On Mercy Considered As One of the Fine Arts: Part the First

I

t is entirely a coincidence that today's Times has an op ed by Antjie Krog on the parole of Eugene de Kock.

South Africa’s most notorious apartheid-era assassin, Eugene de Kock, has received parole after spending 20 years in prison. The government’s decision to let him walk free has unleashed a sort of identity crisis among South Africans. Could a man once known as “Prime Evil” really have changed? Why are we showing such charity to the deadliest cog in apartheid’s racist machine? And more important, why are so many South Africans — mostly white — so angry that this specific prisoner has been freed?

Has he really changed? This man who oversaw, who arranged, who ordered kidnapping, torture, murder of black South African's, anti-apartheid activists and then just people who happened to be black. This man who arranged to have the crimes blamed on - and sometimes done by - other black South Africans. Who acted to preserve the system of apartheid, itself a moral abomination.

Has he really changed? Is change of such a person even possible? And frankly, so what?

Krog gives some background.

After South Africa’s transition to democracy in 1994, Mr. de Kock disclosed the full scope of his crimes as part of his testimony before the Truth and Reconciliation Commission as both an amnesty applicant and an expert witness. This commission was set up as an example of restorative justice — granting amnesty to perpetrators of violence after they confessed in public. By telling the truth and proving that a crime was committed for political reasons, a perpetrator could receive relief from civil and criminal prosecution. Witnesses and victims of gross human rights violations also testified before the commission, and some received reparations.
As a reporter covering the often heart-rending hearings in the 1990s, I watched Mr. de Kock calmly correct facts, expose lies and name superiors who then quickly had to apply for amnesty themselves. He became the polygraph machine of the commission. Without him the “truth” part of the T.R.C. would have been sorely lacking.

And so he received amnesty.  But not for everything.  89 charges remained.  He was sentenced to 212 years in prison.  A sentence he clearly could never serve.  Still, he was the Prime Evil.

Then the unthinkable happened. With his intimate knowledge of apartheid-era security agencies, he began to assist victims in finding the remains of loved ones. He provided answers and pointed to places where bodies could be found. Mr. de Kock openly confessed his regret directly to victims and admitted that nothing could redeem him. This contrasted sharply with many of his commanders, who openly refused to apply for amnesty, or the politicians who denied that he had carried out their orders.

Regret, Krog tells us, was not a requirement.  Mere admission was all that was required.  But this was something more than either.

Marjorie Jobson assisted victims’ families who wished to meet Mr. de Kock in jail. She describes him as “a treasure trove.” In meetings lasting over two hours, he told in “the finest detail exactly what had happened affecting the people in the room.” When these families left, she added, they would begin to sing “from the sheer relief of having received answers.”

But really, is it sincere?  Has the leopard changed his spots?  Can he?  Is it a sham?  Jut the psychpath gaming the system?

For Krog, it's enough.  

For me it is irrelevant whether this change is genuine; the fact of his assistance to the victims is what counts.

Perhaps.

Of course, it matters just what we're trying to accomplish.

Thane Rosenbaum wants revenge.  There's no stopping point to that.  Robert Blecker wants retribution which he insists is something different because revenge is about getting even (and has no stopping point) while retribution is about getting even (and has no stopping point).  For them, for Bill Otis and Nancy Grace and the rest, it's about, well, there's no stopping point.  They don't care about redemption.  Only about punishment.  The more the merrier.*

Oh, sure.  Maybe de Kock has been good for 20 years.  And maybe he'll be good for the rest of his life.  So what?  He was evil.  And evil he remains.  Whether or not he evinces any more evil. Whether or not he actually remains evil.  

Off with his head.

The problem with LWOP sentences is that they're built around the commitment to throwing away the key.  They either assume improvement impossible or declare it irrelevant.  Let us decide today and forever.

An attitude the parole for de Kock just rejected.  Because regardless of whether he deserves it, we do. Because, as I've said repeatedly, mercy and grace aren't about them, they're about us.  They aren't earned, they're a gift.  And they make us better.

Which brings me to why Krog's op ed is coincidental.   For which you'll need to read Part the Second, since this post is already too long.

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

*That's not entirely true.  Blecker, at least, clearly cares about redemption.  He just thinks it shouldn't be allowed to interfere with the glory of punishment.  Good that they're redeemed.  Now, get on with making 'em suffer.

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. 

Wallowing in the Hate

We hate you!

Those were the first words from the first victim impact statement at my client's sentencing.  He'd killed a guy who was dearly loved by his family and friends (including, I should add, my client, who was one of his friends).  And though the victim was, or at least was described as, almost saintly in his kindness, in his generosity in fact and spirit, his friends and family were unforgiving. 

You should be killed.
There's no place in hell too hot for you.
I hope you suffer forever
We don't forgive you. We'll never forgive you.
Throw the book at him.

Those of us who've been there in those courtrooms, standing beside the reviled, have learned to endure these outpourings of venom, these spectacles of vituperation.  We've come to expect them.  We pay little attention, listening just enough to make note if someone says something that needs to be responded to or (less likely but it happens) embraced when we give our sentencing spiel to the judge.

As I've said before, though, not everyone is out for blood.  There are those who do forgive, who offer love and compassion, or who just figure that there's no need for one more dead body, one more grieving family.  I write about them from time to time here.  People like Allen and Jeanne Howe.  People like Anthony Colón.  Like Pierce O'Farrill and the family of Curtis Jackson and Rais Bhuiyan and, hell search the archives for yourself.

