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?

The Parole Board Speaks: An Ustaszewski Update

The other day I wrote about Michael Ustaszewski, up for parole from the 1977 murder of Henry Cordle at the Y in downtown Toledo.  It's a murder he has spent 35 years denying he committed, denials that might or might not be true.

Actually, parole was in the works for him until members of Mr. Cordle's family and the county prosecutor objected.  The objection led to a full hearing before the Parole Board yesterday. 

Jennifer Feehan, in today's Blade, quotes Ian Engish, Assistant Lucas County Prosecutor who spoke at the hearing.

While state statistics indicate inmates convicted of aggravated murder have been paroled in the last decade after serving 25 to 27 years, Mr. English said in his mind the 35 years Ustaszewski has served isn’t enough.

“When you murder someone, you should spend your life in prison. Period,” he said. “Thirty-five years is a long time for Michael, but the victim is dead forever. He doesn’t come back and start enjoying his life, enjoying his grandchildren, hanging out with his great-grandchildren.” 

One of Mr. Cordle's grandchildren, commenting on my post, wrote
MR CORDLE WAS MY GRANFATHER AND HE DID NOT DESERVE TO DIE THAT HORRIBLE DEATH. WHETHER HE ACTUALLY STABBED HIM OR NOT, HE LEFT HIM THERE TO BLEED TO DEATH. THAT IS MURDER!!! I AM 65 YEARS OLD AND TRY TO LET GOD HANDLE THIS, BUT TODAY I AM HURTING AND AS FAR AS I AM CONCERN HE NEEDS TO STAY IN PRISON.
The Parole Board disagreed.  After the hearing, the Board granted Parole.  Feehan again.

JoEllen Smith, spokesman for the Ohio Department of Rehabilitation and Correction, said Ustaszewski would be released from Marion Correctional Institution on April 22, assuming his plans for housing and placement are approved by then.

The board, she said, cited Ustaszewski’s “assessed low risk, appropriate programming to address his risk, positive institutional adjustment, and supportive release plan” in granting parole.

If plans for housing and placement are approved (Parole is not without strings), Ustaszewski will be released on April 22.

If You Didn't Kill Before, How Can You Kill Again?

He has done nothing to address the mental deficiencies that put him into prison.  He can't.  He won't admit he's done wrong.  He's defective. He's a killer.

That's Ian English, an assistant Lucas County prosecutor quoted by Blade reporter Jennifer Feehan about Michael Ustaszewski, convicted of a murder he claims (and has always claimed) to have had nothing to do with. 

The crime was, of course, horrible.  74-year-old Henry Cordle was apparently a good man, a widower with 6 children.  Feehan says he was staying at the Y in downtown Toledo while work was being done on his house because he didn't want to burden his children by staying with one of them.

Michael Morris, then 19, perhaps along with Ustaszewski, went to his room to rob him.  Cordle ended up dead.  He'd been stabbed ("sliced and slashed," in Ian's words to Feehan) 37 times.  None of the wounds was fatal.  He bled to death.  Morris said that Ustaszewski was the killer.  They were both convicted of murder and sentenced to life in prison, both eligible for parole after 15 years.  Both remain in prison.

Morris has his next parole hearing in about 18 months.  In October, after reviewing prison records and meeting with Ustaszewski, the Parole Board recommended that be paroled.  But the prosecutor's office and some surviving members of Cordle's family objected,  so the Board will hold a full hearing.

Mr. English said Ustaszewski has offered no sympathy and expressed no remorse, nor has he admitted guilt.  If Ustaszewski is released, he will kill again, the assistant prosecutor said unequivocally.

He'll kill again if he's released.  

I suppose that's possible, though whether he'll kill again depends a whole lot on whether he killed before.  And whether he'll kill at all if he's released?  Ian's been a prosecutor for a number of years now, but he's not a seer.  Nor is he a psychologist or psychiatrist.  And even the shrinks don't mostly know what they're talking about when they make predictions on future dangerousness.

The truth is that people change.  Kids of 17 and adults of 53, they're not the same people.  35 years in prison changes people, too.  It's not always change for the better, of course, but that's a different point.  Whoever Michael Ustaszewski is now, he's a different person than he was then.  And that's true whether he killed Henry Cordle or not. 

