I have written several times how in modern Europe the majority of the countries have Constitutions, but they don't mean anything and are worth nothing, because the judicial system apparently doesn't need to follow any of their rules. I have also commended the United States for actually taking their own Constitution seriously, and actually having it as the highest law of the land, over every other law.
(In European countries, in general, the Constitution is not an actual law but, in essence, a soft guiding principle that presents guidelines on what kinds of laws should and shouldn't be passed. In general, there is no such a thing as "breaking the constitution". Such a criminal charge doesn't exist, and nobody can be sued because of that. For example, a judge or a police officer who does something unconstitutional cannot be charged for that, because it's not a "crime" per se. Which is unlike the United States where people, at least officials, can be sued directly for breaking the Constitution, and nothing else. Such a concept doesn't exist in Europe, at large. In Europe officials can only be sued for breaking the law, but not for breaking the Constitution.)
But it seems that the rule of the Constitution isn't always so universal and all-encompassing as I thought.
Recently a man, a member of a particular Christian Church, saw a rainbow flag put on top of the main entrance of the Church. He got so offended because of his Christian beliefs that he took the flag down and burned it.
The Supreme Court of the United States has ruled time and again that flag burning falls under the protections of the First Amendment, and therefore cannot be made illegal, nor be punishable crime. Yet, the man got sentenced to jail because of this.
Any sentencing at all would be anti-constitutional. But perhaps he got such a light sentence that it isn't really worth making such a huge fuss about it? Did he get, like, I don't know, a couple of weeks of mandatory community service? Or a couple of months of probation and a suspended sentence?
Nope. Get this: He got 16 years.
For burning a flag. Something that has been ruled by the highest courts of the country as being First Amendment protected activity.
And it's not like he went on some kind of crime spree, like disturbing the peace, harassing people, vandalism, rioting, destruction of property (other than the flag itself), and the flag burning itself was just one of the things he did. No. Burning the flag was the only thing he did. Nothing else. He still got 16 years.
Of course you can't sentence somebody to 16 years of prison just for destroying a flag. The judge was clever: He sentenced him to 16 years by abusing technicalities.
You hear all the time how criminals get away with their crimes and set free due to technicalities. In this case it's the other way around: This time a very minor crime was punished with a completely disproportionate punishment by abusing technicalities.
Here's the contrived string of technicalities piled one on top of another that helped the judge end up with the whopping 16 years:
Because of burning the flag, he was accused of third-degree arson, a class C misdemeanor that carries a maximum sentence of 2 years. On top of that, he was accused of "reckless use of fire or explosives", another misdemeanor that carries a maximum sentence of 1 year. On top of that he was accused of "third-degree harassment" (even though he didn't really harass anybody, he just burned the flag), a minor misdemeanor.
Iowa law, however, requires that if an offense is prosecuted as a "hate crime", then it must be "classified and punished as an offense one degree higher than the underlying offense". Thus the class C misdemeanor was elevated to class D felony, with a maximum sentence of five years.
So we still aren't there yet.
It so happens that the guy had in his past two other felonies, which in the state of Iowa now makes him an "habitual offender", which demands maximum aggravated sentences.
The judge gave him maximum sentences for all three "crimes", to be carried consecutively, totaling to 16 years in prison, with possibility of parole no sooner than in 3 years.
It's quite clear that he was sentenced with a completely disproportionate punishment by abusing technicalities.
For burning a flag. A constitutionally protected activity.
(In European countries, in general, the Constitution is not an actual law but, in essence, a soft guiding principle that presents guidelines on what kinds of laws should and shouldn't be passed. In general, there is no such a thing as "breaking the constitution". Such a criminal charge doesn't exist, and nobody can be sued because of that. For example, a judge or a police officer who does something unconstitutional cannot be charged for that, because it's not a "crime" per se. Which is unlike the United States where people, at least officials, can be sued directly for breaking the Constitution, and nothing else. Such a concept doesn't exist in Europe, at large. In Europe officials can only be sued for breaking the law, but not for breaking the Constitution.)
But it seems that the rule of the Constitution isn't always so universal and all-encompassing as I thought.
Recently a man, a member of a particular Christian Church, saw a rainbow flag put on top of the main entrance of the Church. He got so offended because of his Christian beliefs that he took the flag down and burned it.
The Supreme Court of the United States has ruled time and again that flag burning falls under the protections of the First Amendment, and therefore cannot be made illegal, nor be punishable crime. Yet, the man got sentenced to jail because of this.
Any sentencing at all would be anti-constitutional. But perhaps he got such a light sentence that it isn't really worth making such a huge fuss about it? Did he get, like, I don't know, a couple of weeks of mandatory community service? Or a couple of months of probation and a suspended sentence?
Nope. Get this: He got 16 years.
For burning a flag. Something that has been ruled by the highest courts of the country as being First Amendment protected activity.
And it's not like he went on some kind of crime spree, like disturbing the peace, harassing people, vandalism, rioting, destruction of property (other than the flag itself), and the flag burning itself was just one of the things he did. No. Burning the flag was the only thing he did. Nothing else. He still got 16 years.
Of course you can't sentence somebody to 16 years of prison just for destroying a flag. The judge was clever: He sentenced him to 16 years by abusing technicalities.
You hear all the time how criminals get away with their crimes and set free due to technicalities. In this case it's the other way around: This time a very minor crime was punished with a completely disproportionate punishment by abusing technicalities.
Here's the contrived string of technicalities piled one on top of another that helped the judge end up with the whopping 16 years:
Because of burning the flag, he was accused of third-degree arson, a class C misdemeanor that carries a maximum sentence of 2 years. On top of that, he was accused of "reckless use of fire or explosives", another misdemeanor that carries a maximum sentence of 1 year. On top of that he was accused of "third-degree harassment" (even though he didn't really harass anybody, he just burned the flag), a minor misdemeanor.
Iowa law, however, requires that if an offense is prosecuted as a "hate crime", then it must be "classified and punished as an offense one degree higher than the underlying offense". Thus the class C misdemeanor was elevated to class D felony, with a maximum sentence of five years.
So we still aren't there yet.
It so happens that the guy had in his past two other felonies, which in the state of Iowa now makes him an "habitual offender", which demands maximum aggravated sentences.
The judge gave him maximum sentences for all three "crimes", to be carried consecutively, totaling to 16 years in prison, with possibility of parole no sooner than in 3 years.
It's quite clear that he was sentenced with a completely disproportionate punishment by abusing technicalities.
For burning a flag. A constitutionally protected activity.
If lawmakers could be restrained by words on a page, we wouldn't need the courts.
ReplyDeleteOf course, the can't, so a strong independent judiciary with the power to nullify laws is necessary.
On the other hand, the flag wasn't his property to take down and burn, so even if his 1st Amendment rights were violated, he'd still be going to prison.
16 years of prison is completely excessive for such a small amount of destruction of property. In the vast majority of cases these are punished with a fine and, at the very most, a few weeks of community service. It's quite clear that the judge deliberately wanted to punish this particular crime as much as he could twist the technicalities. I'm 100% certain that if the flag had been something else (such as the American flag), he would not have gotten 16 years. He would have probably not gotten any jailtime at all.
DeleteI don't know. I think this is typical of any prosecutor looking for re-election that they would throw the book at an accused hate crime.
DeleteBut I don't think the verdict will survive appeal.