Is it fair to lengthen the prison sentence of a convicted defendant because she makes light of her offense and hints that she might commit it again? Or are unrepentant utterances by a lawbreaker — especially those that have a component of political advocacy — entitled to 1st Amendment protection? A federal appeals court in New York is wrestling with that issue in a case involving Lynne Stewart, an activist and former lawyer who was convicted of serving as an intermediary between her client, a convicted Egyptian terrorist, and his followers in the Middle East. Stewart's original sentence of 28 months was increased to 10 years by a judge who concluded that her comments after her trial suggested a lack of remorse.
In the 1990s, Stewart, now 72, defended Omar Abdel Rahman, a radical Islamic cleric known as the "blind sheik," who was convicted of seditious conspiracy for encouraging his followers to commit terrorist acts in the New York City area. In 2000, Stewart violated security arrangements by issuing a news release on Rahman's behalf urging his supporters to reconsider their participation in a cease-fire with the regime of then-Egyptian leader Hosni Mubarak. For that, Stewart was convicted in 2005 of providing material aid to terrorism and of lying to the government. Outside the courthouse, she told supporters that her 28-month sentence was fair, but then added: "I can do that standing on my head." A few days later, asked by a journalist if she regretted the conduct that led to her conviction, she said: "I might handle it a little differently, but I would do it again."
When the U.S. 2nd Circuit Court of Appeals upheld Stewart's conviction, it suggested that District Judge John G. Koeltl consider revising her sentence in light of contentions by the prosecution that she had committed perjury at her trial and abused her position as a lawyer. In resentencing Stewart, Koeltl cited those factors, but also said that Stewart's out-of-court comments showed "a lack of remorse."
Stewart's lawyers make two arguments. The first is that her exercise of 1st Amendment rights is not the sort of "relevant conduct" that justifies an increased sentence under the law. More narrowly, they argue that her "standing on my head" line was an expression of relief, not mockery, and that "I would do it again" meant only that she would again serve as Abdel Rahman's attorney.
Under the 1st Amendment, they add, any ambiguity should be resolved in her favor. This would be a harder case to make to the court if Stewart had been openly contemptuous of her conviction or if she had said she would violate the law in the future; the judicial system long has taken remorse (or its absence) into account when it comes to sentencing. But her actual comments don't justify a quadrupling of her sentence. The appeals court needs to make sure that the harsher punishment wasn't a reaction to Stewart's assertiveness or her ideological identification with her client.