Why we're doing any of it at all?

>> Friday, September 16, 2016

I have been grappling with punishment lately.  Criminal punishment, I mean.  I've been having a bit of existential angst over it.  Part of it has been the result of a couple of cases I've had over the past year where I really wondered what we--the criminal justice system, I mean--thought we were really accomplishing.  And part of it has been watching some of the ongoing publicity surrounding the Adnan Syed case that was covered by Sarah Koenig's Serial podcast last year (for those who have already been distracted by the Internet's most-recently unveiled shiny thing, a judge has ordered that Syed get a new trial and the State of Maryland is currently appealing that order).

Syed's as good a place as any to start, maybe.  I'm thinking about this case, a teenager who was convicted of murdering his teenage ex-girlfriend.  And I'll tell you that I'm thinking he's very probably guilty, that although there are issues (surprisingly typical issues, I'll tell you) with the police investigation and prosecutorial presentation, and while I think Syed's codefendant, Jay Wilds, lied about a lot of things, I get stuck on Hae Min Lee's car and it leads me to think Syed probably strangled her in it.1

And so I find myself conflicted about Syed's appeals process and results.  On the one hand, I have to confess, I find myself feeling irritated and resentful that Syed is able (in my opinion) to game the system by garnering positive news coverage by taking advantage of a journalist's naiveté and lack of foresight.2  There seems to me something vaguely unfair and dissatisfying about getting an undeserved do-over of your murder trial just because your case became a seven-day wonder on the Internet years after all the evidence that might have been used to prosecute you has been effectively scattered on the winds.

And yet--and yet I have a weird question and misgiving about this on the other hand: what's the point of leaving Adnan Syed in jail even if he did do it?  If my suspicion that murdering Lee was a spontaneous crime of passion enacted by an immature man-child is correct, it seems improbable that Syed is now still a danger to anybody, or that he's in need of further rehabilitation (if he ever really was in need of any to begin with, oddly enough), or that you could hope to deter other possible crimes committed by other mentally and emotionally immature children who aren't particularly thinking about laws and consequences when in thrall to rage and insecurity.

Maybe we do it to even the scale for the loss Hae Min Lee's family and the world lost when her life ended.  Except... how is a lifetime enough?  Or if we're just going for crude tits-for-tats, why don't we just let a member of Lee's family, or their appointed representative if no one has the stomach for it, strangle Syed?3  In no way will it ever bring her back, of course.

Assuming he's guilty, do we leave him in prison because it makes us feel better about ourselves?

Or do we do it simply to announce that we don't approve, as a society, of strangling ex-girlfriends?  Something one might have thought we already knew, though I understand a lot of people will point to the poor treatment of domestic violence victims as the counter-argument.  More importantly, does it do any good to send a message that remains obscure to the point of secrecy until a This American Life reporter has a fluke smash hit with a podcast about it, a podcast that leans heavily towards doubting whether he did it at all and has fostered a popular sentiment that someone else surely must have done the deed?

In short, is there any useful reason to keep Syed locked up even if he's guilty?  Or is the sole reason part of me really hopes he loses his appeal a kind of petty vindictiveness that my clients aren't featured in podcasts, my clients aren't fought over in Reddit forums, some of my clients will do more time than Adnan Syed might and for less-grotesque things than choking a girl to death?

And those clients of mine?  What are we doing with some of them?  And I'm talking about the ones who are legitimately guilty, guilty as hell, guilty as guilty can be, as sullied as the old half-melted snow freezing and thawing in a steel mill's employee parking lot.  People who are starting their criminal records because we don't know what to do with them, and repeat offenders who we don't know what else to do at all.  People who, I guess, have to be punished somehow, and we have this proscribed list of socially-sanctified options for doing so set forth in the books of law, but what is the goal, what is the endgame?

It's not always obscure, understand?  Sometimes, you know, we go through that list above and options stand out.  Hey, put this guy on probation, so there's someone goading him through rehabilitation.  Send this lady to prison, because she's proven she can't get along anywhere else and she just needs to be removed from the world, even if it's merely a few months or years we're protected from one another.

