But enough’s enough.  He’s been locked up for a couple of weeks, now.  It wasn’t supposed to be like this.  And it’s really hard for Jacki, what with him being out of work this whole time, and not being around to help with the baby.  And he really didn’t do anything wrong… it’s just that, you know… she wasn’t thinking straight.  And now it’s time for her man to come home.

That should be easy enough.  All she needs to do is drop the charges, right?  She’ll just go over to the DA and say she doesn’t want to pursue the case. 

We imagine that something like this is what’s going on in Jacki’s mind:

-=-=-=-=-

Unfortunately, real life is more like this:

(Excuse our hasty artwork.  We never were any good at cartooning.)

-=-=-=-=-

Unless you actually practice criminal law, you probably have no idea how common this scenario is.  People get locked up all the time, not because they actually committed a crime, but because their significant other used the cops as a weapon.

What people don’t seem to realize is that the police do not have any discretion.  When you say someone beat you, or threatened to kill you, or whatever, the police must make an arrest.  They have no choice. 

And it’s no good you coming back the next day and trying to undo your terrible mistake.  You’ve set in motion a machine that you are powerless to stop. 

We see these kinds of cases far too often.  Non-criminal domestic disputes become swallowed up by the machine, which chews people up and spits them out — if they’re lucky — with permanent damage.

It’s not just women calling the cops on their men, of course.  It’s often neighbors calling cops on each other, or students making false allegations against a teacher, or any other kind of situation.  And once they’ve called the cops, there are no do-overs.

-=-=-=-=-

Sometimes, it’s a cultural thing.  There really are people out there whose first reaction is to call the cops to solve their problems for them.  They live in a world where literally everything is done for them by the government.  So their first instinct in any situation is to get government involved.  You literally get moms calling the cops on their own kids for not cleaning their room.  Which escalates, when the cops refuse to get involved, to ever more serious accusations until the cops do get involved.  And then the mom calls sobbing, wondering why her baby is in jail.  To which the only rational answer is “because you put him there.”

But usually, it’s simply because the person who called the cops (1) felt comparatively powerless in the relationship, (2) figured calling the cops would be a big equalizer, (3) either didn’t understand what he or she was setting in motion, or didn’t think it through, and (4) over-reacted.

-=-=-=-=-

So please, next time you’re thinking of calling the cops on your significant other:  Try actually thinking, first.  You’ll save yourself, and your loved ones, a lot of grief.

When we first moved to NYC in 1997, we thought we knew what racial tension was. After all, we’d grown up in various parts of the South and out West, and had seen and heard quite a lot of invidious prejudice. But we hadn’t seen anything, by comparison. We’d seen dislike and resentment out there, but the vitriolic race relations of the 50s and 60s had died down by our childhood in the 70s and 80s. We weren’t prepared at all for the outright hatred various groups expressed for each other in the grand metropolis. That first year here in the Manhattan DA’s office was an eye-opener. The city, especially the outer boroughs, seemed less like a melting pot than a petri dish, with virulent strains of hatred all fighting each other. Many working-class whites routinely used epithets one almost never heard in the South any more, and openly despised black people. Lots of black people hated white people right back, and seemed to have a bizarre animus towards jewish people, who we’d always thought of as champions of civil rights. African immigrants hated African-Americans, who they saw as lazy and as giving them a bad name. Every ethnic group seemed to have a derogatory name that everyone else used.

And this internecine feuding was still turning to violence in the ’90s. We’d never heard about the Howard Beach or Bensonhurst dramas of the late ‘80s, but here in the city that tension was still high. Al Sharpton hadn’t yet faded into irrelevance, and it seemed like he and his protestors spent half their time marching in circles somewhere or other. Right before we started at the DA’s office, the Abner Louima case happened, leading not only to renewed distrust of the NYPD, but even more racial tension. And just when that started to die down, the Amadou Diallo shooting flared it up again.

It was shocking to us. But to our friends who’d grown up here, it was just normal background. It was just the way things were.

