What is wrong with Delaware Judge Jan Jurden, who gave a DuPont heir, Robert H. Richards IV, probation for raping his 3-year-old daughter?* In her mind-boggling order suspending Richards’ eight-year prison sentence, Jurden gave one rationale that should launch a tidal wave of hate mail: Richards “will not fare well” in prison. To ask the obvious, so what?



There are three crucial justifications for criminal punishment: retribution, deterrence, and rehabilitation. It’s the first two of those goals that should be front and center when the crime is the sexual abuse of a child, with the welfare of the rapist coming in a distant third. Probation for raping a child is the kind of leniency that gives mercy a terrible name.

It’s also part of a disturbing pattern of late in which judges treat sexual assault crimes as worthy only of a slap on the wrist. There’s the case of Austin Smith Clem, an Alabama man who was convicted of raping his neighbor when she was 14 and 18. Judge James Woodroof suspended Clem’s 40-year prison sentence in full, sending him to a community corrections program instead. When the state appeals court ordered a resentencing, Woodroof doubled down, still refusing to send Clem to prison and even reducing his suspended sentence. And in Montana last August, Judge G. Todd Baugh suspended all but 30 days of a 15-year prison sentence for Stacey Dean Rambold, a former teacher convicted of having sex with one of his students, who was 14 at the time and committed suicide two years later. Rambold walked away with this light punishment even though he’d already violated the rules of a sex-offender treatment program not to have unsupervised contact with children (by having visits with minors who were his relatives). Baugh had the gall to say in court that the teenage student was “as much in control of the situation” as her teacher was, and “older than her chronological age.” After a petition circulated for his removal, he apologized for his remarks but defended the sentence he gave.

As Dahlia Lithwick wrote about Baugh and his ilk, “these are judges who find ways to empathize with the accused and to shift blame and consequences onto the victims.” Much of the time, the problem seems to start with the notion that the crimes were nonviolent. “It was not a violent, forcible, beat-the-victim rape, like you see in the movies,” Baugh said of Rambold’s conviction for sexual intercourse without consent.

Then there is Jared Remy, son of former Red Sox player and Boston celebrity Jerry Remy, who, as the Boston Globe recently reported, was in court 19 times, mostly for beating or stalking women he was dating. Each time the lawyer his family paid for persuaded the judge to go easy on Jared Remy, until he was finally arrested for allegedly stabbing his girlfriend to death. Why did he keep avoiding jail time? Maybe because his victims were women he knew, or maybe because of his wealth and family connections. Probably a bit of both.

Richards, who had no previous record, also has the benefit of money and family connections. He pleaded guilty to one count of fourth-degree rape after his daughter told her grandmother, at the age of 5, that she didn’t want “my daddy touching me anymore.” (Richards was convicted in 2009—the details of the case are only coming out now because of a lawsuit his ex-wife recently filed against him.) In Delaware, fourth-degree rape is characterized as a violent felony, and the sentencing range goes up to 15 years in prison. But Jurden seems to have decided to treat Richards primarily as a patient, noting that he had “significant treatment needs which must be met.”

Like I said, that’s one goal. And I should mention that the judge’s ruling was in line with the guidelines for this crime issued by a Delaware sentencing commission, which (despite the 15-year range on the books) call for a prison term of zero to 2½ years. Update, April 2, 2014: Also, according to an op-ed published in the Delaware News Journal on Wednesday, the sentence of probation was part of a plea deal, which means that prosecutors agreed to it. And it’s possible that the line about how Richards “won’t fare well” in prison reflected the views of a lawyer or witness rather than the judge, since they appeared in a “notes” section of the sentencing form.

The problem is that when a father (or anyone) abuses a small child, the zero end of the guidelines are a travesty. In general, I’m in favor of sentencing guidelines, like Delaware’s, which aim to nudge judges toward greater leniency overall. That’s because over time, punishment tends to ratchet only in one direction: up. Sentencing reform for truly nonviolent crimes, especially drug and gun possession, is very much in the interest of justice. But to let off a convicted child rapist, who just happens to be living off his trust fund in a mansion, thanks to his wealthy and famous family? That seems like the definition of injustice.

Correction, March 31, 2014: This post originally misspelled the first name of Robert H. Richards IV.

Update, April 9, 2014: The headline of this post has been updated to reflect the information added on April 2 suggesting that the “won’t fare well” line does not necessarily represent the views of the judge.