The uproar over light sentencing by two Baltimore County judges for violent acts against women was wrongly treated in politics as a gender issue. It is properly a law-and-order issue.
As a result, an initial movement to wreak revenge is being diverted into leverage for other bits of the feminist agenda -- leaving the worst implications unremedied.
In April 1993, Judge Thomas J. Bollinger gave probation before judgment to Lawrence Allen Gillette, a theater manager who had illegally plied an 18-year-old employee with drink and then penetrated her unconscious body. By following fairly severe probation requirements, Gillette will have no criminal record.
Yet a jury had found him guilty of second-degree rape. Pre-trial services had recommended a sentence of five to ten years. The prosecutor had demanded some jail time.
The judge emphatically disapproved of the law and called the incident properly a misdemeanor.
After a year's deliberation, the Maryland Commission on Judicial Disabilities last November mildly and secretly reprimanded Judge Bollinger. He made the reprimand public, claiming it as exoneration.
The commission said his remarks "were so improvidently phrased as to create a general impression that he was critical of the Maryland law under which Mr. Gillette was convicted and insensitive to women's rights and the obligation of the judicial system to afford women the protection of the law . . ."
Last October 17, Judge Robert E. Cahill sentenced Kenneth Lee Peacock to 18 months jail with work release, for shooting his wife dead after finding her in bed with a strange man.
Peacock had been charged with first-degree murder. He pleaded guilty to voluntary manslaughter, with the prosecution asking for a sentence of three to eight years.
Judge Cahill felt "forced to impose a sentence," but expressed sympathy for the defendant and wondered how many married men "would have the strength to walk away without inflicting some corporal punishment."
So what do we have here?
Judge Bollinger used his discretionary authority in sentencing to nullify a law of Maryland. The General Assembly had most deliberately intended to define the crime of second-degree rape. The judge ruled, in effect: not in his courtroom.
Judge Cahill constructed a mitigating right of husbands (not other spouses) to inflict corporal punishment for adultery, which the legislature had never legislated.
Last December, more than 30 female legislators demonstrated for censure or impeachment of Judge Cahill. Impeachment would require a "high crime or misdemeanor," which this was not. By two-thirds votes the General Assembly can remove a judge for lack of suitability. A single incident of wrongheadedness would hardly seem sufficient.
The Court of Appeals has wide authority. The Commission on Judicial Disabilities has yet to be heard from on the Cahill matter.
The brunt of the attack seems to be changing to a demand for more women, blacks and lay people on judicial nominating commissions, and other changes that might empower a few women with law degrees. Better they should stick to the issue. Two questions need to be addressed. The first is what remedy to provide when a judge arbitrarily revises or nullifies the criminal laws of the state.
All legislators, not just female ones, ought to worry whether that can occur without review. The Commission on Judicial Disabilities apparently did not address it.
The second question is whether the protection of the law was withdrawn from a large class of citizens in Baltimore County. The 14th Amendment to the United States Constitution says that "No state shall . . . deny to any person within its jurisdiction the equal protection of the law."
"Any person" would seem to include women, even if comatose or adulterous. Did the two judges, through sentencing discretion, infringe the 14th Amendment?
The Commission on Judicial Disabilities' reprimand of Judge Bollinger did address this point, but only as a matter of perception, concluding that "an unintended and unfortunate result . . . was a diminution of public confidence in the impartiality of the judicial system."
The legislature should insure the future existence of redress for any capricious judicial selectivity about which laws to enforce, or which citizens to afford their protection. Even in Baltimore County.
Daniel Berger writes editorials for The Baltimore Sun.
lTC