From Florida comes another installment in the “no crime is too small to prosecute” department. The American criminal justice system currently enjoys a world-wide reputation for turning molehills into mountains and the upward trend in prosecuting minutia shows no sign of abating. Proponents of criminalizing legal trivialities often claim to subscribe to the “broken windows” theory of policing under which it is asserted that failure to prosecute minor crimes is an invitation for offenders to commit more serious violations. Regardless of what legal justification is employed, the idea that only “serious” offenses warrant federal prosecution has been turned on its head by prosecutors who are alternatively looking to pad resumes with meaningless convictions, move up the judicial-corporate ladder or simply do God’s work by punishing all perceived evil-doers.
Josef Sever, 52, an Austrian national and Canadian citizen who has lived in Florida since 1992 but never obtained U.S. citizenship, admitted to having voted in two presidential elections despite his status as a non-citizen. Sever was indicted by a federal grand jury in August of 2012 for falsely impersonating a U.S. citizen in order to vote. Federal investigators began looking at Sever earlier this year when he was identified as a possible illegal voter by state officials in Florida.
Josef Sever wanted to participate in his adopted nation’s elections and was rewarded with a stay in prison and a deportation order
Under a controversial program begun by Republican Governor Rick Scott, tough voter identification measures were installed purportedly in order to clamp down on illegal aliens improperly included on voting rolls. These measures were widely regarded by Democrats as thinly disguised efforts to disenfranchise poor and minority voters as there has never been evidence of significant unlawful voting. Other Republican controlled states have conducted similar efforts which are also alleged to have accomplished nothing more than disenfranchise eligible voters.
Despite harsh rhetoric alleging countless instances of illegal aliens voting in Florida, Sever is the only individual to be so identified and charged. He pleaded guilty in August to multiple felony charges of falsely attesting to be a U.S. citizen and illegally voting. Those defending the state’s dragnet of voters insist it is not overkill. “The right to vote is a sacred right,” Governor Scott said as he defended the state’s sweeping investigation of voter lists. “We gotta make sure a U.S. citizen’s right to vote is not diluted.”
Florida Governor Rick Scott is attempting to justify his flawed voter suppression efforts by seeing that Sever is harshly prosecuted
Some commentators have argued that Sever is unfairly being made an example of. They claim that the state’s electoral officials initially flagged and removed more than 180,000 names, many of them Hispanic-sounding, to be further investigated. Nearly all of the names turned out not only to be citizens, but many were military veterans, and had to be quickly restored to the voter rolls. After a lengthy investigation, only one name – Mr. Sever’s – was sent to law-enforcement authorities this past spring. Six other “suspect” cases, in a state with more than 10 million names on the voter rolls, are still being investigated. The state of Florida appears to be venting its frustration at failing to find widespread voter fraud by seeing that Mr. Sever is federally prosecuted to the fullest extent of the law.
Florida has long been a hotbed of voter suppression. Is Sever just a convenient scapegoat?
Adding to Florida’s zeal to see the matter prosecuted is the fact that their effort to remove supposed non-citizens from the voter rolls ran afoul of the Department of Justice (DOJ) who warned the state that they were likely violating the 1964 Voting Rights Act. Sever’s prosecution, isolated as it may be, provides the state of Florida with at least one instance of a non-citizen who had the temerity to vote in a U.S. presidential election. Accordingly, Sever is feeling the full force of the U.S.’s federal criminal justice system.
Sever maintains that he merely wanted to participate in the election process of his host country and had no ill intent. "This was a misguided attempt to exercise a civic duty that he believed that he owed this country ... He only wanted to be part of the country and do something good by voting in important elections," wrote Daniel Ecarius, Sever's assistant federal public defender, in a sentencing memorandum."While it is true that he had no right to vote and that his was a vote that should not have been counted, his vote did not corrupt the system and did not make a difference as to who was elected," Ecarius further stated in his brief.
Regardless, Sever’s treatment at the hands of the DOJ has been severe. Partially because of his non-citizen status, he has been denied bail since his arrest in July of 2012. Sever has been fully cooperative since his initial questioning by agents from the Department of Homeland Security. He admitted lying about his citizenship status and improperly voting. Federal prosecutors have sought his deportation from the U.S. from the case’s inception.
