Jan
28

Jailers as Sinners

Odds are, you have never visited someone imprisoned for life, or for many decades. Prisoners are outcasts, beloved, if at all, only by their families; remembered, if only periodically, by their lawyers. We give them numbers and then forbid their jailers to get too close to numbered souls.

Prison is our effort to create a hell, or, at the very least, a purgatory, here on Earth.

May God forgive us our trespasses.

This past week, the United States Supreme Court gave fresh force to a commonplace enough observation: juveniles sometimes do stupid, even horrible, things. Yet, they often can, and do, blossom into something more than product of their worst moment.

It is cruel and unusual to sentence juveniles to life without possibility of parole, except in rare cases of utter depravity. This insight is of the sort that should offer as many as 2,500 individuals a chance at freedom before they die.

The Eighth Amendment prohibits cruel and unusual punishment. Several years ago, the Court ruled that mandatory life sentences imposed on those whose crimes were committed when they were juveniles violated that prohibition. The conclusion was based in part on emerging studies that show that young folks are different, as a matter of neurological circuitry, than adults.

As a result of this ruling, sentences for juvenile crimes will henceforth be different. But would this new rule benefit those already sentenced? In other words, would the ruling have retroactive effect? Typically, new rules of law are not applied retroactively, in order to avoid chaos. Among the crown jewels in a judge’s crown is finality — nothing pleases quite so completely as a case closed, a file sent to archives.

But some changes in the law are so fundamental they require retroactive application, if we are to do more than pay mere lip service to the idea of justice. Our treatment of juveniles, the Court ruled in a 6-3 decision, requires retroactivity.

The case involved Henry Montgomery, who, in 1963, killed a Louisiana lawman. That was more 53 years ago — a lifetime. Is Mr. Montgomery never to be offered the chance to demonstrate that one of the goals of imprisonment — rehabilitation — has been satisfied?

The Court’s ruling requires not that Mr. Montgomery be released, but that he be given the chance to argue before a parole board that he should be released from prison.

Every criminal defense lawyer shares with the mythological figure Charon the task of ferrying people across the river Styx — the divide separating the living and the dead, the free and the imprisoned. In the moments before judgment is imposed, a man is free. Then, in an instant, a judge imposes sentence, and the man once free is ushered into darkness.

It should be a requirement that every citizen attend these sentencings. Indeed, jurors ought not to be shielded from the consequences of their decisions, as they are in Connecticut. A verdict of guilty often carries tragic consequences involving years, sometimes decades, sometimes a lifetime, in prison. We call this justice, but it is not 

The Supreme Court got it right, of course, in holding that juveniles are different, and that a rule requiring they be given a chance to rejoin society should have retroactive effect. But why stop there? Isn’t it time to revisit what we do to adults in the name of justice?

President Obama is making criminal justice reform a priority in his last year in office. I suspect this is the only time an elected official can afford to call out the collective madness that supports our rage to incarcerate. No one can now punish the president or his party in an election.

I’ve said it before, and I will say it again: We call ourselves the land of the free, but we have the highest incarceration rate of any nation on Earth. We have 5 percent of the world’s population, but 25 percent of the world’s prisoners. We imprison folks longer here than anywhere else for their crimes. Let’s acknowledge the irony in this the land of the free.

The president is calling for a review of mandatory minimum sentences. Great idea. There’s a call out to reconsider imprisonment of non-violent drug offenders. Another great idea. We need also to focus on mental health treatment, and meaningful opportunities for parole for all prisoners.

There are some crimes so vile, and some offenders so vicious, that a lifetime behind bars may be the only solution that will satisfy a community. I think of the Cheshire murders of the Petit family in this way.

But in the overwhelming majority of criminal cases, something less than pure evil is at work. Ordinarily, crimes are the acts of ordinary people doing extraordinarily stupid things. Crime is a species of sin, a form prohibited by lawmakers.

Need I remind you that all have sinned — you, me, the lawmakers, and the courts?

The Catholic Church has much to teach on the topic of sin. One form of the Mass has the priest recite with the congregation that he has sinned: mea culpa, mea culpa, mea maxima culpa.

As an institution, the Church has sinned: I think of the Inquisition, its persecution of Jews, its venality — a failure so systemic it created a protesting, or Protestant, backlash.

But still, the Church remains an instrument of grace. It teaches that sin consists of the overstepping of boundaries.

Let me be so bold as to suggest that we have sinned in our creation of penal colonies in our midst. We sentence young and old to lifetimes of despair, forgetting the power of grace to transform a life. Who are we to make these lifelong judgments?

“Let him who is without sin cast the first stone,” Jesus is reported to have said when an angry crowd faced off with an adulterer.

His audience at least had the sense, or was it the self-awareness, to feel shame. We feel nothing, and stone the sinners in our midst as if we were gods consigning people to the hells of our own creation.

At least the Supreme Court has an intimation that this wickedness must cease. Were I a praying man, I’d be on my knees in hope that others will soon also hear the sound of grace at work in the world.

Related topics: Journal Register Columns
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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