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January 26, 2007

Friday forum: rate the injustices

My last three posts prompt me to seek feedback on which of three on-going sentencing debates involves the greatest injustice to the defendantsHere are the choices:

1.  The federal sentences for two border patrol agents, Ignacio Ramos and Jose Alonso Compean, who each got more than 10 years' in prison for the shooting of a suspected Mexican drug dealer in Texas (details here).

2.  The state sentence for Genarlow Wilson, who got 10 years' in prison for having consensual oral sex with a fellow teenager (details here).

3.  The possible (but not certain) limited period of extreme pain that a convicted and condemned murderer might feel in the course of an execution.

I see cases 1 and 2 as presenting distinct but parallel examples of (a) extreme and unjust sentencesg that can result from mandatory minimums and (b) how challenging it is for anyone, except a prosecutor exercising his broad discretion, to remedy mandatory minimum sentencing injustice.

Meanwhile, I see very little injustice to defendants in case 3 (though I see a lot of injustice to victims of crime).  By necessity, every condemned murderer has caused certain and extended extreme pain to his victims (both the murder victim and his/her family and friends).  And yet, not only do these condemned murderers seem to have many more vocal advocates than Ignacio Ramos, Jose Alonso Compean and Genarlow Wilson, they also have been able to convince state and federal judges nationwide to dramatically disrupt the administration of duly imposed capital sentences.

UPDATE:  I am pleased to see that Jeralyn at TalkLeft is also interested in this sad ratings game and has commentors giving interesting answers.

January 26, 2007 at 10:59 AM | Permalink

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Comments

That's because it's "sexy" to talk about saving Tookie . . . .

Moral preening at its worst . . . .

Posted by: federalist | Jan 26, 2007 12:53:51 PM

A small quibble. We punish convicted persons not defendants. I know that the prevailing views in the criminal justice/injustice system are that "we will prove they are guilty when we have time" but "if the defendants had any sense they would plea bargain".

Posted by: John Neff | Jan 26, 2007 1:56:26 PM

Doug, your question is nonsensical; injustice is incommensurable. Although I would argue that, as a crime victim, I wouldn't consider it justice for my attacker to suffer pain on my behalf (or not, as you say it's arbitrary whose unqualified executioner screws up). Your question is also unanswerable for another reason: you don't state what amount of pain would satisfy your urge for payback.

federalist, I don't think Tookie brought a lethal injection complaint.

Posted by: rothmatisseko | Jan 26, 2007 2:03:50 PM

Doug, your question is nonsensical; injustice is incommensurable.

It makes perfect sense. While all injustices are bad, some are worse than others. For instance, if we agree that Genarlow Wilson doesn't belong in prison, then a 20-year sentence would be a worse injustice than he is currently suffering. A 2-year sentence would still be unjust, but not to quite the same degree.

The injustice done to Genarlow Wilson is the worst of those listed. What he did shouldn't even be a crime. Indeed, the Georgia legislature revised the law, although they failed to make it retroactive.

The two federal agents have been sentence too harshly, but they did shoot somebody. That's a whole lot more serious than getting a blowjob from a classmate.

The third example is in a whole other sphere, because we don't actually know that lethal injection produces any pain. There is merely the theoretical possibility that it might. If it does, it would be brief, and the "victim" would be someone who imposed far greater suffering on others. I don't see a whole lot of injustice there.

Posted by: Marc Shepherd | Jan 26, 2007 2:54:33 PM

I don't see what is wrong with the border agents going to jail for shooting someone who
was not threatening them. I'm not even convinced that 11 or 12 years is too long.

What happened to Genarlow Wilson is, by contrast, completely ridiculous.

Posted by: William Jockusch | Jan 26, 2007 3:38:24 PM

I agree with your order. I am curious why the first is even a crime; they shot a drug dealer trying to escape! The second is a high sentence, but the law itself (banning statutory rape) is a good idea. I'd rather he be locked up than a pedophile get a light sentence, if the tradeoff had to be made. As for the third, I don't think it's injustice. Those who are executed are the worst of criminals. A painless death is better than they deserve.

Posted by: jvarisco | Jan 26, 2007 3:41:37 PM

Victims are led to believe that payback will make it all better. From what I have seen, including witnessing an execution in which a victim's family member was present, it debases them and makes them feel dirty and deflated. Forgiveness is power.

