While waiting for the 12th day for my hearing in Judge Jeffrey Cohen's courtroom I overheard a half hour conversation between a man named Kevin and a woman named Barbara. Kevin was clearly going to run for some office in Westchester County, presumably a judicial post. Barbara, by her own comments and the deference shown her by Kevin, was clearly supposed to be some big macher (yiddish meaning big shot or 'player') in Westchester Democratic politics. They talked about what events Kevin should be going to and to what people he should be contributing money. Barbara said she was on the Board of Alumni at Pace and could be helpful there. Kevin told her that he had hired Robin Swanson to do the scheduling for his campaign. I mention all this as background for something Barbara told Kevin. She discussed several people - I'm guessing judges - as potential candidates. She said of Judge Cohen, "Jeff Cohen is a known quantity, he knows how to play ball". I wondered with whom she meant. Play ball with his superiors in court to give them the results they desired? Play ball with local democratic machine operatives to give them the judicial decisions they desired in order to make him an attractive future candidate? Play ball with whom and about what?
It is a well known fact in that courthouse that Judge Cohen is a very ambitious man. He seeks higher judicial office than mere County Court Judge. And he is a smart man. It is also well known that his predecessor, the judge who sat and heard sex offender cases all day, was removed because of the perception by court higher-ups that he was too fair to the defendants; he actually required proof from prosecutors to back up their claims. It was also said he gave out too many Level 1s and not enough Level 3s. So he was removed and replaced with Jeffrey Cohen, a man "who knows how to play ball". Of the many things you can say about Judge Cohen you cannot say he isn't smart and you cannot say he doesn't get what is expected of him. He gets it.
So when beginning what would turn out to be a 2-day hearing in my case, I knew that the odds of receiving anything approaching a fair hearing were virtually nil. But I had some hope. As part of the nearly 2 weeks of having to appear in his court only to have matters adjourned, I witnessed him accept the plea and sentence a man for a most heinous crime. After talking to people in that courthouse I discovered that this plea deal and that sentence were considered shocking even by the most jaded and hardened observer. Ordinarily I chastise people for commenting on cases that they may have seen only 5 minutes of on Court TV. It is inherently unfair to comment on a case without knowing all the facts. But after chatting with people in the courthouse, I think I can say there is no mitigating what Judge Cohen did. Here are the facts as presented by the Assistant District Attorney and to which the man plead guilty: the defendant penetrated a girl under the age of 10, orally, anally, vaginally, over a period of time. Long and short of it he repeatedly raped this little girl for quite some time from the sound of it. Pretty horrible, right? So what did Judge Jeffrey Cohen sentence this man to in state prison? 10 years? 20 years? Life? Nope - 3/1/2 to 4 years in prison. In California sentences for passing bad checks are routinely handed down that are longer than that. And remember, unlike federal prison where you end up doing most of the time you are sentenced to, in state prison this man will do far less. And we know there can't be any mitigation here. The man cannot use as an excuse that it was consensual or they loved each other. No judge in a child rape case is going to accept that. So it is unfathomable to me what was in Judge Cohen's mind to hand down a sentence like that?
I bring all this up for a few reasons. First, how is it possible that that sentence did not raise any questions or newspaper reaction? Where was the outrage? I'm a felon and I was outraged. But I bring it up to make a much larger and broader point. We in this state have taken it upon ourselves to remove some of the most basic civil liberties we can bestow and in turn register human beings. Technology now makes this an easy thing to do. It is apparently legal because the Supreme Court says it is not punishment which would make it unconstitutional and it is not double jeopardy which would also prohibit its application. Now lets accept for the sake of argument that when this man I mentioned leaves state prison in 2 years or so, he receives a Level 3 at his SORA hearing. That is the worst rating you can receive. It means you pose the highest risk to re offend. Your danger to the community is severe. And it is for life. Now here's my question: How can it be that a crime that only garners 3 1/2 - 4 years in prison on the one hand makes you the most dangerous category of human being alive in the State of New York on the other? If the underlying crime - the repeated rape of this little girl - is not worthy of 'serious' time, then how can we reconcile the incongruity of a lifetime of registration?
