Even criminals have constitutional rights

When a federal judge in Albany gave Warren Green supervised release that prohibited him from wearing street gang colors, he sued under the due process clause because that requirement was vague. He wins the case.

The case is U.S. v. Green, decided on August 13. The defendant is no angel, that's for sure. He went to jail as a cocaine dealer and was then caught in jail with drugs. He was given an additional sentence and then supervised release that said he could not associate with any street gangs or wear certain colors. Here's the actual court order: "The defendant shall not associate with any member or associate of the Bloods street gang, or any other criminal street gang, in person by mail (including email), or by telephone. this shall include the wearing of colors, insignia, or obtaining tattoos or burn marks (including branding and scars) relative to these gangs."

Even criminals have rights. Who knows where the twists and turns of constitutional doctrine will take us? The Constitution is complex, with nuances that are sometimes counterintuitive. You could argue that somewhere along the line we took a wrong turn at Alberquerque, so that some inmates have more constitutional rights than the police officers who arrested them. That's a function of the many legal tests governing the First Amendment, but the inmate/police officer paradox is another story.

It was legal for the district court to prohibit Green from associating with street gangs. But the restrictions against certain colors, tattoos, etc., are too vague to satisfy the due process clause, which requires precise clarity to ensure that the defendant is not tripped up accidently. The Second Circuit (Pooler, Katzmann and Livingston) says:

The range of possible gang colors is vast and indeterminate. For example, the L.A. Police Department’s explanation of gang colors and clothing includes “white T-shirts,” “blue or black or a combination of the two,” red, green, black, brown and purple. ... Eliminating such a broad swath of clothing colors would make his daily choice of dress fraught with potential illegality. People of ordinary intelligence would be unable to confidently comply with this condition.