Victims of Crime

A week ago, Colbert King of the Washington Post wrote a column which described how a D.C. Superior Court Judge had sentenced a habitual criminal to probation and drug treatment, following his conviction for burglary. Mr. King noted:

The record shows that Scarborough has entered guilty pleas to three counts of burglary and one count of receiving stolen property. You also learn that he has been tied to more than 30 burglaries and has had four prior convictions, including possession of cocaine in 1998 and carrying a pistol without a license in 1997.

I am habitually cautious of editorials which declaim against judges as "soft on crime", as often the columnist doesn't understand the legal issues, or (worse) is misrepresenting the facts or issues so as to inflame his audience. However, I had to concede that Mr. King has a very strong point - in this case, the defendant really should have been incarcerated.

Today, Mr. King provides a follow-up editorial, in which he describes some of the feedback he received to his prior piece. Some of the feedback was very much on his side, while some of it was very much in support of the judge. Some of the rhetoric was unfortunate, particularly in my opinion as it related to justifying or excusing the defendant's conduct or the "slap on the wrist" penalty applied by the court. Some of the comments, such as the thought that the judge must be frustrated with the system, and that incarceration doesn't (necessarily) solve society's problems, do have some validity - even if I disagree with their application to this particular defendant.

When I managed a delicatessen during my undergraduate days, I had a number of incidents where I suspected or knew that an employee was stealing. Often the most egregious theft is by a newer employee, one who is hard to like, or one who anticipates changing jobs - but sometimes it's a long-term, trusted employee. It is, I think, difficult for people to understand what it is like to discover that somebody you know (or, at least, think you know) and trust turn out to be a thief. It didn't need to be my money for there to be a real sense of betrayal. During that time I was also the "victim" of a very peculiar burglary - and I guess I should count myself as fortunate in that it didn't change my personal sense of safety or make me feel like the sanctity of my home had been violated. But I do know people who, following a burglary, need a lot of time to regain a feeling of safety and security in their own homes.

When I later practiced criminal law, I represented a number of embezzlers, and also a number of burglars. I would like to say that I sensed great remorse, or that they were learning from their mistakes, but my dominant memories of the embezzlers are of those who couldn't understand why the prosecutor, judge and (ultimately) probation officer who prepared their pre-sentence report thought they did anything particularly bad. The "burglars" were a more eclectic group, and, due to Michigan's statutory scheme, I am lumping a number of categories of criminal under that label. But most took little responsibility for their actions, and I can't recall any who had a real grasp of the effect of their conduct on their victims.

I am certainly not arguing that probation should not be extended to embezzlers and burglars, particularly for a first offense. Even the Lord High Executioner accepted that the punishment should fit the crime. However, I do think that once a person goes through the system, that person should be imbued with the sense that the Sword of Damocles is now suspended by a hair above his or her head, and that they really don't want to come back before the court.

When a defendant in modern America has been connected with approximately thirty burglaries, and convicted of a number of them, probation simply is not an appropriate penalty. Which of the four basic goals of sentencing - punishment, retribution, rehabilitation, and deterrence - were advanced by giving this particular defendant probation?

To paraphrase the Governator, "He'll be back".

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