Sunday, March 14, 2010


NYLJ 6-04-07


2. The wreckage of the Twin Towers was still burning when the State Legislature began tacking the word “anti-terrorism” onto their latest anti-crime bills. And those provisions governing speech, conduct, and other areas of behavioral suspicion have gotten a bit of use by prosecutors—just not against anyone really threatening to bring down the government. Just ask the head of the Public Defenders.

“Those charges make these cases that are essentially meaningless into something far more important. We’re seeing a pattern of serious allegations resulting in de minimus outcomes.”

Take the guy who threatened two social services workers upstate. The Appellate for 3rd Dept unanimously upheld his conviction of making “terroristic threats” and the 15-year-to-life sentence he received. A persistent felon? Sure—but an Al Qeda operative? How many of them lose their temper over an SSI disqualification? And his son too?

The big nut here is Penal Law Section 490.20. it makes a Class D felony punishable by 2 to 7 years to make threats “with intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping.” Any more vague and you could add in “loitering with intent to create a public nuisance”. Might as well get Cool Hand Luke and turn cutting the heads off parking meters into a capital offense.

The 3rd says otherwise: “The statutory language sufficiently apprises persons of ordinary intelligence of the type of conduct that is forbidden and provided law enforcement officials with clear standards for enforcement.” Which is kind of like saying: The Rules were posted on the Barn last night. If you sheep didn’t read them, that’s your problem. If the paraphrase of the Pigs from George Orwell’s “Animal Farm” offends you (with the tacit association of the 1960s radical label for police), don’t let it. There is a complete disconnect from the people who pen these pieces of legislation and those who look at them as a means of enforcing the peace. ADAs and Grand Juries only see the presentation of the letter of the Law, and thereafter what it implies. For prosecutors, this is a new screwdriver to put into the toolkit; something which can be used to leverage a reluctant witness as much as twist the twistos into the planks. Yet there is nothing that says you can’t use it to pry open cases, wedge defendant’s away from standard please (where precedent can stop a lot of arguments before they get started) and thump a couple of small brads to anchor an offense. They don’t have to be threatening to overthrow our form of government.

As it is, this is being applied in every aspect where either intimidation or scare tactics are in use—from street-level gang violence to leaving messages on a phone with promises of a “Virginia Tech”-style massacre. It would seem, then, that once this sort of label gets placed upon previously unclassifiable, tragic behaviors, it take on a life of its own. As well as a new identity.

The native American who had done two pervious bids—’82-’88 Grand Larceny, and '91-’95 for sexual abuse—is by no means an innocent; canned for even corking off to the cops (and SS Admins). But even with his admission of a terminal illness, which gave him “nothing to lose”, and membership in the Akwesasne Warrior Society, giving him easy access to “a gun…at any time,” his conviction on this seems disproportionate, to say the least. For the exact same incident, he was convicted, on the Onodaga County level, for 2nd-degree Aggravated Harrassment: a six-month sentence. Under 490.20, 15-to-life appears almost absurd. And to make matters worse, his son mouthed similar threats and ended up getting charged and convicted, with his father’s prosecutor as a witness, on the same section number.

In the present state of government, not only can’t you not fight city hall, but it is almost one step from treason to do so. When threat and dissent become known under the same heading, you’d better be damned sure of what side of the line you stand, at all times.

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