Dy’er Sez: Our criminal court system is supposed to be set up to determine one’s guilt or lack thereof, and to assign punishment to those who have broken a law. But, according to an AP story, a new court ruling in a recent case has set the legal precedent to allow for those found guilty of a crime to be compelled to serve in the military at the whim of the judge presiding over the case – in effect, allowing the sitting judge to become an agent of conscription for the federal government and the military.
The case itself is a tad odd on it’s surface. 23 year old college student Zachary Lambert decided that it would be a good idea to post a blurb on his Facebook page that he was going to break the record of the Virginia Tech shooter, who killed 32 people during a shooting spree on VT’s campus a couple of years ago; the comment was, without question, in incredibly poor taste.
Lambert was later arrested on charges of making a terrorist threat, which was downgraded to a misdemeanor harassing communications charge, to which he pleaded guilty to.
Then Circuit Judge Tracey McCooey handed down the sentence and placed him on probation, ordered him to perform community service, apologize to the community…and join the military.
The first part of the case which seems a bit problematic is the charges themselves: a man (who has no prior indication of violence or ties to a terrorist organization) spouts off on a social network and is hauled away on terrorism charges. Additionally, considering that the charges were later downgraded to a class C misdemeanor, it seems clear that even the prosecutor (as well as the judge) were not taking the Facebook post made by Lambert all that seriously. That being said, there were reasonable grounds to drop the case and give Lambert a warning that he shouldn’t yell fire in a crowded theater regardless of how funny it might seem to him.
The statute for harassment reads as follows:
Section 13A-11-8. Harassment or harassing communications
(a)(1) HARASSMENT. A person commits the crime of harassment if, with intent to harass, annoy, or alarm another person, he or she either: a. Strikes, shoves, kicks, or otherwise touches a person or subjects him or her to physical contact.
b. Directs abusive or obscene language or makes an obscene gesture towards another person.
(2) For purposes of this section, harassment shall include a threat, verbal or nonverbal, made with the intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety.
(3) Harassment is a Class C misdemeanor.
(b)(1) HARASSING COMMUNICATIONS. A person commits the crime of harassing communications if, with intent to harass or alarm another person, he or she does any of the following:
a. Communicates with a person, anonymously or otherwise, by telephone, telegraph, mail, or any other form of written or electronic communication, in a manner likely to harass or cause alarm.
b. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication.
c. Telephones another person and addresses to or about such other person any lewd or obscene words or language.
Nothing in this section shall apply to legitimate business telephone communications.
(2) Harassing communications is a Class C misdemeanor.
The law is obviously written with the intent of a potential perpetrator in mind. Obviously, the end result of Lambert’s post was enough ‘alarm’ caused that someone reported his post to law enforcement. But what was his intent?
Considering that he has no apparent background of violence or in making any threats to cause harm or alarm, one may surmise that his words were nothing more than a joke done in incredibly poor taste…which in no way justifies his conviction or sentence. And if one looks again at how the original charge was diminished, the prosecutor did not think that there was clear intent to do harm; if he did, then it would have been likely that the terrorism charge would have stuck. But prosecutors are clearly in the business of prosecuting, which is why it seems that they will rarely drop a case if they think they can try for a conviction on a lesser charge so they can say they did their job in lieu of serving actual justice.
Looking at the judge’s sentence, one can only guess as to where the mind of the Hon. Tracey McCooey was when the particulars of the punishment were handed down. Lambert pled down to a lesser charge, a class C misdemeanor, which is the lowest form of criminal conduct. A small fine, perhaps a very short stint of community service may have been in line with the conviction. Instead the Judge went for the probation and community service and decreed that Lambert must join the Army. Let’s repeat: this was a class C misdemeanor. In no way does the conviction even remotely warrant the punishment that was handed down.
The most troubling aspect of the sentence is that Lambert now has a court ordered sentence to join the military, which is blatantly unconstitutional. The 8th amendment of the Constitution states the following:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Army, in their defense, claims that it will not accept Lambert as he is currently on probation; but the judge ordered that he would ‘adjust’ the terms of the probation if they were an obstacle to Lambert’s entering into military service.
Certainly, the order of forced conscription into the military can be considered an unusual punishment, to say the least. But is it cruel? Considering that Lambert was convicted of a class C misdemeanor and that service in the military would, in all likelihood, place Lambert into a combat situation during his court ordered tenure in the Army, one can say with great certainty that the punishment is extremely cruel given the severity of the crime.
This is a very dangerous precedent being set by the freewheeling judge McCooey. With an avenue like this open, how long before we start to see this sort of sentencing come down fairly regularly? Does it seem justified that spitting on the sidewalk, jaywalking, and minor traffic violations might land you in Iraq or Afghanistan, bullets flying over your head and IED’s exploding under your feet? Even for those convicted of more serious crimes, think about this: do we really want hardened and convicted criminals representation our country as a uniformed military force?
Judge McCooey has led us to the beginning of a very slippery slope; I can only hope that the sentence is thrown out on appeal, and that McCooey is investigated for his unconstitutional behavior. If not, I can only hope that someone he cares for receives the same sentence for a similar crime – not for any sort of twisted revenge, but so that he can see that the justice he is dishing out is that of a tyrant.