Grandpa Will - Fugitive From Justice

Assuming Florida extradites him what then?

Frank Freshwaters is 79.  Which means he was around 24 then, 22 when this all started.  

It started with an auto accident.  He was driving 50 in a 35 zone.  Hit and killed a guy.  Entered a guilty plea to involuntary manslaughter, got sentenced to 5 years probation with up to 20 years of prison hanging over his head if he violated.  A few months later he went and got himself a driver's license.  That was a violation and the judge shipped him.  After 8 months behind bars, theoretically facing another 19 plus years, he was transferred to an honor farm.  

From which he walked away.  In September.  1959.

He's been living in a trailer near Melbourne, Florida for 20, 30, maybe close to 40 years  (He was tracked down in West Virginia in 1975, but the authorities there wouldn't extradite him.)  At the end of a road.  Pretty much in the middle of nowhere.  Staying out of trouble.  Plays the guitar.  Hunts some.  Drove a truck for years.  Retired now and living on social security.  Known as William Cox.

Now they've got him.  No violence.  He fessed right up when they showed him a picture of this 23-year-old con and asked if he recognized the guy.

The plan is to bring him back to the Buckeye State and charge him with escape.  And of course there's the rest of that prison sentence (up to 20 years, you'll recall) still to serve.

Judge Kopf fielded a question the other day from a "trainee solicitor" about how to sentence someone who's going to be dead very shortly - perhaps even before he'll start serving his time.  What, exactly, is the point of locking up the physically helpless and soon-to-be-dead, she wondered.  It's a question worth exploring (one of these days, perhaps).  But that's not this question.

This question is different.  This question is what do we do about William Cox, who once was, and in some sense still is but in a larger sense surely is no longer, Frank Freshwaters?

There are, the courts say, three approved reasons for punishment.

• Specific deterrence (so you won't do it again)
• General deterrence (so other people won't do it)
• Retibution (the close sibling of revenge, differing mostly by sounding less bloodthirsty)

Where does any of that apply?

Ohio's sentencing law today (and of course Freshwaters/Cox's old sentence wasn't imposed under today's sentencing law, and if charged and convicted of escape it won't be under today's law, either) says that the primary purposes of sentencing are to protect the public and punish the offender.  And yeah, Freshwaters/Cox hasn't been formally punished for escape, and hasn't been fully (at least per the court's order back then) punished for killing that guy while speeding through Akron.

Still, real people in the real world don't often fit neatly into packages.

J.D. Gallop in USA Today tells of the past and the present.  And adds this:

Shirl Cheetham, 34, of Palm Bay said she had known Freshwaters — or William Cox as she knew him — for nearly 15 years. She's heard his jokes, listened to him play guitar and even went hunting with him. She also says the man her children call "Grandpa Will" was the best man at her 2012 wedding.
"He is just the sweetest man. ... I'm shell-shocked. After all this time, how he managed to keep from getting caught. He stayed out of trouble all this time," Cheetham, adding that she does not plan to tell her children about the arrest just yet. "I'm still trying to wrap my head around it."
Cheetham said Freshwaters attended West Melbourne Community Church from time to time and volunteered in a thrift store.
"This is someone who loved to laugh. I honestly think they should let him go," she said.

On the other hand, consequence.

Frank Freshwaters and William Cox

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.

Sigh.

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. 

Inflicting Justice

Yesterday, Gideon told the story of Cornelius "Mike" Anderson, currently spending 13 years in the embrace of the Missouri Department of Corrections for an armed robbery he participated in back in August 1999.  He was convicted and sentenced in 2000, so he should have gotten out a bit ago except for one thing.  An oopsie.

Missouri lost him.  As in, they didn't bother to come and get him, so he decided to turn his life around. Gideon tells the story.

Anderson, who filed appeals and remained out on bond, was never taken into custody to start serving his sentence when all his appeals were denied. In an interview with ‘This American Life‘, he says:

he saw it as a sign from God, so he decided to transform his life. He went to school, became a master carpenter, got married, built his home, opened several small businesses and had four children. Anderson volunteered at his church and coached his son’s football team.
. . .
Nine years went by, however, and no one ever put the pieces together. Meanwhile, Anderson remained in St. Louis, never changed his name, registered three businesses through the state, paid taxes, maintained a Missouri driver’s license, and got married at the courthouse. He did not attempt to hide his presence in any manner.

Ironically, the DOC only realized he wasn’t actually in custody when they started planning his release from said custody.

