There’s an old joke that captures the problem pretty well:
I love humanity.
It’s people I can’t stand.
And while you may be unable to see the connection, it’s painfully obvious to those calling the shots. You are full of empathy, until you’re not.
In a twitstorm, Fordham law prof John Pfaff pointed out a reality that has long been clear to those of us engaged in criminal law, but miraculously eludes the unduly woke. It discusses a poll showing that Americans, by a margin of 85% to 13%, favor rehabilitation as the goal of the criminal justice system.
And of course you do. Except when you don’t.
Prove it? Okay. Stanford lawprof Michelle Dauber’s jihad against Brock Turner, culminating in her effort recall Judge Aaron Persky for being too lenient in sentencing. More? Fair enough. The feminist adoration of Judge Rosemarie Aquilina for wishing prison rape upon Larry Nassar. Too female-focused? Then Tyrone Howard. And, of course, the classic, Willie Horton, that ended a run for the presidency.
Maybe you forgot about them. Maybe, in your head, they feel different, and so you can pretend they don’t count because, you know, feelings. But to the people running the system, the message has long been clear.
8. The former head of the NYS parole board basically admitted that the main factor is “will this case put me on the cover of the Post”? https://t.co/kwA7NmJjI1 pic.twitter.com/RCYonPqrEU
— John Pfaff (@JohnFPfaff) January 26, 2018
Do what people claim they want you to do and you’re their hero, until your not. It’s all premised on your fantasy of love and tolerance, which lasts until that one case, that one defendant, goes viral and the unprincipled mob inexplicably flip flops on you. Your face appears on the front page of the New York Post as America’s worst person ever.
Unprincipled people are fickle. They deny their facial inconsistency, they suffer no cognitive dissonance. When their outrage is fueled by emotion rather than thought, they need nothing more than a sad feelz to go from loving defendants to hating them, from rehabilitation to ever-longer, ever-harsher sentences. And there’s no arguing with the mob, mostly because there’s no arguing with the mindlessness of feelings. They are certain and absolute in their fury, and it never bothers them that they make Kafka cry.
You pretend to be kind and empathetic, because that’s how you want to see yourselves. You wear your empathy like cute shoes, something for the other kids to admire and gush over, but easily removed when they start to hurt your toes. Who are you kidding, other than yourselves, of course?
Recently, New York County District Attorney Cy Vance enjoyed a moment of social justice cooing when he announced that he would be ending cash bail for “most” misdemeanor defendants. This followed a similar announced policy by Kings County District Attorney Eric Gonzalez. The deeply empathetic audience applauded these announcements, which was great because that was all they got, announcements. Beyond that, everything continued as it always did. Cash bail sought. Cash bail imposed. Kalief Browder was still dead.
The cost was negligible. As much as people hear the announcements of good things and pretend that someone saying so means it’s actually going to happen, there are few people who keep their eye on the ball to see if our public servants do what they say they’re going to do. Short attention span? Lack of interest? Too many issues of interest to spend much time with any particular issue?
The “why” may vary, and doesn’t really matter anyway. You applaud the announcement and move along, never looking back to see whether the hero of the moment actually performs. And the district attorneys know it, so they know all too well that they can get the pop out of populism without having to actually take a risk of their very woke idea blowing up in their face.
Wait what? Blowing up in their face? Never. We want them to be woke. We’re woke. We support woke. Woke is wonderful!
Please, grow up. Eventually, one of those defendants will be released without bail, released on parole, have his sentence commuted, and will go out and rape, or murder, or maim someone who, for some reason, captures the interest of the mob. And you’ll scream for someone’s head. Something must be done! Someone must pay! Burn the witch. Destroy the system. What about the victims?!?
As Pfaff notes, and as every player in the legal system is painfully aware, the downside to cries for empathy is that, eventually, something truly awful will happen. There will be no crime wave, no epidemic, but we tend to be less influenced by statistics than a single sad story. We do so love our sad stories, even if we can’t seem to put them in context.
Not everybody who becomes embroiled in the legal system is a sad, innocent, wronged person. The harsh reality is that there are some bad dudes out there, and they get busted. When they’re cut loose, they go back to being bad dudes. It happens.
If we had a mature grasp of the system and humanity, we would realize and accept this fact, that there will be people who will enjoy the benefit of our empathy and then burn us for our kindness. We would not hold a prosecutor, judge, parole officer or mayor responsible for doing what we ask and it going south. It happens. It will always happen.
And yet, we can’t seem to let it happen. To accept the premise that reform requires a certain degree of risk that it won’t always work out the way we hope it does, that there will be mistakes, there will be harm, there will be outcomes that fail to comport with our rosy aspirations, require our adherence to principles and our ability to think rather than just feel.
For the people charged with doing the nasty work of dealing with crime and criminals, as well as good people caught up in a lousy system, their faces never appear on the cover of the New York Post for failing to take a risk. But have one thing go wrong and they become the target of shrews like Dauber.
And in the alternative, burn someone reviled like Larry Nassar and the caption below your flattering photograph is that you’re the hero of the mob’s hatred and incarceration. Who’s to blame for incarceration nation? Not you, of course. Liar.
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I thought the joke was “That’s the thing about WASPs, they love animals; can’t stand people.” From the movie Wall Street. The gist of the problem is to take the emotion out of it — if Belichick was in charge of judges, he might tell them, “Just do your job. Do your job. Obey the law, obey the U.S. Constitution.” The reality is that the American public absolutely does not care what goes on in the system unless they are standing in the cheering section for some judge putting away what society deems a “monster.” For the last 20 years or so, politicians have been putting these misandrous old feminazi judges on the bench and now half of us wonder why we get aberrations like Aquilina making a circus out of a simple hearing.
