Redman's article omits a piece of information vital to the assessment of the issue he discusses: what, precisely, is the status of a law adjudged unconstitutional yet remaining in the state code, unrepealed by the legislature?

One might have thought that the law would become a dead letter because prosecutions would cease in the face of likely constitutional challenges. Yet this instance demonstrates that prosecutions can continue and succeed, i.e., both prosecutors and courts may ignore the constitutional ruling, while defense counsel may (inexplicably) overlook it.

As for the police, are they bound by the unamended penal code or by the finding of unconstitutionality? If the former, arrests would be mandatory.

The Fray may yield answers that the article withholds.

Redman's piece does contain that detail, but I can understand how you missed it:

"(After 26 years, the law was still on the books because the legislature had never repealed it.)"

I don't know the answer to your second question, though.

I'm not entirely sure how to answer your awesome, thought-provoking question, but here is how I think it could be answered: it's my understanding that due to the separation of powers doctrine as it exists at the US level and in most states, the court cannot order the legislature to alter an existing law, even if it is unconstitutional. This is how the majority of wacky laws remain on the books even when they are successfully challenged. I'm pretty sure some states still have anti-sodomy laws despite the rulings that such laws are unconstitutional. The same, I believe, is true for anti-miscegnation (sp?) laws.

However, those laws would then be non-entities as far as the executive branch should be concerned. Whether they are is a different story, as the article makes clear -- but given that the executive branch of any American legislature is generally only able to enforce laws that exist, enforcing ones that do not exist seems to go beyond the scope of the branch. The police are an element of the executive branch, as their job is to enforce laws that are lawfully promulgated by the legislature. I'd think, therefore, that enforcing a law that doesn't exist by virtue of judicial declaration is an ultra vires act.

The article does not give a section citation nor the name of the 1983 case. If it did, we could check whether the court actually declared the law unconstitutional or whether it found certain aspects of the enforcement of the law unconstitutional.

After a little digging it appears that the section is 240.35 (3) which prohibits loitering for the purpose of soliciting oral or anal sex and the case is People v. Uplinoer, 58 N.Y.2d 936 (1983), but I can't find the text of the case.

I'll answer your question as it pertains to prosecutors.

Assuming the law is fully unconstitutional, it is an ethical violation, sometimes a crime, sometimes a tort, and usually sanctionable to knowingly bring a frivolous lawsuit or to prosecute someone under false pretenses. Even unknowingly bringing such a suit may be santionable or an ethical violation.

It is also unethical and sanctionable for a prosecutor to cite a law to a court without also citing binding precedent clearly relevant to that law and the case (in this instance, this would include the 1983 decision).

Thus, prosecutors plainly have a duty not to prosecute individuals under unconstitutional laws. Prosecutors can and should be disbarred for violating this duty.

Here is the opinion:

The statute challenged on these appeals (Penal Law, § 240.35, subd 3), which prohibits loitering “in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature” must be viewed as a companion statute to the consensual sodomy statute (Penal Law, § 130.38) which criminalized acts of deviate sexual intercourse between consenting adults. We held in People v Onofre (51 NY2d 476) that the State may not constitutionally prohibit sexual behavior conducted in private between consenting adults. The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy. Inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose. This statute, therefore, suffers the same deficiencies as did the consensual sodomy statute. Because the statute itself is devoid of a requirement that the conduct proscribed be in any way offensive or annoying to others, the challenged statute cannot be categorized as a harassment statute.

The dissent improperly reads into this holding a blanket proscription upon all statutes directed against conduct of this nature. We do not hold that the Legislature cannot enact a law prohibiting a person from accosting another in an offensive manner or in an inappropriate place even if the underlying purpose is not a violation of law. The Legislature could also prohibit solicitation for the purpose of performing the object conduct in a public place. On the contrary, statutes of this general nature when properly drafted have been upheld by the courts. However, it is apparent from the wording of this statute that it was aimed at proscribing overtures, not necessarily bothersome to the recipient, leading to what was, at the time the law was enacted, an illegal act.

The dissenter's perception of the basis for our conclusion of unconstitutionality is inaccurate and confuses the defendants' argument with our holding; we have neither discussed nor decided any overbreadth questions by implication or otherwise.

Tradbert:

Thank you for your clear (and apparently authoritative) statement concerning the duty of prosecutors not to pursue individuals on the basis of a law deemed unconstitutional. You state that any violation of this duty is sanctionable and, in your view, should lead to disbarment.

A further question necessarily follows: given that, according to the article, there have been 4,750 prosecutions since 1983 under the New York law, how many prosecutors have in fact been disbarred, or sanctioned in any way at all? (And, in the broader realm of criminal law, how many prosecutors are sanctioned each year for bringing actions that are successfully challenged on constitutional grounds?)

The reason defense counsel overlooks it is because the cases are usually handled by public defenders who haven't got a clue what they're doing, and who are handling six dozen cases simultaneously anyway. Justice is available in this country to the wealthy. To the rest, not so much.