So that’s what the culture was like in 1996, when a fight between some Italian men and a black man over a parking spot turned violent, the black man swung a baseball bat at an older Italian man, whose son — an off-duty cop — shot the black man to death.

-=-=-=-=-

On October 3, 1996, in the suburb of Dobbs Ferry just north of the city, a black man named Charles Campbell parked his Corvette at a deli, in a spot reserved for deli customers. But he went into a different store across the street. When he came back, he saw the owner of the deli placing a sticker on the Corvette. Campbell got angry and started a fight. The deli owner, his son Richard DiGuglielmo (the off-duty cop), and a third man (Robert Errico, the cop’s brother-in-law) wound up fighting with Campbell.

The fight ended, and Campbell walked back to his Corvette. During the fight, his shirt had come off, and the deli owner brought it over to him while his son and the other man went back towards the deli. But then Campbell opened the back of the Corvette, grabbed a metal baseball bat, and kneecapped the old man with it.

The old man went after him to try to take the bat away, while his son ran into the deli to get a pistol. Campbell went to the other end of the parking lot, swinging at the old man with every step. By this time, the old man had taken a crack to the hand, as well. Several witnesses saw Campbell threatening with the bat, now, holding it in a stance like he was about to swing.

At that moment, DiGuglielmo ran up with the gun and shot Campbell three times, killing him.

-=-=-=-=-

Two witnesses saw it from inside a truck parked right there. After the shooting, they made statements to the press and to the police that Campbell was still swinging the bat at the old man, had swung at his head, and was about to swing again when he got shot.

At trial, however, they testified differently, telling the jury only that Campbell was holding the bat in a batter’s stance, but was not swinging the bat, when DiGuglielmo shot him.

The trial was a mess. The local district attorney, Jeanine Pirro, was a publicity hound (and more than a bit of an embarrassment to those of us in other DA’s offices), and tried the case in the press, basically calling this a hate crime and accusing the DiGuglielmos of being racist. She dearly wanted to get a cop convicted here. After the defense rested, the prosecution figured out that they weren’t going to win on the charge of intentional murder, and switched their theory to “depraved indifference” to children who were on the street near the deli.

Forgetting that the prosecution’s job is to prove what really happened, and not plead in the alternative two different ways it might have happened, they asked for both theories to be presented to the jury as alternatives. The jury threw them a bone, convicting DiGuglielmo of depraved-indifference murder, not realizing that it carries the same penalties as intentional murder. DiGuglielmo got 20 years to life, for defending his father.

The appeals were a mess, too. We’ll spare you the details.

Fast-forward to 2006. The two key witnesses from the trial, who had witnessed the events from their truck, had now come forward with evidence that they had been pressured by the police to change their stories, during a course of police interrogation in the days following the shooting.

This was clearly new evidence that would have had a big impact on what the jury would have thought. And it was certainly evidence helpful to the defense that had not been disclosed by the People. So at the very least there was a clear Brady violation. And maybe it counted as newly-discovered evidence that would have resulted in a more favorable verdict.

So DiGuglielmo filed a CPL 440.10 motion to vacate the conviction. The court, to its credit, found this to be the right kind of newly-discovered evidence, and certainly Brady material.

In a detailed, 69-page decision, Judge Bellantoni vacated the conviction, and on September 19, 2008, DiGuglielmo was released from prison.

The DA’s office appealed.

This week, DiGuglielmo was ordered back to prison.

-=-=-=-=-

What happened?

What happened is, the Appellate Division screwed up. You can read the opinion here, and see for yourself.

It’s a horrible decision, and we’re frankly surprised that it made it out of the draft stage in this form.

Here’s the logic, in a nutshell:

(1) Based on the testimony at trial, the jury must have concluded that the father was being the aggressor, and that the victim was backing away, and most importantly that the victim was not swinging at his head.

