Edward Cashman has overstepped his bounds

Vermont Judge Edward Cashman has outraged children’s rights advocates as well as the Vermont political machine by sentencing a confessed child molester to only sixty days in prison. Prosecutors had argued that Mark Hulett, who regularly raped the child from the time she was six until she turned ten, should receive an eight- to twenty-year sentence for his crime. When Judge Cashman handed down his ruling, however, he commented that, “The one message I want to get through is that anger doesn't solve anything. It just corrodes your soul.” Cashman’s point is not without merit; treatment for sex offenders is statistically proven to decrease the odds that they will re-offend. However, he has overstepped his role as a judge and needs to remember that his job is to interpret the laws as they exist, not to impose his own beliefs on them.

The response from the community has been overwhelming, with politicians from both sides of the aisle at the state and national levels calling for tougher mandatory sentences for convicted child rapists. Previously, victims’ rights advocates had argued against strict mandatory sentences because they decrease the likelihood of guilty pleas. Sexual crimes rarely have witnesses, and cases frequently come down to the word of the victim against that of the accused. Without the incentive of a plea bargain and thus, a more lenient sentence, a larger number of sex offenders could serve no time at all. In shifting the focus from lengthy punishments to intensive and effective treatment Cashman has brought the error of this thinking even more into focus.

Proponents of harsh punishments for sex offenders and criminals in general argue that the deterrent of spending many years in prison will keep people from committing these crimes. However, this argument assumes that the perpetrators of these crimes are committing them based on some sort of rational assessment of the consequences of their actions. Criminals of this sort are not invested in the business of crime; severe penalties are usually not a deterrent for them. This sort of sexually deviant behavior is the result of psychological issues that need to be treated in the same way a physical disease would be.

In a recent study of sex offenders conducted by the University of Alaska Anchorage, statistical evidence shows that sex offenders who had undergone some sort of treatment were less likely to re-offend. Those who did re-offend after treatment took longer to do so and did so with less frequency. There was a marked tendency of offenders in treatment to leave early, and those people were more likely to offend again.

Prison sentences when combined with treatment can effectively address a rapist’s psychological and criminal problems without excluding the punitive element that the populace’s sense of justice demands. Unfortunately, the reality of budget constraints forces states to prioritize prison sentences over treatment programs. Mark Hulett would not have received treatment had he been sentenced to the standard eight- to twenty-year prison term, at least not until his term was over: under Governor Howard Dean, Vermont changed its laws to prescribe treatment only for those deemed to be most likely to offend again. Hulett was classified as a low risk criminal, and thus not subject to treatment under the revised law.

Despite his admirable intentions though, Cashman’s approach runs the risk of condoning criminal behavior and asserting that criminals of this sort bear little responsibility for their actions. A sixty day stint in prison does not fit the horrible nature of the crime.

Even though Cashman rightly prioritized treatment over punishment, his sentence far exceeded his judicial capacity. Effectively, he has taken a job reserved for elected legislators by so radically altering the traditional punishment scheme. Judicial freedom is important, and had he wished to issue a less extreme sentence, his quarter century of experience would have made it seem reasonable. As it stands now, however, his ruling is a challenge to our government’s whole tripartite system of checks and balances, and goes far beyond what conservatives label “activist judicial policy”.

Traditional punishments for sex offenders, ones that do not include treatment, do a disservice to the community at large. Efficacy should be the goal of the Department of Corrections, and vengeance for the victims shouldn’t drive sentences. Despite its costs, treatment in prison is grounded in reality – it acknowledges the necessity to serve justice to the victim’s family and to keep offenders from harming more people for some amount of time while making an effort to reform the individual as quickly as possible, for his sake and society’s.