By the Discretion of the Judge

Apparently our judges get a great deal of discretion during sentencing. This went viral when a judge recently reduced the sentence of a convicted rapist to three months in jail. People were justifiably appalled, but according to the research Jon Krakauer did for his book Missoula, judges have this discretion in rapes where there is no accompanying physical injury to not require convicted rapists serve any jail time at all. This obscenely ignores the emotional trauma of being the victim of a rape. And is really just obscene enough to stand without comment.

Where Men Win Glory: The Odyssey of Pat Tillman, also by Jon Krakauer, included an incident that occurred when Pat Tillman was nineteen. It turned out to be a regrettable moment in his life that he used to motivate himself to be a better person, which he successfully accomplished, so I don’t love describing it with him gone. Long story shortened from the book, he basically put a younger kid in the hospital and knocked teeth out and was still at it when cops dragged him off the kid. He was no bully. He mistakenly thought a friend of his was being bullied by a group, so he picked out the biggest guy from the group he could find and started fighting him. As happens with vigilante justice, he misread the situation completely and had actually picked out a guy who wasn’t even in the group. (Besides not realizing his friend had actually approached and antagonized the group first.) He could have been convicted of felony assault which would have cost him his scholarship to ASU but the judge reduced the charges to a misdemeanor.

A friend of the boy Pat Tillman beat up, Erin Clarke’s comments are worth copying out: “At the time I didn’t agree with the sentence at all. It seemed like the judge was more worried about Pat losing his scholarship than what happened to Darin.”

Later she heard on the radio Pat Tillman had been killed: “I remember the air being sucked out of my lungs. He was the first person I knew who had died in the war, and that morning the war suddenly became very real to me. What I take from Pat Tillman is that you are not who you are at your worst moment. After what Pat did to Darin, it seems like he really turned his life around and became quite an honorable person. That judge held Pat’s future in her hands. She had the power to send him down one path or another, and she decided to make what turned out to be a really good decision. She said ‘I’m going to believe in you—I’m going to believe you’re going to take this opportunity and do the best you possibly can with it.’ And you know what? It sounds like that’s what he did. I don’t think there are many people on this planet who would have done as well with that kind of second chance.”

I couldn’t agree with everything she said more because I know what a heroic and honorable life Pat Tillman lived. But the judge made what turned out to be a really good decision. The last sentence of her statement might be cynical but is probably accurate. How many people take these second chances and do good with them and how many shake off a close call but continue to live with huge entitlement issues? If the Stanford rapist turns out to do something wonderful and selfless with the rest of his life we might all say his judge made what turned out to be a good decision, but none of us think he’s a very likely candidate for living an especially honorable life.

So what are judges going by? Pat Tillman’s judge believed in him, but what’s her track record? Maybe she just believes in the good in everyone that comes before her and gets burned by most people on the planet. What did the judge see in the Stanford rapist? Maybe he felt pity for a young man who enjoyed cooking out and having prime rib, just like the judge does, but doesn’t anymore since what happened. Whereas a young man who cooks out and has hamburgers and hot dogs like most of the population of the country the judge wouldn’t relate to as well and therefore wouldn’t have his empathy invoked.

My two problems are we all like the idea of second chances for people. In fact, we’re rather obsessed with people making it on their second chance. But second chances after minimal or no consequences for the initial mistake probably don’t show improved behavior as often as we like to think. My second problem is I’ve lost a lot of faith in our judicial system. I grew up believing judges were impartial, which meant purely objective, above making decisions based on partisan leanings. I’m rather embarrassed that I held onto that as long as I did since learning it at age eight, probably. In the same book, I learned Bush’s 2000 election was helped along by a 5-4 ruling from the Supreme Court on a Florida recount decision. Sandra Day O’Connor, one of the five, had stated on several occasions she was eager to retire and didn’t want a Democrat to nominate her successor. That doesn’t prove she didn’t cast an impartial vote but, like I said, I’ve lost faith in the impartiality of our judicial system.

I suppose this blog would be better if I could end with an answer to it, but I don’t have one. Maybe one problem is the huge swings in sentencing. A person can get from no jail time to twenty years in jail for a conviction of rape. Maybe judges shouldn’t get that much discretion. Maybe we should be more clear that court TV isn’t court at all. Court TV is third-party arbitration. These TV personalities have all the discretion in the world and most kids and probably a lot of adults think that’s court, which it’s not. Maybe we should do close studies on how judge’s discretion correlates with race or gender. I know not everything is about race and gender but a lot still is about race and gender.

There might also be a sense that what happened to the victim of a rape or an assault can’t be undone. What’s about to happen to the person convicted of the crime can be done or undone, right then by the judge. Presumably judges get to be judges because they’re capable of handling that pressure moment fairly but maybe we’re terrible at deciding who gets to be our judges. Maybe there’s too much inconsistency. Maybe we don’t give enough consideration to how these instances of light sentencing leave victims feeling victimized again. And not just the specific victim but anyone who’s been victimized and people who worry about being victimized in a society where people convicted can receive such light sentences. That may explain why the Stanford rapist case went viral. People weren’t reacting to how that didn’t seem fair. They were reacting to how that wasn’t fair based on circumstances in their own lives, either traumas of their pasts or their biggest fears.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s