Ustaszewski, who was a juvenile deliquent and had done time before Cordle was killed told Feehan that Ian's prediction is just wrong.

He really doesn’t know me. Thirty-five years is a long time from being a juvenile, and I believe I’ve grown up a whole lot, and my thinking is not the same. My mind-set is totally the opposite of what it used to be.

I have no idea whether Ustaszewski is factually guilty.  I don't know what happened that day in August 1977 when Henry Cordle was murdered.  I don't whether Ustaszewski ever killed anyone or is likely ever to kill anyone in the future.  I do know, though, something about pop nostrums.

I know that the idea that you can predict what someone will do after the age of 53 based on whether he admits or expresses remorse for something he denies having done when he was 17 is a fantasy. Yet that's the prosecutor's position.  Oh, and that the crime was really awful.

The family's is different.  For them it's not about danger.  It's about, well, you can call it what you want.  Feehan again.

Mr. Cordle’s six children have all since died. Shannon Orosco, 41, said she and her older sister will travel Thursday to Columbus on behalf of their mother, and more importantly for their grandfather, who died in such a horrible way. She said she does not think 35 years is enough for the man convicted of his murder. No amount of time is enough.

The Parole Board claims its only interest is public safety which would make Orosco's position irrelevant.  It's not.  Oh, I'm not saying the Board doesn't care about public safety.  Convince them you're harmless and you've gone a long way toward getting a recommendation of release.  But you've also got to convince them you've paid sufficiently for your crime.  

“He murdered somebody. He does not deserve to walk out through [the] gates,” Ms. Orosco said.

Which has nothing to do with public safety but has an awful lot to do with how the Board will rule.  Just ask Bret Vinocur.  Feehan did.

Bret Vinocur, a victims’ advocate who runs the Web site blockparole.com, routinely works with victims’ families to keep their loved ones’ killers in prison.

He said he took a look at Ustaszewski’s case in October, as he does with most aggravated murder cases that come before the Ohio Parole Board. He decided it wasn’t one he could put his heart into because he didn’t feel absolutely certain of Ustaszewski’s guilt.

“Based on the facts of the crime, and what I’ve read and the research I’ve done, this is a case where I’m going to put my faith in the parole board to make the right decision,” Mr. Vinocur said. “This is one of the rare cases we’re not taking a position on.”

Notice it's not about danger.  If he was sure Ustaszewski did it, he'd be fighting to keep him in prison. Instead, he's hoping the Board will do the right thing.  Which is?

Hmm? 

Here's how it works.  Ustaszewski has a sentence of 15 years to life.  The Parole Board gets to decide how much of that time he should serve.  He was first eligible for parole when he'd served considerably fewer than 15 years.  Because he'd been convicted of murder, it was a given that he would be denied.  Not because he was dangerous.  That wasn't even a serious consideration.  Because the Board doesn't think even 15 years is a long enough for murder.  After that?  

According to the Ohio Department of Rehabilitation and Correction, the average prison stay for Ohioans convicted of aggravated murder ranged from 25 years to 27 years for inmates paroled between 2000 and 2010.

Of course, most of them fess up at some point.  Factually guilty or not, they know that an admission can be a ticket home.  Some folks, though, out of stubborness, pride, stupidity, whatever, won't board that bus.  Sometimes, of course, it's out of honesty.  You know, they really are innocent and just won't lie about it.

When asked what he’d say if the parole board told him he could go free today if he admitted his guilt, he didn't hesitate. “I’m not guilty,” he said quietly.

Which can be something of a problem.

The Parole Board hearing is scheduled for this Thursday.

H/t M. S. Embser-Herbert

Rehabilitation Isn't an Empty Word

The last post was about the prosecutor who's bound and determined to keep Doug Pride in prison for a murder he didn't commit.

Year after year she argued that he shouldn't be allowed to test the evidence that could prove him innocent.  After the Ohio Supreme Court agreed to hear the case and ruled in Pride's favor she still managed to drag it out.  But ultimately, the testing was done.  Not him.

And not good enough for the prosecutor.  After all, the jury said he was guilty.  Why should it matter that they were wrong?  Just because the evidence proves it? Because the science makes it clear?  So what if the jury didn't know?  What difference should that make?

Sigh.

It doesn't have to be that way.

