"Get your facts first, and then you can distort them as much as you please." (Mark Twain)
Tuesday, December 13, 2005
Once, I represented a murderer. My client - let's call him Bill - beat a man to death with a baseball bat and, as if that weren't enough, strangled the victim with the sash from a bathrobe. Bill and his friends, who had killed the victim for a few hundred dollars and a big bag of weed, dumped the body down a ravine in the Eastern Washington scablands, where it was found a few days later. Bill was arrested shortly thereafter, and convicted after a brief trial.
Let me digress a bit, and tell you about criminal sentencing here in Washington. In 1984, the legislature passed something called the "Sentencing Reform Act" (SRA). It's at RCW 9.94A if you want to look at it, or you could just read this brief explanation, provided by the Washington State Sentencing Guidelines Commission, to get the gist. The SRA created a system of "determinate sentencing" to replace the previous, traditional parole system. Each crime is assigned a "seriousness level," and each defendant assigned an "offender score," based on prior convictions. There is a grid with seriousness levels defining one axis, and offender scores defining the other. The body of the grid consists of sentencing ranges - as in (for example) 51 to 68 months for a crime with a seriousness level of IX (I don't know why they use Roman numerals), when committed by a defendent with an offender score of 4. The judge can sentence the convicted defendant to a term anywhere within the sentencing range, and no one can do a thing about it. The judge can also sentence the defendant to less than the standard range sentence, but only if the so-called "exceptional down" sentence is justified on the record (the state can appeal such a sentence). The judge also used to be able to give an "exceptional up" sentence, subject to appeal by the defendant, but that process has been greatly complicated by the US Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004) (held: Sixth Amendment right to a jury trial prohibits judges from enhancing criminal sentences based on facts other than those decided by the jury or confessed to by the defendant). It's a little more complicated than all that - there are certain standard sentence enhancements for using a gun, for example (as explained in the article from the Sentencing Guidelines Commission), and in cases where a defendant is convicted of multiple crimes, the sentences may be concurrent or consecutive, depending on specific facts. But the bottom line is that when a defendant is sentenced, he knows exactly when he is due to be released (except for sex offenders, who are subject to "civil commitment" at the expiration of their sentences - but that's a whole 'nother can of worms).
If Bill had committed his murder after 1984, he would have been given a determinate sentence pursuant to the SRA. Bill did his killing before 1984, though, so he was sentenced under the old system - life in prison, but eligible for parole. That's where I came in: I represented Bill before the Indeterminate Sentencing Review Board (ISRB), or what we would have once called a parole board. It was my job to help Bill convince the ISRB that he was ready for release into the community. Now, had Bill been sentenced under the SRA, he probably would have gotten a term of roughly 360 months. With "good time," that's 20 years. He would have been released at about the same point in time that his case came up before the ISRB.
Of course, Bill would not have gotten all of his "good time," because he was a real punk for his first few years in the joint - fighting, drugs, general bad attitude. It's probably pretty easy to have a bad attitude when you're a 20-year-old kid who's never been anything but a drunk and a thug. At some point, however, Bill figured out that his future was in his own hands. He got clean and sober. He took the required anger management training, and actually paid attention. He got a job (private businesses operate shops in the prison, and hire workers from the prison population), and saved that portion of his earnings that didn't go to fines, penalties, and administrative expenses. He had already appeared before the ISRB once before I came into the picture, and had been given a long list of hoops he had to jump through if the board was to seriously consider his release.
I first appeared with Bill at his second hearing, where he was found to be conditionally entitled to release. The conditions were that he had to keep doing all of the good things he was already doing, and also formulate a detailed plan for his release - he had to line up a job, a place to live, an AA sponsor, and so forth. He was transfered to a minimum-security facility, and taken on what were essentially supervised field trips into the community. One of the trips was to a local mall, which Bill found sort of frightening (long-time cons are often scared by large, unregulated crowds) and disorienting - consider that he had never even seen a Starbucks before. His release was to be supervised for a period of some years by a probation officer (SRA convicts are also subject to supervision as provided in their original sentence, but usually for a shorter time than Bill would be). In the end, Bill impressed the ISRB as someone who had been redeemed - he was ordered released following his third hearing.
