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July 5, 2009

Why should a serial killer be offered a deal to avoid any real punishment for multiple murders?

I find this local story from California, headlined "I-5 Strangler suspect Kibbe offered plea deal," quite troublesome:

A prosecutor said Thursday that he would allow Roger Kibbe, accused of being the so-called I-5 Strangler, to plead guilty to six murders and serve life in prison rather than face the death penalty at trial.  San Joaquin County Deputy District Attorney Kevin Mayo said in court that he is preparing a plea deal he will give to the judge and the defense for 70-year-old Kibbe by the next court hearing, set for Aug. 17. "If we can reach an agreement, we will likely resolve this before trial," Mayo said.

Kibbe stands accused in the rapes and murders of six women whose bodies were dumped along the Interstate 5 corridor between Sacramento and Modesto, including at least one in San Joaquin County. The crimes date back to 1977.

Before the new charges surfaced, Kibbe was serving a prison sentence of 25 years to life on a first-degree murder conviction for killing a 17-year-old runaway in 1987 whose body was found dumped in El Dorado County. He was pulled from state prison last year and charged with killing six others: Lou Ellen Burleigh, Lora Heedick, Barbara Ann Scott, Stephanie Brown, Charmaine Sabrah and Katherine Kelly Quinones.

San Joaquin County Superior Court Judge George Abdallah in earlier hearings has urged attorneys to settle the case rather than make the victims' relatives endure the death penalty process and long appeals. He welcomed Mayo's gesture to settle. "This case has been before the court for some time," he said. "It's rather old."

Because Kibbe is already serving a life term, this proposed plea deal functionally means that he will escape any real punishment for raping and murdering six women.  Especially since a mass murderer like Kibbe seems like the poster child for capital punishment, the willingness of the prosecutor (and the apparent eagerness of the judge) to resolve this case through a plea strikes me as very misguided.

If all of the relatives of all the women murdered by Kibbe are truly eager to have this case resolved via a plea, then perhaps the deal offered here would be more understandable (though I still do not think fully justified).  But, as presented in this press report, I am concerned that it is principally the local judge and prosecutor who do not want the bother of a capital trial, and they are willing and perhaps eager to nullify the decision of Californians to have the death penalty a part of the state's criminal justice system.

July 5, 2009 at 11:29 AM | Permalink


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As if a 70 year old would possibly survive long enough for the appeals process to finish. If the appeals process could complete in four or five years I might see it differently, but this guy would be over 90 by the time the state would be ready to give him the needle.

And CA is in a major budget crunch. There are people for whom the death penalty isn't even worth the expense of trying.

Posted by: Soronel Haetir | Jul 5, 2009 11:46:46 AM

Prof. Berman: You will never say it openly. If you ever did, you would be ostracized and destroyed by the criminal cult enterprise hierarchy.

But, you agree, abolition of the death penalty immunizes all crimes after the first murder. It is a license to kill. Kill at will, civilians, guards, fellow prisoners. Kill as many as you please. There will not even be the annoyance of a trial.

Posted by: Supremacy Claus | Jul 5, 2009 12:01:38 PM

Doug --

"Because Kibbe is already serving a life term, this proposed plea deal functionally means that he will escape any real punishment for raping and murdering six women."

Correct, and a strong argument for retention of the death penalty. For a person serving a life term after his first murder, the absence of a death penalty means that his second and subsequent murders are freebies -- for practical purposes, he gets no punishment at all.

Daniel was saying yesterday that a society should be judged by how well it lives up to its ideals. Unless it is an "ideal" that premeditated murder should go without any effective punishment whatever, there is no alternative to the death penalty.

(Not that abolition was ever an "ideal" of the American Founding to begin with, as it is explicitly accommodated in the Constitution and was not only believed in but used repeatedly by Washington and Lincoln, and by later presidents like FDR and Eisenhower).

Posted by: Bill Otis | Jul 5, 2009 2:11:50 PM

Grant hanged 100's of lawyers and judges leading in the KKK, after passage of the KKK Act. It ended the first KKK. Blacks, Jews, and Republicans thrived in the South, with no affirmative action whatsoever. All lynchings ended.

