For myself and I expect for Professor Schaff. I will be attending to family matters, and the two of us will be teaching a course on Judicial Review. I will blog when I can, but it will be sporadic at best.
Meanwhile, here is my latest column from the Aberdeen American News. The left wing archies out there will perhaps note the disclaimer attached at the end.
Political Judgment not bigger than law
Victimological classification made a giant leap forward recently with the discovery of a group that has been long overlooked and downtrodden. According to the National Organization of Short Statured Adults, this group consists of men 5 feet 7 inches or shorter and women no taller than 5 feet 2 inches.
It does occur to me that this runs afoul of equal opportunity laws, since it makes it harder for women to join up. Anyway, being somewhat shy of 5 and a half feet tall myself, I can pass under the men's line without stooping.
This means I am now in the position of writers like Leonard Pitts, who are offended when their own group identity is associated with, or worse, used as an excuse for criminal behavior. That's what all the altitudinally challenged suffered when Richard Thompson (5-foot-1) was sentenced by Judge Kristine Cecava (stature unknown) to 10 years probation instead of 10 years in the slammer for sexually assaulting a child.
Judge Cecava's injudicious reasoning was that Thompson was too short to survive in prison. This scarcely measures up to an argument. Short persons are more likely to survive in brutal environments, for the simple reason that they are less tempted to fight and can more easily find a place to hide.
More disturbing than her explicit reasoning is the unspoken assumption: that a man who commits a heinous crime should be given a pass merely because he can somehow be defined as a victim.
That should not have caught us by surprise. Earlier this year, in Howard Dean's own Vermont wonderland, Judge Edward Cashman sentenced a child rapist to a mere 60 days in prison. Mark Hulett, an adult of unspecified stature, abused a girl from the time she was 6 until she was 10 years old. The minimum sentence for this sort of thing, even in Vermont, is three years. But he refused to follow the law because the state does not guarantee "quick and effective treatment" for such offenders.
His reasoning is as stunted as Cecava's. In the first place, it is not at all clear that any effective treatment exists for pederasty. Secondly, it is perverse to claim that Hulett qualifies for special state benefits precisely because he raped a child. It reminds one of the fellow who was convicted of murdering his parents, and then begged the judge: "Be merciful to me, your honor, on account of I'm an orphan."
Both judges display a deep confusion about legal and moral responsibility. Some persons commit crimes of violence in part due to behavioral inclinations for which they are not responsible.
It is entirely possible that many, or even most, drunk drivers were born with biological susceptibility to alcoholism. The same may be true of pederasts. Perhaps a strong sexual attraction to children developed in some persons as naturally as cystic fibrosis does in others. But so long as a person is capable of distinguishing right from wrong, he is as accountable for his actions as any sane person. This should be true no matter how tall the offender or how stingy the state.
The bigger problem with our two judicial luminaries is that they presume to legislate social policy from the bench.
Judge Cecava thinks that the more vulnerable inmates should be housed apart. She has a right to that opinion, though if we take it seriously we would have to segregate prisons into wings of equal sparring partners. Perhaps psychology would also have to be taken into account. Maybe the size of the dog in the fight matters less in prison than the size of the fight in the dog. And maybe Judge Cecava made such a stupid decision not because she is stupid, but because Legislatures and not judges are qualified to address such issues.
Judge Cashman believes in rehabilitation rather than punishment. But Congress and the state Legislatures have had that out, and they decided to treat criminals as responsible adults rather than as patients in a clinic. Perhaps Cashman looks like a moron not because he is one, but because he thought that his own political judgment was bigger than the law.
Kenneth C. Blanchard Jr., is a professor of political science at Northern State University. His columns appears occasionally in the American News. Write to him at the American News, P.O. Box 4430, Aberdeen, SD 57402, or e-mail [email protected]. The views presented are those of the author and do not represent those of Northern State University.
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