A misconception of justice

One of the most common misconceptions of our criminal (in)justice system is that it's designed to mete out justice to both the citizen accused and the alleged victim.

Every time a police officer kills an unarmed black man we see signs demanding "justice" for the dead man. We hear crowds chanting "No justice, no peace!" We see interviews with grieving friends and family members calling out for justice for their loved one.

And while I am sympathetic to the pleas and to the tone of the requests, they are wholly misguided.

If you're seeking justice for a wrong committed by another person or institution, your proper remedy is found in the courthouse -- but on the civil side. That's what our civil courts are designed to do - to determine who's at fault for someone's injury to and award a cash judgment.

The criminal (in)justice system is designed to see that the accused receives a fair trial and that the defendant's rights under the Bill of Rights are protected while the state attempts to take his liberty away from him. At the end of the day the only thing a judge or jury can do is determine whether the state has proven its case beyond a reasonable doubt. The only remedy the criminal court can offer is to restrict the defendant's liberty.

MADD is upset that Ethan Couch, the so-called victim of "affluenza" is being released from the Tarrant County Jail after cooling his heels for the past two years. Colleen Sheehy-Church, the president of MADD, claims the release of Mr. Couch is a "grave injustice" for his victims.

Sorry, ma'am, none of what goes on in a criminal court has anything to do with what you refer to as justice for the victim. Oh sure, the prosecutor will bring up the wishes of the victims (so long as they are in line with the DA's wishes), and the judge will bring it up during sentencing, but a criminal court is not capable of handing out justice to anyone other than the accused (if even that).

It is an ugly reality money can't compensate for the most of the harms we face. But that is all we have in our court system. Civil courts do have the power to order a person or company to do certain things - or to refrain from them - but that doesn't always make up for the harm one suffered.

I'm sorry for the loss the families of the victims suffered. There will forever be a hole in their lives - a hole that can never be refilled. But locking someone up behind bars for longer than the sentence requires isn't justice. There is also the fact that Mr. Couch was a teen when he got drunk and caused an accident that killed four people. That's not an excuse - but it is a mitigating factor.

Unfortunately state legislatures are only too eager to court those who think the criminal courts ignore the victims of crime so we have bad law upon bad law that create so-called victim's bill of rights and place draconian bond conditions on those merely accused of committing a crime.

When victim's advocates stomp and scream about justice what they are really saying is that the accused should receive a harsh sentence with no consideration of mitigating factors or the need for treatment or counseling. Their solution is always to lock more people up for longer periods of time.

That's not justice. It's retaliation.

Punting time

As far as crimes go, setting an eight-year old boy afire falls toward the end of the spectrum of the worst of the worst. But what do you do when the alleged culprit is only 13? What do you do when the victim dies 14 years later from complications due to being set on fire?

You can't charge the culprit as a juvenile because the juvenile courts no longer have jurisdiction over him. But can you charge him as an adult because of his age when the victim died?

At the time of the incident state law allowed for juveniles as young as 14 to be certified to be tried as adults. Now the Supremes have said it's okay to try a ten-year old as an adult.

Yes, now that Donald Collins is an adult he understands the consequences of setting a person on fire. He's old enough to appreciate the nature of the crime. But we can't transfer that maturity to the time he committed the crime.

Our juvenile courts were set up because someone realized that children aren't as mature as adults and that the punishments meted out to adults weren't appropriate for a child. Yes, it sometimes meant that someone might walk away with a much lighter sentence for the same criminal act as an adult. There is no question that a person is just as dead whether his killer is a juvenile or an adult. There is no question that the family of the victim suffers the same loss regardless of the age of the killer. And no punishment can ever heal the loss.

Up in Montgomery County the County Attorney asked Attorney General Greg Abbott whether or not prosecutors could charge Donald Collins as an adult for the murder of Robbie Middleton. The county attorney, David Walker, was concerned that Mr. Collins would claim that trying him as an adult for the murder would violate the Constitution's ban on ex post facto laws.

Much to Mr. Walker's dismay, however, the Attorney General decided that "[a] county or district attorney's determination regarding the initiation of further proceedings falls within in the scope of prosecutorial discretion." In other words, Mr. Abbott punted.

Abbott Opinion No. 967

Of course that's just what Montgomery County officials did, too. They were hoping that Mr. Abbott would bail them out of having to make the call. If the AG said they couldn't do it, well, they had their political cover. They could call a press conference and announce that, but for the Attorney General, they would prosecute Mr. Collins as an adult. Or, if the AG told them it was okay, they could look like they were tough on crime by formally filing charges.

But now Mr. Walker and the Montgomery County District Attorney, Bret Ligon, are going to have to make the decision themselves.

