There is a saying in the legal community that “hard cases create bad law.”  When I was young, whenever I would explain my behavior as contingency planning based on the possibility that something might happen, my father had a saying of his own.  In response to my “if this happened” or “if that happened” reasoning, he would state the following maxim:

If worms carried shotguns, robins wouldn’t eat them.

Not infrequently, as a child engaged in excessive contingency planning, I found this response nothing short of irritating.  As a rational adult attorney, I have found myself quoting this maxim with some regularity.

A bold headline on page B1 of the Fresno Bee today states that a 10-year-old boy is being held in the shooting death of his father.  As a criminal defense attorney increasingly practicing juvenile defense in the Fresno, Madera, Kings and Tulare counties of central California, the story naturally caught my attention.

The story itself is — I’m quite sad to say — mundane, bordering even on the banal.  American culture these days virtually requires that children, from at least the frequently stressed and overworked middle-class on down, raise themselves with little to no parental guidance.  Our young are no longer inculcated with whatever values naturally-individualistic Americans might have that would encourage respect for others, even parents.  The sort of internal controls necessary for society building are increasingly absent.

Not surprisingly, it has become normal for children — who lack the maturity to make rational decisions when it comes to restrictions on their behaviors anyway — to shoot people, including their parents, who get in the way of their perceived unbridled right to do as they want, when they want, how they want.  Hell, it’s become normal for adult Americans to behave this way.  Just last week, another driver, irritated because he had to speed up to merge in front of me (in other words, irritated because I followed the traffic laws of the State of California and expected him to either speed up or slow down as necessary to safely merge), expressed his irritation by throwing what appeared to be a large beer bottle at me on the freeway.

But I digress.

Another story in today’s Fresno Bee discusses a case that is currently riling the “we’re too soft on crime” crowd.  Forget that California’s prisons are grossly overcrowded, requiring federal judges to order the release large numbers of prisoners to leave enough breathing room for those who remain.  Forget that our laws are already among the most draconian in the nation and that therefore California leads the pack — competing even with other countries for the lead — in locking up its citizens.  Forget that most of the laws do not and cannot actually achieve their desired goal.  Forget that all this is the primary reason California is going broke and unable to fund important social programs (like schools).  A “parolee” and registered sex offender is in the news accused of kidnapping an 11-year-old girl and holding her hostage for 18 years.

This is a hard case.  Unsurprisingly, it appears set to help create bad law — or at least prevent the passage of good law.  Comes the cry from Repugnicans, this case is proof that our laws are too lenient.  We need tougher laws than those already bankrupting California.  We should not be letting prisoners out early.  We need to lock people up longer.  Hell, if you commit a crime — Repugnicans don’t seem to care how trivial — you should never get out of prison.  Ever. As in “E-V-E-R” for the rest of your natural life.  The Taliban got nothin’ on California Repugnicans.

If we let someone out early, and that man commits a crime, the Assembly members are worried that will come back to haunt them like the old famous Willie Horton ads.  (Quote from “a prominent state politician” in Carol Pogash and Solomon Moore, “Prisoners may be affected” (August 31, 2009) The Fresno Bee, p. A8, col. 1.)

Yet anecdotal evidence that some few criminals may commit such heinous crimes derails the debate on the humane treatment of prisoners in California through the early release of low-risk offenders.  As Scott Kernan, a deputy secretary for the California Department of Corrections and Rehabilitation notes,

a man who had committed crimes like those that sent [Phillip] Garrido to prison initially would never have been released early from prison under the proposed law.

“The bill doesn’t reduce supervision on sex offenders,” Kernan said.  “It would affect nonviolent, low-risk, nonsex offenders.”  (Pogash and Moore, supra.)

But Californians, and Americans generally, are increasingly incapable of the level of sophisticated thinking — the level required to function effectively in life beyond the third grade — to process this information.  The Repugnicans considering laws that would safely reduce the inmate population in California are too much like the woman living next door to the 10-year-old, mentioned above, who shot his father:

Next-door neighbor Elaine Sanchez said they were “just regular neighbors that we used to say hi and bye to.”

Sanchez said her daughter played with the 6-year-old girl.

“We live just a few feet from them.  My little daughter likes to go out and ride her bike and now I keep thinking, ‘What if she had been hit, too?'”  (“10-year-old boy held in shooting death of his father” (August 31, 2009) The Fresno Bee, p. B1, cols 4-5.)

What if worms did carry shotguns?

25 comments

  1. Your post was a very interesting read. I think that American society has become extremely inhumane in its treatment of children, from trying 13-year-olds as adults, to locking up 15-year-olds to life in prison. Child are children, and people seem to forget that it is not the government’s responsibility to raise children, it is the parents’ responsibility. When children misbehave, and commit crimes, certainly the government should play a part, but instead of spending millions on jails, perhaps the focus should be on proactive programs that teach parents how to raise children, and be better parents.

