America's Judiciary:
The Good, the Bad, the Ugly

by D. J. Herda

There’s something going on in America’s courtrooms, something that has been going on for years.  But today it has grown to ominous proportions.  Today, our judges are laying down marks and weaving their own epitaphs.  In doing so, they are side-stepping our Democracy's system of checks and balances.  And they threaten the very fabric of a Democratic society.

Remember Richard Reid, the terrorist thug who tried unsuccessfully to ignite a bomb on a crowded plane?  He was apprehended and ordered to stand trial.  After admitting his guilt to the court, Reid pledged his "allegiance to Osama bin Laden, to Islam, and to the religion of Allah" and defiantly stated "I think I will not apologize for my actions," telling the court "I am at war with your country."

On January 30, 2003, in United States v. Reid, Judge William Young of the U. S. District Court sentenced Reid to life in prison. 

“The Court imposes upon you five years supervised release simply because the law requires it," said Young in his disposition.  "But the life sentences are real life sentences so I need go no further.  This is the sentence that is provided for by our statutes.  It is a fair and just sentence.  It is a righteous sentence.

“Let me explain this to you.  We are not afraid of you or any of your terrorist co-conspirators, Mr. Reid.  We are Americans.  We have been through the fire before.  There is all too much war talk here and I say that to everyone with the utmost respect. Here in this court, we deal with individuals as individuals and care for individuals as individuals.  As human beings, we reach out for justice.

“You are not an enemy combatant.  You are a terrorist.  You are not a soldier in any war.  You are a terrorist.  To give you that reference, to call you a soldier, gives you far too much stature.  Whether it is the officers of government who do it or your attorney who does it or if you think you are a soldier.  You are not--you are a terrorist.  And we do not negotiate with terrorists.  We do not meet with terrorists.  We do not sign documents with terrorists.  We hunt them down one by one and bring them to justice.

“So war talk is way out of line in this court.  You are a big fellow.  But you are not that big.  You're no warrior.  I've known warriors.  You are a terrorist.  A species of criminal that is guilty of multiple attempted murders.  In a very real sense, State Trooper Santiago had it right when you first were taken off that plane and into custody and you wondered where the press and where the TV crews were, and he said, ‘You're no big deal.’

“You are no big deal.

“What your able counsel and what the equally able United States attorneys have grappled with and what I have as honestly as I know how tried to grapple with, is why you did something so horrific.  What was it that led you here to this courtroom today?

“I have listened respectfully to what you have to say.  And I ask you to search your heart and ask yourself what sort of unfathomable hate led you to do what you are guilty and admit you are guilty of doing.  And I have an answer for you.  It may not satisfy you, but as I search this entire record, it comes as close to understanding as I know.

“It seems to me you hate the one thing that to us is most precious. You hate our freedom.  Our individual freedom.  Our individual freedom to live as we choose, to come and go as we choose, to believe or not believe as we individually choose.  Here, in this society, the very wind carries freedom.  It carries it everywhere from sea to shining sea. 

“It is because we prize individual freedom so much that you are here in this beautiful courtroom.  So that everyone can see, truly see, that justice is administered fairly, individually, and discretely.  It is for freedom's sake that your lawyers are striving so vigorously on your behalf and have filed appeals, will go on in their representation of you before other judges.  

"We Americans are all about freedom.  Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties.  Make no mistake though.  It is yet true that we will bare any burden; pay any price, to preserve our freedoms. 

“Look around this courtroom.  Mark it well.  The world is not going to long remember what you or I say here.  Day after tomorrow, it will be forgotten, but this, however, will long endure.  Here in this courtroom and courtrooms all across America, the American people will gather to see that justice, individual justice, justice, not war, individual justice is in fact being done...

“See that flag, Mr. Reid?  That's the flag of the United States of America.  That flag will fly there long after this is all forgotten.  That flag stands for freedom.  And it always will.

“Custody, Mr. Officer.  Stand him down.”

Judge Young, in deciding that case, got it right.  He applied the law prudently and judiciously.  He didn't make the law, he didn't usurp the law; he applied the law, and he got it right. 

But more recently, Vermont District Court Judge Edward Cashman outraged millions of people for a sentence he handed down to sex offender Mark Hulett.

Hulett pleaded guilty to two counts of aggravated sexual assault and one lesser crime.  The man admitted that he had regularly assaulted a 10-year-old girl for more than four years.  The molestation began when she was six.  It was nothing less than prolonged torture of a child by someone who is now 34.

Following Hulett’s guilty plea, Cashman sentenced the child molester to 10 years in prison and placed him on probation for life.  Then he stunned the victim’s family, state prosecutors, and nearly everyone else in the civilized world by suspending all of that 10-year prison term except for 60 days. 

Cashman, who has been on the bench for more than two decades, defended his actions by pointing out that if he had sentenced Hulett to a lengthy 10- to 20-year sentence as sought by the prosecutors and proscribed by law, the defendant would not have gotten sex offender treatment offered by the state.  Since Vermont’s Department of Corrections Sex Offender Treatment Team had decided that Hulett was a low risk offender, he didn’t qualify for in-prison counseling.  

So, Cashman devised a means by which to force the state to provide him with counseling.  By removing him from prison and placing him under probation, Cashman would force the state to place Hulett in counseling.

While Cashman’s intent to point out a flaw within the state’s Department of Corrections is admirable, his abuse of the rights of the victim and her family in doing so is heinous.  The young girl who is the victim of child abuse is now also the victim of abuse by the Judicial System—a system that was never intended to make, create, warp, or side-step our laws but simply to apply them.

This 10-year-old girl is the true victim of Cashman’s callous, thoughtless, and odious activist philosophy, and he has emotionally scarred her for life by assigning her assailant a mere slap on the wrist.  She will likely never recover from the stigma, never be able to live a normal existence.  Even with extensive and prolonged counseling, she will likely never grow up normally or go out on dates or fall in love or get married or bear and raise healthy children or even simply sleep nights for the rest of her life.  She will be haunted by the horrors of Hulett’s sexual abuse—and now Cashman’s activist judicial abuse—forever.

The message Cashman sends to other sexual abusers of children—not to mention those perverted or sexually dysfunctional adults who have yet to wander into the abyss of juvenile sexual perversity—is equally clear: If you're going to do it, do it in Vermont, and we won’t hold it against you.

Two very different judges, two very different approaches to the judiciary.  One applies the law and metes out justice; the other imagines the law and perverts it to fit his own warped legislative fantasies.  One is concerned with the rights of the victim; the other is preoccupied with the disposition of the criminal.  One is good; the other is bad.  So bad, in fact, that he is downright ugly.

And I...am D. J. Herda

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D. J. Herda is President of the American Society of Authors and Writers (http://amsaw.org), an organization made up of authors, writers, editors, publishers, agents, directors, producers, and other media professionals who rely upon the printed word in the creation of quality literature and entertainment.  He is a member of the Author's Guild, a former member of the American Society of Journalists and Authors, and a former member of the National Press Club.  He has published more than 80 books and several hundred thousand articles, short stories, columns, interviews, plays, and scripts.
 

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