Friday, October 10, 2003

Sentencing advice

Time to say your prayers

David Wells

I'm usually labeled as one of those sinners who try to drive God out of public life. I don't support public school teachers leading their classes in prayer, or people who think erecting monuments to the Ten Commandments on public property is a civic virtue.

But I don't think its wrong for judges, teachers, legislators or anybody else to draw on their moral foundations when doing the public's work. That's why I disagree with this week's decision by U.S. District Judge S. Arthur Spiegel in the case of James Arnett.

Arnett is a convicted child rapist, now five years into a 51-year sentence. Spiegel ruled Tuesday that Arnett's sentence was improperly influenced by the religious beliefs of Hamilton County Common Pleas Judge Melba Marsh. "It appears . . . that the biblical text convinced the trial judge to accord significant weight to the statutory factor of the victim's age in determining the appropriate sentence," Spiegel wrote. He ruled that Arnett must be resentenced by a common pleas judge other than Marsh within 90 days, or be released.

Arnett had pleaded guilty to 10 counts of raping the eight-year-old daughter of his girlfriend and one charge of pandering sexually oriented material. On the day of the sentencing in 1998, Marsh said she had read her Bible the night before. She noted a verse from the book of Mathew that said a person who hurts a child should have a millstone tied around his neck and be tossed into the sea.

I know another school of thought that says those who rape children deserve to be slowly roasted over open fires.

For the record, Judge Marsh followed neither of these courses. She merely sent this execrable excuse for a human being to prison for 51 years - 50 years less than the maximum sentence she could have imposed.

Arnett apparently was expecting less than 20 years - what his lawyer, Charles Bartlett Jr., describes as an appropriate sentence. When he got more than that, he appealed to the Ohio First District Court of Appeals, calling Marsh's Bible reading a miscarriage of justice.

The appeals court agreed and tossed the sentence. But prosecutors took the case to the Ohio Supreme Court, which upheld the sentence in 2000, noting that the Ohio Revised Code, like the book of Mathew, has a particularly dim view of sexual predators who target third-graders. "The sentencing judge referred to a biblical verse containing the same general message explicitly recognized in (state law) - that offenses against children are especially serious," wrote Justice Deborah L. Cook.

That sent Arnett and his lawyer appealing to the federal courts and Judge Spiegel.

"The due process clause requires that a sentence be based on objective, legal standards, established by statute, as opposed to personal or religious standards that have not been established or sanctioned by our democratic process and that people in this country have never been compelled to follow or accept," Spiegel wrote.

I absolutely agree with Judge Spiegel's reasoning, but not his application. Judge Marsh didn't send this guy to jail because the Bible told her to do so. She didn't hand down a sentence that she received on a mountaintop. She carefully considered the case and thought about the rules of decency in the context of her upbringing. That her upbringing includes a reverence for the Bible did not make the sentence she imposed unjust.

Marsh did follow established legal statutes, which is why Arnett is in a cell instead of at the bottom of the Ohio River with a large rock tied around his neck.

David Wells is editor of the Enquirer editorial page. Contact him at (513) 768-8310; fax: (513) 768-8610; e-mail:

dwells@enquirer.com. Cincinnati.Com keyword: Wells.

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