California Penal Code Sections 278 & 278.5: Judicial Slavery Transforming the Natural into the Unnatural?


Nothing in the world is more natural than parental procreation and child rearing, and nothing in the world is significantly more unnatural than slavery. (The unnatural nature of slavery was recognized even by Ancient Roman Philosophers such as Lucretius and relatively modern commentators such as Grotius who lived in times when slavery was widespread throughout the world and entirely legal). 

The definition of the unnatural condition of slavery, however, is as controversial and difficult at the margins as the definition of the natural condition of liberty.  The “Free On-Line Legal Dictionary” defines Slavery very generally as “A civil relationship in which one person has absolute power over the life, fortune, and liberty of another,” (http://legal-dictionary.thefreedictionary.com/slavery).  The noted American student of modern global slavery, Kevin Bales, qualifies his definition by writing “As long as people are controlled by violence and exploited for economic purposes, they are slaves, regardless of whether or not a country’s laws recognize the legal ownership of human beings.”  Wikipedia expounds in some detail, “Slavery is a system under which people are treated as property and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation. Conditions that can be considered slavery include debt bondageindentured servitudeserfdomdomestic servants kept in captivity, adoption in which children are effectively forced to work as slaves, child soldiers, and forced marriage.”

I rather like the Free Dictionary’s simple statement quoted above: “A civil relationship in which one person has absolute power over the life, fortune, and liberty of another.”  I think it is in this sense that the United States Constitution’s 13th Amendment, adopted and ratified in 1865, meant to abolish slavery: 

 Section 1. Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their
jurisdiction.
  Section 2. Congress shall have power to enforce this article by
appropriate legislation.

  See, inter alia,  http://www.gpoaccess.gov/constitution/html/amdt13.html

I have repeatedly commented on the pages of this Blog and elsewhere about the curious coincidence that the abolition of chattel slavery has led to the rapid expansion of prison populations in the United States.  In 1860 the U.S. Census showed a total slave population of 3,953,760, out of a total population of 31,443,321.  In 1860, that same census showed a incarcerated population of 19,086 (607 prisoners per million).   Intermediate “half-way” houses and other conditions such as probation and parole were not even remotely so well-developed then as now, and I have not found any relevant statistics.  By 1890 the U.S. Prison Population had more than quadrupled to 82,329 (1,315 per million). (Source: http://www.jstor.org/stable/1132761).

Today, here in the land of the free and the home of the brave, we have incarcerated more than 2.4 million of our fellow Americans (Source: http://www.presstv.ir/usdetail/193137.html).   This figure does not come close to reflecting the ugly penal reality of life in the United States of America, however, as the same article shows:

At year end 2010, America’s prison population topped 2.4 million, including federal and state facilities, local jails, Indian, juvenile, and military ones, U.S. territories, and numbers held by the Immigration and Customs Enforcement (ICE).

In addition, over seven million more are under correctional supervision, and over 13 million pass through U.S. prisons and jails annually. About 70% are for nonviolent offenses. Veteranstoday.com

HIGHLIGHTS: Most vulnerable are poor Blacks, Latinos, and Native Indians (people of color) for America’s insatiable prison-industrial complex appetite, commoditizing human beings for profit in both public and privately run prisons. Fogcityjournal.com

Beginning in the 1980s, rapid prison population growth attracted private investment. As a result, states began selling correctional facilities to private operators, then contracting with them to warehouse prisoners. Fogcityjournal.com

Despite no evidence showing business operates better than government, prisons for profit grew at a faster rate than incarceration over the past 15 years. As a result, companies like CCA and GEO Group have seen explosive growth, benefitting greatly by filling more beds. Thepeoplesvoice.org

Currently the private prison industry is in a growth period at nearly 4 billion in current annual sales. Blue-point-trading.com

With good government lobbying, they can convince government bodies to give them their prisoners and get the incarceration rates up even higher – all being potentially self funded through these prisoner work programs. blue-point-trading.com 

FACTS & FIGURES: America’s population behind bars has gone up 1,000 percent in the last three decades. Get-tough-on-crime legislation and minimum sentencing laws are blamed for the explosion of inmates. Thereishopepm.com

The U.S. incarcerates more people on a per capita basis than any other country in the world – nearly two to three times more than our European counterparts. Blue-point-trading.com

Roughly one-third of U.S. prisoners were unemployed before imprisonment. Another third had annual incomes of less than $5,000. Blue-point-trading.com

The number of female inmates is increasing almost twice as fast as the men’s incarceration rate, tripling in the last decade. At least 40 percent of jailed women have minor children. Thereishopepm.com

Rape and other sexual abuse are considered to be major problems because of the power imbalance between inmates and guards, exacerbated when they’re poorly trained. Thepeoplesvoice.org

SOURCE: PRESS TV, TUESDAY AUGUST 9, 2011, presstv URL cited above).

