Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution" that controls their daily existence in a way that few of us can imagine. "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, walking, speaking, silent, working, playing, viewing, eating, voiding, reading, alone, with others. . . ." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. -- Justice William Brennan, dissenting in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987).

Wednesday, November 5, 2008

Is Ted Stevens a Convicted Felon or Not?

Ted Stevens, the 84-year old Republican Senator from Alaska, was recently convicted of 7 felony counts of lying on federal disclosure forms. (The media has inaccurately been saying that he was convicted of corruption but the prosecutors did not allege that any bribery, blackmail, or favors were involved in the receicing of the gifts.... they simply claim he intentionally did not disclose the gifts, which primary involved improvements to his home.)

However, Ted Stevens has been claiming that he is NOT a convicted felon.

So which is it? Is he a convicted felon or not?

Yes. :)

He was convicted by a jury but the conviction is not final until all appeals have been exhausted and the judge sentences the defendant. It is the issuance of the Judgment and Commitment after sentencing that establishes the conviction. (By the way, that is also why Kenneth Lay, of Enron, had his sentence vacated when he died before being sentenced.)

So, does this mean Ted Stevens was allowed to vote (see here also) in his own Senate race for re-election (which he appears to have won by the way -- there is no restriction on a felon serving as a Senator, although if his appeals fail, it is possible the Senate will remove him)?

Actually, yes.

I had the same thing happen to me in 2006. On October 13, 2006, three weeks before the mid-term elections, I entered a guilty plea and was scheduled to be sentenced in January, 2007.

I asked my lawyer if I was allowed to vote. She didn't know and asked the prosecutor. He said he does not notify the board of elections until after sentencing and that it is ok for me to vote because I was not yet a convicted felon, despite my guilty plea. Therefore Stevens was legally allowed to vote.

In any case, Stevens has significant grounds for appeal. Unfortunately, most citizens don't pay attention to details on matters like this and automatically assume he's a crooked politician and that the prosecution wears the white hat.

Not so fast.

There was significant prosecutorial mischief and even misconduct (see here also) in this case that form the basis for an appeal. Despite the convictions (which are exceedingly easy to get in federal court), the charges were relatively weak. Stevens was NOT charged with corruption, merely not reporting the gifts. He is guilty of a procedural, not a substantive, sin. It is a problem of appearance. The idea that someone could be a convicted felon and spend time in prison for not reporting something is just silly, especially since no one is alleging that anyone was harmed (except the intangible claim that "the people" are entitled to know who is giving stuff to their elected leaders). I don't think people pay enough attention to these things to know how really trivial this case was.

While Stevens apparently, according to Colin Powell, has a "sterling" reputation, he was combative and aggressive while on the stand, an approach that probably didn't serve him well. After 40 years in the Senate, he is used to having things his way and didn't much appreciate the female prosecutor questioning his integrity.

Again, a situation in which an unsympathetic, powerful, celebrity defendant is aggressively (to the point of abuse) prosecuted for relatively minor charges.

Personally, I hope he wins his appeal but I'm not holding my breath.


Unknown said...

glad to see you posting again,

Tea N. Crumpet said...

What did you think of Bill Allen? Do you think he can be trusted?

Bill Bailey said...

I think the US Attorney did what US Attorneys do -- he put a gun to his head and said if you don't cooperate in our prosecution of Ted Stevens we will prosecute you for every statute we can find to the fullest extent of federal law. Oh, and we will prosecute your family members too. And Bill Allen did what any rational defendant would do -- he said "Tell me what you want me to say" :) Of course he had to throw away a decades-long friendship with Ted Stevens but, hey, what is friendship when staring at a long prison sentence?

Anonymous said...

What do you think of H.B.623 that provides for expungment for first time nonviolent felony offenders? Are you aware of the bill? A form of this bill has been introduced in the last two congresses by Rep. Rangel and he intends to introduce it again in the next congress (I spoke to someone in his office about it last week). You, as well as I, would be a prime candidate for this bill. Getting it brought out of the House Judiciary Committee for a vote would be a huge step. Getting Republican cosponsors in the House to make it a bipartisan bill would be huge also. Finally, getting a companion bill introduced into the Senate with bipartisan sponsors would cinche the deal. What are your thoughts about a concerted effort through your blog. I have not seen anything about the bill, so some form of discourse accompanied with a concerted action would be very useful. With Obama in office and a Democratically controlled congress gives a prime opportunity over the next two years to bring this to fruition.

Unknown said...

I would be willing to help. Problem with me right now is I'll probably be in Pensacola most of next year(I have a sentencing first of the year). But my family would talk to Congressmen.

Tea N. Crumpet said...

Bill-- I just did my first prison ministry! I was happy with it-- did you have many priests and ministers come in and say hello to you and the others? What kinds of programs did they have?

Anonymous said...

Hi Bill:

Keep following your posts.


Anonymous said...

Federal prosecutors do abuse their powers and bend to what the public outcry decree is. But the political criminals use their high powered attornies to completely turn things around and get off scott free most of the time. So what is the definition of fairness in a trial for a federal inmate? There is none. If you have lots of money you can buy your way out most of the time or to a vastly reduced sentence. If you have no money you are basically screwed and will be paraded as the scapegoat. What a great democracy we have.

Bill Bailey said...

Money didn't help Stevens, nor the Enron defendants, nor most others. In fact, I am having a hard time thinking of a single prominent defendant who won a federal trial and I can think of a lot who lost. A prosecutor would have to be borderline incompetent to lose a federal trial.

In a high-profile case, the govt has virtually unlimited resources to easily match the defendant. The rules of evidence favor them also.

Furthermore, once convicted, judges also listen to public opinion and seem inclined to sentence tough, especially where a celebrity defendant is involved.

Negotiating a plea deal is the best bet and a good lawyer can help with that and at sentencing. Also saves a lot of money!!

Anonymous said...

Bill, were I holding my breath for you to post I would be dead! Wouldn't you feel terrible, killing a much loved women with a huge family all because you didn't post? I'm sitting here crying for myself! O the agony!


I hope your muses inspire you again soon and that your Christmas was delightful!

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