(2) The new evidence contradicts those conclusions. The new evidence is that the men in the truck saw the victim swinging at the father’s head, and was about to do so again. The new evidence is that they made multiple statements to that effect on the day of the shooting, but only changed their stories after several days of police pressure to do so.

(3) Because the new evidence is contrary to what the jury concluded, it must be something the jury didn’t believe. Therefore, the jury wouldn’t have believed this new evidence. And so the new evidence wouldn’t have changed the jury’s mind.

That’s circular reasoning. The jury didn’t believe the victim was about to take a swing at the old man. Therefore, the jury wouldn’t have believed evidence to the contrary. So it wouldn’t have made a different to introduce such evidence.

And how is that not Brady, at the very least?

-=-=-=-=-

And compare this brief, careless decision with the more lengthy one below. Say what you will about it, Judge Bellantoni’s decision is not lacking in analysis of the law and the facts. And he clearly made every effort to do it right.

The judiciary must not take on the coloration of whatever may be popular at the moment. We are the guardian of rights, and we have to tell people things they often do not like to hear.” – Hon. Rose E. Bird. Our oath requires that we make the right decisions, even if difficult and unpopular. It must be stated that this Court, in its above discussions and ultimately, its decision in this case, certainly does not intend to disrespect the memory of Charles Campbell or the Campbell family. This decision was not made lightly. Indeed, for the past two years, the Court has struggled with, and considered, all of the arguments and positions connected with the issues in this case and it’s ruling is consistent with the undercurrent of the criminal justice system – that where an injustice has occurred, all benefit of the doubt, consistent with current case law and precedent, must be afforded an accused. Thus, for the factual and legal reasons stated above, this result is mandated by the principles of justice.

(Decision and Order, Sept. 17, 2008 at 67.)

-=-=-=-=-

And it’s just a slap in the face for the Appellate Division to cite to People v. Tankleff, 49 A.D.3d 160, 180-181, in support of its decision here. In Tankleff, the defendant showed there was a reasonable probability that, had all of the new witnesses testified at trial, the outcome would have been different, and the Appellate Division granted Tankleff a new trial. Here, the same thing happened. So at a minimum DiGuglielmo ought to have been awarded a new trial.

Instead, the court simply sent him back to prison, without even giving a jury the opportunity to evaluate all of the new and old evidence and witnesses.

This decision sends an awful and disturbing message: Innocence is irrelevant.

-=-=-=-=-

This week’s decision is one of the biggest screwups we’ve seen in a long time. And the result is tragic.

Think about it. The man was wrongly convicted in the first place, after a show trial making him a scapegoat of the racial politics of the day. He spent 11 years in prison, unjustly. But then justice finally prevailed, and he got his freedom back. He got to return to life and his family. And then, with a callous stroke of the pen, a badly-reasoned decision rips him away from that cherished freedom, and tosses him back into prison.

Going in the first time was bad enough. We can’t imagine how much worse it must be this time.

Badly done, Appellate Division.

[Our paralegal, Marty Tankleff (no stranger to unjust convictions himself) contributed to this piece.]

The Supreme Court today decided Graham v. Florida (opinion here), ruling 6-3 that it violates the Eighth Amendment’s Cruel and Unusual Punishment clause to sentence a juvenile offender to life in prison without parole, for a non-homicide crime. This is a hugely significant decision, creating a new precedent in sentencing law (and also forcing Florida to make some law of its own, as it did away with parole a while back).

(Companion case Sullivan v. Florida was dismissed, as certiorari was improvidently granted in light of the Graham decision.)

The opinions are a stirring read. Chief Justice Roberts, in the majority, was in strong opposition against his fellow conservatives Alito, Thomas and Scalia, who dissented. During oral argument, it was clear to observers that Roberts wanted to bring them into the fold and get a unanimous decision that youth deserves a second chance at some point.

Roberts couldn’t get them to agree, which must have been a disappointment to the Chief, who openly aspires to as much unanimity and consensus as possible on his Court. It moved him enough to write a scathing concurring opinion, taking to task the arguments of his conservative brethren.

