Breaking the Law... or Broken Laws?

  Jerome Shea       March 31, 2007      Weekend Wonk

News item (The Week, 23 March)

Twenty-one years ago, Juan Matamoros was ticketed for public urination in Massachusetts. Now 49 and living in Florida, Matamoros is being forced to move with his family, because a new law bans “sex offenders” from living within 2,500 feet of a child-care facility. Matamoros admits he was technically convicted of “gross, lewd and lascivious behavior” for peeing in public, but argues that he poses no danger to children. Officials said the law leaves them no choice. “This is not a case we feel good about having to prosecute,” an official said.

First, an abject confession. Once, in my misspent twenties, I, too, took a whiz in public. (Well, there was no “public” in attendance. And it was dark. But the campus police happened by the parking lot, confiscated my booze (a very good idea), pointed out how stupid I was, and drove me home. A couple of days later I appeared before the dean, who also pointed out how stupid I was. I apologized, promised not to do it again, and kept that promise). The above news item makes me realize how lucky I was.

I hope that news item disturbs you as much as it does me. In a world of terrorists, starvation, epidemics, and all else that fate throws at us, Mr. Matamoros’s predicament is easy to ignore. But I don’t think we should. It is a small matter with large implications.

First, though, some suppositions and comments that should go without saying. Urinating in public is stupid (see above). Child abuse, especially sexual abuse, is heinous and intolerable: you’ll get no brief from me there. And we don’t know the exact nature, the details, the “degree,” if you will, of this public urination. Only Matamoros and the ticketing officers know that. Was it only technically public, as in my case (another confession: as a runner, I have been known to pee in the bosque, as discreetly as possible—we all do when the need arises) or was that 18-year-old bombed out of his skull, well past any thought of discretion? Was it in broad daylight? In the middle of a shopping center? We don’t know, although the age and the action do suggest “bombed out of his skull.” We note, too, the word “ticketed.” Even though he was later convicted, clearly this action (a misdemeanor?) was not considered serious enough to put him in the pokey. He was not “arrested,” with all that that word implies.

At any rate, Matamoros, because of a stupid action more than twenty years ago, now has to move himself and his family. Quite simply, that’s wrong. The most damning and poignant lines in the report, to my mind, are at the end: “Officials said the law leaves them no choice. ‘This is not a case we feel good about having to prosecute,’ an official said.”

“The law leaves them no choice.” Then I submit that the law, in the immortal words of Mr. Bumble in Oliver Twist “is an ass—an idiot.” But you can’t blame the law, of course. People make laws, usually with the best of intentions, and then the application of the laws sometimes comes back to haunt them. My point is that the law is calling the shots here. The officials seem to realize that Matamoros is getting a raw deal but there is nothing they can do about it. And in practical terms, I suppose they can’t: they have their sworn jobs to do. And part of the problem, it would seem, is rhetorical (oh, the mischief we wordsmiths can make!), in that the wording of some statute recently written in Florida meshed with the wording of a statute in Massachusetts (“gross, lewd and lascivious”) to make awful mischief for Matamoros.

Yes, I know. We are “a nation not of men but of laws.” And I applaud that principle, that sentiment, especially when a clear violation of the law is alleged, when a crooked politician, for example, thinks he can get away with something, when he supposes, as the saying has it, that he is “above the law.” This is the little guys’ revenge that cheers us all. Nobody should be above the law. I believe that. Nobody.

Do we then have a contradiction here? I don’t think so. First we have to remember that laws much more resemble bludgeons than scalpels. Imperfect people (well-meaning or not) make imperfect laws, and I don’t see that changing anytime soon. And a law that doesn’t apply across the board—equal justice and all that—betrays the whole principle of the thing. And if we tried to write a special amendment into the law, such that someone ticketed for public urination is not REALLY guilty of “gross, lewd and lascivious behavior”—well, we’d never have done with amendments.

When I first read that news item, it reminded me of something that I could not quite recall. Then it came to me: our growing urge to write laws that, bygod, no judge or jury can tamper with, that will finally send a clear message with no chance to weasel out of one’s punishment. I refer to “zero tolerance” policies, and “three-strikes” laws. But I don’t think such policies and laws are evidence of courage (if anything they are evidence of rage and frustration). I think they are an abdication of responsibility.

I hope that some of the most astounding cases of “zero tolerance”—the first grader who kisses his playmate and is branded for “sexual harassment,” the midschooler whose inhaler convicts her of drug use—are urban legends, but one can’t be sure anymore. I have no sympathy for career criminals, but I might be able to work some up for the dimbulb whose third heist nets him a boombox that is worth a couple of bucks more than the minimum that might have mitigated his punishment. Off he goes for life (and, by the way, we foot the bill).

Such laws and policies are a grave mistake, even while the impulse behind them is understandable. It takes courage (and sweat and patience) to address each case on its own merits, especially when the public is crying for your scalp for being “soft on crime” or a “bleeding heart.” But if we are going deliver true justice to our fellow man—and, yes, that sometimes may mean throwing the book at him—then we need a society of laws tempered by common sense. It’s risky and it’s messy, but it’s worth the risk and the mess.

Let us hope that Matamoros can appeal, can get a thinking, feeling, sensible judge (who maybe also peed in public in his benighted youth) to throw the whole sorry case out.