The law's senseless cruelty was on display again last week in a Bridgeport federal courtroom. No matter how many times I see a person ground to dust by the impersonal imperatives of rules applied without reason, I still am outraged by each new life undone. Behold this new sorrow:
J.M. is a young man whose computers were seized by federal agents in March. The officers were looking for child pornography. This past week, prosecutors demanded that he turn himself in to a judge. Although federal law normally requires a grand jury to pronounce that there is reason to arrest, the law permits the Government to seek a warrant based merely on an affidavit in some criminal cases. The new United States Attorney in Connecticut, David Fein, doesn't want to wait for grand juries to act when it comes to claims of child pornography. He wants quick arrests. Our judges dutifully, and sheepishly, oblige the new lawman: Begone grand jury! People are looking at dirty pictures! The republic is imperilled! Sound the alarm!
We stood before a United States Magistrate Judge, an eight-year appointee who is relegated to the minor leagues of the criminal process, capable only of signing warrants, performing arraignments, and deciding, significantly, whether a defendant will be set free prior to trial or not. She signed the arrest warrant.
The Federal Bureau of Investigation agents who prepared the arrest papers detailed a shocking amount of child pornography in my client's computers, and, therefore, circumstantially at least, in his possession. There were nearly 100,000 images; some 7,000 videos. This is a large child pornography bust as these cases go. We entered our not guilty pleas and set ourselves to argue whether he ought to be detained pending trial.
If he is convicted of these charges, the prosecutor told the judge, he faces in excess of 12 years in prison. Because looking at these pictures poses a risk to children -- she never stopped to explain how looking at photographs poses a risk to anyone -- the prosecutor argued my client is a danger. I argue that pictures hurt no one. Sure, a market in filth requires suppliers. But there is no evidence that my client has trucked, bartered or traded in prohibited images since March, when federal prosecutors made it clear to him that trouble was coming. He poses no present threat. Indeed, he spoke freely to the agents when they searched his home.
But then came the fatal move, the move that stuns me into a sense of impotent rage.
My client has lived in the United States since he was six years old. For the past quarter of a century he has been educated in the United States; he speaks Englsh with hardly a trace of an accent; he has no passport to travel abroad. Indeed, he has not left the country since he first arrived here. But for all that, he has not acquired a legal right to remain in the United States. Although papers were filed years ago to permit him to remain lawfully in the country, no action was taken on his file. He appears to be in the country illegally.
The Government now moves in for the kill at the detention hearing. Since he has no legal status here and now faces many years incarceration if convicted, he is a flight risk. Hence, he must remain locked up. The judge appears to agree. We go back to court next week to sort out his status. In the meantime, my client sits in a federal prison, trying to find hope. Were the man in the country lawfully, the Government concedes it would have agreed to his release. He is imprisoned on the say-so of a federal agent, deprived of the dubious protection of a grand jury, and not even offered the protection of an Article III judge appointed for life, and hence, presumably above the push and pull of hysteria. This illegal alien got discount justice.
The senselessness of this is beyond belief. My client is as much an American as am I. We both grew up here. We both speak the same language. As children, our parents put down roots where they could in order to survive: his parents came from Latin America, my father snuck into the country from Crete, and died, many years later, living under forged papers. Yet an accident of birth give me the right to remain here; nothing more.
My client may not be released prior to trial. If I lose the trial, he will be sentenced to more than a decade in federal prison. When he is released from prison, he will be put on an airplane and flown to the country of his birth, a place he has never called home, and where no one knows him. I doubt he will be welcome with open arms.
What sense is there is locking this man up only to throw him out of the country? We are not working to rehabilitate a man who will rejoin our society. Throwing him out of the country is deterrence enough for him and others. We lock him up only to punish him. Yet isn't banishment punishment enough? The law operates in this case with a senseless cruelty and coldness that leaves me near speechless. I try to explain the law's ways to him; it must sound as if I am talking mere babble. This is not justice. It is savagery.