Earlier this week, the House passed Senate File 2296 , which creates a new Class C felony criminal offense of “Solicitation to Commit Murder.” The Senate passed this bill 49 to 0, and it passed the House 84 to 12 … and yes, you guessed it, I was one of the No votes.
Why did I vote no? Well, not because I’m a criminal defense attorney who wanted to help out my peeps, or because I’m soft on crime, or because I think I’m way smarter than all of the Iowa Senators and most of the Iowa Representatives who voted yes. I voted no for the same reason I’ve voted no on several other bills this session — I voted no because no one could give me a single good reason for voting yes.
Theoretically, the legislature isn’t supposed to create new laws just because we can — theoretically, we’re only supposed to be adding new laws to the already ginormous Iowa Code when doing so will actually benefit Iowa or Iowans in some tangible way. So in the case of bills creating new criminal offenses, the answer to “why do we need this bill?” should be “because it’s going to make Iowa a safer place to live.” That’s simple enough, right? We should only create new criminal offenses if the current criminal laws are insufficient to address whatever behavior it is that the new law criminalizes — i.e., when people are hurting other people and getting away with it, or getting away with a disproportionately lenient sentence. If instead we create a new criminal offense that criminalizes behavior in which no one is actually engaging, or one that criminalizes behavior that is already a sufficiently serious crime under current law, then all we’ve done is create what is commonly called “code clutter.” AKA a waste of paper, and time, and money.
Here’s what the legislator running the bill in the House said when asked why Iowa needs the crime of Solicitation to Commit Murder (I’m more or less quoting verbatim here): “Why do we need this law? We need this law because 49 Senators told us we need it, and because the County Attorneys told us we need it.” OK, but…. “because the Senate said so” doesn’t work for me (and I wouldn’t think it would work for the majority of House members) and saying “we need it because the County Attorneys say we need it” kind of begs the question — which is why do we need it?
Here’s why I think we don’t need it: the elements of SF 2296’s Solicitation to Commit Murder offense seems pretty much identical to the elements of the (already in the code)crime of Attempted Murder — i.e., we’ve already got this one covered. Take a look:
707.3A Solicitation To Commit Murder: A person who commands, entreats, or otherwise attempts to persuade another to commit murder as defined in section 707.1,with the intent that such act be done and under circumstances which corroborate that intent by clear and convincing evidence,solicits another to commit that murder. Renunciation, as provided for in section 705.2 is a defense to a prosecution for solicitation under this section.
707.11 Attempt To Commit Murder: A person commits a class “B” felony when, with the intent to cause the death of another person and not under circumstances which would justify the person’s actions, the person does any act by which the person expects to set in motion a force or chain of events which will cause or result in the death of the other person.It is not a defense … that the acts proved could not have caused the death of any person, provided that the actor intended to cause the death of some person by so acting, and the actor’s expectations were not unreasonable in the light of the facts known to the actor. (Note that even though it doesn’t say so, renunciation — i.e., I changed my mind, please don’t kill my wife after all — is also a defense to Attempted Murder)
So in a murder for hire scenario (which is what the new “solicitation to commit murder” crime is supposed to address), if a guy asks someone to kill his wife and gives that guy $500 to do so, then clearly that guy has done an act which he expects will set in motion a force or train of events which will result in the death of his wife, and he has done so with the intent to cause the death of his wife. And boom, that’s Attempted Murder, and Attempted Murder is a Class B felony carrying a mandatory 25 year prison sentence. Which is a more severe penalty than the proposed Solicitation to Commit Murder offense (Class C, ten years).
Now, as set out below, the County Attorneys’ Association is taking the position that they can’t get a conviction for Attempted Murder in murder for hire cases — that all they can get is a conviction for Solicitation of a Felony, which is only a Class D felony carrying a five year penalty — and thus they want a solicitation offense specifically for murder, with a more serious penalty. Which sounds reasonable, if murder for hire scenarios don’t qualify as Attempted Murder. But the only Iowa appellate case from the past ten years that I could find that addressed the issue upheld Terry Leggio’s convictions on 5 counts of Attempted Murder, for attempting to hire someone to kill various people he wanted dead.
But maybe I missed something, so I asked the County Attorneys’ lobbyist for ONE single case in which the State was only able to convict someone guilty of a murder for hire offense of the Class D Solicitation offense, as opposed to Attempted Murder, and here’s what I got, from the Kossuth County Attorney:
Why I proposed that Solicitation to Commit Murder be added to the Criminal Code: I recently had in my county an estranged husband attempt to hire a hit man to kill his wife. Fortunately, law enforcement found out about the plot and they utilized an undercover agent to pose as the hit man. The husband met with the agent and attempted to hire him to kill his wife. We arrested him and charged him with attempted murder. Unfortunately, there were certain facts that caused the attempted murder charge to be questionable at trial. All we had left for a criminal charge was solicitation. Attempted murder carries a mandatory minimum of 70% of a 25 year prison sentence; solicitation carries a 5 year prison sentence, with probation as a possibility. If a person wants another person dead, the fact that law enforcement discovers it early should not provide a 20 year windfall for the defendant in sentencing. The dangerousness of the defendant and the egregious nature of his conduct still exist. Under current Iowa law, solicitation to commit felonious theft is punished the same as solicitation to commit murder.
Ok, so this is exactly what I asked for, right? An example of a real case in which the prosecution was only able to convict a guy who attempted to hire a hitman to kill his wife of a crime carrying a 5 year prison sentence, instead of Attempted Murder, which carries a 25 year sentence. So hey, maybe we do need a new crime specifically targeting murder for hire cases, to ensure those bad boys get locked up for ten years instead of five.
Except…. I didn’t quite buy it, because it still seemed to me that the prosecution should be able to get a conviction for Attempted Murder in a true murder for hire case. Plus you’ll note that nowhere in his statement does the county attorney mention the name of his defendant, which seemed a little sketchy. So just for the heck of it, I googled “Kossuth County Iowa murder for hire.”
Try it — what you’ll discover is that George Wolfe Bennet (no relation, I think), who did indeed attempt to hire an undercover police officer to kill his wife, entered into a plea agreement with the Kossuth County Attorney in which the State dismissed the Attempted Murder charge in exchange for Bennet’s guilty pleas to FIVE counts of Solicitation to Commit a Felony. And the five, 5 year sentences were run consecutively — one after the other — which means that Mr. Bennet was sentenced to an indeterminate 25 years in prison. Which is the exact same sentence he would have received if he had required the State to try the case and convict him of Attempted Murder, but for the 70% mandatory minimum.
So when the County Attorney stated that “(a)ll we had left for a criminal charge was solicitation” which “carries a 5 year prison sentence, with probation as a possibility” he was being disingenuous at best, since he knew darn well that Bennet pled guilty to five counts of Solicitation, not one, and that he was sentenced to 25 years in prison, not 5 years(seriously, did he really think no one would bother checking his story?). And if anything, the case of State v. George Bennet (like the case of State v. Terry Leggio) proves that Iowa doesn’t need a crime designed to specifically address “murder for hire” scenarios — since under current law, people who are convicted of that type of behavior are sentenced to 25 years in prison.
But of course, the House already passed the bill creating the new criminal offense of Solicitation to Commit Murder, because … the Senate and the County Attorneys said we needed it. And assuming the Governor signs off (which he will), in the future, people who commit this type of crime will be sentenced to 10 years in prison, instead of 25 years.
Which makes Iowa a safer place to live exactly how?