In the end, a crime is whatever the law says it is. A crime is only what we are told it to be.
What is punishment?
This is not a trick question. Punishment is a penalty for committing a crime.
How should we punish crimes?
For this question, the students have read for class the section of the textbook describing two schools of thought on punishment. One theory says that crimes should be punished only insofar as it keeps the defendant from committing future crimes. The other theory says that crimes should be punished only insofar as the specific crime requires.
The first theory takes as its starting point the criminal and looks forward. What sort of punishment is needed to prevent her from committing further crimes? Can she be rehabilitated into something other than a criminal? She should be punished only as long as she poses a threat to society, and no longer.
The second theory takes as its starting point the crime and looks backward. What is the harm she caused? She should be punished in a manner proportional to what she did. She should pay back to society what she has taken, and nothing more.
Both of these theories operate in our current system of criminal justice. The students soon understand that under the second theory the punishment is usually harsher. This is because it is based on the notion that the criminal has no value beyond what she has done. Under this theory, a criminal essentially is her crime.
Fringe proponents of this second theory consider criminals to be something separate and distinct from the human race. I assign a passage from a nineteenth-century British jurist named Sir James Fitzjames Stephen. “I think it highly desirable,” he writes, “that criminals should be hated, that the punishments inflicted on them should be so contrived as to give expression to that hatred, and to justify it so far as the public provision of means for expressing and gratifying a healthy natural sentiment can justify and encourage it.”
When I review the assigned reading in advance of class, I notice that this is the only section in forty pages that I’ve underlined.
In class, the students consider various crimes in the textbook under the two theories. In groups, they must place themselves in the judge’s robe and explain the punishment they will deliver and why. As expected, the students tend to veer toward the second theory. This is said to be because students overidentify with the victim. I personally think it’s because the exercise presents the first time in their short lives that they have been given authority over others, and there is a human impulse to exploit this to the fullest extent.
Because the duty of the teacher is to shed light on all sides of the discussion, and because no one seems interested in advancing the perspective of the criminal, I end up serving as a makeshift defense attorney to all of the defendants in the textbook. This is a shoe that fits. Predictably, the majority of the students are unmoved by arguments that criminals should be given second chances, regardless of the circumstances. They are not aware that a putative criminal defendant is responsible for their final grade.
Though their sentencing schemes are severe, the students are in general a pleasure to teach. They show real interest in the subject matter and bear passionate opinions. There are days when I return home, satisfied with class, convinced that the greatest travesty on earth would be if I were denied the opportunity to do this for a living.
On other days, I see another side of teaching at this law school. The students insist that legal concepts be spoon-fed to them like infants in high chairs, the more complex doctrines scraped from their chins and offered as something more easily digested. They show little interest in exerting effort that will not be rewarded on the final exam. They groan when they are required to do anything other than sit and listen. I suspect the ennui has something to do with the fact that they have found themselves in a mountain of student debt in one of the worst job markets for young lawyers in modern history.
When I tire of feeling like a law waitress, when I grumble like an old lady about kids these days, when I wonder why I am dedicating myself to a system of education that leaves a significant percentage of bright and capable students poor and unemployed, I question the virtues of teaching law. On these days, when all I can see in teaching is a lifetime of drudgery in a lawyer mill, I think to myself with perverse hope: maybe I will just get indicted.
I arrive home from school late one evening. As I am about to make my way to bed, the phone rings. I look at the clock and frown. It is past one a.m. I warily pick it up.
“Is this Jennifer Ridha?” a male voice asks. I am later asked to identify this voice as either “black” or “white.”
“Yes?” Unsure of how better to describe it, I will say that the voice is “not black and not white.”
“Is this Jennifer Ridha who represented Cameron Douglas?”
“I don’t represent him anymore,” I say.
“Look, I’m responsible for the criminal investigation against you, about you giving drugs to Cameron Douglas. I’m the one who started the investigation. And I can end the whole thing if you want me to.”
It’s a shocking statement, one that knocks me out of my body and into the same default settings that I used when Burly Man arrived at my door. I am silent for a moment, and then ask, “Who is this?”
“Never mind, that’s not important. Do you want this investigation to go away or what?” His voice is laced with menace, as though he is threatening me with hardship if I don’t want the investigation to go away.
Nothing about this seems right, but my mind is unable to process the reasons why. All I know is that I don’t want to talk about this. “I’m sorry,” I say calmly. “I don’t know what you’re talking about.”
“You don’t have to play dumb. Everyone already knows what you did. TMZ already knows. So there’s no point in pretending that you don’t know what I’m talking about.”
I do not react to his claim that a tabloid news outlet knows who I am. At least not outwardly.
“Well, I don’t know what to tell you,” I say.
“Do you want this investigation to go away?”
I want all of this to go away.
“Is there a reason you won’t tell me who you are?” I ask.
