The Rap Sheet: Nolo's Criminal Law Blog

Lynne Stewart is an ex-NY civil rights lawyer.  She was disbarred in 2005 after she was convicted of passing messages from imprisoned terrorist Sheikh Omar Abdel-Rahman to his followers.  Stewart was sentenced to serve 20 months in prison, but she remained free on bail while her case sat before a Court of Appeal.  On November 17, 2009, the Court of Appeals not only affirmed the conviction but added injury to injury by ordering the trial judge to re-consider the "lenient" sentence.  Stewart might have angered the judges by bragging to her followers in 2005 that she could "serve 20 months standing on my head."

 

Civil rights lawyers especially were infuriated by Stewart's conviction.  They condemned it as a violation of free speech and an interference with attorneys' obligation to defend clients zealously.  But to me, Stewart has only herself to blame.  As a condition of meeting with her client Abdel-Rahman in prison, Stewart agreed not to pass messages from him to followers who were waiting for a signal from him as to whether to ignore a cease-fire agreement.  Nevertheless, Stewart talked to the press about statements that Abdel-Rahman had made to her during their prison meeting.  

It's hard to see how keeping her mouth shut about what Abdel-Rahman told her would have interfered with Stewart's ability to represent her client.  Nothing she told the world would have produced helpful evidence for her client.  The condition she agreed to aside, Stewart might also have acted unethically by talking about a confidential client communication.  Stewart knew what she was doing and sought to embarrass the U.S. government.  She has a long and honorable history of helping the powerless and disenfranchised, and it's sad to see her in prison so late in her life.    

Henry Louis Gates is a respected professor of history at Harvard. When Gates, who is black, had trouble entering the front door of his Harvard-owned home, he and a companion spent some time forcing it open.  Called by a neighbor who thought that a burglary was in progress, police officers arrived and confronted Gates.  Gates proved that he was not a burglar, but the cops claimed that Gates was so confrontational that they arrested him for disorderly conduct. Gates was briefly detained in a jail cell, but the Cambridge police quickly apologized to Gates and dropped the charges. 

Gates' stature and his access to the media ensure that the event will become part of the continuing debate over the extent of racism in the criminal justice system.  Since there can be no claim that the cops did anything wrong by responding to the burglary-in-progress report, the debate will focus on what happened after Gates proved that he was in his own home.

Gates admits that he got angry because the arresting officer repeatedly refused to respond to Gates' demands for his name and badge number. The officer claims that he gave Gates this information but that Gates became hostile and confrontational anyway.  If Gates is to be believed, he was guilty only of "contempt of cop" for being a black man who was typecast by a white cop. If you believe the cop, Gates acted out because he saw racism in an officer's acting properly in the face of two possibly armed and dangerous burglars.  

Perhaps the key to understanding what happened lies in the reason that Gates wanted to know the officer's name and badge number.  Presumably Gates was not planning to write a letter of commendation to the Cambridge Police, praising the officer for arriving so quickly to the burglary report. I'm guessing that Gates got angry because the cop didn't treat him with the courtesy he thought he was due and that would have been accorded a white homeowner.  I'm also guessing that until he realized that his life was not in danger, the cop treated Gates more like a criminal than a professor of history.  The cop's reactions further angered Gates, and explains both why Gates demanded his name and badge number and why Gates was arrested for disorderly conduct.

If this is just another incident that enables police offiers and African Americans to view themselves as victims of each other, then its notoriety will accomplish little.  If it helps both communities understand the other's perspective, perhaps the incident will be a waystation on the path to greater social harmony.

You undoubtedly know that when suspects are booked into jail, they are fingerprinted and photographed. Now they may have to provide a DNA sample as well.

At one time, the government could collect DNA samples from suspects only after they had been convicted. However, in an effort to expand the pool of available DNA samples, the U.S. Congress enacted the "Violence Against Women and Department of Justice Reauthorization Act of 2005'' (PDF). This federal law authorized the taking of DNA samples from suspects who had been arrested for felonies. The DNA samples will of course remain in government files even if charges are dropped or suspects are found not guilty.

