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January 31, 2011

Another capital classic: Washington prisoner serving LWOP suspected in guard murder

A sad story involving the murder of a prison guard from the state of Washington provides fodder for advocates of the death penalty now that the suspect has been revealed to be a prisoner already serving a life without parole sentence.  This local article reports on the details:

The inmate suspected of killing a corrections officer in Western Washington is a sex offender serving life in prison for the abduction and rape of a Spokane-area real estate agent in 1995.

Byron Scherf, 52, who has a long history of violent sexual assault, is in an isolation facility after Correctional Officer Jayme Biendl, 34, was found dead Saturday night by fellow officers in the chapel lobby of the Monroe Correctional Complex, according to the Department of Corrections.  Biendl reportedly had complained to supervisors about working alone in the chapel....

Scherf was reported missing during a routine count at 9:14 p.m. Saturday.  He was found three minutes later in the chapel lobby and authorities say he told officers he had planned to escape.  An hour later at shift change, staff members saw that Biendl hadn’t turned in her keys and radio, so they went to the chapel.  Staff found her unresponsive, performed CPR and called 911.

Emergency responders were called and Biendl was declared dead at 10:49 p.m.  She had been strangled with a microphone cord.  The prison was in lockdown on Sunday as law enforcement officers investigated the killing.  Department of Corrections spokesman Chad Lewis confirmed Scherf was the suspect.

Scherf was sentenced in 1997 by Spokane County Superior Court Judge Neal Rielly to a life sentence without chance of parole after a three-day, nonjury trial in which he was convicted of the kidnapping and rape two years earlier of a 37-year-old woman near Spangle....

Labeled a “persistent offender,” Scherf became the fifth person in Spokane County to be locked away under the three-strikes law.  Scherf appealed the conviction, which was upheld by the state Court of Appeals....

In 1978, Scherf was convicted of second-degree assault in Pierce County and paroled after serving two years of a 10-year sentence. In 1981, he was convicted of raping a Pierce County woman before dousing her with gasoline and setting her on fire.  The woman escaped by wriggling, bound, through a second-story window.  After being married while in prison, Scherf was paroled in 1993....

“I don’t forgive you,” the victim said at Scherf’s sentencing hearing. “I feel like I’ve gone through hell, but I also feel like a hero” knowing that “he won’t hurt or maybe kill anyone else.”

Biendl’s death is the first killing of a corrections officer at Monroe and the first of a corrections officer in a state prison since 1979. “We have a lot of rattled staff members, a lot of tears,” Lewis told The Spokesman-Review. “It hit them hard.”

It is sad cases like this one that make it really, really hard for me to favor a categorical ban on the death penalty. Without the death penalty, there is no punishment that can be imposed on LWOP offenders for extreme prison crimes (unless one endorses torture as a punishment).  Consequently, I would be especially interested in hearing in the comments from readers who oppose the death penalty what kind of punishment can and should be imposed on an LWOP prisoner who kills.

January 31, 2011 at 07:58 AM | Permalink

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"comments from readers who oppose the death penalty"?

Why he needs to be released from the environment that fostered his violent temperament. Prison caused his murderous tendencies. Perhaps, he can live on the same street as the judge, or that of the lawyers in the legislature that voted against the death penalty.

Posted by: Supremacy Claus | Jan 31, 2011 8:30:16 AM

This prisoner is a punishment non-responder. Or his sexual urges and cruelty are greater than any effect of punishment. Only incapacitation has any criminal justice value. His behavior was likely set at age 3. He should have been executed in his teens. We would have spared likely 100's of unknown victims their trauma. However, he is a valuable commodity to those seeking government make work sinecures. So, no one may even verbally criticize him without risking their jobs for verbal abuse. Thank the lawyer.

Posted by: Supremacy Claus | Jan 31, 2011 8:36:07 AM

Thanks to the abolitionist lawyer, he has absolute legal immunity for all subsequent crimes. His license to kill is better than that of James Bond. The latter has civil service and political appointee oversight, and second guessing to deal with by politicians who do not understand anything.

The remedy is to remove his protection so that other inmates can finish him, the rough way. Or, he will slip on a wet metal step and tumble head first down a long flight of steps.

Posted by: Supremacy Claus | Jan 31, 2011 8:44:15 AM

The reports I read indicate he was in a medium security prison. Perhaps the real problem is, why would a LWOP (violent crimes) prisoner not be housed in a maximum security prison?

Posted by: . | Jan 31, 2011 9:05:45 AM

see this article


The corrections complex houses maximum-, medium- and minimum-security inmates. Scherf was serving in medium security. Officers do not carry weapons on duty at the Monroe facility.


http://www.spokesman.com/stories/2011/jan/31/inmate-suspected-in-prison-guards-death-serving/

Posted by: . | Jan 31, 2011 9:07:28 AM

Posted by: . | Jan 31, 2011 9:07:28 AM,

My understanding is that except for special circumstances (meaning something has already gone wrong), staff in most prisons do not routinely carry weapons. The risk that a prisoner will overpower a guard and take the weapon is considered greater than the marginal safety increment of arming guards, even with something as simple as a baton. If we are going to have prisons were staff and inmates are not physically segregated from each other most of the time I suspect this view is probably correct.

Posted by: Soronel Haetir | Jan 31, 2011 9:49:30 AM

Let's get back to Doug's question, leaving aside SC's usual clutter. What do those who are opposed to the death penalty propose as punishment for LWOP inmates who commit murder?

Posted by: alpino | Jan 31, 2011 11:03:29 AM

Suppie is nostalgic of the former Soviet Union: no lifers over there, only 30 years or death.
By the way, is Washington state a death penalty state or not ????

