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Tuesday, July 7, 2009

Bob Newland Becomes Political Prisoner: Sentence Overlimits First Amendment Rights

Permit me a moment of agreement with Dakota War College: Judge John Delaney's sentence on marijuana advocate Bob Newland appears to include an unjust infringement on Newland's political rights.

To review: Newland pled guilty to felony pot possession. Yesterday, Judge Delaney issued the following sentence:
  1. 45 days in prison
  2. one year on probation
  3. no booze or other intoxicants for that year
  4. random searches
  5. weekly drug tests
  6. no public role in efforts to legalize marijuana for one year
Now I'm going to ignore the argument about whether pot should be illegal in the first place. Newland broke the law, he's now a felon, he's got punishment coming. Let's keep it simple and talk in general about what sort of punishment a felon should get. Prison time, fines, probation, searches, check-ins—those are all reasonable infringements on the liberty of a person who violates the law. (It is worth noting that Judge Delaney cut Newland some slack, suspending the $2000 fine in recognition of Newland's mostly empty pockets.)

But a restriction on political activity? And a restriction specific to the law broken? That seems to go too far. Certainly putting a man in prison entails restricting a man's ability to engage in political advocacy—he can't exactly go downtown to a rally or march on Washington—but it does not take away his voice. If a man is convicted under a law he considers unjust, should we really take away his right to argue publicly for the repeal of that law?

I can see a potential conflict of legal interest here. Suppose Newland chose to appeal his sentence. (Don't expect it: he seems resigned to his fate.) Suppose he wanted to argue that the law under which he was convicted is unconstitutional. Would not that contention, made on the public record in court, constitute advocacy for legalizing marijuana? Would not his very appeal thus constitute a violation of his probation? Something sounds unfair there.

Felons are still citizens. They still have a stake in society. If they want to be advocates for social reform and justice, we should let them speak. That doesn't mean the county or state is obliged to foot the bill for that communication or permit convicted murderers furloughs for every political protest and parade that comes along. But even in a prison cell, one can still think and communicate one's thoughts to others. Whether those thoughts are worth reading or listening to is up to the public. Wesley Cook (a.k.a. Mumia Abu-Jamal) committed crimes heinous enough to land himself on death row, yet he is permitted to publish books and commentaries from prison. Newland's trangressions earned him just 45 days in the pokey; why would a judge restrict his First Amendment rights (speech, assembly, press, and petition) for 320 days beyond the time he will be a guest of Pennington County?

The best legal punishment serves either to restore or to rehabilitate. In Newland's crime, there is no party to restore, no direct harm that must be paid back. And there is no rehabilitation in denying a man his voice, especially not on an issue that has given him purpose and direction for decades. For a man so dedicated to a cause, a blanket denial of his ability to work publicly for that cause is nothing but punitive, and I'm not sure that serves the interest of anyone in South Dakota.

Now Bob, don't go getting a big head. I'm not saying you are Martin Luther King, Jr. But in 1962, Dr. King was sentenced to 45 days in jail for protesting segregation laws in Albany, Georgia. To make Dr. King sit in jail for breaking a law is understandable. But to order King to take no public role in advocacy against segregation laws would have gone beyond strict law enforcement to outright political repression.

Or consider that case over in Minnesota where Judge John Rodenberg ordered the parents of Daniel Hauser to submit the boy for chemotherapy, against their religious wishes. The judge rightly could have sentenced the mother to jail time for subsequently fleeing the state to avoid the court order. But could he have also ordered that she take no public role in advocating the religious principles that motivated her actions? I should hope not. I disagree with her beliefs, and her beliefs put her son's life in danger, but even if she breaks the law, she retains a fundamental right to express those beliefs.

Bob Newland disagrees with a law. Newland broke that law. He will serve time for breaking that law. But for a year, he will also be a political prisoner, banned on penalty of further incarceration from challenging the state on its (as he sees it) unjust law.

I don't like what Bob's been smoking. But I like even less the political penalty we the people are imposing on him.

1 comment:

  1. The law in instances like this one is what makes people snicker and guffaw at the idea of a nation of laws. It would seem that once the charges of "intent to distribute" were dropped, the offense, as it involved no other people, would automatically be a misdemeanor. South Dakota law is a mess, and efforts to make it coherent just seem to muddle it up all the more.
    And I don't know what the status of a felon is any more. Some time back, a convicted felon lost all the basic rights--to vote, to exercise free speech, to possess firearms, and the list went on. It is a total mess, one which some of the legal fraternity that engages in blogging might take up.


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