Kennedy doesn’t let any of the conflict or disappointment show in his majority opinion, which is a balanced and philosophical treatise of the evolution of Cruel and Unusual Punishment law, and well worth reading.

(Had it been up to us, we’d have preferred for the Chief to write an opinion that stays above the fray, and leave it to others to write the criticisms of the dissents. That would free it of any taint of personal feeling.)

-=-=-=-=-

This was really an unexplored territory in American jurisprudence. The Supreme Court has long carved out exceptional scrutiny for capital-punishment cases, limiting when and how and to whom the death penalty can be applied. The Court has created a number of specific rules that can be applied in general, to every capital case.

But it hasn’t really done that with other severe punishments of lengthy or lifetime incarceration. All it’s said is that sentences shouldn’t be “grossly disproportionate” to the crime, without setting any general standards of what counts. Without any rules to follow, courts had to make this determination on a case-by-case basis.

This new rule is the first one of general applicability in a non-capital case. It is significant in and of itself, and also as a precedent for future similar rulings.

-=-=-=-=-

Terrance Graham was in his mid-teens when he and a group of friends went to rob a barbecue restaurant in Jacksonville. One of the kids hit the manager with a steel bar, and Graham ran away. Arrested and charged as an adult, he got 9 months in jail with 3 years of probation.

After he got out, Graham was arrested again for home-invasion robbery, and violating probation. Now 17, he pled guilty. The sentencing judge lectured him on his incorrigibility, said there’s nothing more that can be done to rehabilitate the boy, and sentenced him to life in prison without parole. “We can’t help you any further,” the judge said. He’d had a good family and community support, but he’d thrown away his second chance, so now “I have to start focusing on the community and trying to protect the community from your actions.”

-=-=-=-=-

Kennedy reminded us that the definition of “cruel and unusual” evolves as society matures. He pointed out the dichotomy between death penalty and other cases, and explored the meaning and history of proportionality jurisprudence.

So then he looked to see whether there was a national consensus here, as expressed by the people’s elected state legislatures. Six states forbid life without parole for juveniles. Thirty-seven more states as well as D.C. impose restrictions on it. Furthermore, out of all the juveniles nationwide doing non-homicide time, only 129 are doing life without parole, 77 of whom are in Florida. The others are in a handful of other states. So it’s rarely permitted in the first place, and rarely done in the second place. That sure sounded like a consensus to the majority, no matter what Florida might have argued to the contrary.

That consensus isn’t the be-all and end-all, however, of whether a punishment is cruel and unusual. It’s not up to the community, but up to the judiciary.

Kennedy next looked at the policy consideration of whether life imprisonment here serves any legitimate penological goals. This is where the whole “juveniles are less culpable than grownups” argument comes into play — a policy that a lot of people thought would be the biggest part of this case. Was the Court going to mess with our system of treating kids more leniently? Was there any reason to change the presumption that,

because juveniles have lessened culpability, they are less deserving of the most severe punishments.

As compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are “not as well formed.”

These salient characteristics mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”

Accordingly, “juvenile offenders cannot with reliability be classified among the worst offenders.”

A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.”

Kennedy readily found that there was no reason to reconsider these presumptions. So juvenile advocates can breathe a sigh of relief — Roper isn’t going to be overruled any time soon.

He then explained once again that murder really is different. Even the worst of the worst crimes that do not involve killing are not in the same category of bad as murder. Someone who doesn’t intend to kill just doesn’t have the same culpability.

So a juvenile already has diminished culpability. And if he didn’t try to kill, then he has “twice diminished moral culpability.”

Life without parole, Kennedy said, is the most severe punishment we have, short of death. And it’s not much less severe, as the lifer’s freedom is taken away forever. There is no hope. No chance of redemption, rehabilitation, reward for good behavior. It’s irrevocable.

That’s harsh enough for an adult, but it’s doubly harsh for a kid who’s got more decades of life ahead of him. It’s twice the punishment, if you think about it.

