Judge Baker’s 241 Regrets

The Supreme Court will consider whether to grant certiorari to Bobby Bostic. It’s a case that cries out for appeal as a flagrantly excessive punishment in desperate need of fixing. But that’s not what the Supreme Court does, despite the fact that it could and should face a bad legal outcome and correct it.

It’s a pompous Court, a Court that announces big issues of legal doctrine. It’s not a janitor court that cleans up the mess the system left behind. It’s too important to deal with the mere details of lives wrongly ruined. Correcting error is too trivial for the Supremes, rock stars of the legal world whose time and attention are far too valuable to be squandered on simple error. Even retired Missouri circuit court judge Evelyn Baker’s admission isn’t likely to help.

“You will die in the Department of Corrections.” Those are the words I spoke as a trial judge in 1997 when I sentenced Bobby Bostic to a total of 241 years in prison for his role in two armed robberies he committed when he was just 16 years old.

The crimes were ugly. Forget the fantasy descriptions of the maligned poor and downtrodden, and think this was not a kid you would have wanted to meet on the street at night.

Bostic and an 18-year-old friend robbed a group of six people who were delivering Christmas presents to a needy family in St. Louis. Two shots were fired. A bullet grazed one person, but no one was seriously injured. The two then abducted and robbed another woman — who said she was groped by Bostic’s accomplice before the two released her. They used the money they stole from her to buy marijuana. Despite overwhelming evidence against him, Bostic chose to go to trial. He was found guilty.

In 1997, Bostic’s case was an easy decision, a slam-dunk conviction followed by a throwaway sentence. We’d had enough of evil kids and we wanted them gone forever. And Judge Baker did what an angry society demanded of her.

I told him: “You are the biggest fool who has ever stood in front of this court. . . . You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice. . . . Your mandatory date to go in front of the parole board will be the year 2201. Nobody in this room is going to be alive in the year 2201.”

If this makes us cringe today, be circumspect. These shallow and harsh words, and the thundering applause in the background, haven’t gone away. We’ve just changed the head on the corpse. But in 1997, the head looked like Bobby Bostic, and everyone rejoiced at what a fine job Judge Baker did in sentencing this kid whom nearly all agreed was terrible and needed to die in prison.

Now, the cert pending before SCOTUS, Judge Baker confesses error.

I thought I was faulting Bostic for his crimes. Looking back, I see that I was punishing him both for what he did and for his immaturity.

This is somewhat right, but still misses the mark. She didn’t just punish him for what he did, but as the tool of society’s anger toward crime. Ever longer, ever harsher, sentences were going to fix the problem, end crime and make everything better. If ten years didn’t do it, then 20. Or 50, or 241. If nothing else, no one would ever be bothered by Bostic again, and that was exactly what everyone wanted. Yay, Judge. Throw the kid away.

This wasn’t punishing Bostic for what he did. This was ridding society of Bostic. This was playing to the angry mob. Back then, the mob demanded we throw away Bostic. Today, we still have the mob and it still demands we throw defendants away. Just different defendants, because the mob learns nothing from history and believes this time, this time, its hated defendants deserve it.

I am now retired, and I deeply regret what I did. Scientists have discovered so much about brain development in the more than 20 years since I sentenced Bostic. What I learned too late is that young people’s brains are not static; they are in the process of maturing. Kids his age are unable to assess risks and consequences like an adult would. Overwhelming scientific research shows that children lack maturity and a sense of responsibility compared with adults because they are still growing. But for the same reason, they also have greater capacity for reform.

This, too, is somewhat true but not really. Even in 1997, judges knew that kids were still kids, immature, stupid, prone to doing monumentally bad and stupid things as a result of their being dumb kids. Sure, science has made strides in brain development since then, but to suggest that this wasn’t known is nonsensical.

What’s missing from Judge Baker’s attempt to rationalize her sentence is that we didn’t care. She didn’t care. He made his choice and she, the avenging angel of the judiciary, was going to drop the bomb. And she knew that it would be publicly received with appreciation and applause. No Persky for her. The harsher the better to rid society of this blight of child superpredators, amoral sociopaths who would only grow to be more violent, more vicious, more dangerous.

