By Mark David Blum, Esq.

(Republished for your reading enjoyment)

Soooooooo …

There I was in Town of Whatever Court awaiting my turn at the bench. Actually, it was not “my” turn, but my client’s turn. That, however is another discussion altogether.

Amongst the great unwashed who sat around gathering dust as the Judge plodded along through his calendar sat a young pretty mother and her most adorable young baby. The baby was a pretty little blonde thing with the cutesiest wavy hair and the most enlightening smile that completely swallowed her chubby little cheeks.

This pretty baby girl was cooing and gurgling and making all kinds of heart melting baby noises as she sat calmly in the stroller. Her mom would put a finger to her mouth and say “shhhh” and the baby in the stroller would smile and mimic Mommy with a baby-esque “shssshhshhhsssss” followed by a gum glaring spittle driven smile.

All this activity was going on for about thirty minutes when I decided to get into the game. As the baby was scanning the faces and exchanging smiles with enamored and smitten adults; her eyes and mine met. It was ‘game on’.

At first, she looked hard at me recognizing the evil within. Yet, she could not look away. She tried to look away a couple of times, but she eventually her eyes came back. She was my prisoner. So, I started.

Up went my finger to my mouth, and I did the “shhh” thing. She smiled.

Up went her finger to her mouth and she did the “sshhhssssssshpppflsllsffgfft” thing. I smiled.

And then, I did it again … “shhhhh” and she giggled. She went “sssfpppfpprrrrffssssssptttttttt” and laughed … and I went “shhhh”.

Her laughs and screams of glee were getting louder and more boisterous. The plan was in play.

Courts and Judges have no patience for noise from the gallery. Children seem to irritate them the most. I have seen judges do some cruel and terrible things to parents of young children just because the parent was unable to find childcare for those several hours they had to wait around. The person who bears the brunt of the frustration is usually the Court deputy who then has to be the heavy and do the Lord’s dirty work. Some of them actually enjoy being cruel.

Eventually our cooing and bubbling baby drew the attention of the deputy. To his credit, he and the Court staff had been very patient and tolerant of the babychatter in the back. I was biting my lip as I saw him slowly coming toward the child. (Unsnapping his holster and taking a 3 point stance was a bit much, but regs are regs).

This deputy in the kindest and most gentile way and with a big grandfatherly smile showed the mother the small room in the back of the court room where she could sit with the child and not disturb the judge. Mom was good about it and strolled her little monster back into the room.

At that moment and before I could stop my mouth, out came the line of the day … “she got sent to baby jail.” The deputy cracked up … along with about 15 other people sitting around us. He then said it was my fault she went to baby jail because I was making her scream.

I said, “I usually don’t make them scream until they are a lot older.”

He laughed out loud all the way to the bench. The judge just peered over his glasses … first at him, then at me.

After I left the Court and was driving home, I wondered aloud how much bail was set for that cute little baby girl --- and damn near hit a tree

And then ..

There is another kind of Baby Jail. One, much darker and more macabre.

Has a ghost ever visited you? Not a white-sheeted, slime bearing being from another dimension. Rather, has a word or event from your past sneaked up upon you later in life and jumped down your shorts repeatedly biting you in your ass?

I wrote a piece a while ago titled, ‘Baby Jail’.

I was in another Courtroom on another date and watched helplessly as a client, a mere baby of 16, get sent to jail for six months.

While waiting our turn on the calendar, I was in the break room where a grandmother of one child was watching her own kin along with a couple other kids whose parents were appearing in Court. She did not laugh when I referred to her situation as the Warden of Baby Jail. Her sneer reflected her status as prisoner sentenced to hard labor.

Then, I heard that my own baby had herself spent Christmas in jail. We all wondered what was up because we did not hear from her but trusted she was happy and at peace. Apparently my Mom knew but she refused a request to tell me. My Mommy Dearest felt that was news only my kid should give me and did not pass on the message. My Mommy Dearest never did check to see if my kid had my telephone number. Gee thanks, Mom.

Since the day I wrote, Baby Jail, I have been haunted by babies in jail. Babies should not go to jail. We should not consider jail as an option when they pose no threat to themselves or others. Yet, the system grinds on.

Both these children ended up as they did … not for their crimes, but rather for their battle of wills against the “system”. They are not alone. I cannot quote you numbers. I can, however, tell you that since the day I signed onto this profession, I have seen far too many lives ruined not from criminal activities, but rather from the systemic failure of the Department of Probation and the arrogance of the Bench. (Please do not misunderstand me, I do not use the word “arrogance” in a negative sense or as a personal insult, but rather as a reference to the battle of wills and win at all costs, every time, no matter the circumstances, aspect of that branch of government. It is an attitude inherent to the position, not to any one person).

