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Crime and No Consequences

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Kent and I do not agree on everything, but on this there is no daylight between us:  Crime must have consequences.  This is so first because it is just, and second because, without consequences, the criminal will have no incentive to change his behavior.  Justice for the future victim is no less imperative simply because he cannot be identified by name today.

The defense bar thinks differently.  Decency toward the victim  --  present and future  --  is out.  "Compassion" for the criminal is in.  We've all heard it.  Jails are crowded and expensive.  The USA is "incarceration nation."  Racism is rampant.  Today's defendant, whoever he is, is a victim of circumstance and of an uncaring society.

Too often judges buy this line.  Underneath it all, one reason they do is that they believe the next victim will be somebody else.  That is a harsh thing to say, but it's true.  If the judge thought that tomorrow, he would be the street victim of the criminal he put on probation today, there would be no probation.  There would be jail.  Kneejerk "compassion" stops where ordinary prudence starts.

This is all by way of prologue to a story in today's Washington Post.  In a case a few years ago, a Maryland judge gave probation to a drunk driver, even though the man had been arrested on DUI or DWI charges twice in the preceding three months.  Last August, that same driver, drunk as ever, rammed the judge's car, causing serious injuries to the judge and life-threatening injuries to his 82 year-old wife.  The crime without consequences had turned out to have consequences after all.


The story continues:

Ellen Collier, who is now 82, suffered a compound leg fracture, fractured ribs, a fractured hip and neck injuries, Kudel [the judge's attorney] said. She has had five operations, including one to fuse vertebrae in her neck, and must use a walker. Edwin Collier, now 86 and who as a retired judge was brought back to hear cases as recently as last year, suffered a broken leg and fractured ribs. He must use a cane.

The diminished mobility forced the couple to move to a retirement community from their home in Bethesda. "Their whole life has changed irreparably," he said

Fernandez [the driver] was barely hurt. At the crash scene, he walked about in flip-flops, grinned widely and seemed unconcerned about the Colliers' injuries as other motorists rushed to their aide, according to Montgomery police reports.

Fernandez was tested at more than twice the legal limit for alcohol, the reports say.

His attorney, John Severt, who represented him in 1998 as well, declined to comment.

Thoughtful compassion is a good thing in a generous and benevolent country like ours.  But merely reflexive compassion is not a good thing.  Indeed it's a menace.  One is tempted to see an ironic justice in what happened to Judge Collier.  Perhaps the better way to look at it, though, is as the story of a tragic turn of events  for an elderly couple who had been enjoying an active and independent life.

There is no satisfaction in this story, but there is a lesson.  Thoughtless "compassion" for the criminal must give way to a decent regard for the next victim.  We don't know if Mr. Fernandez would have continued to drive drunk if he had been hit with, say, a year in jail for one of his earlier episodes.  What we do know is that his "compassionate" sentence of probation saved some taxpayer dollars on jail  --  and taught him nothing, and, now, has cost an older couple a good deal of suffering, probably for the rest of their lives. 

It shouldn't matter that the next victim was, in this case, the sentencing judge.  It should only matter that he was a human being.  We deserve better.  And we aren't going to get it from "compassion."

1 Comment

This sad tale puts a fine point on the concept of the first, second, and sometimes third offense discount before a defendant is incarcerated in a pure discretionary sentencing scheme.

Short of being charged with murder or a crime that carries a mandatory minimum, the default sentence for first, second, or worse offenders is probation or some other alternative sentence with no teeth--hence, no consequences. Hand-wringing, guilt-laden, compassionate judges have a difficult time putting criminals behind bars. Judges abhor being labeled a "government" judge. They strive to be known as an "innovative thinker" which equates most often to non-custodial sentences--hence, no consequences.

The truth is that criminals view non-custodial sentences- no matter the conditions-as a "case they beat". Accordingly, no lesson is learned.

When I was a federal parole hearing examiner, I would ask inmates with long criminal records why they went down the road they traveled in life. Invariably, they pointed to the leniency and lack of consequences they experienced in juvenile court. More than one expressed the sentiment- If I had been hit hard by the court early on-I might have been persuaded to "go straight".

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