Lost

lost
in a Roman
wilderness of pain

—Jim Morrison

This is a story about a guy I know who will be warehoused in the state prison until he is dead.

I know more about what landed him there than anyone else does, because I am the only person who ever bothered to try to find out.

Too late, though.

He’s gone.

On October 1, 1993, 12-year-old Polly Klaas was kidnapped from out of her Petaluma, California bedroom, while her mother puttered about, unawares, elsewhere in the house.

A common, a terrifying, American parental nightmare.

Accompanied by the retroactive remembrance that:

Polly had a lifelong fear of the dark. She could not get to sleep unless there was a little light on. She was scared of a mysterious bogeyman and of the possibility of being kidnapped. It was something she had discussed often with her parents. Marc Klaas would recall with bitter irony how he had assured his daughter “that everything would be all right, I would always be there to protect her.”

Klaas was kidnapped, then raped, then murdered, by Richard Allen Davis. The rape and the murder unknown, to all but those two, for months. For Klaas’ body was not found, and Davis not apprehended, until long after Klaas’ kidnapping had gone viral, via the white-girl-in-distress template ascendant uber alles in American media culture.

When the “truth” did out as to Richard Allen Davis—that he was a career criminal who had earlier been incarcerated for a kaleidoscope of offenses, including kidnapping and sexual assault—the people of the state of California commenced the St. Vitus Dance.

They determined that such a person should never again be allowed to return to the streets to prey on people like Polly Klaas. They went to the state initiative process, originally fashioned to break the strangehold on the state of monied interests. But in recent years most often used to express the worst vigilante instincts of the populace. Eternally recurring the truth of Robert Stone’s words: “American populism, notorious as a pious front for venal corruption, the curse of this nation, and now, empowered by American wealth and resources, a worldwide plague.”

Californians wept and rended their garments, en masse, as they raced to the polls, to make sure that the killer of Polly Klaas would never again leave the big house, but in a box.

Except that this is not what they voted for. They voted instead for a measure wherein life-in-prison qualifying strikes could be both “violent”—i.e., you hurt another human being—or “serious,” the latter those crimes that Somebody had Decided had the mere potential for violence.

Like, say, residential burglary. The thinking being: but what if the homeowner comes home, during the burglary? The burglar might harm them. Whereas, in truth, in the vast majority of cases, at the first glimmer of an additional human presence, the burglar runs off like Richard Pryor with his body on fire.

Further, the three-strikes law provided that once a miscreant had accumulated two strikes, the three-strikes qualifying offense, the one that could send him or her to the state prison for life, could be any felony. As in, petty theft with a prior. As in, shoplifting a piece of pizza. And indeed, there are today people doing life in the state prison, for just such an offense. Under the law intended to send people like Richard Allen Davis to prison for life. But that instead, most often, locks away for life, wharf rats.

half of my life

i spent doin’ time
for some other fucker’s crime

the other half found me stumblin’ around
drunk on burgundy wine

—Robert Hunter

On a hot and sticky night in June, Abel ambled into the parking lot of a roadside motel in a small northern California town and stole himself a truck. He didn’t pay much attention to his surroundings: the owner of the vehicle, who hadn’t completed unloading the thing, saw Abel wheel it on out of the lot.

The police were summoned. Caught up with Abel very quickly. Cue lights and sirens. Abel paid them no mind. Accelerated. Not a lot of traffic on the road; no one, really, endangered; Abel, politely, remaining always within his lane.

Eventually the spike strips were deployed. Pop. Abel kept going, until the tires disintegrated. Then it was further on up the road, on rims only. Till a turn just could not be negotiated. At which time the truck came to rest on the shoulder. Abel put up his hands. The police hauled Abel, and his little baggie of methamphetamine, out of the truck, and transported him to the local pokey. Identified as a “felony parolee at large,” Abel was booked on a no-bail warrant.

These offenses occurred outside the usual scene of Abel’s crimes
. Abel was an East Bay miscreant, well-known to the folks in the criminal-justice system there. They’d been running him in and out of cages since he was 13. But this time, he’d strayed into trouble about 100 miles east of his habitual haunts. Deep into redstate California, the Great Central Valley.

How he happened to end up there went like this.

