Sentenced to shut up

The sentence for a South Dakota drug-policy-reform advocate convicted of felony possession of marijuana is raising concerns about fundamental individual rights. Bob Newland, the director of the South Dakota chapter of the National Organization for the Reform of Marijuana Laws, founder of South Dakotans for Safe Access, a medical marijuana group, and publisher of Hemphasis, was sentenced to one year in the Pennington County Jail, with all but 45 days suspended. During that year, he is forbidden to publicly advocate marijuana legalization.

On July 6, Newland sent out an email saying, in part:

This will be the last email I send under the banner ‘South Dakotans for Safe Access‘ at least for a year.

By now, most of you know I plead to a felony count of possession of marijuana in May. Today I was sentenced.

In an hour-long sentencing hearing, Judge Delaney waxed reminiscent as he described his admiration for Muhammad Ali’s stance against an illegal war, which cost him millions of dollars and his peak performing years, during which time he did not complain, nor did he leave the country that so abused him for his beliefs.

Then, citing the fact that he (Judge Delaney) had to account for his actions to the hundreds of kids he sees in juvenile court, he sentenced me to a year in the Penn. Co. jail, with all suspended but 45 days. During the suspended part of the sentence I will wear a bracelet that senses alcohol use and I will be subject to arbitrary p-ss tests by a probation officer to detect illegal “drug” use. In addition I may have no “public role” in cannabis law reform advocacy during that year. ...

According to the Rapid City Journal, Judge Delaney told Newland, who will turn 61in jail, "You are not going to take a position as a public figure who got a light sentence." The judge also told Newland that he didn't want the advocate to be in a position to encourage minors to consume intoxicants.

Newland was found with marijuana and a scale after a traffic stop -- a clear violation of the law, though not necessarily a wrongful act, if you believe that the government has no business criminalizing consensual activities among adults.

But, morality of the law aside, Newland's sentence was a light one for an acknowledged felony -- except for the very restrictive gag order. It's unusual for judges to require defendants to remain quiet about their political opinions. While judges have wide-ranging authority to impose restrictions, these usually revolve around issues relevant to their crimes, such as proximity to a victim, or refraining from further criminal activity, or requirements that make it easier for authorities to monitor behavior, such as search access and ankle bracelets. Throwing in a suspension of First Amendment-protected rights to speak out on matters of public policy is gratuitous and offensive.

What legitimate interest could a judge have in suppressing political opinions?

Jack King, director of public affairs and communications for the National Association of Criminal Defense Lawyers, raised exactly that point when he told the Rapid City Journal, "I don't know if the judge realized that he was imposing his politics on Mr. Newland as a condition of his probation."

But we've taken a long road to this path with other suspensions of civil rights that are said to be inappropriate for those convicted of serious crimes. Convicts, even nonviolent ones, supposedly can't be trusted with firearms, so felons are often deprived of the legal right to own the means to defend themselves and their families -- even decades after their crime. And felons are deprived of the right to vote temporarily or permanently in most states as a continuation of the medieval tradition of "civil death" which stripped felons of their rights. There's been a move on in recent years to restore voting rights, pointing out that the loss of rights unrelated to ensuring that prisoners pose no threat is incompatible with a free society.

In a 2004 article for the American Bar Association's Human Rights magazine, arguing against suspending voting rights, Marc Mauer, assistant director of The Sentencing Project, wrote of what he considered an example of suspended rights taken to the extreme:

Suppose, for example, a legislator proposed a bill to make it unlawful for a probationer to write a letter to the editor or to participate in a protest rally. Surely few policymakers or citizens would find this an appropriate consequence of a conviction.

Ironically, Mauer's absurd example is exactly where Newland is now.