Consequences
It was a Monday. My wife and I sat in the lawyer’s office as I told my story. It wasn’t pretty. Three times over the past year, I had crossed physical and emotional boundaries with a 15-year old girl, the daughter of family friends. It was a massive betrayal of trust. The previous Wednesday, when I could stand myself no longer, I told my wife what I’d done. The following day, we went to see the girl’s parents. On Friday, her counselor reported me to the police.
That Sunday, my brother-in-law took me aside and said, “Phil, I think you need a lawyer.”
Until then, I hadn’t even considered it. I didn’t know any lawyers. I didn’t even know who to ask for advice about finding one. I looked in the Yellow Pages.
The one I picked was eager to help. “Come in tomorrow,” he said.
We parked across Main Street from his storefront office. I looked both ways to see if I knew anyone before ducking through the door. I still had hopes this could be dealt with quietly.
He ushered us into a second floor office. He offered us two leather chairs. I shook with fear and shame as I spilled my guts. The lawyer took notes. I told secrets I had kept bottled up for too long. It was catharsis, but without relief.
I knew there would be consequences. But what would they be? Would I lose my job? Would I get put on probation? Would I go to jail? For how long? I had no idea. Neither, it turned out, did my lawyer.
This was not because he didn’t know the law. In theory, any informed citizen can read the Revised Statutes to find the penalty authorized for breaking a law. In reality, there’s no way of knowing what the legal consequences will be for illegal acts like mine.
The lawyer tried to be reassuring. “Let’s wait for the indictments,” he said. “When the time comes, I’ll arrange for you to surrender privately to avoid a media circus.”
“Oh, God help us,” I thought. “Media circus?”
He turned to my wife. “Don’t let him talk to anyone else about this. He’d confess to the Lindbergh baby kidnapping right now.”
Then he asked for a ten thousand dollar retainer.
My lawyer called two weeks later with the news. Those three episodes of misbehavior had become five felony indictments. Five. Until then I naively thought I had offended the law in one way. I winced with shame as he read the allegations. I didn’t recognize my behavior in those cold legal descriptions.
How did they come up with five counts? I wanted to know. Just about any illegal behavior can be parsed into multiple chargeable offenses at the discretion of a prosecutor, I discovered. This is a piece of cake with sexual offenses. They can be sub-divided into innumerable discrete acts. Every touch is a separate offense. With a little more effort, I suppose, those five indictments could have been twenty-five. I would later meet a guy in prison who got ninety indictments based on a twenty-five minute homemade pornographic video. That’s 3.6 felonies per minute, and some kind of Guinness Book world record. But I knew nothing of that yet.
My lawyer suggested I was lucky. All my charges were class B felonies carrying a maximum of 3 ½ to 7 years…each. I did some quick mental calculation. That’s thirty-five years.
“Lucky?” I asked.
“Yes,” he said, “you were indicted for the same kinds of acts on two separate occasions. The State could have charged you with a pattern of behavior. And that’s a class A felony with a 10 to 20-year sentence.”
I learned the State can bring multiple pattern of behavior charges. Each kind of act that’s repeated more than once can be called a pattern. There was an offender in the New Hampshire State prison serving time on ten separate pattern charges involving the same victim.
How does a prosecutor choose among so many à la carte options? For prosecutors, it seems, the more the merrier. The State wants to force you into a plea bargain. This saves time and money and removes the need to prove those charges to a jury. To up the ante, prosecutors bring multiple indictments. Defendants who refuse to waive their right to a jury trial get punished with longer sentences.
At my first pre-trial hearing, the judge asked if any attempt had been made to settle the matter out of court.
“Your Honor, they offered my client 7 to 14 years,” my lawyer scoffed.
“Mr. Prosecutor, you’ll have to do better than that, if you want to avoid a trial,” the judge observed.
My lawyer thought that was a good sign. The State would probably come back with a better deal. But, that was the last I heard of plea bargains.
“Somebody really wants to see you in prison for a long time,” my lawyer told me later.
When the day came for my sentencing, the prosecutor asked that all five sentences to be run back-to-back.
“To send a message,” he said.
Instead I got 10 ½ to 21 years in prison. The judge offered to take 2 ½ off the minimum if I completed the prison’s sex offender program, leaving me eight years to serve behind bars.
Unlike many states, New Hampshire puts no limit on the number of sentences a judge can run consecutively. In prison I met Steve, an incest offender, who got six consecutive 10 to 20-year sentences - a whopping 60 to 120 years - for a first time offense.
In the Big House, sentencing discrepancies become glaring. Mark had done essentially the same things as I, but with a step-daughter. He plead out to 3 ½ to 7 with a year off for program completion. He was in and out in a flash compared to Dave, in for similar acts with a troubled teen. He was doing 22 ½ to 45 years. It had taken the State three trials to convict him.
In the treatment program, we learned not to compare sentences in front of the therapists. That was called “victim stancing” and could get you kicked out for focusing on your own pain instead of the pain you caused. You were to accept the sentence handed down as a wise and just recompense for your crimes even if the rationale remained inscrutable.
I paroled to Vermont after eight years and had to attend weekly group sessions for a couple more years. No one else in the group had done more than a few years in prison. One day a new guy showed up. He was in his thirties and had acted out with an underage teen, a family friend. He did one year in a Vermont prison and was now talking about moving back home. I thought of my children growing up all those years without a dad. It was too much for me. We had both offended the law in similar ways. We had both similarly hurt others by our irresponsible acts. Why were our punishments so different? The therapist must have seen me shaking my head.
“What are you thinking, Phil?” he asked.
I took a deep breath. “Am I so much worse than he,” I asked, “that I had to spend eight years in prison?” As I spoke, the tears welled up in my eyes, though I tried to fight them back. I expected to get blasted for this obviously untherapeutic display of self-pity. But by then I didn’t care anymore. I was tired of saying things just to please a therapist.
He gave me a look that might have been compassionate.
“Don’t go there,” he said quietly. “I’ve been doing this for years, and I’ve decided there’s nothing to be gained from comparing punishments. Down that road lies madness.”