MR. SMITH, you have been found quilty of driving while intoxicated. I order that you be taken to some convenient room in this courthouse, out of the view of the public, and there you are to be physically assaulted, no more than once anally and twice orally and with such physical violence as is necessary to overcome your resistance. Sheriff, carry out the order of this court."
Imagine, if you will, your revulsion to such a sentence. Intellectually, you would cry out for the judge's removal. Emotionally, you'd want him killed for heaping such incomprehensible degradation on another human being. (For the very few among you who believe that anything which happens to a prisoner "serves him right," please stop reading. This commentary will do you no good, and your reactions will serve no constructive purpose toward the solution of the problem.)
While it is true that no such sentence has been or could possibly be passed in an American courtroom, the three-part series written by Loretta Tofani and published in The Washington Post on Sept. 26, 27 and 28, undeniably demonstrates that, in many cases, such a sentence is the net effect of a judge's lawful and, more often than not, perfectly reasonable sentence in Prince George's County. This prospect might well cause those of rational minds to inquire. It is because those questions are being asked of judges that I offer the following observations.
But, let me begin with several disclaimers. I believe it to be singularly inappropriate for a judge to be offering advice on the operation of penal systems. The creation, operation and philosophy of such systems are the exclusive province of the executive branch of government. This is especially true in Maryland, where the judges have been enjoined by the Court of Appeals to keep their judicial noses out of the executives business. However, since the sentences pronounced by judges create the populations of such penal systems, it is quite understandable for the citizenry to question judges about what's going on in jails. Also, while the same outrageous conditions exist in prisons and jails throughout the country, I am a citizen of and a judge in Prince George's County. Also, what I say is necessarily colored by my perspective as a sentencing judge.
The first question which seems to surface is: "Isn't this just another case of The Post trying to destroy Prince George's reputation?" Now, while I must admit to having cast a justifiably jaundiced eye toward Th Post and its denizens in the past, the fact is that Ms. Tofani's articles are just too well researched and documented to be ignored in that fashion. Nor can we take solace in the rationalization that this conduct goes on in other jails throughout the country. No, the problem won't go away that easily. This social cancer has existed and continues to exist. To attempt to explain away the horrors of the jail by castigating the newspaper that exposes them is to be on the same mental wavelength as the csar who killed messengers bearing ill tidings from the battlefront. The csar might have felt satisfied, but he lost the war.
The next question: "How could this possibly happen in our jail?" A full answer to that question is too complex to fit in the space allotted. What follows is a very short and simple explanation.
In the '60's, we Americans waged three wars: Viet Nam, poverty and crime. The Nixon administration infused billions of dollars into the criminal justice system to stem the rise of crime in this country. The cxriminal justice system is essentially a four-legged stool consisting of law enforcement, prosecution/defense, courts and the penal system. While the Law Enforcement Assistance Administration funded the three most visible legs, the penal system went begging. The result was a much better equipped, trained and educated criminal justice system -- with the exception of the penal system.
Nowhere in the country is this disparity more evident than in our county. Our police department is one of the best-trained, best- educated and best-equipped in the country; its ability to detect and apprehend criminals is second to none. Our prosecutors and defense attorneys, due in no small part to continuing legal education programs, are head and shoulders above the national average. The Prince George's county court system is legendary for its ability to effectively and efficiently process its enormous caseload.
Our jails? Our correction system? Well, the most charitable thing one can say is that they're there. And they've been there in essentially the same form for the last 25 years. They are the financial stepchild of government. As a result of this neglect, we in Prince George's have a facility built to house 143 humans but which in fact handles between 500 and 550 prisoners every day.
(As an aside: I checked with the Humane Society of the United States for the recommended space for dogs in a kennel. The society informed me that a dog exceeding 50 pounds should have 24 square feet of cage space and 40 square feet of run. A Prince George's County Detention Center spokesman told me that prisoners average around 30 square feet -- no separate cages, however.)
We don't have enough staff; even if we did, the jail is so constructed that, in some instances, guards wouldn't be able to see what was going on if they looked. We have a 1950s jail trying to do a 1980s job on a 1960s budget. The net result of this budgetary neglect is that human beings are caged and treated like animals. How could the situation described in Ms. Tafani's series happen? Simple. Treat a human like and animal and he begins to act like an animal.
The third question: "How can you, a judge, sentence anyone to that jail knowing what goesson there? The reader may be surprised to know that we judges ask ourselves and each other that same question. Interestingly enough, the answer always seems to be the same: That's all there is. That's the facility which the community provides its judges to carry out their constitutional duty. One must keep in mind that out first duty in cases where people are found guilty of committing crimes is to protect our communtiy from the individual criminal and to deter others from criminal activities. If the question were, "Doesn't it bother you . . .?' rather than "How can you . . .?" the answer would be an emphatic, "Yes!"
Keep in mind that non-violent, petty offenders are more often incarcerated in the county jail that in the state penal system. While there they are mixed in the general population with the violent, serious offenders waiting trial, sentencing or transportation to the state system. One then realizes the dilemma a Prince George's County judge faces in dealing with the drunk driver, shoplifter, non-supporting father, bad check writer, etc. I would be less than candid if I did not admit that I and most of my colleagues deliberately look for alternatives as work release, community service, in-patient alcohol hospitalization, in-patient drug treatment and other forms of probation are just a few of the avenues we explore even when we know straight incarceration in a safe facility would probably be more effective. Perhaps the next time a member of the public reads or hears of a judge imposing what apperars to be an inordinately lenient sentence in light of the reported facts, he or she will understand that a newspaper cannot possibly report all the factors a judge considers before caging a human being.
The final question is: "What can be done to stop these terrible things? I am not naive enough to believe that Prince George's or any other jurisdiction in America can effectively stop all the mental and physical abuse occurring in the jails and prisons; however, we as a community can take certain steps to lessen the incidence of such abuse so that it is not the accepted norm bragged about to a news reporter as though the abuser were discussing shooting baskets on the basketball court.
The first step has been taken. The series of Post articles has graphically brought the existence of the problem to the public's attention. The community cna no longer say, "Because I don't know about it, it's not happening."
Now that you know about the horrors occurring in the jail, what can the average citizen do to eliminate them? Well, we in Prince George's County are in a position to make our individual voices heard. In the Nov. 2 general election, Proposition B will be on the ballot. A "yes" vote on that question will authorize the county to float a $20-million bond issue to finance the long-planned -- and now federally mandated-new detention facility. A "yes" vote will mean that we in Prince George's County will not tolerate human degradation in the guise of punishment.
We are prepared to do what we, as citizens, can do at least to alleviate the physical plant problems contributing to the prisoner control dilemma.
I don't pretend that these steps will solve the problem, because they are just a beginning. However, they will go a long way toward reducing it to manageable proportions.
Let me apologize to those who believe that polite judges should be "seen and not heard" and that in no event should they participate in the public forum. If being polite means remaining silent in the face of that which I know to be morally, socially, ethically and legally wrong and reprehensible, then I relinquish all pretense to politeness.