It was, of course, a total cock-up.  Jessica Lussenhop in the Riverfront Times last month.

As part of Anderson's final appeal in 2004, an attorney named Michael Gross appeared on Anderson's behalf in Judge Rauch's court. They were joined by prosecutor James Gregory to update her on the status of the case — Gross had just filed the brief with the first line that read, "Movant is not presently incarcerated."
"[Gross] said the prosecuting attorney jumped up in court and said, 'Oh no, Mr. Anderson. We checked this morning. He's in Fulton Correctional Facility,'" recalls Anderson. "And so my lawyer thought that I had been arrested then. A day or two later, I called him up to see how court went, and he was like, 'Wait a minute, you're not in custody?' And I said, 'No!'"
Gross declined to discuss Anderson's case in depth but confirmed that Gregory "popped up" in court claiming Anderson was already in prison.
"At the time I assumed that he had more current information than I did, because it had been several days since I talked to Cornealious," remembers Gross. "That didn't prove to be the case."

So there you have it.  Missouri is incompetent.  Anderson is not just rehabilitated, he's a valuable, functioning, responsible,  asset, to society.  Who they're locking up for the next 13 years because . . . .

Because he owes them those years, that chunk of his life.  Because he did a bad thing 13 years ago, and he has to be made to suffer.  After all, how else will he rehabilitate himself?  Oh, wait, the prisons in Missouri are run by the Department of corrections.

So let me take you now from Missouri to Ohio where our prisons are run not by the Department of Corrections  but by the Department of Rehabilitation and Corrections.   Which sounds pretty good, although our legislature has made plain that we have no interest in rehabilitation.  Here's section 2929.11 of the Ohio Revised Code, captioned "Purposes of felony sentencing."

(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.
(C) A court that imposes a sentence upon an offender for a felony shall not base the sentence upon the race, ethnic background, gender, or religion of the offender.

Notice that there's not one word about rehabilitation in there.  Oh, sure.  The vast majority of the people we lock up will eventually be released to again prey on suddenly become productive members of society - because that's what people just naturally become after years of.  Well consider the surprise of Warden Albert Gunderson of New York's Woodbourne Correctional Facility as reported in The Onion.

It just doesn’t seem possible that an inmate could live for a decade and a half in a completely dehumanizing environment in which violent felons were constantly on the verge of attacking or even killing him and not emerge an emotionally stable, productive member of society.

What's that you say?  The Onion is satire?  They make the news up?  Shit.

As I keep saying, grace and mercy are about us, not them.  But even if you think they need to be earned.

The right thing, the decent thing, the sensible thing, the humane thing, is for Missouri to say,

Gee, Anderson.  We're sorry.  We fucked up.  You've spent 13 years with a cloud hanging over your head, everyday knowing that your life could be totally fucked up in a moment.  Yet never trying to hide or escape.  You've demonstrated in that time that rehabilitation works.  You've become the sort of person we can be proud to have around.  Now, go back to your family and your life.  

Or, of course, Missouri can say,

OK Anderson.  We don't give a flying fuck about any of that shit.  Sure you're a fine guy now, but the asshole stuff you did 13 years ago requires that we treat you like pond scum, ruin your life and your family's, and learn that all we care about is pain and vengeance. Ain't no room for human decency here. This is about inflicting justice.  Bend over and spread 'em.

Missouri?

Never Forgive, Never Forget, Never Pretend It's Easy

It's not revenge, it's retribution.  Carefully parsed and calculated.  Based not on getting even but on payback.  Dispassionate, though driven by hatred.  Just as long as we're sure.  Really, really sure. Which we can be and if we're wrong, well, that's a small price to pay.

OK, I'm not being fair.

On the back cover, David Dow says that the "argument is one that any death penalty supporter will identify with, but more importantly, it's one any opponent must answer."  Dow also says of Robert Blecker that he "is probably the most articulate death penalty supporter around, and easily the most honest."  Allowing some hyperbole for what is, after all, a blurb (and one by someone who is specifically thanked in the acknowledgements as "my sometime public adversary, [who] gave me a model with his own moving memoir"), that may just be true.

In its simplest formulation, one he repeats with some regularity, in his book, The Death of Punishment: Searching for Justice Among the Worst of the Worst, Blecker has a single point.

The past counts.

To forget that, is to trivialize.  We praise, so must we blame.  We honor, so must we . . . .  Well, that's where it gets tricky.  The antonym of honor is something like revile.  But that's not Blecker's choice.  He chooses hate. And really, it all follows from that. 