The SRA was intended to be a "tough on crime" measure - no weak-kneed liberal judge or parole board could give a criminal a pass. It's not clear to me that there was ever much of a problem along these lines, but the perception was widely shared. But here's the thing that struck me: Most convicts are free to do their time and then get released. Sure, they're expected to get help for substance abuse problems, take anger management training, and generally Rehabilitate Themselves, but they have very little incentive to do so. Bill, on the other hand, was strongly motivated to create and implement a plan to succeed on the outside.
As you may have guessed, I rather liked Bill. He's a quiet, earnest man, about my age, who grew up not far from the small town I grew up in. He paid his bill, and he always listened to my advice. I wish all my clients were as easy to deal with as Bill was. But I never forgot that Bill killed a man with his own hands - when he and I went over the statement he would make to the ISRB regarding his acceptance of responsibility for his crime, I looked in his eyes and saw vestigial traces of that animal impulse that took over his besotted mind on that horrible night, 20-some years ago. I live in this community, after all - I own property here, and I have a wife and small child that I worry about every day - and I was arguing that Bill should be free to wander around my neighborhood, should he choose to do so.
Statutory schemes such as the SRA appear to create consistency in the criminal justice system, but of course they do no such thing. There are so many random elements - will the prosecutor charge first-degree murder, or a lesser charge? Can a jury be persuaded that the defendant lacked premeditation? Will the crime lab screw up the physical evidence? And that's just within a single state's system - perhaps no factor is more significant in a criminal's sentence than where he commits the crime. After all, Tookie Williams died for what, in Washington, might well have been charged as second-degree murder. Washington's second most famous serial killer, Ted Bundy, died in Florida for murders he later committed there, while Washingon's most famous serial killer, Gary Ridgeway, escaped the death penalty altogether by cutting a plea deal.
Several people have asked me in the last 24 hours what I think about Tookie Williams' execution. I always begin my reply by making clear that I am categorically opposed to the death penalty, for any number of reasons. I don't think that capital punishment can ever be justified, so long as there is any room for error (George Will once famously suggested that, since administration of the death penalty is basically a government program, we can be sure that it will be administered incompetently). I cannot turn a blind eye to the racist and (even moreso) classist application of the death penalty. Ultimately, I don't think that we honor the sanctity of life, that we can reinforce the bedrock principle that killing is wrong, by killing people. But I recognize that reasonable people disagree on these points, and that the death penalty is the law of much of the land. And, to be perfectly candid, I'm not sure that Tookie Williams was the best poster child for the rejection of capital punishment, in spite of his famous good works (when one takes credit for founding the nation's most vicious and notorious gang, even if the claim is subject to dispute, one sacrifices a certain amount of sympathy).
I don't know if Tookie Williams actually redeemed his once-festering soul during his time on death row - no one knows, except for the dead man himself. For that matter, I don't really know if Williams was guilty of the crimes for which he died, but I certainly empathize with the victims and their families, and I recognize their well-earned appetite for vengeance. But what troubles me is this: As I listened to the national debate over Tookie Williams' fate, I heard a large body of voices who declined to seriously examine whether he had found some sort of redemption. Redemption is irrelevant, when one assumes that the purpose of the criminal justice system is nothing more than punishment and retribution. Redemption is the currency of rehabilitation, and that's a business we got out of a long time ago.
Whether one believes that rehabilitation is a worthy or practical goal in the case of someone like Tookie Williams, I worry about the general rejection of rehabilitation as a legitimate purpose of the criminal justice system. We can kill Tookie Williams - and, indeed, the State of Washington might well have killed my client, Bill, had the dice been rolled a bit differently - but we can't kill every defendant convicted of assault, of rape, of arson or burglary or vehicular homicide. A lot of these people are going to be released one day, and walk the same streets that you and your loved ones walk. Do we take seriously the problem of managing these men and women - of teaching someone like Bill or, maybe, someone a lot like Tookie Williams, who simply haven't yet graduated from simple assault to cold-blooded murder - to tame that animal inside them that looks out at us, in unguarded moments, through those piercing eyes?
Tookie Williams is dead today. That's a fact, belonging now to the long, drab history of American criminal justice. But look out your window, and you're likely to see others just like him (or, at least, as he was long ago); people who have no remorse, no fear of consequences, no consideration for your pain or your property. They will always be with us, and they will prey upon us. Some will be convicted of crimes, great or petty, and sentenced to terms of confinement. But - then what? Can they be redeemed? Do we even try?
Because remember - we can't kill them all.