Introduction
You Call This Justice?
Let’s open with a true horror story.
A man in Vermont named Mark Hulett raped a little girl countless times over a four-year period, beginning when she was seven years old. In 2005, he was caught, tried, and convicted of the hideous crimes, to which he ultimately confessed. The prosecutor sought a sentence of eight to ten years.
The judge in the case, Edward Cashman, sentenced the rapist to just sixty days in prison.
Explaining his decision to the astonished courtroom, Judge Cashman said that when he first was elevated to the bench a quarter century earlier, he believed in tough sentencing. More recently, though, he had concluded that being hard-nosed with bad guys didn’t serve any useful purpose. “It doesn’t make anything better,” he said. “It costs us a lot of money, we create a lot of expectation, and we feed on anger.”
Let’s stop right there, for a minute. How do you feel about that? Sixty days for inflicting four years of appalling, relentless rape and sexual abuse on a helpless child because being hard-nosed doesn’t serve any useful purpose.
There’s a big difference between being hard-nosed toward a criminal and coddling him like a child who’s stolen a pack of gum. What’s the obvious message to all the child molesters lurking out there? How about the monster who lives in your neighborhood?
When Fox News’s Bill O’Reilly ran a clip of Cashman on his show, O’Reilly told his audience: “You may be looking at the worst judge in the U.S.A.”
I agree that Cashman’s in the running—although he has lots of competition for the title. And guess what: It’s not only the judges we have to worry about. There’s a whole slew of defense attorneys out there who are equally willing—probably even more willing—to put you at risk of harm by dishonoring the justice system as well as the right of all law-abiding citizens to live in a world where dangerous criminals aren’t allowed to run around free in society.
Do I sound angry? I am. And I want you to get angry, too.
Back when I was in law school, not all that many years ago, it was common to hear some version of the following: We Americans have the best legal system in the world.
We don’t hear this very much anymore. You know why? Because we don’t have the best legal system in the world. We have the best system if you’re a criminal. We actually have an awful system if you’re a victim or a law-abiding citizen.
I wrote this book because I think we can do better. I’ve read enough of the Constitution to know that it wasn’t designed to produce such unfairness. In the wake of the terrorist attacks of 9/11, we’ve all been paying a little more attention to the words written by the founders of our country. With a revived common fear and concern for the well-being of all Americans, we have come together as a nation in a way that has breathed new life into fundamental American values. I hope we keep it up—especially on the most basic of principles—such as the one that is spelled out in simple yet poignant terms at the end of our pledge to one another; a pledge we make as equal investors in a nation unafraid to fight, even die, for common beliefs that unite us despite the vast array of differences that distinguish us from one another. “. . . with liberty and justice for all.” Let me repeat that last part for all—not just some.
Today, this pledge is being dishonored by the people who run our justice system. We know this because we can see the unbelievable shenanigans as criminals get away with murder, while the rest of us—if I can speak for the rest of us—get indigestion watching one smug thug after another walk away from his crimes scot-free. I bet you can conjure up such an image: a man who should be in prison boasting about his victory on the courthouse steps, crowing into the microphones and TV cameras with a smirking lawyer by his side.
This book is full of attacks on defense attorneys but let me be clear—lots of attorneys who represent disgusting human beings play by the rules and never go over the line. These are the lawyers who deserve our utmost respect—and there are plenty of them out there. One of my dearest friends, Arthur Kelly, represented one of the men who raped and killed a little boy named Jeffrey Curley. Arthur fought hard to make sure the guy got a fair trial and although the defendant was convicted, Arthur suffered terrible public scorn for doing his job well. That’s not fair because even though he represented a despicable human being, he played by the rules, which is more than I can say about most of the defense attorneys I criticize in this book. My beef is with the lawyers who cheat to win. Cheating has nothing to do with justice.
Criminal justice was supposed to mean prosecuting a criminal in a just way. Instead, today, it means letting a criminal lie, cheat, and manipulate his way out of trouble—or coddling a criminal at the expense of an innocent victim. Sure, we should have compassion for some of the people behind bars. Some of them have good hearts and wound up in a dire situation due to a combination of tough luck and very bad judgment. Sure, we should cut a guy some slack if, at the end of the day, he has the potential to care about others.