He ignores this. “Would you rather do this by e-mail?”
Do what, exactly? But I don’t bother asking. Instead, I say, “I’m really sorry, I don’t know who you are or what you are talking about. I wish I could be more helpful, but I can’t.”
He doesn’t seem to have any cards left to play. He says in a disappointed voice, “Okay.”
I hang up. Panic sets in.
I’m not even sure where to focus my fear. I start with the most immediate shock: Who was that? How does he know my name, know that I represented Cameron? How does he know anything about the tabloid press? How does he know my phone number? Does this mean he knows where I live?
As if on cue, the phone begins to ring again. I do not pick it up.
After two minutes, it rings yet again. I turn off the ringer. Over the course of the next twenty-four hours the phone will ring almost two dozen times.
As I accept the reality of what’s happening, I decide that this man is either trying to (1) extort something from me; and/or (2) sell a story to the tabloids. I can’t decide which possibility is worse.
I’m also not sure what to do next. Should I call the police? The caller claimed to be involved in my investigation, which I take to mean he is in law enforcement of some kind. It doesn’t seem like a good idea to call the authorities. I decide I should contact my lawyer.
It’s late August, and everyone who is not facing criminal charges is away on vacation. Shortly before two a.m., I e-mail my attorney. Then I go to the bathroom and throw up.
I don’t even bother attempting sleep. I sit on my couch, hugging my knees and noting how my decision to commit a crime seems only to surround me with more crime, or wh
atever unsavory thing this caller is trying to do. I think about Cameron’s vow to take the blame, about how all of this is seemingly falling on me. I also consider the possibility that what I’ve done could become public even before the government decides what to do with me.
I’m still awake when daylight arrives. My attorney calls and tells me to hang tight, that he will call the government to let them know what has happened and then call me back.
I call Best Friend to tell her what has happened. I’m on the phone with her when the call waiting announces a second call. Thinking my attorney is calling, I click over. It is the nonwhite/nonblack gentleman from the night before.
He is angry. “Look, I am sick of fucking around with you. Stop asking stupid questions and running around on the phone and listen to what I am telling you.”
Can he see me? Does he know that my attorney has called the government? Just to be safe, I slink into the windowless hallway between my living room and bathroom.
“Now do you want to end this investigation or not?”
I am without sleep and will to live. I am scared and angry. “I don’t know who you are,” I say, “and for some reason you refuse to tell me. I’ve already told you that I don’t know what you are talking about. Stop calling me.”
I hang up.
I call my lawyer again and ask if I can change my phone number. Even as I dial, the call waiting beeps in. I don’t pick it up.
My attorney advises against changing my number, since it’s within the realm of possibility that the government may seek to monitor the line.
Wonderful.
I do call the phone company and delist my number from the public directory. It’s like purchasing flood insurance the day after a hurricane. In the meantime, my phone continues to ring.
Finally, an associate from my attorney’s office calls. He relays that Some Prosecutor could confirm that a call was placed by TMZ to the press office of the U.S. Attorney’s Office, to which the government gave no comment. He offers no further answers, does not appear to need any additional information.
Soon after this information is relayed, the calls abruptly stop.
To this day, I don’t know who was calling me and why. It’s unclear if the calls stop because Some Prosecutor heroically plugs an MCC leak—I persist in the theory that the caller’s menace and emotional instability reek of cowboy country—or if the random caller simply gives up.
TMZ does not publish a story about my case. I am inexplicably spared, but hardly reassured. I am left with the stark realization that my crimes have taken me to unfamiliar territory, and that there is no going back. All I can do is continue to wait for news of my fate.
A month later, the government reaches its decision. The summer has given way to autumn, and the leaves are beginning to turn. I am hoping that this is a good sign, that perhaps I, too, will be able to turn over a new leaf.
It turns out there will be no turning. When my attorney calls me with the news, he phones me from home and takes a deep breath. I already know this is not good.
“They’ve decided that they just can’t let this matter go,” he says. “Given the public stature of the people involved, the government feels compelled to take some action.”
Great. My life is about to alter course because Cameron Douglas’s father fucked Glenn Close over a sink in a movie. That scene has now haunted me in more ways than one.
“I guess I understand,” I say. I presume this means they have agreed to the middle option, a deferred prosecution agreement.
He follows my thinking and takes another deep breath. “They actually have also decided not to do a deferred,” he says.
This means, of course, that they will bring charges, that since I have already confessed to my crimes I will have to plead guilty, that since I have to plead guilty I will be convicted of a crime, that since I will be convicted I will be sentenced before a judge, possibly to time in prison. And all of this under the watchful eye of the press, recorded for eternity. It is the worst-case-I-wish-I-had-fled-to-a-country-without-an-extradition-treaty scenario realized.
I can’t muster up much to say, so I whisper, “Oh, my God.”