    Society needs to be less focused on how we should punish people, and rather should focus on how to prevent things like a child shooting and killing his father in the first place.

    I’ve enjoyed reading your blog. I’m a 3L at Barry Law in Orlando, Florida, and am a research assistant for Professor Leonard Birdsong.

    Thanks!

  2. Your post was a very interesting read. I think that American society has become extremely inhumane in its treatment of children, from trying 13-year-olds as adults, to locking up 15-year-olds to life in prison. Child are children, and people seem to forget that it is not the government’s responsibility to raise children, it is the parents’ responsibility. When children misbehave, and commit crimes, certainly the government should play a part, but instead of spending millions on jails, perhaps the focus should be on proactive programs that teach parents how to raise children, and be better parents.

    Society needs to be less focused on how we should punish people, and rather should focus on how to prevent things like a child shooting and killing his father in the first place.

    I’ve enjoyed reading your blog. I’m a 3L at Barry Law in Orlando, Florida, and am a research assistant for Professor Leonard Birdsong.

    Thanks!

  3. Garrido should be shot. Wait, I know…

    Lynched. Yeah that’s it. By an angry Republican mob. That would learn ’em. And cost alot less than his upcoming constitutional rights.

  4. Garrido should be shot. Wait, I know…

    Lynched. Yeah that’s it. By an angry Republican mob. That would learn ’em. And cost alot less than his upcoming constitutional rights.

  5. Ray: Regarding “Repugnicans,” I was trying to be only mildly insulting. 😉 As was pointed out by Doug, they’re really not alone in deserving reprobation. I just happen to think, as I said in an earlier response, that they are the primary force in pushing draconian laws.

    These laws, by the way, also have the opposite effect of what they intend. Perhaps that would be a good topic for another blog post.

  6. Ray: Regarding “Repugnicans,” I was trying to be only mildly insulting. 😉 As was pointed out by Doug, they’re really not alone in deserving reprobation. I just happen to think, as I said in an earlier response, that they are the primary force in pushing draconian laws.

    These laws, by the way, also have the opposite effect of what they intend. Perhaps that would be a good topic for another blog post.

  7. There’s a set of psychological problems that’s collectively referred to as “Right-Wing Authoritarianism”. It involves things like submission to authority, closed-mindedness, faulty logic, aggression towards opposing ideologies, dogmatism, compartmentalized thinking, and, you might be interested to hear, being excessively punitive.

    Learning more about this mindset may be helpful to doing something about it:

    http://en.wikipedia.org/wiki/Right-wing_authoritarianism

    http://home.cc.umanitoba.ca/~altemey/

    As for “kids these days”, I think they’d do much better if they were treated like adults earlier on — they would rise to the calling. Give them real roles in real social situations instead of leaving them at school primarily so they can be babysat, in a social situation that has no real context or purpose. That’ll devolve into Lord Of The Flies. Of course kids these days are consequence-challenged. No real purpose, no real role, steeped in advertising til you can see the consumerism swirling up behind their irises.

    (“Repugnicans” isn’t all that funny from my perspective. Surely there’s a more humorous yet sufficiently vitriolic term of scorn available?)

  8. There’s a set of psychological problems that’s collectively referred to as “Right-Wing Authoritarianism”. It involves things like submission to authority, closed-mindedness, faulty logic, aggression towards opposing ideologies, dogmatism, compartmentalized thinking, and, you might be interested to hear, being excessively punitive.

    Learning more about this mindset may be helpful to doing something about it:

    http://en.wikipedia.org/wiki/Right-wing_authoritarianism

    http://home.cc.umanitoba.ca/~altemey/

    As for “kids these days”, I think they’d do much better if they were treated like adults earlier on — they would rise to the calling. Give them real roles in real social situations instead of leaving them at school primarily so they can be babysat, in a social situation that has no real context or purpose. That’ll devolve into Lord Of The Flies. Of course kids these days are consequence-challenged. No real purpose, no real role, steeped in advertising til you can see the consumerism swirling up behind their irises.

    (“Repugnicans” isn’t all that funny from my perspective. Surely there’s a more humorous yet sufficiently vitriolic term of scorn available?)