But an awful lot of people who commit crimes don’t give a damn about anyone else. Maybe it’s because they were abused, or maybe just because nobody ever cared about them. (This happens more often than we’d like to think.) In some situations, a terrible thing happened that made them hate the world, and the rest of us have to pay the consequences when crime occurs.
Some people think it doesn’t matter why bad guys do what they do. I disagree. I believe that if we could do a better job intervening in the lives of troubled kids before they became law-breaking adults, there would be far less crime in general, kids would stand a better chance at becoming successful adults, and we’d save a ton of money, to boot. But in fact, we’ve never dedicated enough resources to crime prevention, mainly because as a society we’re hopelessly shortsighted. We don’t really think much about crime until it happens to us, or to someone we love—or until the media serve up a wayward celebrity for our entertainment.
But the fact that we don’t devote enough resources to prevention is no excuse for going soft on criminals when they do get caught. In today’s society, we live at close quarters. We have to interact without hurting one another. Tough punishment for criminals is a powerful reminder that we are all under contract to treat each other with civility. This contract—unwritten yet the critical underpinning of our society—says that each of us has both rights and responsibilities—not just rights!
Let me say that a little more bluntly. Too many people in this country think the criminal law is designed only to protect and enforce the rights of the bad guys. This is simply not true. The Constitution expressly mandates an ordered liberty—not some sort of criminal chaos. Our founding fathers clearly intended that while we enjoyed our hard-won freedoms, we would also exercise our constitutional duty to be civilized to one another.
Unfortunately, our criminal justice system sends exactly the opposite message. All too often, it gives criminals a pass on the responsibilities part—a get-out-of-jail-free card, if you will—while overemphasizing the rights part of the citizenship bargain.
I first got exposed to this corrupt reality as a young prosecutor. I came to my job as an idealist, but that didn’t last long. In case after case, the message that I saw conveyed to the criminal was: Now that you’ve been caught, the system will kiss your butt. True, you may go to prison if you’re convicted, which, by the way, is not very likely in the majority of criminal prosecutions. But even if you’re among the unlucky few who do wind up in jail, you will almost never get the time you deserve, and you may well get out ahead of schedule.
Meanwhile, between the time you’re arrested for your crime and the day the judge finally sentences you, the system will bend over backward not only to be fair—which I believe to be a good thing—but also to make you comfortable and make your victim miserable, which I believe to be a bad thing.
And if you’re prosecuted in a state like Massachusetts, where I practice, you can engage in all kinds of malicious mischief. What do I mean by mischief? Get this. Once you’re charged with a crime, you are actually permitted to do harmful things to your victims. For example, you can use taxpayer dollars to hire a private investigator to harass your victim’s family and friends. You can use the authority of the government’s subpoena powers to conduct fishing expeditions in your victim’s private medical files. And in virtually every state in the union—not just liberal Massachusetts—if you’re a criminal, you can literally commit perjury with impunity by testifying falsely under oath.
This is seriously embarrassing and frustrating and dangerous. President Clinton was nearly thrown out of office for lying about a noncriminal sexual event, but murderers and rapists commit perjury every day in courtrooms across this country, and the justice system does absolutely nothing about it. These are things that a citizen who hasn’t committed a crime can’t get away with.
One more time: If you don’t commit a crime, you can’t spend public dollars harassing crime victims and witnesses, and you can’t lie under oath and get away with it. But if you rape someone or beat someone to death and then you get caught, you can.
This insanity is going on every day all across this country, and nobody is doing anything about it. In fact, to the contrary, victims are being told that the system is tough, and the trial will be brutal. In the face of all this, how can we possibly expect people to report crimes and testify in criminal cases? If crimes aren’t reported and citizens don’t testify, how can the government ensure the public’s safety?
It’s a truly unbelievable situation. Victims and witnesses to crime who cooperate with the justice system deserve good-citizenship awards. Instead, they get a kick in the head, and we tell them tough luck, in so many words.
Wasn’t our pledge to one another a promise of justice for all? Isn’t justice supposed to be about truth and fairness? So how is it that time and time again we see nothing but lies and trickery? Justice for some? Maybe. Justice for all? Not a chance.
After twenty years in this system, I can tell you that things have grown increasingly out of control. I see judges who give childsex offenders probation. I see defense attorneys who lie through their teeth, and victims and witnesses who succumb to outright corruption. I even see victim advocates showing up on the defense side of things. I’m not kidding. The Vermont Coalition Against Sexual Assault said essentially nothing to criticize Judge Cashman for sentencing a brutal child rapist to only sixty days in prison. They said instead that mandatory punishments are not necessarily appropriate for dangerous sex offenders.