Defense lawyers have argued unsuccessfully that collecting DNA samples from felony arrestees is an unconstitutional invasion of privacy. Judges have responded that since DNA testing is routine (often consisting of a swab or a simple blood test), the intrusion on privacy is minimal. Collecting DNA samples also does not interfere with a suspect's privilege against self- incrimination, since that constitutional right protects suspects against having to provide the government with testimonial evidence but not against having to provide physical evidence.

Should there be any restrictions on the government's right to collect DNA samples? For example, if the federal law were broadened to allow the government to collect DNA samples from suspects arrested for misdemeanor offenses, would it still be valid? For that matter, why wait until people are arrested to collect DNA samples? If the idea is to have the broadest possible DNA database available to identify the guilty and exculpate the innocent, should DNA samples be collected from everyone at birth? The DNA pool is getting deeper, and at this point, its ultimate depth is uncertain.

California's "3 strikes" law (and many similar ones) often results in significantly increased prison sentences for multiple offenders. Perhaps the most controversial aspect of the 3 strikes law arises when the third strike is a minor, non-violent crime, such as petty theft or drug possession.  If an individual is convicted of a misdemeanor such as these and has previously been convicted of two violent or serious felonies, the misdemeanor conviction may constitute a third strike that results in a sentence of 25 years to life.

Though supporters of 3 strikes law may disagree, it seems senseless and excessively costly to keep prisoners incarcerated for many years for committing petty offenses. Surely the money could be better spent on job training and drug treatment programs?

A clinical program at Stanford Law School has succeeded in having judges reduce some of the most egregious examples of overly harsh sentences.  But given the huge volume of criminal cases, we must trust to prosecutors to invoke the 3 strikes law and judges to hand down 3 strike sentences for non-violent offenses only when the circumstances leave them with no reasonable alternative.

Purchasing a small amount of illegal drugs for personal use is generally a misdemeanor. However, under federal law, 21 U.S. Code Sec.843(b), using a "communication facility" to aid in the commission of a felony is itself a felony. So what happens if someone purchases a misdemeanor-size amount of cocaine using a felony-sized communication device (in this case, a cell phone)?

This question is now pending in the U.S. Supreme Court.  Defendant Salman Khade Abuelhawa used his cell phone to set up small cocaine buys; he was caught, then charged with and convicted of a felony. The Court of Appeals upheld the conviction (PDF) and Abuelhawa has appealed to the Supreme Court. 

Abuelhawa argues that his felony conviction is invalid.  After all, if he'd set up the cocaine buys in person, he'd be guilty only of a misdemeanor. So why should he be punished more severely for using a cell phone?  The Court of Appeals' answer? The harsher punishment is warranted because cell phones make it easier for criminals to violate the law without being detected.  If you want to read a transcript of the argument in the Supreme Court, visit http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-192.pdf.

While Abuelhawa's situation seems of little national significance, the Supreme Court's decision may help determine the future course of the so-called War on Drugs.  Harsh sentences for non-violent drug offenders have done a lot to swell prison populations but they have done little to curb consumption of illegal drugs.  If the Supreme Court upholds Abuelhawa's felony conviction, prosecutors will be encouraged to seek ever-harsher penalties for drug offenses.  A reduction of the sentence to a misdemeanor may signal that the Court thinks it's time for the government to try out some alternative methods of conducting the War on Drugs.

I was recently astounded to learn, from a study by the respected Pew Research Center, that in 2007 Latinos accounted for about 40% of people convicted of federal crimes.  As a result, nearly 1/3 of all federal prisoners in 2007 were Latino.  During the period between 1991 and 2007, the number of Latinos convicted of federal crimes increased from just under 8,000 to nearly 30,000.

