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Old May 12, 2009, 11:00 AM   #1
KingEdward
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Breaking/Entering & Unlawful Entry

Here in my state, there is castle doctrine law. There is also "stand your ground" law which says you are not required to retreat in your home and also if the intruder is committing a felony on the property and he is injured/killed, the homeowner cannot be sued as a result.

Here are a few questions I'd like for others to consider and answer:

1) if someone breaks in the home via door or window, obviously that is B & E and is that by ITSELF a felony?

2) IF (not smart) but IF the door is opened and someone forces their way into the home and touches the homeowner (pushes down) or threatens (I'll kill you now where is the cash) what crime is committed? is it Unlawful entry or Forced Entry? Making a threat?

3) Is Unlawful entry a felony?

4) is the mixture of unlawful entry and threats a felony?

I do not want this thread to get off track with "hey don't open the door" or "if they are in your home unwelcome you could shoot".

The interest here is the explanation of what B & E encompasses and also what the legal term/penalty are for access gained via an OPEN door or window.
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Old May 12, 2009, 03:49 PM   #2
Viking Josh
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The OP specifically requested you not to use such arguments in this discussion.

Antipitas

Last edited by Al Norris; May 12, 2009 at 11:50 PM. Reason: Off Topic/Contrary to the OP
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Old May 12, 2009, 04:15 PM   #3
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Castle laws vary all over the map. Some permit deadly force in the event of unlawful entry; others specify unlawful entry "by force or by stealth"; others require entry to be forcible and unlawful; others include the word "tumultuous". Many include other conditions.

There's no one answer for any of your questions.

Depends on where you live.

Don't rely on a lay interpretation of the dictionary definitions of the words in the code. The meaning must be interpreted in the context of all of the relevant laws and will depend on case law.

Consult an attorney.
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Old May 12, 2009, 04:38 PM   #4
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What does the statute say...exactly