-=-=-=-=-

Kennedy then goes into a nice discussion of the purposes of punishment. There are plenty of purposes out there, including retaliation and vengeance and removal from the community. But the four that he recognizes as being legitimate in this day and age are Retribution, Deterrence, Incapacitation, and Rehabilitation.

Rehabilitation is off the table, of course, because there’s no hope of redemption in life without parole.

Retribution is an expression of the community’s moral outrage, or an attempt to balance the wrong that was done. In the case of a minor, that moral outrage is less, and the wrong doesn’t need as much punishment to balance things out. And it’s even less when the crime doesn’t involve homicide. So this isn’t served by life without parole, either.

You’d think that Deterrence would still be on the table, but no. The same characteristics that make kids less culpable make them less susceptible to deterrence. They don’t have the maturity to consider consequences as adults do.

Well, at least Incapacitation is served here. Not much could be more incapacitating than locking ‘em up and throwing away the key. But again Kennedy says no. You can’t say a kid is never going to change, that he’s going to be a repeat offender if you let him out. Kids are too malleable. “Incorrigibility is inconsistent with youth.”

[We’ve defended juveniles and adults for some time now, and with all due respect to Justice Kennedy, we’d have to disagree with him here. Sure, he’s right for the most part, but there really are kids who are truly incorrible. There really are some teens who never got socialized, and now it’s too late. They do not see you as a human being, and never will. They’ll hurt you or kill you, and never give you another thought as long as they live. They’re rare, but it’s foolish to pretend that incorrigibility is inconsistent with youth. It’s merely less likely. (/rant)]

-=-=-=-=-

So the Court decided to impose a categorical rule here, that life in prison without parole is unconstitutional for juveniles who didn’t kill someone.

Kennedy admits that “categorical rules tend to be imperfect,” but nevertheless concludes that “one is necessary here.” Can’t leave it up to the states, because we already did that and look at the dog’s breakfast Florida came up with. Can’t let the courts decide this case-by-case, because brutal cases will override the sentencing court’s ability to mitigate for youth, and juveniles are notorious for not being mistrustful of adults and not being able to work effectively with counsel, so there’s a high risk of the court getting it wrong.

And finally, this rule would give every juvenile offender the second chance that juvenile justice is designed for in the first place. Life without parole offers no second chances, defeating the whole point of treating kids differently in court.

-=-=-=-=-

Well hell, son, that’s all you had to say.

Last night, we attended a domestic violence forum sponsored by the Children’s Aid Society here in Manhattan. We’ve been involved with the CAS for many years, and they do some pretty awesome things for kids in intense situations. And domestic violence is a deep and complex social issue we come across plenty. So we figured it might be worth checking out, and maybe come away with some new insights.

It was, and we did, but not in the way we’d expected. There was very little discussion of the causes of domestic violence, the various patterns of behavior of abusers and victims, what actions work to stop it and what doesn’t work, and challenges to be overcome in reducing the incidence of domestic violence. Those are sort of the kinds of topics we expected a domestic violence forum to get into, but unfortunately the talks were pretty much surface discussions of what the speakers do in their jobs, and the kinds of things they deal with.

That’s okay, we guess. The speakers were social workers, and most of the audience seemed to be social workers. So it’s probably nice that they got to hear what others in their field are seeing. But for anyone with a passing familiarity with domestic violence issues, there wasn’t much we’d consider enlightening.

Except for one thing.

-=-=-=-=-

Some in the audience expressed concern about getting ACS (our child-protective-services agency) involved, especially in cases of spousal abuse. They felt uncomfortable, even guilty, knowing that ACS — like pretty much every child-protection agency you’ve ever heard of — is more likely to do harm than good to the families it breaks up, by taking the children away. A mother who’s already being victimized by her husband or boyfriend now gets doubly victimized by losing her children, and the children are traumatized for life. “How can we justify getting ACS involved,” they wanted to know; “how can we live with ourselves afterwards.”