Have Latinos suddenly become more lawless?  Not at all.  Nearly half of the Latinos convicted of federal crimes in 2007 were convicted of immigration offenses.  Thus, what the dramatic increases really reflect are a far greater number of illegal immigrants -- and greater enforcement of immigration laws.

We often hear claims, many of them specious, that Latinos are a drain on community and economic resources.  But I've never heard people who call for greater enforcement of immigration laws talk about the costs of finding, prosecuting, defending, and housing so many Latino inmates in prison.  How many violent offenders remain free because law enforcement resources are diverted to enforcement of immigration laws?  The huge increase in Latino prisoners is just another sign that our country's immigration policies are in drastic need of repair.

In 1996, Congress expanded an existing law so that people convicted of misdemeanor domestic violence could not own guns. In November of 2008, the U.S. Supreme Court heard arguments in the case of United States v. Hayes, which requires the Court to interpret the expanded law.

As it happens, only a few states (including California, Illinois, Michigan, and Ohio) have laws that specifically criminalize domestic violence. In other states, domestic violence is illegal under their general laws outlawing assault and battery. Under such a law, Randy Hayes was convicted only of misdemeanor battery in 1994 after beating up his then-wife. A decade later, the police came to Hayes' home after receiving another domestic violence call. When the police found out that Hayes owned guns, Hayes was charged with and convicted of violating the 1996 law forbidding perpetrators of misdemeanor domestic violence from owning guns.

Hayes argues that the 1996 law does not apply to him, because he was convicted of misdemeanor battery, not of "domestic violence". A federal court of appeals in Virginia accepted this argument and set aside Hayes' conviction. The correctness of that ruling is now before the Supreme Court.

The Justice Department, seeking to uphold Hayes' conviction, argues that Congress clearly intended to prevent people like Hayes from owning guns. Furthermore, the Court shouldn't be swayed by the fact that Hayes was convicted only of a misdemeanor. He seriously beat his then-wife, but as in many domestic violence cases was allowed to plead guilty to a misdemeanor. (Prosecutors are often forced to allow domestic violence perpetrators to plead guilty to reduced charges because the victims refuse to cooperate.)

If the Court upholds Hayes' argument that the 1996 law's gun ban does not apply to him, Congress might re-write the law. A re-written law might outlaw gun ownership by all persons convicted of misdemeanors based on acts of domestic violence. Or, states that do not currently have such laws on their books might enact laws specifically outlawing domestic violence. In either event, the politicians will probably face opposition from the Gun Lobby. For example, the 2nd Amendment Foundation argues that "the right to own a gun shouldn't be taken away over a misdemeanor". I'm sure that thousands of domestic violence victims, as well as the families of the many cops who have been shot and killed while answering domestic violence calls, would disagree.

Sen. Ted Stevens, an Alaska Republican Senator since 1968, was convicted by a jury of seven felony charges on Oct. 27, 2008. The felonies all involved corruption.  Stevens accepted huge gifts from oil corporations, but never bothered to report them.

Echoing the reactions of multitudes of convicted felons, Stevens immediately proclaimed his innocence and called the jury's verdict unjust. He blamed the verdict on prosecutorial misconduct and vowed that he would get it overturned on appeal. Blah, blah, blah -- so say all the powerful hypocrites like Stevens when they finally get caught.

What's particularly delicious about Stevens' professed faith in the appellate process is its newness. In fact, Stevens wasn't always such a big fan of appeals. Back in the mid-1990s, Stevens voted to limit the right of state court prisoners sentenced to death to appeal their convictions. Isn't it too bad that prisoners sentenced to death don't have the right to vote on Stevens' right to appeal?

Prior to his conviction, Stevens had gained notoriety for championing fiscal conservatism while earmarking huge sums of taxpayer money for pet projects that would benefit big Alaska donors. The most famous of these earmarks was the so-called "Bridge to Nowhere," a ridiculously expensive project that would have reduced the travel time between two sparsely populated villages in Alaska.

