Some judges just want to watch the world burn:
A Superior Court judge who sentenced a wealthy du Pont heir to probation for raping his 3-year-old daughter noted in her order that he “will not fare well” in prison and needed treatment instead of time behind bars . . . .
Judge Jan Jurden’s sentencing order for Robert H. Richards IV suggested that she considered unique circumstances when deciding his punishment for fourth-degree rape. Her observation that prison life would adversely affect Richards was a rare and puzzling rationale, several criminal justice authorities in Delaware said. Some also said her view that treatment was a better idea than prison is a justification typically used when sentencing drug addicts, not child rapists.
There’s quite a lot to think about in this well-reported story from Delaware Online. I think I’m torn between two contradictory feelings. First, Judge Jurden is probably quite correct that Richards would not “fare well” in prison. Most people don’t. I don’t know what Delaware prisons are like, but in California prisons and jails are dangerously overcrowded and run by gangs who have created a ruthless social system based on a hypermasculine code and victimization of the weak. There’s some evidence that prison is especially dangerous for child molesters, who are seen as both weak and somehow outside the moral scheme even of murderers and professional felons. “Protective custody” for such inmates is basically solitary confinement, which is a kind of slow psychological torture—something I don’t believe in for anybody, even people who do quite terrible things. And it may well be that we get better post-conviction behavior from child molesters by giving them psychological treatment, although the science is still in its infancy.
Still, there’s something that rankles, here. One defense attorney interviewed for the story notes that
He’s a rich, white boy who is a wuss and a child perv. The prison can’t protect [him], and Jan Jurden knows that reality. She is right on.
All right. I take your point. But surely there are lots of people at high risk of assault in prison. Sure many people who are “wusses” get sent to prison. For instance, in California, a majority of male prisoners are in for violent offenses (PDF, see table on p. 16). But 17.6% are in for nonviolent property crimes, 5.1% are in for drug possession, and 1.3% for DUI. Being a thief or driving drunk may be entirely consistent with being a wuss. 3.8% are in on weapons possession charges, and clearly if you need a gun to feel safe—so much so that you’re willing to risk felony possession charges to have one—you are not Charles Bronson. And that’s to say nothing of the 5.9% who are in for… wait for it… “Lewd Act With A Child.”
And even those who are in for violent offenses are often afraid. Indeed, the existence of a vast network of prison gangs is testimony to the fact that prisoners don’t feel safe and believe (probably correctly) that they need to band together to protect themselves:
In prison, one must always watch his back, gangster or not. Many gang members search out friends already in prison to ally themselves with so that it is not just the individual that a potential aggressor will pit himself against. Rather it is a group of individuals that carry much more clout and power to harm than one person could ever possess.
(To say that is not to deny, of course, that of over time prison gangs have morphed into quite sophisticated criminal enterprises.)
All of this is just to point out that “rich” and “white” seem to be doing much more work here than “wuss” or “child perv.” Robert Richards gets the advantage of expensive and creative lawyering, social stereotypes about the unique vulnerability of upper-class white people in prison, and perhaps some class sympathy on the judge’s part — it may simply be that it is easier for Judge Jurden to imagine Robert Richards’ terrible prison experience than the terrible prison experience of a meth addict with mental illness, or a young black kid convicted of auto theft, or a small-time grifter. Or, for that matter, a hardened criminal. Prisons are unsafe.
Prisons are unsafe. Of course, that’s a problem that’s bigger than one judge. But it does suggest that if we can’t make the obvious decision to segregate a child-rapist from society for a while—because the only place to segregate him to is nightmarishly dangerous—then perhaps we are doing prison wrong.
As The Atlantic‘s Conor Friedersdorf suggested recently, there should simply be fewer people in prison, and prison should be much more humane:
What kind of insane criminal-justice system hands down a 25-year sentence for selling pain pills to a friend, 10 years for an illegal gun sitting in an attic, and four to eight years for beating a human into a coma and giving him brain damage because he was rooting for the wrong baseball team . . . ?
The criminal-justice system I want would reflect a larger cultural norm, which America may well lack, that initiating violence against others is the worst thing one can do. Thieves, fraud artists, and tax evaders all need to be punished, no doubt, but the physical and mental consequences of violent attacks are grave and irreversible . . . .
We should be able to create alternative punishments to prison for many, and to focus the prison system on incapacitating violent felons. They should be incarcerated humanely—and for a long, long time.
In short, we need to stop treating prison as our primary tool of social policy, so that we can effectively imprison the people who really do pose a danger. Primarily this means ending the drug war—which would, collaterally, reduce a lot of violent crime as well—but it also means not using jails and prisons as de facto housing for the mentally ill.
Robert Richards should go to prison if prison is the appropriate place for people who have done what he’s done, and that prison should be safe, if otherwise spartan. (I’m also open to the idea that a secure psychiatric facility might be an alternative that reduces recidivism, although I’d like to see hard evidence supporting that plan.) But what should not happen is that we create one system—a brutal, inhumane system—for one set of similarly-situated defendants (the poor, the non-white, the “street-smart”) and different, more humane system for the scions of industry.