The unanimous response from the panelists was yeah, it feels bad, but you can’t blame yourself for making the call. It’s the abuser’s fault, not yours.

-=-=-=-=-

Where to begin with that attitude? It neatly summarizes everything that is wrong — not just broken, but wrong — with the way we handle domestic violence in this country.

Now believe us, we are fully aware of the horrific abuse that some spouses and children suffer. There are absolutely cases where the best thing to do is get the kids the fuck out of the house. But most cases aren’t like that. More often than not, kids are hauled into foster care or some other form of detention. They’re torn from their parents, suffering very real soul-raping trauma, something no child deserves. They’re taken away from the home “where the love is” (as one of the panelists put it), and forced to live in essentially state custody, in often non-nurturing environments where they get to lose something like one IQ point for each month they stay there. And the trauma is life-changing. Permanent. It cannot be undone.

Well, at least that doesn’t happen to kids unless there’s good reason for it, right?

Well, no. That’s not right at all.

You see, that social worker at the hospital is going to call in ACS if she merely suspects the kid might be in danger. Mere suspicion is enough. There need not be any actual proof. Panelists gave examples of what might justify their suspicion: a child is clinging a little to her mother, a child’s tone of voice, subtle body language. Seriously, that’s all it takes.

And what kind of danger are we talking about? Not necessarily the obvious stuff. Not a danger that the kid herself is being hit or anything. No, the kid’s in danger of (get this) witnessing her mother being abused.

And what kind of abuse are we talking about? Hitting, sure. But also name-calling, that counts too. Being mean, that’s psychological abuse. Restricting how much money the wife gets to spend, that’s abusive. Being bossy about how the wife dresses, that’s abuse too. Basically anything that can be interpreted as the man trying to have some kind of control over the woman counts as abuse.

So if the social worker gets a hint that the kid might be witnessing Daddy calling Mommy names, the social worker gets to call ACS. And the kid gets taken away. And that family is destroyed forever.

And get this, too: The social worker is perfectly justified in reporting Mommy for mistreating her kids. Mommy’s the one being abused, sure, but the kids saw it! She’s guilty of failing to protect them from witnessing her getting abused. Words from the panelists, I’m not making this shit up.

And the social workers get to sleep at night, because they can tell themselves it’s not their fault, it’s the abuser’s fault. At least, the fault of the guy they sorta kinda suspected might be an abuser.

You think that doesn’t happen? You bet your ass it happens.

-=-=-=-=-

Another staggering comment was about situations where a woman makes a false allegation of abuse. We all know it happens. When we were in the DA’s office, we got trained on dealing with this kind of situation, the false accusation, because we all know it happens. Happens in rape, too. There’s this certain subset of women who, for reasons of control or embarrassment or vindictiveness, will try to get the guy in trouble with the law. Maybe they want to get back at him for breaking up with her. Maybe they had sex they now regret. Maybe they want to show they guy who’s boss. Whatever the reason, they call the cops.

And now they’ve started a process they can’t stop. The system rolls in, and rolls over everything. The guy gets arrested. There’s an order of protection. He can’t come home now. He can’t help with the kids. He can’t talk to her. Maybe the kids get taken away, to get them out of the situation. Maybe the guy goes to jail, gets a record, maybe not. She can cry all she wants that she wants him home again, but it’s not her call any more. The machine cannot be turned off. And at the end of the day the family is destroyed over something that never happened in the first place.

This happens, sure, but how do you tell that situation apart from the equally common situation where a woman really is being abused, and she makes up stories to try to get back together with the abuser?

That’s a real problem. You’ll get a woman who needs that relationship, no matter how badly she gets hurt. You put her in a shelter, secret and safe where she and other victims like her are hidden from the men who would hurt them, and she’ll call her man to come get her, ruining the secret for all of them. Sometimes, that kind of relationship is just all they know, they grew up seeing that kind of relationship. More often, it’s a psychological addiction. The make-up periods after each incident are so good, she needs them. So she keeps going back. The abuse gets worse each time, but so do the make-ups. And if something isn’t done in time, she’ll wind up dead. That happens, too.