But a few months ago, I had a woman who ended up with a felony criminal record following her first offense and failure to comply with a deferred prosecution agreement.  And there was nothing in the list of reasons you can come up with to justify the conviction--the victim was at peace, the woman has had no further offenses and is unlikely to ever be a danger to anyone, she's in no obvious need of rehabilitation, there's no grand statement of social condemnation that seems called for.  And yet I can't fault anyone in the system for doing what the system required once certain switches were thrown and the system ground to life; consequences arise from action and inaction and the whole thing has an inevitable inertia that will keep things moving just as forcefully as they were immobile when the machine was at rest.  Something had to be done.  It was done.

I just can't really get my head around why.  Other than, "because," I mean.

I thought about writing this months ago, really, and then decided not to.  I mean, what's the point, and I'm sure it can only cause trouble if it's noticed at all?

But then a lot of friends--liberal fellow travelers, I think, most or all of them--began posting and reposting to Facebook an article about a teenager accused and convicted of rape who, a liberal website claims in summary fashion, is being inadequately punished.

They suggest his punishment is inadequate because he's white, and not because there's a gap between our gut-level horror of the allegations against him and the vague and intangible consequences our instinctive vengeance demands.  And they suggest the punishment is too light because we live in a misogynistic society that doesn't take sex crimes seriously enough, and not because of any facts or context that may be hidden from all of us who aren't a part of the case and really have no idea what the dimensions of the story might be.

And it's true that our society is racist and sexist, which means that our legal system--a manifestation and reflection of our society--is, too.

But I just resolved a case for a juvenile, a child, who was accused of something horrific, and who could have been tried as an adult and might have been if I hadn't worked out an arrangement with the State where he goes to a Youth Development Center--kiddie prison--instead of facing a jury of adults two and three times his age, and perhaps being sent to an adult prison, to reside with adults much older than he (although the prison system would try to keep him apart from them until he was a little older), with the minimum, the minimum he could have been sent off for as an adult being 12 years for a first-time offender.  He is, for whatever it may be worth, an African-American child.  His maximum confinement in a Youth Development Center will be his 21st birthday.

And when I argued with the Assistant District Attorney prosecuting this case, who I believe did the right thing in allowing the case to remain in juvenile court--not just because the decision is a positive outcome for my client, but because I think it was a moral decision--the argument I kept coming back to was that there is, or ought to be, in my mind at least, a bright-line rule that you don't send children to prison.  You.  Simply.  Don't.

A sentiment that is factually incorrect, because all the time across this great land of ours we send children to live behind stone walls, in narrow cells, simultaneously with and apart from adult felons, to get whatever education the Department of Corrections can offer and come out,4 eventually, sometime, eventually, as convicted felons who are branded with the scarlet letters of their convictions.  But a moral sentiment.  A faith that is blind and foolish.

Is there some greater good that would have been served sending this kid to living hell for grown-ups?  It wasn't going to make the victim feel better; I'm afraid you'll have to take my word for that, since I don't think I can say more than I already have about the facts of the case.  It wasn't going to undo anything terrible that had been done.  It wasn't going to prevent anything that couldn't be prevented in less-cruel ways.  It wasn't going to rehabilitate in any way that couldn't be done in a less-intolerable way.  It wasn't going to send a message to anyone who didn't already know what the message would be.  The most it would do is send a strong message of societal condemnation by breaking people more than they were already broken.

And had the Assistant District Attorney and I reached an impasse, if we hadn't found a middle ground that leaves people with some slim prospect of healing and reconciliation?  What else could I have done but tried this awful case, the victim getting up on the stand to tell a courtroom populated by strangers what had happened while the alleged offender sat twenty, thirty feet almost directly in front of her next to the mean man forced to ask cruel questions?  This is a fact the ADA took very much into consideration: forcing the victim to testify, a right accorded to the accused by our Constitution (a response to the evils of secret tribunals and witch hunts), would have been a re-victimization, would have been an unkind and terrible thing.  (Hence, again, why I believe the ADA made a moral decision.)