After his most recent stay in stir, he’d wanted to parole to the state of Washington. He had a wife there, Billie, whom he’d married three years before, while he was locked up in the county jail. The two had met while both were drug abusers, but she had since come clean, straight and sober for seven years; she now ran an insurance business. She wanted Abel with her. Thought she could help bring him to where she was.

But the state of California said no. Because Abel owed the state some $9000 in fines and fees levied in connection with previous offenses. And state Rules don’t allow anyone to parole out-of-state who owes California that much money.

Abel continuously found himself unable to clamber out of such holes. For instance, he has never in his life possessed a driver’s license. He has several times tried to obtain one, but each time, what is for most people such a simple goal, became for Abel an ever-more monumental task. Because, while still a juvenile, Abel incurred a driving offense that required him to pay fines and attend a DUI program. He was unable to timely do so, because he meanwhile got locked up for another crime. Once again out of stir, he discovered the fines had mushroomed, the program lengthened. Over the years, these fines compounded until they totaled a truly ridiculous sum, one that could serve as down-payment for some homes. And the DUI program now loomed as something of a life-long undertaking.

So. Abel was paroled not to Washington, but to the East Bay. Where all his fellow substance-abusers and criminal cronies were there to meet him. Except Abel didn’t even have time to get in trouble with these people. Because the dirty drug test he submitted to his parole officer contained traces of narcotics he’d consumed while still in prison. Abel, like many veteran inmates, had discovered that it was as easy to secure drugs while in prison, as on the street. Abel had even discovered heroin in prison. Because, after all that methamphetamine, a man has to sleep some time.

Abel was waiting for a bed to open up in Discovery House, a residential drug-treatment program, when his parole officer called to tell him that Abel would be violated, on the dirty test, and be sent back to prison. “I didn’t want to go back to the very place I’d got the drugs,” he later told me. So, when some friends encouraged him to light out for the valley, where they said they had a hidey-hole where he could lay up, that’s what he did.

“And immediately I got high,” he told me. “Which was against all of what I wanted to do. And then when I got high, I was not caring anymore.

“I know,” he said, “none of it makes any sense.”

The prosecutor in the valley county where the methed-up Abel had stole himself a truck, and then failed to stop when instructed to do so by the police, opened Abel’s file, and there encountered a habitual criminal.

As Abel and I later figured out together, the longest continual period he has been out of custody, since becoming an adult, is four months. Total out-of-custody time: about two years.

The prosecutor, he got pissed off that this recidivist East Bay miscreant, who had demonstrated a lifelong inability to stay out of jail, had come flapping into his jurisdiction to commence a pathetic crime wave.

Then there was the fleeing-the-police situation. Prosecutors are very protective of their police officers. And when somebody has required the police to pursue them at speeds of 110 mph, the veins in a prosecutor’s neck will bulge. Because s/he knows that, during the pursuit, odds are the police Got Scared. And making a police officer Get Scared is, to a prosecutor, a crime of the highest magnitude.

So the prosecutor decided to three-strikes Abel. He could do so, because Abel in 2007 had been convicted of three residential burglaries. Under California law, such burglaries are strike offenses. Though residential burglaries are not violent crimes. They are, rather, serious ones. But, to the three-strikes law, that makes no difference. One can be committed to the state prison for the rest of one’s life without ever having committed a violent crime. “Serious” crimes are enough.

And so it would be, with Abel. Abel had never committed a violent crime in his life. For he is not a violent person.

But the prosecutor determined that Abel should nonetheless be warehoused in the state prison until he is dead.

When the prosecutor made that decision, Abel was 29 years old.

I don’t remember how we got this case. I do remember that it smelled bad from the first time I opened the file. It smelled like a loser. It smelled like defeat. It smelled like this kid was doomed.

We’d been on a nice run, with three-strikes cases. We’d most recently come off a three-strikes case where a doped-up sadsack had put a knife to the throat of another doped-up sadsack, and threatened to kill a third, while meanwhile shoveling items out of their home, in broad daylight. This guy’s strike-priors included a stabbing, a rape, and death threats ululated in the presence of children. Furthermore, he was black. In a county where black people are about as rare as grizzly bears.

But we worked like twelve bastards, through a cascading series of briefs and hearings, and after a year or so succeeded in persuading the judge to strike the priors, and give the client straight time.