Posted by: claudio giusti, italia | Jan 31, 2011 11:12:08 AM

Prof. Berman:

As a criminal prosecutor whose personal views on capital punishment are probably a bit further to the right than yours (although perhaps not by as much as you might think), I really appreciate your thoughtfulness and disinclination to take the easy, but intellectually lazy, way out. It would be better, all around, to see the death sentence sought less often (without the state consequently being punished, in cases where a sentence of death is imposed, with interminable delay and second-guessing during the litigation process about why a death sentence was sought in this case, but not in other, supposedly similar, cases). But, as you say, what the hell do you do with people who have what Judge Posner once called "de facto immunity" from additional criminal punishment because they're already serving sentences that are either LWOP or the functional equivalent of LWOP? I suspect that some of the people who comment on this board, who categorically oppose capital punishment would also reflexively oppose long-term confinement in highly restrictive conditions, e.g., Supermax, as unconstitutional cruel and unusual punishment, even for people who have killed a guard or fellow inmate while already serving a life sentence.

I don't always agree with Bill Otis, who I think often goes too far, and heaven only knows that I don't often agree with Supremacy Claus, who I think has the kernels of some fair points but then obviously takes them to wacky extremes. But on this one, I think it's certainly fair to ask why categorical opposition to capital punishment (combined with what I assume would be categorical opposition to long-term confinement in Supermax) doesn't equate to callous indifference to the rights of prison guards and other prisoners not to be maimed or killed. (As if killings of guards and other prisoners are just "tragic" and sad events that must be tolerated as things that regrettably "just happen," so long as they aren't caused directly by agents of the state.)

Posted by: guest | Jan 31, 2011 12:12:32 PM

Claudio:

The short answer to your question is yes. Washington State is a state where the death penalty is available for certain types of murders. The slightly longer answer to your question is that I believe that death sentences are sought and imposed relatively rarely there. Moreover, the federal court that includes Washington State (the U.S. Court of Appeals for the 9th Circuit) has demonstrated that it is most unlikely to allow any death sentence to stand. Regardless of the facts, a number of judges on that court will never vote to uphold a sentence of death. As a practical matter, states within the 9th Circuit have had to seek review by the United States Supreme Court, the only court that can review and reverse the 9th Circuit's rulings.

Posted by: guest | Jan 31, 2011 12:19:52 PM

"What do those who are opposed to the death penalty propose as punishment for LWOP inmates who commit murder?"

This individual was convicted of rape and kidnapping but not murder. Thus, he would not be eligible for the death penalty. He should have been in maximum security with murders and others serving LWOP.

Posted by: . | Jan 31, 2011 1:01:20 PM

I disagree with guest that DP opponents would generally be opposed to supermax, etc. I am in favor of a categorical ban on the DP in the United States simply because I don't believe its limited usefullness (arguably in cases such as this) outweighs its many negatives. However, I am not opposed to 23.5/7 isolation for inmates who have established that they are unable to live even in the restrictive prison environment. Prisoners and, especially, guards are entitled to be able to go about their business in prison without being raped and murdered. The Department of Corrections should be allowed to take those steps necessary to make that happen.

Posted by: Ala JD | Jan 31, 2011 1:14:34 PM

i have to say this is one individual i could execute...ie KILL with no problem what so ever! His record speaks for itself

"In 1978, Scherf was convicted of second-degree assault in Pierce County and paroled after serving two years of a 10-year sentence. In 1981, he was convicted of raping a Pierce County woman before dousing her with gasoline and setting her on fire. The woman escaped by wriggling, bound, through a second-story window. After being married while in prison, Scherf was paroled in 1993...."

Screwed up once...went to prison and was let out 8 YEARS EARLY.... less than a YEAR based on the numbers he was again convicted of another felony and had upped it to a sexual assault assuming there was no sexual componet in the first second-degree assault.....sorry at that point you have proved you can't and WON'T control your impulses so good riddence to bad rubbish! of course in this case the prison officials carry a big part of the blame....there is no way in hell this psycho should have been in a Mimimum/Medium mixed facility that was the hight of stupidity.

Posted by: rodsmith | Jan 31, 2011 1:27:46 PM

I am a hard-core death penalty skeptic. There are certain murders where I feel no sympathy for the defendant and that under those facts a death sentence is not disproportionate to the crime. My problem is that our system is hopelessly insufficient for the task of deciding who should die. The kind of justice you get depends too much on the defendant's and victim's social station, local politics, and the vagaries of who happens to end up on your jury.

There is not an easy answer to what punishment short of death would deter someone with LWOP de facto immunity. LWOP inmates can commit all sorts of crimes in prison (rape, assault, battery, extortion, etc) where additional prison time would be pointless. By the same logic, the death penalty should be an option for many serious crimes committed in prison by LWOP inmates. There is also a question of whether the death penalty would actually deter LWOP inmates or simply satisfy society's desire for retribution. Both deterrence and retribution are justifications for punishment, but we should seriously consider whether there would be any real deterrence effect from making death an option for prison murders.

It is a mistake to assume that anyone who opposes the death penalty must oppose restrictive prison environments. It is absolutely worth asking why an inmate with that background was in a medium security facility and why a single guard was assigned to guard multiple inmates with no backup or monitoring.

Posted by: Bryan Gates | Jan 31, 2011 1:33:52 PM

@ Ala JD:

I appreciate your response and your willingness to draw the distinction. Respectfully, though, I continue to believe that many (although obviously not all) of the people who categorically oppose capital punishment (including some of the people who comment regularly on this site) would, if capital punishment were unavailable, quickly jump on the "Supermax is unconstitutional" train, assuming they're not already there.

Some (although obviously not all) DP abolitionists are simply reflexively unable to see prisoners as anything more than victims of society, rather than victimizers; that to the extent they're violent, it's society's fault and not theirs; and that to the extent that they killed anyone in prison, it's society's fault because prison conditions were too restrictive and not nice enough, as opposed to not restrictive enough, etc. They focus only on what seems unfair and harsh to the particular prisoner, and not at all on the guards and the other prisoners.