First, the easy one: My eldest is no longer, by law, a kid … but she is still is and will forever remain my baby. Thanks to the mother that raised her, the child lacks the socialization and maturation necessary to function in civil society. She is such a good-hearted person and a wonderful human being with great potential. But, like most her age, she is also a stupid idiot when it comes to the ways of the world. So, she gets a DWI and among others, gets put on probation. Of course, when I ask her about her probation and how its going and stuff like that, she thinks I am a colossal idiot and hems and haws and gives no specifics. So, when I hear she is sent to jail for 30 days, I am not surprised the judge zinged her. It hurts my heart to hear. Being in New York and her in California, there really isn’t much I can do. For the record, the Judge was a real jackass for doing it over Christmas. But that is how it worked out for her.

If you think about it, her crime did not justify a 30-day jail sentence. She is young and stupid, granted. According to her plea, she did drive under the influence. She paid a fine, lost her license, and ate a lot of shit as a result. But, she went to jail not for her DWI, but for her battle of wills with the bench. “You will do this, the way I say it, when I say it, or else.” Probation should mean being monitored, not having another set of parents. The goal is to make sure there is oversight for someone who otherwise cannot function on their own or someone who needs monitoring. So, how do you enforce compliance? Does taking someone from their job and apartment, a mother from her children (my grandsons), and forcing the taxpayers to pay for room and board gain compliance? Jail is not the same as sending a child to their room.

Last night, the same thing happened; this time to one of my clients. A year and a half ago, this then 15 year old kid is in a cemetery at night with his 17 year old friend and a girl. They are drinking beer provided by the older boy. Then, the older boy and the girl start making out; leaving our 15 year old hero there alone and left out. Reacting badly to the situation, the 15 year old boy gets into the car and tries to drive out; hitting a headstone and a tree in the process. His “friend” calls police and the kid is arrested; charged with felony criminal mischief. The District Attorney, the Probation Department, and of course his attorney all realized the one time stupidity of this event and the kid was allowed to plead to a misdemeanor and make restitution.

That should have been the end of the story. Eighteen months later, it is still going on.

If anybody remembers being a 17 year old and what it felt like in that time warp between teenagerhood and adulthood, where freedom and independence are your primary concerns, you will understand what happened next.

The kid lives out in the boonies, on a hilltop, with his recently divorced Mom. He was a kid doing very well until their divorce, and thereafter, the teenager started his slide into hell; resulting in the incident at the cemetery. Because of his isolation, he has no car, no license, and hence no job. He had finished high school and was about to start matriculating at O.C.C. and majoring in classical music when all this started.

Then came his sentencing. The ‘friend’ who got him in trouble had submitted a bill for damages that was more than ten times the value of the piece of scrap yard car that was damaged. The number jumped 10-fold from the date of arrest to the date of sentencing. A hearing was demanded, but at the 11th hour, a reasonable sum was agreed upon. The next day, restitution was made.

That should have been the end of the story. Eighteen months later, it is still going on.

In their report, the Department of Probation did not want this kid. There was no reason for him to be on probation. Yet, they also said that since he owed “a great deal” of restitution, the kid should be on probation until restitution is made. That “great deal” of restitution was significantly reduced and paid at sentencing. There was no reason for the Court to put the kid on probation. Over strenuous objection and argument, the Judge insisted on adding a term of probation onto the sentence.

For this kid, that extra punishment, probation, was a death sentence. It killed whatever soul this kid had left. Any hopes he had about judicial fairness and forgiveness were shattered with the drop of a gavel. I told the Court then a very bad decision was being made and a life was going to be ruined, but the arrogance of being “right” even when you are wrong prevented the injustice from being undone.

So here is the situation: A 16-year-old kid feels like the whole world took a shit on him. His father left him after the divorce for a new family and has ignored him since. He now has a new set of parents to please; the Probation Officers. There is no school for him because his Probation Officers want him to be drug and alcohol evaluated and treated. He tells the treatment people he does not have a drug and alcohol problem. They say he keeps testing positive for marijuana. He is showing no signs of addiction; but instead of using marijuana to fill the time voids that he is stuck alone at home on that mountain. I tell him to cut it out until his probation is over. He doesn’t give a shit. After as much haggling and delaying and working as a lawyer can legally do, he is standing in front of a judge last night; not only for violating his probation but for violating his agreement made after he had once plead guilty to violating his probation.

He is no longer in that courtroom because of the crime he committed in the cemetery. That was resolved and paid for and everybody moved on moths ago. The ‘friend’ was still his friend and still getting him into trouble. I have no doubt a beautiful replacement headstone was likewise installed.

