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Friday’s Foaming Rant: Restitution or retribution?

  • By Patrick O'Grady
  • Published Dec. 17, 2010
Good news and bad news

“They were careless people, Tom and Daisy — they smashed up things and creatures and then retreated back into their money or their vast carelessness, or whatever it was that kept them together, and let other people clean up the mess they had made.” “The Great Gatsby,” by F. Scott Fitzgerald

Let’s say you’re a 50-something free-lance journalist of moderate means and one fine July afternoon you’re motoring around the I-70 Industrial Tourism Corridor in your 1983 Toyota pickup when, in broad daylight, you drift off the road and bumper-tag a bicycling transplant surgeon into the ER for a glimpse of life on the other end of the scalpel.

Cartoon by Patrick O'Grady | Mad Dog Media

Let’s further stipulate that you drive away from your severely injured victim, park behind a shuttered pizza palace, and start chucking bits and pieces of your battered beater into its rusty bed. When the coppers show up with eyebrows raised and pointed questions perched upon their lips, you tell them anything that leaps to mind, as long as it’s not the truth.

Now, we’re talking a felony here, right? Leaving the scene of an accident involving serious bodily injury is good for an orange jumpsuit in anybody’s jurisdiction, yeah? Picking up trash alongside Interstate 70 during the day and sleeping with it at night. …

Well, that depends.

Let’s say you’re a 50-something wealth manager overseeing more than $1 billion in assets and one fine July afternoon you commit the exact same series of misdeeds. Just for fun let’s have you driving a 2010 Mercedes sedan instead of a 27-year-old rice grinder. (Trust me, this is a worthwhile upgrade; I learned how to drive in a ’62 220S.)

Suddenly we’re talking about a couple of misdemeanors. Littering and damaging a German luxury automobile, I think they were. The prosecutor, who has expressed interest in higher office, observes that a felony conviction has “some pretty serious job implications” for an important fellow like you. The judge nods, telling a packed courtroom, “Punishment has rarely been my priority.”

Et voila: You stroll away with a year’s probation and 90 days in the county lockup, the jail time being suspended pending your choice of 60 days in a work-release program or 45 days’ worth of charitable work — say, helping little Richie Riches determine the value of their parents’ estates and how best to skirt the death tax.

Plus, instead of being cuffed and escorted to your new home, you get to deliver a soliloquy about how you’re a victim here, too, before slipping out the back door of the courtroom and off to one of your two or three old homes.

“Let me tell you about the very rich. They are different from you and me,” wrote F. Scott Fitzgerald in “The Rich Boy.” Yes, indeedy, agreed his old pal Ernest Hemingway, who added: “They have more money.”

A fat wallet is the modern equivalent of the philosopher’s stone, able to transmute the base metal of a county lockup’s bars into a shiny golden “Get Out of Jail Free” card. We’ve all known that in a car-vs.-bike situation the motorist is always going to come out on top — on the road, anyway — but it seems that if he has the wherewithal to make restitution afterward, he’s going to drive away from your busted-up butt in court as well.

“When you’re talking about restitution,” noted Eagle County DA Mark Hurlbert in discussing the plea bargain offered Martin Erzinger and later approved by District Court Judge Frederick Gannett, “you don’t want to take away his ability to pay.”

Ohhhhh-kay.

Now, just for yuks, let’s look at another Colorado case, from 2008. It’s not quite apples to apples, because when Barbara Thomas plowed her one-ton ’86 Ford F-350 into a group of five cyclists, she left two of them for dead, and a wealth manager she most certainly was not.

Colorado Springs police said the 64-year-old Thomas had been shoplifting at a nearby grocery and smashed into another man’s car shortly before roaring out of the parking lot and toward the crash that would kill cyclists Jayson Kilroy, 28, and Edgar “E.J.” Juarez, 30.

Thomas was doped up on prescription morphine and barbiturates and driving without her required glasses. And this was not her first brush with the long arm of the law — her sheet included convictions for shoplifting, drinking in a vehicle, careless driving and minor traffic infractions. She also had an outstanding summons for a hit-and-run two months earlier.

When her case came up for disposition in June 2009, that courtroom was packed, too. And like our wealth manager Erzinger, Thomas also scored herself a plea bargain.

Her deal was a sentence of three years in the Denver Women’s Correctional Facility.

In whipping a trey on the elderly woman in the wheelchair, who held an oxygen tank in her lap, District Judge Gilbert A. Martinez spake thusly: “If this defendant could make restitution, it wouldn’t be such a difficult case. You can’t make restitution for death.”

There’s that pesky word again — restitution. Not a bit about “if you can’t do the time, don’t do the crime.” Nope, it’s more like, “Will that be cash or charge? Ooh, a philosopher’s stone! ‘Don’t leave home without it,’ hey? Right, off you go.”

We can take a couple lessons from these cases. First, it’s clearly not true, as many a cyclist has thought, that if you want to get away with killing someone, wait until they get on a bike and then run them over with your car. This goes especially for half-blind, dope-addled shoplifters (Ms. Thomas was denied parole this past summer).

Second, even if you just knock your cyclist into the hospital, a pair of deep pockets can certainly make the difference as to where you bunk down for the foreseeable future. Ain’t no 400-thread-count Egyptian cotton sheets in the graybar hotel, podnuh. And when it comes to restitution, well, a guy who manages a billion smacks worth of other people’s money can take a pretty solid licking and keep right on ticking.

Remember your Plutarch. In his “Lives,” writing of the Athenian statesman Solon, Plutarch said the philosopher Anacharsis “laughed at him for imagining the dishonesty and covetousness of his countrymen could be restrained by written laws, which were like spiders’ webs, and would catch, it is true, the weak and poor, but easily be broken by the mighty and rich.”

But hey, who knows? There may be a silver lining lurking somewhere in these bleak judicial clouds. Given the dire state of our economy, the resurgence of the Republican right and the predilection of rich folks for smashing up things and creatures and retreating back into their money, I expect that before much longer we’ll see legislation permitting wayward wealthies like Erzinger to hire down-and-outers to serve their sentences for them, much as their spiritual ancestors in both North and South employed the less fortunate to serve in their stead during the Civil War.

Such an arrangement will be the fairest of stimulus packages. It will leave the rich free to continue being rich while giving the plebes three hots and a cot.

And the refrain will be not, “Brother, can you spare a dime?” but rather, “Brother, can you serve my time?”

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