23 January 2013

SAFE Act Common Ground (Mark's Law)

Despite the controversy, there are many provisions of the SAFE Act that make sense no matter what side of the "gun control" divide you fall. Given the rancor prevalent in the discussions of this law, maybe it's time to join hands, hum a few bars of "Imagine," and pause for a minute to discuss the parts of the SAFE Act that everybody can agree on, starting with:

MARK'S LAW*1

The crime of Murder in the First Degree is a leftover of New York's now-defunct death penalty scheme. When New York brought the death penalty back on the books in the Patacki administration, the Murder 1st statute was written to separate "normal" intentional murders from the class of aggravated murders that would trigger the application of the death penalty. Included in the "death eligible" category were murders with multiple victims, contract killings, murders committed during the course of certain felonies, and the murder of police officers.

After the death penalty was ruled unconstitutional, the Murder 1st scheme was (for the most part) kept in the penal law, with the top penalty for Murder 1st now life without the possibility of parole instead of death, the unconstitutional death sentencing scheme pruned away by the Court of Appeals.*2

In 2005, the legislature created the crime of "aggravated murder," and again the defining characteristic was it punished cop-killers more severely than plain vanilla murderers. In fact, the operative language is identical to the Murder 1st statute, except that the "life without parole" sentence is mandatory (as opposed to optional at the discretion of the judge for Murder 1st convictions). It was largely a symbolic law, passed to give the impression that the legislature was getting tough on crime, without actually adding anything much of substance to the penal law.

After the Christmas Eve shootings in Webster--where a gunmen started a fire and then set up an ambush for the first responders, killing two volunteer firefighters and wounding two others before killing himself*2--the SAFE Act takes the extremely reasonable step of adding firefighters and other first responders to the class of murder victims that may trigger a prosecution for aggravated murder, with the enhanced mandatory punishment upon conviction to life without the possibility of parole.

As a symbolic measure, I think this provision is reasonable, and probably should have been in the law from the beginning. The rationale for enhanced deterrence against killing police officers--whether you agree with it or not--applies with at least as much force to first responders like fire fighters and EMTs. If we are going to protect cops, we should have the same protections in place for folks who put themselves into harm's way without the benefit of a side-arm.

Will the new provision of the SAFE Act actually protect firefighters and other first responders in any meaningful way? No; probably not. First, the shooter in the Webster shootings would have been facing Murder 1st charges if he had not killed himself, based on the fact that he killed more than one person during the same criminal transaction. Any judge hearing his case would have undoubtedly sentenced him to life without parole, though technically not required to do so--the same enhanced sentence for aggravated murder that the SAFE Act adds to the book.

And even if, in some decidedly non-judge-like cheek turning, the judge had merely sentenced him to 25-years to life, the parole board would have made sure he died in prison. The Webster shooter, had he lived and been brought to trial and convicted, would have spent the rest of his life in prison, under the old law or the new. It is hard to imagine a scenario where any person convicted of killing a responding firefighter would receive anything other than the equivalent of a true life sentence, under the old law or the new.

But, this is how it works: something unspeakably awful happens, and the laws are changed because . . . well, you have to do something, right? The alternative is to accept that our system of laws is powerless to prevent tragedy.

*1 The law is named after Mike Chiapperini, one of the volunteer firefighters killed by the Webster gunman. The other victim was 19-year-old Tomasz Kaczowka.

*2 The maximum penalty for straight intentional murder (Murder in the 2d degree) is 25 years to life. This sentence technically leaves the option of parole on the table, but practically speaking, for an intentional murder conviction, parole is almost never granted and life really does mean life.

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