Monday, May 22, 2017

The Quality of Mercy is Strange

Should the punishment meted out for a crime be determined by the criminal's ability to rehabilitate?

We often criticize our judiciary for producing uneven sentencing outcomes for similar crimes.  For example, a young black man gets drunk and gets behind the wheel of a car and kills a pedestrian.  He is sentenced to decades in prison.  Meanwhile, a young affluent white suburban teenager gets drunk behind the wheel of a pickup truck and kills several people, but is given probation because of "affluenza."  People are naturally outraged.

Similar crimes, disparate outcomes.  People rightly cry "foul" when such things happen - and they happen with depressing regularity.

But what if  two people commit the exact same crime together?  If they are equally culpable shouldn't they receive the exact same sentence?  Of course, we live in the real world, and in the real world things are not always even-Steven of course.  Often prosecutors will cut a deal with one defendant if he will testify against the other.  Thus, the criminal who rats out his compatriot often ends up with a lighter sentence.

But should the sentence that a criminal receives be based on their ability to rehabilitate themselves? And if so, how would we determine that?

As you have no doubt heard, in a recent case in Colorado, two young men were sentenced to 98 years in jail for a series of armed robberies and kidnappings.   Seems like a long sentence, until you realize that they literally were putting a gun to people's heads and then robbing their stores.   Also, with good behavior and parole, they might be out in far less than 98 years.

In fact, a lot less than 98 years, in one case.   Due to a clerical error, one of them was let out in eight years.   He quietly walked away and started a new life, getting a job and raising a family.   Years pass - well six years, anyway.  His cohort still in prison is now up for parole and the government discovers the clerical error that let the other man out decades early.

What to do?   Under the law, the first man has to go back to jail and serve the rest of his 98-year sentence, which may be the rest of his life, since he took a six-year break.   But many people feel sorry for him as he "rehabilitated" himself and now is an upstanding member of the community.  For six whole years.  So a judge commutes his sentence and lets him go free.

But it gets stranger.  Since he was a Cuban refugee at age 2, he is at risk for deportation, even though he had permanent residence status.  In fact, once he committed armed robbery,  his permanent residency was revoked.   Upon conviction, a final deportation order was entered, and technically, once he was released from prison, he was supposed to go back to Cuba.  (Why he never applied for Citizenship is not stated in the stories). 

Again, people are outraged.   They feel sorry for him because he "turned his life around" and it doesn't seem "fair" to toss him back in jail or send him back to a country he doesn't even remember, just because he robbed some Blockbuster stores at gun point.

It is a fascinating scenario.  The Governor of Colorado has now issued a full pardon to the man, hoping to negate the deportation order.  The new unsympathetic Immigration and Customs Enforcement agency isn't buying it - a final deportation order is a final deportation order.  We'll see how this plays out in the next few weeks or months.

Do I feel sorry for the guy?   Not so much, as he did commit a crime.   The guy I feel sorry for is the guy who had a gun shoved in his face and was told to "open the safe or I blow your fucking brains out, asshole!"    That guy is likely still affected by the event.  

The other person who is getting a raw deal - in comparison - is his cohort in crime who is still in jail and serving his 98-year sentence.   I mean, you have to wonder what he is thinking.   He sits there and rots in jail for nearly two decades for the exact same crime while his friend is out having a good time, getting laid and raising a family.   It doesn't even appear he bothered to visit his co-defendant on visitor's day! 

Two criminals.  The same crime.   One gets all our sympathy, from legislators on both sides of the aisle, the governor, the press, a judge, and the general public.  The other can rot in jail for all we care.  And the difference is...... what?  Would the other guy currently rotting in jail have rehabilitated himself and thus be worthy of our sympathy?   How exactly does this public sympathy thing work, anyway?

I mentioned before that feeling sorry for people is often a dead-end game.   But folks do it all the time, usually in response to carefully orchestrated PR plans to get folks to feel sorry for a certain person, group, or even an entire country or race.   Once a person is anointed with this mantle of "feel sorry for me" they can get a free ticket to ride - and skate away from a host of responsibilities.

