Sentencing the Person or the Crime?

Photo by Artem Maltsev on Unsplash

Do personal resources aggravate or mitigate?

Every criminal court judge has to wrestle with the unpleasant reality that all is not equal outside your courtroom and you cannot make it so with any tools you have inside your courtroom.

That leads to some issues common to all of us, and I’m not confident enough in my ability to grapple with those issues to mourn my retirement and wish I was back in a criminal court where the rubber meets the road.

I rubbed elbows with enough judges from other jurisdictions at the National Judicial College to have some basis for saying every judge at some point gets in the situation New Jersey Superior Court Judge James Troiano navigated so poorly: a young person arrives in front of your bench who has had every chance to do better and, apparently, pissed it away.

The charge was rape and Judge Troiano had a problem with that. I am the same age as Judge Troiano and so he must have the same memories I have about the wave of reform in rape laws. He seemed to apprehend “rape” as the culmination of stranger danger, committed by animalistic men who leap out of dark alleys and confront their victims with guns and knives. The case in front of him was not rape because the defendant was known to the victim, had standing in the community, and did not accomplish his purpose by causing or threatening violence.

I say “wave” of reform in rape laws because rape is a crime defined by state law and the same arguments played out in legislative hearings coast to coast. When the public policy tsunami receded, most law students learned what I learned in law school: rape is sexual intercourse with an individual who did not give effective consent and all those other issues make it more or less serious. Sometimes, we learned, there might have been “consent” that was not effective because the person allegedly consenting was too young as a matter of law, was intoxicated, or was being purposely duped.

That last example was highly controversial because it purported to criminalize seduction with lies, and opponents of change pointed out that seduction is almost a synonym for lying. Not exactly. “Seduction” is the name of a common law crime, when a man persuaded a woman to surrender her virginity with a false promise of marriage. That was long before my time and I find it hard to picture how a prosecution would play out.

I guess you prove that the victim was “previously chaste” by asking her, but her affirmative answer would logically make her sexual history a proper issue to impeach her testimony. Note that one of the motivating forces in the rewriting of rape statutes was the common practice of hauling a woman’s sexual history into every rape case because — whether “previously chaste” was in the law or not — juries firmly believed “you cannot rape a slut.” Therefore, every prosecutrix was made out to be a slut and a criminal prosecution for rape became a gauntlet few women were motivated to run without a plainly evil and violent perpetrator who had to be stopped.

How do you prove the promise of marriage was false? I guess it would become a fact issue whether the man had a good reason to change his mind. The invasion of his personal emotional space is dwarfed by the inquiry into her sexual history, but the entire process offends my modern judicial eyeballs because it requires me — an agent of the government — to see and evaluate things that are none of my business.

The modern rape laws try to keep government out of substituting its value judgments for those of the parties and out of making absurd demands on women seeking the protection of the law. I have read old rape cases where convictions were reversed because the victim was held not to have resisted sufficiently. How much disparity in size and strength is enough to excuse the fact that she did not punch him? In a home invasion, why did she not run in the kitchen and grab a knife? Absurd questions sometimes led to absurd results.

After the reforms, the woman was no longer required to risk her life to fight with the attacker and, as important, there did not have to be an “attack.” Intercourse without effective consent is rape. Full stop. No fighting required. No previous chastity required. The victim need not be female. A promise to marry is irrelevant as is the fact of being married. Intercourse with your wife without her consent is rape. Intercourse with a prostitute without her consent is rape.

If my remarks above appeared to scramble the common law crime of seduction with the definition of rape, so did rape prosecutions before the wave of reforms. Even now, not everyone has gotten the memo that the legal definition has been simplified to lack of consent. Just last year, NPR broadcast a recording of Michael Cohen — the president’s personal lawyer at the time of the recording — threatening a Daily Beast reporter who was working on a story about Ivana Trump’s rape allegation during Trump’s divorce case with the claim “you can’t rape your spouse.”

It’s bad enough that Lawyer Cohen did not hear of the law changing decades ago, Judge Troiano claimed the case of having intercourse with a clearly drunk teenager was not “traditional” rape with “two or more generally males involved, either at gunpoint or weapon, clearly manhandling a person.” I suppose her head banging into a wall as he thrust into her from the rear did not count as “manhandling.” How do I know that detail? The young man had his friends immortalize his conquest on a smart phone. He then shared the video evidence around their high school but denied having done so.

Judge Troiano held that even if the sexual encounter was rape, there was plenty of reason for him to deny the prosecutor’s motion to certify the case for prosecution in adult court. The young defendant “came from a good family” and an “excellent school” and was an Eagle scout who was plainly headed to “a good college” because his “scores for college entry were very high.”