So how do you tell them apart? It requires some real judgment and probably some pretty specific training, so we were curious to find out how the experts try to spot the false accusations from the false retractions.

We asked one of the social workers, after the function. And we were told that this is a false premise: there is no such thing as a woman who alleges abuse where none occurred. If a woman says it’s happening, then it’s happening.

When pressed to at least consider the possibility of a false allegation, which we could attest to from cases we’ve actually handled, the social worker said it doesn’t matter. If someone’s making that kind of allegation, then something has to be happening at home that justifies state action.

Yes, something is happening. It’s a failure to even look for the possibility of innocence.

It’s bad enough when the police do it. But at least with the police there is some recourse through the criminal process. But in the bureaucracy of public social manipulation work, there’s nothing we can do but watch with dismay as injustice piles on injustice.

-=-=-=-=-

These injustices are only a symptom, of course, of a broader illness.

It’s the result of putting too much power in the hands of people who can’t handle it. We know they can’t handle it, so we don’t give them a lot of leeway to exercise their judgment. We’re afraid that, if the people in these jobs were given discretion, they’d abuse it or misuse it. So to minimize injustices, we give them bright-line rules to follow, and take away their discretion.

But it is precisely that, the bright-line rule, which causes injustice. A person without discretion, who knows that a certain call is unnecessary or unjust, or who simply feels in their gut that it’s wrong, still has no choice. They must either do the wrong thing, or get in trouble. So they do the wrong thing.

This is, of course, an appealing situation for those of a nastily bureaucratic mindset. Little people who have their one bit of authority in this world, and who delight in using that power, because it’s all they have. When they’re just reviewing filings at a clerk’s office, or telling you you’re in the wrong line at the DMV, they’re merely an annoyance. But when they have the power to fuck up your life, they are dangerous.

It’s an appealing situation for that kind of person, so guess what kind of person is drawn to the job? We’re not saying all, or even most social workers in these roles are anything like that. It doesn’t matter. The point is that enough of them are. And plenty more simply lack the guts or judgment or experience to do the right thing.

We place far too much authority in the hands of people who can’t handle it. So it should be no surprise that injustice is routine.

With power must come the discretion to exercise it. And the greater the power to mess with people’s lives, the more discretion must be given. That’s why prosecutors are given so much discretion. Social workers need to be given that discretion as well.

And they need to be more carefully chosen. The people at the function last night were all very smart and capable. But let’s face it, this particular field doesn’t always get the best and brightest. That’s why we have these bright-line rules, again. Because we recognize they’re not the best or the brightest, so we can’t trust them to do the right thing, so we give them a command that requires no judgment, only mechanical reaction. Hiring people based on their ability to exercise good judgment would do much to make the problem go away.

-=-=-=-=-

We’ve probably just offended a significant chunk of our readers. That’s okay, we’ll still sleep well tonight. It’s not our fault, it’s just this system and that lying son of a bitch, Johnson! We would never hurt you. You know that.

But please feel free to respond and let us know how you feel.

So we took a few minutes just now to check out some headlines with Google’s “Fast Flip” news browser (which, by the way, is super-cool). And this headline totally caught our eye: “Some Sex Crimes Get a Pass – Why?”

That’s a damn good question! What do you mean, some sex crimes don’t get prosecuted — that’s appalling! Either the crime is something society doesn’t think worth punishing, or prosecutors aren’t doing their job! So we checked it out.

What we found instead was a totally inane article on the Huffington Post, leading off with the following lines:

Sometimes the simplest sounding questions spark the most profound discussion.
What’s our purpose on earth?
Why is the sky blue?
Why do we have a statute of limitations on sex crimes?
I mean, really, why give the criminal any break at all? By placing a limit on how far back the prosecutor can go to punish a sex predator aren’t we telling countless victims that the justice system doesn’t apply to them?