I've written about prosecutors doing the right thing before.  Most recently, there was Gary van Brocklin who put Jeff Eley on death row and then, with a powerful letter in the Columbus Dispatch, helped convince Governor Kasich to override the Parole Board's recommendation and grant him clemency.*

Then there was AUSA Jesse Barrett who looked at the evidence, determined that he'd charged an innocent man with a crime, and promptly moved to have the charges dismissed.

And Nicole Habersang who tried, with less than raging success, to dismiss the charges against Virgil Richardson because they were bullshit but the judge said that the interests of justice required the  continued prosecution of a man the state believed innocent.

And there were the prosecutors in Pinal and Yavapai Counties who bravely (really, I mean that) condemned Joe 'n' Andy's abuse of power in Maricopa.

And really, there are others.  Lots in the scheme of things.  For instance, there's John Piasecki and Derek Champagne from Franklin County, New York.

It was Piasecki who prosecuted Noah Lazore in 1976.  John Caher gave some details in the New York Law Journal just over a week ago.

Records show that Lazore, a Mohawk Indian, committed a grisly throat-slashing/multiple stabbing murder during a robbery at Akwesasne, a reservation in Northern New York and southern Canada, where both he and his 69-year-old victim lived.
Lazore pleaded guilty to second-degree murder and then-Franklin County Judge Ellsworth Lawrence imposed a sentence of 20 years to life, five years less than the maximum. The defendant had no prior felony conviction and was a 16-year-old high school dropout and alcoholic who had largely been raised by an older sister until she was killed by a drunken driver, records show.

Lazore was first eligible for parole in 1996.  Denied.  Denied again in 1998, 2000, 2002, 2004, 2006, 2008, and 2010.  Really, it's not surprising.  Vicious killers don't routinely get released, regardless of what the public believes.

But Lazore's an interesting case.  He got his GED while in prison.  And two associate's degrees.  And a BA with honors.  He has a spotty institutional record if you look at all 36 years he's been in prison, but he's not been in any trouble since 2007, and that time his punishment for the infraction was suspended. He's successfully completed programs in substance abuse and aggression control and has learned several trades.  A required risk analysis shows him 

at low risk of felony violence, arrest and absconding.

Sure.

But he's a vicious killer.

Which brings me back to Piasecki.  See, in 2002 - and every two years since - the guy who put Lazore in prison for life has written the Parole Board urging his release.  Caher again.

Piasecki started supporting Lazore's parole bid in 2002, when he sent a letter to the board saying it is "evident that Mr. Lazore has used his period of incarceration as productively as could possibly be done."
He noted in a letter to the board that at the time of the crime the inmate was "16 years of age, clearly immature, with a history of substance abuse who grew up in a reservation environment which at the time was on the lower end of the Third World."
Every two years, Piasecki sends a letter to the parole board urging Lazore's release. And every two years, he is rejected.
Piasecki can't figure it out.
"The guy has paid his debt to society," Piasecki who now has a private practice in Malone, said in an interview. He said he has no idea why Lazore has repeatedly been denied parole.
In his most recent letter on Lazore's behalf, Piasecki noted that the Akwesasne community is "ready, willing and able to receive Noah Lazore and to integrate him" into the reservation society.
Piasecki said Lazore can be an asset to his American Indian community, offering "the benefits of his experience to discourage vulnerable individuals from pursuing activity outside the boundaries of the law by providing active, affirmative guidance and counseling."

Somehow, when the parole panel looked at Lazore in 2010 . . .  well, here's the interview and decision, though you can skip ahead if you like to where I quote the bottom line.

Noah Lazore 2010 interview & decision

After a careful review of your record, your personal interview, and due deiberation, it is the determination of this Panel that if released at this time there is a reasonable probability that you would not live at liberty without violating the law, and your release at this time is incompatible with the welfare and safety of the community and will so deprecate the seriousness of the crime as to undermine respect for the law.

Oh.

This year, there was another letter.  Derek Champagne has been Franklin County District Attorney for 14 years.  Caher:

"I pulled the file," Champagne said. "I went through the whole file. I had my staff look at the file. We went through everything we have from the commission of the crime. It was a brutal crime, but so much has been developed and so much information has come out about the [adolescent brain]. He has gotten every degree and done every single thing he can. I was convinced that perhaps he is an appropriate candidate to be paroled into the community, to give him a chance."
In a letter to the parole board, Champagne cited "Lazore's significant academic, vocational and therapeutic successes."