The DOJ absurdly alleged that Sever threatened the integrity of the nation’s entire voting system
While all of this may seem trivial and rather tame when compared with other federal offenses, Sever’s judge and prosecutors have taken a most dire view of his actions. On November 9, 2012, Sever was sentenced by USDJ Ursula Ungaro to a term of five months in federal prison to be followed by his deportation and permanent removal from the U.S. Incredibly, AUSA Robert Watson sought a harsher sentenced when he recommended a term of one year and one day to Judge Ungaro. Watson told the court in a sentencing memorandum that Sever had committed serious offenses. "By voting as a noncitizen, (Sever) effectively nullified the vote of a U.S. citizen. This form of disenfranchisement is no different in effect than had the defendant stood at the polling place door and denied access to a U.S. citizen," Watson wrote.
USDJ Ursula Ungaro rejected prosecutors’ calls for a sentence in excess of one year, but still gave Sever a sentence of five months and ordered his removal from the U.S.
Prior to receiving his sentence from the judge, Sever apologized profusely for his infractions and acknowledged he will likely be deported to Canada. "I am deeply sorry," he told Judge Ungaro. “This will certainly never happen again in any society that accepts me." The court also received letters from supporters advising that Sever, an engineer, was an excellent worker who was employed in managerial roles and played guitar at the Weston church he attended.
Judge Ungaro said Sever's offenses were not trivial, but considering all of the circumstances in the case, including his history of being a contributing member of the community, that a sentence of five months in federal prison followed by his almost certain permanent removal to Canada was punishment enough. Regardless, Sever’s sentence was harsher than most others received for similar offenses. While instances of non-citizens casting ballots are exceedingly rare, the typical punishment in such matters has been a term of probation followed by mandatory deportation which is almost always required when a non-citizen commits a felony.
Sever will be turned over to ICE at the completion of his custodial sentence
Many such offenders plead ignorance of the law, claim to be confused or maintain that they received bad advice from relatives or friends. Applicants completing voter registration forms must attest in writing that they are U.S. citizens and swear an oath that the information is true. Local officials often have no way to independently confirm an applicant’s citizenship. Adding to the accused’s legal burden is that fact that the courts have ruled that prosecutors don't have to prove intent. Thus, claims of “confusion” or ignorance of the law are summarily disallowed.
Scurrilous claims of widespread voter fraud fostered a hostile environment for Sever
Sever attempted to advance no such claim, instead professing a love for his adopted country and a desire, albeit misguided, to participate in its political process. A fitting punishment would arguably have been a small fine and a civics lesson. Instead, Sever finds himself run over by the full force of the Justice Department, convicted, imprisoned and soon to be deported. No one at the DOJ wants to see this case for what it truly is and instead insists on portraying Sever as a serious criminal whose actions threatened the integrity of the nation’s system of voting. The real irony is that it is acts arising out of Sever’s admiration for his adopted homeland that are being rewarded with a permanent deportation order back to Canada.Yet Sever’s treatment at the hands of those who purport to administer justice in his adopted homeland is far from unique. His matter is merely part of a parade of injustice that continues through the federal courts with prosecutors and judges often working in tandem to achieve their desired results. A compliant press gives cover to their chicanery as “reporters” often act as little more than stenographers for the U.S. attorney’s office, passing off government press releases as news articles. Defendants like Sever are portrayed as serious threats, sentenced accordingly and no one is the wiser. Government prosecutors and their lackeys in the media have become extremely adept at perpetuating a feeling among the general public that those so prosecuted “must have done something.”
The amorphous and overly broad nature of federal statutes almost always assures that there is a violation for prosecutors to use against desired targets. These statutes have become little more than catchalls which creative federal prosecutors reach for when seeking to make a case. The issue in criminal matters like Sever’s is not one of guilt or innocence, as he is admittedly guilty of the charged infraction, but rather one of disproportionate prosecution and a failure on the part of prosecutors to meaningfully weigh the equities.
The lengthy and often poorly defined criminal code affords federal prosecutors a nearly limitless bag of tricks
In an adversarial system, attorneys for the defense are obligated to zealously represent the interests of their clients and use all lawful means to secure their acquittal. Prosecutors, on the other hand, are agents of the State and as such are supposed to seek justice, not prevail at any cost. Unfortunately, the situation in federal court has degenerated to a point where prosecutors believe their duty is to negate the efforts of defense counsel by any and all available means and seek the maximum penalties allowed by law. While Josef Sever may not have been afforded a civics lesson on voting, he has certainly been given one on the punitive nature of America’s criminal justice system as well as accorded a first-hand view of how what passes for justice is dispensed in the alleged Land of the Free.
(Originally published in Online Publishing Company, www.onlinepublishingcompany.info)