Posted by: guest | Jan 31, 2011 1:38:25 PM

@ Bryan Gates

"I am a hard-core death penalty skeptic."

I could be wrong, but it sounds as if your position is stronger than skeptical.

"My problem is that our system is hopelessly insufficient for the task of deciding who should die. The kind of justice you get depends too much on the defendant's and victim's social station, local politics, and the vagaries of who happens to end up on your jury."

Herein lies a big part of the problem. Few people would want to see the death penalty sought in every conceivable case that met the statutory criteria for capital prosecution. But when discretion is exercised (whether by prosecutor or jury), the public is punished with unending litigation over the process by which Case X, and not supposedly similar Case Y, was selected for capital prosecution, even if both cases were appropriate.

"There is not an easy answer to what punishment short of death would deter someone with LWOP de facto immunity. LWOP inmates can commit all sorts of crimes in prison (rape, assault, battery, extortion, etc) where additional prison time would be pointless. By the same logic, the death penalty should be an option for many serious crimes committed in prison by LWOP inmates."

No, I think you could draw the line at murder in prison by inmates serving LWOP sentences or their functional equivalents; you probably also could have drawn it at completed attempts to commit murder in prison, except that I don't think that would work under the Eighth Amendment as currently interpreted.

"There is also a question of whether the death penalty would actually deter LWOP inmates or simply satisfy society's desire for retribution. Both deterrence and retribution are justifications for punishment, but we should seriously consider whether there would be any real deterrence effect from making death an option for prison murders."

I assume that you'll agree with me that a prisoner who is actually executed for committing a murder in prison while sentenced to LWOP will be deterred from committing additional murders. And I assume you'll agree that there will be at least **some** deterrent effect on other LWOP prisoners. The goals of deterrence and retribution aren't mutually exclusive.

There is either deterrence or there isn't; and if there is, the question is whether the additional amount of deterrence is "worth it" when measured against whatever other factors one wants to consider. I don't think it's a legitimate counterargument against someone who argues deterrence to argue that the person's real subjective motivation is retribution. Whether or not that's true (or true in part), that doesn't answer the question about deterrence.

"It is a mistake to assume that anyone who opposes the death penalty must oppose restrictive prison environments. It is absolutely worth asking why an inmate with that background was in a medium security facility and why a single guard was assigned to guard multiple inmates with no backup or monitoring."

I don't make that assumption about "anyone who opposes the death penalty," although as a practical matter I think it's a fair assumption about many (and maybe most) who do.

Consider the cases that large firms take pro bono, either on behalf of litigants or on behalf of amici, and for which they give each other awards at the organized bar's rubber-chicken circuit. You will see briefs filed on the side of prisoners, railing against the conditions to which they are being subjected to by the state. You'll see far fewer efforts defending the state's position (e.g., "amici, opponents of capital punishment, believe as a matter of general principle that the logical corollary of their opposition to capital punishment is that states must be afforded broad latitude, consistent with the Eighth Amendment, to discipline and manage dangerous prisoners who have demonstrated that the ordinary incidents of prison life are insufficient to protect prison staff and other prisoners from an unreasonable risk of violent attack"). It's just not the kind of thing that the organized bar -- as a very general rule -- does.

Posted by: guest | Jan 31, 2011 2:01:35 PM

guest --

I have not been following the thread closely, but I have read enough to be sure of this: This site would be dramatically improved if you would comment more frequently. I would also welcome you as a commenter on the site that Kent Scheidegger runs, and to which I am a contributing blogger, Crime and Consequences, http://www.crimeandconsequences.com/crimblog/.

Thank you for your serious, analytical and balanced approach.

Posted by: Bill Otis | Jan 31, 2011 2:38:57 PM

@ Bill Otis:

Thanks -- I may take you up on it. (How would one go about becoming a commentator on C&C? My understanding is that it requires a login, but I'm not sure how one signs up for one. FWIW, I think that C&C is generally excellent, and that its one weakness is that it sometimes has a "preaching to the converted/the choir" echo chamber quality to it. It would be good if there were commenters and writers, like Professor B., who would raise dissenting or concurring-with-reservations viewpoints, without simply being closed-minded contrarian trolls who don't have anything to contribute except for their disagreement.)

Posted by: guest | Jan 31, 2011 3:49:37 PM

guest --

I will contact Kent and ask him to give you directions for logging in on C&C.

I agree that we have a somewhat preaching-to-the-choir feel at C&C, but that appears to be part of blog life. Personally, I welcome debate and dissent. Indeed, one of the reasons I visit here is that conservatives are considerably outnumbered on this site, and I like to show the flag. As you have seen, you can get anything from quite insightful comments to flat-out spitting. But that too is part of blog life, although at C&C we have very few spitters (because Kent has a justifiably short fuse for it).

I know Doug reads C&C, but, what with his jam-packed schedule, I think one blog is about what he can handle, and he does a really, really good job with this one.