It's a moral position.  Morality requires hatred of evil and, specifically, those who both do evil and are in fact evil.  Those who do the worst things and are themselves the worst people.  Morality requires that they be killed.  

It's about Justice with an uppercase J.  I've said before and repeatedly that I don't know what that is (though I can recognize injustice).  Becker's on a different plane. He knows what Justice is.  It's the cry of the dead for death in return.  And he can recognize it, at least some of the time, with absolute certainty.

"On every question there are two sides," the Sophists claimed and still do.  I knew better.  I had always known better.  Justice wasn't simply a matter of opinion.  Whatever "progressives" might proclaim, Adolph Hitler, Charles Manson, and Richard Speck were evil and deserved to die.  That was moral fact.

Justice demands payment in kind - well, no, that's not right.  It doesn't demand payment in kind or it would require, in some cases, lingering torture.  Justice demands quick but painful death - following a period of confinement as horrific as the 8th Amendment would allow.  Of course, if you start there, you end up there.

There may be a mistake.  Every effort should be made to avoid it.  Every possibility of error - both on guilt and on whether this or that Hitler or Manson wannabe is actually the worst of the worst who did the worst things - should be indulged.  No screw ups except those that are beyond human capacity to recognize as plausible.  But then?

Sometimes innocent persons must get hurt for the public good.  Sometimes we must reluctantly risk innocent lives for the sake of justice.

Which has the virtue at least of honesty.

It's easy to dismiss Blecker as a self-satisfied, egotistical prig who simply knows where we who oppose execution are deluded.  That's not wrong, but it's also not fair.  Blecker does what an honest thinker does.  He challenges himself.

Blecker confronts his own certainty, his own sense that the only thing that matters is what whoever it was did back then.  And so he tells at some length of his relationship with Daryl Holton, on death row in Tennessee for the murder of his four children.  

Holton is, at least in Becker's account, accepting.  He opposed efforts by his attorneys to fight his death sentence.  He deserved to die because the jury said so.  The law is what it is.  He insisted he was competent, insisted he should die - chose the electric chair rather than the gurney.  He was in charge, taking the responsibility the jury said was his.

Blecker interviewed him repeatedly, corresponded with him, argued with him. Tried again and again to get him to admit that he was a monster.  Or that he had remorse.  

Daryl looked up at me--looked me right in the eyes. "You're looking for remorse," he said quietly, "but you're not getting it."  The silence between us sunk in, as his words echoed and my resentment built.  "Why would  I express remorse to you? You have some illegitimate emotional investment in my children who you never met.  it's one thing to act from a civic sense of duty.  But your imagined emotional connection to them is unreal, unhealthy, and illegitimate.
. . . We sat and stared at each other.  I felt sorry for him.  Then I hated him.  Why would he not show remorse? Why did I need that?

Grudgingly, Blecker concluded that in many respects he liked the guy, that he was, ultimately, a friend. That left him with some ambivalence.  I mean, it's hard to believe that someone you've come to know and like and respect, to call a friend for godssake, should be killed.  Yet that's absolutely where he ended up.

Perhaps we did make a mistake by executing Daryl Holton.  It disturbs me deeply.  But in the end, it remains a price I'm willing to pay for justice.

The odd mistake, no matter how sure Blecker is.  Well, yeah, but omelets require broken eggs.  And it's not just executions.  Prisons for bad people should be hellholes where the horror is unrelieved.  But that would put prison guards at more risk, Blecker's told by a Warden.  His response?

Make life as unpleasant as you can.  Legally.  Even if you endanger your staff slightly more.

Justice is a harsh mistress. Morality is tough.  But then Abraham was prepared to kill his beloved son because his god told him to.

Daryl Holton's is far from the most horrific story Blecker tells.  He befriends Dr. Petit and spends time watching the trial of Joshua Komisarjevsky, cheering the death sentence but bemoaning his conviction that it's unlikely to be carried out.  He talks about Andres Behring Breivik, mass murderer who will serve only 21 years in prison - and those without being tortured.  (In fact, it's likely that Breivik will serve considerably more than 21 years - possibly the rest  of his life.  Blecker ignores the provision of Norwegian law that allows the sentence to be extended for 5-year intervals, repeatedly, should Breivik be considered still dangerous at the end of his sentence.)

And he goes to Germany to teach, a place he swore he'd never go because the Germans must never be forgiven for the holocaust.  But he goes, to teach the young of that non-capital-punishment nation that they should kill.  And teach he does.  But he also listens.  He listens, for instance, to Andrew Hammel who's also there teaching and whom he debates.

