Wednesday, January 20, 2010



A few months ago, I wrote a short article about Dominic Carter, the former New York 1 anchorman who allegedly beat his wife. I used Mr. Carter's story to illustrate how difficult it is to "prove" things in our empirically-based evidence system. Now, a State court in New York has sentenced Mr. Carter to an unusual punishment for attempted assault. This presents compelling new issues.

Just as Mr. Carter's case provided an excellent vehicle to discuss evidence law, his sentence now provides an excellent vehicle to discuss criminal penalties in modern America. Put simply, criminal penalties are changing in America. And they are drifting far from their traditional purposes. In my view, this is not a good thing.

According to the New York Post, Mr. Carter was convicted of attempted assault for pervasively abusing his wife since 1997. See N.Y. Post, Crying shame of jailed NY1 journo, Jan. 15, 2010 at 5. Although his wife denied that Mr. Carter beat her, the trial judge--Arnold Etelson--referenced police reports detailing marital strife in the Carter home for over a decade. Id. He sentenced Mr. Carter to 30 days' imprisonment. Id. He also ordered Mr. Carter to "stay away" from his wife for two years unless "he is prescribed medication by a psychiatrist able to assure the judge that [he] is well enough to see her." Id. Additionally, the judge gave Mr. Carter an article from New York Magazine detailing Matt Damon's views about "honesty and humility." Id. During sentencing, he told Mr. Carter: "Try some humility and honesty--it goes a long way." Id. Finally, the judge gave Mr. Carter's wife a sticker with the words "Attitude Makes the Difference. " Id. He instructed her to affix the sticker to her bathroom mirror so that Mr. Carter can see it when he visits. Id.

This is highly irregular judicial work. As a general rule, the criminal law forbids specifically defined conduct. The criminal justice system decides whether the defendant engaged in that conduct, then neutrally decrees the legal consequences. While morality animates all criminal codes, it is not for judges in the criminal justice system to pontificate about it, let alone publicly scold criminals for sport. This New York judge transformed his courtroom into an entertainment circus. And the spotlight was not on Mr. Carter--it was on the judge.

To start, it is strange that Judge Etelson characterized these facts as "attempted" assault. At common law--and under New York State law--an assault means an intentionally harmful or offensive touching. See, e.g. NYPL § 120.00, et seq. Any intentional crime can be "attempted" if the defendant intends to achieve the bad result envisioned in the criminal code, then takes some action corroborating that intent. But it is no longer "attempt" when the defendant achieves exactly what the law forbids. Here, the judge relied on police reports that detailed Mr. Carter's abuse. They all but verified that he had routinely hit his wife since 1997. If the judge believed those reports, then he should have convicted Mr. Carter of assault, not attempted assault. If Mr. Carter succeeded in harmfully or offensively touching his wife, it was no longer attempted assault. It was just plain old assault--and it's a worse crime than attempted assault.

But Judge Etelson's legal errors pale in comparison with his bizarre approach to criminal penalties. Traditionally, criminal penalties in America--as in all Western countries--target the body and property. The law assumes that people do not want to suffer bodily pain or lose their property, so penalties targeting those things ostensibly dissuade potential criminals from making "bad choices." The death penalty, imprisonment, fines and corporal punishment encompass everything a State can realistically do to penalize crime.

In modern America, imprisonment is the preferred penalty. Fines follow in second place. Most consider corporal punishment an archaic penalty; it really never happens anymore. The death penalty is more common. Still, State-ordered death is quite a rare punishment, too.

Judge Etelson did not give Mr. Carter a traditional punishment. Rather, he theatrically used Mr. Carter as an instrument. The only traditional part about Mr. Carter's sentence was his imprisonment. To some, thirty days in prison for attempted assault might appear harsh. But no one would call it bizarre. People expect either fines or imprisonment for crimes in America. The criminal justice system works in part because the public knows what to expect for certain transgressions. They trust judges to declare penalties that everyone expects. At the same time, they understand that even a convicted criminal is entitled to some dignity before the law. He need not be publicly humiliated, ridiculed or belittled in the courtroom. His prison term and social ostracism accomplish that on their own. It is not the judge's role to morally grandstand or scold. He simply must pronounce sentence. Legislators moralize when they write the laws. Judges should not.

