Instantman discusses a Leno monologue last night in which he derided the latest Congressional pay raise.

Actually, Congressional pay is the least of my worries--in terms of the total budget, it's spitting into a hurricane. The big problem is all the other things that they come up with to spend money on, many of which I don't even want.

As for their salaries, I'd be happy to double them, as long as they promised not to come in to work.

If this attempt to double the size of the federal register (literally) (see http://www.washingtonpost.com/wp-dyn/articles/A47908-2002Jul23.html) is the best the house can do when it gets down to work, I'd be happy to triple their salaries just to get them to stay the hell home.

Now they want to make it illegal to even attempt any federal crime, and make the attempt carry the same punishment as the actual offense. This has to be the most stunningly bad idea to come out of the house that I've ever seen. And they gave themselves a raise?

How about a reverse commission system. They lose money everytime a bill is proposed, a committe has a hearing or a vote is held. At least then we would know how much a vote is worth to a congressman.

Why is it a mistake to make an attempt to commit a federal crime a crime itself? Actually, I'm surprised it isn't already. Most state criminal codes do the same thing, and the punishment is the same as if the attempt were successful. The Model Penal Code takes the same approach, I think. It makes sense: if you can prove an attempt, then there's no reason to let the guy off just because his attempt failed. The only general exception is murder: attempted murderers are typically not punished as murderers. I'm not sure why.

Yes, that doesn't bother me as much as the fact that there are too many federal crimes, period. The federal government has been sticking its nose into areas of criminality that the Founders never could have intended.

Another thought--for every regulation or law they want to create, require that they remove two old ones from the books. It would take forty or fifty years before we caught up, but it's a good start, I think.
And someone in the blogosphere recently suggested all new laws and regulations automatically sunset after five years. That would have both make sure they don't waste time on things they're not serious about, and make them reaffirm their seriousness every five years--as well as reducing the number of bills they could pass. Win/Win.

Yes, the "Sunset Amendment" was my suggestion (among others') to Gene Volokh's contest to come up with new constitutional amendments.

Sexual harrassment is against the law, and we know how vague the actual definition of sexual harrassment is. So lets make attempted sexual harrassment against the law as well. There goes what flimsy protection the whole "repeated, unwanted attention" clause provided. All you need is for him to ask you out once, and you've got yourself an attempted sexual harrassment case.

As Steve said, its against the law already to attempt most crimes, like rape, murder, assault, etc. Those make sense to me.

What happens though, when people start getting arrested for attempted tax evasion (they didn't actually evade any taxes, but they looked into ways to do it)? How bout the guy who owns both a book on growing pot, and a planter or two... should he spend as much time in jail as someone caught growing pot?

I have no issues with punishing attempts to commit criminals acts. But Rand nailed it when he said "there are too many federal crimes, period." We already have completely nonsensical laws on the books. I fail completely to see how making even attempting to break these laws a crime will improve our country.

In my bleaker, more cynical moments I toy with a Congressional Lottery. Every two years we randomly choose two representatives, say, and every six we pick one senator. Then stone them to death on the steps of the Capitol. The longer you stayed in politics, the greater your chances of having your number come up.

Call it the Shirley Jackson Amendment.

Since the judiciary keeps finding terms limits unconstitutional...

I agree that the criminal law is overly federalized. My only point is that punishing attempted crimes on par with completed crimes isn't a new or particularly troubling development. The only issue is how do you define or prove an attempt.

To use Celeste's hypothetical: I don't think having a book or a planter would constitute an attempt. But imagine that the fellow ordered some marijuana seed out of a classified in the back pages of "High Times," a periodical dedicated to pot, planted and grew it, but it turned out that, unbeknownst to the would-be grower, the seed was actually fennel. The guy had only succeeded in growing fennel, but he thought he was growing pot, and did everything he could to grow pot. My opinions about the "drug war" to one side, I'm not troubled that he would be punished for an attempt to grow pot, nor that the punishment would be equal to someone who actually succeeded.

I agree that drug laws, to the extent that we should have them, should be state or local laws. As should gun laws. But Celeste, you wrote in your first post that the idea of punishing attempts was "stunningly bad," and I disagree with that. I agree that the crimes shouldn't be federal, but, as a general principle, I don't think there's anything wrong with punishing attempts.

Now I'm going to attempt to work.

A part time body, no pay and term limits. And no free booze for Teddy!

Stephen,

Funny, my dad keeps suggesting the same thing...

While it would be lots of fun though, it wouldn't be likely to improve the breed much, now would it? A random lottery doesn't provide much deterrent to making bad laws. Its as likely Armey would be selected for stoning as Toricelli.