I personally think Breivik should be strung up from a tree," And Hammel candidly admitted in response. "I think he deserves to die--metaphysically," he continued.  "he's about the guiltiest criminal ever.  Only I don't think the state has a right to kill him.  [Applause] I just don't trust the state enough to do that.  It's really hard because Breivik is so heinous.  But we're not going to sink to his level  We protect his human dignity not for his sake but for our sake.  We treat him better than he deserves because of what it says about us as a society, about our ability to overcome these completely understandable and natural feelings of vengeance and hatred. 

Blecker understands the force and strength of Hammel's argument and rejects it.  We shouldn't "overcome those natural feelings of vengeance and hatred."  We should, he says, embrace them.

Blecker's is a serious book by a serious guy.  It deserves to be taken seriously.  But ultimately it needs to be understood not as an argument (and it is, frankly, weakest as an argument) but as a declaration of faith.  A faith that Blecker challenges, that he confronts, that he considers, but that he holds, well, faithfully.

In an Appendix he calls "Countering the Abolitionists: Their Arguments, Our Replies," Blecker responds, with varied success, to simplistic versions of arguments some (but by no means all) abolitionists offer.  It's at the end that we get to the nub.

10. IT'S JUST WRONG
Argue all you like, we're still sure.

Countering the ClaimAt last we reach common ground.  We too feel just as certain.

As I say, Blecker's isn't really an argument.  His insistence that he's after retribution rather than revenge?  He never explains how they differ.  His insistence that Justice must be inflicted, albeit carefully?  Because it must.  He just knows.

We must punish, not merely protect.  We must never forgive, never forget, never let up.

If you read the comments to the news stories on how Ohio seemingly botched the execution of Dennis McGuire last week, you'll see the hatred and vituperation:  Who cares about that piece of shit? the commenters write.  He raped and murdered.  He should suffer.

I said, when I wrote about the execution,

If that's justice, I don't want any part of it.

Blecker cares about that piece of shit.  And still he wants that sort of justice, even when it's hard. That's no small thing, really.  It's worthy of some respect whether you agree or not.

The Fear of Too Much Compassion

They charged him with murder.  Again.  Because 41 years in solitary wasn't enough. 

Herman Wallace was one of the Angola 3.  Black Panthers at the Louisiana prison known as Angola, serving time for armed robbery, they worked to improve conditions at Angola. They helped organize petitions and hunger strikes to protest segregation within the prison, and to end systematic rape and violence.  Wallace helped other inmates learn to read and write.  He helped them get their GEDs.  He helped them with their legal briefs.

In 1972, the three were charged with the murder of Brent Miller, a guard at the prison.  There's substantial reason to doubt whether they did it, but that's pretty much a moot point now, at least for Wallace.  He was convicted and sentenced to life.  They put him in solitary.  Where he stayed for 41 years.

Wednesday, he was freed.  United States District Judge Brian Jackson ordered his release because the 1972 indictment charging him with the murder was brought by a grand jury that from which women were systematically and illegally excluded.  So Judge Jackson said to let Wallace go, and the Warden at Angola said, in essence,

Fuck you.

To which the judge pointed out that he had the bigger dick.

Let him out, or I'll lock you up.

Which the warden did.  And so the 71 year old Herman Wallace was freed.  To go into hospice care at the home of friends.  Because during his years in solitary, years when they mostly didn't bother checking on his medical condition, well, his liver cancer was well advanced by the time they discovered it.

He died there Thursday night.  Peacefully.  In his sleep.  Lauren McGaughy at NOLA.com and the Times Picayune:

"He passed away in my home," said Ashley Wennerstrom, a long-time friend and program director at Tulane's School of Medicine. "He was surrounded by friends and family and love in his last few days."

But this isn't just a story of love and warmth.  It's not just a feel-good tale of redemption.  This is a story to piss you off.  As much as it's the story of Herman Wallace, it's also the story of Inspector Javert District Attorney Sam D'Aquilla.  Who had urged the warden to keep Wallace in prison after Judge Jackson ordered his release.  And who obtained a new indictment against him Thursday afternon, again charging him with Miller's murder.  McGaughy again.

D'Aquilla maintained his stance that Wallace was guilty of Miller's murder, however, saying the federal judge only overturned the grand jury indictment and not his 1974 conviction.

Nicole Flatow at ThinkProgress.org has more.

