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?