Stevens' conviction may indicate that he never quite got that earmark fiasco out of his mind. When he comes up for sentencing in January of 2009, Stevens may find that he has built a Bridge to Prison.

Proposition 6 is a California ballot initiative that deserves overwhelming rejection on November 4, 2008.  While a few of its provisions toughen penalties for some types of violent crime, the main effect of the initiative would be to redirect billions of dollars in increasingly scarce state resources to its backers.  

Here are six reasons to say no to Prop. 6 on election day in California:

1. During a period when the state lacks money for basic services, Prop. 6 would require the state to spend a half billion dollars more than it already does for prison space. 
2. The state would have to hire hundreds of additoinal parole agents at a cost of about $125,000 per agent per year. (That figure would be sure to rise.)
3. Reeking of Hypocrisy Part 1: Henry Nicholas III, the initiative's primary financial supporter, is under indictment for a variety of federal crimes, including backdating stock options and providing drugs and prostitutes for clients.
4. Reeking of Hypocrisy Part 2: The initiative's legislative sponsors routinely attack and vote against state spending measures, but manage to keep a straight face while pushing for a law that would commit billions of dollars of state money to their pet projects.   
5. Prop. 6 is absurdly anti-democratic.  A virtually impossible-to-attain majority of at least 75% of the legislature would be required to alter any of its provisions.  The upshot is that legislators who regularly rail against "entitlements" are trying to cement them into state law.  I suppose it just depends on whose ox is entitled.
6. The initiative names Appriss Inc., a single private maker of VINE, a victim notification device, and rewards counties that use VINE. (For information about the company, go to http://www.appriss.com/)  Would you be surprised to learn that Appriss is lobbying hard for the initiative's passage?    

While Proposition 6 would be a terrible idea at any time, it is a partilcularly terrible in 2008 as the state faces one financial crisis after another.  This initiative is a crime, and the best anti-crime message the voters can send is to reject it overwhelmingly.

According to a common criminal justice aphorism, "If you do the crime, you'll do the time." In many states, however, the more accurate version of this aphorism is, "If you do the crime, you'll do the time -- and never vote again." In over 30 states, "ex-felon" is a label that bars people from voting even if they've fully paid their debt to society. Nationwide, over 4 million ex-felons have lost the right to vote. This is a lot of disenfranchised people in a country that has taken up arms and shortened lives in an effort to spread the blessings of liberty to less enlightened countries.

Since members of ethnic minority groups are over-represented in prison populations as compared to their numbers in the general population, the denial of voting rights to ex-felons has racial consequences. Estimates are that in some states, as many as 25% of African-American men of voting age are unable to vote because they are ex-felons.

State-to-state differences with respect to voting rights for ex-felons are an example of how much power states have to develop their own criminal justice practices. In Oregon and Utah, for example, felons can register to vote as soon as they are released from state custody -- even if they remain on parole or probation. In Washington state, by contrast, ex-felons can never vote. Thus, the happenstance of where people commit crimes can greatly alter their post-conviction rights.   

Community groups such as ACORN (Association of Community Organizations for Reform Now) and The Western Prison Project are actively involved in efforts to restore voting rights to ex-felons, and their efforts are beginning to pay off. For example, a 2008 change in Florida law restored voting rights to more than 100,000 former felons.

Of course, the fact that greater numbers of ex-felons may be able to register to vote does not necessarily mean that they will. Laws granting voting rights to ex-felons are not self-executing. Ex-felons must be aware that they retain the right to vote and then must follow what may be complex registration requirements. Nevada, for example, recently restored voting rights to a limited number of ex-felons, but ex-felons who want to register to vote must petition the Nevada Board of Pardon and Parole to do so. Thus, community groups that hope to translate the right to vote into actual votes must work not only with state legislatures, but must find ways to inform ex-felons of their right to vote and then encourage them to register and show up at the polls.