On Saturday mornings at the State Movie Theater in Pawhuska, Oklahoma in the 1950’s you could see a black and white double feature western where the good guys wore white hats and the bad guys wore black masks. The lines were not blurred. Cowboys, good; rustlers, bad. Lawmen, good; bandana wearing holdup men, bad. No mask, good; mask, bad.
Today society has divided into two warring factions that are as defined as those satisfying old movie plots but which are themselves not very satisfying. One group champions masks as proof of one’s concern for others and the other group eschews masks as unnecessary and an infringement on individual liberty. However, most of the members of both groups still view cowboys as the good guys.
In my family we had my mother’s youngest brother, Uncle Bud, a rodeo cowboy who roped calves and steers. He was one of my heroes even though the mean billy goat he used to practice his roping often butted me across the roping arena.
Another of our family’s cowgirl heroines was and is my oldest brother’s wife, Shirley Smith Redwine. Sister Shirley competed in barrel racing, pole bending and flag racing for several years at the International Roundup Cavalcade in Osage County, Oklahoma. Shirley was a member of both the Turley, Oklahoma and Sand Springs, Oklahoma round up clubs and she competed as a queen candidate several times. Shirley’s mother, Esther, designed and sewed Shirley’s fancy outfits and Shirley’s father, Hollis, trained her horses. She competed from age twelve until her freshman year at Oklahoma State University where she met my brother, C.E. Redwine, who managed to win Shirley’s heart with his saxophone and ended her rodeo career.
But Shirley has always remained a cowgirl at heart. She knows right from wrong and has always fearlessly championed the right. Cowboys are supposed to stand up and be counted. Shirley did just that when Covid-19 struck our world. She put her sewing skills to work and made masks for our whole family. Now I do not know how many other cowboys and cowgirls have mounted up to confront ’Ole 19, but I believe true cowboys and cowgirls are not afraid to stand up against any evil. So, cowgirl Shirley, thanks for the masks. Peg and I follow your lead and wear them whenever we go out and about. We do notice there are some folks who do not wear masks. Maybe the rest of the good guys can help get the message out until ’Ole 19 goes the way of the Saturday morning horse operas.
If a recession is when your neighbors lose their jobs but it is a depression when you lose yours, what is the analogy for our society’s losses due to ’Ole 19? Let me suggest that for Peg it was when she finally submitted herself to asking me to cut her hair. Yep, it’s complete capitulation; 19 can claim total victory. I should be able to show you photographic proof but it turns out that a wife’s hirsute humiliation is in the same category of bad husbanding as failing to separate the whites and colors for the laundry. No pictures of my artistry were allowed. In fact, Peg has found a new use for the flowered bandana she uses as a face mask; it now covers the top of her head too. And my attempts to assure her that within a few months her hair will grow back just seem to exacerbate the situation. Please allow me to digress.
Gentle Reader, you may have noticed it is hot in July and August near the latitude along the Mason-Dixon Line. Well Peg, who was born in upstate New York, had not quite acclimated to the previous weeks of 100-degree temperatures. Her Joan of Arc length hair tended to stick to her forehead and the back of her neck whenever she lugged water to her flowers and her vegetable garden. The martyr-type comparison will make sense by the time you finish the column. I was understanding and sympathetic, but my advice that Mother Nature would eventually provide rain was not received gladly. She stubbornly persisted and even suggested I could get involved if the TV re-runs of old golf matches didn’t interfere. Surely, we need not revisit that painful discussion.
The real problem is not me but ’Ole 19. Peg used to go to the beauty shop to get her hair cut. Or, when we still lived in Indiana, our daughter, Heather, who is a beautician would take care of it. However, now, as we do not wish to contribute to 19’s macabre statistics, we have socially isolated since our last foray out to eat which was March the 5th. We wear masks, we wash our hands, we ignore our friends and family, we shop online, we eat lots of tuna. But we both knew the Corona Virus had achieved complete domination when Peg said last week, “Jim, I just can’t stand this heat and having my hair string down my face and neck. Nobody but you is ever going to see me again anyway (I thought that a little overly dramatic) so you are going to have to cut it. Come watch these YouTube videos and try to pay attention.”
