Case underlines the flaws in mandatory sentencing

Child molester’s lesser sentence led many to call for judge’s resignation

Conservative-leaning friends are going to tell me I’ve gone off the deep end. My more liberal-minded friends are going to tell me I just don’t get it.

But let me make it clear — one thing I am not is soft on pedophiles. That said, the case of Kevin Rojano-Nieto epitomizes to me how misunderstood our criminal justice system is and how mandatory sentencing guidelines were doomed from the get-go.

The backstory: Veteran Superior Court Judge M. Marc Kelly of Orange County, Calif., knows a bad guy when he sees one. Earlier this month RojanoNieto, now 20, was due for sentencing after a jury found him guilty of sodomizing a three-year-old female relative. The state’s mandatory minimum sentence is 25 years in prison. After hearing all the evidence Judge Kelly defied that guideline and gave Rojano-Nieto 10 years.

The lesser sentence coupled with what the judge said at sentencing has victim right’s advocates and others screaming for Kelly to resign or be recalled from the bench.

The judge said Rojano-Nieto, who was in a garage playing video games when the tiny child wandered in, “did not appear to consciously intend to harm,” her. And even though he covered her mouth so she couldn’t scream out during the attack, the judge concluded that he showed, “No violence or callous disregard for (the victim’s) well-being.”

Judge Kelly noted the little girl, who came to court, “Appears to be a happy healthy child … headed for a normal life,” and said while the crime was “despicable,” to give the defendant 25 years would be “cruel and unusual punishment.”

Outside the courthouse angry citizens held a news conference. City Supervisor Lisa Bartlett declared the judge, “must have forgotten that his job is to protect the victim, not the perpetrator!” Speaker after speaker called for an immediate end to the judge’s career.

I’m betting none were in court to hear the facts of the case or the victim impact statements or the sentencing. But here are some fast facts:

The mother of the little girl (also related to the defendant) begged the court for a merciful sentence, citing Rojano-Nieto’s dysfunctional and abu- sive upbringing.

The defendant — who expressed extreme remorse and declared, “Despite my actions … that is not who I am,” — had no prior criminal record.

The court found that, “In an instant he reacted to a sexual urge and stopped almost immediately … within seconds of commencing his offense (realizing) the wrongfulness of his act.”

An independent psychologist concluded the defendant was a low-risk for repeating his behavior. Rojano-Nieto was described as extremely immature, timid and socially withdrawn. Judges are not supposed to be swayed by outside influence. The purpose for an impartial judge is to rule on each individual case and not resort to one-sizefits-all cookie-cutter justice. Mandatory minimum sentences have erased judge’s discretion and taken this country down an embarrassing road to massive prison over-crowding that’s been condemned worldwide.

Jack Furlong has practiced law for 40 years and is a vocal opponent of mandatory sex-crimes sentences. “The judge’s job is not to protect victims, as the local supervisors claim,” he told me during a recent conversation. “It is to administer justice,” the way they see fit.”

“These cases are invariably fact sensitive, and to make a blanket statement … (that a person is a) ‘child molester’ robs all of us of the opportunity to distinguish one case from another,” Furlong said.

Nonetheless, he believes the California prosecutor’s planned appeal of Judge Kelly’s “illegal” sentence will probably be successful. Young RojanoNieto could very well see his sentence upped to 25 years or more.

I wasn’t in that courtroom to hear the evidence, but I’ve covered enough criminal cases to know the difference between a career pedophile propelled by obsession and a horribly stupid mistake made on the spur of the moment.

I also know that 10 years behind bars is a very long time — even for a hardened criminal. Think of the effect a decade would have on a timid young man who made one terrible error that lasted just a few seconds. What kind of man will he be when he finally gets out of prison? Broken and dependent on the state, or angry and full of revenge?

It is distressing that we’ve come to think that if we stomp our feet and yell real loud our deliberative court system can be toppled by our demands. That is not the way it is supposed to work. That is not a path to justice — it’s mob rule.