When the Democrat Party made a deal in 1876, to give the Presidency to the Republican in exchange for ending the Reconstruction and removing federal troops, the KKK bounced back with lawyer and judge leadership. It also had a business plan. They lynched landed and well to do blacks and jews, and took their property. That is impossible to do 1000's of times, with large crowds of cheering onlookers without the immunity from the prosecutor and from the local judge. It is likely these were paid off in portion of the seized assets. Thank the lawyer for the Second KKK's thriving and growing richer by murder and seizure, immunized by the prosecutor and the judge. You had a natural experiment. Hang the lawyers and judges, everyone does well, including uneducated former slaves. Immunize the lawyer, and the South reverts to Third World backwater in economy and in governance.

Posted by: Supremacy Claus | Jul 5, 2009 4:13:10 PM

1. His current sentence was 25-life, 22 years ago. Not counting good time, or any other reduction scheme, he is theoretically eligible for release in 3 years, with some reduction he could be elgible for release NOW.

2. It is unclear how strong the case is on the 6 additional murders

3. The extra muderders happened before he was sentenced the first time, so its not like he was in prison commiting 'freebies'

Now he may never get out of prison, even if found innocent of the new murders, I don't know how california deals with indeterminate sentences in a case like this. But there must be some value in forclosing that possibility, no matter how remote. As mentioned there is also the economic angle. Finally, just because california voters authorized a death penalty does not remove the discretion of the prosecutor to decide on a case by case basis whether it should be applied. If the prosecutor is elected, their discretion is just as good, if not better, then a law at figuring out what the will of the community is.

Posted by: Monty | Jul 5, 2009 5:37:26 PM

Are you serious about this being "quite troublesome" or are you playing politics?

"San Joaquin County Deputy District Attorney Kevin Mayo said in court that he is preparing a plea deal he will give to the judge and the defense for 70-year-old Kibbe..."

The man is FREAKING 70-years-old. Giving him a life sentence means he will have to serve until he is 95 years-old provided the stipulation of being ineligible for parole is added.

Come on now...WTF is gonna be able to commit the kinds of crimes he has committed at 90 y/o?!

I don't know, but some of you people seem to think that being killed is the ULTIMATE form of punishment when in fact, we have NO EVIDENCE that those who are murdered by the state continue to suffer and pay for their crimes.

What we should bring back is forced labor--make them WORK for Bill Otis. lol

Posted by: Grateful | Jul 5, 2009 8:47:56 PM

Monty --

"The extra muders happened before he was sentenced the first time, so its not like he was in prison commiting 'freebies'"

But if, as abolitionists would have it, the death penalty is NEVER available as an option for the jury, a killer serving LWOP has absolutely nothing to lose by killing again -- i.e., a freebie.

Do you disagree?

Posted by: Bill Otis | Jul 5, 2009 9:13:41 PM

You must be kidding.

Regarding death penalty jurisprudence, California is a bad, intentionally irresponsible joke.

What other reason does a prosecutor need.


Virginia executes in 5-7 years. 65% of those sentenced to death have been executed. Only 15% of their death penalty cases are overturned.

Posted by: Dudley Sharp | Jul 5, 2009 10:00:33 PM

Bill Otis:

From the standpoint of judicial punishment you are correct. However, I think administrative penalties need to be factored into it. A person who murders while serving a life sentence will probably find thier conditions of confinement tightened. They may loose what little freedom they have, going to a maximum security prison, where they get fewer comforts, and alot more time confined alone in thier cell. Is that enough? I don't know

Also, I don't like focusing on the punishment side of the equation. To the extent that a more severe punishment for the offender costs society more, I oppose it. I want to make it clear, I am not opposed to the death penalty on moral grounds, but where it is more costly then life without parole, I think its a bad idea. The addded severity of punishment is not worth the cost, and that is before considering the posibility of executing an innocent person.

So yeah, I would give him his freebie, but instead of being in general population of a medium or high security prison, he will be in max, solitary, and locked in a cell 23 hours a day...

Posted by: Monty | Jul 5, 2009 10:25:38 PM

Both he and Madoff are set as far as their long term care insurance. Unlike commercial packages, they have no two year maximums to their guaranteed nursing home care. At that age, the activity schedule of a prison is a little busy. Classes. Group therapy. Three overly abundant meals. Religious services. Plays. Concerts. Networking. Just too full an activity schedule. They should make sure to allow some time slot for a nap.