Posted by: abe | Jan 26, 2007 4:15:06 PM

The second is a high sentence, but the law itself (banning statutory rape) is a good idea. I'd rather he be locked up than a pedophile get a light sentence, if the tradeoff had to be made.

Yes, but why presume such tradeoffs are necessary? By all means lock up the statutory rapists. This kid received consensual oral sex from an only slightly-younger classmate. Under the law at the time, full intercourse wouldn't have been a crime, but oral sex was. The legislature then revised the law to treat oral sex identically, but failed to make it retroactive.

Posted by: Marc Shepherd | Jan 26, 2007 4:24:29 PM

Marc, I'm not presuming that. I think the law can be made to work; unfortunately this one does not seem to have been done well. But I support high mandatory minimums for sexual assault involving minors; an exception for those close in age would make sense, but the underlying law is important. Note that intercourse would still have been a misdemeanor, just not a felony. 10 years is excessive, but I do think what he did was wrong; an 18 year old should know better than to take advantage of a 15 year old.

Posted by: jvarisco | Jan 26, 2007 4:37:37 PM

The basis for this thread is "Does the punishment fit the crime?".

As far as I can tell the only mechanism for correcting errors in setting the sanction for a particular crime is to first get the legislature to agree that an error has been made and then to repeal the old sanction and replace it with a better one. My observation is that this is a one-way-process in that a legislature will readily agree to increase the harshness of a sanction but usually locks up in committee any attempt to reduce the harshness of a sanction. The political process (which is like trying to use a hammer to drive a screw) is the only remedy I can see for this practice.

Posted by: John Neff | Jan 26, 2007 4:41:11 PM

I see great injustice in both the conviction and sentence of Genarlow Wilson. Even the GA legislature now agrees that what he did should not be a crime.

I see great injustice to the mandatory minimum sentence of 10 years for discharge of a firearm in relation to a crime of violence. Given the individual facts of this case, the judge should have had the discretion to impose a lower sentence.

However, I do not see injustice in their convictions (and therefore would rank Wilson first). The pair were convicted by a jury of assault w/ serious bodily injury, assault w/ a deadly weapon, discharge of a firearm in relation to a crime of violence, civil rights violations, and obstruction of justice. The jury heard both sides of the story (which many who complain of their convictions did not) and decided these men committed every element of each of these crimes. (note also, the jury did acquit the pair on some charges)

Concerning the third choice, I am an opponent of the death penalty, but it's not because I think the punishment is unjust. Moreover, if we're going to have the d.p., I don't think there is great injustice in the possibility (not certainty) of the murderers feeling pain for a few moments while they are put to death.

Posted by: DEJ | Jan 26, 2007 7:20:54 PM

A correction and an apology to our host: Doug, my reference to "your urge for payback" should have read "the urge for payback expressed by a lack of concern for pain during executions." You weren't expressing bloodlust, strictly, but rather something to do with reciprocity for causing pain. A subtle but important distinction in the context of the topic.

But you're still wrong.

Posted by: | Jan 26, 2007 10:38:06 PM

^^ that's me.

Posted by: rothmatisseko | Jan 26, 2007 10:40:38 PM

As far as I can tell the only mechanism for correcting errors in setting the sanction for a particular crime is to first get the legislature to agree that an error has been made and then to repeal the old sanction and replace it with a better one. My observation is that this is a one-way-process in that a legislature will readily agree to increase the harshness of a sanction but usually locks up in committee any attempt to reduce the harshness of a sanction. The political process (which is like trying to use a hammer to drive a screw) is the only remedy I can see for this practice.

The Court has used the 8th Amendment for this. Long live judicial review.

Posted by: Mr. Habeas | Jan 27, 2007 5:36:21 AM

jvarisco, you wrote: "I am curious why the first is even a crime"

I don't know the details of the case beyond cursory media accounts, but my understanding is they shot an unarmed drug smuggler in the back while he was running away and then covered it up. (It's often the coverup, that gets public servants in trouble, in the end, as much as the act itself.)

As Doug notes, the instance really is an argument against mandatory minimums and for greater downward sentencing discretion. (By contrast, consider that Tom Coleman, the officer who set up the Tulia defendants and repeatedly perjured himself, got 7 years PROBATION in state court, where there are no such mandatory minimums.)

