Even though it was written in the dark ages (1955-56), if you have not read “Howl” by the poet Allen Ginsberg, it is way past time you do so. You can read the poem here or listen to Ginsberg read it here.[i]
The poem starts like this: “I saw the best minds of my generation destroyed by madness, starving hysterical naked, dragging themselves through the negro streets at dawn looking for an angry fix . . ..”
I recently heard twin echoes of “Howl” at a sentencing of a Native American who accidentally killed his African-American friend. And it is about that profound experience that I now write.
I despise Indian Country. By that, I mean the Indian reservations. Such barren places are mostly worse than any slum Ginsberg roughly romanticized in verse. They are, as a general matter, dark and despicable places where degradation and depravity are matters of protocol. Unlike the “negro streets,” golden-haired hipsters do not tread on reservations. There, depredation of the soul is de rigueur. It cannot be baked out no matter how hard Yale educated do-gooders try. I wish it were otherwise, but I have seen (and, as you will learn, heard) too much to be convinced otherwise.[ii]
It was a new experience for me to try a criminal case involving motor-vehicular homicide. But then, Indian Country is an odd place and it brought me one such case. See 18 U.S.C. § 13 and Nebraska Revised Statute § 28-306. After a non-jury trial[iii] on stipulated facts, I found a young Native American guilty when he reached back from the driver’s seat to grab a beer, and the car rolled and burned. His African-American friend died.
The young offender stumbled away and was not located until many hours later. The government could not prove that he was drunk because by the time he was tested his blood alcohol level was 0.00. Thus, the offender was guilty only of a misdemeanor (essentially reckless driving resulting in death).
The maximum sentence was a year in prison. I imposed that sentence without hesitation. Supervised release was mooted when I imposed the maximum prison sentence. Both lawyers agreed that while I could technically put the young man on one year of supervised release plus a prison sentence, I could not send him back to prison if he violated supervised release because I had previously imposed the statutory maximum prison sentence.
Under federal law, there is something called the Crime Victims’ Rights Act (CVRA). 18 U.S.C. § 3771. That law stipulates, among other things, that “victims” are entitled “to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.”[iv] (Italics added.)
So, as I just indicated, I proceeded to sentence the Native American offender who was responsible for the death of his black friend on a godforsaken stretch of Bureau of Indian Affairs road on a godforsaken Indian reservation. The prosecutor advised the AFPD and me that the victim’s mother would be present and she wished to be heard. I grumbled, albeit under my breath, but understood that pursuant to the CVRA she had a right to do so. And into the court room we went.
There were no spectators save for the mother of the victim and her daughter, who sat weeping as I took the bench. When it came time, sitting next to the prosecutor, the victim’s mother began. She was barely capable of speaking through her tears and snot and the self-flagellation of her own chest.
She scarcely composed herself enough to speak directly to the defendant. She told him of her pain. She told him of her son’s child born after her son’s death. She told him of her initial hatred and she told him of her later forgiveness. She demanded that he look directly at her and speak directly to her. I did not intercede and the AUSA and AFPD, sensing something positive, did not object.
The Native American man and the African-American woman then looked into each other’s eyes (and perhaps their souls) and conversed in short and ragged semi-literate fragments, each barely able to gulp air between their words. Tears streamed down the face of the young Indian whose skull exhibited all the outward appearances of fetal alcohol syndrome.
I cannot unhear the howls of the African-American woman and the Native American man. But, here is the strange thing. I am not sure I would unhear their pained rantings even if I could. I might even go so far as to say hearing what I heard was a rare privilege. But then you might accuse me of having empathy. I’d hate that almost as much as I hate Indian Country.
Richard G. Kopf
Senior United States District Judge (Nebraska)
[i] The poem contained these words about individuals “who let themselves be fucked in the ass by saintly motorcyclists, and screamed with joy.” That made the poem obscene according to San Francisco prosecutors. However, Lawrence Ferlinghetti, who published the poem and sold it, and who was himself a poet, was acquitted when, in 1957, a judge found the poem was not legally obscene. See, e.g., Joel E. Black, Ferlinghetti on Trial, Boom, A Journal of California, Vol. 2 No. 4, Winter 2012; (pp. 27-43).
[ii] Do me a favor. Don’t comment, tweet or twit that I am grossly insensitive to the travails of poor yet noble Native Americans. Stercus accidit, and justice writ large is for children or grossly naive pseudo-adults. It just so happens that our Native brethren received more than their fair share of shit. So what? That is all the Gertruding I am willing to engage in.
[iii] The excellent and experienced AFPD insisted on a non-jury trial to spare the defendant, to the extent that was possible, from civil liability. Since the defendant had made admissions to the FBI about the reckless nature of his driving, a jury trial would have been a waste of time and everyone knew it.
[iv] If victims need catharsis, my general view was, at least until this case, that they would be better to seek it someplace other than in my courtroom.