An early, but strong, contender for today’s Billy Madison award.
You snuck the FN word in there Earl. Congatulations! Whenever, I use the same word, the host deletes. Been there, done that. I can name names. (The four-letter word referring to Sir Adolf H is prohibited here. All other four-letter words are game.)
I was on the verge of deleting Earl’s comment for just that reason, but decided to let it slide as an example of the failure of inductive reasoning. On the one side, there’s the “meteor strikes earth, women most affected.” On the other, “judges are bad, feminazis are the worst.” It’s worthwhile to show how people dive down the rabbit hole on occasion. You’re different, Bill.
Eh, most male judges aren’t so bad. Unless they aid and abet the FN judges. Then they become Arnold’s “girly-men.”
Sit down, Earl. I have something to tell you and it’s going to make you sad.
I hear ya. I only have to think of David Hamilton covering for Tanya Pratt and Jane Magnus-Stinson.
Just as some women obsess about their marginalization, seeing only their problems, some guys see only the opposite. That makes you Arnold’s “girly man.” You just can’t see it through your tears.
If the justice system in involved, I prefer “Sit down. I got some bad news that’s gonna hurt”
from ” The Night the Lights Went Out in Georgia”
We each have out own way. That’s mine.
This essay calls to mind Norman Mailer’s spearheading the successful bid for Jack Abbott’s release for parole, 1980. He wrote a book about prison conditions: In the Belly of the Beast, based on communications with Abbott about same. Six weeks after release, Abbott murders 22 year-old Richard Adams on the streets of Lower Manhattan. Mailer did not write about that, but later publicly regretted his involvement and the whole affair.
You are in the mood this morning, and early. Obviously, this topic has been bothering you for some time. Separating the sheep from the goats is an ongoing challenge. Meanwhile, members of *humanity* who should not be there, rot in our prisons. Been there, done that. The baaastards who would be so humanitarian! It is a conundrum without answers. Thanx for the update.
Obviously?
I guess that puts me in the minority again. I wouldn’t agree that anything should be the singular goal of the criminal justice system (it serves, and should serve, multiple goals), but the foremost goal among them should be punitive. Rehabilitation is good, and a worthy goal, but punishment for wrongdoing would be a higher priority.
The goals of criminal sentencing are defined:
1. Specific deterrence.
2. General deterrence.
3. Isolation.
4. Rehabilitation.
5. Retribution.
Which takes precedence in any given instance depends on the nature of the offense, facts of the case and the individual. What best serves society is to eliminate harm, which is usually seen as rehabilitation as its the most effective means to reduce recidivism. Retribution (punishment) may feel good, but tends to contribute little to society other than fulfilling people’s blood lust for revenge.
I don’t have a lot of faith in prisons as institutions that “rehabilitate” people. If I had to serve as a judge, I wouldn’t be very good at fitting that one into the sentencing decision.
As Judge Kopf has informed me, there is no mention in 3553(a) about rehabilitation, and thus no expectation of the Bureau of Prisons to exceed its mandate.
It is nice to know that someone has a realistic view of rehabilitation.
I would like to provide some historical background related to a tweet by John Pfaff that SHG posted on Saturday.
John Pfaff @JohnFPfaff Jan 26
12. Police are paid by the city, DAs by the county. Jails and probation are county costs as well. But prison? That’s paid for by the state. To a DA or county judge? It’s CHEAPER than probation or jail time.
In the process of looking up old data on prison populations I read wardens reports to their respective state legislatures and articles by legal historians. The first state prisons were the Newgate Prison in New York and the Expanded Walnut Street Jail in Philadelphia that held both county and state prisoners. The legal historians said that a soon as a state prison opened it was filled by moving prisoners from county workhouses and camps to the prison.
The counties did not want to pay to incarcerate felonies and the states did not want to pay for pretrial detention or misdemeanor incarceration. Today it depends on the state who pays for community supervision it could be the county, the state or both. One of the important features of the present system is that the county pays for pretrial detention that for the most part is caused by the city police.
This pattern started to emerge in 1800 when I estimate there were about 1,000 state prisoners and was fully established by 1880 when the census reported there were 30,700 state prisoners a growth factor of 30.7. During that time interval the US population grew by a factor of 9.5.
Using Bureau of Justice Statistics reports for FY 2015 and FY 2106 it appears that there were 6.6 times as many pretrial detentions as there were inmates serving jail and prison sentences. A confusing feature of jails is that some individuals are detained more than once in a single year. It is very difficult to determine the public sector costs for pretrial detention and the private sector costs are unknown. Obviously the societal costs of 11 million pretrial detentions per year are very high.
Interesting background. Your takeaway?
I think there are at least four sets of jail and prison inmates.
Those held
1) in jail less than a week.
2) in jail more than a week.
3) in prison less than three years.
4) in prison more than three years.
The ones that should not be there are most likely to be in sets 1 and 3. 400 counties account for most of those in sets 1 and 3 so we don’t have to deal with 3000 counties if the legislatures want to change things.
What about a fifth set, those in prison over ten years? While the narrative that lengthy prison sentences deter crime remains intact, my experience is that ten years is the turning point for most defendants. It’s an extremely long time, which for reasons that elude me, people outside refuse to grasp.
The irony is that those held less than three years are far more likely re-offend than those held more than ten years. Most of those held more than ten years were under 21 when they were admitted to prison and they tend to age out of criminal behavior. However it only take a few well publicized heinous crimes to get the penalties increased.
The combination of fear and ignorance always seems to produce Menckian solutions. And once there, it’s very hard to admit the solution is wrong and undo the damage.