Posted by: Supremacy Claus | Jul 6, 2009 12:29:20 AM

Monty --

A few observations if I might:

1. A person serving LWOP for murder is generally already held in the strictest administrative conditions. Indeed, the promise of enforcing such conditions was a key argument in the the two states that recently abolished capital punishment (New Mexico and New Jersey).

2. Even were it otherwise, a person who has committed the kind of savage murder that results in the DP (or its sometime alternative, LWOP), is unlikely to be deterred by the loss of canteen privileges. He was, after all, undeterred by the prospect of the harshest sentence the law allows.

3. The loss of canteen privileges and the other administrative measures you note would not make the second or subsequent murder a total freebie, true, but a near-total freebie. In my view, such a thing is no more acceptable as a societal response to premeditated murder than just taking a pass.

4. The cost of the DP vs. LWOP is hotly debated, and I am no expert on the subject. If a person commits murder and is sentenced at age 30, and lives to be 75, the taxpayers will be facing nearly half a century of prison expenses at very high security. The costs of that are sure to be enormous.

The cost of carrying out the DP is also very high, but not because it is inherently expensive. The great majority of the costs are for post-sentencing litigation, which drags on for years. That can and should be reformed; simply running the clock with dozens of rote, boilerplate motions filed at taxpayer expense ought not to be encouraged.

In any event, whether the DP is worth the cost is a question for the people who bear that cost, i.e., the taxpaying public. In recent years, as the cost of the DP has become much more widely known, public support for capital punishment has held steady or slightly increased. (Check out the Gallup poll).

5. The possibility of executing an innocent person cannot be dismissed by anyone with a conscience, but proof that we have done that in, say, the last 40 years, is non-existent. See Scalia's concurring opinion in Kansas v. Marsh. Indeed, Barry Scheck of the Innocence Project has admitted as much.

Balanced against that is the proven fact that killers who should have been executed but were not have gone on to kill numerous innocent people. In that regard I commend to you the cases of Kenneth McDuff and Clarence Ray Allen. The latter is the more recent, and resulted in a unanimous Ninth Circuit panel affirming the (too late) death sentence of one of the most cold-blooded killers you'll ever hear of.

You can read the opinion (by Clinton-appointed Judge Kim Wardlaw) for yourself, but the basics are that, after getting LWOP for one witness murder, Allen orchestrated and managed the murders of three other people. Judge Wardlaw ended her opinion thusly:

"Evidence of Allen’s guilt is overwhelming. Given the nature of his crimes, sentencing him to another life term would achieve none of the traditional purposes underlying punishment. Allen continues to pose a threat to society, indeed to those very persons who testified against him in the Fran’s Market triple-murder trial here at issue, and has proven that he is beyond rehabilitation. He has shown himself more than capable of arranging murders from behind bars. If the death penalty is to serve any purpose, it is to prevent the very sort of murderous conduct for which Allen was convicted."

Accordingly, the actual evidence is that it is not the death penalty, but the failure to impose it, that has cost the lives of the innocent.

Posted by: Bill Otis | Jul 6, 2009 8:13:10 AM

Doug, he's 70 years old and lives in California. If they gave him the death penalty he'd die long before it's implemented and the cost to the state would be many times higher. You're writing all the time about how officials don't take into account the costs of implementing the death penalty. Now somebody does and you're critical of that, too?

Bill, Dudley and SC are just bloodthirsty, believing that all killing by the state is inherently, morally good in all instances while the application of common sense utilitarianism is for pussies. I don't personally oppose the death penalty in all circumstances, but I find the existence of such a gleeful cheering squad and a mob mentality supporting state killing one of the strongest arguments against it. For evidence, just look at SC's 4:13 comment yesterday that her ideal political state is martial law with summary hangings! That's a straight up call for Soviet-style totalitarianism and nobody here blinks an eye. The worst part about the death penalty isn't what happens to the offender, it's the resulting degradation of the body politic's collective character that I find more disturbing..

Posted by: Gritsforbreakfast | Jul 6, 2009 8:28:05 AM

Grits --

"Bill, Dudley and SC are just bloodthirsty, believing that all killing by the state is inherently, morally good in all instances..."

