Victims - Human and Animal, Dead and Alive

There's much to write about.  And so it is that, with some misgivings, I won't go on at any length about Eugene Hickman.

He's the guy pictured to the left.  Busted, so they say, when his grandson (name and age withheld by the media) walked in him trying to fuck the family's 3-year old pet bulldog.

The thing is, Hickman's alleged to be a recidivist.

According to the arrest report, Hickman’s grandson found him naked on top of his dog, allegedly trying to have sexual intercourse with the animal.
The report says Hickman admitted he was trying to have sex with his dog to deputies. The report also says family members claim this is not the first time someone has witnessed Hickman trying to do this.

Really, I have nothing to add.

The Life You Save May Be Your Own

Texas is working on killing Humberto Leal Garcia a week from tomorrow.  Among the many reasons it shouldn't is that it will make your next trip to another country - any other country - more dangerous.

The United States is a party to the Vienna Convention on Consular Relations, a binding treaty.  One provision of the treaty is that when a foreign national is arrested, he is to be promptly informed that his consulate may be notified and if he wants it to be that should happen immediately.  Leal is a Mexican national.  He was not told.  His consulate was not told.  Mexico has a major program in place to assist Mexican nationals who are capitally charged in this country.  Those who have studied the case think that had the consulate been aware of Leal's situation, the resources it could have brought to bear would have prevented him from getting a death sentence.

In 2004, the International Court of Justice ruled in favor of Mexico and against the United States and said that 51 death sentences, including Leal's, should be reviewed to determine if adherence to the Convention would likely have made a difference.  Then-President Shrub urged the various states involved (including Texas) to reconsider in light of the ICJ's decision.  Texas declined.  The Supreme Court said that it didn't have to since, although the treaty is the law of the land, it has no force because Congress has never enacted enabling legislation.

There's a bill in Congress now.

Yesterday, Leal asked the Supreme Court to step in.  They said that the Court

must not allow Texas to subvert Mr. Leal’s constitutional rights and the compelling institutional interests of Congress and the Executive in a race to execution, particularly given the overwhelming public interest in achieving compliance with the Avena Judgment.

They presented two specific questions.

1. Whether Mr. Leal‘s Fifth and Fourteenth Amendment rights not to be deprived of
   his life without due process of law entitle him to remain alive until Congress has
   had a reasonable opportunity to exercise its constitutional prerogative to
   implement the right to judicial review and reconsideration under Avena and Other
   Mexican Nationals, so that he can secure access to a remedy to which he is
   entitled by virtue of a binding international legal obligation of the United States;
   and
2. Whether the Court should grant a writ of habeas corpus to adjudicate Mr. Leal's
   claim on the merits, where he seeks relief pursuant to a binding international legal
   obligation that the federal political branches seek to implement, and where
   adequate relief cannot be obtained in any other form or from any other court.

So how does killing Leal make you less safe when you travel abroad?  Ask the 6 former diplomats and State Department officials who signed a letter to Texas Governor Perry a few weeks ago.

Clearly, the safety and well-being of Americans abroad is endangered by the United States maintaining the double standard of protesting denials of consular notification and access to its own citizens while simultaneously failing to comply with its obligation to remedy identical violations. We cannot realistically expect other nations to continue to comply with consular treaty commitments that we refuse to uphold. For that reason alone, it is essential that Congress act swiftly to provide the limited procedural remedy that both our Executive and Judicial Branches have so clearly indicated is in the national interest.

As the Supreme Court pointed out, however, the United States’ interest in implementing these international obligations goes beyond protecting the reciprocal rights and safety of its overseas citizens. Our national security, effective commercial and trade relations relating to our prosperity and almost every matter of national interest, large and small, is covered by reciprocal treaty obligations. Texas citizens whose livelihoods depend on their travel abroad and Texas businesses with operations in other countries face serious safety and financial risks if we cannot rely on these reciprocal treaty obligations. We risk jeopardizing these interests if we practice an indifference to these obligations in this or other arenas. We believe that continued non-compliance will surely alienate this nation from its allies.

Or listen to organizations dedicated to the needs and rights of Americans living abroad.