As if that weren’t bad enough, the Massachusetts Office on Victims’ Assistance (MOVA)—the organization that is supposed to fight hard to protect victims’ rights—actually proposed legislation in 2004 to take away victims’ rights. Let me explain. A hard-fought case gave victims the right to directly address the court to seek enforcement of their speedy trial rights, but rather than celebrating the victory, MOVA responded by proposing a new law that had the effect of undermining the ruling. This new law would have required victims to first obtain permission from the prosecutor before addressing the court. And it would have limited what victims could say to the judge about violations of their speedy trial rights. After victim advocates around the country brought pressure to bear on legislative sponsors of the bill, the proposal was withdrawn, but people continue to raise eyebrows about MOVA’s motivation in proposing a new law to hurt victims’ rights.
Maybe we shouldn’t be surprised that some victims’ groups care more about criminals’ rights than victims’ rights. After all, the National Organization for Women was nowhere to be found when the victim in the Kobe Bryant case was getting her proverbial butt kicked all over the planet. After much criticism for their silence, NOW issued such a limp statement that it would have been better if they’d continued to say nothing.
I find this especially galling because when I give lectures all over the country on sexual violence, I see the same poster of NOW’s president calling for an end to “the silencing” of rape victims. Are you scratching your head yet? Victims should be brave and break the silence, but NOW stays mute when they need support. That’s effective, don’t you think?
The National Organization for Women was only too happy to condemn Senator Bob Packwood in 1995 for sexually harassing women in his office, but NOW was essentially silent when President Clinton was being serviced by Monica Lewinsky under his desk in the Oval Office, even after other women credibly accused him of even more serious misconduct. What’s going on here? How can groups that claim to care about violence against women go silent in certain cases and scream from the rooftops about the very same type of harm in other cases? I’m not sure I know the answer, but I’m certain that this hypocrisy is why so little is being accomplished in the fight against violence against women. NOW has to stop pretending to speak for all “women’s issues” and allow the development of true leadership to emerge. Men and women should be working together in the fight against violence against women. But to win the fight, they need to transcend the stranglehold of partisan obedience.
The failure of antiviolence activism is likely the result of a leftover classical liberal ideology that invigorated the women’s movement in the 1970s but served to co-opt and silence women who were fighting for better laws to prevent rape. Simply put, liberal elites managed to persuade lots of women’s advocates that the rights of criminals are more important than the right of innocent people to be protected from sexual violence. I just don’t get this mind-set. Sure I want strong protections for people accused of crime. Liberty for all of us is compromised when criminals don’t receive due process. But liberty also suffers when whole classes of innocent people, like women and children, feel terrorized just going about their lives as law-abiding citizens. It’s unreasonable for people who claim to be victims’ advocates to put criminals’ rights at the top of their list of priorities.
Many groups are starting to change, but it’s tough because victims’ groups get more money and accolades when they either stand up for criminals or stay silent. There isn’t a lot of ideologically-based political support and applause when groups criticize the legal system as “too lenient” on the perpetrator. I see a lot of hope, though, because I get “anonymous” calls from advocates who ask for advice about how to make their organization fight harder for victims. And although I get marginalized by some advocates who think that because I’m tough on criminals, I’m somehow unqualified to sit with them and ask the tough questions about how they’re spending their time and resources, growing numbers of advocates are fighting for real reforms to help protect innocent people from devastating harm.
People tell me I sound “fascist,” “conservative,” “liberal,” “radical,” and even “communist.” The only thing nobody calls me is a capitalist and the funny thing is that I like capitalism but it has no place in the criminal justice system. Justice should always be better than capitalism. But the bottom line is, all these isms are meaningless to me. I’m in nobody’s club and this is important because no leader of a certain ilk can call me and say, “Wendy, you need to start saying X,” or “You need to stop saying Y.” When it comes to antiviolence work, partisan ideologies are destructive forces that sometimes command obedience to dumb ideas.