“I think he’s a murderer,” he told ThinkProgress. “A federal judge overturned the conviction because of a flaw in the indictment, not a flaw in the conviction.”

. . . 
When asked whether D’Aquilla considered the value of expending resources on a case that likely would never see Wallace’s return to jail, D’Aquilla said he had.
“I actually determined that he was sentenced to life and he didn’t fulfill his sentence,” he said. “It’s not fair to have him not in jail. His medical condition or something like that didn’t nullify the actions that he did.”
He added, “I’m a prosecutor. This is what we do.”

D'Aquilla told Flatow that he intended to have Wallace arrested this morning.  But it was too late. 

Of course, you shouldn't think D'Aquilla was hard hearted.  He figured the trial wouldn't occur until at least December.  By which time, he expected Wallace would be dead. So he'd have died legally innocent.  Incarcerated, of course, but legally innocent.  McGaughy explains.

But D'Aquilla denied the move was political, saying only "we just had concerns about compassion issues." 

Yeah.  Too much damn compassion. 

Look, I don't know what happened.  Neither do you.  (And neither, by the way, does Sam Aquilla.  The evidence against Wallace appears to be seriously problematic, but that doesn't mean he didn't do it.  Maybe he did.  Maybe not.   Frankly, I don't much care.

41 years in solitary while getting sicker and sicker and then release just days before he died? That's plenty of punishment in my book.  Reindicting him?  To what possible end?

Oh, yeah.  Because it's more important that people keep paying and paying and paying than that we show any mercy.  Because the good people of Louisiana know that enough is never enough and that more pain can always be inflicted.  And should be.  Because it's better to err on the side of cruelty than compassion.

For the rest of us though, there's this.

Among his last words were, "I am free. I am free," said Wallace's counsel, who added he had "no hate in his heart...despite the cruelty (he) was shown."

Herman Wallace.  Dead at 71.  Free.    

All Power to the Condemned

I'm an atheist, but I've written a lot about mercy, which I sometimes call "an act of grace," in this blog.  That's OK.  Mercy doesn't require a deity.  Nor does grace.  They're gifts, things to be granted.

They're about the giver, not the recipient, I say.

They have nothing to do with desert, I say.

They can't be earned, I say.

And although I don't exactly say it often enough, though I maybe haven't precisely said it here at all, they ennoble those who give them.

I need to talk here about John Kitzhaber, about Timothy Alexander who mostly agrees with him, and with Gary Haugen who disagrees vehemently.

I need to talk about grace and mercy and, sadly, about the law (though maybe this time it's Law with the uppercase L).  And I need to talk about the Rule of Law and the Law of Rule and about who's in charge here.

None of these things are new to this blawg (except Timothy Alexander, and he's just a functionary really, though a vital one in this case, and one of a sort we see either too often or not often enough, depending on the day and on your point of view).

Let me begin with Kitzhaber and Haugen - two men about whom I've written before.  Here they are, Kitzhaber on the left for esthetic not political reasons.

They are, intertwined, inescapably bound together. Maybe the right image is of them holding hands and swaying in a macabre tango. Perhaps it's a tug of war, yanking ends not of a simple rope but of a noose. Really, I don't know that there's a need to get the imagery just right until it's time for the funeral elegy. Or the paean to life.

 

John Kitzhaber is the Governor of Oregon.  Gary Haugen is on death row there.  

Haugen was scheduled to be killed until Kitzhaber stepped in.  He'd overseen executions before but says he will not do it again.  Nobody, he says, will be executed here as long as I am Governor.  Our law sucks.  We only kill volunteers, which is insane.  I'm giving him a reprieve until I am no longer Governor.  In the meantime, maybe the legislature will fix this abomination. 

Haugen will have none of that.  He wants to be killed. Insists on being killed.  You can't keep me alive, dammit, he says.  I have rights.  I demand to be killed.  Now. And I have a right to be killed.  You want to give me a reprieve.  I refuse it.  I spit it out.  Fuck you.

As I say, I've written about this apache dance (I'm still working on the imagery) before.  (See here and here.) 

Naturally, they're now in court, have been for a bit.

Kitzhaber says he has an absolute right, under Oregon law, to grant a reprieve.  It's his call.  Haugen has no say.  Haugen says that's bullshit.  Kitzhaber can grant all he wants, but I have to accept before it counts, and I don't. 

And so we come to the functionary, the Honorable Timothy P. Alexander, Senior Circuit Judge sitting in the Circuit Court of the State of Oregon for the Third Judicial District.  (Can't find a picture for you of someone who's definitely he.)  Yesterday, he issued his decision.  It's an unenthusiastic but ringing endorsement of Haugen's right to make Oregon murder him.