I don't know SC and have not commented on any of his posts. I do know Dudley Sharp. As to him and me, your statement is an outright lie.

As to your claim that you don't "personally oppose the death penalty in all circumstances," quote one single thing you have written, here or anywhere, in which you supported the death penalty in a particular case, ever.

I know you're lying about my position. I strongly suspect you're lying about yours as well. I guess we'll see if you come up with the quote.

Posted by: Bill Otis | Jul 6, 2009 9:00:42 AM

Bill I've supported the death penalty in particular for recidivist murderers who commit homicides in prison - otherwise there's no alternative punishment available and I don't agree with Monty that it's enough to have their "conditions of confinement tightened." I also don't philosophically oppose the death penalty in heinous cases of serial or mass murder, I just find the cheering squad for capital punishment distasteful and don't believe, for the most part, that society gets much cost-benefit bang for the buck. If it did, Texas and Virginia's homicide rates would be lower.

Finally, I'm not "lying" about your position, I'm just reading it as you write it and you're definitely part of the cheering squad.

Posted by: Gritsforbreakfast | Jul 6, 2009 10:10:45 AM

Grits --

Your point-blank statement that I believe "that all killing by the state is inherently, morally good in all instances..." is, I repeat, an outright lie, and, tellingly, you do not, and could not, quote a single comment of mine that says any such thing.

Posted by: Bill Otis | Jul 6, 2009 12:25:11 PM

Bill, I was merely characterizing your comments, I never claimed to have comprehensively researched your oeuvre.

If I'm wrong, I'll patiently await you providing an example of a case where the death penalty MAY be applied but you argued it shouldn't be. I only see you ever calling for more killings and criticizing ad nauseum anyone who even mildly disagrees. That you've only got a one-way ratchet on this issue is pretty obvious.

Until then, keep shaking those pom poms.

Posted by: Gritsforbreakfast | Jul 6, 2009 12:37:38 PM

Grits --

"I was merely characterizing your comments, I never claimed to have comprehensively researched your oeuvre."

No, you were not "merely characterizing" my comments. Without any qualification or documentation whatever, you stated that I believe "that all killing by the state is inherently, morally good in all instances..."

I repeat, that is an outright lie. I would hope you'd just withdraw it and apologize.

To say such a thing on account of my support of the death penalty is not merely false but preposterous. The huge majority of killing done by the state is in war, not through the death penalty. I haven't said beans here about the morality of killing in war.

As to what I actually HAVE said: I make no apologies for holding the same view of the death penalty as Washington, Lincoln, FDR and Eisenhower. And Lewis Powell, Sandra Day O'Connor, and Felix Frankfurter. And John Milton and George Bernard Shaw. And two-thirds of the American public. But to you, there is no such thing as principled argument in favor of using the death penalty without apologizing for it. There is only the unwashed mass waving their poms poms.

So much for liberals valuing dissent from their orthodoxy.

Posted by: Bill Otis | Jul 6, 2009 1:07:31 PM

Finally, a place where we don't have to deal with any of those pesky ANONYMOUS folks & SPELL CHECKERS.

Say something stupid here & we will be able to attribute your stupidity to any & all stupid krap you spew in other blogs, etc...

Let's attempt to change the atmosphere on this topic by asking yourselves, Should we kill the plea bargain choice once and for all and force lawyers, ADA'S & judges to work for a living? *Those raised up as seasoned professional copouts are going to freak out just watch.

Posted by: NoMoreNoloContendere | Jul 6, 2009 2:49:40 PM

"Finally, I'm not "lying" about your position, I'm just reading it as you write it and you're definitely part of the cheering squad."

I want to cheer for you. GOOOOOOOOOOO GRITS!!!! :D

"Should we kill the plea bargain choice once and for all and force lawyers, ADA'S & judges to work for a living? *Those raised up as seasoned professional copouts are going to freak out just watch."

They'll "freak out" only because that suggestion is asinine. Yeah...let's bog down the system and cost tax payers MORE money as we process all those cases as expeditious as possible--in 12 or more years for each case????