Posted by: Bill Otis | Jan 31, 2011 5:12:55 PM

In response to Doug's challenge, I would make the following observations.
LWOP, like the death penalty, is a flawed policy. While it is perfectly right that some people should never be released, LWOP takes away all incentive for remorse, reform, cooperation and acceptance of the sentence. It therefore adds to the indeterminate risk posed by all prisoners, whether with a history of violence or not. There is no sane reason not to have opportunities for review of sentence and regime, even more so where the original crime was not for murder. I have no idea of the counseling and supervisory practices that may or may not have been in place in this particular instance, but I suspect that they may have been minimal ... in keeping with the apparent warehousing concept that pervades too many prisons. Of course neither of us is speaking with full knowledge of the circumstances.
As for an appropriate punishment in a case like this, which is rare, and partly a result of mismanagement of both prisoner and staff, then your other commentators have already stated the obvious ... that a more secure and managed regime will be appropriate. Behavior of all prisoners can and should be managed in a secure yet humane manner. However, as in all aspects and environments of life, the greatest danger is complacency. Effective management requires effective resources and highly trained personnel. Neither are cheap, yet are essential when society commits itself to penal institutions.
Your comment "Without the death penalty, there is no punishment that can be imposed on LWOP offenders for extreme prison crimes." is therefore factually incorrect, and, as a defense for the retention of the death penalty, an irrelevance. What in the world do you imagine happens in the penal institutions of Europe, Canada and other nations that manage without the death penalty? Your senses seem to be dulled by the weight of the perverse multi-life sentences and others that are imposed daily and so freely across the US, largely without thought for the consequences. Nor for the responsibilities that society must then bear.

Posted by: peter | Jan 31, 2011 6:02:41 PM

@ Bill Otis:

Thanks. (And I agree with you about this blog, where I think a lot of people, in addition to Prof. B., have thoughtful, non-knee-jerk-reflex things to say. Including, at least some of the time, Supremacy Claus, who I assume (???) is just exaggerating wildly to make his points, kind of like a law and economics professor as played by comedian Lewis Black -- as opposed to actually off-his-meds.)

Posted by: guest | Jan 31, 2011 6:10:29 PM

I think I have demonstrated over the last couple years my strong belief that execution is an appropriate penalty that is not utilized nearly enough. That being said, I do in fact think super-max conditions should (though haven't as far as I know) fail the 8th amendment test. My answer to the quandary would be that the federal courts were entirely lawless when they started ruling that certain crimes were not serious enough to warrant execution.I would also reduce the level of proof for executing an already incarcerated individual. It should be tough to survive the prison experience, lots of chances to screw up (and earn a date with the executioner) and very few for release.

Posted by: Soronel Haetir | Jan 31, 2011 6:30:11 PM

"In response to Doug's challenge, I would make the following observations.
LWOP, like the death penalty, is a flawed policy."

And speaking of knee-jerk-reflex reactions . . . .

"While it is perfectly right that some people should never be released, LWOP takes away all incentive for remorse, reform, cooperation and acceptance of the sentence."

Of course, this assumes that the prospect of a certain sentence of lifetime imprisonment for murder has **no** deterrent effect on pre-incarceration behavior, as if the only thing that matters is how people behave once they've already killed someone. I would agree that certainty of apprehension and punishment are more effective deterrents than severity of punishment, but I don't believe that severity of punishment has **no** additional deterrent effect.

"It therefore adds to the indeterminate risk posed by all prisoners, whether with a history of violence or not."

Surely you don't believe that the risk is indeterminate, or equal among "all prisoners."

There is no sane reason not to have opportunities for review of sentence and regime, even more so where the original crime was not for murder.

Again, that assumes that the only thing to be considered is incentives for behavior once already in prison and not the deterrent effects on people who haven't yet offended.

"I have no idea of the counseling and supervisory practices that may or may not have been in place in this particular instance, but I suspect that they may have been minimal ... in keeping with the apparent warehousing concept that pervades too many prisons. Of course neither of us is speaking with full knowledge of the circumstances."

Although that doesn't appear to be deterring you for implying that, in reality, it's really the fault of prison officials (or society at large) as opposed to the fault of the person who actually made a decision to strangle this prison guard.

"a more secure and managed regime will be appropriate. Behavior of all prisoners can and should be managed in a secure yet humane manner."

Although I'd give other commenters on this blog considerably more of the benefit of the doubt on this point, I have a difficult time believing that you would accept what is "secure" for this class of prisoners as "humane."

"What in the world do you imagine happens in the penal institutions of Europe, Canada and other nations that manage without the death penalty?"

That is an interesting question. Because I assume that each of these countries have their share of extremely violent sociopaths who have demonstrated a strong propensity for violence, even in prison, my guess (and this is just a guess -- if anyone knows better, please set me straight) is that these countries find it easier to treat them as mental-health cases and forcibly medicate them so as to make it safe(r) for the other prisoners and guards.

Posted by: guest | Jan 31, 2011 6:30:29 PM

The death penalty in this case, upon conviction, should be mandatory. Woodson v. North Carolina was wrongly decided and should be overturned.

Posted by: federalist | Jan 31, 2011 7:43:47 PM

We do not need the death penalty. Obviously, this prisoner requires solitary confinement and perhaps his movement in the prison is just too fluid. The prisoner has easy access to many amenities and some these amenities are easily converted into weapons. Certain inmates have to remain in close supervision or confinement because they are a danger to others or themselves. Proper psychological classification is very important and that will determine where, what and how certain inmates can access and what they can do. The other thing I wish to mention here is guard psychology. Not every guard or correctional officer is suitable for ground work or work very closely with inmates. One being the aptitude and the other being the mental strength. It does not mean that if a correctional officer is strongly built and able to manhandle prisoners can do a good job - some correctional officers tend to be abusive, perhaps lacking interpersonal skills. These skills cannot be taught, its genetic and the importance of the ability to communicate in a convincing manner or influence. I am not trying to underestimate the correctional officer here and I meant no disrespect as well. Correctional officers jobs are very hard, stressful and dangerous, and in order to maintain safety in an institution the administrators have to constantly scrutinize the subordinates' abilities and not criticize but constantly pointing their peers, subordinates and colleagues in the direction of one's abilities.

Posted by: Dominic Chan | Jan 31, 2011 9:19:05 PM

There it is, the absolute, bottom line reason for abolition of the death penalty. What is the alternative to maintain security in prisons and outside? From Peter, massive increases in government staffing and training.