I tell those stories because they inspire, because they show a glimmer of what can be.  And so while Bob and Lola Autobee are litigating their right to talk to the jury at the death penalty trial of their son's killer (the prosecutor says they're only allowed to speak if they want to talk about how much they think he should be executed and since they want his life spared they should be silenced), 

While that's going on, I just naturally wanted to write about Irene Allain. She's the daughter of John McGrath, murdered in East Cleveland 28 years ago by, at least according to the jury, Gregory Lott who sits on death row, scheduled to be executed by the good people of Ohio on March 19.  Allain, and the rest of her family, want to stop it.  

Via John Caniglia in the Plain Dealer.

"Although it has been difficult for me to come to terms with how my father died, I do not agree with executing Gregory Lott,'' Allain wrote in an affidavit that Lott's attorneys are using to seek clemency for him. "I am a devout Catholic, as is my family.
"I believe that life in prison is a just punishment for Gregory Lott. I believe his death sentence should be commuted to life imprisonment.''

And then,

"I don't want to put my imprimatur on a man's execution,'' said Jack McGrath, a grandson. "Much of this is because of my Roman Catholic faith. When I first learned of this in 1986, I almost thought of taking matters into my own hands. But time has healed our wounds. I don't believe in the death penalty because of my faith.
"I wouldn't want to be the person who prevents someone from changing -- from finding God, understanding the depth of what he has done and helping him prepare for the afterlife,'' Jack McGrath said. "If a man's put to death, any preparation for that is pretty much ended.''

The thing is, as I was getting set to write this post about Allain and her family and Gregory Lott and. . . . Well, I kept thinking about that woman who stood up in court and said to my client

We hate you!

I wasn't there. I didn't get to hear it.  I don't know if she screamed or spoke with cold malevolence or even in a voice tinged with sorrow (though I doubt the latter).  I didn't represent the man then.  And unlike Lott, he never faced the death penalty.   Anyway, I was thinking about that woman and about my client's family who spoke too.  And they spoke lovingly and with deep pain and regret of my client, but also of his victim's family.

And then I read Stig Dagerman's brilliant short short story, "To Kill a Child."  Steven Hartman, who translated the story, calls it

perhaps the greatest short short story in the history of Swedish letters.

Which may or may not be true, but is also beside the point.

Here's the thing.  As a lawyer, it's my job to do the best I can for my client.  When I represent, as I commonly do, someone who caused or is said to have caused harm to another by homicide, robbery, assault, what have you, my focus is and must be on my client.  The harm caused, the pain, those are things to be dealt with insofar as dealing with them helps my client.  I'm a lawyer, not a social worker. And that's how it should be.

But it's also true that we on this side of the aisle too often pay insufficient attention to those who suffered at our client's hands.  We see our clients suffer (really, they do) and then when the voices of vengeance cry 

We hate you!

We turn away.  And don't really have an answer.  Though if we're being honest, we might say, 

I'd hate him, too, if I were you.

But here's the thing.  That young man who was killed, that paragon of generosity in fact, in deed, and in spirit, that young man who friend and relative after friend and relative said would always return meanness with love, would give freely to those who wronged him.  That young man who one after the other said was incapable of hate, would never hate, was better than that.  On his behalf, in his memory, they hate.

Which isn't hard to understand, and really, there's little wondering about the wallowing.  But the real wonder is the turning away from the hatred.  And that does everyone, including our clients, a world of good.

Rhode Island, New York & Nebraska

You remember Jason Pleau and the squabble between the Feds - who wanted to kill him until they changed their mind once they actually had the chance - and Rhode Island who fought the feds so that Pleau could be sentenced to death in prison and then lost the fight but got what it wanted anyway once the Feds proved that they had the bigger dick and acknowledged that it was all about power and that they were just toying with little Rhodie and really didn't give a shit about killing Pleau.  ("As flies to wanton boys, are we to the gods./They kill us for their sport," says blinded Gloucester to his son Edgar who's playing a madman.  King Lear, Act IV, Scene i.)

* * * * * * *

It's less contentious in upstate New York.  

David Renz was on electronic monitoring, wearing an ankle bracelet, awaiting trial in federal court on child pornography charges, when he escaped from the monitoring, abducted school librarian Lori Bresnahan along with a 10-year-old girl from a mall parking lot, took them to a remote spot where he raped the girl and murdered Bresnahan.  In July, he entered guilty pleas to the rape and murder in state court and agreed to a sentence of death in prison.  But as John O'Brien at Syracuse.com explained, there was a catch.

But under that agreement, he would be allowed to withdraw his guilty plea if federal prosecutors decide the case was death-penalty eligible.

Because, you know, they can.

The actual call gets made by Eric Holder.  He has to personally sign off on it before the Feds can go after a death sentence.  But there are committees and the opportunity to make a pitch for why they shouldn't do it.  O'Brien explains.

The Federal Public Defenders Office gave a 60-page letter to federal prosecutors arguing against certifying the case as death-penalty eligible, according to Federal Public Defender Lisa Peebles.

Among the arguments was that the federal government's motive should not be revenge, she said.

Revenge, you know, because it was the Feds who didn't object to him being on electronic monitoring, so they feel, er, burned.

The Syracuse federal probation office has come under fire over the case. Probation officers ignored 46 signals from Renz's monitor before the murder. One officer was fired and another demoted as a result of an investigation into the handling of the case.

But just because Renz committed crimes while under federal supervision shouldn't justify it becoming a capital offense, Peebles said.

And there's that the families of the victims don't want the death penalty. 

Renz is scheduled to be sentenced to death in prison January 10.  Unless Eric Holder decides he wants to try killing him in revenge.  In which case, the prosecutor will calmly turn him over.  No Lincoln Chaffee he.