Last night he was in court because of a battle of wills he had with the judge. I define this kid’s attitude and behavior as “age appropriate misbehavior”. All people his age will take a stand, fight their parents and the system, in a quest for independence and freedom. I did it. You did it. Everybody you know did it. Most of us did not get arrested for our behavior during the young and stupid days. Heck, most of what we did then and took as pranks or idiocy, is a crime today. Some of us got through it, stayed on the path, and were over-achievers. Some, like me, took a while longer to stabilize after that transition and the damage caused. This kid was right in the middle of it while he was on probation. His appearance in court and continuing involvement in the system was no longer for any crime; but rather whether he was going to submit to the whims of the Probation Department.

I begged, I cajoled, I argued with the judge to the point his face was reddening and my own freedom was apparently at risk. The court room deputy later told my client that I almost ended up sitting next to him in that holding cell. I tried desperately to remind the judge that putting the kid on probation was a mistake for just this reason. I begged him to let the kid off probation so he can move on with his life. But, the judge was not going to let go and kept bringing up the marijuana use. It was a Pandora’s Box but I tried in a few sentences to explain that casual marijuana use does not pose a threat to society at least no more than a couple of beers. I told the judge that this kid is at a critical juncture in his life and our next move will go a long ways in determining how this kid’s life turns out. The judge told him his next move was six months at the Onondaga County Correctional Facility.

Now keep in mind that the kid was sentenced to six months in “grown up” jail for his casual marijuana use. Had he been caught red handed with two ounces of marijuana in his possession or had he sold marijuana, by the law the charges would have been dropped. (CPL 170.56). A second time he was caught with 2 ounces or less or was selling, he might have plead guilty to a misdemeanor and caught a sentence of probation or Drug Court. Even on a third arrest for possession of 2 ounces or less or selling, he still would not have faced a six-month jail sentence.

None of this fazed the Judge. He had to be right. His sentence of probation was unnecessary and uncalled-for. He took a child and made him angry and bitter. Will society be better off now that this kid has been jailed? Have we lost a musician or surgeon because he has given up? What will six months (or four, which is what the sentence will actually be) in jail do for this kid’s self-confidence, self esteem, and self respect?

What have we done to ourselves? We have become a society based on retaliation, punishment, domination, and win at all costs. Somewhere along the way, we have lost our heart, our soul, and our conscience. I understand the need of the Judiciary to be respected. But the judiciary needs to temper itself by not treating the case before it as a cutout of the one before it.

More importantly, and of local interest, is that someone needs to strip down and completely overhaul the Department of Probation. I myself have witnessed through my own cases and those of other attorneys, how the Probation Department uses cookie-cutter terms and conditions that it imposes on everybody who walks through the door and the Department takes no personal interest in a single one of its cases. There is not a criminal defense attorney in this town who has not had a client get ground up by the system … not for the crime committed, but because of a power struggle between Probation Officer, Judge, and Citizen.

Last night, while waiting, there was a perfect example of this: Another attorney was representing a woman alleged to have stolen money from her employer. She had made restitution and her employer had forgiven her and allowed her to keep the job. The Court sentenced her to probation pursuant to a plea agreement. Yet, the Probation Department insisted on the following additional terms of her probation. (1) She was not allowed to consume alcohol despite alcohol not being involved in the crime. (2) She was not allowed to have a driver’s license. (3) She was to waive her fourth amendment rights and allow Probation Officers to enter and search without warrant any place she was at … including YOUR house.

The Department of Probation, from all that I have heard and experienced, is a colossal failure. I am not sure how the money flows, but there has to be incentive for Courts to unanimously impose probation sentences on nearly every case that comes alone. Courts have got to stop taking the word Probation Officers on every allegation. We have got to stop using jail as an option to punish someone for missing an appointment. Imprisonment is not a means to handle drug use mostly because there are more drugs in prisons than on the streets AND because some people see drug use as an illness and we do no jail the sick. Most importantly, we have to keep focused on why a defendant is on probation and whether society is benefiting from continually dragging people into court or tossing them in jail.

Society has to relearn tolerance and to know when it is better to have peace than to be right. We have to relearn forgiveness and to give people some room to breathe and grow. Nothing is lost when a Judge steps back and spares a soul even though the Judge may personally feel someone got the better of him. So what? I am not now as I was when I was 17 years old. Neither are you. But the scars from our youth haunt us today and impact everything we do thereafter.

Maybe it is because my own child was caught up in this trap. Perhaps I am too close. Maybe it is because I got to know the kid from last night and knew him better than anybody; including his Mother. Possibly, it is because it tears my heart out to see the system keep on grinding kids into hamburger. The system has lost its conscience. Have you?