Saturday, June 28, 2008

Aggravated minimums

It's always weird to learn about something for the first time and then see it come up again very soon after.

I was watching Miami Ink last week, and one of the clients on the episode was Mark Lunsford. He is the father of Jessica Marie Lunsford, a 9-year-old girl who, in 2005, was abducted from her home, sexually assaulted for three days, then stuffed in garbage bags and buried alive. This was done to her by John Evander Couey, who was a repeat sex offender and who lived about 100 yards away from the Lunsfords. Couey was sentenced to death and three life terms in prison. Since then, Mark Lunsford has been all over the country, speaking before many state governments, trying to get Jessica's Law passed, which calls for mandatory minimum sentences for someone convicted of raping a child under the age of 12. He's been successful; at least 33 states have passed some form of the law, and I think more have since that list was made. According to the CNN video below, it's 42 states.

After I saw that episode of Miami Ink, I wanted to know more about the law, and wanted to see if Ohio had passed a version of it. (It has.) So I spent a couple hours looking into it, and reading about repeat sex offenders, sex offender registries (Couey was a registered sex offender), and what, if anything, can be done to stop repeat sex offenders from getting to the point where they rape and/or kill a child. Pretty depressing reading material, no doubt.

Then today I came across this video, of James Fagan, a state representative in Massachusetts, arguing against Jessica's Law because of its mandatory minimum sentencing. That state has recently passed a version of the law in the House, and I assume it now goes to the state Senate. Here is a link to the video, and here is the transcript of what he said:
When we face it in this situation, why is it so wrong? Let me tell you why it's so wrong. It's so wrong because in these situations, until and unless the lady in Shrewsbury and people of her ilk have the opportunity to do away with the right of confrontation, which I'm sure they'd like to, that 6-year-old's going to sit in front of me, or somebody far worse than me, and I'm going to rip them apart.

I'm going to make sure that the rest of their life is ruined, that when they're 8 years old, they throw up, when they're 12 years old, they won't sleep, when they're 19 years old, they'll have nightmares. And they'll never have a relationship with anybody.

And that's not because I'm a nice guy. That's because when you're in court and you're defending somebody's liberty, and you're facing a mandatory sentence of those draconian proportions, you have to do every single thing you can do on behalf of your client. That is your oath and obligation as a trial lawyer, to confront the witnesses against your client, which in this instance will always be a child, who will undoubtedly be permanently dreadfully scarred.

He's not saying it's right to be so harsh with a child in court, or even advocating that defense attorneys should act in such a way with a child on the stand. He's saying that defense attorneys will have no other choice but to resort to such measures, because their client is facing a mandatory minimum sentence. And in this case, the state of Massachusetts, the minimum the House bill sets is 10 years. So he is basically saying that, under this law, in order to defend someone accused of raping a child, defense attorneys will need to inflict more damage on the child while in court because the attorneys' backs are against the wall in terms of sentencing. In other words, the law is bad. Mandatory minimum sentencing for raping a child is bad, he is saying.

Why? Because of his example about defense attorneys? Even though most people with any common sense know that no defense attorney is going to behave the same way toward a child who has been raped than they do toward an adult who has been raped? With an adult, there's all kinds of leeway to "blame the victim" and create doubt about consent. How does a defense attorney do that when there's a 9-year-old on the stand? The issue of consent is taken away; courts have already established age-of-consent laws, and they sure aren't ages 12 and under. And you can't really say a 9-year-old was "coming on to you" or is a whore or use any other standard victim attacks as any kind of plausible defense in a child rape case. So what, exactly, are these defense attorneys going to do under this law that they don't already do before the court in cases of child rape? Defense attorneys already have clients accused of this crime, and obviously those clients already face some kind of sentencing if convicted. And if a defense attorney's job is to try to get his client acquitted, wouldn't defense attorneys already be behaving this way in court during such cases? Or is it that they don't do so now because it's possible that their client would get, say, five years as a sentence as oposed to the mandatory 10 years, and somehow 10 years is just too much for raping a child, so more drastic measures need to be taken in court now to avoid a conviction?

Perhaps this state representative feels all mandatory minimum sentences are wrong, and that the court should be responsible for doling out appropriate punishments. I can see that point, but I'm not sure that's what he's arguing for in this case. And if that is his point, he has gone about it in the most backwards way possible. There's a lot of validity in saying that courts are designed to serve justice and therefore should be setting the sentence for a convicted crime. I can't find any validity to his argument about defense attorneys though. Not to mention the fact that this law is for child rapists. It's a little different to have mandatory minimum sentencing for child rapists than it is, say, drug dealers. (Who spends more time in jail? I wonder.)

