Others who were critical of the sentence but more familiar with Spurlock obviously recognized the difficulty of accusing a black judge of coddling a white racist. District Attorney Conley called the sentence “wise and thoughtful.” Boston attorney Wayne Murphy, lawyer for victims Stephanie Gemma and Maureen Pontes, said that while his clients were “disappointed,” perhaps the sentence would “help the defendant fully appreciate the consequences of his actions upon others.” When the Boston Globe finally got around to editorializing on the sentence, on August 30, it suggested tepidly that the judge, whose race still went unmentioned, should issue a written opinion explaining “his judicial discretion or his creative instincts.”
All this bowing and scraping before the throne of political correctness overshadowed another, equally striking aspect of the case — that the tattoo-removal portion of the sentence was almost certainly unconstitutional. The US Constitution allows for the punishment of illegal actions, and for at least the past century, the Supreme Court has been especially protective of freedom of thought, opinion, and conscience. That’s why it is virtually unknown in this country for a person convicted of a crime to be forced, via sentencing, to recant something in his or her heart or mind.
The criminal law, in other words, can legitimately control people’s actions, but not their thoughts and beliefs. Requiring a convicted criminal to remove a tattoo with an officially disfavored message (or, conversely, ordering him or her to sport an approved message) almost certainly runs afoul of the First Amendment.
So why did this judge, who obviously gave considerable thought to this high-profile case, impose such an unusual requirement? The likely answer is that although of questionable legal validity, the overall sentence was compassionate, sensible, and offered some sense of rough justice. It may even help the defendant get back on his feet; young Spaulding’s criminal assault was apparently just the latest episode in a painful and visible downward spiral.
Ultimately, Spaulding’s sentence seems to experiment with finding a humane, if uneasy, accommodation between the technical rigors of the law and the messiness of life. And, because of the hot-button role race plays in our culturally hyper-sensitive times, it may be that only a black judge could have engaged in this experiment and gotten away with imposing a sentence both markedly lenient and patently unconstitutional in a racially charged case. It is hard to know what Spaulding’s case and its resolution say about our legal system or our culture, in part because the media, by ignoring central aspects of the case, has kept it from getting a full public airing.
Harvey Silverglate is a criminal-defense and civil-liberties attorney, and a regular “Freedom Watch” contributor. He can be reached at has@harveysilverglate.com.