Perhaps give 1 point for every bill a congressman sponsors, and half a point for every bill a congressman co-sponsors, and at the end of the year, whoever in each house has the highest score gets executed. At least it might make a congressman think twice before signing on to support a bad piece of legislation.

What might also help stem the tide of dumb legislation would be to prevent congressmen from voting on legislation unless it has been read out loud to the assembly in its entirety and that congressman has been present for the reading. This might reduce the number of sneaky amendments and riders that make it through, and at the least it will be boring enough for our lawmakers that they'll have some incentive to keep their bills as short and concise as possible.

Steve,

I still contend that the idea is stunningly bad, for the simple fact that our legislators know how much of the federal code is bunk, and yet they still propose to add to it.

I can't believe that I'm the only one here who thinks that attempting to commit a crime does not rise to the same level as committing a crime. I just don't think that trying and failing to break into someones house is as bad as trying and succeeding. Also, nowhere in the proposed change to the language do they define what constitutes an attempt. You also say, Steve, that "I don't think having a book or a planter would constitute an attempt." I don't see why not. I know a guy who is serving a five year prison term for conspiracy to distribute cocaine. He never tested positive for drugs, the police never found any drugs on him, but he was convicted and sentenced to five years mandatory minimum on the basis of one taped telephone conversation where he discussed the possibility of selling some cocaine. I'd say having a how-to book and a planter shows more intent to commit the crime than a phone converation with nothing else to back it up.

I also don't think that this sort of change to our laws should be able to just slip on by without debate. We have to live with too many poorly thought out pieces of legislation (the ADA combined with sexual harrassment law is probably my favorite example) already. I think congress should stop and think about how far this change could take things instead of leaving it up to the police and courts to decide how far they want to take it.

Where a lot of arguments about criminalising attempted illegal acts run into problems is one of the elementary principles of Common Law jurisprudence: nullum crimen, nulla poena sine iniuria (no crime, no punishment without injury). Of course this is honoured more in the breach than the observance - many things are crimes which do not involve injury (growing, but not consuming, marijuana springs to mind), but surely the bar must be set higher for illegal acts that never actually happened. What is 'attempted rape', for example? To have even the scantiest chance of a conviction, some violence and/or coercion must have been employed, even if the rape itself does not occur. That is prima facie a crime, since there is injury. But being punished equally for trying to grow pot and failing, and actually growing the stuff? That's ludicrous. At the very least it presents the same sort of moral hazard as the 'three strikes' rule - if you're going to be punished anyway, why not go the whole hog?

Sorry, Rand. I loved the idea and remembered it, but there's something about the internet that causes credit for ideas to evaporate.
But I'll remember from now on.

Celeste wrote;

"As Steve said, its against the law already to
attempt most crimes, like rape, murder, assault,
etc."

Just a minor point. Assault is attempted battery.
So, attempted assault is an attempted attempt.

There was a criminal case in the Oregon appellate
system on this very point some years ago, based
on some Byzantine Oregon criminal code with
layers of assault, battery, attempts, etc.

As I recall, the Oregon court ruled that an
attempted assault could not be a crime.

Carry on.

Old advice to Congress:

Don't just do something, stand there!

That applies even more today.

re assault vs battery: as per my law school... assault is a threat, battery is the actual attack (i.e. the blows connect) it is by definition impossible to attempt to threaten (you can attempt to scare by a threat, or attempt to intimidate, but threatening is like swearing, you either are or are not, no place for the mind of the victim.. its all objective)

but outside of that rule (which we have to discourage people from actually getting into fights)., an attempt is equivalent to the crime. Taking a sledgehammer to my front window, while bringing a van and several large bags, means that you want to burgal my house and possibly kill me if i resist. If I happen to have 4 foot thick glass (or see through aluminum for the trekkies/ers) you should still be going to jail for b+e. the same as if you broke in but I welcomed you with a shotgun and a smile. the old actus rea + mens rea.. guilty thought, guilty action... but what we most care about is mens rea, as evidenced by your actions (not thought police.. you have to do something first). You can kill someone, but in defense of your life or others you can be fine... or if you do it through negligence you'll be punished less than if you hire a hit man. The issue is that society is most concerned with discouraging people from thinking about and deciding upon bad paths. The fact that you run into technical difficulties (you fired a gun, but I was wearing a bullet proof vest.. it was a dud.. you can't aim...) should not and does not matter to the court. You performed the actions necessary to constitute or effect the crime, and you had the proper intent.. therefore you are guilty of the crime. The only reason murder is punished the same way is death penalty/ life w/o parole... they give you some minimal credit for not going through with it/ incompetence (generally), as we really want to discourage the completion of a murder (also why some states have higher penalties for killing cops... reduces the danger to people in dangerous professions)

there's your answer!