He reassures me that he is not going to let this decision stand. He is going to make a presentation to the U.S. Attorney’s Office urging them to reconsider. This isn’t over yet, and don’t lose hope, and some other encouraging words that I am not really listening to.
When we hang up, I call Best Friend and burst into tears. She is as reassuring as she always is, but I can hear in her voice tones of disbelief.
“I just don’t know how I will be able to handle prison,” I tell her. “And it’s not just peeing in front of people. Have you heard about how women’s prisons can be? Those girls are mean.”
For some reason, perhaps the image of me attempting to defend myself from the evil overtures of mean girls, this makes us both laugh. She tells me it’s not going to happen. I tell her that I have seen the government do much more for much less. I know she agrees, but in allegiance to me she says it can’t end this way.
I spend another sleepless night thinking about what will happen. Tossing and turning, my tears turn into anger. I am angry at myself. Angry for what I’ve done, where I’ve managed to end up. I am even angry that I bothered telling the truth, angry that the outcome here is possibly worse than had I just denied everything.
Tired of despising myself, I shift my ire to Cameron, drifting in and out of consciousness, hating him in ten-minute increments. I think back to the game I invented for his benefit, Who Would You Rather Punch? In this moment, there is no question that I would rather punch Cameron, closed-fist, square in the face.
Several days later, the anger—at myself, at Cameron, at everything—begins to fade. I allow myself to hope that this story will have a different ending. That the government will see that my ill-advised conduct was not born out of anything other than a misguided desire to help someone in a bad situation.
I repeat this to myself as though saying it will make it true. But I do not altogether dismiss the possibility of the alternative. I decide to add kickboxing to my workout regimen. Just in case.
About a week later, the day before my attorney is to make his presentation, I am lying on my couch. My face is slathered in a beauty mask, my feet are wrapped in moisturizing socks. This is actually an exercise recommended by my therapist called “self-care.” The practice has something to do with preventing the onset of clinical depression, but I think it is really meant to keep you from letting yourself go when everything around you is crumbling. Either way, it seems to work.
My afternoon of self-care is replete with the latest installment of Oprah’s Farewell Season. I am elated when she announces that her guest for the day is Martha Stewart.
I have always loved Martha. I relish her intricate lessons on how to create all things handmade, something that Martha manages to do so effortlessly. Her cookbooks line my kitchen shelves and her craft books are stacked next to my sewing machine. During my case, in an attempt to distract myself, I put them to good use. By the time my case is over I will have sewn an entire new wardrobe, knitted half a dozen sweaters, and tried enough new recipes to feed a small village.
Today, Martha is talking about how to make the perfect grilled cheese sandwich and properly fold a fitted sheet. But before she does, she sits down with Oprah to discuss her time in prison.
Martha’s criminal case is one that I followed with great interest, both because I am a dedicated devotee and also because the case was so very strange. Martha’s crime took place at a proffer session like mine—perhaps, even, in the same stuffy conference room—but in a case where she had no real criminal exposure. In other words, her crime transpired in a place where she did not need to be. According to an article in The New Yorker, the reason why Martha’s attorney ended up escorting his client to the scene of her crime is because he believed that d
eclining to participate—in other words, pleading the Fifth—is not something you could suggest to someone like Martha Stewart. I find this reasoning odd, especially because corporate moguls like Martha exercise the right to remain silent all of the time. The Fifth Amendment is as integral to the criminal process as flour is to pie, preferably one with a flaky crust.
During the proffer session, Martha apparently misrepresented the nature of a stock sale. And in a refrain similar to my own case, because of her public stature the government said it could not let the falsehood go.
So Martha catches a case. And when that case goes to trial, her best friend testifies against her. Back when it happened, I was disgusted on Martha’s behalf. But thinking about it now, while my attorney is preparing to make a last-ditch effort to save me, I can’t imagine being able to conjure the strength to endure such a betrayal. Unlike her pot roasts, Martha is as tough as they come.
Sitting on Oprah’s stage, Martha has clearly moved past everything that’s happened. She regales the audience with lighthearted tales of prison, how she managed to whip her entire facility into shape. I imagine myself serving time with Martha, learning at her side in the prison kitchen and during craft time. We swap stories from our cases and commiserate about the dismal décor in the U.S. Attorney’s Office. I possibly get thrown in the SHU for following her around so much.
Her interview is winding down and it’s almost time for grilled cheese. Then Oprah asks Martha whether she carries any residual shame for her crimes, and whether it weighs on her, what has happened, what she did.
I sit up at the question. I have grappled with this myself, wondering if I will ever be able to move on from all of this. I want to know if Martha has any advice as to how to remove this particular type of stain.
Oprah asks something like: Did you feel that you had let yourself down, or let other people down?
Martha pauses for a brief moment, and I hold my breath.
“No,” she says, and then talks about something else.
I rewind the exchange and watch it again.
Criminal That I Am Page 13