Clarence Thomas, misdemeanor convictions, and constitutional rights

[Note: I wrote this back in March. It never ran. It’s no longer even relevant, since the Supreme Court ruled in June (Voisine v. United States) that you can lose your right to own a gun over a misdemeanor conviction. But I still thought I’d let it see the light of day.]

On February 22, Supreme Court Justice Clarence Thomas asked his first question from the bench in over 10 years. It might have been worth the wait.

Most of the news coverage was about the fact he spoke at all. And, of course, of all the questions he could have asked, this one was about giving guns to more people. From the New York Times:

Justice Thomas’s questions on Monday came in a minor case on domestic violence convictions and gun rights. He made a series of inquiries about whether misdemeanor convictions can permanently suspend a constitutional right.

…

“Ms. Eisenstein, one question,” he started, according to a transcript released by the court. “This is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?”

After some back and forth, Ms. Eisenstein said she could not think of one, though she added that First Amendment rights could be affected in comparable settings.

“O.K.,” he said. “So can you think of a First Amendment suspension or a suspension of a First Amendment right that is permanent?”

She could not.

Thomas continued:

You’re saying that recklessness is sufficient to trigger a violation misdemeanor violation of domestic conduct that results in a lifetime ban on possession of a gun, which [is] a constitutional right.

If the right to own a gun is prohibited because of one misdemeanor plea, can government also take away freedom of speech or the right to vote on a similar pretext?

Of gun restrictions are particularly relevant to police officers. The Brady Bill, enacted in 1993 after President Reagan and his press secretary, James Brady, were shot, (among other things) forbids anybody convicted of domestic violence from legally possessing a gun. This means that a person who plead guilty to even one domestic-related misdemeanor can’t be a police officer. It’s the only absolute automatic disqualifier to being a cop.

“Good,” you might say, “people who beat up their partner shouldn’t have guns or be cops!”

And I’d agree with that. But is our justice system fair? Does it only entraps the guilty?

You don’t even have to assault someone to be arrested for domestic violence. On a good day police officers’ discretion can weed out most of the innocent before they get arrested. In some states (Maryland, for instance, but not New York) cops cannot arrest people for misdemeanors unless police witness the crime. But in domestic cases the law is different. Police will arrest you if there is any sign of physical injury. But people lie to cops and judges all the time. If you really want to, it’s quite easy to get somebody locked up for domestic violence.

Sometimes, and it’s never politically correct to bring this up, loved ones be crazy. Many years ago a (female) student of mine was (I do believe) being stalked by her crazy ex-boyfriend. When she called police she got locked up because he was clever enough to go to a judge first, lie, and get a warrant for her arrest. It happens. The irony of a domestic violence victim being arrested because of strong domestic violence laws was not lost on her or me.

She wanted to be a cop. If she plead guilty, perhaps just to get out of jail that night, she won’t be. And what if she were a police officer?

Or imagine a case where you get into a small fight with a friend. Nobody is seriously hurt, but somebody called police. You’ve made up by the time police show up. Cops ask if anybody is injured. You both have nothing more serious than minor scratches. That would be that…. “No police services needed,” as the Baltimore Police code goes.

Unless… unless the case is “domestic.” In Maryland “domestic” means you’ve once had sex. In New York “domestic” expands to people living under the same roof. (Though I’m not certain if two sisters fighting in New York City counts as “domestic violence” under the Brady Bill. I hope not). If it’s “domestic,” somebody is going to jail. That’s how the law works.

Domestic violence laws eliminate the safeguard of officer discretion, and, unlike non-domestic assault, force police to arrest. Perhaps a domestic victim was defending herself, but gave better than she got. Domestic violence laws handcuff police by forcing police to handcuff others. Basically — and I don’t mean to discount the seriousness of real domestic abuse and progress made in reducing domestic violence — when cops show up to a domestic squabble, two people have had a fight, and cops arrest the winner.

Innocent people do get arrested. Getting out of jail is one of the reasons people plead guilty to a crime they didn’t commit. We should all remember Kalief Browder. He spent three years in Rikers Island jail for a minor crime of which he was probably innocent. He just wanted his day in court. He never got it. After three years of incarceration (and abuse by inmates and guards) prosecutors dropped all charges. A short time later, after being released, he killed himself.

Now perhaps you’re willing to accept a few innocent arrests if it reduced crime. But the irony is that mandatory and preferred-arrest domestic-violence laws, because they’re harsh and reduce police discretion, do very little to reduce domestic-violence. And the effect of arrest on the poor and employed — to whom the law is disproportionate applied — is harmful: arrests increase domestic violence recidivism. The laws do not work.

Take this case I wrote about in In Defense of Flogging (The title, I feel I should point out, does not refer to domestic violence):

Once I responded to a domestic call after a man came home, admitted to catting around, got yelled at, and earned a big fat lip when his wife slugged him. He deserved it, he told me (and he probably did). But while his wife was yelling, neighbors called the police. Guess what? She went to jail.

That’s the way it is. That’s how mandatory and preferred arrest laws work on the street. Of course had this case not been domestic-related, I never would have locked her up. And I assume she plead guilty (since she was) to misdemeanor assault. Now she has a record for domestic violence and can never legally own a gun.

When you combine overly restrictive domestic-violence laws with overly permissive prosecutorial discretion, you get a perfect storm of injustice. Thomas’s point, a valid point, I think, is rarely does one misdemeanor plea have such constitutional — and in a cop’s case, occupational — consequences. It’s time to rethink these laws.