Tuesday, August 28, 2007

The Lewd Conduct of Senator Larry Craig

It takes a juicy arrest like this of a prominent gay bashing Republican to drag me out of my torpor and get me posting again. The arrest and conviction of US Senator Larry Craig, a Republican from conservative South Dakota (didn't they just pass a law criminalizing all abortions?) is one of those crystallizing moments that happens with increasing frequency in society - usually the moments are crystallized by Republicans, because they have gained much of their political power by riding moral crusades and against crime. Of course, I love these cases because what they do is force normally "tough on crime" Republicans, those who have held as a general philosophy "lock 'em up, let God sort them out" to confront real issues of guilt and innocence, the fairness of the system, harshness of punishment, and whether they really live up the codes of morality they seek to impose on others.

The Scooter Libby case was a perfect example of Republicans being forced to admit that a punishment did not fit the crime. In that case, it was perjury and obstruction of justice receiving lengthy prison sentences (they seem to have gotten beyond that whole thing - they just thought this one, solitary prison sentence was too much - if given to minorities, poor people or Democrats, then it would've been too lenient). The fact remained, though, that defense lawyers are now able to present the President's statement about the harshness of prison for a first time offender like Libby in their own cases.

The Larry Craig case brings up a few issues near and dear to my heart. I'll talk about one of them today, and follow up with the others in the next couple of days.

The issues that I see are as follows: 1) absurdly defined crimes that result in criminal convictions for behavior that cannot otherwise be defined as criminal, 2) people pleading guilty to things they didn't do so as to avoid the spectacle or trouble or risk of going to trial, and 3) absolutely ridiculous "opinion" testimony of police officers which generally amounts to "my opinion as a police officer is that he's guilty, so the jury should find him guilty."

Regarding people pleading guilty to things that they may not have done, Larry Craig is a perfect example. He obviously wanted to plead so as to avoid a spectacle in which he would've been held up to major ridicule. The cost of trial such as this would've been enormous for him, and by all signs of the police report I've seen, there's a very good chance that he could've beat the charge (I have to admit, I haven't read the statute, but I'm guessing it's somewhat similar to California's lewd conduct law in Penal Code Section 647(a), of which I did a couple of trials ages ago when I did misdemeanors).

Craig indicates that he was innocent, but pled to take care of it. The fact is that he was given a great sweetheart deal, which is usually given in cases like this, which encourage people to plead to things they may not have done. I don't have an easy solution for this, of course. It sounds easy to ridicule, but I realize that we don't want people getting very harsh punishments small charges that are first offenses just because we want to encourage them to go to trial and assert their rights. On the other hand, criminalizing such minor behavior such as this, and insisting on pushing it to a filing, really stretches what is necessary. I don't know, maybe there really is an epidemic of all of these solicitations taking place in the bathroom in this airport, but I have to think that with conduct like that alleged by Craig, they could use their discretion and not file on it.

The cases that I saw so frequently usually had someone making an unambiguous action indicating intent - usually masturbation and asking the person to do something, not just brushing of a hand or foot. I have to think they could've waited for a little more unambiguous action on Craig's part before arresting him and filing the case (these points obviously bleed over to my other points on the subject).

Back to pleading, though, Craig makes it clear that people actually do take deals when they are not guilty, and, as Craig said, without the assistance of a lawyer (which he said he wished he had taken, but obviously wanted to get it over as quickly and quietly as possible that he didn't avail himself of this option). Other people don't have lawyers for other reasons, though. Some jurisdictions have crappy PDs or appointed lawyers. Some courts encourage people to plead without lawyers, making them wait a long time if they want a lawyer, and getting them out more quickly if they say they'll waive their right to a lawyer. Other courts even suggest that the offer could go up if people insist on a lawyer (believe me, they always manage to say this in a cagey manner that doesn't say it directly, but gives the person in the position of hearing the statement come away with that unmistakable impression).

So, when Craig said that he pled to something that he didn't do, this is an area where tough on crime Republicans would normally scoff and say "yeah, right." But, as Craig shows us, this does happen, and people do have reasons to plead to things that they didn't' do. So, the next time you hear someone say "I took a deal, but I didn't do it," remember that he may actually be telling the truth. Don't accept that guilty plea as the gospel truth.


Boy, did I blow it with calling Craig a senator from South Dakota. As Skelly correctly pointed out, he is from Idaho. I could blame it on some factor that deflects blame from me, but I'll stand up and take this blame.

Also, TPM has more, including the actual tape of the conversation between Craig and the officer who arrested him, as well as his plea agreement and swearing that he has no claim as to innocence.

It certainly makes it look as if he would have a more difficult time withdrawing is plea.

Thank you Skelly for the correction and update.