Apr
05

Justice Aborted Is Justice Denied

I stood in a public place yesterday and watched two tearful parents say goodbye to an American hero. The young man was leaving for a year. Odds are, he will return safe and sound. But the world is a dangerous place. There are no guarantees. They were sending him into harm’s way.

His odds of survival are good. Although he is only 23-years-old, he is already a veteran of four years of service in the United States Navy. He served in Somalia and the Persian Gulf, and was highly decorated during those tours. He is quiet, but loving and eager to lend a hand. When his sister fell ill with cancer, he offered to come home to donate bone marrow. His studies in history at the University of Connecticut earned him a place on the Dean’s list.

This is the sort of kid you want to have as a neighbor. He is a role model of quiet, unassuming diligence.

Neither parent could bear the final farewell. Their son preferred it that way. Saying goodbye is hard for him. He might cry if he saw the tears well up in his parents’ eyes. Better to appear to be brave when embarking upon this trip, he thought.

So his mother hugged him and muttered the soft things mothers do when their hearts are breaking and they realize that all the love in the world might not be enough. His father tried to be stoic, but even from a distance, I could see his heart breaking. A quick hug, and then something like a salute and a quick promise about the things they will do when the boy returns.

I turned away. My children are all older than this boy. Farewells are hard for me. If you let go, will they ever return? Bravery is a mask we cowards wear when all is terror.

And then it was done. This hero stood before a judge. The judge read his pre-sentence report and told those assembled in court it was one of the best she’d ever seen. I’ve read hundreds of these dreary assessments of a person whose entire life is now recast in terms of the moment they broke the law. It was a glowing report.

Her hands were tied, the judge explained. The legislature insisted that a person convicted of this crime spend at least one year in prison. She could not find mitigating circumstances. She could not consider his military service, his dedication to family, the bright future this sentence is certain to derail. The law is deaf sometimes to the sound of justice.

What crime did this young man commit? You must be wondering by now. What small part of his life now becomes the whole of his existence for the next year and well beyond as he copes with probation and the collateral consequences of this plea?

He looked at dirty pictures; pictures of children. He possessed child pornography.

We sent him to an expert on disorders of desire. Explain if you can this errant episode in the hero’s life? The doctor reports it was mere curiosity: No libidinal clock strikes twelve at the thought of a child. For a very brief period the young man looked at pictures. Now he is in prison, a felon, required to register as a sex offender, and a member of the ostracized community of those we abhor in a schizophrenic variety of purity.

There had to be a better way in this case. I suspect the judge thought there was. But lawmakers gave her no discretion to find a way to avoid injustice. None. High-minded Solons sat in the safety of a legislative chamber and threw peanuts to the screaming monkeys in the gallery. "Are you worried about sex? The children! Oh, yes the children! Here’s a mandatory minimum sentence. Are you happy now?" And the gallery fell silent for a day. But come the next shocking and horrific crime against a child the galleries will fill again. Moral panic will yield a deadly act hunger, a desire to do something, anything, to feel safe and secure.

I asked the judge to send a transcript of the sentencing proceedings to lawmakers with a note asking them if they had any idea what they are doing. Odds are she won’t. I am hoping lawmakers will read this. It is not justice to require prison for all defendants convicted of a crime. Give judges discretion to do justice. It is a simple reform, really. Just replace mandatory minimums with a rebuttable presumption. Give defendants a chance to demonstrate to judges why prison is wrong. Treat people like individuals. Don’t do what pornographers do – respond to some deep need and cast the world in terms of sickening stereotypes.

A hero sits in prison today. He made a mistake. So did the law.

Reprinted courtesy of the Connecticut Law Tribune.


Apr
01

The White Devil In The Elm City

I saw the White Devil the other day, and it terrified and saddened me. He was reflected in the look of wariness and suspicion in a young man’s eye. The kid couldn’t have been more than fourteen. He had the lean and supple look of someone not yet bent by time. He was carrying a sign with a symbol on it and a phrase I did not recognize.

"What’s that mean?," I asked the young man.

He recoiled just a touch, a discernable flinch that was powerful, a sign I was crossing a line, and was, perhaps not welcome where I was seeking to go.

