Sentences are a Rorschach test for how people define justice.
Take Emily Hernandez.
The Sullivan woman was just 21 when she stormed the U.S. Capitol along with her uncle, William “Bill” Merry, and his friend, Paul Scott Westover, during the Jan. 6 insurrection. Hernandez famously held up a piece of Speaker of the House Nancy Pelosi’s broken name plate on the damning day in American history.
On Monday, a federal judge sentenced Hernandez to 30 days in jail for the misdemeanor of entering and remaining in a restricted public building. Merry and Westover each received 45-day sentences for similar misdemeanors.
Are those sentences fair?
That depends on through which lens you view justice. I once wrote about a woman named Brooke Bergen, for instance, who lived in Salem, Missouri, not all that far from where Hernandez lives, and she served a year in the county jail for stealing an $8 tube of mascara. Then she got out of jail and was threatened with even more time if she didn’t pay a $15,000 bill for her jail time.
That didn’t seem very just. There are those who will believe Hernandez and many of the other insurrectionists have been treated with kid gloves. Count among them the family of Victoria Wilson, the 32-year-old mother of two who was killed in a highway crash for which Hernandez is charged with driving the wrong way on Interstate 44. In that case, Hernandez has been charged with two felony counts of driving while intoxicated. She’ll likely face much more than a 30-day sentence if found guilty.
After the deadly crash, Wilson’s mother, Tonie Donaldson, was unhappy that Hernandez was not already in jail for her alleged role in the insurrection. Hernandez was originally charged by federal prosecutors with five different misdemeanors.
“Why is she still out?” Donaldson asked after her daughter was killed. “With what she did to the government, why is she still walking the street?”
A reader of mine asked a similar question in an email just a week ago. He wondered why Hernandez wasn’t jailed immediately after the alleged DWI, as he had been decades ago for a similar offense but where nobody died.
It’s a common question that misunderstands the purpose of bail, which, when applied properly, is not intended to punish people pretrial but simply ensure that they show up to their next court date or, in some circumstances, keep the community safe from potentially violent criminals. I generally find myself on the opposite side of the question, asking why certain people are locked up before they’ve been convicted. My reader — 34 years sober now, he tells me — shouldn’t have been locked up either, all those years ago.
In a touch of irony, perhaps, that’s been the sentiment expressed by folks on the right side of the political spectrum who post-insurrection found some of their loved ones or friends or allies, like the so-called QAnon Shaman for instance, held in jail before their trials or guilty pleas in some of the more violent cases from the Jan. 6 attack on the nation.
Welcome to the cause of criminal justice reform.
Therein lies the key to the Rorschach test. It’s human nature to sympathize with those with whom we share a common bond. It’s fair to say those who believe that former President Donald Trump and his followers were right to stage a coup against the nation likely believe Hernandez should spend no time in jail or prison. The rest of us are wondering when Trump and the other elected officials who enabled the insurrection will pay a price.
The ink blot shows what we want to see. That’s likely the case in another high-profile case heard in court this week: In a settlement with Alan Pratzel, the state’s chief disciplinary counsel, St. Louis Circuit Attorney Kimberly M. Gardner agreed that she had violated legal ethics rules in her prosecution of former Gov. Eric Greitens. After being originally charged by Pratzel with multiple ethics violations that could have led her to be disbarred, Gardner will likely receive the legal equivalent of a slap on the wrist.
If the Missouri Supreme Court agrees with the reprimand against Gardner, a Democrat, it will be the same level of punishment issued a few years ago to Platte County Prosecutor Eric Zahnd, a Republican who is the former chairman of the Missouri Association of Prosecuting Attorneys. Despite a primary challenge, Zahnd won his next election.
Those whose minds were made up about Gardner long ago will lament that the reprimand wasn’t more severe. Gardner’s attorney, Mike Downey, called the resolution — pending further court action — “serious” but “fair.”
“A good settlement to a case leaves no one happy but everyone recognizing they benefited from it,” he told reporters.
Justice, it seems, is in the eye of the beholder.
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