The author, one Diane Dimond (titled “Modern day journalist,” whatever that means), asked around and got some decent answers. Connecticut defense attorney Mickey Sherman explained that statutes of limitations protect people’s right to be notified in a timely manner that they could face criminal charges. Prosecutors from New Mexico and California explained that legislatures decide how long a statute of limitations ought to be, reflecting what the people think is fair.

So what did Ms. Dimond conclude?

I came away thinking the real answer as to why we allow this is because that’s the way it has always been done.

Fortunately for the rest of us, she and victim advocate Wendy Murphy have a solution:

Someone … needs to confront the head of the judiciary committee in every state legislature where the time limits are short and ask only one question: “Why do you want a child rapist to EVER stop looking over his shoulder, wondering if the cops have finally caught up with him?”
…
There is no Statute of Limitations for murder or treason and I would submit sexual assault is just as life-damaging and heinous a crime. Let’s demand we abolish this foolish statute.

Hmmm. How about we don’t.

First of all, if you’re concerned about a child rapist, the clock won’t even start ticking on that statute of limitations until the kid turns 18. That, plus the 7- 10- or 15-year period most states have, would probably be plenty of time for someone to bring it up.

Second, nobody in their right mind disputes that rape can be a horrible thing. But to equate it to murder or treason (which in the U.S. means trying to get Americans killed in wartime) shows a remarkable lack of judgment and perception. Nothing is as remotely “life-damaging” as forcibly taking the life of another.

See, there’s a concept that some things really are worse than other things. Not everything is equally bad. Shoplifting is not a good thing, either. Do you want to have to “look over your shoulder” for the rest of your life because you stole a pack of Fruit Stripe twenty years ago? Of course not.

No, at some point you’re going to want to be able to just get on with your life. At some point, society is going to recognize that you need to move on without worrying about whether you could face criminal penalties — which typically involve the loss of liberty and property.

Also, if society really wanted to punish you for your offense, and if the victim really wanted to go after you for it, then it’s going to happen sooner rather than later. If nobody has bothered to bring it up for ten years, should you really be forced to worry about someone springing that gum theft on you ten more years from now? Of course not.

We as a society recognize that this would simply be unjust. And that’s why we have statutes of limitations. Not because “that’s the way it’s always been,” but because that’s what we happen to think is fair.

Now the statute of limitations for stealing a pack of gum is going to be pretty short. It’s not the crime of the century, so if anyone wants to prosecute you for it they’re going to have to do it within a year or two.

As crimes get more and more severe, their limitations periods get longer. The absolute worst crimes — taking another’s life, and warring against one’s own society — get no limitations period.

Rape is pretty damn bad, though. So most states give it a pretty long limitations period — 7, 10 or 15 years are common.

And guess what: Some states actually don’t have any limitations period for the worst rapes. Alabama, California, Delaware, Florida, Idaho, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Jersey, New Mexico, North Carolina, Rhode Island, South Dakota, Vermont, and Virginia all permit the worst rapes to be prosecuted at any time. That’s 19 states that already do just what Ms. Dimond wants.

Does that mean the other states are backwards or wrongheaded? Of course not. One of the beauties of American government is that people in different parts of the country get to write their own laws, to reflect their own local mores. Something that’s a crime in New Mexico might be perfectly legal and encouraged in Ohio. The people, through their elected legislatures, get to write the laws that suit them best. And as times change, they can modify their laws as they see fit.

So the fact that New York has a 5-year statute of limitations means that’s how long New Yorkers are willing to give for an adult victim to come forward, the police to figure out whodunit, and charges to be filed. If New Yorkers thought it would be fair to all concerned to extend that period, they could do so. Or they might decide that Utah has it right, and reduce the time to 4 years.

By all means, if you think a law should be changed, write your legislators and tell them so. But try to give them better reasons than what the HuffPo posted there.