohibited by section 947.013(1m) of the Criminal Code, relating to harassment, is guilty of a class C misdemeanour.

(c) Section 939.32(2) of the Criminal Code, relating to reduced penalties for attempted computer crimes, is hereby repealed.

5. Any class B or class C misdemeanour may be prosecuted as a forfeiture of any class, if the Attorney General determines that such prosecution would best serve the interests of justice.

Ureu q'estadra så: C.M. Siervicül (MC, Maricopa)

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Hopefully, the SoS will be lenient with me, despite the fact that the Hoppering period for these bills will expire well beyond the 21st of the month.

[Danihel Laurieir]

Fellow Justice CM S:

Excellent, thorough work. Just what we need.

Before I ask a few questions about this proposal, let me point out that the PM can--under the newly adopted Hopper amendment--fastrack this legislation if he so chooses. He may also--under his long-standing PD power--issue an executive order making these provisions law.

Questions:

1. Explain what Section 1 is all about.

2. In section 2 (c), the bill reads :"a court shall not order imprisonment as part of a sentence unless the offender is physically present to order into custody." Effectively this means Talossa will never imprison anyone because only the rarest offender in the rarest of circumstances will ever be physically present to a Talossan Cort in order to be so sentenced. That's good, I think. I don't like having the imprisonment option.

3. In section 3 (a), there's very specific language about the minimum period of time that the Cort may order the suspension of a sentence (six months). Why? Why not give the Cort flexibility to adjust this to meet various circumstances? In some cases, this length of time may well be overkill. Some degree of flexiblity in most Talossan contexts comes in handy often enough.

4. In section 4, could you identify what's being repealed and what the other Wisconsin statutory references are.

5. What about adding a "community service" type punishment or restitution to the list of allowable dispositions?

FYI, I would support this bill even if my minor concerns were not incorporated.

[Sir C. M. Siervicül]

Lord Laurier,

Thank you for your constructive questions. Here are my best attempts at answering them.

danlorentz said:

1. Explain what Section 1 is all about.

The Anglo-American legal system, as I'm sure you know, is based on common law - i.e., before legislatures got busy legislating every aspect of life, most law was created by the courts one ruling at a time. Over the course of centuries, an extensive body of law based on judicial precedent evolved, including criminal law. The common law felonies, for example, included homicide, rape, robbery, larceny, burglary, and arson. These crimes had well-understood definitions that were based on previous court decisions rather than on any statute passed by a legislature.

In modern times, legislatures have assumed greater responsibility for defining criminal acts, and consequently most U.S. states (including Wisconsin) have abolished common law crimes. Since we adopted Wisconsin law for our criminal code, that means Talossa has abolished common law crimes too. One common law crime which might be particularly useful for us, however, and which is not replaced by anything else in the criminal code, is contempt of court. (Wisconsin's contempt scheme is in a different part of the statutes and has done away with the distinction between civil and criminal contempt.) The point of section 1 is to resurrect the common law crime of contempt, which would allow courts to criminally punish those who contemptuously defy their authority - e.g., by disrupting court proceedings or disobeying an order of the court.

I could argue that contempt of court survives the statutory abolition of common law crimes, but I'd rather clarify the point to avoid any doubt.

2. In section 2 (c), the bill reads :"a court shall not order imprisonment as part of a sentence unless the offender is physically present to order into custody." Effectively this means Talossa will never imprison anyone because only the rarest offender in the rarest of circumstances will ever be physically present to a Talossan Cort in order to be so sentenced. That's good, I think. I don't like having the imprisonment option.

That's what I was thinking. Our crimes are punishable by imprisonment because Wisconsin's crimes are punishable by imprisonment. Which is all well and good if the United States miraculously decide to recognize the Kingdom's claim to the East Side and we are suddenly in a position where we have to actually exercise sovereignty over our territory. But assuming that that's unlikely to happen anytime soon ( ), I wanted to clarify that we do not intend to start incarcerating people in the foreseeable future.

