3 Games and You’ve Got 25 to Life

Making game sales a felony is the latest idea out of a New York legislature so bent on wasting time that they’ve authored dozens of anti-video game bills in the last month. The Constitutional issues have been brought up in other reports, but New York GameStop employees (among others) should really be paying attention. Why?

New York has a “3 Strikes” rule, which was upheld in 2005.

While the law does give some leeway for the sentencing court, it theoretically allows a judge to put someone away for life for selling a copy of, say, Gears of War to a 16 year old who looks 18. Yes, selling a game could come with a life sentence under the new law.

As I have stated before, this is just poor governance. However, to go as far as to make it a felony borders on lunacy. It would only further contribute to prison overcrowding, among other things. Moreover, providing alcohol or tobacco to a minor is generally a misdemeanor and a fine in most states, and there is no penalty for selling a copy of Saw or Hostel to a minor. In any event, the game developer and game retailer attorneys will likely be busy in New York in the coming months considering the determination the New York legislature is showing on this non-issue.

[Update: A reader apprised me of a very recent federal district court decision that may, for the time being, put the New York 3 Strikes rule on hold. However, that doesn’t mean this hypothetical is any less relevant. (And after all, it is merely a hypothetical as the game regulation bill hasn’t yet passed.)
1. The part of the law the district court has issue with could be removed from or modified in the law rather easily by the legislature or an activist judiciary. This would make all twice convicted felony offenders “persistent felony offenders” and eligible for the heightened third strike penalty (rather than allowing the judicial discretion).
2. The district court could be overturned on appeal.
3. The New York legislature could simply pass a new 3 strikes rule modeled on California’s rule, which has already been upheld by the US Supreme Court.

So, while the issue may be (hypothetically) muted for the time being, it is by no means dead.]

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About Mark Methenitis

Mark Methenitis is an attorney in Dallas Texas. Mark received his Juris Doctorate and his Master of Business Administration from Texas Tech University and his Bachelor of Arts from The University of Texas.

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