What irks me about the "feel sorry" movement is that it produces even more wildly disparate results that our justice system does.   If you have that certain emotional "hook" that the press latches onto and Facebook Freaks will "like" - then you are in.   Of course, you have to be careful, as the same mob that elevates you to victim status can turn on you just as quickly.   If there are any discrepancies in your background story - watch out!  The mob does not like to be deceived or believe they are deceived.

And as you might expect, in the United States of Feel Sorry, more than one person has tried to build a victimhood scenario out of whole cloth.   There are documented instances of people spray-painting racist or homophobic graffiti on their own houses or apartments and then claiming to be victims of bigotry - and starting a gofundme page.    Like I said, the mob does not like to be deceived, and some of these folks went from hero to villain overnight.

I guess the other problem I have with the feel sorry movement is that I know that if I was placed into similar circumstances as this guy in Colorado, no one would feel sorry for me.   I don't know what it is, but some folks have that "feel sorry for me" vibe and others do not.   Maybe if I had a small body and a big head with huge eyes, like Japanese anime characters, I could generate this sympathy - it is an instinctive thing.    All I know is, this "feel sorry for me" system would not work out in my favor.

And that is the problem right there - it is an uneven system, haphazardly applied.   Some benefit, some do not.  It all depends on how sympathetic you appear and how good your PR is.   I can imagine this same story in Colorado being reduced to two paragraphs in News of the Weird, with everyone laughing at this guy as he goes back to prison.    Other prisoners have been released by mistake before - most of them go back to jail without fanfare.   This guy has a better press agent - or at least friends in the media.

So what is the solution?  Well, as in anything, mob rule is probably the worst possible idea.   And just as a mob of people with pitchforks and torches (or in America, a lynching mob) is never a good thing, I am not sure that a mob of people trying to elevate one of our own as a "victim" who should get special treatment is ever a good idea, either.

While it is nice that this fellow appears to have rehabilitated himself and "turned his life around" when given a break, he still is on the hook for his original criminal sentencing - or at least was until the Governor pardoned him.   And if we use this deterministic outcome model of jurisprudence, then what happens if we let this guy go, and down the road he commits another crime or runs over a kid while drunk-driving?   What if it turns out that his squeaky-clean post-prison life was anything but?   Suppose you find out later he was a wife-beater?

All tough questions.   Do you then lose sympathy for him?   Does he get a greater sentence for his newer crimes (no, not after he has been pardoned for the earlier ones).   A lot of people jumping on the "feel sorry for this guy" bandwagon will feel pretty foolish later on if that happens - and elected officials should take note.  These politicians are placing their careers in the hands of a convicted felon, and are dependent on his continued good behavior to stay in office.  Remember Willy Horton.

Sadly, this sort of thing does happen routinely.    And by that I mean both things.   First, we grant leniency for people who "turn their life around" often after living years on the lam after having escaped from prison or having avoided capture in the first place - Roman Polanski notwithstanding.   Second, it has happened before that people elevate on a pedestal some criminal who was "rehabilitated" but later on turned out to be, well, less than rehabbed.   Everyone who thought O.J. was innocent felt betrayed when he pretty much showed the world his true self.

If by some chance, this guy is let go and his deportation order rescinded (in Trump's America?  Don't count on it!) we have to hope that his six years of rehabilitated life is the model for the rest of his life.   But we'll all feel pretty foolish for jumping on the bandwagon if it turns out he is just a jerk.

And meanwhile, in a prison somewhere in Colorado, his co-defendant is sitting in a cell, grinding his teeth, and wondering why he doesn't generate an ounce of sympathy from anyone.

And frankly, I have the same question.

UPDATE:  It appears the fellow is still in ICE jail, awaiting deportation.   While I do feel sorry for his wife and kids, I feel less sorry for him, as he did rob people at gunpoint.   You do the crime you do the time.  The only thing that is "unfair" is that ICE could hold him for years without trial, without lawyer, and without deportation.   Once  you have a final deportation order, your rights are practically non-existent.   And of course, Cuba probably won't take him back, leaving him in permanent legal limbo.

It is too bad he did not apply for citizenship when he got married, but I suspect he realized that might raise a red flag about his abbreviated incarceration.   Probably also why he never visited his co-defendant, either.   I could just see the prison guard saying, "Gee, you look familiar, aren't you supposed to be in cell block H?"