Thursday, June 13, 2013

"A statutory circumstance up with which we should not put."

This is classic.  An Ohio Supreme Court Justice invokes the Persian Wars to make a point about overly abstruse obscurantist legislation.  The Volokh Conspiracy post in its entirety:


State v. Willan (Ohio June 12, 2013) involves statutory construction; the court rules, 4-3, that the statute under which defendant was convicted unambiguously applies to defendant, but the dissent argues that the statute is ambiguous and that defendant should prevail because of the Rule of Lenity. The statute reads as follows:
Except when an offender commits a violation of section 2903.01 or 2907.02 of the Revised Code and the penalty imposed for the violation is life imprisonment or commits a violation of section 2903.02 of the Revised Code, if the offender commits a violation of section 2925.03 or 2925.11 of the Revised Code and that section classifies the offender as a major drug offender and requires the imposition of a ten-year prison term on the offender, if the offender commits a felony violation of section 2925.02, 2925.04, 2925.05, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, 4729.37, or 4729.61, division (C) or (D) of section 3719.172, division (C) of section 4729.51, or division (J) of section 4729.54 of the Revised Code that includes the sale, offer to sell, or possession of a schedule I or II controlled substance, with the exception of marihuana, and the court imposing sentence upon the offender finds that the offender is guilty of a specification of the type described in section 2941.1410 of the Revised Code charging that the offender is a major drug offender, if the court imposing sentence upon an offender for a felony finds that the offender is guilty of corrupt activity with the most serious offense in the pattern of corrupt activity being a felony of the first degree, or if the offender is guilty of an attempted violation of section 2907.02 of the Revised Code and, had the offender completed the violation of section 2907.02 of the Revised Code that was attempted, the offender would have been subject to a sentence of life imprisonment or life imprisonment without parole for the violation of section 2907.02 of the Revised Code, the court shall impose upon the offender for the felony violation a ten-year prison term that cannot be reduced pursuant to section 2929.20 or Chapter 2967. or 5120. of the Revised Code.
Acting Chief Justice Pfeifer’s dissent reads, in its entirety:
I join Justice Lanzinger’s well-reasoned dissent, but write separately to highlight the General Assembly’s failure in legislative drafting exemplified by former R.C. 2929.14(D)(3), which the majority opinion relegates to a footnote to fully accommodate its 24 lines of unrelenting abstruseness consisting, remarkably, of the sum total of 307 words and a mere one period, a punctuation mark set out as a lone sentinel facing odds similar to that of the Spartans at the Battle of Thermopylae, a battle that occurred over the course of three days during the second Persian invasion of Greece, and is estimated by historians to have occurred in either August or September, or perhaps both, in 480 B.C., pitting an alliance of Greek city-states, led by King Leonidas of Sparta, against the Persian Empire of Xerxes I, bravely standing before the onslaught of invaders but ultimately unable to stanch the unrelenting tide of the overpowering hordes of words and statutory numbers including R.C. 2903.01, 2907.02, 2903.02, 2925.04, 2925.11, 2925.02, 2925.06, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, 4729.37, 4729.61, 3719.172, 4729.51, 4729.54, 2941.1410, 2929.20, without so much as a helping hand from a single, solitary semicolon, colon, or parenthesis, other than the parentheses surrounding the capital letters denoting the divisions of statutory sections that are sprinkled throughout the statute, a statute that purports to inform the citizenry of the potential penalty for certain enumerated criminal acts, but by cramming so many words about sentencing into one sentence, sentences itself to uselessness, especially in the case of an offender involved in a pattern of corrupt activity, regarding which R.C. 2929.14(D)(3) surprisingly is completely without specificity, in that it fails to cite a statutory section outlining what constitutes corrupt activity when it otherwise lists specific statutory sections relating to all the other offenses to which it applies, a statutory circumstance up with which we should not put.

You read legislation like this, or the Hegelian 1000+ page Portable Affordable Care Act, or whatever it's called, and you cannot help but think  "Lawyers making work for lawyers".

Holy Mackerel.



June 13, 1881 - Hell on Ice

This day in history the exploratory ship, USS Jeanette broke up in the Arctic Ice, beginning the final act of a most incredible tale of three years of human endurance and dogged leadership by George Washington DeLong Naval Academy class of 1865. The tale is ably told in this volume: Hell On Ice The Saga Of The Jeannette by Commander Edward Ellsberg, USNA class of 1914, one hell of a writer. From the Preface to this book:
In the summer of 1910, a boy of eighteen fresh from the Colorado Rockies, I stood, a new midshipman in awkward sailor whites, before that monument and read the inscription to Lieutenant Commander G. W. De Long and the officers and men who perished with him in the Jeanette Expedition of 1879 in search of the North Pole. Casually I noted that no one was buried beneath that cross, and since I had never heard before either of De Long or of the Jeannette, I wandered off to study the monuments to naval heroes whose deeds shone out in the histories I had read the officers who in the wars with Tripoli had humbled the Barbary pirates; those who in the Civil War had braved Confederate forts and ironclad rams to save the Union; and most of all to stand before the tomb of John Paul Jones, the father of our Navy and a valiant seaman, fit companion to the great commanders of all ages. Over the next twenty years I heard again occasionally of De Long in connection with the successful expeditions to the North and to the South Poles, finally reached by Peary and by Amundsen and those who followed in their footsteps. But except as a dismal early failure, De Long's expedition seemed to have no significance, until some seven years ago a brief article by a friend of mine, Commander Louis J. Gulliver, appeared in the Naval Institute summarizing so splendidly the history of the Jeannette that immediately that old stone cross in Annapolis for me took on a new importance and I began to study what had happened. Reading what I could get my hands on concerning it, I soon enough saw that De Long's early failure was a more brilliant chapter in human straggle and achievement than the later successes of Peary and of Amundsen.





Orson Welles and the Mercury Theatre rendered a fine production of the story, based closely upon the Ellsberg book. Listen HERE.