Randy Newman Would Love This

"Short people got no reason . . . short people got no reason . . . short people got no reason to live . . ."

Way out west, in the town of Sidney, Nebraska, a state District Court judge last week sentenced a convicted child molester to probation because he was so short (5' 1") that he'd be in danger if placed in a prison environment. The outrage across the state is palpable. A very large number of people are calling for the judge to resign.

The Judge, Kristine Cecava, will not comment outside of the courtroom. In court, at the sentencing hearing, she said the convict did not appear to be a "hunter" and that sentencing him to probation with an electronic ankle monitor and constant supervision would be enough. [For whatever light it may shed on that opinion, he was convicted of two counts of molesting the same 13-year-old-girl.--Ed] Nebraska State Attorney General Jon Bruning disagrees. He has promised to file an appeal of the sentence on the grounds that anyone convicted of molesting children must do prison time. Steve King, a spokesman for the Nebraska Department of Corrections, said that Nebraska prisons are safe even for convicted child molesters, and that any time a prisoner felt threatened, he could request protective custody.

Frankly, I agree with the people chastising the judge . . . but my reasons include one that I've seen no one else mention so far. One of the first things any law student learns about trials and trial law is that no rulings are to be made based on speculation or opinion or on a fear of what might happen--the facts, as elicited at trial, are supposed to be the sole criterion for judgment.

Being concerned that someone of short stature might be injured (or worse) if sentenced to prison most egregiously violates this basic principle of trial law. For that alone, the judge ought to be put out to pasture.

The principle is not dissimilar to that behind First Amendment law on publishing: you cannot stop something from being published. Once it IS published, however, you can sue for damages if you suffer any injury as a provable result of the publication. In this case, fear of the convict suffering harm cannot preclude him from doing prison time. If he is harmed after he's in prison, he can seek any and all remedies available under the law (protective custody, damages from the state for failing to insure his safety while in custody, and so on).

But what I'd like to know is how that judge got appointed and how she retained her position during subsequent elections. In Nebraska, voters are periodically asked whether "Judge ______ should be retained in office." This ruling by Judge Cecava is so aberrant and abhorrent that I cannot believe it's the first weird thing she's done.

And what I'd really like to know is how the heck I can get appointed to a judgeship. I am quite sure I could do a better job, even with my physical limitations.