You want to try and kill him?  Be my guest.

* * * * * * *

New York has no death penalty.  Nebraska does, though they don't use it much.  They've executed three people there, one each in 1994, 1996, and 1997.  That's it.  They have 11 on the row now.  Joseph Paul Franklin is one of them.

Franklin was a serious hater, a white supremacist.  Maybe he still is.  I don't know.  What I know is that Nebraska plans to kill him on November 20.  And that Larry Flynt doesn't want them to.

Larry Flynt?  The Hustler guy?  Yep.  Him.  He took to the pages of the Hollywood Reporter to explain. It's worth a lengthy excerpt.

On March 6, 1978, as I stood on the steps of the Georgia courthouse where I was fighting obscenity charges, a series of gunshots rang out. I remember nothing that happened after that until I woke up in the intensive care unit. The damage to my central nervous system was severe, and it took several weeks before doctors could stabilize me. From then on, I was paralyzed from the waist down, and have been confined to a wheelchair ever since.

Years later, a white supremacist named Joseph Paul Franklin was arrested for shooting and killing an interracial couple. He soon began confessing to other crimes, and that’s when he admitted to having shot me. He said he'd targeted me because of a photo spread I ran in Hustler magazine featuring a black man and a white woman. He had bombed several synagogues. He had shot Vernon Jordan Jr., the civil rights activist. He hated blacks, he hated Jews, he hated all minorities. He went around the country committing all these crimes. I think somebody had to have been financing him, but nothing ever turned up on who that somebody may have been.

In all the years since the shooting, I have never come face-to-face with Franklin. I would love an hour in a room with him and a pair of wire-cutters and pliers, so I could inflict the same damage on him that he inflicted on me. But, I do not want to kill him, nor do I want to see him die.

Which cuts to the chase. Vengeance? Sure, Flynt wants to get even, to inflict pain. But it's personal.  And it's not killing.

Franklin has been sentenced by the Missouri Supreme Court to death by legal injection on Nov. 20. I have every reason to be overjoyed with this decision, but I am not. I have had many years in this wheelchair to think about this very topic. As I see it, the sole motivating factor behind the death penalty is vengeance, not justice, and I firmly believe that a government that forbids killing among its citizens should not be in the business of killing people itself.

We'll see by November 20 how Nebraska responds.

Why Shoot When You Can Gnaw?

Lethal injection's too good for 'em.  The ones who

burn[] children alive, massacr[] a dozen strangers in a movie theater, or bomb[] the Boston Marathon.

The ones who Robert Blecker (law prof, and author of a forthcoming book which he's shilling through an op-ed at CNN.com) can tell are the worst of the worst - and only them.  Not the others, not the other 98 or 22 or 67 or whatever percent of the people who kill and end up on death row.  It's for the worst of the worst that we need something more (what's the word?) vicious  They're the ones we have to kill and fortunately Blecker's ready to identify them for us, having spent, by his declaration, 

thousands of hours observing daily life inside maximum security prisons and on death rows in several states

But when we know who they are, no lethal injection.

Witnessing an execution in Florida, I shuddered. It felt too much like a hospital or hospice. We almost never look to medicine to tell us whom to execute. Medicine should no more tell us how. How we kill those we rightly detest should in no way resemble how we end the suffering of those we love.

Ah, yes.  Executions look too much like euthanasia, more killing Blecker would seem to favor. Is there anyone he doesn't think should be killed? 

Blecker has a different idea.  He recommends the firing squad - but nobody can have a blank.  We all want the guy dead so we should all kill him.  (He doesn't actually suggest drawing names by lot from the voting rolls - or the law school faculty rosters - but it's hard to see why not.)  The firing squad, see, is quick and painless he says, but it looks cruel.  It provides the appearance of equivalence without the actuality.

But really, if we're about blood atonement, if the idea is to do unto others as they've done to others (the Leaden Rule), that faux equivalence is, well, faux.  Do it right.  Blecker really doesn't have the courage of his convictions.


I've repeatedly suggested that we face up to what we do when we order the death of individuals in our name.  Have them gnawed to death by rats in Yankee Stadium and put it on pay per view, I've written.  Too problematic?  How about the death by a thousand cuts?  The gibbet?  Draw and quarter?  Burn in oil or at the stake?  Stoning?  Throw them off tall buildings?  Evisceration?  The possibilities are almost endless.  Hell, I haven't even mentioned crucifixion.

it's a moral necessity that we do this.  The public demands it.  Just ask that other academic avatar of vengeance, Thane Rosenbaum.

Except, you know, maybe not everyone's so hot to kill.  Maybe not everyone thinks matching evil for evil is a moral command.  Maybe some of us absorbed the lesson that two wrongs don't make a right.  Maybe mercy is a higher value than retribution, more something we should at least aspire to.

And maybe those folks who just don't trust the government to get it right have something there.  

Or maybe we should break out the guillotines.

No Way to Honor Their Memory

So Bill Otis thinks I'm not normal. It's nothing personal, not about me in particular (though he's commented over here from time to time, and I'll be getting around to a response one of these days). It's just that I'm an abolitionist.  And as an abolitionist, I'm in favor of, or advocating, or something a "moral holiday."  So he says.

I don't want to be accused here of misepresenting his position, so here's exactly what he wrote in the wake of the bombings at the Boston Marathon.

It is simply impossible for a normal person to contemplate the bombers' state of mind  -- to contemplate their savagery, their relishing death, their glee at the lifelong mutilation of their victims, and their indifference to whether and how many of the corpses would be children  --  and believe that a prison sentence, no matter what its length, is "justice."