"I have no idea of the counseling and supervisory practices that may or may not have been in place in this particular instance, but I suspect that they may have been minimal ... in keeping with the apparent warehousing concept that pervades too many prisons. Of course neither of us is speaking with full knowledge of the circumstances.
As for an appropriate punishment in a case like this, which is rare, and partly a result of mismanagement of both prisoner and staff, then your other commentators have already stated the obvious ... that a more secure and managed regime will be appropriate. Behavior of all prisoners can and should be managed in a secure yet humane manner. However, as in all aspects and environments of life, the greatest danger is complacency. Effective management requires effective resources and highly trained personnel. Neither are cheap, yet are essential when society commits itself to penal institutions."

Posted by: Supremacy Claus | Jan 31, 2011 9:40:07 PM

The security level of prisoners incarceration on the state and especially the local level is very inconsistent and varied. Sometimes it has no relationship to the nature of the crime. This is the prerogative of the controlling body.

It is not uncommon for very violent criminals to be held in non secure facilities with non-violent inmates. On the other hand non-violent inmates are frequently held in facilities that are very restrictive with costly precautions.

On the federal level - inmates are very likely to be held in facilities with higher security then their criminal history warrants.

There was no indication that this inmate should be held in a medium security facility. Obviously this was a fatal error.

State and local depends on the culture of the region

Posted by: beth | Jan 31, 2011 9:56:56 PM

I nominate "peter" to be the person who provides the counseling this poor, misunderstood, under-counseled inmate so obviously needs. Go ahead, Peter. Counsel him yourself in the chapel.
Fool.

Posted by: oh puhlease | Jan 31, 2011 10:55:21 PM

Forced hard labor.

Posted by: Mike Rethman | Feb 1, 2011 1:32:00 AM

The determination of some contributors to deny the responsibility of society, through state and federal organs of administration, for the welfare of inmates AND penal institution staff, is one of the most worrying aspects of the tone set on this blog. It is of course reflective of the attitudes that have accepted the massive increases in levels of incarceration in the US in recent decades. Somewhere along the line, possibly driven by the extreme rhetoric of mainly past politicians who wished to be seen to be ever more "tough on crime", this pervasively negative attitude has developed to a point that "the criminal" is viewed almost as a different race, even non-human. This attitude is both contrary to the aims and philosophy of related international law, and indeed to the spirit and word of the US Constitution.
The aims of incarceration are clear:
1. to protect the public
2. to punish the offender
3. to deter both others from crime, and to deter future criminality by the offender
4. to reform by education, and in some cases by professional medical/psychological treatments
5. to prepare most offenders, via rehabilitation programs, to return to free society at a future date.

The is NO aim to create or tolerate any conditions of incarceration that can be described as neglect or abuse of prisoners.

Supremacy puts his hands up in horror at the scale of state and public responsibility. So too would every other nation on this earth who look upon the incarceration levels and policies with incredulity.

Getting a little smarter on Sentencing Law & Policy would drastically reduce the demands and resources required, and enable the essential reforms of penal institutions that would:
1. Increase security for inmates, prison staff, and the public
2. Reduce the numbing sense of hopelessness that leads to the mental health deterioration of inmates
3. Increase the successful reintegration of most inmates into free society.

I'm flattered that Guest sees the need to dissect my every sentence to protect the illusion that the status quo is healthy and requires little change, but that is akin to the filibuster tactics too often seen in political places. Huge reform is necessary in sentencing and penal practices. One would have hoped that most contributors to this blog, of all blogs, would seek to promote that change. But as I remarked to Bill Otis a short while ago, it is necessary to admit to the problems first.

Posted by: peter | Feb 1, 2011 2:20:06 AM

I hope Peter does not take this personally, because it is a prevalent ideology. The lawyer hierarchy is the responsible party. The scope of their betrayal and criminality justifies their mass arrest, a brief trial, and summary executions for their insurrection against the constitution for money profits.

This is how it works.

A female guard is killed. There are two ways to have prevented this murder.

Choice 1. She would be alive if the prisoner had been executed at 14 or 18, or the youngest age palatable to the public. We knew his modus operandi at age 3. And the prediction at age 3, even by pre-kindergarten classmates is highly reliable. This reliable foreseeability by even preK students makes all his subsequent damage the responsibility of the lawyer hierarchy.

Choice 2. The other way to prevent the murder of the female guard is to have a second guard in the chapel. That means double the personnel budget. Indeed the biggest different feature of Super Max is the higher staff ratio, not so much the physical infrastructure.

The left, pro-government lawyer hierarchy has ruled out Choice 1. They have held this guard's life hostage until the budget is increased. This makes the proposal of Peter an armed robbery with hostages taken. It is a criminal enterprise proposal. You, the taxpayer, double the personnel budget, or more staff will die. Killing the prisoner at an early age, sparing hundreds of victims, known and unknown, horrible traumas, is not even remotely possible, not a subject for discussion. We are over-ruling the states and the choices of their elected officials, when they consider the death penalty for young people or mentally retarded people.

This fiscal motive makes the abolitionist movement one in bad faith and self-dealing. A criminal scam, hostage taking. When we say, government, or growing government, we are talking about a wholly owned subsidiary of the criminal cult enterprise that is the lawyer profession. The lawyer has fully infiltrated all policy positions, and makes 99% of decisions. Elected officials who may not be lawyers are figureheads making about 1% of decisions. These are often over-turned by the Supreme Court when they offend the interest of the criminal cult enterprise. This is the slickest, wealthiest, most powerful criminal syndicate in the history of man. We get huffy at a Mexican police requiring a $20 bribe to end a traffic stop. We are not even aware that our hierarchy is taking $20,000 from each taxpayer and returning nothing for it, via tax collections with phony justifications.