Finally, this isn't some liberal doing this to these BP agents. US Attorney Johnny Sutton is a full-blown right wing drug warrior and his office is leading the nation in immigration prosecutions. It's one thing to be unhappy at the sentencing, but if a grand jury indicted and a petit jury convicted, you'd have to wonder if there isn't SOME fire where the prosecutor claimed there was smoke. Best,

Posted by: Gritsforbreakfast | Jan 27, 2007 7:58:23 AM

Oh, and on the ratings, I'll take #2 in spades. It's one thing to feel it's unjustified that someone got 10+ years for shooting someone else. It's quite another to give out 10 year stints for being the recipient of a consensual blow job.

Posted by: Gritsforbreakfast | Jan 27, 2007 8:01:21 AM

First of all, Professor Berman, I would like to thank you for all the information you provide. After spending the last couple of years reading in depth about sentencing and other prison-related issues, I am struck by the fact that the people who care deeply about these topics, including the millions of people who have loved ones incarcerated, are talking mainly to each other. Most people in this country are unaware of these issues which could potentially affect any one of us.

I recently had this brought home to me (and lost any respect I had for our system of "justice") when I watched in horror and disbelief the wrongful conviction and vindictive sentencing of a good friend. In the process, I watched a well-recommended defense attorney (for whom I paid since my friend had no money) promise specific defense strategies and fail to use them at trial, following what his associate privately described to me as "threats" by the prosecutor and the judge. The prosecutor informed those in the courtroom that "You don't need evidence to convict someone. You don't need any evidence at all." An attorney friend of mine assured me that the prosecutor was right. I wonder how many Americans are aware of this.

When I purchased a copy of the trial transcript, I found that this, as well as a number of other interesting statements by the prosecutor and the judge had been either reworded or excised in their entirety. The court reporter even insisted that one incident which occurred during my testimony had never happened. It had even miraculously disappeared from the tape of the trial, which he had all ready to play for me.

I am not crazy, nor am I alone in my assessment of this situation. My white, middle-class, professional friends who watched the entire trial includedc a teacher, two nurses, a former police officer of 14 years experience, and two ministers. They were equally horrified. They all remember the statements which were subsequently altered or removed from the transcript. I suspect the jury members would remember them, too. By the way, I did try to appeal using a different law firm. They saw a legal naif coming, took my money and laughed. Given the way the Supreme Court sentencing decisions have been interpreted in Ohio, I would certainly not consider an appeal now. Were my friend to be convicted again, it sounds as if the judge could now put him away forever without stating a reason.

Since my baptism of fire in our legal system, I have read extensively in the areas of criminology, prisons, sentencing, and other legal matters and have become a regular reader of your blog. Regarding your questions, I do not personally believe in the death penalty. However, I am most outraged by the Genarlow Wilson case. Our whole approach to sex offenders is insane. But branding young people as sex offenders for behavior typical of teenageers is just the tip of the iceberg. Beyond the whole sex offender issue, we are systematically taking vast numbers of people whose lives might be turned around and, by sentencing them to long prison terms, ensuring that they will never be able to lead normal lives and thereby increasing the danger to the entire society. Even if Genarlow Wilson were released tomorrow, what damage has been done to the top student and athlete he was? Has he had to join a gang to survive in prison? Has he had to engage in violence to defend himself against other inmates? Has he become angry and resentful against a society which will always be suspicious of him? The systematic destruction of potentially useful citizens by our legal system is an issue which our country as a whole needs to become aware of and address.

In regard to my personal situation, I do have two specific questions.

(1) Post-release control was not mentioned in my friend's sentencing hearing or the judge's sentencing notes. It is not mandatory for the level of felony of which he was convicted. Following Hernandez, the Ohio legislature passed and "Oops, I goofed" bill allowing judges to go back and change this after the fact. Is there any move afoot to decide whether this might constitute double jeopardy and therefore be unconstitutional?

(2) Since my friend was sentenced to consecutive maximum prison terms for two felonies of the same degree, assuming he is put on post-release control, can he be sent back to prison for a violation? How is this not double jeopardy? If he can be sent back for half of his prison term, would this be half of the entire consecutive term, or half of the sentence for one of the felonies? Has this type of situation been challenged?

I would very much appreciate it if anyone cares to address these questions. I have searched Anderson's online documentation and the DOC website in vain. I do not have the money to hire yet another attorney, and I am totally unwilling to utilize further the firm which served us so poorly at the outset.

Posted by: disillusioned layman | Jan 27, 2007 9:15:00 AM

Genarlow Wilson was punished (10 years) for the heinous crime of not pleading guilty. He did not conform to the culture--cop out and get rid of the case--and comments by both the prosecutor and D.A. seemed to me to reveal that unjust fact. His sentence was retaliation. That's my idea of injust # 1.