A fact, I find, that seems to be frequently overlooked by critics of the handling of various crimes.  We have, for better and worse, an adversarial system in which the accused has a fundamental right to confront their accusers.  A system that, again for better and worse, has rules--some of them almost ancient--that are intended to ensure fairness and regularity; rules of admissibility, of hearsay, of impeachment, just for instance off the top of the head.  A system of justice that has, for better and worse, established a high burden of proof before liberty or life can be taken away from somebody (taking their property is generally easier).

So that it is not enough for a police officer to take the stand and say that somebody told him something happened; proof of guilt must be established by non-hearsay evidence.5  And the proffered, would-be proofs will be tested in court, prodded and poked and gone over and questioned.  It is frustrating to read complaints about police officers "doubting" a victim by asking her hard questions about an offense when the complainants hardly seem to realize that one of the things an officer needs to do if she's going to present a case to the District Attorney for prosecution is present the strongest possible prosecutable case, and the questions the officer asked are the questions that the DA will ask, that the Grand Jury will ask, that a competent defense attorney will ask, that the petit jury hearing the case will ask themselves behind closed doors, and it's best to have the answer ready (or, frankly, if the answer is so dissatisfactory, perhaps save a lot of people the humiliation and/or wasted effort that may come from attempting to prosecute an unwinnable case).

I digress.

To get back on track--

There is a now-famous experiment in which two Capuchin monkeys are given different rewards for the same task (I know, this sounds like I am still digressing), and the monkey that receives the lesser treat will totally lose her shit when she sees what has happened, sees that she's being treated differently from her peer one cage over.  And I mention this because fairness, apparently, is very possibly an instinct that we have inherited from way back along the primate branch of the family tree.  And so I get it, I really get it, when I read a story in which a terrible action has repercussions for the perpetrator seem vaguely unfair.  I think this is very possibly some very old monkey section of my brain losing its shit; and the fact this may be an instinctive, reflexive reaction doesn't mean its wholly wrong, either.

But.  But I see these comments about these rape cases by folks, friends--good people, friends, people who I share so many principles and morals with--and while I know what they want and have an inarticulate sympathy for why, well... I also don't know what they want, or why.  If they are highlighting racial disparities in sentencing, for instance, are they saying that minorities should also receive lighter sentences for convictions?  Would that resolve the unfairness?  Or, if they're saying (what I think most of them probably are saying) that a sentence was too lenient, and the fairness issue is that it should have been much worse for the defendant--what is it they hope that will accomplish?  I don't ask rhetorically; well, not exactly.  I ask because, as I said a lot of words ago, I'm not sure I understand what we, what I (to the extent I have a professional part as a cog in this terrible grinding machine) am doing anymore.

Will a longer sentence undo the crime?  Deter anybody?  Rehabilitate anyone?  Neutralize an actual threat?  Send a "message" that we don't put up with that with which we will not put up with?  Just make us feel better, at least until the perpetrator gets out and now we have to figure out what to do with someone who has already been completely rejected by society at least once when we forcibly removed him for so many years and months?

Do we actually have a goal, or are we just screaming through the bars of our own cages?

And do you know, there's so much about the case that my friends are angry about that I don't know, and that I doubt they know, either?  I know the perpetrator in that one was seventeen when he committed the crime (this is not apparent in the article my friends link to, but can be learned by clicking through to the upriver source of the source).  I know that he was in Iowa, where this story happened.  I know that there was another "man" involved, which I put in quotes because I don't actually know if this was another teenager--another child, also being treated as an adult in this context and no other--or if this was a much older male (therefore suggesting, perhaps, the involvement of a more culpable party).  I know that, interestingly, a person who helped police catch the kid described the situation and the defendant as, "It's sad, he is such a young kid"; and suggested something known by those of us who deal with these situations too often (once being too often), that others may be overlooking--that frequently sex offenders were themselves victims, and are repeating learned behaviors.  I know the article mentions the defendant having had at least two psychiatric evaluations in the past two years, though the story doesn't say whether these were for the purposes of determining competency to proceed to trial, capacity to be culpable for the offense, for the purposes of sentencing, or for some other forensic purpose.