Abolitionists' usual (and by now tiresome) lectures about cost, race, the preferences of Europeans, and all the rest of it, now show up for what they've been all along:  The talking points for a moral holiday.

Now, I don't know if the bomber (or bombers, Bill makes it plural, but unless he knows more than I do, that's just an assumption) actually "relish[es] death" or feels "glee at the lifelong mutilation of their victims."  I can as readily (more readily, really) imagine that the killer or killers feels nothing but perhaps the satisfaction of a messy, unpleasant, but necessary task done.  Not necessary from my point of view or yours or Bill's, but necessary for the actor.  Just as the Phelps family thinks it necessary to cheer the deaths of American soldiers because it's God's punishment on us for not hating gays more than we do. 

Terrorist's don't necessarily chortle over their acts.  Tim McVeigh apparently thought what he did appropriate, necessary, honorable.  I don't think I've ever seen any indication that it gave him pleasure to kill kids.  But again, maybe Bill knows something about whoever set the bombs off in Boston that I don't.

All of which is beside the point.

Mirriam Seddiq put up a brief post yesterday, reflecting on the carnage while marveling at a moving story of compassion and love.  She cries when she reads that story, she says.

I dare you to read this and not feel it.

And she implores us all to remember, to honor, to feel and share the power of love.

I wish I could write like that. I wish I could bludgeon people over the head with nothing more than a dandelion.  In the wake of this day, the blood on the streets of Boston, I look at this and am reminded that each of us is capable of so much love.

One of my favorite lines and moments in Shakespeare comes in Act III of The Winters Tale.  Walking along the shore in Bohemia (which in real-world geography is landlocked, but we allow the Bard some license in these things), an old shepherd has come upon a baby which he takes up in his arms and will raise.  He shortly meets with a young clown (no, not a circus clown - it's a foolish rustic) who walking along another part of the shore has come upon the body of an old man.  The youth reports his finding.  The old shepherd responds:

                          [T]hou mettest with things
dying, I with things newborn.

My friend Joachim Kübler sent me the link to that post by Bill Otis that started this off.   How, he wondered, to respond to Bill.  Of course, he knew the answer, which was Mirriam's response, and mine.
Mercy trumps justice.  Generosity of spirit beats retribution.  We do not show condemnation of killing by more killing.  Ghandi was right.

An eye for an eye makes the whole world blind.

As I wrote in a comment to Mirriam's post,

Along with the horror and chaos and ugliness of the world, there are moments of simple beauty. They don’t make up for the horror and chaos and ugliness. They can’t balance it out because it doesn’t work that way. But they have a force and power of their own.

I've represented people who've done unspeakably horrible things.  In some absolute sense, I can imagine that some of them might deserve killing.  But we shouldn't.  Not because of some technocratic explanation about cost and public policy and potential error and the Eighth Amendment or the offensiveness of elevating procedural minefields over fundamental fairness and conscience and testing the fucking DNA.  Those are all good reasons not to kill, but they're not the nub, not the heart of it.

The answer to the Michael Dukakis question that Bernard Shaw asked and Dukakis blew and that went a long way toward getting the Shrub's father elected President is that 

Of course I'd want to kill the bastard who raped and murdered my wife, who killed my kids.  I'd want to rip out his lungs with my bare hands.  Slow and painstaking torture.  Damn right.  At least in the first instance.

But that's no way to honor their their memory.

Three people were killed by the bombs in Boston.  Three innocent people.  Random victims of a vicious act.  I don't pretend to know how to value a human life.  Actuarial tables and the law's calculations of things like future earning potential and the value of consortium don't really help.  We're really talking about he ineffable.  But if I don't know how to value those lives, I know that killing in their names doesn't do it. 

Here's what I know:  Jean Valjean's decency really is worth more than Inspector Javert's righteousness.

And as I keep writing here, mercy and grace aren't about what they deserve but about who we are.  So, of course, is the commitment to retribution.

To Exact Revenge

So the jury said Anthony Sowell did it.  Raped and murdered 11 women.  Kept bodies and body parts hanging around.

Now what?

For a week, the experts have been testifying and arguing.

• He was nuts.
• He knew what he was doing.
• He suffers from.
• No he doesn't.  And it doesn't matter anyway.
• Yes it does.

All of which is about getting to the nub of things. 

Here's what we know.

Anthony Sowell will die in prison.

Here's what we don't know.

Will he be murdered by agents of the state of Ohio or will he die by other means.

Technically, and even if he's sentenced to be murdered rather than to death in prison, we won't know for years.  There are appeals and motions and a clemency hearing (some of that whether he wants it or not).  But none of that is really the point.  The point is what to do with him.

Regina Brett, columnist for the Plain Dealer, reveals her answer in the snappy title of today's column.

Anthony Sowell should not be sentenced to death.

Her argument goes roughly like this.

The death penalty doesn't deter.  It certainly didn't deter Sowell.  Whatever the experts say, Sowell is obviously crazy as a bedbug.  He actually does well in a highly controlled environment, you know, like prison.  Let him stay there forever.

Frankly, that's not much of an argument.  She's left out the connections.  A, B, Z.  Yeah, but how do you get there?  Here's what she didn't bother to write.

When we kill for no purpose other than revenge, when we kill people who are crazy, when we kill just to satisfy our own lust for blood, we become killers.  Without any hint of justification.  There's no need to kill Sowell.  There's no point to it.  It won't restore anything.  Let's put him where he can do no harm.  That protects and punishes.  But it doesn't make us into killers also.

