01 February 2006

Prison For A Non-Existent Crime.

Convictions of people for conduct that isn't criminal doesn't just happen in Colorado for a few months. It also happens in Nevada, where a woman was sentenced to five life sentences for allegedly writing five insufficient funds checks, which the bank was legally obligated to pay anyway because of its overdraft protection arrangement (thus, the merchants lost no money), and then released on lifetime parole after having spent twelve years in prison.

The 9th Circuit begins: "Petitioner spent 12 years in prison for conduct that is not a crime."

The woman had a prior criminal record, and so was sentenced as a habitual offender. But, the 9th Circuit observes that under the plain language of Nevada law, writing checks on insufficient funds is not a crime if you have overdraft protection that obligates the bank to make the checks good. The seven courts that considered her case failed to make the subtle, but elementary, distinction between fraud by using a check to obtain goods for which the merchant would not be paid, since the person writing the checks knew that they would not be honored, and the non-criminal breach of contract involved in not repaying an overdraft loan extended by a bank. Indeed, the 9th Circuit notes that it is illegal under the 13th Amendment and Nevada Constitution to make failure to repay a loan a crime. Nevada's courts and prosecutors are soundly criticized in the opinion.

What is the proceeding that ultimately exonerated this woman called? A federal habeas corpus petition. Republicans hate them. It lets people who have been wrongfully convicted of crimes (or non-existent crimes) go free, and they don't like it when that happens. They seem to prefer the faith based, "let God sort 'em out" approach.

Hat Tip to "How Appealing".

1 comment:

PETDA said...

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