Wednesday, June 1, 2016

Let He Who Is Without Sin Sell the First Window

They used to call them penitentiaries because they were to be places where folks did penance.  The judicial system's version of purgatory.  

  • Do time.
  • Study on the error of your ways.
  • Come out rehabilitated.

Fuck that shit.  We call them prisons now.  

A few years ago, Nancy Gertner (one time criminal defense lawyer, later a federal judge, now on the faculty at Harvard Law School) wrote
Three decades ago, we considered rehabilitation and specific deterrence to be more important than retribution. And while there were unquestionably problems with that approach, at the very least it enabled a discussion about what punishments made sense to ensure public safety, to minimize recidivism and to balance all of the purposes of sentencing. In addition, it permitted criminal justice experts in various fields – including judges – to participate in a meaningful discussion about crime.
But in the 1980s rehabilitation was discredited. On the eve of sentencing reform in the federal courts, one scholar wrote: “What works? Nothing!” – although he subsequently amended his views. The sentencing focus shifted for the most part to a single purpose: retribution. And for that purpose there were new “experts”: the public. If the most important question had become, “What punishment fits this crime?” Everyone could weigh in.
And weigh in everyone did.  Demanding more and more time.  Punish the fuckers.  Make 'em pay. Life for everyone.  Plus more time.  Or maybe plus cancer.  And don't forget to smite their firstborn.

It's no surprise, then, that we lead the world, by far, in the percentage of our population in prison. And in the length of time we lock up those lucky many.  But all is not lost.  There is a generalized awareness that maybe we're locking up too many people and for too long.  Criminal justice reform remains at least a theoretical possibility in Congress.   If it passes, we could begin the move from being the most incarcerating nation by a very long shot to being the most incarcerating nation by an almost-very long shot.  Yippee!

And in the states, too.  Here in Ohio, for instance, we adopted sentencing reform a couple of years ago with the goal of reducing our prison population.  And the latest estimates indicate that this summer it will finally be . . . (wait for it) . . . larger than ever before.  Boy are we good.

Still, there's hope.  Hey, Jake Strotman won't be getting locked up.  Huh? What?  Jake who?  Chris Graves at has the story.  

It was January 23, dollar-beer night at the game at U.S. Bank Arena.  The Cyclones won.
Strotman, a Downtown resident, had imbibed with his buddies at the hockey game and was in fine form when he approached a band of Baptist street preachers who were, as he puts it, condemning him. A curious and naturally jovial guy, Strotman said he "gave them my two-cents worth.
"They were telling me I was going to hell,'' Strotman said Thursday. "I was asking them: 'Why do you think you can condemn people?' I didn't understand why they thought they could judge me."
Apparently, that was just enough for some other knucklehead to approach the church folks. This man, Strotman said, "started going off like a ball of fire." There was screaming and words and threats before that guy broke a camera church members brought out in case of violence or altercations. The church folks threatened to make a citizen's arrest.
There was a push and a shove. And the fray was on.
Strotman somehow ended up at the bottom of a pile and "was eating asphalt." He pushed himself up with one hand and planted another hand square on the face near the bespectacled eye of Joshua Johnson, who had just been preaching the word of God.
Johnson's face was apparently cut by his glasses.
Which is maybe just one of those things.  But this one got Jake charged with misdemeanor assault. And that led to the courtroom of the Honorable William Mallory.

Now Mallory, it seems, is one of those judges who views his job as, well, an opportunity.  He could just lash out, or he could try to help - to turn lives around.  And hell, he might as well have some fun while he's at it.  As Graves tells us, he 
enjoys handing out creative sentences from his bench.
Now creative sentences, they often feel good.  Seem like they might teach a lesson without burdening the prison system.  But, well, there can be problems, too.  Not always, but it's a risk.  However good they feel.  There's that chance of small things like not being authorized by law. Or being flat-out unconstitutional.

Of course, Judge Mallory, he's got his own sense of what's right.  Judges need that if they're going to craft wise sentences.  

So the judge pondered.  He told Jake he was looking at 90 days in the hoosegow, which Jake didn't much like.  But he had some sympathy.  After all, Jake didn't ask to be told off by those Baptist street preachers.  So the judge turned to Johnson, he of the good book and the scratched nose.
"I'm trying to get to something reasonable here. And I'll be honest with you guys, sometimes in certain places people don't want to be preached to. You agree with that right?"
Yes, he said, he did.
The right answer.  Hell, the judge was on both sides of that issue.
"I admire the fact that you want to spread the word of God because I'm a religious man, too,'' Mallory said. "Also the thing about religion, I think it is kind of personal and for me I don't try to impose my religious views on other people except for sometimes in this room."
Which is, frankly, and not to put to fine a point on it, unconstitutional.  Not the admiration.  Not that the judge is "a religious man" or that he understands religion to personal.  That's all fine.

It's the part about imposing his religious views on other people in the fucking courtroom.  Where the First Amendment says no.

But Jake, an enterprising lad (he's a self-employed window, siding, and door salesman), knows a customer who's maybe ready to buy and just how to sell.
"Your honor, if I may, I would be more than happy to serve a church of your choosing."
Mallory: "Time out. We may have an answer here."
He addressed his thoughts to Johnson.
"So for his penance, what if I make him go to your church a number of Sunday services?"
Which he did.  Go 12 times.  90 minutes per.  Go forth and be proselytized.

Which is, of course, unconstitutional.

But for Jake?  Opportunity.
"Then, maybe I'll try to sell them some windows."

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