Yet today, Judge Baker has regrets, as the view in her rear view mirror is so much clearer than her rage-filled view of Bostic standing before her. Suddenly, his youth matters where it meant nothing before.

That’s perhaps not surprising. As a society, we recognize that children and teens cannot and do not function as adults. That’s why below a certain age you cannot vote, join the military, serve on a jury or buy cigarettes or alcohol.

A 16-year-old kid couldn’t vote, join the military, serve on a jury or buy cigarettes or alcohol in 1997. But they could be the target of societal outrage, and Judge Baker did what the mob wanted her to do. What she wanted to do. She now asks the Supreme Court to fix her choice because she regrets it. She should have given it more thought at the time, as she had all the information she needed to do better, but she didn’t. Then again, we have all the information to do better today to our new hated defendants, but we’re doing it all over again.

11 thoughts on “Judge Baker’s 241 Regrets

  1. tom swift

    What a colossal load. One doesn’t have to be “outraged” to believe that society should be able to protect itself from vicious crime. That’s one of the fundamental functions of society.

    “What’s missing from Judge Baker’s attempt to rationalize her sentence is that we didn’t care. She didn’t care.”

    She did care. She cared about some animal’s innocent victims, present and future. She cared about entire neighborhoods which would be blighted by criminals like this. She just didn’t care about optimizing the career path for some gansta wannabee.

    1. PaulaMarie Susi

      Some 20 years ago we had a somewhat similar case. Two young black men, little more than children, armed robbery of a fast food establishment on a military base (pick your favorite Fort in the EDNY). Prior [juvie] records and hostage taking seriously jacked up the guidelines, then mandatory. We had a wonderful Federal Defender who found the perfect program to rehabilitate them. Somewhere in the corn belt. They were educated, taught meaningful and marketable skills. They became productive members of society. Most importantly, they were removed from the environment that taught them they were animals. Mr. Swift, even “animals” can be trained, taught to be better. We should never throw away another human being, as a society we have the means and obligation to help. And, we always should.

      1. SHG Post author

        I wonder how many today realize how radical that was 20 years ago, when there was almost no one willing to give these “animals” a chance.

        1. PaulaMarie Susi

          Few. And only those who fight in the trenches. It was the perfect storm: sympathetic backgrounds, excellent advocacy (we have the best FDs in the country, hands down), a saint of a Judge, and a prosecutor who was willing to go against their office policy. That ‘village’ saved 2 young men. Makes me proud to be part of that system.

  2. JR

    I expect judges to have regrets just we all do about past decisions. I try not to make rage or mob based calls. I think for major things I try to think it over to the best of my ability and move forward. If later I feel I was wrong at least I did the best I could at that time with the information I had in hand.

    We want to believe that a judge takes into account everything, yes even the mob calling for the convicted’s head on a plater. We want them to take the time and balance things. If it comes out to be 241 years, then, OK. Someone with more facts, experience and wisdom came up with that number. I might not agree, but I was not in her shoes.

    To come out much later and publicly say she was wrong causes my to start doubting the institution. Sure if some new fact on the case came out that if she had known would have changed things, then OK. So what was missing? Did she not have wisdom and experience to properly discount the screams of the mob? We will never know.

    What’s next. When a judge hands down a sentence will we accept it as fair and well thought out, or think, that’s OK in 15 years the judge will regret it and we get a do over somehow.

    1. SHG Post author

      The “rule and roll” philosophy makes it easier for a judge to sleep at night, never feeling constrained to ponder the consequences of his error on another human being. But sentences aren’t magic, as non-lawyer weirdly believe them to be. There are guides, such as parsimony, because judges aren’t god, no matter what they believe.

  3. Jim Majkowski

    How likely is it that this SCOTUS 20 years after the fact will be inclined to craft a constitutional holding to undo something yet undone by either initial appellate review or executive clemency? Then again, I made a cursory google search and read that in Missouri there are undisposed clemency petitions dating back to an administration which left office in 2005.

    BTW, that source included this little gem from a Missouri State Rep who is now advocating for clemency: “God is working miracles. It if wasn’t for the judge cracking down and being as hard as she was on Bobby, it wouldn’t have probably opened his eyes to create the man that he is today,” said Schroer. “If she would’ve been soft on him he might’ve been back out on the street to commit more crimes and actually become a more hardened criminal.”

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