By Cara Cookson
State v. Sanville, 2011 VT 34 (mem.)
Telling your landlord that you’re going to burn down the trailer you’ve rented from her does not constitute “violent or threatening behavior” sufficient to warrant a probation violation under the standard conditions. Can you imagine the online Comments section to this decision if WCAX or the Free Press had picked up this headline? Here we have a case that will cause non-lawyers to scratch their heads while the attorneys all stand around and nod. Enter the Doctrine of Vagueness and Overbreadth.
Factually, the case is simple. Probationer pled guilty to sexual assault on a minor. He received a suspended sentence with the probation subject to various conditions including, “[v]iolent or threatening behavior is not allowed at any time.” Probationer moved in with his mother, who rented a trailer from Landlord. Probationer and Landlord agreed that Probationer could perform some repairs in exchange for reduced rent. But when rent came due, a dispute arose, and long-story-short, in the heat of a quarrel, Probationer told Landlord he was “going to burn the trailer down.” Let’s pause here and allow everyone to imagine all the ways that the expression “burning down the house” is used in the American-English lexicon, in order to prepare them for what follows. Isn’t telling someone that you’re going to burn down their house just a euphemism for _____-you? Isn’t it a SHeDAISY song? A Talking Heads song? And didn’t Parliament–Funkadelic used to chant it to get the audience going at a concert?
Anyway, the Probation Officer gets wind of this and before you know it, Probationer is appearing on violation of conditions. Probationer didn’t necessarily dispute the comment itself, but he pointed out that according to the evidence at the violation hearing, he never did anything . . . in fact, he walked away as he made the comment. The word “behavior” in the phrase “violent or threatening behavior” necessary requires a physical act alongside the threat, right? Probationer argues that this standard condition is unconstitutionally vague and overbroad and violates his First Amendment right to free speech. The trial court didn’t agree. After all, telling someone in the heat of argument that you’re going to burn down a trailer isn’t just a threat, it’s a violent threat and quite obviously a violation of the condition prohibiting violent or threatening behavior . . . and so forth…
On appeal, the SCOV disagrees because making this sort of comment, without more, cannot constitute a violation of this condition. Here’s where the Constitution comes in, and with it, the notion that probation conditions—or any other criminal law—cannot be so vague in their wording or application that they fail to apprise the defendant of what he or she can and cannot do. Due process requires that people have notice of what’s prohibited before they can be punished for doing it—arguably so that they can govern themselves accordingly. The decision here is a little more nuanced, because the SCOV doesn’t dismiss the condition itself as overbroad or vague, but instead finds that the trial court stretched the condition too far to reach the facts of this case. According to the SCOV, Probationer did nothing more than “mouthing off.”
The lawyers among you might be expecting that the SCOV now to turn to Chaplinsky and Cohen and fighting words and **ck the Draft! and all that good First Amendment stuff. But alas, the SCOV appears to have opted for keeping it simple. The opinion leaves some parting notes (albeit obiter dicta) about the statutory requirement that probation conditions be reasonably related either to rehabilitation or to reducing risks to public safety. In other words, what does pleading guilty to sexual assault have to do with arguing with your landlord?
On a broader level, we hope this case of an apparently hyperbolic threat doesn’t open the door to thornier issues down the road. “I’m going to burn down the trailer” might appear less like “mouthing off” and more like affirmative conduct when spoken to someone the defendant has physically harmed in the past.