There has been another murderous school shooting. This time in Parkland, Fla.
But this time the advance warnings to the police and FBI were so clear that something could and should have been done to stop it.
I propose a new criminal offense to clearly cover such situations. Here’s why. Traditionally, people come into our criminal justice system only after they commit their crimes.
In general, we do not imprison people because they may eventually commit a crime. Our criminal law has its roots in the English common law. There, every crime had two elements: an intent element, and an act element.
For example, it is not enough that a homicide occurs. That homicide must also be accompanied with a wrongful intent: If while I am chopping wood with an ax, the head of the ax flies off and kills my neighbor, I am not guilty of murder. I had no wrongful intent to kill. There was an act of killing, but no wrongful intent to kill.
Over the centuries, however, given the presence of a wrongful intent, acts in preparation to committing a criminal offense have been criminalized. Given an intent to murder, acts in preparation of the murder have become criminal offenses, even thought the murder itself has not been committed.
This category of criminal offenses is known as the “inchoate offenses.” They include attempt, conspiracy and solicitation.
An “attempt” occurs when a person with intent to commit the principle offense, i.e., murder, robbery, burglary, takes a "substantial step" toward the commission of that offense. A intends to murder B. A pays $5,000 to C to have C kill B. Or A buys a gun for use in killing B.
“Conspiracy” is committed when X and Y agree to rob a bank, and one or more of the conspirators "acts in furtherance" of the conspiracy. The intent is found in the agreement to rob the back. The "act in furtherance" can occur when X purchases weapons to use in the robbery, or when Y acquires the get-away car.
A “solicitation” occurs when with intent that an offense will be committed, the solicitor commands, encourages, or requests another to commit that offense.
In the case of the 19-year-old who murdered 17 people at the Stoneman Douglas High School in Parkland, Florida, it appears the murderer announced his intent on YouTube: “I’m going to be a professional school shooter.” He then apparently took a "substantial step" toward the shooting when he purchased the AR-15. Also, according to reports he further proclaimed his intent to “shoot people with his AR-15.” Because he apparently acted alone, he could not be charged with either conspiracy or solicitation. Both require at least two people. But why not "attempt?" Probably because the offense of attempt has never been applied to precisely this factual situation. Possibly because the penalties for attempt are not sufficiently severe to deter this sort of heinous conduct.
Nevertheless, "attempt" can serve as the model. I suggest that the time has come for Congress and state legislatures to create a criminal offense clearly applicable to the facts of this case.
Here’s my proposed statute:
“A person commits the offense of preparation to Commit Mass Murder and/or Great Bodily Harm’ when before the commission of such mass murder and/or great bodily harm he states, announces or otherwise communicates his intention to commit mass murder and/or great bodily harm orally, in writing, or otherwise and he does any "act in furtherance thereof, "or that constitutes a "substantial step" toward the commission of that offense.
“A person convicted of this offense shall be sentenced to a term of imprisonment of 25 years to life, without possibility of parole or early release. The phrase ‘mass murder and/or great bodily harm’ would include murdering or inflicting great bodily harm on two or more persons at any school, church or other place of worship, pubic event, sporting event, or place of public accommodations where 10 or more people are or are reasonably expected to be present.
The term ‘substantial step’ would include but is not limited to, buying a gun, chemicals, biological elements, a vehicle, or a bomb or bomb making components consistent with the expressed intent, stated, announced or otherwise communicated intent of the person charged.
A person ‘otherwise communicates his intention’ when he writes it in his diary, records it on any media, or posts it on any social media, as well as when he tells anybody his intention, orally or in writing.”
Posted: QCOline.com March 6, 2018
Nevertheless, "attempt" can serve as the model. I suggest that the time has come for Congress and state legislatures to create a criminal offense clearly applicable to the facts of this case.
Here’s my proposed statute:
“A person commits the offense of preparation to Commit Mass Murder and/or Great Bodily Harm’ when before the commission of such mass murder and/or great bodily harm he states, announces or otherwise communicates his intention to commit mass murder and/or great bodily harm orally, in writing, or otherwise and he does any "act in furtherance thereof, "or that constitutes a "substantial step" toward the commission of that offense.
“A person convicted of this offense shall be sentenced to a term of imprisonment of 25 years to life, without possibility of parole or early release. The phrase ‘mass murder and/or great bodily harm’ would include murdering or inflicting great bodily harm on two or more persons at any school, church or other place of worship, pubic event, sporting event, or place of public accommodations where 10 or more people are or are reasonably expected to be present.
The term ‘substantial step’ would include but is not limited to, buying a gun, chemicals, biological elements, a vehicle, or a bomb or bomb making components consistent with the expressed intent, stated, announced or otherwise communicated intent of the person charged.
A person ‘otherwise communicates his intention’ when he writes it in his diary, records it on any media, or posts it on any social media, as well as when he tells anybody his intention, orally or in writing.”
Posted: QCOline.com March 6, 2018
Copyright 2018, John Donald O'Shea
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