Being an unaligned voice makes some of this work easy for me. But I’ll be honest, this is painful stuff to deal with, no matter what your background. Which is why writing this book has been difficult for me, and reading it may also be tough for you. I think of those jurors who acquitted an obviously guilty childrapist because they just couldn’t believe that someone could commit a horrible act of violence against an adorable three-year-old little girl. In that same spirit of willful ignorance, some people who read this book may not be able to face the truth. The truth will be too scary and too frightening.
Like you, I prefer to think of the world as safe. I’m the mother of five young kids. Frankly, it feels a whole lot better to assume the world is not a dangerous place when I send my children off to school every morning. But the sad reality is that crime happens all the time—and we are all at risk. Sexual violence, in particular, occurs with astounding frequency. In fact, it’s hard to find an adult who hasn’t been sexually assaulted at some point in his or her life. Ask around. Listen hard, and read between the lines. Don’t be surprised by the answers. Measuring incidence rates is difficult because so few sex crimes are reported to police but some studies show that one in four females and one in six males is victimized by a completed or attempted sex crime. In the book The Epidemic of Rape and Child Sexual Abuse in the United States (Thousand Oaks, CA: Sage Publications, 2000), Diana Russell and Rebecca Bolen write that 38 percent of girls under age eighteen are victimized by sexual abuse. Experts estimate that costs attributable to sexual violence amount to over $1.2 billion a year. It’s time to get outraged!
This book is full of stories that will make you feel angry, sad, shocked, and perhaps even terrified. Please don’t turn away. The truth is too important: The very justice system that claims to be keeping us safe is in fact giving away the store to criminals and beating the figurative hell out of innocent victims. And the worst part is the judges and lawyers whom we count on to serve as guardians of the system—the so-called officers of the court—are responsible for most of the trouble.
I tried fighting for change as a prosecutor. But after one too many judges told me that my job was to “state the law, not complain about it,” I gave up. I became a lawyer for victims in the real world.
I had two kids by the time I decided to leave the prosecutor’s office. This personal reality made my professional decision much easier. As a young mother, I’d grown tired of telling other parents the shocking truth: that the system cared much more about rapists than rape victims. Day after day, the cases came at me, and the staggering number of children being brutalized was tearing my heart out. It was getting hard to go home every night and see my toddlers’ trusting faces. Was spending all my time trying to put people behind bars for hurting kids the right thing for me to be doing? Was I actually helping to protect my own family? The reporting of child abuse and sex crimes seemed at epidemic proportions. Could my children possibly be safe?
I was lucky enough to have excellent day care. My aunt cared for my children at her home and she could not have been more loving and protective. But in the pile of cases on my desk, I could see that parents just like me were discovering every day that their kids had been hurt by someone they trusted—someone they believed was a loving caregiver.
One day, I asked my two-year-old son what he had done that day at Auntie’s. In his loud but imprecise little voice, he replied, “I eat Tom’s penis.” If you’re a parent, you know exactly how I felt. I nearly passed out. After composing myself, I started asking questions. “What room were you in?” “Was Auntie there?” “What was Tom doing?” When I asked this last question, my son replied, “He pick up da shells on da floor.” I started laughing. My precious little boy had been eating Tom’s peanuts. Tom had been picking up the shells. All was well! But during that endless split second, when I was thinking that the worst of the world had intruded on my own family and that a criminal case might be at hand, I realized something terrible. I realized that I—as someone who understood the system and could make sure it was as fair as possible—would not allow my own child to endure the suffering that would surely come with participation in a criminal trial.
This meant, in turn, that absolutely nothing would be done in my child’s (imaginary) case. Which made me realize that it was time to stop killing myself inside a badly broken system, where the criminals were laughing and the good guys were crying. As a prosecutor, there was little I could do to make things better. But if I left the district attorney’s office, I concluded, I could really make a difference.
Fifteen years later, I’m writing this book, in part, because I have made a difference. I’ve had real success—satisfying, gratifying success—fighting for victims, and I want to share my strategies with you so that you can help, too.
But before you can get involved, you have to understand how the system works, and why things are broken so badly. It’s essential for you to learn as much as you can about the challenges before us so that you can participate effectively in public discussions about criminal-justice matters and so that you can become a great advocate for a better legal system.
This book will give you insight into why terrible things happen to innocent people all the time. And it will help you fight back by letting you in on some of the dirty tricks and evil tactics that undermine the integrity of our justice system. Read it and weep, but don’t stop there.
Do something about it!