93. Crime and antisocial behavior
My first exposure to the federal Sentencing Guidelines occurred back in the 1980s, when I was in civil practice. I showed up for a pretrial conference in federal court. The judge was still in court, conducting a sentencing hearing, and I decided I might as well wait in the courtroom and watch the proceedings.
The man standing before the bench was probably about my age, in his mid to late 20s. Someone - a federal probation officer, no doubt, but I couldn't have told you that at the time - stood up and said something about the defendant's record. What he said didn't register with me, because I didn't have any experience with the federal criminal justice system against which to compare it.
Then the defendant spoke to the judge in a quiet, sincere-sounding voice. Again, because I'd never heard a convicted defendant's allocution before, I didn't realize there was anything unusual about this one. At the end of the hearing the judge sentenced him to five years or 60 months. That part was the one thing that struck me as strange. I later found out that because the constitutionality of the Guidelines was then uncertain, federal judges routinely imposed sentences under both the Guidelines and the old statute. (So it was the routine part of the hearing that struck me as strange.)
A few minutes later the judge called us into his chambers for the pretrial conference. But instead of jumping right into the tedious minutiae of discovery and motion deadlines, the judge began talking about the sentence he had just imposed. He seemed shaken. The judge told us that the probation people actually believed the defendant's story, which, he assured us, is not the typical attitude of probation officers. He believed the man's story, too.
The main outline, as I recall it, was like this: The man had no criminal record. He was a high school graduate, married, with a kid or two. He and his wife had "stretched themselves" when they bought a new home, the sort of thing newspaper financial columnists are always advising young couples to do. But then he had lost his job through no fault of his own, and had fallen behind in his mortgage payments and was facing the real risk of foreclosure. At that juncture someone he knew and trusted advised him of an opportunity to earn several thousand bucks simply by driving a car from California to New Mexico. So he agreed.
The Guidelines exemplify the most fundamental flaw in our criminal justice system, which is our failure to distinguish between criminal and antisocial conduct. A great deal of seriously destructive conduct isn't criminal in America, and a great deal of criminal conduct isn't antisocial.
It's obvious to me, and I think it was obvious to my judge, that the 60-month sentence for transporting a carload of pot was far more socially destructive than the act of transporting it. The family lost its house for sure; the kids grew up without a father in their lives, and quite possibly with a mother whose increased financial responsibilities meant she had less time to spend with them; the children were likely introduced into the subculture of penitentiary families, by and large not such a healthy milieu; the strains on the marriage would have been immense; and when the husband and father finally got out, his record would have made it hard for him ever to find a good job again.
But on the other side of the ledger, if he hadn't been arrested, Albuquerque's stoners would have gotten stoned on the pot seized from the car he was driving. Thanks to the forceful intervention of the federal authorities the city's stoners, ah, got stoned anyway. But on different pot.
A couple years later, soon after I began doing criminal appeals, I was assigned a simple hashish possession case. One witness, we'll call him Abel Baker, was military, or by that time ex-military. Abel got to know another soldier (or airman, or whatever), whom we'll call Serpent. Over the course of many months Serpent cultivated a friendship with Abel, until finally Abel trusted him sufficiently to share some of the hashish his sister, also in the military, had mailed from North Africa.
As it turned out, Serpent's ambition in life was to be accepted into the Military Police. He couldn't wait to inform on Abel (and on Abel's civilian friend, the defendant in the case that landed on my desk). Abel was court-martialed and dishonorably discharged after serving something like six months in military prison. The sister, I believe, also had her career destroyed.
Abel was trusting and generous. Serpent befriended him for the purpose of betraying him. Abel's behavior was criminal, but Serpent's was antisocial. The legal system's inability to recognize which was worse rendered it, with a kind of clanking inevitability, as amorally destructive as Serpent himself.
Saturday, April 1, 2006 at 08:59PM in Drugs
Reader Comments (2)
The Dutch have a "long ... tradition of 'gedoogbeleid' — the formal, systematic application of discretion - and one element in a more comprehensive philosophy known as harm reduction or harm minimization."
Differences in opinion about the goal of drug policy could explain the questions that MF asks.
An important question is what should be the goal? In this case, let's ask whether the crime or the punishment is worse for society?