The unenthusiastic part is dicta, the filler that judges toss into their opinions.  Technically, dicta is whatever in a court's opinion isn't a formal holding.  (This is the rule and here's how it is to be applied.) Sometimes it's important, has real legal or political or even practical consequence.  Other times it's blather.  Occasionally, it's the words of a judge bemoaning that messy obligation to obey the Law (uppercase) even if he hates it.  It's that last thing Alexander was doing when he wrote this.

I have been personally involved with death penalty litigation for more than 40 years, acting as prosecuting attorney, defense attorney, appellate attorney, and trial judge. My decision in this declaratory judgment case is not intended to be a criticism of Governor Kitzhaber or the views he has expressed in his statement accompanying the reprieve he has offered to Mr. Haugen. In fact, I agree with many of the concerns expressed by the governor, and share his hope that the legislature will be receptive to modifying and improving Oregon laws regarding sentencing for Aggravated Murder. Many Oregon judges with experience presiding over death penalty cases would concur that the current law requires spending extraordinary sums of tax dollars that could be better used for other purposes to enforce a system that rarely if ever results in executions.

However, consistent with the resolution of every other case, I am required to set aside my personal views and decide t his case on its merits and the law.

You know from that "however" at the beginning of the second paragraph I quoted how this is going to turn out.

Here's the short of it.  Governors have absolute authority to grant mercy, short term as in reprieves or permanently as in commutations.  And the people to whom they grant that mercy have the absolute right to say 

Fuck no.  I ain't taking it.

And to make that stick.

Mercy, it seems (and it turns out that this used to be the position of the US Supreme Court on the constitutional power of the President, too, but it is no longer), is not so much a grant of grace but an offer of a contract.  Perhaps subject to negotiation.  That's Oregon Law, or at least it is until higher Oregon courts speak to it.  The Law in your jurisdiction (or mine) may vary.

So here we have a judge forcing himself to adhere to the Rule of Law and ignore his predilections.  Good for him.  That's what we want judges to do.

And what he concludes is that the Rule of Law, the rule that gives the Governor absolute authority to grant mercy, is actually trumped by the power to refuse it.  So that, in Oregon at least, mercy isn't about the giver at all.  It's about the willingness of the grantee.

That's not mercy as I understand it.  It's certainly not the heritage of the divine right of kings.  Nor is it any religious conception I'm aware of.

God:  Welcome to the Kingdom of Heaven.
Dead Guy: Fuck no.  I'm not staying and you can't make me.
God: Actually, I can.

Except in Oregon.

Where the inmate gets to choose his punishment.

And where the right to suicide by prison guard is, at least for the moment, inviolate.

Haugen v Kitzhaber 1st ruling

Bad Ideas

They still call it the Ohio Department of Rehabilitation and Correction.  And rehabilitation remains, in Ohio, one of the things that courts are supposed to take into account if necessary in imposing sentences.  But neither rehabilitation nor correction is an actual "purpose" of sentencing here.  Instead sentences are to - hell, I'll just quote the statute:

(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.

See, that rehabilitation and correction thing - not so much.

And even though most of them are still formally named the somethingorother Correctional Facility, we don't think of them much as penitentiaries (places for penitents) but as prisons.  They're warehouses.

Yesterday, the unanimous Supreme Court said (Tapia v. United States) that federal sentences, more precisely federal prison sentences, should have no relationship to rehabilitation.  That wasn't necessarily the view of all the Justices.  We don't know what they think individually.  They were channeling Congress.

Section 3582(a), the provision at issue here, specifies the “factors to be considered” when a court orders imprisonment. That section provides:

“The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment isto be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

A similar provision addresses the Sentencing Commissionin its capacity as author of the Sentencing Guidelines. The SRA instructs the Commission to:

“insure that the guidelines reflect the inappropriate-ness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or pro-viding the defendant with needed educational or voca-tional training, medical care, or other correctional treatment.” 28 U. S. C. §994(k).

Which is really about all you need to know.

The law was different.  The idea was that because nearly everyone sent to prison would someday be released, a major purpose of prison sentences was rehabilitation.  That was the point behind indeterminate sentences and letting the parole board decide when someone was safe to be released. 

But then we changed our minds.  The feds did it through the Sentencing Guidelines.  Ohio didn't adopt the same sort of guideline system, but it had the same idea.  Forget that rehabilitation shit.  If prisons want to work at that, fine, but we don't care and don't believe in it.