Posted by: Supremacy Claus | Feb 1, 2011 6:39:05 AM

@ Peter:

"The determination of some contributors to deny the responsibility of society, through state and federal organs of administration, for the welfare of inmates AND penal institution staff, is one of the most worrying aspects of the tone set on this blog . . . . I'm flattered that Guest sees the need to dissect my every sentence to protect the illusion that the status quo is healthy and requires little change, but that is akin to the filibuster tactics too often seen in political places."

Please stop mischaracterizing what I've said and what I think in order. I didn't say, and I don't think, that "the status quo is healthy and requires little change." What you're doing is called attacking a strawman. Stop.

And, for the record, I think one of the "most worrying aspects fo the tone set on this blog" is the persistent failure of some of the commenters on this blog, including you, to acknowledge that offenders (as opposed to society or "the system") are at all blameworthy or culpable for what they've done. You seem to believe (and if I am wrong, please tell me) that prisoners who kill prison guards or other prisoners are dangerous, but only in the way that a rattlesnake is dangerous -- as if they have **no** voluntary choice and **no** say and no control over their own behavior, as if they act only out of instinct. (One might build a more secure enclosure for a rattlesnake, but one wouldn't try to "punish" a rattlesnake.) But then again, you're the one who's dismissed high-crime neighborhoods as -- and this is your phrase, it certainly isn't mine -- "ghetto jungles" whose inhabitants simply can't fairly be expected to know and do any better. (And it's others who view criminals "almost as a different race, even non-human"?)

And how about answering Professor B.'s question? You now have a prisoner who's sentenced to LWOP who has taken an opportunity to murder a prison guard. Saying we shouldn't have LWOP isn't an answer; apologizing to the prisoner for sentencing him to LWOP in the first place and letting him out isn't an acceptable response. What punishment, and what conditions of confinement, for such a dangerous prisoner would be "secure" but yet not attacked by you as insufficiently "humane" to the prisoner? Are you telling us that you wouldn't be among the first to contend that long-term isolation and solitary confinement is insufficiently respectful of this prisoner's rights, and therefore should be prohibited?

Posted by: guest | Feb 1, 2011 8:09:59 AM

guest - no abolitionist ever makes the claims that you hysterically ascribe to me and others, who from time to time contribute to this blog. I have no problems with the principles of fair sentencing and punishment so long as they meet the quite clear aims I have previously set out, and the quality of incarceration meets international guidelines of humanity. At the same time I insist that those who advocate, and in practice administer systems of prosecution, sentencing and incarceration, accept the high levels of responsibility intrinsically given them to ensure those conditions and aims are safeguarded. I make no apology for the costs. If you, as does Supremacy, object to them, then the answer is clear - radically reform sentencing and incarceration levels so that there is a return to international norms where the emphasis is on crime prevention rather than extremes of punishment. The death penalty has no effective role to play in this. LWOP should be a rare imposition for the truly most dangerous, as should sentences of 30, 40, 50 years and more which are effectively the same.
I have already, adequately, answered Doug's specific question.

Posted by: peter | Feb 1, 2011 11:40:07 AM

Peter: I want to be fair to you, and to understand your proposal in a simple, clear declarative sentence.

You suggest, increase the number and the training of staff, to provide more security and more services in prisons.

I agree with you that is an alternative to the death penalty, that would have prevented the murder of the lone guard in a chapel. But, first, I want to clearly understand in simple terms your suggestion.

Posted by: Supremacy Claus | Feb 1, 2011 12:26:21 PM

Supremacy - in so far as your proposed statement goes in relation to the proper administration of prisons, then yes I agree that is my position.

However, in an equally simple and clear statement, I also wish to see very radical reform of prosecutorial oversight and powers, and an equally radical reform of sentencing policy and practice in order to restore balance and proportionality, with a massive reduction of sentence length and the abandonment of capital punishment. The effect of these reforms would reduce the prison population, freeing financial and other resources for the modernization and reform of the prison services, and diverting greater attention toward crime prevention.

Posted by: peter | Feb 1, 2011 1:33:18 PM

"The death penalty in this case, upon conviction, should be mandatory. Woodson v. North Carolina was wrongly decided and should be overturned."

See footnotes 7 and 25 of Woodson. Sumner v. Shuman is your actual target here.

Posted by: Kent Scheidegger | Feb 1, 2011 1:37:51 PM

@ Peter:

I'm not hysterical. And I'm not the one who dismissed neighborhoods that are disproportionately plagued by serious crime as "ghetto jungles." That was your phrase; it certainly wasn't mine.

Notwithstanding your last post, I do not think you answered the question of what form of sufficiently "secure and managed regime" for violent offenders would satisfy you as being sufficiently "humane" to the prisoner.

For now, though, I'm more interested in your declaration that long determinate sentences, e.g., 30 years, ought to be reserved for the "truly most dangerous."

Let's assume that I agree with the basic premise. Are you disagreeing that a prisoner who "has a long history of violent sexual assault" would qualify as a subset of the "truly most dangerous" prisoners? If not, why not? How many "violent sexual assaults" would one have to commit before being considered, in your view, someone sufficiently dangerous to warrant long-term, and perhaps permanent, removal from society? Or would only murderers (or some subset of murders), or people who have already committed murders or other violent crimes in prison, be considered the "truly most dangerous" in your view?

Because it seems to me that if you're willing to grant that someone with a "long history of violent sexual assaults" counts as among the "truly most dangerous," you're not really taking issue with the fact or duration of his confinement. There may well be a valid point to make that prison conditions helped allow something like this to happen and must be addressed. But it doesn't sound like you're quibbling with the legitimacy of long-term incapacitation for someone with a "long history of violent sexual assault."

Or are you?