The story doesn't say--and its author probably doesn't know--anything about the convicted defendant's mental health diagnoses, if any.  His education, his intellectual capacity, his emotional development.  Whether the victim was a family member or a stranger.  What the victim's family's wishes are, if any.  Whether there are further arrangements between the state and defendant regarding his testimony against his codefendant.  Whether there are evidentiary issues that might make a conviction at trial less than certain even with video of the offense.  And while the point-of-view that the sentence is somehow unfair comes through very clearly, what isn't even touched is why another sentence might be better, more fair, more whatever.

If the author's feeling is that death would be too good for the defendant, he's entitled to that and might as well come out and say so; he just needs to recall that that isn't actually how we sentence people in this country.

Maybe it should be?  Though I have a feeling that's not really how people feel about it, considering that we--like most of the countries we like to identify ourselves with even when we publicly mock them (you know, France, Britain, European countries--as opposed to North Korea or Yemen)--have actually abolished the death penalty for rape.

We could reinstate it, like a lot of the punishments we've abandoned.  If the purpose of what we're doing here, if the end game is simply to send a strong condemnatory message to the universe that we don't like things, nothing speaks louder than drawing-and-quartering.  You might think I'm joking, that I'm being sarcastic.  I'm not.  I'm being sad and ironic, I'm being forlorn and angsty.

If there's a reason we're not drawing-and-quartering people, maybe we should be wondering why we're sending them to prison.  Why we're giving them permanent marks that will make them pariahs and outcasts the rest of their lives?  Why we're taking away chunks of their lives that will make them alien and useless when their lives are given back to them?

Why we're doing any of it?

1Wilds apparently led police to Lee's car.  This could mean a lot of things, but the Occam's Razorest would be that Wilds knew where the car was because he was involved in the crime somehow.  Wilds has maintained--in multiple conflicting stories--that his involvement was confined to helping Syed dispose of the body.

One strong possibility, of course, is that Wilds killed Lee and pinned it on Syed.  There are problems with this scenario, though.  For one thing, it doesn't appear that Lee and Wilds had much connection besides being close to Syed.  For another, if this is the scenario, then it seems more than a little odd that in neither of his two trials nor in any of the interviews that Koenig used in Serial has Syed come out and accused Wilds of killing her.  Neither of these points is conclusive, but I find them suggestive.

Another possibility would be that a yet-unknown third party murdered Lee, and... and what?  They know Wilds and roped him into helping?  Wilds is covering for them by pointing at someone who for some reason doesn't seem to be pointing back?  This, of course, is the big problem with all the "Maybe it was a random serial killer!" proposals that have been floated hither and yon since Serial aired; if Lee was killed by a Phantom Stranger, how is it Wilds knew where her car was?

The possibility that resonates most with me (and I will admit that it may be because it lines up with my own confirmation biases) is that the spine of Wilds' story is true--Syed contacted him and needed help covering up what I suspect was an impulsive criminal act--and that the variations in Wilds' story are largely the product of the kind of embellishment you frequently (in my experience, at least) see in accessory statements: a suspect inevitably gets the sense that making a story "good" will help him even if nothing is explicitly promised, and the kinds of questions investigators ask him point towards what constitutes "good."  In this case, I think you have Wilds realizing that an account in which Syed has planned things out and he (Wilds) is a minimal participant (because suspects almost always minimize their participation anyway--that's just human nature, really) is the story that the police want to hear.  They don't want to charge someone with an unpremeditated Second Degree Murder if they can collar someone for a planned-and-schemed First Degree, so they're hinting (perhaps even unwittingly) that surely, surely Syed talked about killing her on other occasions and had his day planned out.  And Wilds, he's not dumb and he doesn't want to go to prison, so he's game.

That's my hypothesis, anyway.  What do I know?  I wasn't there.