What does a New York Magazine article or a sticker have to do with the law? When did Matt Damon become a legal authority? True, "honesty, humility and a good attitude" are virtues. But it is not the law's role to chastise people for failing to be virtuous. The law's only role is to decree whether a person acted in a defined way. It does not matter whether he was virtuous or not when he did. A defendant suffers enough when a judge declares the penalty for violating the law; he does not need to "rub it in" by acting the moralist. In fact, I argue that judges overstep their bounds when they do.

I understand that people like to see criminals squirm. But their convictions should make them squirm, not a judge's moralizing antics. If every judge took it upon himself to act like Judge Etelson, our criminal justice system would look more like a Catholic school than a neutral forum for just laws. In a word, it is not a judge's job to castigate a convict's moral failings. Moral failings are irrelevant to the law. And the law is the only thing that judges are constitutionally empowered to decide. Anything else they say is unauthorized fluff.

Judge Etelson-style grandstanding is not the only abomination that occurs in our criminal justice system. Now, criminal penalties also increasingly intertwine with psychiatry. Mr. Carter's case is no exception. In his sentence, Judge Etelson conditioned Mr. Carter's future with his wife on his agreement to take psychiatric medications. He also retained discretion whether to permit Mr. Carter to see her, depending on whether a psychiatrist could assure him that he was "well enough."

Are these judicial inquiries? If they are, do they not negate the State's moral outrage against Mr. Carter? After all, if the court believes that Mr. Carter needs psychiatric medication, that means he is mentally ill. If he was mentally ill at the time he struck his wife, that makes him far less morally blameworthy. After all, the criminal law depends upon free, rational choice for its moral strength. It is easy to condemn someone who knowingly makes a bad choice. But it is not easy to condemn someone who lacked the mental composure to make choices, let alone recognize they were wrong.

In this case, Judge Etelson tried to wear too many hats. He wanted to punish Mr. Carter for doing something that violated the law. But then he stepped back and ordered Mr. Carter to take psychiatric medications for his "mental problems." Put simply, judges are not psychiatrists. They are not social workers. It is not their job to monitor people's behavior once they serve their sentences. Nor is it their job to declare whether people are "normal." Rather, they are mere judicial officers, and it's not a complicated job. It is not about management; it is about judgment: Did the defendant do this or not? If he did, he goes to jail. If he didn't, he goes free.

There is undoubtedly a relationship between law and psychiatry. But a judge's only concern with psychiatry is to determine whether a defendant is mentally well enough to be criminally responsible. If he is, that ends the inquiry. In fact, judges must be extremely wary when dealing with psychiatry in criminal cases. After all, the entire rationale for criminal punishment collapses as soon as psychiatry shows that the defendant cannot make rational choices. In that light, judges should tread lightly when tampering with psychiatric issues. They might just discover that the "evil defendant" is really no ogre at all. He might just be "sick." And it is not proper to morally condemn sick people, let alone jail them for choices they could not make. For better or worse, the law only works on sane people.

I doubt that Judge Etelson understood all these issues when he entertained the news media during Dominic Carter's sentencing last week. From his perspective, he was in the spotlight and he was going to relish the moment. He was not content to play the neutral magistrate who calmly decrees the legal consequences of statutory violations. No, he had to play the scolding father, too, as well as the psychiatrist and the actor.

I do not like this. While it may be impossible to separate law from popular morality, judges should consciously try to do so. True, laws enshrine popular morality. But they are not moral weapons. They are technical guidelines. It does not matter whether a law-abiding citizen is moral; he must merely not violate the technical guidelines. Morality is about character. Law is about conduct. It is much easier to control conduct than character. And a judge simply declares whether the individual in question violated the conduct guideline.

Well, at least that's what a judge is supposed to do. American criminal law is changing for the worse because the distinction between morality and law is eroding every day. Just look at the Carter case. It's all right there to see.

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