Sunday, March 8, 2015

Another Reason I Sit on the Defense Side of the Courtroom

When you spend any significant amount of time in the trenches of criminal law you come not to expect much.  

The cops hate your clients.  The prosecutors hate your clients.  The judges hate your clients.  The legislators and executives hate your clients.  The voters hate your clients, too, which makes it both easy and mandatory for the cops, prosecutors, judges, legislators, and executives to keep hating your clients.  And because you stand up for your clients, well, they all hate you, too.  

Represent someone charged with rape?  That must mean you think rape is a good thing.  Ditto for murder.


Still, and despite the earned cynicism, you maintain that at some basic level they're not all Nancy Grace or Bill Otis.  And my buddy who used to work with him assures me that even Bill doesn't actually believe that it would be a good thing to execute the factually innocent.

But there's the problem of evil. ("There's so much of it," said a judge once explaining why she'd decided not to retire.)  And the need to punish.  And then punish more.  And then punish more.
And more and more and more.  Because . . . . Well, because they're all evil.

And, of course, because punishing them makes us feel better.  (At least, it makes Bill and Nancy and Thane Rosenbaum and Robert Blecker feel better.)  Which I suppose I understand even if I find no satisfaction in the infliction of pain.

But there are times.

I've written before about the sentences that cannot be served.  Ariel Castro's 1,000 years, for instance. Of course, he took his own life within days, but to what end, really, impose a sentence beyond possibility?  What's the function of a sentence that extends beyond death?  We will not, in fact, store the cadaver in prison.  Why would we?  And what would be the point if we did?

Which brings me, at last, where I've been going.  Alan Johnson, in yesterday's Columbus Dispatch.
State prison officials want to give judges the authority to release inmates who are brain-dead or suffering from severe dementia — and costing taxpayers lots of money in the process.
Ohio prisons chief Gary Mohr asked state legislators on Thursday to tweak state law as he testified about his agency’s 2016-17 budget before a House subcommittee. The state spends nearly $190 million a year on inmates’ medical care, which it is required by law to provide.
The state is paying about $1 million every two years for medical care just for 58 severely ill inmates serving mandatory sentences, many of whom don’t even know they are in prison, said Stuart Hudson, chief of medical services for the Ohio Department of Rehabilitation and Correction. Judges can release inmates for medical reasons, but not those who are serving mandatory sentences.
Mohr wants legislators to modify the law to allow judicial medical release in mandatory-sentence cases as recommended by the department.
Understand, please, exactly what Gary's asking.  He doesn't want a law that will require the release of any prisoner who just happens to be "brain-dead or suffering from severe dementia."  He's asking for a law that will all the prison system to suggest that some particular prisoner maybe should be maybe be released because he's fucking brain dead or so far gone that he has no idea where he is or why or what is happening.  Who is unable to feed himself because he has no longer got any fucking idea how.  Or why.  A suggestion to a judge who would get to make the final call.
This guy here, your Honor.  He's brain dead.  Flatlining on the brain scan.  In the outside we'd pull the plug.  Whaddya say?
And the judge, who runs for election and needs votes from the Grace-Otis-Rosenbaum-Blecker crowd, might well say 
He's an asshole.  Let him rot.
Or maybe not.

But really, is it so much to ask?  

Oh, wait, you thought it would involve letting vicious brain-dead people serving life terms out.   No, no.  
The release would have to be approved by a judge and would not cover inmates serving life or capital-punishment sentences.
Whew, I feel safer now.  Soft-hearted prison officials wouldn't get to suggest that soft-on-crime judges might want to consider letting brain-dead lifers out.  And of course we won't let out so they can die folks we intend to kill.

So, you know, nobody opposes this, right?  Save money, no risk to the public, nothing really likely to happen.  What's not to like?

Ah, you haven't checked in with the Ohio Prosecuting Attorney's Association.  Alan Johnson has.
The Ohio Prosecuting Attorneys Association opposes the change, arguing that inmates still need to be punished despite their medical infirmities.   
Notice that they're not talking deterrence.  They're not talking about the value that used to be attached to sticking the heads of the executed on posts on the way into the cities.  There was a message in that about what awaited those who offended the king.  But there's no message here.  The prosecutors weren't talking about sending messages, about lessons to be learned.  Keeping the brain dead in prison was punishment.  Necessary punishment, pure and simple.

To which there's an obvious rejoinder.
“When someone is brain-dead, I don’t know they feel they are being punished,” Mohr responded.
Thing is, and what Mohr apparently doesn't get, is that to the haters, to the prosecutors in particular, punishment isn't about the bad guys getting theirs.  It's about getting to give it.  It's about punishing. 

About the infliction, not the receipt.

Which tells you pretty much all you need to know. 


  1. I'm surprised that nobody used the phrase "send the wrong message" in that piece. As in "Letting murders out of prison just because they can't walk, talk, or feed themselves would send the wrong message." Isn't that the usual refrain?

    And I gotta ask... Do they really mean "brain-dead"? People sometimes use terms like "brain-dead" somewhat figuratively to mean someone who isn't mentally alert and active, or who sleeps most of the time. It's also easy to confuse the terminology, substituting "brain-dead" when they really mean someone in a coma or a persistent vegetative state.

    The reason I ask is that, well, "brain dead" is dead. When it happens in an ordinary hospital, the nurses can disconnect the body from the machines keeping it alive. Surgeons can harvest the organs. It's over.

    Not wanting to let completely infirm people out of prison is disturbing. Not wanting to let a dead body out is verging on psychotic.

    1. But they didn't talk about sending messages. Didn't talk about deterrence. It was punishment, plain and simple. I don't know whether they really meant "brain dead." But I wouldn't put it past them.
      And why should punishment end just because the brain does. After all, we can keep those folks going on life support for some time? Hell, maybe they'll recover. Think Terri Schiavo. Ooops, she didn't.

  2. One reason I hardly ever read your blog is its Holier-Than-Thou, sneering and self-righteousness attitude. Everyone else, including gobs of people you don't know and have never met -- cops, prosecutors, judges, legislators, the public (to take a partial list) -- is full of hate. Only the benighted defense bar has the Higher Virtues.

    The idea that anyone could have a principled or good faith disagreement with The Received Wisdom of the Defense is never so much as entertained. We're all just troglodytes, fools or sadists.

    You routinely excuse your broad-brush smears as being, ha, ha, just a little literary license. Sure, fine. Whatever you want, a serious debate it is not. It's just to take pot shots. Why you think this is anything beyond emoting mystifies me. Still, it does have one useful quality: It illuminates the smugness one apparently gets from, of all odd things, doing your utmost to put child rapists and other such benefactors back on the street.

    It's your blog. Go ahead. But it would be best not to proceed too far with the idea that fair-minded people are going to be interested for very long.

    Bill Otis