At least, I think that's the argument she wanted to make.  And she's right.  (Or maybe I am.) She does get this part right though.

No matter what the diagnosis, those 11 women are still dead, those 11 families are still grieving and Anthony Sowell is still a man whose mind is a mess.

Of course, in today's electronic world, everyone gets to respond. So at 8:28 this morning, 1BL2MNY (which I hope doesn't stand for what I think it might) wrote

I really don't care if he gets the death penalty or not. It is the cost of this fiasco that is troubling to me. This trial has costs the taxpayers over $750,000 to date. We will be forced to pay more with the appeals that are sure to come with a death verdict. I don' know if it was ever an option, but a plea deal of life without parol should have been made from the get go. 

A fair question, perhaps.  Cost is probably the worst reason (morally, ethically, socially) to have or not have a death penalty.  In the real world, it matters a lot.  In any event, and especially for those who paid attention and know that the families of those 11 women, or at least some of them, actually petitioned the prosecutor to strike a deal (for personal reasons that had nothing to do with money), the idea of a deal for death in prison rather than death by needle in prison made sense.

Except it only made sense if you thought the death penalty served some purpose other than blood lust.  At 8:32, just 4 minutes after 1BL2MNY posted that comment, ManginisMother posted this reply.

You are 100% correct. But a plea deal for life in prison would not allow us to exact revenge.

Which is the truth.

And is, of course, at the heart of why we shouldn't kill.

Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord. Romans 12:19 (KJV)

C.S. Lewis, I think it was (and I'm too lazy to check right now), said that Jesus was either insane or really was God (or the son of God or some such thing, this isn't about doctrine, not even about Jesus) when he said that he would die to expiate the sins of others.

Which leads me to Anders Behring Breivik and Casey Anthony and a couple of deeply troubling columns by Thane Rosenbaum, the John Whelan Distinguished Lecturer in Law and Director of the Forum on Law, Culture & Society which is a mouthful but it's amazing how many law professors are the somebodyorother distinguished professor of somethingor other.

Here's Rosenbaum's central thesis: 

Law sucks and criminal law sucks most of all because it doesn't make Nancy Grace happy.

OK, that's not how he puts it.  But that's his point.  Here he is, from the Huffington Post, on the Casey Anthony trial.

The Casey Anthony jurors could have stayed home and watched it all on cable TV, and then phoned in a verdict that would have shown better judgment and matched the opinion of the rest of the nation.

See, the point of the trial was for jurors to show good "judgment" which means getting it the way the public thinks it should go.  TV is the test.

Oh, grudgingly he seems to recognize that the legal system doesn't operate to do that.  But it should.  

What makes complete sense outside of the courtroom has no bearing on the legalistic jury instructions, the narrowed presentation of evidence, the presumptions of innocence and the burdens of proof that guide criminal trials no matter how simple and plain the facts appear or indisputable the outcome.
From outside the courtroom, the legal system often looks as if it has no grip on the truth, or even worse, any concern or respect for the truth. But legal trials are, in fact, less interested in what is true than what can be proven.
By now legal experts have lectured us on the difference between saying that Casey Anthony was innocent and that the prosecution was unable to prove that she was guilty beyond a reasonable doubt, and that's why the jury voted to acquit. But most reasonable, sensible, decent people are still left morally outraged by this purportedly correct legal outcome, and they won't easily be persuaded to appreciate the difference -- nor should they. 

In a proper system, Rosenbaum says, we'd all work together.

[O]ther countries place a higher value on having both the prosecution and the defense work to uncover the truth.

And, of course, they do a bang-up job.  (See, e.g., Knox, Amanda.)

But really, why even bother with prosecution and defense.  Television, as Rosenbaum says, is sufficient.

OK, maybe I'm not being fair.  I mean, celebrity trials and all that.  Maybe he got too caught up in the whole thing of her going to parties as an explanation for why she was guilty of murder even if the state couldn't prove the kid was murdered.  I mean, Caylee must have been murdered since her mother wasn't as broken up about her being missing as Nancy Grace and her acolytes Rosenbaum would have preferred.

No, I am being fair.  Here's Rosenbaum in today's Times.

Legal systems should punish the guilty commensurate with their crimes and recognize a moral duty to satisfy the needs of victims to feel avenged.

See, that's the real problem.  Our legal system doesn't allow victims "to feel avenged."

Damn.  It's so simple when you get that.

NORWAY, a nation far removed from the wickedness of the world, is now facing one of its greatest moral challenges: What to do with Anders Behring Breivik, the man who has confessed to massacring 76 people, many of them children. Norway does not allow for capital punishment, and the longest prison sentence a killer can usually receive there is 21 years. A country of such otherwise good fortune and peaceful intention is now unprepared — legally and morally —to deal with such a monstrous atrocity.

Sure.  And in absolute terms, we were all unprepared to deal with Hitler or Pol Pot or Idi Amin.  And Nero fiddled while Rome burned.

And the wheel goes round and round.

The unthinkable may not be thought, but it happens.  We may not imagine the unimaginable, but that doesn't stop it.  None of this is news to anyone who pays attention.

The question is how we respond.

There's the USA PATRIOT Act and Homeland Security and Scope and Grope.  And Nancy Grace and Bill O'Reilly.  But there's also Jens Stoltenberg, Prime Minister of Norway.  Michael Schwirtz, reporting from Oslo, in the Times.

“It’s absolutely possible to have an open, democratic, inclusive society, and at the same time have security measures and not be naive,” Prime Minister Jens Stoltenberg told reporters in Oslo. “I think what we have seen is that there is going to be one Norway before and one Norway after July 22,” he said. “But I hope and also believe that the Norway we will see after will be more open, a more tolerant society than what we had before.”

