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.