Not only did the judge deny the motion, he took the prosecutor to task for failing to prevail on the girl’s parents not to prosecute. A rape conviction, the judge said, would be “devastating” to the young man’s life going forward.

Devastating to his life? I only did one year of high school, but that was enough to get the flavor. After that video went around, my wife suggested the girl would not be attending her 25th or 50th high school reunions. I take her point.

Is it fair to expect a 16-year-old boy to know taking advantage of a drunk girl was rape when apparently some lawyers and judges are not clear about it? Even if that might be an issue in some cases, in this one the young man texted his friends as he shared the video that it showed “[W]hen your first time having sex was rape.” According to The New York Times, the judge commented that the text bragging about rape was “just a 16-year-old kid saying stupid crap to his friends.”

The victim was that same age but the judge appeared to hold her to a higher standard when he questioned “whether or not this young lady was intoxicated to the point that she didn’t understand what was going on.” After the encounter, the girl’s friends found her on the floor, vomiting.

This hearing took place in July of 2018. In June of this year, the Appellate Division of the New Jersey Superior Court reversed Troiano’s decision. I can’t help wondering what took them so long.

Judge Troiano and I have one more thing in common besides age. We are both retired. He was pressed back into service as a visiting judge, an assignment that is bounded by time in New Jersey measured in months or years. In Texas, I was assigned either for a particular case or for a particular judge’s docket while that judge was out of town or indisposed. My point is that because Troiano is, like me, retired, the taxpayers are not stuck with him and it’s up to other judges whether he is called in by assignment. His assignments are quite a bit longer than mine were, but surely his must have expired or nearly so in the time it took that case to get reversed.

The issue I want to raise goes far beyond one judge. Here are two real cases only lightly disguised, both involving teenagers charged with criminally negligent homicide.

Case 1: A student from an expensive prep school was driving an expensive and over-powered sports car (over-powered in my opinion from having driven one). On a lunch break, the student was in a hurry to beat the bell and rolled though a stop sign. The car was t-boned by oncoming traffic the driver should have seen and the passenger died. The defendant was represented by an associate from one of the finest criminal defense firms in Austin.

Case 2: A public school dropout had been allowed to borrow his supervisor’s car to run an errand. On the way back, he saw a friend and they decided to do a bit of cruising before returning the car to the burger joint where the driver and his supervisor worked. An officer attempted to stop the car for an equipment violation but the kid thought he was being stopped for driving while black. His panic led to an almost high speed chase that ended in a collision with a tree and the death of the passenger. The vehicle was too wrecked to check for the equipment violation and the supervisor did not press charges for unauthorized use of the car. The driver was assessed a fine for fleeing and the only charge left was criminally negligent homicide. The defendant was represented by a court-appointed lawyer.

Neither kid intended anyone to die, but neither kid had much defense to the government’s claim that their negligence killed their passengers. Both lawyers filed an application for deferred adjudication before trial.

In case one, the defendant had no criminal history and the prosecutor made no recommendation.

In case two, the defendant had a probated sentence for shoplifting in the past and the prosecutor opposed deferred adjudication because, she said, the defendant was running from a police officer.

If I were to defer adjudication, I could attach any conditions I could attach to a probation but after the term of supervision was completed, the case would be dismissed and the defendant would not have to mention it as a conviction in the future. Should the defendant fail to complete the term of supervision without incident, I would have the entire sentencing range in front of me.

I should mention that unless I found out something else not stated here, both of these cases would be probation cases with or without a trial. That’s because I considered that I was sentencing the persons rather than the crimes and neither of these kids appeared to me bad enough to justify dinging the taxpayers with paying for a very expensive bed in the county jail.

If I were sentencing the crime, it would seem to me reasonable to say that if you kill somebody you ought to do some time, no exceptions. If that is to be the practice, why do you need a judge or a pre-sentence investigation? Why did the legislature allow a range of sentencing if there were not a case for the top end and a case for the bottom end and most cases falling somewhere in between?

Without a doubt, the kid in case one had more to lose and it’s rational to say of those to whom much is given, much is expected.

Without a doubt, the prosecutor in case two was as rational to recommend against deferred adjudication for running from an officer as the defendant was to believe the stop was for driving while black and when the officer got the boys out of the car, anything could happen — most of it bad.

The motions I was hearing could have gone either way in each case and stayed within the bounds of rationality. I do not think that was the case for Judge James Troiano and the consequences, if any, for rape of a drunk girl. I recognize that your mileage may vary, because the myths around rape would not have persisted so long unless a lot of people believed them.

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