Rosenbaum would have us execute Breivik (of course, he must be guilty, no need to bother with trial or anything) because we all want revenge and that's what the system ought to provide.  It'll make us all feel better when he's dead.  Closure or something.  But maybe not.

Maybe the way we honor the dead is with something less than using them as an excuse for killing.

Rosenbaum talks about "settling of scores."

Plea bargains invariably shortchange this settling of scores — which is why, practical difficulties aside, they should be used only sparingly (and always with the victim’s participation). And allowing the guilty to walk free because of procedural errors — or because of the ambiguities of “reasonable doubt,” as in the case of Casey Anthony — invites vigilante justice. Neither justice nor revenge is negotiable.

But wait a second.  Just who has a score to settle with Casey Anthony?  Even if it happened that she did kill her child.

After all, everyone in society benefits when the truth is known and injustice is not allowed to prevail -- in this case, the memory of Caylee Anthony, especially.

So Caylee's memory requires that her mother be convicted of murder and then be sentenced to death or death in prison.  And we know that, because that's what Nancy Grace Gallup Rosenbaum tells us.  And they he knows.  And will feel better.

Which brings me to why I started with what maybe C.S. Lewis said.

Just who gets to do vengeance?

Who has a right to bereavement?

If the pictures are to be believed, Caylee Anthony was a beautiful child.  Her death is sad.  I wish it hadn't happened.  I wish those folks in Norway hadn't been killed.  I wish the thousands killed by the tsunami that wiped out the Fukushima power plant hadn't lost their lives.  I wish all sorts of things. But the loss isn't mine.

Rosenbaum teaches courses, according to his faculty page, in "human rights." He has, according to the Times, a book coming out on revenge.

[T]he actual difference between vengeance and justice is not as great as people think.
It’s difficult to have honest conversations about revenge. Seeing someone receive his just deserts often feels righteous and richly deserved, and yet society regards vengeance as primitive and barbaric. Governments warn citizens not to take justice into their own hands, insisting that the state alone has the duty and right to punish wrongdoers — pursuant to the social contract.
As a result, most people hesitate to frame their anguish in terms of revenge. Some, however, are more forthright, proclaiming a moral duty to avenge, especially when the law fails and breaches its part of the social contract. 

If Dr. Petit were to kill one of the men who broke into his home and destroyed his family, I'd understand.  I'd willingly defend him from murder charges.  But the people of Connecticut?  From what vantage point can they claim to seek revenge?

If Jesus thought he could take our sins upon him and by his crucifixion expiate them, he was either mad or God.  If Rosenbaum needs Casey Anthony to be convicted so that he can have revenge . . . .

The law, the legal system, is not a social means of attaining vengeance.  It's an alternative.  Rosenbaum doesn't like that.  He doesn't want that system.  Fair enough.  He doesn't have to.  But he might at least acknowledge that his bitch is with the idea of the American legal system.  That it was never designed to do what he thinks is its purpose - to make people feel better by avenging the crimes that televangelists of hate insist occurred whether or not there's evidence in support.

Better that 10 guilty men go free than that one innocent man be convicted.

You're kidding, right?  Gimme a break.

I've said before that I'm not religious.  But this much seems clear.

You have no right to seek vengeance for wrongs done to me.

Your redress for the wrongs done to you is in tort, not in criminal law.

Getting even is not complicated arithmetic. A just outcome in Norway, however, given the number of young lives taken, will doubtless be unsatisfying.

Too bad.

But making Rosenbaum feel better really isn't the point.

The Sausage Factory

"Shit happens."

One of my clients was alleged to have said that, dismissively, after watching on television the news story about a murder he had committed a couple of hours earlier.  

Shit happened to him, too.  He'll have to serve 30 full years in prison before he's first eligible for parole.  If the law at the time had allowed a sentence of life without the possibility of parole, he'd have gotten it, but the reality is that the Parole Board will almost surely see to it that he serves something very close to that.  It certainly won't let him out after "just" 30 years.

It's been a long time since I handled that case, probably 17 years or so ago.  I haven't tracked my client's progress through Ohio's prison system, and I'm not looking him up now.  But I'd lay odds that he's at the Toledo Correctional Institution.  That's where most of the serious bad guys from Toledo end up.  For its own reasons, the prison system mostly prefers to put prisoners close to their homes.

Shit also happened to Keith Dressel, too.  He was a detective in the Toledo Police Department.  The shit in his case was Robert Jobe who shot Dressel to death while Dressel was trying to arrest him.  Although Jobe was only 14 at the time of the killing, the state tried him as an adult, attempted to convict him of aggravated murder so that he could get sentenced to life without the possibility of parole.  The jury said no, it's simple murder (plus a firearm specifiction).  That means 18 to life.  His first parole hearing will be in 2024. The Parole Board won't let him out then, either.  Shit happens.

Then there's the officer's widow, Danielle.  Her husband's murder was obviously traumatic.  Shit that happened to her.  I've heard stories about her continuing bitterness.  She wanted, they say, young Jobe to get death, which wasn't a legal option.  She's embittered at the system, they say, that insists on giving rights to people who are charged with hurting cops.  These are stories, word on the street.  I've never met her.  I don't pretend to know the depth of her pain and the bitterness she feels.  But some of it is public.

I wrote this, in a different context, back in October.