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Old May 12, 2009, 10:48 PM   #5
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Castle Doctrine, Duty To Retreat, man, these subjects really burn my rear sometimes. I totally agree with Viking Josh, but unfortunately, the gun-grabbing, hanky stomping, take-a-punk-to-lunch screaming liberals who run this country don't agree and make it so criminals have more rights than law abiding citizens.
It really kills me how, if you kill or injure a criminal who has broken into you home, you can and in 99% of the cases, be arrested, charged, prosecuted and convicted, and then SUED by either the victim or his surviving family. What is worse is, if a crook gets hurt on your property, say for example, he trips and falls down the stairs and breaks a leg, he can sue you for injuries because (as it was explained to me by a lawyer I know), "even though the person is committing a criminal act, he has reasonable expectation of safety while on your property and should not have any fear of being injured, either on purpose or by accident". I don't know about alot of folks here, but laws like this get me ****** off. In my opinion, a law abiding citizen should be able to defend his or her property, his or her loved ones or him or her self, without the fear in any manner of prosecution or lawsuit. To me, a criminal gives up his rights the second he commits any part of a crime and if some law abiding citizen drops hammer on him or gives him a beating he'll never forget, then, well, so be it. The punk should have thought twice about committing the crime. On the same page (but another paragraph, LOL), today's courts are far to easy on the punks. When a criminal is caught, and finally goes before a judge or to trial, everything except for the facts are brought up. His past (he had acne as a teenager, how he was brought up, the fact the prom queen wouldn't kiss him or the coach wouldn't let him play first string, his parents beat him, his panties were too tight, ect) has nothing to do with why he decided to steal a car, break into a house or mug, kill or rape someone. The lawyers have turned our legal system into nothing more than a bad joke, with whoever puts on a better show winning. Forget the facts, just give the punk a slap on the wrist, buy him a Pepsi and set him loose or plea bargin down to a lesser charge and give the minimal sentence. Face it folks, our legal system is in dire need of a backbone. Instead of coddling the criminal and forgetting the victims, why can't crime and the results, no matter how small be made undesirable to those who choose to commit them, that the criminal thinks twice about committing it, make the punishment severe, eliminate any plea-barging, make prison as unpleasant as possible, remove a criminal's ability to sue the victims, and give every law abiding citizen back their right to defend themselves, loved ones and their property! Make crime so unappealing, it isn't reduced, it is eradicated. And if it means eradicate the criminal, then, unfortunately, so be it. I think most of the law abiding citizens would loose somewhere in the area of 1 1/2 minutes of sleep over things going that way.
I apologize for going off on a rant, but, the law abiding citizens of this country are getting the short end of the stick with the laws and it needs to be changed!
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Old May 12, 2009, 11:04 PM   #6
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Moving to Law & Civil Rights.
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Old May 13, 2009, 10:16 AM   #7
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I will check on the statutes in Tennessee. It's probably better to
know the law than to assume things and hope for the best.
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Old May 13, 2009, 10:28 AM   #8
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...and make it so criminals have more rights than law abiding citizens.
No. Criminals do NOT have more rights than the law abiding citizens. They have the SAME rights. Criminals may need to exercise those rights more often, but we all have them. That is one of the things that makes them rights.
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It really kills me how, if you kill or injure a criminal who has broken into you home, you can and in 99% of the cases, be arrested, charged, prosecuted and convicted, and then SUED by either the victim or his surviving family.
Again, no. In a minority of cases where homeowners defend their home will the homeowner be arrested. Fewer will be charged, and even fewer convicted. In fact, it would be more accurate to say that in 99% of the cases you will NOT be arrested, charged, prosecuted and convicted.
Quote:
On the same page (but another paragraph, LOL), today's courts are far to easy on the punks. When a criminal is caught, and finally goes before a judge or to trial, everything except for the facts are brought up.
Once again, no. Trials tend to focus on facts. Aggravating and mitigating circumstances will often figure into the sentencing phase, but even those must be shown to be factual.
Quote:
I apologize for going off on a rant,
Nothing wrong with a good rant, but not much sense in ranting about stuff that isn't true. That is a part of the problem in the system, way too many folks get all worked up about stuff they think that turns out not be right.
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Old May 13, 2009, 10:33 AM   #9
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If the home owner is armed & ready

The BG has just committed a BIG mistake
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Old May 13, 2009, 10:56 AM   #10
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Yes, it depends upon the state statutes and their definitions of criminal trespass, B & E, and forcible entry. Forcible entry also has legal purposes, such as firefighters, LEO's, and EMS/Rescue personnel. Generally, forcible entry offers inclusions of breaching the doorway or windows of dwellings, whereas unlawful entry requires no force to be used, only an unwilling occupant or owner to make allowances. As for the penalties, there are varying degrees of each. See your local statutes.

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Old May 13, 2009, 10:58 AM   #11
KingEdward
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I am wondering if there is any prejudice in the system towards the homeowner if he/she opens the door and then bad things happen.

But I would think that unlawful entry would account for that when the "facts" are sorted out later.
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Old May 13, 2009, 11:13 AM   #12
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Tennessee Code:

39-14-402. Burglary. —

(a) A person commits burglary who, without the effective consent of the property owner:

(1) Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault;

(2) Remains concealed, with the intent to commit a felony, theft or assault, in a building;

(3) Enters a building and commits or attempts to commit a felony, theft or assault; or

(4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault.

(b) As used in this section, “enter” means:

(1) Intrusion of any part of the body; or

(2) Intrusion of any object in physical contact with the body or any object controlled by remote control, electronic or otherwise.

(c) Burglary under subdivision (a)(1), (2) or (3) is a Class D felony.

(d) Burglary under subdivision (a)(4) is a Class E felony.


39-14-403. Aggravated burglary. —

(a) Aggravated burglary is burglary of a habitation as defined in §§ 39-14-401 and 39-14-402.

(b) Aggravated burglary is a Class C felony.

[Acts 1989, ch. 591, § 1; 1990, ch. 1030, § 23.]


