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Textualism and A Certain Misplaced Sympathy

The headline currently on the front page of the Greying Lady seems like a Scrappleface parody.

To More Inmates, Life Term Means Dying Behind Bars

To which many non-legal or non-NYT readers likely responded, "Well, yeah. What exactly does 'life' mean otherwise?"

The answer, of course, is that it doesn't mean 'life' at all, or at least, it didn't when I was born. So far, so unexciting: much of the truth-in-sentencing movement was based on the idea that a life-sentence should be a life sentence, and the truth-in-sentencing movement evolved because sentencing wasn't very truthful. The article is worth reading because of what it reveals about both law and the NYT.

You know how when you're a 1L everyone says you'll learn to "think like a lawyer"? Well, here's a judge who seems to have been stung by that very skill:

The judge, Michael F. Sapala, said he had not anticipated the extent to which the parole board "wouldn't simply change policies but, in fact, would ignore the law" in denying parole to Mr. Alexander. "If I wanted to make sure he stayed in prison for the rest of his life, I would have imposed" a sentence "like 80 to 150 years," the judge said.

The frustration of the judge is more understandable than I would have considered before starting law school. After all, he had expectations when he imposed the sentence, expectations based upon the then-current legal landscape. Who cares if "life in prison" may in some platonic sense mean that one goes to prison and dies there? "Life in prison with the possibility of parole" as a legal term then meant a prisoner would get parole or clemency, assuming a nose that was generally kept clean. The proper term, of course, would be "indefinite" sentencing. In theory, he's handing control of the sentence to a parole board, but with a certain understanding.

But I've not been in legal education long enough that I can't stop and wonder: why say life when that term has a meaning and carries with it the risk that the legal landscape shall shift? Whatever one wants to say about originalism, or textualism, or what have you, it does have this beauty: adopting a textualist attitude means you are much less likely to wake up twenty years after the fact objecting that "down" now means "up."

(The legal realist in me wonders: is the advantage of the term "life" that you can go before the audience that votes you into power and talk about giving "life" sentences, and yet know that your actions don't carry that consequence? Was "life" instead of "indefinite" sentencing the common term as a matter of historical practice, or was this useful in running for public office?. In the latter case, there is a certain irony to the consumers of the term eventually demanding truth in advertising.)

I feel for the judicial actors, though. The dark humor of the article comes from the extent to which the NYT bends over to make itself look like a conservative's parody of a liberal newspaper.

Consider the case of Jackie Lee Thompson, the central remorseful convict of the piece. What would you expect from a NYT article trying to make a convict sympathetic? A horrible time in foster care? A mother who died young, a childhood of being abused by playground bullies? A speech impediment? You'd make sure he was a good convict who used his time in jail to get an education, and pepper him with adjectives like "soft-spoken." In Thompson, the NYT finds a victim of the prison system with all that in spades.

The paper rather downplays the fact that this man, at the age of 15, shot his lover with three times using his friend's shotgun, slaying her for lying to him about a pregnancy. (She wasn't, said she was.) Since she had the temerity to refuse to die just then, he and two of his friends dragged a bleeding girl to a freezing creek and dumped her in it with the hopes she'd drown gracefully. Either physics or a desire to cling to life--the NYT isn't specific about her struggle, it being irrelevant to their story--kept her above water. Not to be deterred, the ever-resourceful young men (Thompson had two accomplices to kill a girl) pushed her underneath the ice.

Ever stuck your hand in the late winter water of a Pennsylvania creek? I haven't, but Michigan isn't that much colder than Pennsylvania around New Years, and my foot's slipped through the ice there once or twice. The water sticks you with knives and needles for as long as it can before you go numb, and that's through a strong pair of boots. I cannot imagine and don't want to know what that feels like on my face. Or on an open wound.

But in New York Times-land, such a murder becomes a cross between clinical procedure and a whimsical Boy's Own tale gone bad:

He used his friend Dennis Ellis's pump-action shotgun, Mr. Thompson said, and he shot Charlotte at close range three times. He tried to explain the repeated shots.