Just to repeat the premise at the beginning of this essay: Nothing in the world is more natural than parental procreation and child rearing, and nothing in the world is significantly more unnatural than slavery. 

The State of California, I have concluded, has either been designated by God, the Fates, or, just perhaps, the Bilderberg Group to lead the Nation and the World into the Brave New World  described by Aldous Huxley in 1931-32.  (While it is at least theoretically possible that California’s leadership results from cultural or political choices, factors, or forces originating from the people of California themselves, I honestly don’t believe that such choices would ever have been voluntarily made for even ten seconds.)

So now, California Penal Code Sections 278 & 278.5-278.7 has come to my attention as a threat to the life and liberty of two present or recent Orange County women who come from such different backgrounds that their existence in the same sentence is itself a testament to the “diversity” of the California population.   

Judge Clay M. Smith of the Orange County Superior Court, Lamoreaux Center, has threatened these two women with incarceration for contempt (in one case) and criminal prosecution (in the other) of the California Statutes which criminalize “interference with child custody” even as between individuals otherwise lawfully entitled to some exercise of custody.  The basic statutes provide as follows, first California Penal Code Section 278: 

278.  Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.

And California Penal Code Section 278.5 somewhat redundantly, but expansively, mandates: 

278.5 (a) Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.  (b) Nothing contained in this section limits the court’s contempt power.  (c) A custody order obtained after the taking, enticing away, keeping, withholding, or concealing of a child does not constitute a defense to a crime charged under this section.

There are many, many troubling things about these two statutory provisions (and the related, qualifying, provisions of Penal Code Sections 277 and 278.6-278.7).   To begin with, I am at a loss to understand how these statutes can each both define punishments for both misdemeanor and felony level offenses without describing any gradations or variations of conduct which would determine how and whether a judge could or should sentence “every person” either to “a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both, or both that fine and imprisonment, or by imprisonment in the state prison for 16 months, or two or three years, a fine not exceeding ten thousand dollars, or both that fine and and imprisonment.”  Furthermore, the provisions of Penal Code Sections 277 and 278.6-278.7 which qualify 278 and 278.5 both seem to so byzantine and multifarious in their complexity that the results must be declared “VOID FOR VAGUENESS” under every construction of that doctrine I have ever seen.   In the alternative, these statutory definitions, qualifications, limitations, and expansions simply provide too much judicial discretion.  No reasonable person could possibly understand in advance which part of the law would apply to him or her.

The definitions in California Penal Code Section 277 start the problem:  

277.   The following definitions apply for the purposes of this chapter:  (a) “Child” means a person under the age of 18 years. (b) “Court order” or “custody order” means a custody determination decree, judgment, or order issued by a court of competent jurisdiction, whether permanent or temporary, initial or modified, that affects the custody or visitation of a child, issued in the context of a custody proceeding. An order, once made, shall continue in effect until it expires, is modified, is rescinded, or terminates by operation of law. (c) “Custody proceeding” means a proceeding in which a custody determination is an issue, including, but not limited to, an action for dissolution or separation, dependency, guardianship, termination of parental rights, adoption, paternity, except actions under Section 11350 or 11350.1 of the Welfare and Institutions Code, or protection from domestic violence proceedings, including an emergency protective order pursuant to Part 3 (commencing with Section 6240) of Division 10 of the Family Code. (d) “Lawful custodian” means a person, guardian, or public agency having a right to custody of a child. (e) A “right to custody” means the right to the physical care, custody, and control of a child pursuant to a custody order as defined in subdivision (b) or, in the absence of a court order, by operation of law, or pursuant to the Uniform Parentage Act contained in Part 3 (commencing with Section 7600) of Division 12 of the Family Code.  Whenever a public agency takes protective custody or jurisdiction of the care, custody, control, or conduct of a child by statutory authority or court order, that agency is a lawful custodian of the child and has a right to physical custody of the child. In any subsequent placement of the child, the public agency continues to be a lawful custodian with a right to physical custody of the child until the public agency’s right of custody is terminated by an order of a court of competent jurisdiction or by operation of law.  (f) In the absence of a court order to the contrary, a parent loses his or her right to custody of the child to the other parent if the parent having the right to custody is dead, is unable or refuses to take the custody, or has abandoned his or her family. A natural parent whose parental rights have been terminated by court order is no longer a lawful custodian and no longer has a right to physical custody. (g) “Keeps” or “withholds” means retains physical possession of a child whether or not the child resists or objects. (h) “Visitation” means the time for access to the child allotted to any person by court order. (i) “Person” includes, but is not limited to, a parent or an agent of a parent. (j) “Domestic violence” means domestic violence as defined in Section 6211 of the Family Code.  (k) “Abduct” means take, entice away, keep, withhold, or conceal.