Posted by: guest | Feb 1, 2011 2:13:03 PM

@ Peter:

Curious to hear about your proposed "radical reform of sentencing policy and practice." Are you proposing simply that sentences for certain offenses, like sale of illegal drugs, be reduced significantly (or that the underlying acts be decriminalized)? Or are you proposing that even in dealing with someone with a "long history of violent sexual assaults," the proper solution is to cap the maximum sentences well below where they are today -- say, a maximum of 8 years for forcible rape, with no or little ability to depart upwards regardless of the number of prior offenses? E.g., the person has served his eight year sentence; if therapy and other social services offered the prisoner haven't been enough to cause the prisoner to stop reoffending, it's a failure of society, with the result that the penalty for the next rape is simply another 8 years and hope for better luck and better results next time?

Please: no more gassy and largely substance-free rhetoric about the need for radical societal reform. Let's assume I agree that, for example, drug sentences should be way shorter and let's assume that prison overcrowding is significantly reduced and more resources are available as a result because you're not incarcerating as many non-violent offenders for as long. Pretend that you don't have broad powers to totally remake society in accordance with your views of enlightened policy, but pretend that you are the head of the sentencing commission or a sentencing judge.

What, concretely, do you think ought to be done with people with a long history of violent sexual assault? And what, concretely, do you think ought to be done with prisoners who have a long history of violent crimes who continue to commit violent crimes in prison (and that would satisfy you as being sufficiently "humane")? (And please: no responding that in your perfect world, you wouldn't have many violent recidivist offenders, if you'd have any at all, because we'd have such wonderful social and support services that, with rare exceptions, the crimes wouldn't be committed.)

Posted by: guest | Feb 1, 2011 2:31:23 PM

guest - a pity you are unable to pose your questions without continued pithy asides.
I fear to oversimplify an answer here will do an injustice to the topic. You have the general thrust of my view. For further detail I suggest you refer to the comprehensive analysis and suggestion produced by the JFA Institute in 2007 "Unlocking America: Why and How to Reduce America's Prison Population"
The document is available as a pdf at:
http://www.jfa-associates.com/publication/srs/UnlockingAmerica.pdf
My name links this document (it is a large file so be patient for it to load)

Posted by: peter | Feb 1, 2011 3:04:23 PM


@ Peter:

I am really hard-pressed to understand why questions like "Are you disagreeing that a prisoner who 'has a long history of violent sexual assault' would qualify as a subset of the 'truly most dangerous' prisoners?" require such a nuanced and complicated answer as to make it necessary to say simply that I have "the general thrust of" your views and to refer me to a long .pdf report prepared by others. I'm also at a loss to understand why you think I have "the general thrust of" your views when you've insisted I mischaracterize what those views are.

If, on the other hand, I really do have "the general thrust of" your views about the proper sentencing of even violent recidivist offenders (and I'm not sure I do), then I don't know what to say except that I am glad that those views are held by very, very, few people in the United States.

Posted by: guest | Feb 1, 2011 3:29:46 PM

guest - for your satisfaction I will add the following statement (that could already have been inferred in my general responses above):
I recognize that amongst the great range of offenders, there is a proportion whose crimes are so violent or so offensive to society that the punishment proportion of their sentence must be rightly severe. However, time and treatments change people. The punishment proportion of sentence should rarely therefore be so excessive as to amount in practice to a life or near life span. Where that punishment sentence exceeds say 10 years, I would personally advocate a review at that and other points to at least determine whether in the light of personal development and current practice, that sentence should stand without amendment. Whether that is the case or not, a review of future dangerousness should certainly be made at the end of that (punishment) element of the total sentence, and at regular intervals thereafter. There will always be some people who fail the tests of future dangerousness, but that result should rarely be prejudged on the basis of the crime alone.
It is unhelpful to try to classify a particular type of offense or offender when making general observations about sentencing. Every case and every offender will not only have a unique set of circumstances surrounding the offense at the time of trial, but equally every offender will respond uniquely to prison and to the treatments he receives. I will therefore not be drawn into the game you wish to play. Like a judge, neither you nor I are clairvoyant and can safely determine what is appropriate for a total length of sentence. Therefore the label "the truly most violent" must be constantly reassessed over the length of incarceration. For the same reason, the conditions of incarceration must also be reassessed. I hope this is clear enough for you.

Posted by: peter | Feb 1, 2011 5:48:20 PM

Peter: This is not an attempt at any gotcha. I do not do that.

However, can you see the economic conflict of interest when left wing, large government advocates argue against the death penalty? It is to enlarge the ranks of government workers with force. "If you do not increase the budget for guards and trainers, we let a female guard get murdered. And, no, you cannot get rid of the murderer by executing him. He has to stay to meet world standards of decency."

Posted by: Supremacy Claus | Feb 1, 2011 8:30:01 PM

Perhaps the real story here is that "Gov. Chris Gregoire has called for an independent review of the murder of Monroe Corrections Officer Jayme Biendl, who was found strangled Sunday in the prison chapel."

She doesn't throw the presumption of innocence and under the bus and doesn't promote trial by media and does not call for a fresh pile of stinky new laws before knowing all the facts.

Whatever the solution under Gov. Chris Gregoire it deserves more respect than the usual pandering.

Posted by: George | Feb 1, 2011 9:05:00 PM

I would hope and assume that the investigation will cover the security level classification of violent inmates. Non-violent inmates should not be wasting scarce government resources by being housed in high security facilities, and prison personnel's safety should not be carelessly overlooked by housing violent prisoners in medium or minimum security.

Posted by: beth | Feb 1, 2011 9:46:03 PM

@ Peter:

(1) Maybe not completely, but at least we're getting somewhere. Thanks.

(2) Your preferred approach, as I understand it, doesn't strike me as crazy, at least in theory. In a perfect world (assuming that there would be crime to deal with in a perfect world), maybe that would be the ideal approach. In practice, however, it strikes me that it naively ignores our experience. To some extent, we did attempt to focus more on viewing prison as an opportunity for personal growth and redemption, to err in favor of giving the poor guy a second (or third or fourth chance), etc. The result, sadly, was a large number of horrific recidivist offenses.

