Recently there was a story about a 17-year-old who was sent to jail for truancy. As a result of public outcry, the judge has decided allow her to expunge her record, but she has already spent the time in jail. What made the story so poignant was that the reason she was truant so often was out of sheer tiredness. She is not only an honor student, she also works a couple of jobs because she is the sole support of her brothers and sisters. But, let Father Orthoduck argue that, according to conservative law and order advocates, she received exactly the punishment she deserved. After all, no one is arguing that she did not break the law. She broke the law. She was truant over 10 times. And, the law says that that is a crime punishable by jail. The judge was not a liberal judge who would let lawbreakers get away with breaking the law. He was a strict constructionist who believed in enforcing the law as written.
From the 1980’s, conservative law and order advocates have been insisting that “liberal” judges were letting law breakers free or giving them sentences that were too light. They have also insisted that there should be no flexibility in applying the law. The law should apply equally and in the same way to everyone. In fact, many of the arguments about the children of undocumented immigrants who were brought here as babies is that there can be no amnesty, no bending, no mercy, no “liberalizing” of the law, no judges who can be allowed to mess with the law as written. There is only one problem. That type of attitude about the law breeds unintended consequences.
It means that 17-year-old honor students who support their siblings and are too tired to go to school are properly punished for breaking the law. Since Florida was willing to send two under twelve children to prison for life, without parole, for murder, it should not be surprising that more than one first grader and/or elementary school student has been handcuffed by police personnel for failing to control their behavior. Elementary school students have even been tasered. This is not a failure of common sense by the police. It is precisely what conservative advocates wanted, unflinching enforcement of the law without any freedom to adjust. After all, adjustments to the law were labeled “liberal” and a failure to be strict constructionist.
Of course, conservative law and order advocates never foresaw what a zero-tolerance world might look like. They never really meant for the law to be fully and thoroughly enforced with no flinching and no variance. But, now they have gotten what they wanted. And, over and over places like Fox News are filled with “horror” about enforcement actions. But, this is the world that conservatives wanted, is it not? Was not a world wanted in which judges had no choice but to enforce the law as written? Was not a world wanted in which anyone who broke the law would be treated as the criminal that they truly are? Was not a world wanted in which judges would refuse to countenance extenuating circumstances in order to truly enforce the law with no variance among persons?
Yes, conservative activists have won the fight. Father Orthoduck hopes that they like the justice system that they have created. Father Orthoduck wishes to return to a system in which judges and prosecutors had discretion. He wants to return to a system in which presidents and governors had the right to grant clemency without their being called wrong and risking ever being elected against. Father Orthoduck wants to a return to a system that has mercy alongside justice and common sense alongside a correct regard for the law, not a legalism that horrifies us with its unmerciful attitude.
Yes, conservative law and order advocates, you have been successful. Father Orthoduck hopes you like the justice system that you have created. It is indeed fully your system.
I believe this pharisaical system you describe is known by the austere designation, “Rule of Law.”
I would tend to disagree. Though what I described does fit under a Rule of Law designation, there are several other approaches to applying a Rule of Law system. For instance, no Christian accuses Our Lord Jesus Christ of being a law-breaker, but he certainly did not have the woman caught in adultery stoned. That is, his application of the Law was tempered with the divine right to offer mercy. In fact, the Old Testament Law, even when applied, had significant allowance for mercy, for instance the Cities of Refuge.
Perhaps no Christian would accuse Jesus of law-breaking, but there were others who did. I would say that Jesus’ application of the Law was tempered by the understanding that the Law is for man and not man for the Law.
Seriously?!
Don’t many of those same conservatives speak with nostalgia about their hard-working, upstanding grandparents who maybe got an elementary education before quitting school and setting out to work hard and unrelentingly as laborers their whole lives, thus providing for their families and elevating the socioeconomic status of their children’s generation? Aren’t they the heroes that conservatives love to venerate, and against whom they contrast today’s allegedly “entitled” youth?
Damned if you do, damned if you don’t.
I’m not sure you can always tar conservatives as law and order types. The Clinton administration wanted to out-do the Republicans and take back some votes by being tough on crime. Hence the toughest sentencing… and extraordinarily high incarceration of African Americans. Undisputed (at the time at least) fact was that Clinton accelerated the rate of incarceration. Now incarceration rates are too high for a reputedly “free” country period. I wonder less about the politics – at least whether someone is conservative or liberal because I see more difference in the noises they make than in the policies they implement. But I’d start with the notion that it is not the law so much as the mandatory sentencing guidelines attached to their enforcement that is the issue. And both parties have wanted to look tough on crime… because looking “easy” doesn’t get votes. Despite evidence of frequent miscarriage of justice (wrongful conviction) there is little interest in criminals, their condition and their restitution. Repeat offenses may say more about us than them… or at least as much.
Fairly, the problem is also the opposite of the one described here: Rape that used to be a capital crime now seems to often result in two or three year sentences… or five to seven with early release that makes the practical “lock up” almost seem incidental. Assuming that this is not a reflection of date rape criminalizing what was formerly (and may still be) simply bad behavior (and I don’t think it is), this seems at least as equally unbalanced. And say what we will about pedophiles, the Dorothy Rabinowitz articles some years back in the WSJ certainly should call into question something about the level of “justice” allowed and involved in these cases… and the permanent identification of these folks in public databases. Yes, I am horrified at these crimes, don’t misunderstand. But enforcement is absolute while justice a lot squishier. And I guess that’s the rub.
My guess is the culprit in both cases is the tendency for media glare to result in policies made on the basis of antidote… bad and unrepresentative antidotes that the media loves to publicize but which may actually be very, very bad examples on which to make laws (or sentencing guidelines). Consider our drug laws… which just don’t work period. First we locked up the entire world, now we’re thinking since that isn’t working, maybe we ought to legalize drugs. In some ways the Same Sex marriage debate is almost a mirror image. In all, we really don’t want to examine the issues and think them through so we debate with our bumper stickers so that we can be “done” and dismiss the problem and problem folks equally out of our lives. Are these really the only choices?
Fred Friendly once ran an excellent series on PBS about how the media changed our public lives.. especially as it bears on crime and punishment. Yet no one has covered the consequences that now that public life has changed dramatically to incorporate a large role for the media… what are we to do now that the media – at least the “institutionally responsible” media – is going the way of the dodo? I see the whole of the Great Financial Crisis as a direct result of failed coverage from 2004 on when the (uncovered) story of the FBI’s report of financial fraud running off the charts….and all agents had been re-assigned to terrorism. Fads will be our undoing.
So there’s a thought or two for you to kick around. THanks for the post!
There is little doubt that President Clinton signed one of the more far-reaching revisions of the criminal code in many years (under a Republican Congress). However, I would argue that this has been an issue that since the days of Carter vs. Reagan has been one of the defining conservative issues. Particularly the outbreak of the immigration debates brought to the fore an even stronger emphasis on the idea of the “Rule of Law” being re-interpreted as nothing but the law, exactly as written. Sentencing guidelines are but one practical expression of that philosophy, a philosophy that is peculiarly strong among “Tea Party” conservatives. Though claiming to be about the budget, they have consistently made very strong stands about the issue of Law.
Conversely, every attempt to loosen the stranglehold of a conservative interpretation of the “Rule of Law” has been met with shouts of “liberal” or “amnesty” or “coddling criminals” or how it is plain unfair to the victim to change anything. In fact the very words used to insult those who try to return to a more classical approach to justice show that conservatives consider this their issue and consider any change to be “those liberals.” Thus, despite your one citation of President Clinton, I do not think you could carry your thesis forward that this is both parties.