In Toledo, the other day, some guys were on trial for assaulting cops. The verdict didn't go as the state (and the cops) hoped. See, the jury just didn't believe the police version of what happened. That led to considerable community outrage, including this letter to the editor of the Blade from Danielle Dressel, the widow of an officer killed on the job. She writes:

The detectives were doing their jobs, working on an ongoing investigation, when they were called names by these attackers. The detectives identified themselves as police officers. These men not only physically attacked the detectives, but attempted to steal their guns and badges. Out of the seven men who attacked our officers, only three were tried, and only one was convicted of misdemeanor assault. This is tragic.

Don't misunderstand me. I feel for her. But she wasn't there. She doesn't know that the officers were called names. She doesn't know that they identified themselves. She doesn't know that the defendant's tried to steal guns and badges. She believes it because it's the police version. She believes it because she's on their side. She believes it because to her, all cops are victims. I understand why she might feel that way given her history. But her blind belief that whatever the police say is true, that infallibility (if not invulnerability) comes with the job, doesn't make it so.

The jury knew better. So the jury must be at fault.

Like I say, shit happens.

Jobe has been in prison for a couple of years.  He's been held in a youth facility because he was under 18.  But now he's legally an adult, so they're putting him in adult prison.  Toledo Correctional.  Danielle Dressel is, according to WTVG-TV, the local ABC station, "furious."

One of our comforts was knowing that, okay, he's going to get out in 17 years, but he's not here. He's away from us. And now we have to deal with the fact that he's right down the street.

Frankly, and I don't mean to be callous about this, I don't know what there is for her "to deal with." It's not like she's going to be bumping into Jobe at the grocery store or the gym.  They'll be "neighbors" only in the most attenuated sense of the word.  She won't see him.  He won't see her.

He's taken away my son's father. My son will never get to see him again. We will never get to see Keith again, yet Robert Jobe has the ability to see his mom anytime she wants to come visit.

So maybe that's it.  It'll be easier for Jobe to see his mother when she wants to see him.  But really, that's about Jobe's mother, not about Jobe.  I've lost a husband and my children have lost a father.  So the killer's family should suffer just as much.  Shit should happen.

The Hatfields and McCoys might have understood.  (Disclosure, I know some descendents on both sides of that feud.  Good people who don't hold a grudge.  That was then, this is now.)

And it's not just Danielle.  Dressel's mother is furious, too.  But she's not just fuming to the media.  

Keith's mother, Lorraine, is furious the family wasn't notified before Jobe was moved. But the state doesn't have to do that. Lorraine says she plans to take action and contact state lawmakers.

Make way for Dressel's Law.  Coming soon to a state near you.

I'm not sure what it will be.  

• Permanent banishment from the community where the crime occurred?
• Permanent banishment from the community where the criminal lived?
• The right of the putative victim or survivor of crime to determine the location of the punishment?
• Crime victim control over conditions of confinement?

Something else?

Whatever it is, shit will happen.

Because, you know, it does.  And it's not something to treat dismissively.  But do they have to dump it on everybody's lawn?

Death Penalty Screed - Part IV

Two teenagers decided to rob someone. They shot to death an innocent man who just happened by. He was a firefighter. There are the usual calls for blood, for vengeance. A friend wrote and asked what he could say to friends of his who wanted the teenagers to get the death penalty. Here, slightly edited, is what I wrote back.

Some people you won't be able to reach. Not today, not this week, not this month, maybe not ever. I've had clients on death row who believed in the death penalty. I'm not talking volunteers here. I mean people who didn't want to die but thought there were others who should. There's no accounting for some things.

And when the brutal crime happens, when the unthinkable gets thought, when it's your loved ones, fergodssake. Blood will have blood. Repay. Eye for eye. Hell, I want to do it myself.

And yet.

So I understand the desire to strike out. You're talking about two idiot kids who killed a decent, hardworking man, a wholly innocent man who spent his life trying to save others. For no reason. They probably deserve to die. Hell, maybe that's too good for them. A gentle stick in the arm, little pin prick and then a quiet peaceful death. Where's the equivalence?

But here's the legally available alternative: Death in prison. The law calls it "life without the possibility of parole," but it's really death in prison. Day by day. Every day. Confined. Treated like cattle. Obey the rules to the letter or get stuck in the hole. Be a troublesome prisoner - even a little troublesome - and you get stuck in the hole. 23 hour a day lockdown. No contact with anyone else. Your food (and it's not good food and there isn't enough of it) slipped through a slot in the door.

Rehabilitate yourself and you still spend all day, every day, for the rest of your life, in prison. With no hope. No chance of getting out. None.

Like I say, death in prison. Slow and painful.

Or look at it another way. You can't bring the good man back. He devoted his life to trying to save others. He didn't evaluate the quality of the folks he tried to get out of the burning building. Do we honor that memory by killing? In his name? To make up for what they did to him?

Teens are stupid. We all were at that age. Science tells us that the brain isn't fully developed until about age 25. Teens are impulsive and reckless and, well, stupid. Sister Helen Prejean tells us that we're all better than the worst thing we've ever done and none of us deserves to be judged on that basis. I think that's probably right. I'm not saying forgive and forget. But death? How does it help, anyway? What do we gain from it?

We won't even save any money. Capital trials are vastly more expensive than ordinary murder trials. Capital appeals drag on for years and cost a ton of money, too. All that time (and we could be talking a couple of decades or more), the focus is on them, on the two punk kids. Shouldn't the memory be of the firefighter rather than the punks who killed him? And that cost again. It'll actually end up costing a couple of million each to kill the kids. Keep them in prison for the rest of their lives for somewhere around $400-600,000. And make them work to cover some of that cost. Use the savings to hire more police or more firefighters.