The young man told me it signified self-improvement of African-American males. His colleagues looked warily at me as I took in the information. It was as if a drawbridge was drawn up. I thanked the kids and walked away.

The confrontation, however brief, stuck with me all afternoon. Another broad stripe of the color line separating and dividing people. The young man and I were both present at a rally asking that justice be done in the Trayvon Martin case. We were fellow travelers of a sort, both hoping for a better world.

I was asked to speak at the event later that day. There were hundreds of folks gathered in front of City Hall in New Haven. I mentioned how unnerving it was even among folks sharing the same general aims to see the color line busy at work, dividing white and black. I thought my remarks harmless, a mere reminder of the ever-present reality of race.

As I was leaving, a fellow about my age stopped me. He was wearing a sweatshirt with the same symbol on the young man’s sign emblazoned upon it. He told me my remarks were hurtful, that the young men felt disrespected by what I had said.

For a moment, a sense of despair and then resignation took root. "Why bother to try?," I thought, when everything is contested terrain. Why not just retreat to my white cave? I see what I see; if I cannot say what I see, then why speak at all? Race can nourish a cancer, transforming the other into something far less than themselves.

I asked the man to apologize to the kids for me. I meant no harm. I was trying to illustrate in a real and present way just how powerful race is as a means of separating and dividing people.

"You seem like a person of good will," the man said.

I told him not to be so sure.

Race confounds, confuses and terrifies me. It always has. I know I have the privilege of skin in this world. My whiteness is a passport to places other people can’t go without much greater effort than I need to spend.

When I was a kid myself and about the same supple age as the young man with a sign, my hometown of Detroit erupted in violence. The old white men in my neighborhood sat on their porches with shotguns, hoping for a shot at the "niggers" they blamed for torching the city. I guess the men were going to protect me. I was a member of their tribe. But I was afraid of those men, too. I was a child wanting the approval of the elders, but not these elders; not men spewing hate and looking to kill. We could smell the smoke of burning buildings. I was also afraid of the black other. There seemed nowhere to go.

The year after the riots, I was a crossing guard, wearing a bright orange belt. My post was across the street from a housing project. I used to worry about getting killed by a black man with rage left to spare after the riots. I quit the post after a few weeks.

But I believed then, as I do now, that the riots and race and the fire that time were all of a piece. Years later, in New York as a student, friends and I would sit on our college campus overlooking Harlem. We were waiting for the next riot. I did not attend law school out of college. I knew a thing or two about poverty, and I knew all about racial hatred. I was sure the country would erupt in flames again and soon. Why study the law and a legal system that was rotten to the core? I studied political philosophy instead, and kidded myself into thinking I was preparing for a better world. The conflagration never came. Instead, we stumble along, white, black and brown, somehow avoiding the issues while pretending that we are color blind. I am a lawyer now, vainly hoping for the day when the color of justice is not cast in racial hues.

What stunned me yesterday in the look on the young man’s face is the realization that I am the White Devil. At least I look like one when I approach. I represent the other who takes without giving in return, the hypocrite who preaches freedom while benefitting from the privation of others. My lily-white goodwill, if I am capable of such, is a luxury that does not entitle me to the trust of others. Do I think I should be accepted merely because I arrived at protest rally? I am on the other side of a line, and from the perspective of the other, I am therefore suspect. Only a white man could forget that.

My wife bought me a recent biography of Malcolm X for the holidays. I am reading it now. I read it with something like envy. I admire Malcolm and know that to him I would forever be suspect. I envy him the purity of his rage, and know that I can never fully rage against myself. But quitting the fight is not an option, even if I am forced to tread lightly.

I see all this today after a restless night’s sleep. It saddens, wearies, and terrifies. But it also reminds me that I have my own stereotypes. Were I to see Trayvon Martin skedaddling by my rural home in a hoodie, I would wonder why he was there. I would give him the same look the young man gave me yesterday. I am marked by America’s original sin.

But I am not a devil. Neither was Trayvon. Neither was the kid with a sign. We are different yet aspire to be as one. Cynics say unity cannot be accomplished. I am betting against them because the consequences are a world that is violent, sad and terrifying. I was reminded of all that and more yesterday, while I was sauntering about as a self-righteous White Devil.

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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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