Posted by: Grateful | Jul 6, 2009 8:35:26 PM

Grits: With the certainty of planetary orbits, there will be 17,000 extra-judicial executions, using butcher style methods, this and every year. That number is 40% lower than it used to be. The drop came from the sentencing guidelines, and from advances in trauma care. The number may grow again, as the Scalia Bounce reaches street level.

Thank the criminal protecting and immunizing lawyer. Please, do not call others bloodthirsty until you have addressed that guaranteed, grim slaughter.

Posted by: Supremacy Claus | Jul 7, 2009 6:52:53 AM

Grits: There is no Soviet style authoritarianism. Article I Section 1 grants lawmaking power to Congress. When a court cancels a law or makes a law, it is in insurrection against that section. The arrest of a judge for such a substantive decisions, not for a weasel collateral lawyer gotcha corruption, is obedience to the Constitution. If you want judicial review, pass an Amendment.

In a crisis, during the Civil War, appeals of death sentences were abbreviated. Soldiers arrested disloyal judges issuing habeas orders to free Southern spies, while court was in session, pistol whipped them when they failed to move fast enough from their high bench, and threw them in hellhole prisons, bleeding from the scalp. Lincoln also issued an arrest warrant for treason, for Chief Justice Taney, the author of Dred Scott. This was the first application of the judicial review in Marbury v Madison. Taney just made up the concept of substantive due process. This is high school AP History stuff. The decision was biased, and lawless, violating the Missouri compromise and an international treaty. It set off the Civil War by making all states slave states. Thank the lawyer for the Civil War. If you break the law, and set off the Civil War, isn't getting shot the least you should get as a consequence? To deter?

Only a lawyer in the Oval office persuaded Lincoln to not hand the warrant to the waiting Federal marshal (not taught in high school history, but should be). The warrant is on display in the Federal marshal museum, a rare and precious icon of lawyer hierarchy accountability and obedience to the law.

There is only loyalty to the Constitution above that to the CCE. I am not comparing the lawyer to the KGB because that shows desperation in the debate.

Posted by: Supremacy Claus | Jul 7, 2009 7:12:11 AM

The above remark is mostly from high school history. I am curious if any lawyer knew or learned the above in Con Law. Name the treaty violated by Dred Scott if you did. I am betting, that little case, Dred Scott, was not covered or was glossed over in law school.

Posted by: Supremacy Claus | Jul 7, 2009 7:22:03 AM

I am the aunt of one of the six victims that Kibbe is currently charged with murdering. I recommend that before passing judgment, bloggers read "Trace Evidence" by Bruce Henderson. It tells the story of Roger Kibbe and how he confessed to his wife that he murdered -- not just seven but 34 -- during his years of preying on Sacramento women.

My family suffered about 14 years wondering who murdered my neice. Finally, law officials made contact with the family and said there was evidence that it was Kibbe. Now, however, the District Attorney, or judge, whoever ... says, "This is a very old case." Consequently, they say they will give this murderer a plea bargain, to spare the families from having to go through the ordeal of the appeals process. What are they thinking? Time does not deminish the crime of murdering 34 individuals. Nor does it deminish the pain of the families left behind. So how/why does the age of these crimes justify a plea bargain?

Do they really think we will feel better knowing that Kibbe is safely sitting in his cell, daily reliving the mental thrill of what he did to all those girls? If they give him a plea bargain instead of the death penalty that he deserves, we need to recall the DA and the Judge in this case. Justice for all means that Kibbe needs to himself face the fear of death -- every living day of his life. There is no way for justice to truly be served in this case, but sweating deathrow would at least give Kibbe something less entertaining to think about.

Furthermore, why is there so little press on this case? Has the media ever reported that Harriet Kibbe said her husband confessed to all those murders? The Manson family killed about six people, Kibbe killed 34. Compare the two stories.

Posted by: Justice for All | Sep 16, 2009 3:25:17 AM


I just re-found this thread.

Some years back, Grits used to be a thoughful, intelligent blogger.

He has since become a standard, rude dogmatic, with the attendant lower IQ.

I have hopes that he will rebound.

Posted by: Dudley Sharp | Dec 28, 2009 11:44:02 AM

Let those who have resources pay for the millions this all is costing us. Else, just make sure that this man is never free again, one way or another, and as cheaply done as is possible, end of story.

Posted by: Winston Court | Feb 2, 2012 1:00:16 PM

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