39-14-404. Especially aggravated burglary. —

(a) Especially aggravated burglary is:

(1) Burglary of a habitation or building other than a habitation; and

(2) Where the victim suffers serious bodily injury.

(b) For the purposes of this section, “victim” means any person lawfully on the premises.

(c) Especially aggravated burglary is a Class B felony.

(d) Acts which constitute an offense under this section may be prosecuted under this section or any other applicable section, but not both.


39-11-504. Duress. —

(a) Duress is a defense to prosecution where the person or a third person is threatened with harm that is present, imminent, impending and of such a nature to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. The threatened harm must be continuous throughout the time the act is being committed, and must be one from which the person cannot withdraw in safety. Further, the desirability and urgency of avoiding the harm must clearly outweigh the harm sought to be prevented by the law proscribing the conduct, according to ordinary standards of reasonableness.

(b) This defense is unavailable to a person who intentionally, knowingly, or recklessly becomes involved in a situation in which it was probable that the person would be subjected to compulsion.


39-11-611. Self-defense. —

(a) As used in this section, unless the context otherwise requires:

(1) “Business” means a commercial enterprise or establishment owned by a person as all or part of the person's livelihood or is under the owner's control or who is an employee or agent of the owner with responsibility for protecting persons and property and shall include the interior and exterior premises of the business;

(2) “Curtilage” means the area surrounding a dwelling that is necessary, convenient and habitually used for family purposes and for those activities associated with the sanctity of a person's home;

(3) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, that has a roof over it, including a tent, and is designed for or capable of use by people;

(4) “Residence” means a dwelling in which a person resides, either temporarily or permanently, or is visiting as an invited guest, or any dwelling, building or other appurtenance within the curtilage of the residence; and

(5) “Vehicle” means any motorized vehicle that is self-propelled and designed for use on public highways to transport people or property.

(b) (1) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force.

(2) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:

(A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;

(B) The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and

(C) The belief of danger is founded upon reasonable grounds.

(c) Any person using force intended or likely to cause death or serious bodily injury within a residence, business, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest, when that force is used against another person, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, business, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred.

(d) The presumption established in subsection (c) shall not apply, if:

(1) The person against whom the force is used has the right to be in or is a lawful resident of the dwelling, business, residence, or vehicle, such as an owner, lessee, or titleholder; provided, that the person is not prohibited from entering the dwelling, residence, or occupied vehicle by an order of protection, injunction for protection from domestic abuse, or a court order of no contact against that person;

(2) The person against whom the force is used is attempting to remove a person or persons who is a child or grandchild of, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;

(3) Notwithstanding § 39-17-1322, the person using force is engaged in an unlawful activity or is using the dwelling, business, residence, or occupied vehicle to further an unlawful activity; or

(4) The person against whom force is used is a law enforcement officer, as defined in § 39-11-106, who enters or attempts to enter a dwelling, business, residence, or vehicle in the performance of the officer's official duties, and the officer identified the officer in accordance with any applicable law, or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(e) The threat or use of force against another is not justified:

(1) If the person using force consented to the exact force used or attempted by the other individual;

(2) If the person using force provoked the other individual's use or attempted use of unlawful force, unless:

(A) The person using force abandons the encounter or clearly communicates to the other the intent to do so; and

(B) The other person nevertheless continues or attempts to use unlawful force against the person; or

(3) To resist a halt at a roadblock, arrest, search, or stop and frisk that the person using force knows is being made by a law enforcement officer, unless:

(A) The law enforcement officer uses or attempts to use greater force than necessary to make the arrest, search, stop and frisk, or halt; and

(B) The person using force reasonably believes that the force is immediately necessary to protect against the law enforcement officer's use or attempted use of greater force than necessary.

[Acts 1989, ch. 591, § 1; 1990, ch. 1030, § 8; 2007, ch. 210, § 1; 2008, ch. 1012, § 1.]


