Tough On Crime But Hard On Justice

     This blog includes the attached opinion column, which reminds me of why I wrote my book, Justice or Just This?: A Constitutional Trespass. The Reading Eagle has carried the weekly column of Leonard Pitts Jr. for several years. Exactly two years ago last Sunday, Mr. Pitts wrote an editorial piece that coincidentally underlines the theme of my book. It is my belief that after serving as judge for 22 years, that the other two branches of government have trespassed on our Constitution and have controlled judicial sentencing to the point of substituting their judgment for that of the sentencing judge. This conclusion is reached based on two authoritative factors both created by laws passed by the other two branches (executive and legislative) solely to control judicial sentences:

          1) Mandatory-minimum sentences are imposed by either the legislature or the prosecutor, not the judge. The three branches of government balance and check one another: legislative, executive, including the prosecuting district attorney, and the judiciary. How is it constitutional for another branch to mandate that the judiciary impose a minimum sentence in a case if there is a guilty plea or verdict? 

          2) The Pennsylvania Commission on Sentencing recommends sentences that unfortunately we judges consistently follow 90 percent of the time in all sentences imposed in Pennsylvania. A sentencing commission concept is at best a good idea going terribly wrong. They have existed in every state and in the federal government. 

     I continually inquire as to who does the sentencing in the Commonwealth. Pennsylvania is not alone, as Pitts points out. He cites other examples of injustice from different parts of the country. Please keep in mind that the term ‘prison overcrowding’ is a recent phenomenon that began immediately after the Pennsylvania Commission of Sentencing became law in 1982. Within two years, Pennsylvania began building more new prisons (16 in the next 14 years) than the eleven built during the entire 160 years before 1982!

 

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Nation Got Tough on Crime and Hard on Justice
By Leonard Pitts Jr. (published 5-25-12)

 

 The people got sick of it, all those criminals being coddled by all those bleeding heart liberal judges with all their soft-headed concern for rights and rehabilitation. And a wave swept this country in the Reagan years, a wave ridden by pundits and politicians seeking power, a wave that said, no mercy, no more. From now on, judges would be severely limited in the sentences they could hand down for certain crimes, required to impose certain punishments whether or not they thought those punishments fit the circumstances at hand. From now on, there was a new mantra in American justice. From now on, we would be tough on crime. 

We got tough on Jerry Dewayne Williams, a small-time criminal who stole a slice of pizza from a group of children. He got 25 years. We got tough on Duane Silva, a guy with an IQ of 71 who stole a VCR and a coin collection. He got 30 to life.

We got tough on Dixie Shanahan, who shot and killed the husband who had beaten her for three days straight, punching her in the face, pounding her in the stomach, dragging her by the hair, because she refused to have an abortion. She got 50 years. We got tough on Jeff Berryhill, who got drunk one night, kicked in an apartment door and punched a guy who was inside with Berryhill’s girlfriend. He got 25 years. 

Now, we have gotten tough on Melissa Alexander. She is a Jacksonville, Fla., woman who said her husband flew into a violent rage and tried to strangle her when he found text messages to her first husband. She fled to her car, but in her haste, forgot her keys. She took a pistol from the garage and returned to the house for them. When her husband came after her again, she fired into the ceiling. The warning shot made him back off. No one was hurt.

Like Shanahan before her, Alexander was offered a plea bargain. Like Shanahan, she declined, reasoning that no one would convict her under the circumstances. Like Shanahan, she was wrong. 

Alexander got 20 years for aggravated assault. And like Shanahan, like Berryhill, Williams, Silva and Lord only knows how many others, she received that outlandish sentence not because the judge had a heart like Simon Legree’s, but because the judge was constrained by mandatory-minimum sentencing guidelines that tied his hands, allowing no leeway for consideration, compassion, context or common sense. 

Judge Charles Smith, who sent Shanahan away, put it best. The sentence he was required to impose may be legal, but it is wrong. 

The Eighth Amendment prohibits cruel and unusual punishment. In a nation where we execute people based on nothing but eyewitness testimony, it is hard to imagine what meaning that prohibition holds. But assuming it means anything, surely it means you can’t draw a 20-year sentence for shooting a ceiling. 

In restricting judges from judging, we have instituted a one-size-fits-all version of justice that bears little resemblance to the real thing. It proceeds from the same misguided thinking that produced the absurd zero-tolerance school drug policies that routinely get children suspended for bringing aspirin to class. There is this silly idea that by requiring robotic adherence to inflexible rules we will produce desirable results.

It should be obvious how wrong and costly that reasoning was and how urgently we need to roll back the wave that swept over us. It is understandable that the nation wanted to get tough on crime. But we have been rather hard on justice, too.