“Victory.”

However, there were circumstances in that case, that would not be present in Abel’s.

First, that client had benefited from the “sports exception.” If you are black, in a redstate California county, pray that you can deploy a “sports exception.” For you see, many white people had cheered this man from the stands, when he was but a youth, as he ran hither and yon, with various balls. Before blowing out a knee, and thereby his chance at the pros. But fond were the memories still of this man, among the white people. So fond that many were moved to write letters to the judge, on his behalf. Even—yea, verily—police officers. Even—so rare as to be almost unprecedented—the veteran court reporter diligently recording that very three-strikes proceeding. Which is sort of equivalent to Jesus Christ himself asking Dad to give some poor sinner a break.

Second, the judge sitting on the case has his eye on the appellate bench. And thus moves with the breezes blowing across the judicial landscape. And, with the advent of the Obama administration, those breezes whisper “empathy.” A word explicitly invoked by Obama, and his people, with the nominations to the United States Supreme Court of Sonia Sotomayor and Elena Kagan.

Righties may snicker, and lefties may scoff, but those of us trying to keep from drowning down here in the criminal-justice cesspool know that such words matter. It was no coincidence that this judge, seeking to rise higher, became more attuned to the individual circumstances of each case, and more likely to find a way to a justice that recognizes mercy, once that word entered the national judicial lexicon.

However, in Abel’s case, the judges who would decide his fate had resolutely refused to encounter the idea of empathy. Indeed, there is some doubt as to whether some can spell the word. None of them seeks to ascend to a higher bench, so what some president says can just bugger right off. Further, no cops or court reporters would be writing letters on Abel’s behalf. For he could claim no “sports exception.” Finally, he was a “foreigner.” No one in any position of responsibility in the county had ever heard of the guy, until he arrived there to steal a truck, and then zoom off from the cops in it, with his little baggie of meth.

One of the things a defense attorney is supposed to do, in assembling a Romero motion—the shorthand term describing a brief seeking the setting aside of strike-priors—is to provide a long and detailed explication of the strike-qualifying offenses.

It quickly became apparent that this would not be possible in Abel’s case. Because he didn’t remember them.

Abel had been convicted of lifting some jewelry, a laptop, and $20 from one home. Of making off with a TV, a computer monitor, and some Nintendo games from a second home. Of stealing a laptop, some jewelry, and a checkbook from a third residence.

But Abel didn’t remember these offenses. He didn’t deny them: he just couldn’t remember. “Sometimes,” he told me, “I’ll be reading a book, or just laying on my bunk, and this memory will come to me. And I’ll think: ‘that must have been me. I must have done that.’ But I don’t really ‘remember’ it. It’s like I watched it in a movie or something.”

In Apocalypse Now, Captain Willard says: “The bullshit piled up so fast in Vietnam, you needed wings to stay above it.” It’s like that in criminal-law, too. It’s vital, to learn to discern the various layers of the onion; what is “lie,” what is “truth”; all the gradations in between.

This kid was telling the truth. The key lay in the fact that the strongest, most secure memories of his various misdeeds were of those from his youth. The closer we journeyed to present time, the fuzzier the memories became. Somewhere along the line, his mind had begun to erode. All the signs were there: he began experiencing methamphetamine-induced blackouts while still a teen.

Now, to save his ass, Abel needed to provide his defense team with memories of his strike-qualifying priors. But he couldn’t. Because of those offenses he had no memory. And he was so guileless he wouldn’t even invent. All he was sure of, was that during that period of his life, when he engaged in house-breaking to feed his methamphetamine addiction, he always made sure that no one was home in the residences he burgled.

He couldn’t even remember the details of his plea to those offenses. He does recall that he was on the day of his plea surprised, because he thought his lawyer had earlier said that he would be pleading to but one or two offenses. Instead, in court on the day of the plea, his lawyer instructed him to plead to the entire sheet—nine felonies. Including the three strike-offenses. “I figured he knew what he was doing,” he told me. “And I was so out of it.”

The law firm representing Abel on those offenses is one of some prestige in the Bay Area. It has represented, among other people, the steroidal farm-animal Barry Bonds. Abel’s family then had money to buy good law.

But this kid, I realized, reading through the court records, those lawyers had dumptrucked.

It happens.