"You have to pump each time," he said. "It is true. Dennis and I, we always had a habit of going out in the woods with a gun and see how fast we could empty a gun. That's where the second and third shots come from."

Charlotte's wounds were not immediately fatal. The youths had the idea, Mr. Thompson said, of putting her in a nearby creek. But she bobbed to the surface. So the three teenagers slid her body under the ice that covered a part of the creek, drowning her.

"You should have seen how stupid we was," Mr. Thompson said. "I wish I could change that."


Yeah, me too.

Such limp prose makes me wonder what kind of planet NYT writers like Adam Liptak live on. "The youths had the idea"? Youths have an idea that today would be a good day to skip class. "The youths had an idea" is a phrase suited for one of those bad middle-school reading assignments like The Pigman, words reeking of the innocent and naive. When three boys decide that they've got no more mercy for a girl, and can think of no cleaner way of killing her than drowning her in icewater, there's a little more evil than can easily be held in the phrase "the youths had an idea."

The entire article contains much of the same. Ballast for the poor convict is in this case provided by one paragraph describing how horrible Mr. Thompson's young life was for every paragraph delivered in bland and tepid prose concerning the murder of a young woman. This life is horrible indeed, but provides no reasonable explanation of why one should excuse someone who ended his lover's life in pain and terror.

There are good and practical arguments as to why we should consider paroling more lifers. Many of these are solid economic arguments involving recidivism rates, costs of incarceration, and the usefulness of attempting to rehabilitate someone who is never going to be released. There are good legal and policy arguments for doing so: is it just to keep punishing someone now if the expectation when they were sentenced--whatever the words--didn't match the terms used? A serious person can make credible arguments about that, however much one might disagree.

But the New York Times has taken an obvious horror and made it bloodless, let a technicolor tragedy bleed to sepias because of the simple passage of time. And it's not just the NYT. In the almost endless swirl of symposia, law review articles, conferences, debates, and even blog postings that advocate sentencing reform, there's a sense of the New York Times that is too often present. The standard process, if one is to mention an actual crime at all, is pretty well set: make the crime as statistical as possible, explain every mitigation that was overlooked, and then combine an economic analysis with an explanation of why these sentences violate some legal norm.[1]

This may be fine for academia, but I can't see this as a sensible strategy if one really wants to advocate sentencing reform outside of the ivy tower. To appeal to a public that has elected the prosecutors and put in place many of the judges, to those who have demanded that we be 'tough on crime,' there's a condition: first deal honestly with the issue of condemnation. Don't try to play on the listener's heartstrings with Mr. Thompson unless your opening movement tells a passionate tale of betrayal, slow suffering and skin turning blue in icy waters. The NYT focuses on the criminal's understanding and regret at what he's done, but that misses where the listener's interest really lies. Why does he care whether a man who's been punished for 35 years understands what he did? The real issue is whether the person proposing reform understands, and if the reader can trust that person.

Establish that you understand the wrongness, that you don't excuse it, and that you still propose parole, and I'm pretty certain others will follow.

[1]: Another classic of the genre is the "unfair three strikes" paragraph. The example from this NYT piece:

But some critics of life sentences say they are overused, pointing to people like Jerald Sanders, who is serving a life sentence in Alabama. He was a small-time burglar and had never been convicted of a violent crime. Under the state's habitual offender law, he was sent away after stealing a $60 bicycle.

A "small-time burglar." That's a person who breaks into people's homes, who steals things that may or may not be insured--he doesn't care--and may or may not have value beyond what he'll pawn them for. After he's gone, the person whose home has been burgled may never feel safe again. In areas frequently burgled, shopkeepers spend more on security than serving customers, and families are wary of buying nice things for their children--say, a $60 bicycle--that will just end up being sold to a fence.

That's not to say that there are not pragmatic reasons for Mr. Sanders to be paroled. But that paragraph makes it sound as if the greatest injustice in the case is that a small-time burglar--almost a small businessman, a quick-thinking entrepreneur--has been put away for life. After all, he was only taking "$60 bicycles," and who could care about those?

The old saying about a liberal being a conservative who's never been mugged...

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