Wednesday, March 17, 2010

And On to Infinity

Methus'lah lived nine hundred years
Methus'lah lived nine hundred years
But who calls dat livin' when no gal'll give in
To no man what's nine hundred years.
Antisa Khvichava is or is not the oldest living person right now. According to the Daily Mail, Rustavi 2 TV in Georgia has unearthed documents showing that she was born July 8, 1880. If so, the vodka-drinking, backgammon-playing Khvichava is now 129.

As the Mail explains, they're working on getting her an entry into the Guinness Book of World Records. The snag, of course, is that she may not be the oldest. According to the Mail, the current confirmed oldest is 114-year-old Kama Chinen of Japan. The Mail says nothing (at least in this story) about Chinen's been hitting the sake and Go boards.

That's really just all the first part of the set up. Here's the second.

A few years ago, I represented briefly, and assisted counsel unofficially for a longer period, a defendant in Toledo who was facing multiple counts of aggravated murder and death specifications. Coming up toward trial, the state would not offer a deal and he would not have taken one had they. Then, through an unlikely series of events (irrelevant here and protected by various sorts of privilege and rules of confidentiality) we got him a deal. He ended up pleading to three aggravated murders and one attempted aggravated murder, along with a number of other offenses.

He was sentenced to several life terms and a mandatory minimum term in prison of something like 150 years. (The record is confused and I think the judge totaled the years wrong). That means, to put it simply, that his first scheduled parole hearing is in September 2148. At that time, he will be 17o years old. It's unlikely he'll be an active participant in the hearing.

Bernie Madoff, of course, got 150 years (but without a life tail). At the time, I wrote this.
Now, let's think for a few minutes. Person on death row killed a couple of people without much remorse in the midst, say, of a spree of robberies. Horrible. Deserves condemnation. Bernie Madoff destroyed the lives and hopes of thousands, inflicted some sort of real harm to millions. He did it with a pen and a smile and a string of accountants. Guy on death row did it with a gun.

Who did more harm? Who's more callous? Who is deserving of more punishment?

We don't kill the Bernie Madoffs, and we shouldn't, not any more than we should kill the vicious street punk or the guy who got in over his head and got scared and . . . . Heck, you know the story.

But 150 years? We know that's a sham. It's not a real sentence. He can't serve it and it doesn't really make any broader point. Now, a life sentence, that's something else: I sentence you to die in prison - however long it takes.
That struck me then, and strikes me now, as a serious point.

In 2005, in Columbus, Ohio, Marquis Hairston participated in a number of home invasions. As such things are, these were ugly affairs. Yet nobody was seriously hurt. Hairston ended up entering guilty pleas to four counts of aggravated robbery, three counts of aggravated burglary, four counts of kidnapping, all with firearm specifications, and three counts of having a weapon while under disability. He was sentenced to serve consecutive prison terms for each of those offenses. In total, his sentence came to 134 years in prison. In affirming the sentence, the Ohio Supreme Court noted that 134 years was
an aggregate prison term that is not likely to be served.
I'll buy that. What the court bought, though, was that in figuring out whether the sentence was unconstitutionally long, its length was irrelevant.

Come again? What was that? The fact that he was sentenced to 134 years in prison is irrelevant to whether his 134 year prison sentence is unconstitutionally long? Yup.

See, here's what the court said. Hairston was convicted of 14 offenses. He was sentenced separately on each (and in imposing sentence for each, the judge decided that the sentence should be served consecutively to all of the other sentences because each offense, individually, deserved that. But since he actually got 14 smaller sentences rather than one larger sentence, the proper question was whether any of the 14 sentences was, by itself, outrageous. The answer the court said, was "No."

And now there's Coy Dunkle. Another ugly case. Dunkle had on a number of computers, and apparently bought and sold, thousands of pornographic pictures and videos of thousands of young girls. Including his three year old daughter. Charged with a couple of counts of rape, which could have gotten him life sentences, along with dozens of other counts, Dunkle agreed to plead guilty to 49 counts of pandering sexually oriented material involving a minor and four counts of illegal use of a minor in nudity-oriented material.

He did avoid a life sentence. Instead, he was sentenced to 110 years in prison. He's due to be released 10 days after his 143rd birthday. (If you're planning to meet him outside the prison, you won't want to forget the cake and candles.)

The court of appeals looked at Hairston and figured that the Ohio Supremes set the rules for Ohio. So it didn't even consider whether a sentence of 110 years in prison was constitutional or even sensible. Instead, it asked whether all those two and three year sentences were, individually, outrageous. Nope.

These are, of course, all death sentences. None of them are called that. Only one is even called a life sentence. But the truth is that Prentiss Williams, Bernie Madoff, Marquis Hairston, and Coy Dunkle - along with many many others - are sentenced to death in prison. But without even the honesty of saying so.

Maybe they deserve those sentences. Maybe not. But in Ohio, at least, and as Hairston and Dunkle learned, you're not even allowed to ask the question.
I'm preachin' dis sermon to show
It ain't nessa, ain't nessa
Ain't nessa, ain't nessa
It ain't necessarily so.

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