If it’s bad, I was beginning to learn, odds are it had happened to this kid.

The story of Abel’s brother, I found, was instructive. Calvin, like his brother Abel a once-and-future methamphetamine abuser, had been diagnosed 10 years before as schizophrenic. Calvin’s doctor believed that the disease began its creep when Calvin was still a young child. And was triggered by the fact that Calvin was chronically malnourished.

Of the parents of Calvin and Abel, and third brother James, the mother was an alcoholic. The father: a methamphetamine addict. And while these people could always be relied upon to secure enough powder and rotgut to feed their addictions, they were not always able to feed actual food to their children.

Calvin’s schizophrenia, his doctor believed, was brought on by this. Basically: starvation. And he thought it possible, if not probable, that Abel and James might similarly suffer mental deficiencies or difficulties as a result of this chronic childhood malnutrition.

In this business, it sometimes makes you bleed, how people may cleave to their parents, no matter what those parents might have done to them. Abel was adamant that his parents were golden. Adamant. He would say not a word against them. Brother James—also a once-and-future methamphetamine addict, revolving the doors in and out of penal institutions—too was initially reluctant. But eventually confirmed the truth of what Calvin and his doctor had said.

And so, finally, did Roger, the three boys’ father.

James, and father Roger, I learned, were “‘no’ people.” These are people who, when a question treads upon sensitive ground, reflexively answer “no.”

When I was younger and dumber, I’d just sail right on past the “no.” Later, I developed various stratagems—circling, recurring, putting the question amid a bunch of innocuous queries, etc.—to try to get past the “no.” Today, I have no patience for any of that. Now, when I realize I am in the presence of a “‘no’ person,” I simply freeze time. I arrange to meet the “‘no’ person” outdoors. The person says “no,” and then I simply sit there. Silent. I light a cigarette, and then stare off into the distance. I have all the time in the world. So, then, must they. The silence finally becomes uncomfortable for the “‘no’ person.” To fill it, s/he’ll start backing out of the “no.” And, eventually, through a barrage of “no’s,” the truth will out.

Roger, him I asked, for example, if there was any history of criminality in the family. “No,” he immediately responded. Silence. Light a cigarette. Stare into the distance. Think about roping a sandworm. Roger, “‘no’ person,” finally can’t take the silence anymore. Says: “Well, my mom did tell me, after my father had passed, that the reason dad wasn’t around when I was a kid, was because he was doing federal time for stealing government property bound for the troops in Europe.”

Further silence.

“Those troops were fighting WWII at the time.”

And so, through the blizzard of “no’s,” we constructed the family tree. Abel and his father and brothers and I.

Maternal grandmother of Abel, an alcoholic, and regarded, in whispers, in family lore, as “a lunatic.” Died of drink. Debarred from treatment for lunacy by her husband, a medical doctor, who eventually lost his license to practice medicine because he was a ravenous drug addict who finally so wildly inscribed scripts for himself that he had his ticket pulled.

Paternal grandfather a thief of such towering proportions that he stole war material bound for US soldiers fighting WWII in Europe.

Abel’s mom: alcoholic. Died of drink. Abel’s dad: methamphetamine addict.

Abel’s brother James: methamphetamine addict. Abel’s brother Calvin: methamphetamine addict and diagnosed schizophrenic.

Abel himself never diagnosed as anything at all, because he has never received any mental-health treatment whatsoever. In fact, as an adult, he had never even received substance-abuse treatment. Though substance-abuse clearly lay at the root of all his offenses. As a juvenile, there was but one referral, at age 17, to Diablo Valley Ranch. He left after 60 days; lured away, he said, by “two females and a bag of dope.” Thereafter, the system was perfectly willing to recurrently assign him a cage, but never did it feel moved to address the underlying reason he was deemed necessary to cage.

As human beings blunder their way through modern science, it is becoming increasingly apparent that mental illness has a genetic component. So, with a sibling and at least one grandparent demonstrably mentally ill, chances were at least fair that Abel might be mentally ill himself. Too, many chronic substance-abusers, it is increasingly understood, are self-medicating an underlying mental-health issue. It is currently estimated that some 60% of people with a substance-abuse disorder also suffer from another form of mental illness.