2I think Koenig wasn't really prepared to deal with a charismatic, somewhat bullying interview subject, first of all.  And second, I think she really thought that once Serial was underway, additional sources would emerge, eager to be heard; instead, additional sources remained hidden away or refused comment.  Not all of them, certainly; but key sources like Lee's family, Baltimore police investigators, the prosecutor, and Jay Wilds refused comment or dodged her, leaving her pretty much with Syed and his most ardent defender, a family friend named Rabia Chaudry who provided Koenig with documents that either weren't public records or that would have taken months to get through public record requests.  Which left her, in turn, with a dilemma: if she concluded Syed was guilty, should she tell him and risk losing practically her only source, or not tell him and risk becoming another case study in journalistic ethics and maybe even risk a lawsuit?

Or, she could be supportive and sort of agnostic, repeatedly expressing her inability to say for sure whether he really did it....

3Ah, but this is why we have the death penalty, yes?  Well... but not exactly.  Because while we talk about the death penalty as being an "eye-for-an-eye" kind of thing, it isn't, is it?  We don't kill convicts the way they killed their victims.  We insist on doing it "humanely," whatever that means, even if the convicted killer terrorized and brutalized a victim.  And we impose all kinds of other rules.

I am a staunch opponent of the death penalty for a lot of reasons that are an entirely separate thing from this, and that are beside the point I'm really trying to make here; that point being, even if we, for argument's sake, condone death, we don't really do it in a way that "balances the scales" even if this scale could be balanced by foolish and ignorant mortals such as we.  We don't actually take an eye for an eye, even if you find such trades acceptable.  And I don't really think we have the stomach to make such trades, despite the fact that a lot of death penalty advocates will talk big about it: we try, instead, to have it both ways when we kill in this context, congratulating ourselves for showing mercy to an "undeserving" killer by killing him in what we hope is a painless way, behind impenetrable walls and closed doors, in hidden chambers, at lonely and forbidden hours, as if we're ashamed of the things we boast of and have trouble bringing ourselves to commit an act we otherwise claim is overdue.

4We have decided, you know, that people come out of prison, eventually, for most offenses.  We are down to First Degree Murder and (in some states, anyway) certain sex offenses as being the only offenses for which there is officially life without parole; and then there are the effective life sentences we give to certain habitual felons whose sentences will exceed the lifespans of anybody who isn't an Old Testament character; and also the fake life sentences we give for those who our laws allow to be indefinitely "civilly" committed after they've run out their prison sentences and "done their time".

And we are moving away from giving children these sentences, when we try and convict children as adults.  We are doubting whether it's humane to give a teenager a life sentence, which means we are considering the possibility it's cruel, and cruelty is supposed to be forbidden by the Eighth Amendment to our Constitution.  (None of this applies, natch, if you're reading this in Canada or some other enlightened place.  I know there are a few of you.  Hi.)

Which means, you know, people will be released from prison.  Something that gets forgotten, except when someone is trying to instill fear while arguing for a longer sentence.  But you realize, of course, that even with the longer sentence, the defendant will eventually get out?  Unless it's life, of course, or the equivalent Methuselah-ean span of years.  But most people in prison, you see, will eventually get out.

And we ought, perhaps, just maybe, remember that point?  And ask ourselves, maybe, just perhaps, if that ought to affect how and where and why and for how long they're to be in prison?  Maybe?  To think that sending a person who has done horrible things off to serve five or ten or twenty years may be satisfying right now, while we're pissed and bitter, but is it going to still seem like a good idea when this person is gently pushed through the prison doors with thirty dollars and ill-fitting clothes and no possibility of employment and a screwy education and the only living people they still know are parole officers and other convicts?

Because, I dunno, maybe we ought to think about whether we're just pushing somebody under a rug so we can pat ourselves on the back for the housecleaning we've just done, with no regard to what kind of mess will reappear when the rug is lifted some time from now.

5Or, if you want to be technical, non-hearsay testimony and/or hearsay testimony that satisfies one of the many exceptions to the hearsay rules.


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