This has to be the horror story of the year. American justice gone Wild West. And a sensible appellate court to the rescue.
Readers will recall an article in Moneylife, titled “Is Trapping and Entrapment the Same?”. Trapping is right and entrapment completely wrong. A sequence in the Jack Palance film, The Horseman, set in Afghanistan, explains the sin of enticing a person to do wrong. It calls for punishment for the enticer.
Three strikes and you are out
In baseball, if the striker fails to connect with the ball three times he is declared out. “Three strikes ‘n’ you’re out”. That thinking has crept into some American states’ judicial rules, when dealing with habitual offenders. Third conviction and he or she is sent away for life. Locked up and the keys thrown away!
New Orleans, Louisiana. A man walks past a jeep, window down. He sees a laptop on the seat and two currency notes. They totalled US$15, about Rs1,000. The man picks them up, leaves the laptop behind. The man had three previous convictions. He had walked into a trap.
The money was planted by the cops. They were waiting for, what is now called, ‘the catch of the day’. The man was arrested. He was convicted for what, even in India, may not amount to much. The prosecuting advocate reminded the crime court of the three-strike rule. The judge concurred. The man was given a life sentence. For US$15. It would now cost the state 10 times as much, every day, to keep him in prison; for his lifetime! Justice gone haywire?
In appeal, usually a court of equity, the judge saw the light. His Supreme Court had noted the harshness of the three-strikes law but, reluctant to interfere with the legislature, had called for a bit of sanity. The matter was remanded to the trial court indicating the street theft ‘shockingly minor in nature’, the amount ‘extraordinary in its triviality’ and the life sentence an ‘unconscionable’ punishment that ‘shocks our sense of justice’. It called for a sentence that was ‘not unconstitutionally excessive’.
There is a conundrum in this. Was the first judge guilty of excess? When the law insists on the harshest punishment, the judge’s hands are tied. It then calls for great courage, and a very reasoned judgement, to nullify what is an unintellectual statute. Few judges want to rock the boat, lest their advancement be impeded. Prosecuting attorneys will try for the severest sentences to boost their careers. It’s a tug-of-war.
The question that must agitate any mind is the one of entrapment. We have discussed these issues before. In this case, should the police lay such a blatant trap, just to entice any passer-by who wants to help himself to a few dollars, to prove their effectiveness? For this answer, we revisit an Indian court and the moral courage that a magistrate showed at Umbergam, south Gujarat.
Umbergam lies on Maharashtra’s northern border. It has industrial estates to lure then Bombay’s entrepreneurs. With the businessmen came the workers. They would travel by a slow train that would stop at platform No. 3, to allow the following fast train to breeze through on line one. To catch connecting buses, passengers would cross lines two and one, exposing themselves to danger.
To curb this, a policeman would round up a dozen or so people every day as they clambered on to platform No. 1 and march them to the local court to be fined.
One of them, a lawyer, admitting his guilt, asked the magistrate if the cop were not failing in his duty by not preventing the dangerous crossing, rather than allowing it, just to get his daily quota of fines. The magistrate agreed, returned the fines and reprimanded the policeman. Brave decision. Three cheers. Cops, who hide behind walls to nab errant motorists, encourage, not prevent a misdemeanour.