A clarification and an apology

I recently posted a very brief piece entitled Balance.   It suggested reading a newspaper article about a horrific rape of a little girl.  Buried in the article were the facts that the offender had recently been sentenced to 20 years in federal prison for child pornography and the state sentencing judge ran his sentences consecutive to the child pornography sentence.

A thoughtful commentator read my post and the article.  He then submitted the following comment:

With all due respect, this post is utter nonsense. You start by talking about sentencing in federal child pornography prosecutions, and then you link to a story about a brutal kidnapping and rape, as if the connection between the two is self-evident.

Let me give you a different hypothetical. Imagine a similar kidnapping in which the child was tortured and ultimately murdered, but not raped or otherwise sexually abused. How should thinking about this crime affect a judge who is sentencing a defendant convicted of possessing photographs of someone being (non-sexually) tortured and murdered? Oh, wait — no such prosecution would occur, because it’s not illegal to possess photos of someone being tortured or murdered — never mind.

Okay, now let’s turn it around. Imagine a parent giving a bath to a two-year-old child — a completely innocent, commonplace event characterized by smiles and laughter. Now imagine a defendant convicted of possession of numerous videos of parents bathing small children. How should your awareness of the first scenario affect your sentencing for the second?

Sometimes the possession of photos or video is perfectly legal even when the acts captured are highly criminal. Other times, possession of photos or video is criminalized even when it depicts perfectly legal acts. The point is, the two are not the same. The harms of each need to be considered and evaluated independently.

Okay, so let’s think about the specific example you linked to in this post. Clearly, Abraham Richardson is an evil and despicable person, deserving of severe criminal punishment. But how does this story relate to child pornography? One argument sometimes made for laws against possession of child pornography is that the market demand for child pornography creates an incentive for producers to create more, thus victimizing more children. But there is absolutely nothing in the linked story to suggest that anything he did was motivated by a desire to feed the market for child pornography. So what’s the relevance?

Your meaning is not entirely transparent, but you seem to be saying: Judges have to sentence defendants convicted of crime X. Horrific crime Y angers and disgusts me. Crime X and crime Y are superficially related. Therefore, judges should reject calls for leniency in sentencing for crime X. I hope I’m misinterpreting you, because, frankly, I expect better from a federal judge.

In response, I agreed with the commentator that my post was not clear.  I agreed to provide a clarification, and so here it is.

I was the sentencing judge in the child pornography case.   I imposed the maximum sentence permitted by statute (20 years plus a lifetime of supervision).  The Guidelines were far in excess of that but they were capped by the statutory maximum.

At the time of sentencing, I was aware of the rape charge, and the horrific facts associated with it.  However, since the offender had not yet been convicted, I could not properly use the facts of the alleged rape for sentencing purposes.   And, I did not.

Earlier I written a fairly long post about the need for sentencing judges to have balance.  In particular, and among other things, I wrote that without balance that judge can turn into an avenging angel, that is:

You begin to suppress the anger that naturally flows from the horrific crimes you are forced to study.  Unless you struggle mightily to resist, you will then allow that anger to boil up to the point of an inner rage.  That rage in turn fuels a righteous indignation that, metaphorically speaking, permits you to sentence Satan while thinking of yourself as the Archangel Michael.

So here’s the deal, the federal child porn prosecution that formed the basis for my brief and fairly criticized post–the horror of the images that were the basis for the prosecution to the fear that the perpetrator had the desire and willingness to harm little children–seared the soul. In truth, the case enraged me.  More importantly, it terrified me, particularly when I thought of my grand-daughter.   It is these types of cases that illustrate the need for balance that I wrote about earlier.

I am sorry that I was opaque.  I apologize.


The best gift I ever got from a convicted killer

If, over a long career, you sentence a lot of people to prison, several things can happen to you.   Most of them are bad.  Here’s a short list of some of the bad things:

*  You can begin to see offenders only in numerical terms.  “What’s the base offense level, criminal history score and sentencing range?  Next!”

*  Unless you are very careful, you may become inured to the horrific impact that prison sentences have on offenders and their families.  “You say your parental rights will be terminated if you go to prison, well, they’ll be better off anyway.”

*  You begin to suppress the anger that naturally flows from the horrific crimes you are forced to study.  Unless you struggle mightily to resist, you will then allow that anger to boil up to the point of an inner rage.  That rage in turn fuels a righteous indignation that, metaphorically speaking, permits you to sentence Satan while thinking of yourself as the Archangel Michael.

