Mimesis Law
9 July 2020

Doing Unto Others, By God (and Victims)

July 23, 2015 (Mimesis Law) — Danny Gears was convicted of burglary. He’d stolen some jewelry, taken it from a woman’s bedroom. At his sentencing, the judge read a victim impact letter the woman had written. The jewelry had, she wrote, “sentimental value.” From the transcript:

THE COURT: What are you wearing around your neck?
THE DEFENDANT: A necklace my ex-girlfriend gave me.
THE COURT: Your girlfriend gave it to you. Does it have sentimental value?

Then, because fair is fair, the judge ordered Gears to turn over his necklace and the other jewelry he was wearing (including his eyebrow piercing) as restitution. So his victim, having lost jewelry of sentimental value to her, would be repaid by receiving jewelry of sentimental value to her burglar.

The case went to the court of appeals where the judge’s order was promptly reversed because, the court said, quoting amicus counsel (disclosure: that was me),

Restitution as a penalty is a financial rather than moral sanction.

If the woman had demonstrated the cash value of the stuff Danny’d stolen, he could have been ordered to pay her. That’s about trying, as the law puts it, “to make her whole.” But we don’t make him suffer the same loss she did. I quoted Exodus 21:23-25 in the amicus brief.

And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.

Which isn’t what we do (except when we’re talking about murder and the death penalty, which is another post).

But there’s this call for it.

So in Davis v. Ayala, a capital case, Clarence Thomas responded to Anthony Kennedy’s legally irrelevant assault on solitary confinement with discussion of moral equivalence.

I write separately only to point out, in response to the separate opinion of JUSTICE KENNEDY, that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest. And, given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.

All of which is prelude to Doe v. Annucci (originally and charmingly called ABC v. DEF). It’s a civil case pitting the family of a sex offender (Doe) against the arbitrary power of the parole board which, in turn, channels his victim’s continuing desire for moral equivalence. Here’s from the amended complaint.

John and Jane Doe are the married parents of a one-year-old boy, M.S. Mr. Doe is a loving father and husband. Yet, while on parole for a 2005 conviction of a sex offense against a teenage girl, the Defendants barred Mr. Doe from having any contact with his infant son, M.S. for over one year. Because Mr. Doe faced imprisonment if found with his son, he was forced to live apart from his family and was denied any visitation with his son.

The Defendants issued this arbitrary prohibition even though Mr. Doe was permitted seven months of conduct with M.S. under their watch without incident; even though Mr. Doe excelled in sex-offender treatment both in prison and while on parole; even though Mr. Doe’s parole-mandated sex offender treatment providers concluded that he posed no risk to M.S.; and even though an expert in the assessment of the recidivism risks of sex offenders deemed Mr. Doe to present no threat to his son.

If that all sounds too legal, well, just focus on what turns out to be the bottom line. Doe’s never been accused of neglect or abuse of any of his five oldest children, ages 14-27. He wants the same warm and positive bond with M.S. his other kids all say he has with them. But his parole officer says no.

Why? From Courthouse News:

Doe’s accuser, now in her mid-20s, complained to a parole officer about his ability to rebuild his life.

“Why should he live happy and comfortable when he took something from [me] that [I] can’t get back?” she asked them, according to court papers.

He ruined her life. So his should be ruined. Fair’s fair, right? His wife and son? Collateral damage. Her life is ruined. Theirs should be, too. Hell, maybe he should be required to sexually molest his little boy? That’ll help even the scales.

It appears that Judge Engelmayer is giving Doe a chance. Rather than dismiss the case (it’s actually about Doe’s constitutional rights and asks for both declaratory relief so he can live with his kid and money damages), he’s letting it go forward. Which is pretty much a first, as three professors from law schools outside of New York agreed.

The thing is, you can’t make up for the violation. Danny Gears can’t. Ayala can’t. Doe can’t. The victim remains victimized. The punishment won’t change that. Life won’t. Death won’t. Ripping families apart won’t.

Danny Gears went back for resentencing. He didn’t wear any visible jewelry that day. Despite the best efforts of the government to channel his victim and assure it won’t happen, John Doe may yet get to try and rebuild his life, become a productive member of society. Davis – well, he’s supposed to be executed, but maybe he’ll get to see another inmate some day.

I was in court in a murder case. We were before the same judge who’d taken the eyebrow piercing from Danny Gears. We had a deal pretty much worked out for a lesser charge. Everyone was good with it: Defendant, counsel, prosecutor, judge. Only one catch. The victim’s family hadn’t signed off on it yet. No deal without their approval. If they wanted our client locked up forever and fed nothing but moldy bread for every meal, the prosecutor would genuflect, try the case and ask for that sentence.

“I hate that kowtowing to victims,” I muttered. The judge said, “I do too.” We made the deal.

But only after the victim agreed.


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  • Wrongway
    24 July 2015 at 11:28 pm - Reply

    That isn’t justice, that’s revenge.

    that’s not what the courts are there to do..

  • Jeff Gamso
    25 July 2015 at 10:03 am - Reply

    Much of the world doesn’t see the distinction.