And, of course, there's morality and the idea that it's just wrong to kill and that there are as many studies showing that executions actually increase the number of murders as there are showing that executions save lives and anyway you're going to trust a government that can't do anything right to make reliable decisions about who should die and how?

You can toss Bible quotes back and forth with the folks who believe that Jesus approved of the death penalty and you won't make any headway, but as James Carville said, we're right and they're wrong. Cain was not to be touched. Nobody was without sin, so the first stone didn't get cast. And there is that whole seamless garment of life the Pope sometimes talks about. It's not about they're earning the right to live, it's about our not having the right to kill. Or there's the Sanhedrin who said that it would be barbaric to use the death penalty even once in 70 years.

My own take, for what it's worth and having met and gotten to know and worked for men charged with capital offenses and men sentenced to die, from having gotten men off death row and from having my clients executed, my own take is something like this. I don't doubt that there are people who deserve killing. Some of them are on death row, some not. Some of those on the row are among those who deserve killing. Others aren't. Frankly, we're not all that good at figuring out whose in which category. But even if we know, even then, we don't deserve to kill.

It's a two-way street, after all.

I've talked before about the Ohio aggravated murder statute. Aggravated murder is our only capital offense. There are a number of forms of aggravated murder, and it only gets to the death penalty if you also add a specification, but here's the first form of the offense: No person shall purposely take the life of another with prior calculation and design. OK, so on Tuesday, some prison guards took Darryl Durr from a holding cell to the death house at the Southern Ohio Correctional Facility. They strapped him down to a table. They stuck needles in his arms. Then they pumped him full of a barbiturate (sodium thiopentol) until he was dead. That is, they purposely took the life of another with prior calculation and design. Me? I don't think anyone has the right to do that.

Even to people who deserve killing. If you can figure out who they might be.

DEATH PENALTY SCREED - PART II

It's only news to those who didn't know it already. For most, there's no such thing as closure. The pain doesn't go away in a moment.

I'm talking about the families and friends of murder victims. You know, the ones who, it is said, find relief in death sentences for the killers and, later (much later, ordinarily), in their executions. Those things, we're told so often it becomes a mantra, provide peace and closure. Now, they say, they can have peace. And I suppose it happens. But it's not the norm. Revenge is not, ultimately, healing.

This isn't just me. Nobody ever said that my understanding of human psychology was particularly insightful.

(That's almost not true. Years ago, when the Ohio decided to prohibit inmates being executed from speaking their last words, I was quoted in the Columbus Dispatch as saying that they were trying to "pretty up the whole process, sanitizing the execution to distance all of us from it. It dehumanizes even further the person you are executing." The comment was quoted In Who Owns Death? Capital Punishment, the American Conscience, and the End of Executions, and described as having been made with "telling psychological accuracy." When I saw it, I told my wife, proudly, that nobody had ever before accused me of any psychological insight whatsoever. Quick to deflate, she pointed out that authors had described me as an "ACLU attorney in Toledo," but had omitted my name, so it remained the case that I had never been so praised. But I digress.)

The idea of closure from death sentences and executions is a myth exploited by execution advocates but supported by no reputable studies. But both studies (here, for instance) and a wealth of anecdotal evidence say something different. Sharon Tewksbury, who is pleased that the man convicted of murdering her husband was executed by the State of Ohio, commented afterwards on how she and her family felt.

None of us felt elation. None of us felt overjoyed. I don't have strong feelings about the death penalty one way or the other now. My goal is to get all of the media to understand that 'closure' is a bad word, a word survivors don't understand. 'Transition' is the word we use. That doesn't mean everything is OK. Never will it be OK, and no execution, no jail sentence, nothing, will help in that process.

That should be self-evident. Killing doesn't heal. The sort of seemingly gentle killing we insist on in the United States doesn't even provide a sense of equivalence. How often we hear the cries for vengence that "he should die the way she did," yet those are the demands of individualized vengeance, not what government executions are designed to or can provide. And, yet again, vengeance may bring some sort of satisfaction, but it doesn't undo the harm, and it sure doesn't bring peace.

What it does, and this is always important to remember, is make us them. The victim becomes the victimizer. And the friends and family of the executed become new victims. It's classic feuding. Unchecked, it's Hatfields and McCoys (sorry to my friends in both families for bringing that up, but your families did broker a peace).

And then there's the time.

As this AP story from Connecticut notes, victim family members spend years, sometimes decades, hearing over and over, reliving again and again, the details of what was done to their loved ones yet having the focus of attention be not on the victim of the crime but on the convicted killer. As the article notes, there's significant evidence that death sentences are harder on victim's families than are life sentences - where the process commonly ends quickly.

There's something perverse about the delays, but they're an integral part of a system that some percentage of the time has sentenced factually innocent persons to death and, at other times, has simply made the wrong choice in deciding who should and who shouldn't be executed. Once it's done, the error really can't be remedied. And frankly, there aren't the resources to look for errors after the fact.

But how do you imagine the victim family and friends feel when there are doubts? Denial, surely. But buried somewhere a degree of uncertainty. My innocent was killed. So we killed yours.

I mentioned Sharon Tewksbury before. The family won't admit it, and the courts wouldn't accept it, but there's every reason to believe that John Byrd, who was executed for the murder of Monte Tewksbury, wasn't the actual killer. And, as something more than a mere aside, if he wasn't the killer, under Ohio law at the time and as he was charged, he couldn't legally have been sentenced to die.

Did we kill the wrong man? I don't know. But if I had supported the killing, if I'd watched it with some satisfaction, I'd sure be haunted by the question. Closure, I don't think so.