It gets even crazier if you look into the details of the bill that the Massachusetts House has passed. Their version of the bill does not include mandatory minimum sentencing for a "regular" child rapist. This is what their bill does include for mandatory minimums of 10 years for a first offense: crimes of aggravated child rape when a weapon is used, when the victim is drugged or when the perpetrator is in a position of authority such as a teacher, coach or clergy; three new crimes of aggravated forcible rape, aggravated statutory child rape and aggravated assault and battery on a child; and the minimum would be applied to someone previously convicted of crimes against a child. As far as I can tell, if you plain ol' rape a child, this doesn't apply to you. Because apparently "aggravated child rape" is soooo much worse than "child rape with force" (what an oxymoron that phrase is), the latter of which could technically result in very little jail time.

There are some good points raised concerning how mandatory sentencing might affect the way these cases go through the justice system, specifically the concern that the child or witnesses won't testify or would have trouble testifying against a family member (if that is who raped the child), and therefore the case won't ever get to court in the first place. Doesn't that already happen though? There have to be a number of such circumstances already in the legal system where child abusers don't go to court because someone won't testify or even press charges in the first place. (And let's not lie to ourselves about how often the accused is a family member; it happens all the time.) The above linked article also indicates that plea bargaining is harder to do when mandatory sentencing is involved. How do you plea bargain from raping a child to a lesser crime? Does that work the same as it does in cases that involve adults? If a man rapes a woman, for example, he can plead to gross sexual imposition instead of rape, and thus a lesser sentence. Does that happen now with child rape cases? Plea bargaining down to a lesser crime, so that the defendant spends less time in jail? Is that something that should happen when it comes to raping a child? Should we be trying to make it easier for child rapists to serve less time, by allowing them to plea bargain? I understand how the legal system works, but I am failing to see how it is helping anyone but the defendant in this instance. I guess the argument is it's better for a child rapist to be convicted of a lesser crime and at least serve some time than it is for a child rapist to go free altogether.

(As an aside, here's an article about how the GOP in Massachusetts sees Jessica's Law as a political opening in a heavily democratic state. In it, Mark Lunsford says “Don’t politic our kids anymore. Don’t debate their safety.”)

I think it's obvious that one of the reasons behind Jessica's Law and the idea of a mandatory minimum for a convicted child rapist, other than just to make sure the person is punished, is to keep that person in prison longer, to hopefully stop that person from committing the same crime again. I don't know the recidivism rate for child rapists specifically, but everything I've read indicates that someone who sexually abuses a child is more likely to commit the same or a similar crime again than other criminals are.

The overall societal goal, I would think, is to find a way to stop repeat sex offenders altogether. Take this guy, for example. This is a local case of a guy who is a convicted sex offender who was released from jail six weeks ago and already arrested again for the same crime. In fact, his previous arrests led to tougher laws here for people who expose themselves to children. He has been convicted of it in the past, has to register as a sex offender for the rest of his life, served time in jail, got out of jail, and six weeks later was arrested again for the same crime. And not just one instance either; two different jurisdictions have pressed charges against him since his release, in two different cases, and two other jurisdictions suspect him of committing crimes as well but haven't filed charges yet. What's scary about this guy is he's gone from exposing himself to children to being charged with child enticement, because he tried to lure three girls into the woods. That is quite different from whipping out your dick in front of kids.

It's easy to look at this guy's history and say "well, he's just going to keep doing it." Clearly, serving time didn't deter him, nor did having to register for life as a sex offender. But legally, what can you do with this guy? The laws are what they are; you can't lock someone up for life for exposing himself to children (though it is now a felony if you keep doing it, thanks to this very guy). And you can't lock someone up because they might commit a worse crime later. That's not how our system works, nor should it be. Can you rehabilitate someone like this guy? It seems doubtful, but I don't know if it's even been tried with him specifically, or with success on any repeat sex offender. But it seems that if you can lock up some who commits sex crimes against children, a longer sentence hurts no one except the person who committed the crime. And it might help keep him from doing it again, or at least not give him the opportunity to do it again for a longer amount of time.

I wish Mark Lunsford all the best on his quest to get this law passed everywhere he can. I admire him for taking up the cause. I also hope something can be done to find a way to deal with people who continue to commit sex crimes against children before it gets to the point where they have raped or even killed a child. But if they do get to that point, they can spend their lives in jail for all I care. Ten years minimum doesn't seem like all that much to me.

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