Fault Lines
15 December 2017

Life Plus? It Ain’t Necessarily So

Mar. 3, 2016 (Mimesis Law) — As Jeralyn Merritt pointed out, maybe they’d like to give life plus cancer out as a sentence because, well, why not. I mean, it’s supposed to be punishment, right?

Take Ohio, please.  (Sorry.)  Section 2929.11 of our Revised Code identifies the “overriding purposes of felony sentencing.”  There are two.

  1. Protect the public.
  2. Punish the offender.

Oh, sure, there’s this qualifier saying that those purposes should use

the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.

But that’s just blather. It says courts aren’t supposed to impose harsh sentences just for the sake of imposing harsh sentences. Of course not.  They’re supposed to impose harsh sentences ‘cause the sumbitch deserved them.

And so the defendant who entered a guilty plea to aggravated murder was sentenced to death in prison, life without the possibility of parole. That was the harshest of the possible sentences the judge could have given, which suggests that the guy didn’t get much of a break for his plea.  But, after all, the sumbitch deserved it.  Aggravated murder and all.

But as Ron Popeil used to say, “Wait, there’s more.”

Because the guy didn’t just plead guilty to aggravated murder. He also entered a plea to other crimes.  So, of course, he was sentenced for them, too.  He got a couple of decades for them.

How does that work, exactly, you may be wondering. And who can blame you?  The rest of his life in prison and also a couple of decades in prison.  Huh?  Okay, so the basic rule in Ohio is that sentences are concurrent.  That is, they’re served at the same time.  So that while the guy is spending the rest of his life in prison for the killing, he’ll also be doing his time for the other . . . .

Oh, no, he won’t.

The judge actually sentenced him to serve that other time consecutively, one after the other. So first he serves the rest of his life and then another couple of decades.  Or maybe he serves the decades before he serves the rest of his life.

Because, after all, the sumbitch deserves it.

Ohio actually has a system for when a judge wants to make sentences consecutive.  There’s a whole litany of things the judge is supposed to find in order to justify those sentences.[1]  Among them, is the need to find either that multiple sentences are necessary to:

Protect the public, or
Punish the offender

Which should have a familiar ring if you’ve read this far.

So back to the defendant. We want to protect the public from further crimes by the guy who, after all, committed aggravated murder and did other bad stuff, too.  And we want to punish him for all of that.  Except once he’s sentenced to prison until he dies, more time is really kind of . . . .

Bernie Madoff got 150 years.

“The judge sent a powerful deterrent message and an ominous signal to possible co-conspirators,” said George Jackson III, a lawyer with Bryan Cave and a former federal prosecutor in Chicago.

Bernie was, by the way, 71 years old at the time. The odds of him actually living long enough to get released when he’s 221 are, frankly, slim.[2]

Or take Coy Dunkle. He apparently bought and sold thousands of pornographic pictures and videos of thousands of young girls. Including his three-year-old daughter. Charged with a couple of counts of rape, which could have gotten him life sentences, along with dozens of other counts, Dunkle agreed to plead guilty to 49 counts of pandering sexually oriented material involving a minor and four counts of illegal use of a minor in nudity-oriented material.

He did avoid a life sentence. Instead, he was sentenced to 110 years in prison. He’s due to be released 10 days after his 143rd birthday. (If you’re planning to meet him outside the prison, you won’t want to forget the cake and candles.)

I represent a man with a death sentence. Actually with 11 death sentences.  Kill him.  Then kill him again. And again. And again, and again, again, again, again, again, again. And a final time.

I understand. If he had only one death sentence, that would demean the seriousness of the killings of the other ten people.  They’d be, as the courts and prosecutors like to say at those times, free killings.  No consequence.  No punishment for them.  No other way to make the sumbitch pay.

But in fact, we’re posturing. The rest of one’s life plus decades is no longer a sentence than the rest of one’s life.  Bernie’s 150 years, like Dunkle’s 110, is posturing.  Would 75 be any different?

Sure, Genesis 5:27 tells us that Methuslah lived 969 years.

So just maybe. Nah.  And even that wouldn’t solve the problem of my client’s 11 executions.

Of course, there’s always that life plus cancer thing.

[1] The list is in subsection (C)(4) of Revised Code Section 2929.14.  Making the findings is not onerous.  Reciting the statutory language, or something within cab distance of it will do.  And ignoring it altogether is often enough since appellate courts are inclined to say (not in these words), “Well, the judge surely could have made the findings, and the fact that he sentenced as if he did proves that he must have.”

[2] The federal system actually makes good time available at a rate of something like 53 days a year, so if Bernie keeps his nose clean, he could get out after a bit over 127 years, but really, that’s a quibble.

4 Comments on this post.

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  • Alan
    3 March 2016 at 9:49 am - Reply

    Maybe the court knows something we don’t, vis a vis the defendant being some sort of dracula.

  • Will Judge Tracie Todd’s Death Penalty Decision Change Alabama’s Law?
    7 March 2016 at 8:45 am - Reply

    […] practical result of Judge Todd’s ruling means the four defendants in this Order will get life without the possibility of parole, as will any others lucky enough to find themselves in front of Judge Todd for the next two years, […]

  • Peter Gerdes
    14 March 2016 at 7:20 am - Reply

    To be fair ultra-long sentences are hedges against future compassionate changes to sentences, plea bargains and early release.

    For all you know in 20 years someone will decide that non-violent white collar criminals (or murders in some category) are eligible for release after only 10% of their sentence is served. If you want to make sure Madoff serves 15 times as long as the guy who was convicted on one count for 10 years you need to sentence him to 15 times as long.

    While I agree that these excessive sentences reflect something rotten in the criminal justice system it isn’t the fact that they exceed the maximum biologically possible prison term. Rather, it’s that they suggest a failure to appreciate both discounting and deterrence judgements. The effect of far future punishment on current decision making will be virtually nil (especially if you assume most criminals are engaged in short-sited decisions).

    Similarly killing 11 people doesn’t make you any more deserving of punishment than killing 2 strangers or any more inclined to recidivism. After all I doubt most people willing to kill 2 strangers would hesitate much on the next 9 if they had similar incentives to kill them.

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    16 March 2016 at 9:08 am - Reply

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