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"Hard cases lead to bad public policy"

07/31/2008

 By Anne Donahue

"Hard cases make bad law." So said Oliver Wendell Holmes Jr. (1841-1935), considered by many to be one of the greatest justices of the United States Supreme Court.

Holmes meant that the most difficult situations -- terrible tragedies, extreme horrors and examples of the worst in us -- can result in laws with unintended consequences that go far beyond what we might otherwise consider just and appropriate.
Two years ago the Vermont Legislature passed laws intended to maximize protection of our children, and to create the very best tools to keep sexual predators off the street and monitor them for life. Vermont did not take a weaker route just because it took a different route than some other states. Yet now, in outrage over an outrageous crime against an innocent child, we hear new anger that the state did not pass "Jessica's Law," and we hear talk of capital punishment, civil commitment and castration.
The United States Supreme Court ruled just a few weeks ago that society's ultimate tool for retribution and deterrence, the death penalty, could only be justified when a person has taken the life of another person. That case involved the rape of a child.
Typical of such cases, the little girl had changed her testimony several times: perhaps to protect the rapist, who was alleged to be a close family member, or perhaps because she was being pressured to identify the person investigators believed was the likely suspect.
What is the worst crime in a society? Brutal assaults, that leave victims permanently disabled? Brutal sexual assaults, that leave victims permanently emotionally scarred? Or death itself? Is a child's life worth more than an adult's?
These are the kind of questions that call for discussion in a society before jumping into new responses to one type of crime alone. Otherwise, we cycle through what we identify as the most heinous crime of the day, and deal with it in isolation.    
Vermont got tough on young criminals several decades ago. The state now treats 16- and 17-year-olds as full adults, often even for minor crimes. We have since learned that this is a mistake; that kids can't form the judgments adults can, and that they -- and we -- benefit more when they get the supports of the juvenile system. But we haven't turned back.
We keep increasing our rates of incarceration without regard to effectiveness. Data has never been repudiated that it is the certainty and swiftness of justice, not the severity of punishment, that deters crime.
Keep offenders locked up unless they have completed sex offender treatment? Funds already compete with inadequate resources for anger management and addiction treatment, problems that cause far more violence, including sexual violence, than sexual deviance. Whenever more treatment money is sought, we, as the public, challenge spending more on prison programs.
Keep sexual offenders in "civil confinement" -- a "treatment prison" -- after they have finished their prison terms because they have a "mental defect" that makes them that way? If they cannot help themselves because of a mental defect, then we should confine them for treatment from the beginning, instead of convicting them for a pre-meditated crime. If we convict them for an act they are responsible for, then punishment should be harsh, but not extended beyond our criminal laws under a guise of treatment.
There is no balancing in the scales of justice when laws allow for no consideration of individual facts. We can assure a known outcome when we eliminate the risk of error that comes with the fallible nature of discretion. However, not every potential outcome can be weighed in advance to be sure it is intended.
My heart shares the grief that led to the chants "never again; never again" at Brooke Bennett's funeral. But there is no such thing in the world as "never again," as long we are human.
There is such a thing, unfortunately, as passion of the moment that can lead to worse results in the future in the elusive pursuit of "never again."
Hard cases -- heart-wrenching, horrible crimes -- lead to bad public policy and bad law.

Donahue lives in Northfield.
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