by Paul Alan Levy
In the short space of a few days, the House and Senate of the Pennsylvania legislature have passed a bill allowing judges to issue injunctions, or grant any other “appropriate relief” if there is “conduct” by a criminal “offender” that “perpetuates the continuing effect of the crime on the victim,” in any manner reason including that it “causes a temporary or permanent state of mental anguish.”
Press reports reflect that the bill was proposed as a response to the fact that Goddard College played a pre-recorded commencement speech from one of its graduates, who was convicted many years ago of killing a police officer. Campaigns to overturn his death penalty and conviction have been trendy among some on the left (I have long been astonished at the arguments advanced on this point by otherwise sensible people), while at the same time sparking outrage among law enforcement officials and right-wing bloggers and politicians. Claiming that the very fact that he was allowed to speak (without, apparently, mentioning his conviction or the charges against him) “revictimized” the police officer’s widow, the bill was apparently intended as a variant on the Son of Sam law that the Supreme Court struck down under the First Amendment in Simon and Schuster v. New York Crime Victims Board. But in an apparent effort to avoid charges that the bill is aimed at free speech, it is written as providing a cause of action against “conduct” that causes mental anguish.
But even assuming that judges addressing the constitutionality of the statute are fooled by this figleaf, you have to wonder at the exceptional breadth of the statute. If a criminal defendant files an appeal from his conviction, would that cause the victim mental anguish? What if the defendant merely pleads not guilty and forces the holding of a public trial in which the victim has to testify about the facts of the crime? Can appealing, or pleading not guilty, be enjoined?
The web site of the Pennsylvania Legislature reflects that the bill’s primary sponsor withdrew; I'd like to think it was because of embarrassment at having his or her name associated with the legislation after the media focused on its patent unconstitutionality. Apparently, however, that was not enough to prevent a majority of the members of the two houses from passing a bill the threatens to make Pennsylvania a national laughing stock. This language was adopted by the state senate by vote of 37-11; the vote was reportedly unanimous in the state house, where not a single legislator had the guts to say that the emperor has no clothes.
Media reports are that Governor Tom Corbett plans to put his name on the bill by signing it. Has he really no shame?