  9. I had a case where a 19-year-old burglarized his next door neighbor. His fingerprints were found in their home. I obtained an NISP indication and was going over the plea form with him and it was incredible. He did not know what a trial was. I had to explain in detail what a trial was. What a judge did. I tried to use television crime shows, but he had never watched any that he could recall. I had to explain the function of the District Attorney and what my function was Etc. Etc. Now my client could read and write but new nothing of his world outside of his immediate neighborhood.
    Once I finished a basic civics lesson which took about 45 minutes going over and over the same point and finished I asked the kid (19 chronologically but 14 educationally), what did he do with his time? He dropped out of highschool in the 10th grade and has been living with his mother and has never worked. He said play video games.
    It is even worse when kids spend hours on box and game boxes. I have had several very young clients who had no concept whatsoever of a trial or how the justice system or the government functioned. When questioning them I found that they put a tremendous amount of time in playing games and very little time in watching television or doing anything else.
    This is not an endorsement of television programming. I hate most of television programming. I don’t even own a television, but I learned what a trial was like when I was a kid just by watching televison. Even television provides substantially more information then gaming. Does anyone out there have similar experiences?

  10. I had a case where a 19-year-old burglarized his next door neighbor. His fingerprints were found in their home. I obtained an NISP indication and was going over the plea form with him and it was incredible. He did not know what a trial was. I had to explain in detail what a trial was. What a judge did. I tried to use television crime shows, but he had never watched any that he could recall. I had to explain the function of the District Attorney and what my function was Etc. Etc. Now my client could read and write but new nothing of his world outside of his immediate neighborhood.
    Once I finished a basic civics lesson which took about 45 minutes going over and over the same point and finished I asked the kid (19 chronologically but 14 educationally), what did he do with his time? He dropped out of highschool in the 10th grade and has been living with his mother and has never worked. He said play video games.
    It is even worse when kids spend hours on box and game boxes. I have had several very young clients who had no concept whatsoever of a trial or how the justice system or the government functioned. When questioning them I found that they put a tremendous amount of time in playing games and very little time in watching television or doing anything else.
    This is not an endorsement of television programming. I hate most of television programming. I don’t even own a television, but I learned what a trial was like when I was a kid just by watching televison. Even television provides substantially more information then gaming. Does anyone out there have similar experiences?

  11. I like that phrase…amazing how as we age, our father’s grumpiness starts making sense. My dad’s favorite phrase went more with your last full paragraph – -“Idiots, Idiots, the whole world’s full of idiots! Arrghghhghgh….mumble..mumble”

    Yeah…I say that myself too many days now.

    I agree both Democrats and Republicans are cowards bordering on an angry mob when it comes to sexual offenses. This one case is so weird for so many reasons — using it to keep potheads in prison is ridiculous, but we all know it’s going to happen, and God forbid anyone is arrested for peeing in public — that ‘s a sexual offense!

  12. I like that phrase…amazing how as we age, our father’s grumpiness starts making sense. My dad’s favorite phrase went more with your last full paragraph – -“Idiots, Idiots, the whole world’s full of idiots! Arrghghhghgh….mumble..mumble”

    Yeah…I say that myself too many days now.

    I agree both Democrats and Republicans are cowards bordering on an angry mob when it comes to sexual offenses. This one case is so weird for so many reasons — using it to keep potheads in prison is ridiculous, but we all know it’s going to happen, and God forbid anyone is arrested for peeing in public — that ‘s a sexual offense!

  13. You pretty much missed my point entirely, probably because of my provocative comment about Repugnicans.

    And from what I can see, Democrats are afraid to vote a particular way, even though it’s the right thing to do, but it’s the Republicans who are beating the drum: hence my pinning the “blame” on them.

    But the bottom line is that everyone knows that a) something needs to be done about this problem and b) statements like those made by Republicans that Garrido is what we get when we pass these laws (even when they know that’s false) only worsen the situation and prevent us from being able to deal with it intelligently.

    But, yes, both Democrats and Republicans are cowards on this issue.

    Thank goodness I belong to neither group.

  14. You pretty much missed my point entirely, probably because of my provocative comment about Repugnicans.

    And from what I can see, Democrats are afraid to vote a particular way, even though it’s the right thing to do, but it’s the Republicans who are beating the drum: hence my pinning the “blame” on them.

    But the bottom line is that everyone knows that a) something needs to be done about this problem and b) statements like those made by Republicans that Garrido is what we get when we pass these laws (even when they know that’s false) only worsen the situation and prevent us from being able to deal with it intelligently.

    But, yes, both Democrats and Republicans are cowards on this issue.

    Thank goodness I belong to neither group.

  15. Rick – you are far too quick to make this into a partisan issue. Democrats and Republicans alike are wary of early release plans. This is why the Democrats in the Assembly and the Senate chose to be less than honest in their intentions. They wanted to slide prisoner releases through is the dark of night rather than face the political consequences.

    I agree with you that neither side has the moral courage to admit that people commit crimes and we will never completely prevent that. And as a society we are too inclined to take note of the sensational stories and too quick to ignore the myriad injustices that send men and women to prison for years on end for petty offenses.