We just want to punish.

Lock 'em up.

Throw away the key.

Warehouse them.

Except, you know, most prisoners are still released.  It's just that their release bears no longer even a theoretical relationship to whether they're rehabilitated.

And that's how we want it.

But then, we're really stupid.

BECAUSE WE WANTED TO: The Raping the System Edition

 Richard Rost, a registered sex offender, once lived within 1,000 feet of a school.  In Ohio, that's not allowed.  He'd lived there since long before it was forbidden, though.  The remedy, under Ohio law, has been for the prosecutor to bring an action to evict him.

Toledo took a different approach.  The City decided to charge him with the crime of maintaining a nuisance.  Essentially, they turned what should have been a simple eviction action into a criminal offense.

Toledo actually did that for a bunch of people.  Most eventually entered pleas, maybe paid a fine, and moved away.  Rost decided to fight it.

He filed a motion to dismiss the case explaining that for a whole bunch of reasons the residency restriction was unconstitutional and was, in any event, improper as applied to him because he'd lived there before there was a residency restriction. 

At one point, the city planned to dismiss the case against Rost.  Then they changed their mind.  A federal court ruled that the residency restrictions can't be applied to people who owned their homes before the law took effect.  While the case doddered along in Municipal Court, the city tore down the school.  They said they planned to build another one on the site, but they haven't actually done that. The Municipal Court Judge said none of that mattered.  He denied the motion to dismiss.

Guilty!

So here's Rost, convicted of a crime for, in essence, living near where a school once existed and might someday again exist.  Was he a danger to a child?  To anyone?  There's no evidence he was, no indication at all.  Did the law really apply to him?  Seemed not.  Didn't matter.

Guilty!

On to the court of appeals.  

Oral argument was in early November.  It's been almost six months.  This morning the court ruled.

Reversed.  There was no crime.

That's good for Rost, of course.  But it raises a question that really ought to be addressed.

Why in god's name did the city pursue this turkey of a case?  If they were looking for a test, trying to see if they could get away with it, you'd think they'd take up the best case they could find, not the worst.  You know, go after a dangerous guy who moved near a school that actually existed.

Didn't do that.

Was it an exercise of pure hubris?  Did they have so much invested in hating this guy (for no apparent reason) that they didn't care about whether what they were doing was simply wasting taxpayer dollars for the sheer embarrassment of being reversed?

Gideon glommed onto the story of Tonya Craft who's being prosecuted for a sex offense that, it seems likely, didn't occur.  As we follow the tale (and please, do go and read about the case - and take the time to read more, going through the links Gideon provides) what's clear is that the prosecutor and judge are simply hurling stones at Craft knowing that any conviction they obtain will be reversed.

Why bother?

The cases aren't comparable.  Craft faces years in prison before the damage of a conviction can be undone.  And she faces an eternity of suffering just from having been charged.  Rost gets off far easier.  But still.

Except, see, it's about sex.

But you know, it's not.  

They say that rape isn't really about sex.  It's about power.

Same with these cases.

DISCLOSURE: Through the ACLU, I was one of Rost's lawyers on the appeal.

On Hitting Back First

The manhunt apparently continues.

Police spent hours, it seems, negotiating with an empty house in the effort to capture Maurice Clemmons, the man we're told is a suspect in what the press reports as the seemingly purposeful albeit unexplained shooting to death of four police officers in a coffee shop in Lakewood, Washington. (All those qualifications emphasize that I don't actually know any of this. It's all gathered from press reports which may or may not be accurate.)

Scott Greenfield, following up on the week's worth of discussion of what we do and who we are (latest entries here and here and here) reminds everyone that if Clemmons is captured alive, it is a criminal defense lawyer who will be standing beside him and defending him. Because that's what we do.

And when that lawyer stands beside Clemmons, we'll be asking the hard question: What now?

Let me be very clear: I'm not a Washington lawyer. I don't have a clue what the range of homicide and other offenses could be charged against Clemmons. I'm also not an Arkansas lawyer, and although press reports suggest that he may be wanted on an Arkansas warrant, I don't know anything about that, either. I could do some research to try and dig out the answers to these things, but I'd probably miss something important, or misunderstand something that seems clear but is in fact counter-intuitive. Law is like that, filled with small but important traps for the ignorant. It's why people, particularly people facing state charges, need lawyers who know the relevant local law.

Anyway, since I don't know the local law, I'm not going to try and explain how it works or what might happen under it. But there are larger questions we can address.