*  With a despair akin to that found in the best of Richard Pryor’s stand-up routines, you may find yourself making jokes with punch lines about the futility of rehabilitation.   “Say, did you hear about the guy who went to prison, was rehabilitated and came out an even better monster?”

All of these things are unconscious. If they weren’t, you would be one sick puppy.

Now, this must not become a pity party.  I have a hell of good gig.  I get paid decently, and the pension is great. People call me “judge” and the bowing and scraping I get with a snap of my fingers is a nice extra perk.  That said, if you care about doing a good job when you sentence people, you better try to find an antidote for the creepy things I have just described.

For my (partial) antidote, I realized that I needed a mental image of a physical object that would evoke a sense of balance.  The image that I settled on derives from a gift given to me by a fellow named David Tommy Gene Suggett.

Tommy Gene got into a bar fight in Cozad, Nebraska when a young Hispanic kid provoked him.  One thing led to another, and Tommy Gene stabbed the kid in the heart about three times.  The young man died, and Tommy Gene was convicted of murder.  Ultimately, he was sentenced to 30 years in prison.

In the late 1970s, I was appointed to represent Tommy Gene in a state post-conviction action.  To make a very long and fairly complex story short, I got Tommy Gene’s sentence reduced by half and this made Tommy Gene immediately eligible for parole.

After the trial judge refused to give Tommy Gene relief on the sentencing question, I convinced the Nebraska Supreme Court that the trial judge had been too tough on Tommy Gene when he gave him 30 years in prison.  If you feel the need to read more, see State v. Suggett, 200 Neb. 693, 264 N.W.2d 876 (Neb. 1978) (Although sentence of imprisonment of defendant convicted of second-degree murder was required in view of serious nature of crime, where defendant had no significant criminal record, crime was unplanned and provoked by victim, defendant exhibited willingness to work at honest labor, was not addicted to alcohol or narcotic drugs, and his prison record provided evidence that extended period of incarceration was not required to rehabilitate him, term of imprisonment of 30 years was not warranted and would be reduced by Supreme Court to term of 15 years).

When I represented Tommy Gene, I spent a lot of time with him.  I really got to know him.  I learned that he had been born in Arkansas, that his family had abandoned him at a young age, that he spent a lot of nights sleeping in farm wagons filled with cotton, that he had virtually no education, that he had never been in any real trouble, that he had drifted from Arkansas to Nebraska on the hope of farm work, that all the guards and case managers who dealt with him in the prison thought so much of him that they were willing to sign statements for presentation to the judge expressing their view that Tommy Gene ought to be released from prison, and that he really loved my wife’s cooking.

As for the later point, I needed a lot of time with Tommy Gene.  So, I got him moved to the jail in Dawson County.  In that old jail, situated on the second floor of the Sheriff’s office, there were no firm procedures.  A lawyer could see his client about any time the lawyer wanted.  Moreover, the jailer was a nice guy and I got along with him very well.  He allowed me to bring Tommy Gene meals from our home.  I spent numerous evenings sitting on the floor outside of Tommy Gene’s cell while he ate the meal my wife prepared and we talked about his life and his case.

Anyway, I came to really like Tommy Gene.  While there was no question that he had murdered someone, Tommy Gene was not a bad person.  In fact, save for the small matter of stabbing someone three times in the heart, Tommy Gene was a good person.

When I got the decision of the Supreme Court, I called Tommy Gene who by then had been returned to the  prison in Lincoln.  At first, Tommy Gene didn’t understand the good news.  When I finally was able to get through to him that he would be let go soon, he seemed stunned.  Shortly thereafter, and fairly abruptly, Tommy Gene hung up.

As soon as I got a copy of the opinion, I mailed Tommy Gene a copy and told him in a letter to contact me if there was any delay in his parole.  Some months later, I learned that Tommy Gene had been paroled.  With that, Tommy Gene’s case was no longer the compulsive driver it had earlier become.

I never saw him Tommy Gene again.  And except for what I will describe next, I never heard from him again either.

One day a pretty woman walked into our law office and said she would like to speak to me.  I came out to the counter, and she introduced herself as one of Tommy Gene’s friends.  She said she had something for me from Tommy.   With that, she gave me the leather briefcase that is pictured below.  She told me that Tommy Gene had paid one of the other inmates to make the case for me.   She said that Tommy Gene said, “Thanks.”  With that, she left.Briefcase

The briefcase sits in my office.  I look it at it before I sentence people.  When I do, I hope for balance.  Sometimes it works.


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