There were only two people on the panel that interviewed in July this year, and they couldn't agree about what to do with him.  So there's no decision, just a transcript of the interview.

Noah Lazore 2012 interview & decision

In New York, a tie means a do-over. So on July 31, a full panel interviewed Lazore again.  And voted 2-1 to grant parole.  The interview and decision doesn't seem to be on-line yet, but Caher has the news.

After a two-commissioner panel split last month on whether to release Lazore, he was granted a new interview on July 31 before commissioners Ellen Alexander, Christina Hernandez and Michael Hagler. Alexander and Hernandez voted for release and Hagler dissented in a determination released yesterday. Lazore is slated for release once officials conduct a field investigation and approve a place for him to live. Lazore, a Mohawk Indian who committed the crime when he was 16, has expressed an intent to return to the Akwesasne reservation in northern New York/southern Canada.

Let's give credit, a lot of credit, to Piasecki and Champagne.  They didn't have to do it.  They chose to.

Not because he's innocent, not because they made a mistake back in '76.  He's not.  Piasecki didn't.

No, it's because at 53 Noah Lazore isn't the same person he was at 16. Because he took all those classes and did all that work. Because he's an honors graduate of the State University of New York at New Palz. 

And because, dammit, it was the right thing for a present and a former prosecutor to do.  You know, act with integrity.  Seek justice (whatever it might be).

Good for them.

Wanna come to Ohio, guys?

Oh, and Noah, good luck!

-----------------

*Thinking about it now, I was less charitable to van Brocklin than I should have been.  Yes, it would have been better had he not gone after Eley as he did.  But he had the integrity and strength of character to reconsider, and then he took a strong stand.  Good for him.

Because the Guy We Want To Kill Can't Be Found

Kenneth Smith, you'll recall if you read this post from a month ago, has had his larynx removed due to cancer since he was put on death row in Ohio.  He speaks now through an artificial voice box.  When they kill him in a couple of weeks, they plan to leave one arm free (usually they strap both down) so that he'll be able to use that voice box to say his last words.

I don't know what those words will be, though some reporter will likely either quote or summarize them.

I do know what he told the parole board though, when they interviewed him by videoconference.  I know because they told us in the report they issued on Friday.

The applicant told the Board that he was truly sorry for his crimes and that he takes full responsibility for his actions that led to the deaths of Lewis and Ruth Ray.  The applicant stated he is asking for clemency for his family, his kids and his church because his life has meaning to them.  He is requesting clemency in the form of a commutation to life without parole.  The applicant explained that he has two children, a son and a daughter, and one grandchild.  He related that he has become a better person in the last 16 years, has stayed out of trouble, and has joined the Catholic Church where he is an active member.

The Parole Board's response, and this time I'm paraphrasing from their report, was a unanimous

Big whoop.  Who gives a shit?

Smith was 30 when he was sent to death row.  He's 45 now.  He had a substantial criminal history before he committed the crimes that sent him to the row.  In the 15 plus years that he's been there, the Board report indicates, he

has never been placed in Disciplinary Control nor has he been cited with any conduct reports.

Without going back and reading all the prior clemency reports, I think it's likely that he's the first they've said that about.

Big whoop.  Who gives a shit?

Smith's siblings and children told the Board that he's important to them, that he helps them.

Big whoop.  Who gives a shit?

His priest talked of his conversion and his spiritual growth.

During their time together, the applicant was baptized and confirmed in the Catholic faith.  He became very involved in the weekly masses and has become very spiritual.  Father Borgia stated that when the applicant prays, he prays for forgiveness, for his wife Brenda who is deceased, for his victims and his victims' families.  Father Borgia stated that the applicant is not the same person he was 16 years ago.  

One more time.

Big whoop.  Who gives a shit?

Really, I shouldn't do that.  All that "Big whoop. Who gives a shit?" makes the Board sound callous, like they're dealing with something they might refer to as "the applicant" rather than a real, individual person with, you know, a name.  (Uh, Gamso, pay attention.  They do refer to him as "the applicant.")

It's not the Board that's callous though.  They're just doing their job figuring out that all the stuff that makes Kenneth Smith worthy of life isn't really worth much at all because it doesn't 

outweigh the nature and seriousness of the offense.