The act, if the press reports are even close to right, is horrific. Clemmons is alleged to have gunned down four police officers who were sitting in a coffee shop doing some computer work before their shift began. No preliminaries. No robbery. Just cold-blooded execution. And, it's said, Clemmons has a lengthy criminal history including other crimes of violence.

Complicating things still more is the spectre of Willie Horton. Clemmons, it seems was paroled in Arkansas after his sentence was commuted by then-Governor Huckabee. And it seems Clemmons was out on bond from charges that he assaulted a police officer and sexually molested a child.

So we can count on three things. Renewed calls for the death penalty, fewer people getting their sentences commuted, restrictions on bond.

The cries for the death penalty will be loudest. Indeed, they're already coming from bloggers and in comments to newspaper stories. So there's this:

Huckabee may not be the only individual guilty here and neither is Arkansas the only state. But why we keep returning this kind of scum to the street is a crime all by itself. They say the Constitution isn't a suicide pact. Well, neither should be trumped up Constitutional Rights. Degenerates like Maurice Clemmons should be shot in the head and left for dead whenever they get caught.

And this:

This is exactly what happens when you have a Liberal gov who won't follow the law and allow the death penalty to do its job. Criminals have no fear. I put this squarely on the Liberal gov's desk. She has emboldened criminals and flooded our society with early release. In 5 years, she has not sought one piece of legislation that toughens our laws. Instead by refusing to stand behind the death penalty she has put courageous crime fighters in harm's way.

And this:

They need to track this guy down and kill him dead. If he goes to prison he'll just be a hero living a pretty decent life watching tv, roof over his head and free food.

But it's never really that simple.

Apparently Clemmons was delusional. CNN says that a report from a sheriff's deputy indicated that Clemmons "believed he was Jesus and could fly."

Huckabee got it mostly right. A statement on his Web site, notes that Clemmons has a history of criminal acts but also psychoses and says that if Clemmons is responsible for these acts,

[I]t will be the result of a series of failures in the criminal justice system.

(Our social safety net systems, too, though good Republican that he is, Huckabee doesn't want to go there.)

Of course, this is but the latest. There was the Thanksgiving day massacre in Jupiter, Florida. There was the Halloween killing of a Seattle police officer and the firebombing of four police cars. And of course there's the serial rape-killer in Cleveland. There's a never-ending stream of these things.

Let's face it. Ours is a violent society. We're not going to end that by executing a few more people or keeping non-violent drug offenders behind bars or denying bond or having the police check on sex offenders more frequently. The tough on crime stuff hasn't worked and doesn't work.

I'm not saying we shouldn't have criminal laws or that there should be no consequence for those responsible for horrific acts of violence (or for those responsible for relatively minor offenses, for that matter). What I am saying is that the knee-jerk response to these crimes -

Kill everyone, and lock the rest up forever -

is not fruitful. Criminal sanctions won't end violence any more than gun control will. That's not to say it hasn't a place. But it's to recognize a reality.

Horrific crimes lead to bad law pretty much always. Just ask the vicitms of Megan's and Jessica's laws and the Adam Walsh Act. It's the double whammy: They don't achieve their inteded aim (keeping us safer) and they serve as distractions from the real business of doing what will keep us safer and what will make it easier actually to nab the folks who hurt others.

Let's go back and look again at Clemmons and his psychoses. What's an appropriate punishment for someone who acts from delusion? How do we hold him accountable for what he didn't understand or couldn't control? What will we accomplish by spending the millions (and it will cost that much before all is said and done) to try to kill him when we can achieve as much, for far less money, by confining him for the rest of his life?

Will we be better people? More moral? More noble shining examples of how to live? So we'll have hit back first. Good on us.

See, we have it backwards. We react viscerally to the horrific. Something must be done. So we do something. Anything.

What we should be doing is pausing. Rather than energizing, the horrific should stop us in our tracks. How? We should ask. Why? Sober reflection and analysis. We don't do that. And it likely won't happen now. Which is a damn shame.

Pause and consider:

• Sgt. Mark Renninger
• Officer Ronald Owen
• Officer Tina Griswold
• Officer Greg Richards

I don't know them. I don't know anything much about them. Were they good cops? I have no reason to doubt it. In their deaths, we'd do well to assume they were.

So do we honor their memory with more killing, more punishment, more violence? Or do we honor them with serious efforts at treatment and prevention?

He struck first, they say. Perhaps. But that's a problem, not an invitation.