Case highlights challenges of keeping child molesters safe in prison

By Dan Morse
Washington Post Staff Writer
Monday, May 10, 2010; 6:03 PM

A Montgomery County judge shaved 14 years off a child molester's prison sentence Friday, a ruling that followed the same judge cutting almost 16 years off another molester's sentence in 2008.

In shortening the latest sentence, Circuit Court Judge Eric M. Johnson called Jason Lay a different person than he was five years ago, when he was convicted of making a 4-year-old girl perform sexual acts inside a townhouse in Germantown and sentenced to 30 years.

"I find your remorse to be genuine," Johnson told Lay, 26, who wore a blue state Division of Correction shirt and little expression on his face.

The new sentence, 16 years, is retroactive to 2005. Lay will be eligible for parole in 2013.

His case reflects the challenge of keeping child molesters safe in prison. Other inmates -- even those who give little thought to robbing or killing people -- often take a moral stand against child molesters, if only because they have children themselves.

Lay has been attacked by gang members, was once stabbed 13 times and is too scared to bring up his crime in group therapy sessions, said his attorney, Reginald W. Bours III.

"This man has served a lot more than five years in any realistic sense," Bours said. "He's a child sex offender. He is in constant danger."

Family members of the victim, who is being raised by a grandmother in Western Maryland, were outraged by the shortened sentence, and the notion advanced by Lay's attorney that Lay had suffered worse abuse than the victim.

"Jason is far more capable of defending himself than was my granddaughter at age four," a grandfather of the victim wrote in a letter to the judge filed in court.

The judge said he understood how the victim's family felt.

"I have a daughter. I'd be mad, too," Johnson said from the bench. "But we're in a court of law. We're not the way the country used to be back in the days of the roaring West, where judges did what the crowd wanted -- just, they want to hang him, that's what the judges did back in those days."

The case dates to 2003, when Lay was abusing alcohol and drugs. He was a friend of the victim's mother, and began molesting the girl when her mother wasn't there.

At Lay's trial in March 2005, the victim testified, recalling in heartbreaking detail what he did to her. She also leaned over a bench so that Lay could see her. At times during the trial, Lay could be seen making faces at witnesses, Johnson recalled from the bench Friday. At the end of the trial, some jurors walked away in tears.

For his original sentencing, Lay came before Johnson. "I just need help with my life right now," Lay said. "And I'd just like the court to somewhat sort of help me in some way, I mean, if you are up to doing that."

Under Maryland law, convicts can file requests for shorter sentences. At Friday's hearing, prosecutors spoke first, urging Johnson not to grant one.

"I know your honor asks us to have an open mind," Assistant State's Attorney Karla Smith told Johnson. "On this particular case, after trying so many child abuse cases, we don't have an open mind about it, because it was one of the worst cases that we've tried."

Bours said his client has accepted his "evil" actions and wants to get better. Bours asked Johnson for a significantly longer reduction, and to have Lay transferred to Montgomery County facilities that he said were more conducive to treatment.

"You cannot look at this person over here and just say he's a monster and forget about him. And I'm afraid that's what [prosecutors] are doing," Bours said. "And I count on your honor to put some balance on this. I've known you a long time, and I think you care about people. And this is somebody you should care about a little, too."

Johnson said he was more motivated by Lay's acceptance of responsibility than the dangers he faces in state prison. "Those are collateral consequences, which come about as a result of having been convicted," Johnson said.

The sentence means Lay must return to state prison. He technically has 11 years left. But like other inmates, he earns "good time" credits. So even without parole, he probably will be released before his 35th birthday.

Johnson, a thoughtful jurist who has been a police officer, prosecutor and defense lawyer, hands down his sentences knowing that inmates are usually released early. In this case, he said, he would recommend to state officials that they move Lay to Montgomery County for his final 18 months.

"We respectfully do not want him," countered county corrections chief Arthur Wallenstein after the hearing. "We do not wish to become a surrogate for the state prison system for a very serious offender."

Rick Binetti, a spokesman for the state prison system, said late Friday that he didn't have immediate access to Lay's medical history, nor would he necessarily be able to release its details. Binetti said the prison system is committed to keeping all inmates safe.

Prosecutors said Johnson should have stayed with his original sentence in this case. "He should have left it alone," said Montgomery County State's Attorney John McCarthy. "We are disappointed, particularly in light of the age of the victim and the fact that she is still in therapy."

In the 2008 case, Johnson reduced to 18 months an 18-year sentence he'd handed down to Stanley Schwartz, now 68. At the time, Schwartz had served about 10 months, which he lost credit for under the new sentence, according to court records.

In that case, according to prosecutors, Schwartz had climbed into the bed of a foreign exchange student from Kuwait who was staying with him and fondled the 15-year-old. He'd also fondled a 13-year-old female relative and a 15-year-old male friend of his son's, prosecutors said.

Schwartz's attorney also had argued that he was subjected to harsh treatment from other inmates. In handing down the reduced sentence for Schwartz, Johnson said the original sentence was a needed shock to Schwartz, who had worked as a lawyer.

"For an upper-class lawyer -- successful practice in a firm, living that type of lifestyle -- to go to jail, to go to jail for any time at all, is a shock to his system. . . . And anybody who denies that is kidding themselves. Anybody like Mr. Schwartz who goes to the penitentiary, it's quite a shock, and it's quite a punishment."

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