So, we wanted Abel examined. The legal fees we had received to represent Abel in this three-strikes case were preposterously low, and thus we informed Roger & Co. that it was necessary for them to come up with additional money to hire a mental-health expert. They kept promising this would happen. Ultimately, it did not. And so Abel sailed into his sentencing hearing, as ever, unexamined and undiagnosed.

Although Roger couldn’t come up with the money necessary for his son to be examined by a mental-health expert, he did know how to work the phone. At some point someone in the office—no one has confessed—gave this man my home phone number. And so he would call at 11:00 p.m., wanting to discuss the case. Now, I talk to no one on the phone at 11:00 p.m. Except monarchs. But this man had no sense of time. I would suggest he select a more appropriate hour. But this admonition never registered.

When Abel was a child, Roger was first a roofer, and then employed in the refinery business, which required him to travel often out-of-state, and overseas. Abel’s parents separated when Abel was 12; his mother had become interested in someone else. Abel lived with his mother and her new beau, whose idea of “bonding” with the boy was to feed him beer, and throw him to the ground in “wrestling” moves. Otherwise, he wasn’t interested.

When his parents separated, Abel felt ignored and abandoned. His father was gone, most often out-of-state, his mother was interested in her new husband and in alcohol. Like most young people in such a situation, Abel sought solace with his youthful peers in the neighborhood—who, unfortunately for him, were drug abusers and petty criminals. At 13, Abel began using methamphetamine. Like his father. By age 14, he was injecting it.

His first juvenile offense he committed when he was 13. It was typical of his “luck.” He was goofing around with a group of friends, when one of them playfully set fire to a school float. The fire got out of hand, and the young people fled. Abel was one of the few apprehended, and he was subsequently convicted of vandalism.

Abel thereafter never really broke free of the juvenile system. Because of his drug addiction, and his situation at home, he began missing classes at school, which constituted violations of juvenile probation. His mother’s new husband belatedly embarked on a program of “tough love,” which involved ignoring Abel’s juvenile court proceedings and attempting to “lock him down” at home. This prompted Abel to not always return home, at which time this man would notify the authorities; and so Abel was branded in the juvenile system a “runaway.”

Abel began staying where he could, which included the homes of much older drug dealers and manufacturers, as well as a man who made his living by breaking into people’s homes and stealing their property. When Abel was 15, father Roger returned to Abel’s life, there because he had discovered he could rely on Abel to use his connections to provide him with methamphetamine. When Abel was 16, his father began staying with him, wherever he might be, whenever he returned to the East Bay. In return, Roger would sometimes provide Abel, his juvenile son, with methamphetamine.

Usually, it was the other way around. Abel vividly recalls one instance, when he was staying with a man who cooked methamphetamine in his basement; Abel was downstairs trying to hurry this man along, because father Roger was upstairs, impatiently waiting to receive some methamphetamine from this new batch. From his 16-year-old son.

Abel’s sheet reveals him to be a methamphetamine addict and a car thief, with a penchant for fleeing the police when piloting a stolen vehicle. Trying to determine why this kid was so hung up on swiping automobiles, I asked father Roger if he’d ever done anything like that. Steal cars. After waiting out the usual “no’s,” I learned that in his youth Roger had been an inveterate car thief, and that he used to entertain his young sons with stories of his car-thieving exploits, which were presented as “you know, fun.”

The biblical verses involving “sins of the fathers” take on new meaning in this business.

Paging through the records of Abel’s previous offenses, it appeared that nobody had heretofore noticed that stealing cars was something of a family occupation. Just like there had been no effort to determine why Abel felt the need to steal cars. In this current case, the probation officer had asked him why he stole the vehicle, and Abel had said “because I needed a car.” His usual response. And the PO left it at that.

I decided to push a little further. Do you get some thrill from stealing a car? I asked him. Is it like a high? No. No. I kept on. Until a light bulb goes off. “You know,” he realized, “I had two cars parked right there at my dad’s house, that were mine. I didn’t need to steal anything.

“I don’t know why I do these things,” he said. “And I want to know.”

This is behavior that is clearly not rational—stealing a car when you have two cars that belong to you sitting in your driveway. Abel is a person who is sick, in a way that transcends the “criminal.”