Section 277, however, is a model of clarity when compared with the aggravating and mitigating factors provided in the sentencing and “applicability” Penal Code Sections 278.6-278.7: 

278.7  (a) Section 278.5 does not apply to a person with a right to custody of a child who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child. (b) Section 278.5 does not apply to a person with a right to custody of a child who has been a victim of domestic violence who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child. “Emotional harm” includes having a parent who has committed domestic violence against the parent who is taking, enticing away, keeping, withholding, or concealing the child. (c) The person who takes, entices away, keeps, withholds, or conceals a child shall do all of the following: (1) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, make a report to the office of the district attorney of the county where the child resided before the action. The report shall include the name of the person, the current address and telephone number of the child and the person, and the reasons the child was taken, enticed away, kept, withheld, or

concealed. (2) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, commence a custody proceeding in a court of competent jurisdiction consistent with the federal Parental Kidnapping Prevention Act (Section 1738A, Title 28, United States Code) or the Uniform Child Custody Jurisdiction Act (Part 3 (commencing with Section 3400) of Division 8 of the Family Code). (3) Inform the district attorney’s office of any change of address

or telephone number of the person and the child. (d) For the purposes of this article, a reasonable time within which to make a report to the district attorney’s office is at least 10 days and a reasonable time to commence a custody proceeding is at least 30 days. This section shall not preclude a person from making a report to the district attorney’s office or commencing a custody proceeding earlier than those specified times. (e) The address and telephone number of the person and the child provided pursuant to this section shall remain confidential unless released pursuant to state law or by a court order that contains appropriate safeguards to ensure the safety of the person and the child.

The bottom line is that the sections of the law are SO convoluted, so jumbled and poorly organized and classified that there is no rational boundary placed on any judge’s power to apply the law.  Thus, any California Superior Court judge can utilize the punitive provisions of California Penal Code §§278-278.5 to IMPRISON AT WILL any party who comes before him or her against whom relevant allegations are made.  (If the Judge does not believe the evidence is sufficient for a jury to convict “beyond reasonable doubt”—the statute reserves to that judge the power to impose exactly the same penalties under the Court’s unlimited contempt power—and the availability of juries in contempt proceedings is subject to massive, again almost unlimited, judicial manipulation).  In short, the potential for abuse of this statutory scheme by a willful judge such as Clay M. Smith is all but totally unlimited.  A California Superior Court Judge can adjust his findings regarding the applicability of section 278.7 and the “aggravating and mitigating” circumstances of 278.6 together with the definitions of 277 to “cook the books” to whatever result he wishes. 

The end result is simple: California Penal Code §§278-278.5 authorize, enable, and permit with carte blanche a Superior Court Judge to make a parent a slave, in the “Free Dictionary” sense of the term, anyhow, that is the Judge can create with either or both parents of any child: “A civil relationship in which one person has absolute power over the life, fortune, and liberty of another.”

Given the vague and contradictory provisions of the many provisions of §§277, 278.6 & 278.7, is pointless to argue that a defendant may bring affirmative defenses to these charges—the conduct described and descriptive terms are so vague that a reasonable person simply could not adjust his conduct, she could only throw herself on the mercy of the Court, and beg.  

That is the ultimate kind of slavery, of course, the subjugation of the individual to the status of a begger for his or her basic human rights to be a parent.  The only possible cure for this horrible dilemma would be the complete repeal of judicial immunity, so that a judge would be liable for all unconstitutional acts against any parent made or taken in excess of his or her CONSTITUTIONAL authority to apply or interpret the law.

3 responses to “California Penal Code Sections 278 & 278.5: Judicial Slavery Transforming the Natural into the Unnatural?

  1. Pingback: In “debt”ured Contemporary Slavery | self-education and critical thinking are essential to true freedom

  2. Orly says she’s running for the Senate next year against Diane Feinstein. Are you still planning to run? I hope so!

  3. Please contact me regarding a judicial recall and related case.

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