Delaware Judge Jan Jurden just helped to destroy the market in human souls, and for that, I am grateful. She refused to send a self-confessed child rapist to prison, letting him instead walk out the courthouse door, to begin a lengthy period of probation and treatment as a sex offender.
Robert H. Richards IV, an heir to the DuPont chemical fortune, pleaded guilty to sexually abusing his 3-year-old daughter. According to press reports, he penetrated the child with his finger, a twisted and disgusting act. The allegations came to light when his ex-wife sued him for money damages.
Reaction to the judge's ruling has been swift and furious. Her announcement that Mr. Richards "will not fare well in prison" has been met with ridicule and scorn. "So what?" the pundits cry. Shouldn't Mr. Richards suffer in prison?
Somehow, we've succumbed to the illusion that prisons serve some useful purpose. The result is that we imprison more people per capita in the United States than anywhere else on earth, and the length of the sentences imposed in the United States is often far higher than sentences imposed elsewhere for similar crimes. We just love prisons in this the land of the free.
Most of us are too busy hating the accused and the convicted to worry much about this. "Serves him right," we say, when hearing about a rapist sentenced to prison. "Lock 'em up and throw away the key," we mutter about the likes of Mr. Richards.
If there is substantial evidence that prison rehabilitates people, I've missed it. Prisons are human warehouses. For some, they serve as crime schools, a place to mingle with others living outside the law to learn better how to frustrate the law's purposes. For others, too many others, prison is the place they go to be ignored, their mental health issues placed out of sight and out of mind. For many, prison is a place to mark time, a region of suppressed violence where boredom is the biggest challenge faced. Prison is a wasteland.
We seem to have accepted without questioning the notion that prison serves some useful social purpose. I give Delaware's Judge Jurden credit for questioning that assumption. Mr. Richards obviously needs help. Putting him in a concrete box wouldn't get him that help, it would just isolate him, making the self-righteous feel better. Prison is an expensive illusion.
The real harm in Mr. Richards's case is the perception of unfairness: A rich man appears to have bought his way out of justice. Anyone else pleading guilty to such a charge would do time, serious time, behind bars.
Every so often I hear some version of the following from a client considering whether to accept a plea bargain: "Why does the state want me to go to prison for so long? I've read about murderers who only do a year in prison."
"Stop right there," I say to clients at such points. "Here's my advice: Fire me, and go hire the lawyer that brokered that deal." That usually stops the discussion right there. Most tales of sweetheart deals too good to be true are mere urban legend. The clients seem to know that, and we are able to get back to work.
But now along comes Mr. Richards, walking away from a guilty plea to child molestation. For the terrified souls facing such charges, his case will now become the benchmark, the standard against which they judge the offers they have been made. If Mr. Richards can walk, why can't I, they will say? In Connecticut, a plea offer of a couple of years in prison for such a charge used to look good - no more.
A handful of recent sex cases have prison fetishists up in arms. Austin Smith Clem in Alabama was given a suspended sentence for having sex with a minor neighbor. Stacey Dean Rambold, a former teacher, was required to serve only 30 days of a 15-year sentence imposed for his having sex with a 14-year-old student. And now, we behold Mr. Richards' sweetheart deal. Even liberals are calling for more prison.
Maybe we ought to study the records in these cases, and put ourselves in the shoes of the judges who decided them. Maybe the jurists concluded that human warehouses aren't a place to send a man in need of treatment. Maybe the judges concluded that it's time the nation detoxed from its love affair with prison. Maybe these decisions aren't abhorrent aberrations but are, instead, signs of a new, and better, understanding of what prisons can and cannot do.
Like it or not, we condone a market in human souls in each and every courthouse in the nation. Ninety-seven percent of federal charges result in guilty pleas; in state courts, 94 percent of charges result in pleas, according to statistics recently reported in a United States Supreme Court decision. Few cases are tried to a jury any longer.
In all of these cases concluded by way of a plea, lawyers and judges made decisions about how much prison, if any, should be imposed. There is no exact science supporting these negotiations. It is largely guesswork and the intuition of jaded insiders behaving in an unregulated market that places a premium on "moving files," as though the work of justice were an existential assembly line. Even in jurisdictions in which there are published sentencing guidelines, sentences are far from uniform.
In Connecticut, plea bargaining is done behind closed doors, typically in judicial chambers from which the public is excluded. Participants bargain about the "value" of the case like salesmen and customers at a used car lot. Once the deals are privately struck, they are put on the record in open court, lending the whole process a patina of dignity it does not deserve.
I like Judge Jurden's decision to throw a hand-grenade into the used car showroom of justice. Rather than being so quick to condemn her, we ought to be asking whether she isn't on to something. Western civilization won't collapse because a child molester didn't go to prison and was ordered into treatment instead. Maybe, just maybe, she's issued a challenge to both right and left to rethink our addiction to prisons.