39-11-614. Protection of property. —

(a) A person in lawful possession of real or personal property is justified in threatening or using force against another, when and to the degree it is reasonably believed the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b) A person who has been unlawfully dispossessed of real or personal property is justified in threatening or using force against the other, when and to the degree it is reasonably believed the force is immediately necessary to reenter the land or recover the property, if the person threatens or uses the force immediately or in fresh pursuit after the dispossession:

(1) The person reasonably believes the other had no claim of right when the other dispossessed the person; and

(2) The other accomplished the dispossession by threatening or using force against the person.

(c) A person is not justified in using deadly force to prevent or terminate the other's trespass on real estate or unlawful interference with personal property.
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Old May 13, 2009, 11:16 AM   #13
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thanks Peetza

of your many "kills", what gives you more satisfaction, pepperoni or
italian sausage?
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Old May 13, 2009, 11:20 AM   #14
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of your many "kills", what gives you more satisfaction, pepperoni or
italian sausage?
My favorite is what I call "Dead Pig Pie". Pepperoni, "ribbon" sausage, ham, meatballs and bacon. Topped with extra mozzarella, parmesan and garlic. It's not my doctor's favorite but it's mighty tasty.
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Old May 13, 2009, 11:23 AM   #15
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excellent answer.

mine is canadian bacon with italian sausage and a little parmasean sprinkled on top.
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Old May 13, 2009, 11:54 AM   #16
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Based on the statute above:

1) if someone breaks in the home via door or window, obviously that is B & E and is that by ITSELF a felony? NOPE AND NOPE

2) IF (not smart) but IF the door is opened and someone forces their way into the home and touches the homeowner (pushes down) or threatens (I'll kill you now where is the cash) what crime is committed? is it Unlawful entry or Forced Entry? Making a threat? BURGLARY

3) Is Unlawful entry a felony? I DONT SEE THE WORDS UNLAWFUL ENTRY IN THE STATUTES CITED

4) is the mixture of unlawful entry and threats a felony? SEE ABOVE

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Old May 13, 2009, 12:07 PM   #17
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Quote:
2) IF (not smart) but IF the door is opened and someone forces their way into the home and touches the homeowner (pushes down) or threatens (I'll kill you now where is the cash) what crime is committed? is it Unlawful entry or Forced Entry? Making a threat? BURGLARY
It's a home, so that would be aggravated burglary, a class C felony.
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Old May 13, 2009, 05:55 PM   #18
Bartholomew Roberts
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Quote:
1) if someone breaks in the home via door or window, obviously that is B & E and is that by ITSELF a felony? NOPE AND NOPE
How do you figure NOPE and NOPE? It may not be "Breaking & Entering" since I don't see that term defined in the statute; but based on the statutes quoted above, it sure looks like Aggravated Burglary and a Felony.

Since the word home is used, it meets the definition of a habitation. Since the door or window has been broken, that means there has been an intrusion into the habitation without the consent of the owner. At this point, the only issue remaining is whether there is intent to commit a theft, assault or felony.
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Old May 13, 2009, 08:12 PM   #19
David Armstrong
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That is the key...what is the intent. No intent to committ a crime, no felony burglary as I read it.
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Old May 13, 2009, 08:30 PM   #20
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No intent to committ a crime, no felony burglary as I read it.
Yep, you got the esssence of the whole gig.

The better definition of burglary is as set forth in modern penalk codes as opposed to the common law style:

Enter or remain unlawfully...with intent to commit a crime therein.

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Old May 13, 2009, 08:58 PM   #21
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Quote:
How do you figure NOPE and NOPE? It may not be "Breaking & Entering" since I don't see that term defined in the statute; but based on the statutes quoted above, it sure looks like Aggravated Burglary and a Felony.
This might clear it up a bit, Actually Ken is correct. The crime would be Criminal Trespass.

The appropriate statute is provided below, (emphasis mine)

Note that it is only a misdemeanor.