Which isn't too surprising since from the Board's perspective only actual innocence can really outweigh those things.

That's the Board though.

More interesting is what Butler County prosecutor Michael Gmoser told the Board.

While the applicant's family has provided testimony regarding the man he has become, this case is not about the man he is now; it is about the man he was at the time of the offense and the facts of that offense.  The progress he has made while in prison should not be relevant in considering a clemency application.

Gee, what should then?

A couple of weeks ago, the Supreme Court ruled in Tapia v. United States that it's improper to consider rehabilitating someone when imposing a federal prison sentence. Gmoser takes that several steps further.

OK, maybe I'm being a shade too glib.  But Gmoser's position is worthy of a glib response.  It doesn't matter who Smith is now, he says.  We should kill him for who he was.

He doesn't add that it's a shame the Smith of today has to die in order to kill the Smith of 1995.  Collateral damage.  Friendly fire.  Something.  Maybe he doesn't think it's a shame.  Sure we're killing this guy.  So what?  It's the best we can do since the guy we wanted to kill, the guy who deserved killing isn't around any more.

This guy?  Different fellow?

Big Whoop.  Who gives a shit?

Smith Clemency Report

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.

Killer of Three on Display in Florida

The third killing was just over 13 months ago.  The repeat killer's been isolated since then.  Kept away from potential victims.  But enough's enough.

That sort of isolation is hard.  It's hard physically.  It's hard socially.  It's hard mentally.  So now he's back, punishment over, isolation over.

Because our commitment to the ensuring that we don't overpunish, that we trust in, believe in rehabilitation.  You know.  Because we're so damned forgiving.

As long as we're not talking about people.

There have been 10 executions in the US so far this year.  (Two each in Oklahoma, Texas, and Ohio; one each in Alabama, Geogia, Missouri, and Arizona.)  1244 since 1976 when the Supreme Court said some states' death penalty laws were constitutional.

But Tillikum's back in Shamu Stadium at Sea World in Orlando, back where he killed Dawn Brancheau, back entertaining the crowd.

Last year, when he killed Ms. Brancheau, I blogged about what we do with killer whales who kill.  I talked about the peculiar history of actually putting animals on trial.  I reviewed theories of Tillikum's mental state (premeditation, frustration, sudden passion).  I suggested that regardless of his motives, and even though he's killed before, there was no need to kill him.  Isolation would work.

But apparently not.  Bad for his self-esteem or something.

SeaWorld Animal Training Curator Kelly Flaherty Clark said in a statement that returning Tilikum to performing more than a year later was best for the whale.
“Participating in shows is just a portion of Tilikum’s day, but we feel it is an important component of his physical, social and mental enrichment,” Clark said. “He has been regularly interacting with his trainers and the other whales for purposes of training, exercise and social and mental stimulation, and has enjoyed access to all of the pools in the Shamu Stadium complex.”

If Tillikum were human, they'd be screaming for his head.

But he's a killing, killer whale.

They come to watch.  Hoping, maybe, just a little, that he'll do it again.

And now he's back.  Wednesday was his first show, and reports are that

Because we really are bloodthirsty.  Even if we won't kill Tillikum.

By the way, reports are that he performed flawlessly on his first day back at the show.

This is a felony?

There are the folks who get harassed, and often arrested and sometimes prosecuted, for mouthing off to the cops, being belligerent, being black, or all of the above. (See Henry Louis Gates for the most high-profile recent incident.) Then there are the folks who get busted for violating someone's, anyone's moral sensibility. (See, e.g, Bowers v. Hardwick, which thankfully is no longer the law.) And then there are the folks who are victims of plain, old-fashioned, American, my-way-or-the-highway puritanism.

Which brings us to the truly sad saga of Stacey Anvarinia. She's the 26-year-old North Dakota woman, busted in Grand Forks, South Dakota for a BUI.

What's a BUI? No, not boating under the influence. It's breastfeeding under the influence.

In Grand Forks, apparently that's felony child neglect, or at least that's the offense to which she entered a guilty plea. (Who knows what the original charge might have been that bargained down to this one?) For that offense, she faced up to five years in prison and a $5,000 fine.

She was sentenced this morning and didn't get that much - just 6 months, which she can serve in substance abuse treatment facility. Oh, and she's hoping to get her kid back. Maybe. Sometime.