Well, it didn’t look that hard to me. I remember when I got my hair cut in Pawhuska, Oklahoma by Clyde Ensley or Bob Butts or in Mt. Vernon, Indiana by Steve Burris. Heck, it appeared about like cleaning a squirrel or a chicken. Just slice here, snip there, shear off the sides. No problem. After watching for ten minutes or so I was pretty sure I could give Vidal Sassoon a run. “Peg, get a towel and I’ll grab a pair of scissors and the electric clippers you used to use on our dearly departed dog and meet you on the front porch.”
It probably would have turned out better if Peg had not sat as if she were an unfortunate customer of an electric chair and if she hadn’t jumped and squirmed each time the clippers whirred and the scissors snipped. Regardless, in my unbiased opinion I did a fine job. If the bowl I used had fit better it would have helped. I can only guess at Peg’s opinion as she hardly has spoken to me for three days and when she does it is difficult to make out what she is saying amid the shrieks, sobs and expletives as she tries to pull her hair back to its former length.
Gentle Reader, should you have read last week’s column you may recall it involved issues of how our legal system processes non-violent illegal drug users. Well, I know at least one person besides Peg read it as that person sent me an email outlining his views about my views. As I was surprised that anyone had read my article and had even taken the effort to respond to it, I carefully considered his positions. It also helped that the reader has been a good friend of mine for several years and is well informed and thoughtful on issues of public interest. Sometimes we agree; sometimes we do not. However, he, and, I hope I, always respectfully hear out the entire discussion.
To recap last week’s topic, it contained my chance encounter with a convicted drug dealer who is still on probation after doing four years in prison. He shared the details of his crime and current status on his “split” sentence with me after it came out in our generally casual discussion that I, as a trial judge, had the experience of confronting a defendant in court who had stolen my car twenty years earlier. That surreal coincidence developed as set out below.
In 1965 I had just received my honorable discharge from the United States Air Force and had moved to Indianapolis, Indiana with my wife and son. I found a job selling encyclopedias for P.F. Collier Company door to door. One of my co-workers was a young man I knew as Sam whose last name was of the three-syllable type and hard to forget. Sam and his wife were as poor as we were but he fell in love with my 1956 Ford Fairlane convertible. I had paid $350 for it but planned to replace it with a more family suitable model.
Sam implored me to sell him my car for cash with the promise he’d pay me $50 per week for seven weeks as we received our Collier paychecks, assuming of course, that we sold anything. I acquiesced, and gave him the keys and never saw the car again. The next time I saw Sam was when he appeared in front of me charged with a home burglary to which he offered to plead guilty per a deal he and his attorney had worked out with the Prosecuting Attorney.
When I read the pre-sentence investigation a dim light began to glow. In open court, in the presence of Sam’s attorney and the Prosecutor the following colloquy occurred:
Judge: “Mr. ( ), your first name is in the pre-sentence as ( ). Have you ever been known as Sam?”
Sam: “Yeah, that’s an old nickname.”
Judge: “Mr. ( ), the pre-sentence lists your residence as in the state of Oregon. Did you ever live in Indianapolis?”
Same (somewhat surprised): “Yeah, but I left there pretty quickly.”
Judge: “Mr. ( ), when you were in Indianapolis did you ever sell encyclopedias for P.F. Collier?”
Sam (really surprised): “Yeah, I did.”
Judge: “Mr. ( ), you stole my car!”
Naturally, I offered to recuse and get Sam another judge and I took a recess so Sam and his attorney could discuss the situation. But, as Sam had had about as much experience with our legal system as I had between 1965 and 1985, he just advised me that he only came to Posey County, Indiana to burglarize a home. Then he told me, “Judge, I just want to get out of your county jail and get back to prison as soon as possible.” After his attorney agreed and with the Prosecutor’s blessing, Sam got his wish.
This true story of how the system handled a defendant led the probationer I told it to to describe how his sentence had afforded him an opportunity to work and support his family versus simply serving out his entire ten-year sentence. In last week’s article I wrote approvingly of a system based more on forgiving 70 x 7 than long-term incarceration. My friend who disagreed with that approach supported his views with sound reasoning, albeit not as sufficient to persuade me.