Quote:
39-14-405. Criminal trespass. —





(a) A person commits criminal trespass who, knowing the person does not have the owner's effective consent to do so, enters or remains on property, or a portion thereof. Knowledge that the person did not have the owner's effective consent may be inferred where notice against entering or remaining is given by:




(1) Personal communication to the person by the owner or by someone with apparent authority to act for the owner;




(2) Fencing or other enclosure obviously designed to exclude intruders;




(3) Posting reasonably likely to come to the attention of intruders; or




(4) Posting the property, in accordance with the requirements of § 70-4-106(b)(1)(B)(ii).




(b) It is a defense to prosecution under this section that:




(1) The property was open to the public when the person entered and remained;




(2) The person's conduct did not substantially interfere with the owner's use of the property; and




(3) The person immediately left the premises upon request.




(c) For purposes of this section, “enter” means intrusion of the entire body.




(d) Criminal trespass is a Class C misdemeanor.
I would think that the persons actions after being told to leave would be the deciding factor as to when, and if, it escalates to a different crime.


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Old May 13, 2009, 09:17 PM   #22
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Also for your information;

Quote:
39-14-406. Aggravated criminal trespass. —





(a) A person commits aggravated criminal trespass who enters or remains on property when:




(1) The person knows the person does not have the property owner's effective consent to do so; and




(2) The person intends, knows, or is reckless about whether such person's presence will cause fear for the safety of another.




(b) For purposes of this section, “enter” means intrusion of the entire body.




(c) Aggravated criminal trespass is a Class B misdemeanor unless it was committed in a habitation, in a building of any hospital, or on the campus, property, or facilities of any private or public school, in which event it is a Class A misdemeanor.




(d) (1) A person also commits aggravated criminal trespass who enters or remains on the real property, including the right-of-way, of a railroad:




(A) With the intent to do harm to the property or to railroad property located on the property; or




(B) With the intent to do harm to another person or knowing that their presence will harm another person.




(2) Aggravated criminal trespass on railroad property is a Class A misdemeanor.

This would be the next step up.
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Old May 13, 2009, 10:45 PM   #23
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Actually Ken is correct
You forgot the word "again"

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Old May 14, 2009, 12:19 AM   #24
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Dave,
No offense to what you said, but have you actually watched an actual criminal trial lately? There are more theatrics going on than 'business'. Lawyers using every excuse as to why someone committed a crime, except for the truth, they had o respect or regard for another person or their property. Like I said, The punks childhood, backround, ect. should have no meaning. Only the facts. I'm sorry, I believe that everyone is responsible for their own destiny and actions. Lawyers have turned our judicial system into a joke. They all try to get reduced charges, less time, ect. And they use every trick they can get. Case in point: Research the antics of the defense lawyer representing the accused and parents in the Erin Maxwell murder case in Mexico, NY. This should say it all. Or, the defense lawyer representing the home invasion/triple murder from Cheshire, CT last summer. What the first case I mentioned doesn't say, this one will.
And yes, criminals do have more rights than victims. They have the right to free medical care, free lawyers, the best rec equipment and so forth. What do the victims get? Usually nothing.
As far as punks or their families suing, there have been plenty of cases where this has happened. The punk was committing a crime, and as a result, got injured or killed. What right does he or his family have to recover damages? NONE!
It is past time our country gets as tough as they can on criminals. Like I said, make crime so unappealing, that noone wants to commit it due to the consequinces. Give the law abiding citizen the power to unconditionally defend themselves, loved ones and property and watch how many punks think twice about committing a crime. Make prisons hell instead of a place where a criminal can become a better criminal. Stop all of the lawyers from using loopholes and trickery to get punks off the hook. Pass severe sentences without parole or time off for good behavior. Reinstate the death penelty for crimes that warrent it.
It sounds tough, but like I said, Irradicate crime, and irradicate the criminal if it has to be.
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Old May 14, 2009, 12:52 AM   #25
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Pass severe sentences without parole or time off for good behavior. Reinstate the death penelty for crimes that warrent it.
Hear hear! Bring back the Bloody Assizes!

The hell with trials, arrest equals guilt! Everyone is guilty!

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