I'll accept the basic point. It's probably better to be sober when breastfeeding the baby. Hell, it's probably better to be sober, period. But serving time? A felony record? Years of registration as a child offender, perhaps? (South Dakota lawyers, feel free to jump in here with the answer to that last one.)

Note to law enforcement: Not all misbehavior is criminal.

(Thanks to Doug Berman for finding the story (here) and keeping it up to date (here).

Home Sweet Prison

There was an episode of M*A*S*H in which (and I'm doing this from memory, so I probably have some details wrong) Hawkeye was placed on house arrest in his tent and Frank Burns taunted him until, at the end, Burns was under house arrest with Hawkeye taunting him. What I recall, and why I'm recounting this, is the basic taunt, which (although probably wittier) was something like, "I can go out and I can come in. In/out/in/out/in/out."

This morning's subject is prison. And the central fact of prison is the control. No matter what program and facility is there, no matter what the level of safety and security, no matter what the level of confinement, prison is ultimately about control. Some places are better, some worse. All are bad places to be precisely because inmates have no control. They can't come and go as they wish. Never.

There are other controlling institutional settings, of course. School, the military, the scouts (I quit the cub scouts because I couldn't stand the regimentation). But none of them has the level of absolute control that prisons do. Try to walk away from school and they may drag you back, but they don't shoot you as you go. Even in the military they're not supposed to do that on the spot. But see how the guards react when you try to climb over the concertina wire at a typical prison.

Here in Ohio, the prisons are operated by the Department of Rehabilitation and Correction. But they do little in the way of rehabilitation and correction itself is an iffy thing. Mostly they're about confinement. Put folks away for a time and hope for the best. In an earlier post I looked at some of the problems with that, and an article by Jim Lewis in today's N.Y. Times Magazine leads to a new take.

It takes off from the architecture of a prison in Austria where the prisoners (and they're not just the white collar types who end up at places the public derisevely and false describes as "Club Fed") live

in units called pods — groups of 15 one-person cells with floor-to-ceiling windows, private lavatories and a common space that includes a small kitchen.

The cells, or at least some of them, have balconies. There's green space and openness. It is

a striking building, perched on a slope outside the small Austrian town of Leoben — a sleek structure made of glass, wood and concrete, stately but agile, sure in its rhythms and proportions: each part bears an obvious relationship to the whole. In the daytime, the corridors and rooms are flooded with sunshine. At night, the whole structure glows from within. A markedly well-made building, and what is it? A prison.

Lewis arrives at the prison in the company of Joseph Hohensinn, the architect.

[A]s we approached, the building looked both idle and inviting, like a college library during winter break — or it would have, anyway, were it not for the razor wire coiled along the concrete wall of the yard and the sentence carved below it, a line from the International Covenant on Civil and Political Rights (which the United States signed and ratified) that reads: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

But, and ultimately, it's a prison, a place of punishment. When Lewis asked one of the prisoners if he was surprised at how nice the place was,

he said no; what surprised him was that he’d been caught in the first place.

And that, of course, is the point, or at least one of the points. Prison sucks, even the best prisons. And while prisoners surely prefer being in less horrific places, prison is, ultimately, prison.

Interestingly, the "nice" prison doesn't even cost much more than the traditional concrete and steel bunker model. Why?

[A]s a rule, the more a corrections center bristles with overt security, with cameras, and squads of guards, and isolation cells, the more expensive it’s going to be.

Our approach to prisons is built on one of two assumptions (or maybe both):

1. If you make the place horrific enough, nobody will return.
2. Because prisoners are being punished, it's important that they be deprived of anything marginally decent.

There are two problems with both of these assumptions, as scholars, corrections experts, judges, wardens, and even the line prison guards know

1. The vast majority of the folks in prison will someday be released, and roughly two thirds of those will reoffend. The Torquemada model of prisons doesn't help prevent that - in fact, by breeding violence and turmoil it likely makes it worse.
2. It's easier to maintain control, and therefore safety and security, within prison when you are able to offer reward as well as punishment to the prisoners and when the conditions are not so awful that the threat of worse isn't much of a disincentive.

We may not need to build prisons like the one near Leoben, but as if we're going to continue to lock up a major portion of the population, it's worth thinking hard about how we ought to do it.