Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

ATTORNEY SAM’S TAKE ON SENTENCING THE “NON-CRIMINAL”

In the last Boston Criminal Lawyer Blog, we began discussing the verdict and sentencing of Aaron Deveau (hereinafter, the “Defendant”). He is the young gentleman who was just convicted of texting while he was driving and, as a result, smashing into another vehicle and causing eventual death to one person and serious injury to another.

The sentence the judge handed down has been, to some extent, controversial.

The Commonwealth’s sentiments are, ironically enough, made out best by a defense lawyer who said, “The message here is, the commonwealth is not going to tolerate any violations of this law…It’s extremely dangerous to text and drive at the same time, and the jury’s verdict and the judge’s sentencing reflects that.”

Of course, the Commonwealth agrees with the sentiment. Dave Procopio, the spokesman for the state police, says, “This was an important case that made very clear the consequences of distracted driving and the resolve and ability of police and prosecutors to hold accountable people who do it.”

And they are right. Sort of. I would not be surprised if the next step were to elevate vehicular homicide in such cases to that of similar homicides which result because the driver was driving drunk. After all, at least alcoholism is a disease. Texting is not a biological compulsion. It is, even more than drinking, a choice.

I understand all that. And I do sympathize with the victims of this case as well as those like it. The results in such cases are tragedies of immense proportions. However, it does bring up a question I raised in my last blog. Namely, what does one do when the convicted defendant is not really what we would normally consider a “criminal”?

It is an issue which I think we had best think carefully…because it is likely to impact all our lives.

It is the reason I have been raving for the past couple of years about things like bringing bullying and hazing into the criminal justice arena. Do we really think the right road is to bring these kids into court, ruin their record (and so chances at higher education and jobs) for actions which kids have always done? I remind you that kids are biologically…kids. There is biology still at work in their brains that science tells us will not be finished until they reach their twenties.

“Sam, it sounds like you are saying that those who are young should get a free pass…no matter what they do or what damage they cause.”

I really am not saying that. And I am not saying we should simply accept the status quo with a blithe “Well, boys will be boys…” attitude. But, let’s face it, we have to be somewhat realistic. This is not the way to teach our young empathy…which they need to learn in order to avoid such behaviors. Treating these matters by, say, bullying the bullies may feel “righteous”, but it is going to do more harm than good.

“How do you figure that?”

We have been through this many times before. First of all, it gives the rest of us a false sense of security that the problem has been solved. It hasn’t. Second, it is unrealistic. Kids are going to feel that they are never going to get severely punished or caught. They do not think these things out and are just learning about controlling their rapidly-changing (anyone remember the word “hormones”?) emotions. Finally, many of these kids have anger issues. What do you suppose the result will be when they are told they are a criminal and given a record which will severely limit their future? All because of a bad moment which, in their mind, was caused by the victim.

You will notice that nowhere in the above paragraph did I talk about “fairness” or “compassion” for the accused. So, you cannot simply disregard it because I am a “bleeding heart” or something. Purely from the perspective of society, I suggest that the direction we are going here, more and more, is a dangerous one.

“So we just look the other way while one kid whacks another kid over the head with a sledge hammer?”

No. First of all, you will be surprised how few sledgehammer assault and battery cases we get. Sometimes, cases will have to be prosecuted. There are nuances, however, and, until we recognize the nuances, we cannot solve the problem. Because life is simply not black and white…no matter how much we might like to pretend that it is.

Which brings us back to the Defendant’s sentence. The court, I would suggest, tried to act with respect to the victims, but also realization of the other realities as he was supposed to do. This was a kid who screwed up big-time doing something that had never been really prosecuted before and something he felt would be safe because a tragedy like this could never happen to him.

On the other hand, he killed someone and seriously injured another. He destroyed lives. Nothing is worse than that kind of result.

And on yet another hand, sympathy for his situation aside, the truth is that, at worse, he was coming out of jail sooner rather than later. His future, at his own hands, has been severely compromised.

What makes more sense in such a case…simply throw the kid away so that he will join the many on the streets, homeless with little guidance and an anger that the cold, hard system took his life away (regardless of how that misguided that narrative might be)?

Or, give him a strong taste of where that life would take him and then have probation standing over him, watching him and even aiding him in getting a life back together when he gets out?

Why do I have to spend my hard-earned money for him to have a watchdog just because he made a stupid mistake?”

How about because the alternative will cost you much, much more in the long run?

Compassion for the Defendant aside, I would suggest that the latter makes the most sense. On the other hand, I also believe in Justice, fairness and, yes, compassion. So, I guess that shoves me even further to that side.

How about you?

To view the original story upon which today’s blog has been based, please go to http://bostonherald.com/news/regional/view/20220607found_guiltyteen_to_serveyear_in_fatal_texting_crash/

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