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The Lily's Law flaw

Policies that spring from tragedies like the Lily Burk case can have unintended consequences.

August 09, 2009|Celeste Fremon | Celeste Fremon is the author of "G-Dog and the Homeboys" and the editor of

Some deaths trigger our collective grief and fury more than others. In the spring of 2008, it was the killing of college-bound running back Jamiel Shaw II, a handsome boy shot dead on an L.A. sidewalk a hundred yards from his front door while his Army sergeant mother served her country 8,000 miles away in Iraq. This summer, the horror that grabbed us was the kidnapping and murder of 17-year-old Lily Burk.

Yet, as is often true with such heart-lacerating cases, with every new revelation about Lily's murder these last two weeks, the voices of those who seek to morph our grief into this or that public policy agenda grow ever louder.

Like Jamiel Shaw, Lily was a kid we could each imagine as our own. She was smart, a national merit scholar. She was unusually well-liked -- the comments on the Facebook page created in her memory express this in vivid detail. Through repeated exposure to the photo her parents provided to the media after her death, we were able to believe that we knew her: Lily Burk with the open, world-welcoming gaze surrounded by a tangle of teenage hair. We could envision her future while in the same moment reeling with the knowledge that all of her tomorrows had irrevocably vanished under nightmarish circumstances.

It is precisely that nightmare that is the other signal reason we have been seized by the death of Lily Burk. She wasn't killed by a hit-and-run driver. Nor was she felled by a gangster's stray bullet. She was kidnapped. Lily was with her alleged killer for nearly two hours. She called her parents twice during that time. She was seen on video at ATM machines trying to withdraw cash, presumably to give her alleged kidnapper whatever was needed to gain her freedom. We know she tried to save her own life. We also know that her efforts came to nothing, that before she died "blunt force trauma" was inflicted on the clear-eyed, tangle-haired girl. Then the killer slit Lily Burk's throat.

With a death like this one, we find ourselves wanting to rewind time. Because we cannot, we long for the next best thing: We want the horror never, ever to happen again. To this end, we buy our daughters purse-sized canisters of pepper spray. We ask our sons what they know about self-defense. We talk about code words. And we pass laws.

As Americans, we have a long history of reacting to the high-profile deaths of our young by rushing to pass emotionally compensatory statutes. There was, for example, the 1986 death of Len Bias, who, at 22, was considered a basketball superstar in the making. He had just signed a contract with the Boston Celtics, then died two days later from a cocaine overdose. The loss of such promise fueled panic about a burgeoning crack epidemic that, in turn, resulted in the Anti-Drug Abuse Act of 1986, which has embedded within it the now infamous 100-to-1 sentencing disparity between crack and powder cocaine. This disproportion enshrined in law an inadvertent but calamitous racial bias because crack tended to be used by poor blacks, powder by middle-class whites.

Similarly, the ghastly events of 1999 at Columbine High School brought us zero tolerance in our schools, a state and national policy that created its own wake of unintended consequences.

After Richard Allen Davis, a parolee with a startlingly long and brutality-laden rap sheet, abducted 12-year-old Polly Klaas from her bedroom in Petaluma in 1993, the consequences ballooned quickly. A three-strikes law, which had languished in the legislative backwater for years, sailed through as a ballot initiative with a 70% majority, embraced by voters who believed they were taking the state's most dangerous criminals off the streets. But the law's undifferentiated reach also spewed out thousands of life sentences for nonviolent defendants with third offenses as minor as shoplifting. Each of those lifers is now housed at a cost to taxpayers of $49,000 a year -- much more as they get older and sicker.

Correspondingly, when it was learned that Shaw's alleged killer was an illegal immigrant and a gang member just out of L.A. County jail, a torrent of anti-immigrant sentiment was unleashed, and with it the demand for a law -- as yet unsuccessful -- that would turn LAPD officers into immigration enforcers.

Laws passed in a wave of collective heartache are notoriously difficult to change -- no matter how counterproductive or unjust they are later seen to be. In June, I went to a sentencing reform conference in Washington at which the crack/powder disparity was the main topic on the table. Atty. Gen. Eric H. Holder Jr. made an impassioned pitch for a correction to the law. He was followed by a string of prominent federal judges who talked about how agonizing it was, as jurists, to have to impose outsized sentences for minor drug offenses. Yet, while support for balancing the sentencing seems to daily gather more bipartisan support, the 100-to-1 statute is still on the books.

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