When I prosecuted drug offenses for seven years my views were similar to my friend’s but after forty years of judging such situations, I find myself doubting the efficacy of spending $20,000 per year of taxpayer funds to house non-violent offenders. However, I do understand those who think the way I used to. I am glad I serve in a legal system and live in a country where all rational views can be fairly debated and tested; that does remain true, right? And I am glad to have friends with the fairness to discuss such matters with an open mind.
It is not what I have not known that has caused me the most concern, it has been those things I have known for sure that turn out to be wrong. Usually when I have had no doubt of my position on an issue it matters little if the facts belie my stance as only personal embarrassment is the result. However, as a judge, when I have cavalierly approached a problem, say the best way to legally process non-violent drug offenders, real harm may have resulted. At the least, real good that might have been done may not have been.
I do not assert that I now have the answer to what is the best way for a judge, at least one judge, to handle non-violent users of illegal substances. In fact, I seem to have transitioned from absolute certainty that the best way to save the miscreant and society was to slam a prison gate for a significant time to fearing I have no solution.
I am still comfortable incarcerating anyone who harms others physically, police officers for example. But when one harms only him or herself or even engages in the sharing of substances with other consenting adults not for profit, expending significant public resources to prosecute and lock them up no longer strikes me as rational.
While I have spent years helping to prosecute and/or judge many non-violent offenders it was yesterday’s chance encounter with someone on the other side of the Bench that caused my most recent re-examination of my judicial philosophy concerning these issues. This person shared with me that he has already done several years in prison for illegal drug sales to and from acquaintances. He works full-time and helps support his children. He is still on active probation. His sentence is one I might have imposed had he come before me.
Each year of prison cost taxpayers near $20,000 not considering the taxes an inmate could have paid in had he been working those years. This person I was talking with is a skillful and willing workman. Of course, many drug users often have difficulty finding a job or showing up for work and holding on to a job. That is where a good probation system is key. Assuming society does not believe non-violent drug users should be imprisoned for life, all such offenders must be released sometime.
I am acutely aware that almost all low-level non-violent drug offenders are not “first timers”. Often parents, clergy people, police officers and friends have tried to help drug addicts for years before formal legal proceedings are filed. Then, many times an offender is given another chance to rehabilitate themselves, usually with generous allowances made for “backsliding”. But, if the offenders are harming mainly themselves, society is only wasting taxpayer resources to “punish” a repeat offender who sins again. I can attest that it is extremely frustrating to have someone who has been given repeated opportunities fall off the wagon. On the other hand, the alternative simply kicks the can down the road and takes resources away from other more pressing public problems.
Please remember I have already admitted I have no solutions. On the other hand, I think, a cost benefit analysis is not unreasonable. At least with the non-violent drug abuser I spent time with yesterday it appears to be the best answer. I do not offer this approach either as a general panacea or a prophylactic for our country’s drug pandemic. But, if we encourage some to become producers instead of consumers of public resources, the ones who are not redirected will be fewer and we will all be better off.
Just before the Fourth of July last summer and, of course, before ’Ole #19 raised its ugly head, Peg and I attended a rodeo in Osage County, Oklahoma where thirty-five competing cowboys were introduced as they held a gigantic American flag in the middle of the arena. While a cowgirl on horseback sang “The National Anthem” each cowboy stood at attention as he helped hold the flag with one hand and pressed his Stetson over his heart with the other. It was a moving experience for Peg and me as we stood at attention with our hands over our hearts. It made me think about the National Football League and silent protests by players as well as raised fists at the 1972 Olympics and members of the USA’s women’s soccer team who choose to stand but not place their hands over their hearts. What a feeling of freedom it should give us all when our fellow citizens peaceably and respectfully voice their dissent even if we disagree with their positions. Dissent by others, especially by those diametrically opposed to my beliefs, helps to remind me Independence Day is one of life’s greatest gifts and reinforces my gratitude to our Fourth of July 1776 heroes. It makes me think of James Madison and his demand that the first ten amendments to the Constitution be adopted.
The First Amendment is the ultimate recognition of the importance of choice: freedom of and from religion; freedom of speech; and, the freedom to peaceably assemble and petition our government whether in writing or by demonstration. I am proud that in the United States of America if Peg and I want to stand for “The National Anthem” or for any other cause, such as “The Hallelujah Chorus” or our favorite school’s fight song, we may. And if others do not wish to, they have the right not to.
