I missed Bruce Jenner's interview with Diane Sawyer the other night, and, try as I might, I just can't seem to muster the will to go back and watch it. That the former Olympian regards himself as a woman is, no doubt, a highly significant struggle for him. But I am tone-deaf to its social significance.
It's not that I am unaware of the politics of gender, or of the fact that folks sometimes feel trapped in a body of the wrong type. I've represented transgender folks.
In one case, we made new law 15 or so years ago in Connecticut permitting folks with gender identity issues to raise gender discrimination claims. In another case, I settled a case against the federal Bureau of Prisons on behalf of a transgender person in a prison—the guards could not keep their hands off our client.
The life of a person trapped in a body with the wrong accoutrements is hellish.
But somehow Jenner's revelation left me unmoved. Perhaps it's his association with the Kardashians, and the libidinal circus their lives represent. Or maybe it's just the sense that when every difference enjoys prime-time billing, questions of identity end up being reduced to farce.
I suppose it is easy for a heterosexual white male who regards himself as a heterosexual white male to weary of the struggles of others. I possess vast privileges, or so I am told. If I so much as disagree with another who does not share my accidents of birth, I am reminded of my white privilege, my male privilege, my white-male privilege: That I am also happily married to a woman, and heterosexual, and monogamous, merely adds insult to rhetorical injury.
Folks like me are morally suspect in today's culture wars.
Even so, I am not so sure Jenner is worthy of sainthood.
Yes, identity is socially constructed. Gender, and our ideas about what men and women can and should become, are the stuff of shifting cultural tides. I can read the chic social theory.
But Jenner has the DNA of a male, and, presumably, the anatomy that corresponds with that DNA. That he wants to shed the associations we take for granted with these brute facts hardly seems worthy of national debate, much less recognition. He can be all the woman he wants to be without becoming a national hero, or is it heroine?
Accounts of his interview suggest that he's still just as trapped in social conventions as he was before he declared femininity. He's not a guy's guy? All right. Does that mean he's got to be a woman's woman?
Why can't Bruce just be Bruce, the rest of us be damned?
Earlier this year, Time magazine's cover announced: "The Transgender Tipping Point: America's Next Civil Rights Frontier."
Really? I thought, when I saw the cover. Here I thought the middle class was dead, the infrastructure was crumbling, the climate was spinning out of control. Of all the things I worry about for the grandchildren I hope someday to have, securing the right for Johnny to publicly proclaim himself to be Jane had never crossed my mind.
I keep thinking of William Butler Yeats' great lines:
"Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity."
Bruce is a woman. That's national news. The next frontier is a fight to make sure he feels good about that.
If you say so. I've struggled for days to feel something other than weary about all this. And I have failed.
I wasn't under any illusions about what the sentence would be. My client was convicted of shooting a man in a drive-by shooting, killing him almost instantly. There were other charges pending, charges involving other shootings. The maximum sentence for murder was 60 years. We expected the full monty.
The judge did not disappoint; even the prosecution performed on cue, calling my client a coward. The victim's mother urged the maximum, even more—100 years would not be enough, she said.
Sixty years it was, when all was said and done.
What a ridiculous farce.
I asked for the mandatory minimum of 25 years, not expecting to get it, but to hold in relief the savagery of what we call justice in our courts. After all, Norway's Anders Breivik, the far-right terrorist who in 2011 gunned down 77 people, most of them children, was sentenced to all of 21 years. In Bali recently, Tommy Schaefer, an American, was sentenced to 18 years for beating his girlfriend's mother to death.
What we do to young people in this country in the name of justice is repugnant.
There's something seriously wrong with the American criminal justice system. We imprison more people per 100,000-population than any other nation. Our sentences are far longer than those imposed elsewhere. We're a gaudy prison on a hill.
But don't take my word for it. I am a ham-and-egg practitioner in a small boutique firm. Listen to the National Research Council, which recently called our prison system "historically and internationally unique." According to the Sentencing Project, a reform group, there are 160,000 people serving life sentences in U.S. prisons. That is one of every nine inmates. This number excludes the thousands more inmates serving life sentences of 50 years or more.
To get a better sense of how far out of line our sentencing practices are, consider the following: In 2013, the European Court of Human Rights ruled that life sentences without the possibility of parole violated fundamental human rights. At the time of that ruling, there were 49 individuals serving such prison terms in Europe, compared with 49,000 serving life without parole in the United States, according to the Sentencing Project.
Many lifers are now aging in warehouses decades after the events that landed them in prison, and well after the actual threat they poses to society at large has passed. It's not enough to take aim at isolated mandatory minimum sentences as a means of engaging in sentencing reform. We need to focus on maximum sentences as well.
Why not a presumption that any sentence in excess of 20 years is excessive? Yes, there may be special cases requiring more time—but those cases should be evaluated at the 20-year mark. Throwing the book at folks at the time of a plea or verdict is simply too easy—it's like throwing away old shoes.
Of course, the idea that sentences are too long will offend victims and their advocates. But the law has long recognized that no one can be a judge in his own case. Give victims a right to be heard, fine. But let's not sell justice on the cheap to the most aggrieved person in the room.
My client was 29 when he was sentenced to serve 60 years. He was in his early 20s when the events for which he was convicted took place. The notion that he should be isolated forever for these charges stuns me. We don't restore the dead by torturing the living—that's a species of barbarism.
"How do you do it?" a judge once asked, referring to the defense of those charged with serious crimes. Behold the sentences, I should have replied: How can one do anything other than defend against the unreasoning blindness of the state's minions?