In Raymond Chandler’s The Long Goodbye, an acid-tongued cop says of white-knight PI Philip Marlowe: “He read that law book. Like a lot of people that read a law book, he thinks the law is in it.”

American law books are filled with some of the most profound and compassionate statements and instructions. Here, for instance, is the United States Supreme Court, in 1949, directing a sentencing judge on how to approach each individual defendant:

“A sentencing judge . . . is not confined to the narrow issue of guilt. His task, within fixed statutory or constitutional limits, is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant—if not essential—to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.

“The knowledge of the life of a man, his background and his family, is the only proper basis for the determination as to his treatment. There is no substitute for information.”

In real life, though, as Chandler’s cop intimates, that’s not how it works. Instead, defendants are processed like sausage on an assembly line. A probation officer inscribes the bare minimum, as to the “life of a man, his background and his family,” then passes that “information” on to the judge, who next looks to the district attorney for guidance. And to the newspapers, of course. Because if a case makes the newspapers, a defendant is truly fucked. At least out here.

In Abel’s case, nothing that was truly relevant to who he is and why he came to be before this judge was contained in the probation-officer’s report. It almost never is. So our job is to try to slow down the assembly-line, to encourage the judge to pause long enough to regard this defendant as a particular, unique piece of sausage. Before comes the grinding.

And so we pointed out that the criminal-justice system had been running this kid in and out of cages for 16 years, but, other than the aborted Diablo stay, it had never addressed the methamphetamine abuse that underlies all his crimes. That the system had never once bothered to look at his brain. Not least because no system factotum had ever bothered to find out enough about this kid to determine that such a look was warranted.

We presented a man who is a drug addict, born to drug addicts, raised by drug addicts, abandoned to drug addicts, whose childhood was stolen by drug addicts, whose drug addiction has never been seriously addressed by any of the many courts he had appeared before. A man whose underlying problem is medical, not criminal.

We reminded the court that the three-strikes law was intended to lock away for life in the state prison violent offenders with a record of repeatedly hurting human beings, and who were determined to be unrehabilitatable, people who would continue to inflict violence upon other human beings if not removed forever from their presence.

And that Abel was demonstrably not such a person. He was a simple meth addict and car thief, who once veered into burgling houses, which is how he came to be beneath the hammer of the three-strikes law. Despite now facing imprisonment for the rest of his life, he had never been convicted of a single violent act against another human being. And in truth had never committed one, except during his first stay in the state prison.

Abel went into the adult prison system at age 19. How he got there was classic Abel. He was arrested with a small amount of methamphetamine, but it was distributed throughout several individual baggies. Thus, he was charged with possession of methamphetamine for sale.

Now, no one goes away to prison at age 19 for possession of methamphetamine for sale for an amount as paltry as was found on Abel. Unless you’re Abel. Represented by an attorney who shortly thereafter was forever disbarred from the practice of law.

Once in the big house, many and menacing men approached him to tell him how it would be. He was informed that it would be necessary for him to associate with an East Bay outfit not even classified by the prison system as a “gang,” but merely a “disruption group.” To “prove” himself to these people, he was required to join several other noobs in wailing on a suspected snitch. This he did. The snitch sustained no lasting injuries, and Abel faced no new charges, but was merely “written up.” After that, having sufficiently “made his bones,” he found he was no longer required to do anything for these people. And so he never did. From that day to this.

So, we said: this was the sum total of the violent wild man, that the State intended to lock up forever. As if he were Richard Allen Davis.

We noted that Abel is not a violent person, that his crimes were not crimes of violence. His crimes were, without exception, occasioned by drug addiction. And his problem—and therefore the community’s—is therefore at root medical, not criminal. Although the State had rhythmically incarcerated him, it had never moved to address the medical issues that underlay his criminality. And now, the State had decided to forever wash its hands of this 30-year-old man, by incarcerating him in the state prison for the rest of his life. Where, as the judge well knew, his medical issues will never be addressed. For the health facilities of the California prison system are so grossly substandard they have been determined to be cruel and unusual within the meaning of the Eighth Amendment to the United States Constitution, and are overseen by a federal judge.

We pointed out that, even as a child, Abel never had a chance. That a three-strikes sentence in this case would mean he would go to his grave from the state prison, never having had any chance at all.