The security of Americans abroad is clearly and directly at risk when the U.S. fails to
abide by its international obligations under the VCCR and other consular treaties. Prompt and consistent compliance with consular notification and access provisions is critical to the safety of Americans who travel, live and work in other countries around the world.

Whenever our fellow citizens are arrested in a foreign country, U.S. consulates provide a list of attorneys and information on the host country's legal system, offer to contact family or friends, visit on a regular basis, protest mistreatment, monitor jail conditions, and keep the Department of State informed. The United States rightly insists that other countries grant Americans the right to prompt consular notification and access, as required under the VCCR. However, effective insistence on compliance abroad must first begin with remedial action at home.

Or to Billy Hayes, who spent 5 years in a Turkish prison.  (You may remember him from the book or the movie about it, Midnight Express.)

I am both aware of, and the beneficiary of, Article 36 of the Vienna Convention on
Consular Relations. My arrest in Istanbul in 1970 and subsequent five years in a Turkish prison was a truly frightening experience. That ordeal is described in my book Midnight Express, which became the subject of a feature film by the same name.

The ability to have a prompt consular visit and frequent consultations about my legal
rights was invaluable. In my case, the U.S. Consulate was quickly notified of my arrest by the Turkish authorities, who honored their obligations under the Vienna Convention. As a result, I was able to start the process of obtaining legal counsel, and I had our government aware of my plight and helping as best they could.

I fear that if the U.S. does not fully observe its consular treaty obligations, then other
countries will reciprocate. That would be a tragedy and disaster for so many vulnerable,
frightened American citizens-including countless Texans- who find themselves arrested in a foreign country.

Pay attention folks.

Death in Prison

I'm talking about Bernie Madoff and his sentence.

When Judge Chin handed it down, 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. 

I change my mind about all sorts of things, and I often toss off these blog posts without giving them much thought.  But I hold to what I wrote then.  I think everything I said then was right.

Madoff's lawyers, you may recall, were asking for a dozen years so that, based on actuarial tables, he'd be free for the last year of his life.  Prosecutors asked for the max, and that's what they got.  Now, in an interview with the Times, Judge Chin explains how he came to the sentence.  And Madoff, separately, explains why he thinks Chin gave him too much time.

Madoff first.

“Maybe the judge felt, ‘Well, he’s 70 years old, so even if I give him 20 years, he’s going to be 90 years old,’ ” Mr. Madoff said by phone from the federal prison in Butner, N.C.

“But quite frankly, there’s a big difference with dying in prison, you know, and dying outside with your family.” 

Yeah, there is.  And while it isn't the death in prison sentence I usually talk about (LWOP), 150 years is functionally the same thing.  But it's also, and here I return to a point I've made repeatedly, a silly sentence.  Oh, Chin had his reasons.  

Madoff was, he said, "extraordinarily evil."  Frankly, that's nonsense.  What Madoff did was terrible.  He hurt lots and lots of people.  He damaged charity.  He caused an astonishing amount of suffering to a great many people.  And he did so over a long period of time.  But "extraordinarily evil"?  That's Pol Pot territory.  It's Hitler.  It's Satan if you go for that sort of thing.

And even if you buy into it, and if you see it as a retributive 150 years, what's the retribution mean when the sentence can't be served?  How does that punish more than 50 years would?  (Madoff was 71 at the time.)  Really, it doesn't. 
Ah, but there was this.

The judge, explaining why he had rejected the defense’s request for a substantially shorter sentence, provided two reasons why the symbolism of a much longer term was important: to send the “strongest possible message” of deterrence, and to help the victims heal. 

Except, see, that's not the law.  Nor frankly, should it be.

Oh, the deterrence part is fine.  But helping the victims heal.  Not so much.

Federal sentencing is a mess, but the rule that governs it is set forth in Section 3553(a) of Title 18 of the United States Code which lists proper considerations in imposing sentence.  Only one has any reference to victims, and that's for restitution.  Healing victims (except financially), simply isn't something the law allows to be considered.  Besides, it's really beyond what a court can do, beyond what the law can do.  Criminal law isn't therapy.  And judges aren't psychologists.

Madoff didn't appeal his sentence.  Had he, given the deference accorded judges and the billions he stole, it's hard to imagine that he'd have gotten relief.  

But he probably should have.