Genetic Justice

Justice in criminal cases can go awry for a lot of different reasons. New theories of genetic disposition to criminal behavior are interesting and some of it might even be true. The worry is that it might become another excuse factory to let criminals off the hook. We’ve seen how powerful made-up excuses can be, the most common one has been “He had a difficult childhood and he can’t help it.” The excuse that a criminal’s genetic code made him do it would feed too neatly into the “he can’t help it” excuse with the result of putting violent recidivists on the street. Thankfully, there’s no evidence at present that anything of the sort has occurred to any great degree.

But Clinton-appointed Federal District Court Judge Gary Sharpe in the Northern District of New York has used his own genetic theories in the sentencing of Gary Cossey, who was convicted of possession of child pornography. Judge Sharpe didn’t use the man’s genes to let him off lightly; he did just the opposite. He substantially increased the sentence beyond the sentencing guidelines on the theory that his genes would make him reoffend in the future, even 50 years from now. The Judge reasoned that the man must be kept in prison, possibly for life, because his future behavior is in his genes and beyond his control.

The Judge has no special knowledge of genetics, either by training, education or experience. No expert testimony on genetic behavior was given at trial. Psychological evidence was presented which the Judge ignored.  So the Judge relied on his own extra-judicial notions about genetics and treated that as evidence.

The Second Circuit didn’t take to well to that.

On appeal, Cossey argued that Judge Sharpe relied on the belief that he would re-offend, based on a notion that he is genetically predisposed to view child pornography. Accordingly, he argued, his allegations concerning Judge Sharpe’s improper consideration of his genetic predisposition to re-offend, and his objections generally to the court’s reliance on his potential to re-offend, should be reviewed for “plain error.” That means the error is so egregious it cannot stand even if the appellant failed to follow proper procedures in trial court to preserve the issue for appeal. The error must be “plain” and affect substantial rights. It must be clear or obvious and seriously affect the fairness, integrity, or public reputation of the judicial proceedings.  [Some judges still do care about the public reputation of judicial proceedings, apparently] Serious stuff is what qualifies as “plain error.”

The Second Circuit opinion stated, “A reviewing court entertains a strong presumption that the sentencing judge has considered all arguments properly presented to her, unless the record clearly suggests otherwise.” [notice how the reviewing court uses the feminine pronoun “her” even though Judge Sharpe is a man. Male pronouns such as “his”, “he”, or “him” are now frowned upon in legal circles, at least in reference to the players, i.e., judges and lawyers. I think you’re supposed to use “it” in referring to a male lawyer, if you must refer to a male lawyer at all. All judges are “her” or “she.” If Doctor Johnson had anticipated this practice he would have defined it in his Dictionary under the word “cant”]

In reviewing Cossey’s sentence by Judge Sharpe, the Second Circuit opinion said:

In determining Cossey’s sentence, the district court rejected two separate psychological evaluations that had found Cossey was at a low to moderate risk to re-offend. The first report was conducted pursuant to a referral from Pretrial Services; the second report was conducted about one month later, upon Cossey’s visit to a psychologist. The court dismissed those reports, explaining that “[t]he opinions of the psychologists and the psychiatrists as to what harm you may pose to those children in the future is virtually worthless here.” One reason the court offered was that it did not “have a lot of faith in that profession in the first place” because the profession is “all over the board on those issues.” The court continued, informing Cossey it needed “to share a view that’s a little different than what you’re hearing from your psychiatrists and that’s because I’m not sure there’s any answer for what I see here beyond what I’m about to tell ya.” The court predicted that some fifty years from now Cossey’s offense conduct would likely be discovered to be caused by “a gene you were born with. And it’s not a gene you can get rid of.”

The court expressed its belief that although Cossey was in therapy, it “can only lead, in my view, to a sincere effort on your part to control, but you can’t get rid of it. You are what you’re born with. And that’s the only explanation for what I see here.”

The appellate court went on to hold that when a trial judge relies on its own scientific theories of human nature to sentence a defendant, as Judge Sharpe did here, a finding of plain error is warranted.  The Second Circuit remanded the case for re-sentencing, and then said:

We take the case before us one step farther …, however, as we find it necessary to remand the case to a different judge. As a general rule, “resentencing before a different judge is required only in the rare instance in which the judge’s fairness or the appearance of the judge’s fairness is seriously in doubt.”

Remanding to a different judge is a rare event and serious rebuke of the trial judge.  A criminal’s genetic code cannot be used to enhance his [male pronoun OK here because the guy’s a criminal] sentence.  Let’s hope it works the other way as well and that genetics can neither be used to excuse criminal behavior.

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