Legal Commentary

When You See 'Loophole,' You Know It's Bad Reporting

By TChris

Former Hackettstown, New Jersey Patrolman Kevin Barbera committed a foolish crime.

Barbera stole two police radios valued at more than $500 from the trash at police headquarters and gave them to a Forks Township man now convicted of drug and weapons offenses and facing a murder charge.

Barbera entered a guilty plea to charges of official misconduct and theft. A judge put him on probation for two years. Sounds about right for a property crime of small value, even with the teaser that the recipient of the stolen property is now charged with murder (a crime that appears to be unrelated to Barbera's misconduct).

The reporter who authored the linked article writes that Barbera avoided imprisonment due to "loopholes" in a recently enacted New Jersey law that applies a mandatory minimum prison sentence to public officials convicted of certain kinds of misconduct. [more ...]

The reporter appears troubled that the law doesn't apply to Barbera because he stole the radios before the law took effect. The reporter seems to think a loophole kept the court from imposing a mandatory prison sentence upon Barbera that didn't exist when the crime was committed. That loophole has a more technical name: the ex post facto clause of the U.S. Constitution.

The reporter then laments that "even if the theft occurred on or after the April 14, 2007 effective date, Barbera would still have avoided the new minimum prison sentences." True, because mandatory minimum sentences apply only to official misconduct that involves the commission of specifically listed felonies, most of which involve a serious breach of the public trust (bribery, perjury, false claims, improper influence in official matters, etc.). Among them is theft of more than $10,000. Barbera's theft of radios worth $500 doesn't come close to a predicate offense that would expose him to a mandatory prison sentence.

Barbera did not benefit from a loophole. The law was not written to apply to Barbera's misconduct. Barbera did not commit the kind of serious crime that (in the judgment of the New Jersey legislature) warranted a mandatory minimum sentence.

It's unfortunate that many members of the public believe a "loophole" must exist whenever an accused doesn't receive the harshest possible treatment by the criminal justice system. The "loophole" myth is perpetuated by lousy reporting. Had the reporter bothered to run his story idea past a criminal defense lawyer (or pretty much any lawyer or even a halfway knowledgeable editor), he would not have used the word "loophole" in his story about Barbera.

Had the reporter been a bit creative, he might have asked why a mandatory minimum sentence should apply to this crime (or any other) at all? Suppose Barbera had taken $10,000 worth of radios out of the trash. Then suppose that, as a first offender, he is remorseful and has paid restitution and only took the radios because his dog needed a hip replacement. Should Barbera get a mandatory year in prison? Who will feed Barbera's dog?

Kidding aside, sentences should always be individualized to the offender. One-size-fits-all mandatory minimums are bad policy. That would have been a more interesting topic for the reporter to address.

Full post as published by TalkLeft on November 10, 2008 (boomark / email).