Jason Rapert: STILL Not A Constitutional Scholar (Again)

Multiple times on this blog, we’ve noted that State Sen. Jason Rapert (R-Totally Not This House, He Swears) is not particularly well-versed in constitutional law. There was this example, wherein he opined on the Supreme Court’s machinations without understanding the topic in the first place. There was also this one, where he gave an in-depth look at how clueless he is when it comes to Establishment Clause jurisprudence.

Last week, as first reported by the Arkansas Blog, Rapert worked his ignorance into comments about Stephane Ferry’s appeal of a circuit-court conviction for filing a false police report. According to that story, after learning that Ferry had filed his notice of appeal, Rapert wrote on Facebook:

“If you see this man in Conway let me know.” Said Rapert: “He is a menace and trouble. […] I am ready for him to permanently leave our community.”

Now, Senator Rapert gets his knickers in quite the twist any time I contact him1, but maybe someone who doesn’t have that effect on him should point him toward Article 2, section 21, of the Arkansas Constitution, as well as the cases that have interpreted it. Assuming that Rapert’s use of “permanently” isn’t a veiled threat to shoot Ferry in a parking lot, point Rapert to that constitutional provision might allow him to put his few days of legal training to work and learn that banishment is not allowed as a sentence or condition of probation in Arkansas.

That constitutional provision provides, in pertinent part, “nor shall any person, under any circumstances, be exiled from the State.” In Reeves v. State2, the Arkansas Supreme Court referred to this as a prohibition against “banishment” and quoted a North Carolina court in defining “banishment” as “an order which compels a person “to quit a city, place, or county for a specific period of time, or for life.” So, while the Arkansas Constitution speaks only to banishment from the state, it is no stretch to think that a court would also not be able to bar someone from a city or county as part of a sentence, either.

This is doubly true when you consider Ark. Code Ann. 5-4-104, which covers disposition of criminal offenders and states, unequivocally, “No defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.” That chapter provides allows for imprisonment, fines, probation, or a combination thereof. Under the statutes governing imprisonment, banishment or exile from a city or county is not included as an allowable punishment.3

The closest to allowable banishment or exile from a city or county that we find in Arkansas law is in the statutes controlling probationary sentences, which allow for a condition of probation that includes requiring the person convicted to “Refrain from frequenting an unlawful or designated place or consorting with a designated person.”4 But, even if we read that provision to allow a court to require a person to remain outside a city or county as part of probation, Arkansas law is clear that a person can be placed on probation only as long as the maximum allowable sentence for the charged offense.5 Here, Ferry is charged with a class A misdemeanor, which carries a maximum sentence of one (1) year in jail. So, even under the reading of the law most generous to Rapert, the longest Ferry could be kept out of Conway–which, again, could likely be an unconstitutional condition of probation–is one year. Not “forever,” as Rapert would like to pretend.

BUT–and this is a very large “but”–it does not appear that the circuit court imposed anything resembling banishment from Conway/Faulkner County in its conviction of Ferry.6 Arkansas law requires that any condition of probation be in writing so that the person has notice of what is required. Where, as here, the court did not impose any sort of banishment or exile as a condition of probation, the written order will (by definition) not include such condition, and Rapert’s suggestion that Ferry will have to “permanently leave our community” at the conclusion of this case is nothing more than the wishful fever dream of someone who has no idea what he is talking about.

As long as we’re here, something else jumps out about his statement. By asking people to let him know if they saw Ferry in Conway, Rapert is arguably violating Facebook’s terms of service, which prohibit him from engaging in conduct that infringes on another’s rights. As long as he doesn’t violate a no-contact order, Ferry has a right to be in Conway/Faulkner County, no matter how much that might upset Rapert. Plus, given Rapert’s penchant for threatening people in public parking lots, having people notify him of seeing Ferry in Conway is especially troubling. This is something that those who are not blocked by the coward might wish to let Facebook know about.