We noted that people empower a government to safeguard their interests. That among those interests is the right to live life without being preyed upon by violent criminals. However, Abel is not a violent criminal. And furthermore, a government is additionally charged with safeguarding the health and welfare of all of its citizens—even those ensnared in its criminal-justice system. In all those years that Abel had forcibly been placed in government care, no agent of the government had sought to examine or treat his substance-abuse problem, or any other mental illness. The government now wished to effectively end his life, by forcibly warehousing him in the state prison until he dies. The government to date had not lived up to its obligation to safeguard Abel’s health and welfare. And it would wholly discard that obligation, if it now sentenced him to the state prison for the rest of his days.

Blah. Blah. Blah.

Even the simplest things, Abel couldn’t get.

When I first met him, I was surprised, after hours spent with him on the phone, to discover that he was a big ol’ guy. Big, and looked tough. But that wasn’t him at all. I knew that.

Worse than being big, his skull was shaved. In this state, only two types of white people in the criminal-justice system are skinheads: thug inmates, and thug cops.

“Grow some hair on your fuckin’ head,” I told him, when first we met. “This stuff matters. You come in here, with that bald head, looking like a thug. You’re looking at life in prison. Put some hair on your damn head. So that when the judge looks at you, he sees a human being.”

Always Abel said he understood, always he promised to stay away from the razor. Always the next court date, there he’d be, without a hair on his head, the big ol’ lug, looking like a thug.

There he was, shaved head shining, the day the judge pronounced sentence: Romero motion denied; life in prison.

In chambers, before the sentencing hearing, the judge had said: “I’ve never liked this law.” Meaning the three-strikes law. He was leaning. Leaning towards granting the motion.

Our motion that asked simply that he dismiss the strike priors. Which would remove Abel from under the hammer of the three-strikes law. Something within the judge’s power to do. That the judge sentence Abel to a regular ol’ term in prison. A term appropriate for stealing a car and evading police, wired on meth. For—to use the new, instantaneously fashionable Kos lexicon—”acting like a dick.”

During oral argument, the judge was leaning farther still.

But, in the end, he wouldn’t lean far enough. His official status “retired,” this judge need not face the electorate ever again. But still, he couldn’t do it. Couldn’t go there.

Bye-bye, Abel. You’ll come out of the big house in a box.

My most trusted and valued colleague suggested that I end the Romero brief with: “For the love of God, do what is right.”

I didn’t do that.

Probably I should have.

What was there to lose?

There are a lot of things in my life that I should have done, and didn’t do. And a lot of things I shouldn’t have done, that I did do.

But I don’t have to sit in a cage for it. Just the cage of this country.

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10 Responses to “Lost”


  1. 1 trashablanca September 20, 2011 at 8:37 pm

    Been near there, experienced a bit of that.
    Was ungood; did not like, at all.

    It’s really too bad that people are conditioned
    to err on the side of caution in these reckless days.

    • 2 bluenred September 21, 2011 at 6:42 am

      Judges who have to face the electorate will always be timid. “What if I give him a break, and he goes out and hurts someone else?” is the thought always at the forefront of the mind. Because if that were to happen, the world would turn tabloid on the judge: screaming headlines, the mob a-rage with torches and pitchforks, the judge in danger of losing that comfy seat with the robe. “Nobody ever runs as ‘soft on crime'” somebody posted in the comments, when I put this piece up on the Markos Mattress. And that is the fault of the people. Politicians and judges are “tough on crime,” because that’s what the populace wants. The people live in fear. They want all the boogeymen put away. The boogeymen being: people who are not them. Until their own lives slip. Then they realize: the boogeyman is them.

  2. 3 possum September 21, 2011 at 4:25 am

    The sad situation that we call our ‘justice system’ is a modern nightmare designed more to remove people from society than for any measure of improving our overall society at all. People with skin color that is not white, the poor, the challenged, and all others who do not fit the middle class white stereotype are put into the system in numbers outside their representation in society. Until we find ways to offer these people rehabilitation and meaningful jobs/lives we will continue to pay prison costs at unreasonable rates. Justice is not the right word for this mess.

  3. 5 soothsayer September 21, 2011 at 8:20 am

    No words left — just this….

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  1. 1 Around the PragProg Blogosphere « Progressive POC Trackback on September 25, 2011 at 7:06 am

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