There's a certain type of "activist judge" everybody seems to like. One's in the news right now, defending kittens.
I've heard such judges praised across the political spectrum. Yes, leftists, centrists, rightists, libertarians, environmentalists, Christians, and Wiccans love these judges' activism — I've heard these judges praised even by those who say they are against "judicial activism."
And yet, this form of judicial activism is expressly forbidden by the U.S. Constitution. Of course, that doesn't stop these judges. So what's new?
Kittens, that's what.
Michelle Murray, age 25, recently appeared before Judge Michael A. Cicconetti in an Ohio municipal court. Ms. Murray, you see, had been working as an animal rescuer, but had hit tough times and found herself having to move. She became stressed out and unable to take care of the cats she had in her possession. And people kept dropping off more cats! She said she had tried to call the local Humane Society, but (as the News-Herald informs us) "panicked after three cages of cats were dropped off at her home." So she dropped the felines off at a local park. Thirty-three of them, some of them mere kittens.
Now, had she freed a nest of garter snakes, almost no one would have cared. But these are house cats, which most people think must be protected. It's inhumane to set these animals back into the wild, where nature can do its usual way with them, red in tooth and claw and all that. (Of course, cats that survive in this condition are called feral, and live as predators and scavengers at least as well as possums and coyotes and rats; but that, I'm told, is irrelevant.) Since Ms. Murray was an animal rescue worker, she didn't have much standing to challenge the law under which she was charged.
And she had most definitely broken the law. She apologized profusely.
Her expressed regret made no difference to the judge, however. "People panic and commit crimes, they use drugs, they commit domestic violence," the judge pointed out. "But this wasn't one incident. You did it again the next day." Murray had admitted to trying to unload another feline after first being charged with the crime, a cat that later was put under by the local shelter.
So the judge got creative. Not only did he give her jail time and a whopping fine, he wanted her to "suffer the same consequences as those kittens." He directed her to be taken into the wild of a local park at night and forced to stay there all night, with only water and light — and, I gather, some extra clothing, since the weather was below freezing. "You can listen to the coyotes, hear the raccoons in the dark of night."
If you're like me and have been camping, this punishment may not seem quite as horrible as it probably did to Ms. Murray. Listening to coyotes can be a bit unnerving, but racoons and the like don't bother me much.
What does bother me is Judge Michael A. Cicconetti. This is not his first creative sentencing.
He had sent a man guilty of playing his car stereo too loudly to sit in the woods, too — this time not for the terror but so he could "appreciate silence." Odd contrast to the present story, and it suggests the dangers of such creative sentencing: they may be humiliating, but they are more likely ineffectual.
This is more obvious with his most famous case to date. He had forced a man who called a policeman a "pig" to stand on a street corner next to a pig wearing a sign saying "This is not a police officer." If I were a policeman, that punishment might not sit well; isn't this just challenging smart alecs to smirkingly quip that the pig protests too much?
Whatever the actual effects of such sentences, the intent is clear. Cicconetti is playing the shame game. He's hoping that by designing humiliations to fit the crime he will "teach people a lesson." Other judges have done similar things; we've read before about slumlords made to live in their own rat-trap apartments, or walk in front of their building with signs saying "I am a slumlord."
This type of punishment harks back towards more primitive times and conditions: Why not cut a thief's hand off? Why not castrate a rapist? Why not kill a murderer? It seems apt, thus just. After all, when a bad guy gets it "in a really cool way" in a book or movie, we call it "poetic justice."
A few years ago on David E. Kelley's The Practice, a man who had secretly videotaped an attractive young woman in her apartment shower (and then distributed the recording on the Net) was forced to pull down his pants in the courtroom. The judge, the court, and no doubt the audience, smirked.
Poetic justice may be fun in fiction; too bad we have to witness it in real life. Face it: gut appeal doesn't make it good.
It's not even the law.
The Eighth Amendment to the U.S. Constitution is fairly clear on this: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
These rulings rub against the plain meaning of the last clause: no unusual punishment!
Some time back I castigated the Supreme Court for taking the "world standard" (chiefly, the consensus of states in Europe) regarding the death penalty as reason enough to rule against a particular use of capital punishment. Some of my readers wrote to disagree, saying that the "unusual punishment" prohibition suggested making a comparative standard. Plausible, but easy to deny. The obvious comparative is with other punishments in the United States, not the rest of the world. The standard is our own rule of law.
And focusing on humiliation . . . that's deliberate cruelty. Also forbidden.
The whole thing smacks of barbarity — even if ostensibly to defend kittens. "Creative sentencing" was once common; remember The Scarlet Letter? Making up new punishments for every even slightly odd case is precisely what the Founding Fathers worked against.
Why? Because we can't trust judges to make the law anew with each case. We cannot trust our lives to judges with that kind of power.
But I understand the appeal. It sure is tempting. For instance, I'd like to send Judge Cicconetti into the woods armed only with a flashlight — and a copy of the Constitution.