LAWYERS, GUNS & MONEY
BY JOHN VAN NESS
In my last column, I pointed out that due to the ever-expanding reach of the criminal laws everybody is guilty of some-thing, probably a felony, no matter how hard you strive to be a law-abiding citizen. If you buy your kid a puppy and the puppy illegally barks, you are technically guilty of “Contributing to the Delinquency of a Minor,” maximum penalty eight years. If you say “sounds good” when some drunk is telling you how he’s going to (illegally) get even with his neighbor, you’ve probably become a co-conspirator.
This month’s news is even worse, because you don’t even have to actually violate a Jaw to get tossed in jail; all you need is an accusation. The truth gets sorted out later in the process, usually much later, and sometimes never.
Of course we all have rights, but after several decades of pro-police rulings by the Supreme Court, the Bill of Rights just ain’t what it used to be. And the future doesn’t offer much hope, because in order to gain the coveted designation of “conservative,” a judge must consistently rule in favor of increased powers for police and prosecutors and government in general. Whether it’s the War on Drugs or the War on Terror, individual rights inevitably end up being sacrificed.
The Constitution tries to protect us by requiring that a warrant must be signed by a judge before we can be arrested or have our person or property searched, but there are many exceptions. One exception over which we all have some control is that police actions that would otherwise violate the Constitution are perfectly ok if the subject consents to them.
It never ceases to amaze me how many people subject themselves to “voluntary roadside sobriety tests,” or consent to searches of their car trunk, or allow an officer into their home. Police know that refusing to waive a constitutional right cannot be used as evidence of guilt, but they also know there’s no harm in asking. Officers of the law have the right to knock on your door just like anybody else, and if they happen to see a suspicious pipe on the coffee table or smell a hint of marijuana in the air, you will suddenly find yourself and your home subject to a full-scale search.
When you are contacted by a police officer, rights are nice, but you’ve got to be really careful in the manner in which you present your legal arguments. In Aspen, “hindering” or even “directing profane or abusive language” at an officer can get you up to a year in jail. Police are trained always to be in control in an encounter with a “citizen,” and simply walking away might, result in a charge of “resisting arrest” or “obstructing justice,” and it might even get you tasered.
Some of theses local ordinances and policies could easily violate the Constitution, but those legal arguments are best left to lawyers and the safety of the courtroom.
Crimes against cops usually carry enhanced penalties under state law. Pinch a cop (“bodily injury” is defined as causing any “pain”), and if you’re convicted it’s a mandatory two years in jail. But if the pinch is with the intent to “prevent the officer from performing a lawful duty,” you just bought a mandatory five years. Pinch with a “deadly weapon,” and you’ve got ten. “Mandatory:• means that at sentencing you get to listen to the judge telling you that yo_u probably don’t deserve to go to prison but his hands are tied. “Mandatory” also means you don’t have a lot of leverage when it comes to plea bargaining.
Most serious criminal charges are initially screened by a judge (or a grand jury) for “probable cause.” But the rules for determining “probable cause” are that the testimony of those witnesses the prosecution chooses to use must be taken as true. The defense and its witnesses are pretty much irrelevant.
Defense lawyers aren’t even allowed in the courtroom when a grand jury is making the “probable cause” determination. Thus, it has been said that “any prosecutor who wanted to could indict a ham sandwich.” This quotation is credited to New York Court of Appeals Judge Sol Wachter, who said it in 1985.
Ironically, seven years later he himself was indicted by a grand jury for sexual harassment. Some say it was payback for disparaging “the system,” but Sol says his biggest mistake was choosing a sandwich containing a pork product rather than pastrami.
The fact that prosecutors believe in your guilt enough to build the case against you up to the grand-jury stage is something more than mere “baloney.”
It is a fact that the United States incarcerates a larger percentage of its population than any other country in the world, and that rate is growing. Since 1982, Colorado’s prison population has increased by 700 percent, while during this same time period the state’s crime rate has steadily decreased.
It cannot be said that the decrease is a result of increased incarceration, because those states whose prison populations have not increased are also enjoying decreasing crime rates. It’s largely a matter of demographics. Colorado’s prison boom originates almost entirely from the facts that “getting tough on crime” gets votes for politicians, and that nobody bothers to look at the existing penalties. Over the past thirty years, sentences for almost all criminal offenses have been almost quadrupled by the Colorado legislature. And many of these stiff sentences have been made mandatory.
We are spending more money building prisons than schools, and we are reaping just what we have sowed. Maybe it’s time for “Get Smart on Crime” bumper stickers.
As a nation, Americans are woefully ignorant when it comes to crime and punishment. Hunter Thompson was constantly picking the brains of his lawyer friends because he knew that in order to protect and defend our rights we must know what they are. When they came after him back in 1990, he coined the battle slogan “Today the Doctor, Tomorrow You.” He was right.
