Recently there was a story about a 17-year-old who was sent to jail for truancy. As a result of public outcry, the judge has decided allow her to expunge her record, but she has already spent the time in jail. What made the story so poignant was that the reason she was truant so often was out of sheer tiredness. She is not only an honor student, she also works a couple of jobs because she is the sole support of her brothers and sisters. But, let Father Orthoduck argue that, according to conservative law and order advocates, she received exactly the punishment she deserved. After all, no one is arguing that she did not break the law. She broke the law. She was truant over 10 times. And, the law says that that is a crime punishable by jail. The judge was not a liberal judge who would let lawbreakers get away with breaking the law. He was a strict constructionist who believed in enforcing the law as written.
From the 1980’s, conservative law and order advocates have been insisting that “liberal” judges were letting law breakers free or giving them sentences that were too light. They have also insisted that there should be no flexibility in applying the law. The law should apply equally and in the same way to everyone. In fact, many of the arguments about the children of undocumented immigrants who were brought here as babies is that there can be no amnesty, no bending, no mercy, no “liberalizing” of the law, no judges who can be allowed to mess with the law as written. There is only one problem. That type of attitude about the law breeds unintended consequences.
It means that 17-year-old honor students who support their siblings and are too tired to go to school are properly punished for breaking the law. Since Florida was willing to send two under twelve children to prison for life, without parole, for murder, it should not be surprising that more than one first grader and/or elementary school student has been handcuffed by police personnel for failing to control their behavior. Elementary school students have even been tasered. This is not a failure of common sense by the police. It is precisely what conservative advocates wanted, unflinching enforcement of the law without any freedom to adjust. After all, adjustments to the law were labeled “liberal” and a failure to be strict constructionist.
Of course, conservative law and order advocates never foresaw what a zero-tolerance world might look like. They never really meant for the law to be fully and thoroughly enforced with no flinching and no variance. But, now they have gotten what they wanted. And, over and over places like Fox News are filled with “horror” about enforcement actions. But, this is the world that conservatives wanted, is it not? Was not a world wanted in which judges had no choice but to enforce the law as written? Was not a world wanted in which anyone who broke the law would be treated as the criminal that they truly are? Was not a world wanted in which judges would refuse to countenance extenuating circumstances in order to truly enforce the law with no variance among persons?
Yes, conservative activists have won the fight. Father Orthoduck hopes that they like the justice system that they have created. Father Orthoduck wishes to return to a system in which judges and prosecutors had discretion. He wants to return to a system in which presidents and governors had the right to grant clemency without their being called wrong and risking ever being elected against. Father Orthoduck wants to a return to a system that has mercy alongside justice and common sense alongside a correct regard for the law, not a legalism that horrifies us with its unmerciful attitude.
Yes, conservative law and order advocates, you have been successful. Father Orthoduck hopes you like the justice system that you have created. It is indeed fully your system.