As the article describes, the overwhelming majority of those prosecuted under the law will never be represented by counsel at all.

Technically, NY Penal Law section 240.35(3) is not a "crime" under New York law, but is a "violation," often described to criminal defendants as the equivalent of a traffic ticket. The term "crime" is reserved for felonies and misdemeanors. As a violation, a defendant may very well be issued a Desk Appearance Ticket (basically a summons to ppear in court on a specified date), rather than being subject to a custodial arrest. While this has an obvious upside, since the defendant is free to show up in court on his own, it has the downside of no prosecutor having any supervision over the case until the defendant appears in court,

The bottom line is that, although even a single arrest based on this unconstitutional statute is unacceptable, a thousand arrests over a 25-year period is a drop in the bucket in the NYC court system. Under the circumstances, it is hardly surprising that a prosecutor being faced for the first time with a violation of an obscure statute would likely not be aware that it had been declared unconstitional. The same would likely apply to a judge and a defense attorney who likewise would just have become involved in the case moments before being called before the judge. A reported 1999 decision makes it clear that it is hardly well known in legal circles that the statute is unconstitional.

As for why the statute has not been repealed by the legislature, my guess is with ugly political reality: no elected official is willing to go out on a limb to be identified as having sought to repeal a law prohibiting cruising for the purposes of engaging in deviate sexual intercourse (although the anti-sodomy law itself was finally repealed in 2001, decades after it was declared unconstitutional).

Well, the Constitution is a Living Document, so maybe the NYC police and prosecutors are simply choosing to reinterpret the ruling that overturned their law to meet the needs of today's society. Until the Supreme Court strikes down their reinterpretation they can continue to act on it. (After which, they can reinterpret _that_ ruling as well.)

What is more likely here is that the NYPD, when called on it, has gotten away with pleading ignorance on it, and that when they are not enforcing it based on good ol' prejudice (and that's likely happening as well), they are enforcing it the way prosecutors go after mobsters on tax evasion instead of, say, cutting off others' body parts. Sometimes a cop is just itching to get a 'bad' guy on <i>something</i>, and this is one of those all-purpose things they get to use to intimidate or persecute when they can't come up with anything actionable.

quidfecisti:

As the article describes, the overwhelming majority of those prosecuted under the law will never be represented by counsel at all.

As the article said, usually the courts are hardly ever involved at all. Since it's only a violation (i.e.: like a parking ticket), in most cases the cop issues a ticket and the embarassed defendant pays the fine, thereby pleading guilty. No lawyer, prosecutor, or judge involved. In the majority of remaining cases, it's a non-custodial manner so the lawyers are only involved from a few minutes before it comes to court (esp with public defenders, who are overstretched as usual).

Most cops arrest people based on their perception of what the law is, not by reading and studying the criminal code. If it feels like it should be a crime to them, they'll arrest now and ask questions later. They learn at the feet of more senior officers, whose careers started long before the 1983 case or the 1999 directive to strike-out the law. When a 30 year veteran of the force tells you it's illegal to cruise, you arrest someone for cruising, and you tell all the rookies who come after you that that's the law as well. So most of these prosecutions can be chalked up to typical police procedure and training, as well as the thinly-veiled homophobia that runs throughout the more 'macho' professions.

That's not to excuse the fact that it still goes on, of course. Prosecutors and judges especially should know a BS case when they see one, though it's true public defenders and the cops could use more training and more resources.

Pardonme,

I don't know how many people have been sanctioned or disbarred. My guess is that the answer is zero. Although state bar ethics committees have a lot of leeway on applying ethics rules, my guess is that few will disbar a lawyer for anything short of intentional misconduct. Prosecutors are probably being lazy and have no idea that they're pursuing frivolous lawsuits. That's just a guess.

fsilber,

That's not right. First of all, the opinion of the U.S. Supreme Court on this matter is only tangentially relevant. The New York Court of Appeals – the final authority on the interpretation of the NY constitution and NY laws – held that at least portions of the law were unconstitutional under the federal and state constitutions in People v. Uplinoer and People v. Briaht. The Court of Appeal’s opinion regarding the state constitution binds all federal and state courts. It may not be reversed or overturned except by a constitutional amendment by the NY state legislature or by a subsequent opinion of the NY Court of Appeals (fyi, in New York, the most authoritative court is not called a “Supreme Court,” unlike in the federal system and other state systems; the Court of Appeals is the court of final resort and ultimate authority). Regarding whether the law violates the federal constitution, any federal court may find that the NY Court of Appeals erred, but this would not salvage the law, because it also violates the state constitution, and no federal court, including the U.S. Supreme Court, may hold otherwise unless (the only exception would be where the NY constitution itself violates federal statutory or constitutional law, but this scenario is highly unlikely). Finally, you should know that lower courts can invalidate laws in a way that binds all lawyers (prosecutors) and the executive branch. Thus, the police and prosecutors cannot ignore a court decision simply because it didn’t originate from the highest court.