3. In section 3 (a), there's very specific language about the minimum period of time that the Cort may order the suspension of a sentence (six months). Why? Why not give the Cort flexibility to adjust this to meet various circumstances? In some cases, this length of time may well be overkill. Some degree of flexiblity in most Talossan contexts comes in handy often enough.

That's a good point. I was trying to ensure that reasonable periods of suspension were available for forfeitures and for misdemeanours with very short maximum sentences notwithstanding the "three times the maximum sentence" formula. Then I put in a separate sentence addressing forfeitures and didn't revisit the original language. Upon further reflection I agree that we do not need a minimum period of suspension, I just want to make sure that the maximum available to the court is at least six months. So how about rephrasing 3(a) as follows:

"A court may order the suspension of all or part of any sentence, for a period of time not to exceed three times the maximum period of imprisonment authorized for the crimes of which the offender has been convicted, except that when the maximum period of imprisonment is less than two months the maximum period of suspension is six months. In forfeiture cases, a forfeiture may be suspended for a period of up to six months. 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."

There's probably a simpler and clearer way of wording this that someone else can think of.

4. In section 4, could you identify what's being repealed and what the other Wisconsin statutory references are.

Section 939.32(2) (which I have proposed repealing) deals with attempts to commit computer crimes (such as hacking, denial of service attacks, etc.). Generally, if you attempt to commit a felony you're guilty of a felony, and if you attempt to commit a misdemeanour you're guilty of a misdemeanour, and the maximum sentence for the attempt is half the maximum sentence for the completed crime. Section 939.32(2), however, states that a first offense of attempting to commit a computer crime (normally a misdemeanour) is only a class D forfeiture. Forfeitures (similar to what other states call "infractions") aren't even considered to be crimes. We are unusually vulnerable as a nation to computer crime, so I think we want to take a more serious approach to computer crime than the state of Wisconsin does. Therefore, by repealing Section 939.32(2), attempted hacking would always be a misdemeanour rather than a forfeiture.

As for the other statutory references:

Section 947.0125 of the criminal code prohibits "unlawful use of computerized communication systems" - things like posting threats or obscene messages via e-mail or a message board. 947.0125(2) says that these kinds of acts are a class B misdemeanour when committed "with intent to frighten, intimidate, threaten, abuse or harass another person." 947.0125(3) says that these kinds of acts are a class B forfeiture when committed "with intent to harass, annoy, or offend another person." Section 4(a) of my act would elevate 947.0125(3) offenses from class B forfeitures to class C misdemeanours.

Section 947.013 of the criminal code deals with harassment. 947.013(1m) states that anyone who, inter alia, "engages in a course of conduct or repeatedly commits acts which harass or intimidate the person and which serve no legitimate purpose" with the intent to harass or intimidate another person is subject to a class B forfeiture. Here, again, I want to increase the level of the offense to a class C misdemeanour.

Why these changes? Well, for one thing, increasing the severity of these offenses is more in keeping with the greater threat they pose to our "smaller, more intimate and more fragile community" (to quote an eminent Talossan legal authority). Also, since forfeitures are defined as not being "crimes" in the criminal code, we can't organically revoke someone's citizenship for committing any of the offense addressed in section 4, no matter how egregiously or repeatedly, unless we raise them to misdemeanours.

5. What about adding a "community service" type punishment or restitution to the list of allowable dispositions?

That's an excellent idea. I'll come up with a community service provision to add to the proposal. Restitution is already in there.

One other change I plan to make - specifying that only the Uppermost Court can impose the penalties of banishment and revocation. This is required by the 16th Covenant.

[Sir C. M. Siervicül]

Lord Lauriéir,

I have made a number of changes to my proposal based on your suggestions. I have revised section 3(a) to do away with the six-month minimum for suspended sentences. I have ensured that each statutory reference has at least some kind of description of the subject of the statute cited. Finally, in section 3(c), I have explicitly authorized community service as a possible condition of suspended sentences.