For some reason that rodeo experience reminded me of what our soldier son, Jim, told us he observed when he visited the old Soviet Union before the wall came down and before he was sent to war in Iraq in 1990. Jim said when he happened to see other Americans in the old USSR he could always pick them out from the crowd of Russians because the Americans were the only ones smiling.
Then when I was sent by the National Judicial College to teach Ukrainian judges in 2000 and afterwards to Russia to teach Russian judges in 2003, I had similar experiences. In Ukraine I took their dilapidated grey subway train and was crammed in with many Ukrainian men and women and one boy about six years old. The adults were all dressed in dark clothing and had sober dark expressions. No one smiled or nodded hello. Then I caught the little boy’s eye and smiled at him. At first, he almost smiled back then cast down his eyes.
In Russia, Peg was with me and we took the subway to see the Onion Domes of the Kremlin. Peg had on a light blue coat and I was wearing my red ski jacket. Every other person on the train had on dark clothes and dour faces. When Peg and I smiled at one another because we were happy to be in Moscow together, we were the only ones smiling. That’s when we realized what freedom and independence and the Fourth of July are all about. We are confident we have the right as Americans to control our own destinies. That means everything. And that is why when Americans are seen among the people of other nations often the Americans are the only ones smiling. But if we insist on imposing our will on other countries or upon one another, we should not be surprised if they do not smile back. On the other hand, perhaps if we respect the right of others to maintain opinions we find objectionable, they might bite their tongues and afford us the same respect when our views cause them to wince
When our early immigrants from Great Britain set up their legal system in New England they did not have prisons and, often, not even jails. What passed for justice included such corporal punishments as standing in the stocks or being bound to the whipping post, usually in the village square and always in public view. That shaming was part of the punishment. Also, it was erroneously believed to reduce recidivism. The great French legal philosopher Paul-Michael Foucault (1926-1984) posited that the “public” part of public punishments was essential to helping eliminate cruel and unusual sentences for crimes.
If a petty thief could have their hands hacked off on the public square, society would more likely be averse to such disproportionate penalties. According to Foucault, modern governments began to remove punishments such as beheadings from public view not out of a concern for general sensibilities but out of a desire to prevent the people from rising up against the government. If the public, through its governmental officials, see fit to physically punish a miscreant, especially a political prisoner, then the public should be witness to the gory spectacle.
Recently, perhaps as a concomitant of the Black Lives Matter phenomenon, such vestiges as public whipping posts are being removed from public lands and moved to museums. The state of Delaware allowed public floggings as criminal punishments until 1972. Now the places where the public could watch as a person was beaten with a cat-o-nine tails are being removed from such places as jail yards and courthouse lawns. Even the memory may be lost.
In 1817 Posey County, Indiana did not yet have a jail but in one of the county’s first criminal jury trials the defendant, one Mr. Green, was found guilty of hog stealing and sentenced to 49 lashes at a post just outside Posey County’s first courthouse which was the living room of Absalom Duckworth’s home.
Under the procedure of 1817 the defendant’s lawyer, Richard Daniels, had the right to immediately petition for a new trial. He did so and Judge Isaac Blackford took a lunch break to consider the motion. During the lunch hour Sheriff John Carson, who either did not know or did not care about the petition for new trial, tied Mr. Green to the whipping post and flogged him without the Judge’s or the attorneys’ knowledge.
When Judge Blackford reconvened court, Attorney Daniels stood and requested a new trial. The Defendant grabbed his attorney by his coattails and said, “For God’s sake, Dick, do stop. I’ve had enough already!” I suppose no one could accuse the legal system of delay in 1817.
I do not condone or recommend corporal punishment as a sanction for criminal behavior. However, I do agree with Foucault; excluding the public from the imposition of Draconian sanctions makes such unfair outcomes more likely. For example, the spectacle of public whippings was legal in Delaware until 1972, but there had not been such a horrific punishment in that state since 1952 when a husband was lashed 20 times for beating his wife. There is no evidence such a sanction affected spousal abuse. But it surely caused citizens to lose respect for their legal system.