When does committing a felony not make someone a felon?

Elliot Abrams, who joins John Poindexter in the Bush Administration rogues’ gallery, is being called a felon (by the Washington Times’s Insight, no less), and Glenn Reynolds echoes the disapproval of the Gweilo Diarist, who says the label is a libel.

In fact, Abrams pleaded guilty to two misdemeanors, and was subsequently pardoned. Poindexter was convicted of five felonies, but beat the rap when an appeals court decided that his immunized testimony to Congress might have been improperly used to convict him.

As a matter of law, a felon is someone who has been convicted of a felony and whose conviction has neither been reversed nor cancelled by a pardon. The same is true of terms for specific crimes: burglar, for example, or robber, or murderer. Legally, no one is any of those things until a conviction enters. Thus you would be wrong, technically, to call Hitler a war criminal, O.J. Simpson a murderer, Al Capone a racketeer, or Bill Clinton a perjurer or even an adulterer, since none of them was ever convicted of any of those crimes. (Adultery, let’s recall, was a crime at common law, and is still a crime in some states.)

But as has been noted before in this space, it’s far from clear that the legal presumption of innocence ought to be binding on non-courtroom discourse. Legally, it is self-contradictory to say “John murdered Jane but was never convicted of it.” Nonetheless, it’s perfectly good English, and may in fact be true. That is, it may well be the case that John committed an act that should have led to his conviction for murder, but didn’t.

Perhaps “felon” ought to be reserved for the legal status of being a convicted (non-overturned, non-pardoned) felon, even if the terms that apply to particular crimes aren’t. But that’s a matter of judgment or taste, not one that can be solved by consulting a Black’s Law Dictionary. Calling someone a felon who has not in fact committed a felony is morally wrong, and in some cases may be legally actionable. Calling someone a “convicted felon” who has never been convicted is wrong in the same way. (I’m not as clear about those whose convictions were overturned on technicalities or who were subsequently pardoned.)

But one perfectly reasonable interpretation of the sentence “Elliot Abrams is a felon” is “Elliot Abrams lied to Congress, and lying to Congress constitutes a felony.” On that interpretation, the sentence is, arguably, the truth. His being allowed to plead guilty to a misdemeanor, and then being pardoned (by one of his co-conspirators), doesn’t change the facts. Even if the claim that Abrams actually committed a felony turned out not to be the truth, it would still be the expression of a reasonable opinion. So I very much doubt (speaking here under the correction of those who know) that it constitutes libel, or would constitute libel even if Abrams weren’t a public figure.

In any case, you’ll have to admit that it’s more pleasant to argue about the proper use of terms than it is to worry about having a President with a penchant for appointing persons-who-have-committed-actions-forbidden-by-criminal-law (mustn’t say “criminals”) to important national security posts.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com