    But the Democrats play on people’s fear too. They cozy up to the Correction Officer’s Union and slide through law after law that ramps up mandatory sentences for “politically incorrect” crimes like DUI, sex crimes, and gang cases while ignoring serious “white-collar” type crime (in the interest of protecting their well-heeled donors).

    As a whole our society does not like to think about the consequences of these ever more draconian laws. That is not a partisan issue.

  16. Rick – you are far too quick to make this into a partisan issue. Democrats and Republicans alike are wary of early release plans. This is why the Democrats in the Assembly and the Senate chose to be less than honest in their intentions. They wanted to slide prisoner releases through is the dark of night rather than face the political consequences.

    I agree with you that neither side has the moral courage to admit that people commit crimes and we will never completely prevent that. And as a society we are too inclined to take note of the sensational stories and too quick to ignore the myriad injustices that send men and women to prison for years on end for petty offenses.

    But the Democrats play on people’s fear too. They cozy up to the Correction Officer’s Union and slide through law after law that ramps up mandatory sentences for “politically incorrect” crimes like DUI, sex crimes, and gang cases while ignoring serious “white-collar” type crime (in the interest of protecting their well-heeled donors).

    As a whole our society does not like to think about the consequences of these ever more draconian laws. That is not a partisan issue.

  17. I believe that we are far too tolerant with children. Gone are the days when one got in trouble at school, they knew they were going to get it twice as bad when they got home because parents supported school & requirements regarding behavior. Now, a child gets in trouble at school, the parent is down at the school screaming about unfair treatment for Little Johnny, his rights are being violated, etc. (My position on this was to enforce what the school said, even if I disagreed. I told my children that if someone else is doing something they should not, get away from them before getting in trouble. If I disagreed with the school, I conferenced with those involved but NOT my children. They came to understand, like many Americans, that one can get in trouble for “hanging out with the wrong crowd.”

    So many parents today are enablers – it is the system’s fault that Little Jane got arrested. Poor Little Juvenile Jane should not have to go to alternative school for writing on the wall, etc. Young adult Johnny drank under age but he wasn’t intoxicated – it is not fair to take his license. (Moreover, for these kinds of parents – they are more about how it hampers them in their lives. They are not in the business of raising their own kids & certainly don’t want to be held back by the need to taxi them around.)

    It starts at home. When parents smarten up & start taking control of their adorable little children at a young age, before they become tweenie & teenage brats, then the kids will be able to learn at school & WILL learn at school because they will pay attention and they will pass. Quit giving them cars, cell phones, credit cards, all the name brand clothes. I didn’t get squat but punished if I did wrong. There was no $5 tooth fairy – I got a quarter. I got no car – I worked & bought my own, paid my own insurance, & gas (which meant my car sat at home & I rode the bus to school so I could save money for when I really wanted to drive.)

    As a CDL who frequently represents juveniles & young adults whose parents are all about blaming others, I tell them that if they do not stop enabling the child to do wrong, they will be talking to them through prison bars when they get older. During my 21 years of practice, I have been correct FAR too many times.

    Great article. Thanks!

  18. I believe that we are far too tolerant with children. Gone are the days when one got in trouble at school, they knew they were going to get it twice as bad when they got home because parents supported school & requirements regarding behavior. Now, a child gets in trouble at school, the parent is down at the school screaming about unfair treatment for Little Johnny, his rights are being violated, etc. (My position on this was to enforce what the school said, even if I disagreed. I told my children that if someone else is doing something they should not, get away from them before getting in trouble. If I disagreed with the school, I conferenced with those involved but NOT my children. They came to understand, like many Americans, that one can get in trouble for “hanging out with the wrong crowd.”

    So many parents today are enablers – it is the system’s fault that Little Jane got arrested. Poor Little Juvenile Jane should not have to go to alternative school for writing on the wall, etc. Young adult Johnny drank under age but he wasn’t intoxicated – it is not fair to take his license. (Moreover, for these kinds of parents – they are more about how it hampers them in their lives. They are not in the business of raising their own kids & certainly don’t want to be held back by the need to taxi them around.)

    It starts at home. When parents smarten up & start taking control of their adorable little children at a young age, before they become tweenie & teenage brats, then the kids will be able to learn at school & WILL learn at school because they will pay attention and they will pass. Quit giving them cars, cell phones, credit cards, all the name brand clothes. I didn’t get squat but punished if I did wrong. There was no $5 tooth fairy – I got a quarter. I got no car – I worked & bought my own, paid my own insurance, & gas (which meant my car sat at home & I rode the bus to school so I could save money for when I really wanted to drive.)

    As a CDL who frequently represents juveniles & young adults whose parents are all about blaming others, I tell them that if they do not stop enabling the child to do wrong, they will be talking to them through prison bars when they get older. During my 21 years of practice, I have been correct FAR too many times.

    Great article. Thanks!

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