http://www.cnn.com/2012/03/17/opinion/butler-rutgers-spying/index.html?hpt=hp_t3
Editor's note: Paul Butler is the Carville Dickinson Benson Research professor of law at George Washington University. A former federal prosecutor, he is the author of "Let's Get Free: A Hip-Hop Theory of Justice."
(CNN) -- Dharun Ravi was an immature college kid who invaded his roommate's privacy. In New Jersey, that makes him a convicted felon who faces up to 10 years in prison. Locking up Ravi ultimately won't do much to stop bullying or fight homophobia.
His prosecution speaks volumes, however, about America's rush to use criminal justice to address problems that are better resolved by other means. Every bad act is not a crime. Every kid who does a stupid thing is not a criminal.
As the whole world knows, Ravi secretly videotaped his roommate, Tyler Clementi, having sex with another man. He let some other people watch the video, and he tweeted that Tyler was gay. Clementi then jumped off a bridge to his death.
Let's be honest. A lot of people want a pound of flesh from Ravi because they blame him for Clementi's death. Tyler's reaction was tragic, and it was idiosyncratic. It is possible to deeply mourn Clementi's death and also to acknowledge that he probably had issues other than Ravi. No judge in the country would have allowed a homicide prosecution, because, legally speaking, Ravi did not cause the death, nor was it reasonably foreseeable. Of the millions of people who are bullied or who suffer invasions of privacy, few kill themselves.
Paul ButlerBut in the classic fashion of overreaching prosecutors, the New Jersey district attorney found 15 other crimes to charge Ravi with. Legal experts expect that he will get at least a five-year prison sentence and then be deported to India, where he was born but hasn't lived since he was 2.
For his stupidity, Ravi should be shamed by his fellow students and kicked out of his dorm, but he should not be sent to prison for years and then banished from the United States.
In their hearts the prosecutors must know this, which is why they offered him a plea bargain that included no jail time and a recommendation against deportation. But prosecutors don't like it when a defendant exercises his constitutional right to go to trial, and after winning their case they are likely to ask for big time.
The prosecution seemed to play on the emotional circumstances of Clementi's death as much as the actual facts of the case. The most serious charge was that Ravi intended to intimidate Clementi by filming him having sex with another guy. But how can you intend to intimidate someone by filming him when you hide the camera and don't want the person to know he's being filmed?
In addition, New Jersey's hate crime law presents troubling First Amendment issues. If Ravi had been convicted of being motivated to act because someone was fat or a nerd, he'd be looking at five years in prison. Because he commented on Clementi's sexual orientation, he gets twice as much time. The problem with broad laws like New Jersey's is that they come too close to punishing people for what they think. Bigotry, including homophobia, is morally condemnable, but in a free country, it should not be a punishable offense.
When I was a freshman at Yale, my roommate constantly played a Patti Smith record called "Rock and Roll Nigger." I hated the song, but it never occurred to me that I should have called the police on my roommate. Part of the reason Yale paired me, an African-American from Chicago, with my roommate, a Jewish kid from Brooklyn, was for us to learn how to work out our differences. We did, and now, 25 years later, we're still friends. Those kinds of lessons are what college is for, as much as anything you learn in the classroom.
Ravi and Clementi never had that moment, but at the trial, evidence was presented that it might have happened. After Ravi had spied on Clementi, he heard that Clementi wanted a new roommate. Ravi texted him and asked him to reconsider. He said, "I've known you were gay and I have no problem with it." This does not sound like a homophobe -- it sounds like a freshman who was taking a step to becoming more mature.
Ravi did not invent homophobia, but he is being scapegoated for it. Bias against gay people is, sadly, embedded in American culture. Until last year people were being kicked out of the military because they were homosexuals. None of the four leading presidential candidates -- President Obama, Mitt Romney, Rick Santorum, Newt Gingrich -- thinks that gay people should be allowed to get married. A better way to honor the life of Clementi would be for everyone to get off their high horse about a 20-year-old kid and instead think about how we can promote civil rights in our own lives.
Though a national conversation about civility and respect would have been better, as usual for social problems, we looked to the criminal justice system. The United States incarcerates more of its citizens than any country in the world. We are an extraordinarily punitive people.
Clementi died for America's sins. And now, Ravi faces years in prison for the same reason.
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