Dissecting Arbaugh

If the presidential race is a little to laid back and collegial for you, come to West Virginia and check out our Supreme Court election. One seat on the sharply divided court. Currently occupied by Justice warren McGraw, he fought off a well-funded pro-business candidate in the Democratic primary and is now staring down the barrel of a similar challenge in the general election. For this round, his opponents have brought to light a decision of the WVSC from this March in which the court reversed a trial court's decision to revoke the probation of a convicted child molester. A group called And for the Sake of the Kids is using that case, called State v. Arbaugh, to paint McGraw as soft on crime and a general menace to your children. Do their charges stack up? Not quite.

Arbaugh involves a man who, while a child, was viscously sexually assaulted by friends and family. Not surprisingly, he eventually acted out in the same way, assaulting his brother and others while only 15. He eventually pled guilty (to only one count) of first degree sexual assault, a crime that generally carries a 15-35 year prison term. Because Arbaugh was a youth when he committed the crime (although tried as an adult), he was subject to various non-incarceration punishments, including probation. He had problems with each, although for things like using drugs or "showing disrespect," not actual physical or sexual violence towards others. Finally, an exasperated trial judge refused to give Arbaugh one more chance, denied his motion for a reduction of sentence to probation, and hit Arbaugh with the full force of the long prison term.

The issue in the case was this: did the trial court abuse its discretion by denying Arbaugh's motion? In a per curiam (unsigned) opinion, the WVSC said yes. All five justices then wrote or signed onto dissenting and concurring opinions. Justice Davis (who, I've read, actually wrote the per curiam opinion) wrote a dissent that was joined by Chief Justice Maynard, Justice Albright wrote a concurrence that was joined by Justices McGraw and Starcher, Justice Starcher wrote a brief concurrence and dissent, and finally Chief Justice Maynard added his own dissent.

The upshot of all these opinions is this: the dissenters believe that the West Virginia Youthful Offender Act required Arbaugh to be sent to prison, with no alternative. The de facto majority (Albright, Starcher, and McGraw) believe that other WV statutes and regulations allow the district court an option of reinstating probation and that the egregious circumstances of this case warranted another term of probation. From what I've read, both sides make good arguments: there is an apparent tension between the Youthful Offender Act and the main probation statute, not to mention one Rule of Criminal Procedure. How this ever got to be a per curiam case I will never know, as this issue is one that needs definitively resolved and obviously has polarized the court.

Back to the For the Sake of the Kids people. Did McGraw (and Starcher and Albright) get it wrong in this case? Quite possibly, but it's hard to tell, particularly given the horrible per curiam opinion. If they are wrong, however, they're wrong on the law, not on the general issue of whether child molesters are good people. The For the Sake of the Kids folks try to paint this picture of McGraw gleefully voting to let Arbaugh back on probation, which I suspect is far from the truth. The group gives no background on the case, including the fact that Arbaugh was 15 when he committed the one offense he has actually been convicted of and suffered horrible sexual abuse in his childhood. Perhaps child molesters should never be eligible for probation. That's a perfectly valid policy position, but not one that a sitting Supreme Court justice can take. The great irony is that the pro-business folks who attacked McGraw so much in the primary did so precisely because they allege he makes policy from the bench. You can't have it both ways, folks.

So, is the Arbaugh case completely fucked up? Most definitely. Does it point to some serious problems of statutory and constitutional interpretation that the Supreme Court needs to address? You bet. Does it mean that Warren McGraw is dangerous to your kids? Hardly.