Those of us who earn our living on the front lines of the criminal justice system are often too shell-shocked to recognize larger trends. But when things go beyond a mere trend, and take the form and shape of a tsunami, everyone notices. So I write today about allegations of sexual misconduct with minors, the latest tidal wave to inundate the courts. It is the new crack cocaine of the criminal justice system.
There was a time when it seemed as if every other call for representation was from some soul caught within the web of a federal indictment for conspiring to sell crack cocaine. Here's how the game was played: The feds would target a suspected dealer. They'd watch him, record his phone conversations, and then, after several weeks, sweep in and arrest every person who as much as touched a rock of crack. Those at the periphery of the action were expected to plead guilty and get favorable terms in exchange for fingering those at the center of the conspiracy.
These cases became an art form, with predictable acts, plots and characters. (Client: "We never talked about the coke on the phone." Lawyer: "Yes, I know you talked about shrimp. But tell me, what have you to corroborate that you were really in the business of selling seafood?") Once you've seen a couple dozen of these, you've pretty well seen them all.
Today new melodramas are unfolding. They all involve child sex claims. It seems that two of every three calls we get now comes from someone accused of either looking at child pornography on line, enticing a purported minor on line to have sex, or groping a niece or daughter of a friend. Law enforcement has got its game down pretty well now, so expect more and more of these cases to be brought until, for reasons as yet unforeseen, some new fashions sweeps lawmen off their feet.
I'm not the only lawyer to observe this trend. I live in a tiny jurisdiction, and cover courthouses throughout my state. Lawyers gossip about what they are doing. Many lawyers are stunned by the sudden volume in these cases. Sex, I say, is the new crack.
I doubt seriously that some new wave of lechery has overtaken our society. In terms of the actual contact between adults and minors, I suspect things are pretty much the way they have always been. Sometimes the wrong things go bump in the night. We no longer overlook these transgressions: Today we seek long periods of incarceration in the effort to banish untoward desire.
But what has changed in the ubiquity of images on the Internet. I represent plenty of young men who took their libido for a walk on line. Some of them got curious about things they might never try. They looked at pictures of forbidden acts. Now the state and federal government want them to go to prison. It seems like a waste of life and human potential.
Other young men dabble at sex on line. The forms this lust takes is sadly common. If I hear about another guy in his twenties promising an undercover cop posing as a 14-year-old girl that he will teach her to give oral sex like a porn star, I'll sigh a deep groan of despair. I fear that Dante's vision of Hell is far more interesting that the warp and woof of our contemporary sins. Lust is ugly; we bend in only so many grotesque ways.
But here is what I worry about: As law enforcement perfects the craft of prosecuting these cases the standard for when to prosecute will get lower and lower. I now represent a young man accused of possessing four images of child pornography on his computer. This calls for prison. If there were only three images, he'd go free. So we fight now about whether he actually looked at all four images, and whether that matters. Were lawmakers thinking when they passed laws calling for mandatory prison time?
Or consider a new statute in Connecticut, aggravated sexual assault in the first degree. Touch two or more children under the age of 13 in an improper manner, and you look a twenty-five year mandatory sentence dead in the eye. That's the same penalty as required for manslaughter with a firearm. The real import of a statute like this is to frighten defendants into a plea: anything to avoid the risk of trial, whether they are guilty or not.
We're in the grip of a strange moral panic. The end does not seem yet to be in sight.
It is far too easy for lawmakers to pass legislation requiring draconian sentences from within the antiseptic chambers of a legislative assembly. Who, after all, wants to appear to go easy on those who abuse children? But not all forms of abuse are identical, and neither are all defendants. Sometimes a mistake is just a mistake and the harm than comes of making it a crime dwarfs all justice. I wish that lawmakers were required to go to court to see their handiwork.
I wish that lawmakers could see that making child sex allegations the new crack cocaine of the criminal code is a manifest tragedy. I wish, finally, that each lawmaker were required to spend a few months behind bars to get a sense of what it is to live isolated and afraid. Is it to much to ask those who make the product to test drive what they are producing?