The short answer is you can't. Nothing about sex offender registration is based on fact, logic or scientific evidence. It is 100% pure hysterical emotion. Nor can I provide a specific answer in that case because Judge Cohen's action is simply inexplicable. It's frankly outrageous. But the general answer is clear. We have become lazy about the protection of our fundamental liberties. Whether it's the crimes of the Bush years or this registration business. The correct application of punishment is to get the sentence right the first time and not rely on this extra-constitutional measure of registration. The theory seems to be that if we go lenient on the front end, don't worry it's made up for on the back end by lifetime registration. Society has a right to punish people who have run afoul of its laws. And in doing so should apply those punishments where they are meant to be applied - at sentencing. People have the right to a second chance. And if society deems they are unworthy the place for that decision is at sentencing for a specific crime. It is not, as you leave prison, when the Government seeks to civilly commit you, not for a new crime or anything you have done fresh, but just to extend your sentence indefinitely or to register you so that you may be monitored for the rest of your life. You do your time and you're out. Commit another crime and the court has an absolute right to factor in your record to sentence you to a longer term. What it cannot do is decide after your sentence is up that it doesn't think you've served long enough. The foundation of our criminal justice system is based on the notion that you are judged for each crime you commit. There is nothing anyone can do with any reasonable certainty to prevent you from committing another crime if you are determined to do so. The question is what is the balance between trying to protect society and not moving towards the Minority Report world we are almost in.
It's the Bush argument. You can never, ever stop people from committing terrorist acts. Given that, how far are you willing to go to try and make sure as few happen as possible. How much of ourselves are we willing to lose as a civil society to keep those numbers down? Bush/Cheney argue a lot. Civil libertarians argue not so much because the gains are so few and the cost so enormous. Even if there was any evidence, let alone a lot, that registration and GPS and commitment worked to prevent crime, I would still oppose it. But my job is made easy by the fact that there is zero evidence that any of this works. And since that is true how can we justify these abuses of people's basic rights?
I recently saw the film, 'Milk' about SF Supervisor Harvey Milk. In the film they recount the effort to pass Ballot Prop. 6. That initiative would have terminated any teacher in the state who was homosexual. Additionally, it would have fired any non-gay teacher who supported gay educators. Worse yet, you didn't have to self identify yourself as gay in order to be fired. The legislation had tests to determine if you were gay. The premise for the bill was that homosexuals are predatory pedophiles and by definition seek to recruit children to become homosexual. This must of course be prevented. Frightening? Outlandish? Sitting here in 2009 it seems just ludicrous. But when it was announced it had 70% statewide support in the public opinion polls. Why was Prop. 6 defeated? One reason - there was a public debate. Brave leaders from the President of the U.S. to the Governor of the state and former Gov. Reagan all opposed the measure. Spirited debate was held all over the state to educate people on what that law would have meant. The reason these insane registration laws continue to exist is that public debate is prohibited. I don't mean legislatively. But try being on the opposing end of a registration debate and see how fast the labels 'pedophile' or 'child molester' are hurled. Debate stops instantly. In the same way that for most of the Bush Administration opposing the extra-constitutional measures meant you supported "The Terrorists".
But courageous men and women fought these measures in the courts. It certainly wasn't any member of congress. It was JAG lawyers and legal aid groups. They fought them for people who may have indeed been terrorists but who had an absolute right in our country to be charged and tried. It was the fundamental rule of law and not the individual in the case that were being fought for. Until good people step forward to fight against the burgeoning sex offender industry things will get darker for everyone. And be clear, that's what it has become. From treatment clinics to academics to prisons to prosecutors, a huge number of people now make their living from the fear and hysteria associated with so-called sex offenders. These laws will get worse before they get better because the industry has now found a way to monetize it with all these jobs. It is one of the few growth industries we have in the economy.
Depriving people of basic rights out of fear is what lead to Plessy, Dred Scott, the Attorney Generals list of subversive organizations, the Alien & Sedition Acts and Japanese internees. Fear and ignorance have proven over and over again to be the worst possible motivators for crafting good legislation or court opinions. Sex Offender registration laws one day - some day - will be added to that list of shameful blights on our history.
I agree, and I haven't seen MILK, I hadn't planned on it but maybe I will go see it just to see the stupidity you mentioned in a historical setting. As for the sentance, as a plea bargain it may have been a result of poor evidence, an uncooperative victim etc...I wouldn't read too much into it.
Posted by: tom | March 20, 2009 at 06:25 PM