Why Don't Judges Care About Prisons Without Bars?
The conventional wisdom holds that you do a client a great deal of good if you spare him a term behind bars. Prison and the loss of liberty is the great evil to be avoided in the criminal justice system. Rare is the individual who actually benefits from imprisonment; rarer still is the crime so heinous that prison is required. Yet we send folks to the slammer with the prim satisfaction of an accountant at tax time; we pretend to believe that justice is being done.
So avoiding prison is a good thing, right? Better to walk a client out the door and return him home than into a prison cell, right?
Some days I am not so sure. I have clients who would prefer the silent scream of a cell to the censorious and often senseless demands of a probation officer. Never forget for a moment that a person on probation is nonetheless in custody: you just can’t see the prison bars while on probation. But you do feel those bars if your probation officer decides to bear down on you. You can hear the keys to a prison door rattle when a probation officers insists on some bizarre condition of probation: Obey or be violated.
This is nowhere as apparent than in the supervision of individuals who plea guilty to crimes a probation officers deems to be a sex offense. In those cases, you may as well remain in prison where at least your soul is your own. Sex offender “treatment” on probation is an really an existential third degree: you invite the state into your soul to surveil your every thought and desire. You walk the streets, sure, but the state’s control over you is total. You must log every move, and report your vagrant thoughts.
No one really understands what makes actual sex offenders tick. Disorders of desire are dark clouds storming across our horizon. We pretend to crave the light and thus do our best to chart these libidinal disturbances. But the treatment of sex offenders is guesswork. Because we fear the offenders, few care if we guess wrong and gratuitously cause harm. We enjoy the illusion of control, and like good sadists, we impose our will on offenders while pretending it is all for their own good.
No where is this more apparent that in the probationary treatment of those individuals initially charged with sex offenses, but not convicted of those crimes. A client can enter a guilty plea to a non-sex offense and be remanded to probation. Logic would suggest that if the client did not plead guilty to a sex offense, then probation has no business treating the person as a sex offender. But experience teaches that probation officers merely read the arrest warrants or police reports in the case. Every vagrant and untested allegation is treated as a truth that must be served. It is the undisciplined and unprincipled literalism of zealots.
I am aware of cases in which defendants not convicted of sex offenses and not required to register as sex offenders are treated by probation as if they pled guilty to the rape of innocence herself. They are forced to agree to elaborate conditions. Their computer use is monitored. Where they can travel is limited. They must keep logs of where they drive and when. They are evaluated and counseled just as though they were guilty of a sex offense. It is wasteful of state resources and simply offensive to do this. Just how can this be justified when a defendant has not been found guilty of a sex crime?
But no one seems to care. In the virtual prison we call probation, the criminal justice system turns a blind eye. This use of the psychological third degree is sanctioned by judicial indifference.
Just why judges aren’t outraged by over-reaching probation officers is a mystery to me. Complain about this unreasonableness to a judge, and expect the following: “I don’t want to step on the toes of the folks at probation.” That’s not judging, that’s an abdication of the responsibility to see that justice is done.
Probationers have rights, just as do the men and women behind bars. We don’t tolerate the abuse of prisoners on Eighth Amendment grounds. Cruel and unusual punishment is against the law. What about the cruel and unusual requirement that non-sex offenders be regarded as sexual predators? Isn’t that wrong, too? Or are we prepared to tolerate whatsoever nonsense probation officers deem necessary? The therapeutic state does great harm when left unchecked.
Reprinted courtesy of the Connecticut Law Tribune.