Representative View

By Anne B. Donahue

“Hard cases make bad law.”

So said Oliver Wendell Holmes, Jr. (1841-1935), considered by many to be one of the greatest justices of the United States Supreme Court.

What did he mean? He meant that the most difficult situations – terrible tragedies, extreme horrors, and examples of the worst in us – can result in laws with unintended consequences that go far beyond what we might otherwise consider just and appropriate.

I commend my district-mate, Rep. Maxine Grad, for being among the first to speak up about the public reaction to the horrific murder of Brooke Bennett and to say, “Wait.” This is not a situation where years have gone by and we, Vermonters, have failed to review the laws intended to protect our children.

It is only two years ago that the Vermont Legislature passed a far-reaching set of laws intended to maximize the protection of our children, and to create the very best tools to keep sexual predators off the street. Perhaps more importantly, they were designed to best ensure that when offenders could not be kept imprisoned, they could be monitored for life.

I have always been ready to criticize the legislature for its many failures to be aggressive in addressing problems in Vermont. This is not one of those cases.

We hear buzz words – “Jessica’s Law” – and ask why we didn’t pass it. In outrage over an outrageous crime, we hear talk of capital punishment, civil commitment, and castration. Because Rep. Grad did such a good job explaining the distinctions between one approach (Jessica’s Law), and the multi-prong approaches recommended by our victim advocacy groups and prosecutors, I will not repeat those details. Suffice it to say that Vermont, in the choices it made, did not take a weaker route just because it took a different route.

Did that route fail Brooke Bennett? We don’t have the facts to judge that yet. The right tools might have been in place, but human error might have intervened. Ironically, the “all or nothing” yet narrowly focused approach of Jessica’s law likely would not have applied.

The United States Supreme Court ruled just two weeks ago that society’s ultimate tool for retribution and deterrence, the death penalty, could only be justified when a person has taken the life of another person. That case involved the rape of a child. Typical of such cases, the little girl had changed her testimony several times: perhaps to protect the rapist, who was alleged to be a close family member, or perhaps because she was being pressured to identify the person investigators believed was the likely suspect. On this evidence, a man’s life hung in the balance.

What is the worst crime in a society? Brutal assaults, that leave victims permanently disabled? Brutal sexual assaults, that leave victims permanently emotionally scarred? Or death itself? If we looked at the bigger picture, would we say that a person who tortured a child over a period of weeks and then starved her to death was less heinous a criminal than one who raped and killed a child. Indeed, is a child’s life worth more than an adult’s?

These are the kind of questions that call for discussion in a society before a discussion about the death penalty for one type of crime alone.

Real discussion would perhaps first question whether years of evidence support the death penalty as a deterrent to crime. (It does not.) Other developed countries have rejected it. Data has never been repudiated that it is the certainty and swiftness of justice, not the severity of punishment, that deters crime.

Pre-meditated crimes occur because people believe they will not be caught, not because they believe the penalty is worth risking.

We cycle through what we identify as the most heinous crimes, and pursue strong legislation: hate crimes, which decree that if you are victimized because of who you are, it is more egregious than if you are brutalized for another reason; dealers in street drugs, blamed for enticing our children into addictions, come to mind from the past. But since we deal with each in isolation, we establish no standard of relativity.

We create a system which keeps increasing rates of incarceration without regard to effectiveness. Vermont, with its lowest-in-the-nation crime rate, fights unsustainable increases in the Corrections budget as we outgrow our prisons; we ship the excess out-of-state. Studies tell us the increases do not correspond to increases in crime. They relate to the increases in penalties we legislate. And no, our prisons are not filled with non-violent offenders.

Keep offenders locked up unless they have completed sex offender treatment? But we don’t have – have not provided – funding for all those in need of treatment. And those funds compete for anger management treatment, a cause of far more violence, including sexual violence, than sexual deviance. When more funds are sought, we, as the public, question whether we should be spending money on “programs” instead of using harsher conditions of confinement to deter crimes.

Keep sexual offenders in “civil confinement” – a “treatment prison” – after they have finished their prison terms if they are judged to continue to be sexual predators because they have a “mental defect” that makes them that way? If they cannot help themselves because of a mental defect, then we should confine them for treatment from the beginning, instead of convicting them for a pre-meditated crime. If we convict them for an act they are responsible for, then punishment should be harsh, but not extended beyond our criminal laws under a guise of treatment.

Our ability to predict who will attack more victims is, by expert opinion, little better than chance. Should we imprison all for life because they might reoffend? Throw away the key based upon prevention of possible future acts? We have clear data on the greatest source, and most the likely reoffenders, for all crime, including violent crime. It is overwhelmingly, on greater than 6-to-1 odds, young males between their late teens and late twenties. If we locked them all up, we would see a dramatic decrease in violent crime of all kinds.

Vermont, like many states when the idea swept the country – and like today, in reaction to a specific horrific crime by a young teen – got tough on young criminals several decades ago. We treat 16 and 17-year-olds as full adults, often even for minor crimes. We even imprison them with hardened adults.

Several years ago in Florida, under a Jessica’s Law equivalent for murder with its no-exceptions prison terms, the nation watched, stunned, as a 12-year-old boy was sentenced to life in prison for what was, at best, an unpremeditated murder. The judge had no discretion between an outcome of “not guilty” or a life sentence without parole. There is no balancing in the scales of justice when laws allow for no consideration of individual facts. A known outcome is assured without the risk of error in the use of discretion, but not every potential outcome can be weighed in advance to be sure it is intended.

Over these past decades, society has learned that this is a mistake; that kids can’t form the same judgements as adults, and that they – and we – benefit more when they get the supports and direction of the juvenile system. States across the country, Connecticut the most recent example, have moved back. Vermont has not. It was discussed as recently as this year’s legislative session, but rejected for lack of the money that those services cost.

Does that identify Vermont as “soft on crime”?

The largest percentage of violent sexual offenses against young children in Vermont are perpetrated by older teens and against family members, not by strangers lurking in the dark. Do we save money, and protect children of the future, if we lock them all away for 25 years, and treat them after, instead of before, they become more violent predators?

My heart shares the grief that led to the chants, “never again; never again,” at Brooke Bennett’s funeral. But there is no such thing in the world as “never again,” as long we are human.

There is such a thing, unfortunately, as passion of the moment that can lead to worse results in the future. Lives can be unjustly destroyed by laws that allow for no human element of discretion and judgement, fallible as it may be, in the elusive pursuit of “never again.”

Hard cases – heart-wrenching, horrible crimes – lead to bad public policy and bad law.