Although I didn't know this until after the time of your previous post, the Seattle Times is apparently reporting that this particular individual turns out to be precisely the kind of person who, to all appearances, often seemed to be a model inmate: paroled in 1993 after persuading a prison psychiatrist that he had benefited and grown in prison; had availed himself of every self-help program in prison; had obtained a university degree and got married while in prison. Then, after being released on parole, committed at least his third violent sexual assault (and at least his second violent rape), and was sentenced as a "three-strikes" offender. Nevertheless, his security classification was then downgraded from high-risk to medium-risk after he went a number of years without a disciplinary infraction. It was as a medium-risk offender that he committed this murder.

(For a summary, see the link to the Crime & Consequences blog: http://www.crimeandconsequences.com/crimblog/2011/02/a-model-inmate.html )

This is really chilling. This appears to be someone whose main -- or only -- predictor of future dangerousness seems to be on the "basis of the crime[s] alone," to use your phrase, and who certainly appears to benefit and "respond uniquely to prison and to the treatments he receives." Exactly the kind of person that utopians like yourself (I don't mean the term as an insult) would regard as the most deserving of release and a second (or subsequent) chance at redemption.

Except that when given the chance, he continues to commit extremely violent sexual assaults/rapes (and has now committed a murder). He seems to be at lowest risk of reoffense, and yet he just keeps reoffending, with increasingly horrifying results.

(3) I don't know what the answer is, and I agree that avoiding the risk of recidivism by just locking everyone up and throwing away the key forever can't be the answer. But at a certain point, I think you have to make the determination that, for some people, a regime like the one you propose would pose unreasonable risks to other peoples' lives and safety.

I can't fathom how anyone managed to let a guy who raped a woman, doused her with gasoline, and set her afire (having previously been convicted of a knife-point attack on a 16-year-old girl) persuade them that he was at low risk of reoffense because of the personal growth in prison he appeared to demonstrate. I think his third victim, the woman he raped in 1995 after his 1993 release on parole, is justified in thinking that the system failed her grievously in allowing this person to be out of prison.

(4) Finally, even as a theoretical matter, in your proposed system at least some deterrent value is lost, i.e., because instead of, say, a 20-year sentence for forcible rape, you have a "maybe 20 years, but maybe as little as 10 years--let's see how you do in prison" sentence.

(5) Now let me ask you a different question about how your proposed system would work. At least where violent offenders are concerned, if the prime consideration is the individual offender and his personal growth/response to prison programs, why should there be a defined end point for sentences in your system? If someone is a recidivist violent offender and, by whatever objective criteria you've set, clearly isn't benefiting from prison programs, clearly isn't growing personally, and leaves the experts with no doubt but that he is at very high--or the highest--risk of violent reoffense, why should the person be let out simply because he spent a predetermined maximum amount of time in prison? For consistency's sake, in your utopian system, shouldn't violent offenders (or perhaps just violent recidivist offenders) be imprisoned for entirely indeterminate terms -- with no determined minimum or maximum -- and with all prisoners released when it's determined that it's reasonably safe to release that particular prison, and no later (but also no sooner)? I suspect the answer is no, but I'm kind of interested in knowing why not.

Posted by: guest | Feb 1, 2011 10:22:11 PM

"and with all prisoners released when it's determined that it's reasonably safe to release that particular prison"

Whoops -- meant to say "that particular person".

Posted by: guest | Feb 1, 2011 10:26:20 PM

Supremacy - there is no conflict of interest, but there is a reallocation of resources and more effective targeting from which everyone benefits.

Posted by: peter | Feb 2, 2011 6:53:50 AM

The parole board was sued by a prior victim for negligent release. Even a lawsuit did not clue these malicious criminal lovers.

123D. Spare countless victims their lives, suffering, and injuries. The vile criminal lover lawyer has cast his lot with the criminal, the source of his income, and made himself an all out threat and enemy to crime victims. There is no recourse for crime victims against this vile internal traitor. Violent self-help against this awful hierarchy has full moral and intellectual justification. To deter.

"In the lawsuit filed by the Spokane real-estate agent, a jury determined in 2000 that the DOC had failed to supervise Scherf's parole properly, but found that the DOC's negligence wasn't to blame for the rape. The woman appealed the verdict, but lost.

Leemon, one of the woman's attorneys, said it was "mind-boggling" that Scherf was allowed to be in the prison chapel with a lone female prison guard." These weak lawyers failed to persuade the jury that the parole board had total control of the body of the predator, and that all his acts belonged to them.

Once this hierarchy has been deterred, then the eradication of the criminal may proceed, and the elimination of 99% of crime may take place, including the terrorist now being protected by the lawyer.

Posted by: Supremacy Claus | Feb 3, 2011 1:09:07 AM

The death penalty is fundamentally morally inhumane, and just wrong. A nation that executes citizens under the color of law will execute innocent citizens. It is a mathematical certainty.

Posted by: carl | Feb 23, 2012 9:52:32 AM

People CHOOSE to work in prisons. They choose to do do for various reasons, but it always free will. Eighteen year old males choose to join the army knowing they may be sent into a war zone and get hurt for killed. If there is a draft they are essentially forced to face this fate.

Posted by: carl | Feb 23, 2012 9:58:17 AM

U.S. prisons are inhumane. Solitary confinement is psychological torture. Cross-gender strip searching and toilet and shower monitoring is sadistic and cruel. Many of the sadist "soldiers" at Abu Ghraib were "correctional"officers back in the U.S. before shipping off to Iraq.

Posted by: carl | Feb 23, 2012 10:05:12 AM

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