Posted by: Mike Israel | Jan 27, 2007 10:57:33 AM

In the case of #1, there is no injustice whatever. Those men shot an unarmed fleeing man and then tried to cover up their crime. What makes their crime even more egregious is that they were law enforcement officers who terribly abused their position of authority and trust. Their sentence wasn't nearly harsh enough in my view. This case should not even be on the list.

The young man in #2 was treated with unconscionable injustice. 'Regular' intercourse between these two young people would have been a misdemeanor. The oral sex he was convicted of is considered a felony. GA's laws are practically neolithic. There could have been no miscarriage of justice if GA's legislators would own up to the fact that their daughters and grand-daughters are doling out hummers to their male classmates like they were handshakes, and amend their laws accordingly.

As to #3, the injustice of experiencing pain seems to pale in comparison to the loss of one's life. I am of the opinion that because of the inaccuracy of the criminal justice system, that any execution has an unacceptably high degree of risk that we are murdering an innocent person. I think being murdered by the state by mistake is about as perfect an injustice as there can be. Assuming that you are, in fact, guilty when being executed, then pain is not unjustified to the degree it is necessary to effecting your death. However, there is little or no utility in causing suffering that is difficult to actually discern. If the condemned is not obviously suffering, then the only justification of the death penalty - deterrence - is not well served. So, my answer is that the suffering, to the extent that it is not obvious to an observer, is unjust in that it is wasted. But in the larger context of mistaken murders by the state in the course of executing criminals, such suffering is a pittance on the scales of karma.

Posted by: Michael Bryan | Jan 27, 2007 3:25:19 PM

It is far more complicated than "sexy."

Crime victims by definition were treated unjustly (leaving aside cases like drug possession, where the possessor is both victim and perpetrator). Reading something like "Live Noir: Henry Ford McCracken’s 1952 Santa Ana murder trial launched the age of broadcast voyeurism" has a tendency to incite the reader to join the couch potato lynch mob, though McCracken is long executed. So what do we do with that anger? Though the system worked, that doesn't seem to be enough. It is the same with Nancy Grace's false claim that the system failed her.

There is a great deal of public outcry over heinous crimes until we are convinced the State has the culprit under control and will administer justice. The rage may go on, but that it becomes more subdued and patient is a sign of faith in the system rather than an indication that no one cares about victims. Indeed, many crime victim bills are named after victims in which the system worked and the perpetrator was brought to justice: Jessica Lunsford, Dru Sjodin, Megan Kanka and many more. Outrage at the individual perpetrators is not enough.

Public outrage today is an understandable effort to prevent murders like the Jessica's, Dru's and Megan's, and so are the arguments against the death penalty an effort to prevent murder. Granted, those on death row are presumably guilty of vicious murders, and that is what distinguishes them from innocent crime victims, but one can care about crime victims and still care about the lives on death row. It is probably impossible to read the facts in a death penalty appeal and not have a great deal of grief and empathy for the victim, and none for the condemned, but like a surgeon who saves the life of someone subjected to the rage of a lynch mob, defense lawyers can operate on principle. It is unjust to them and an insult to the Constitution to belittle their efforts even if trendy to do so.

It is far from true that the plight of crime victims is ignored. In fact, the trend is to set our sights on every criminal within range even if the perpetrator was brought to justice, even if the perpetrator was already tried, convicted and executed, as with McCracken. That the rage is understandable, that the temptation is to join the couch potato lynch mob, does not justify surrendering to it blindly. A system founded on checks and balances must have differing views to survive and not succumb to tyranny. There was no political voice against the death penalty in the concentration camps. The fight for due process is a necessary (evil, if you like) factor in our system to help keep the checks and balances balanced.

There is danger in crime, often ugly and disgusting danger, but one person can never do the evil a government can do, and our Bill of Rights was founded on this truth.

There is a common thread running between all three sentences. Genarlow Wilson was arrogant enough to exercise his right to trial and paid the price, despite what the victim said. The shooting victim in the Romos and Compean was arrogant enough to disobey an order to stop and paid the price of getting shot in the back. Saddam Hussein was arrogant enough to defy the U.S. and was then invaded for torturing and killing his citizens, though we justify the same under our own laws. All three cases are good examples.

Posted by: George | Jan 27, 2007 4:32:03 PM

2 then 1 then 3

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