As badly as Mr. Walker and Mr. Ligon want to do something, there is nothing they can do in this matter. It doesn't matter that Mr. Collins is an adult now. It doesn't matter that Mr. Collins has spent time in the penitentiary for his actions as an adult. The fact remains that he was still a child when he committed the crime and a child's brain doesn't work like the brain of an adult.

Sometimes there's nothing you can do. Unfortunately, it's situations like this that lead to bad laws and ill-advised opinions.

It's all about the kids... really?

As Scott Greenfield likes to point out -- it's all about the kids.

According to an article from the Associate Press, a little more than a third of the people who committed sex offenses against juveniles are, themselves, juveniles. And, since it's all about the kids, these juveniles are now required, in many instances, to register as sex offenders.

What purpose does that serve? What purpose is served by requiring a teenager to register as a sex offender for life? What's that going to do for his education prospects? What's that going to do for his future employment prospects?

All we're doing is guaranteeing he will fail in life. And if he can't get his education, and if he can't find a job, then what's he going to do? If it's all about the kids, what about the kids whose lives are being destroyed before they've even begun?

But you can't reduce that to a soundbite. You can't reduce it to a slogan. It would take some actual thought to understand the irreparable harm we're doing - and no one in the state legislature is willing to do that. God forbid someone criticize them as being soft on crime or coddling child molesters. Mustn't take that risk.

So we force them to register as sex offenders for life.

Mark Chaffin, a professor at the University of Oklahoma, was the co-author of a 2009 report for the Juvenile Justice Bulletin entitled "Juveniles who commit sex offenses against minors." In that report the authors noted that the vast (I might even say "overwhelming") majority of juveniles who committed sexual offenses against minors are never charged with another sex offense.

Similarly, clinical data point to variability in risk for future sex offending as an adult. Multiple short- and long-term clinical fol­lowup studies of juvenile sex offenders con­sistently demonstrate that a large majority (about 85–95 percent) of sex-offending youth have no arrests or reports for future sex crimes. When previously sex-offending youth do have future arrests, they are far more likely to be for nonsexual crimes such as property or drug offenses than for sex crimes. These empiri­cal findings contrast with popular thought and widely publicized anecdotal cases that disproportionately portray incidences of sex crime recidivism. Nevertheless, a small number of sex-offending youth are at ele­vated risk to progress to adult sex offenses. To identify those who are more likely to progress to future offending, researchers have developed actuarial risk assessment tools that have demonstrated some predic­tive validity; efforts to refine these tools are underway.

Citations omitted.

Once again I ask the question, what purpose is served by requiring these juveniles to register as sex offenders for life? More importantly, why hasn't anyone in power thought about the long-term implications of sex offender registration?

It doesn't take courage to stand up in front of an audience and announce that you're tough on crime. It doesn't take courage to stand up and tell them that "it's all about the kids." It does take courage, however, to  take the time to explain why we need to think about the consequences of the laws we pass today. It does take courage to stand up to stop the madness.

That is one thing sadly lacking in Austin.

Is it genocide

A Northeastern University study has found that between 2002-2007, the number of black male juveniles murdered increased by 31% and the number of black perpetrators increased by 43%.

The numbers in Houston are even more alarming. Between 2001-2007, the number of young African-Americans (age 14-24) suspected of murder increased by 139%. The number of young black males murdered in the city increased from 42 to 129.

I'm not going to sit here and pretend to know why this is and what needs to be done to bring the numbers down, but I know that something ain't right.

Whether it's a culture that glorifies violence and materialism or whether it's a society that has marginalized the poor; whether it's a lack of role models and father figures or whether it's an education system that has abandoned the inner city; whatever it is, it needs to be fixed.

It may be that the statistical methodology in the report is faulty and that the numbers aren't as alarming, but that doesn't change the fact that one young life lost at the hands of violence is one life too many.

Criminalizing childhood

In this morning's Houston Chronicle, state and metro columnist Rick Casey questioned our lawmakers' priorities in defining crimes. Four middle-school students at a suburban Houston school who wrote on the wall of the girls' restroom have been charged with felonies.

Per our sage lawmakers in Austin, taking a pen and writing on a bathroom wall is a worse offense than hazing, possessing two ounces of marijuana, stealing $1499, engaging in prostitution, carrying a prohibited weapon, making a terroristic threat, assaulting a family member, or a second drunk driving offense.

Teenagers do stupid things. I did some things during my teenage years that were incredibly stupid and I'm sure y'all did, too. But just because something is stupid doesn't mean it should be a crime -- and it certainly doesn't mean that a teenager should have to carry the stigma of a conviction for the rest of his or her life.

Somewhere along the way we, as a society, have lost our common sense. In days past if you got into a fight at school, got into an argument with a teacher or administrator or wrote on a wall or door you were punished by the school (and then by your parents). Nowadays you're likely to find yourself in court facing a criminal charge - with your parents footing the bill for hiring an attorney.

Are we, as Mr. Casey ruminated, criminalizing childhood?