For people living with convictions, the past is always present

Two stories about our culture's focus on punishment

In the last 24 hours, two reports appeared in my news feeds that caused me to reflect on the intersection of law, punishment, and forgiveness in our culture. The first isn’t much of a surprise for anyone who has been following these proceedings: California Gov. Gavin Newsom denies parole for RFK assassin Sirhan Sirhan. From the CNN report:

California Gov. Gavin Newsom has denied parole for Sirhan Sirhan, the man convicted of assassinating Sen. Robert F. Kennedy, a news release from the governor’s office said. Sirhan was recommended for parole in August, after spending 53 years in prison for the 1968 killing. 

Newsom decided to reverse the parole board’s decision after determining that Sirhan “currently poses an unreasonable threat to public safety,” a statement from the governor’s office said.

“The Governor reached his decision based on several factors, including Mr. Sirhan’s refusal to accept responsibility for his crime, lack of insight and accountability required to support his safe release, failure to disclaim violence committed in his name, and failure to mitigate his risk factors,” the statement said.

https://www.cnn.com/2022/01/13/us/sirhan-sirhan-newsom-denies-parole/index.html

This was Sirhan’s 16th attempt at parole since California banned the death sentence and was given a life sentence. James had previously covered this story earlier this year.

First, let me get something out of the way: there is no constitutional right to parole. Parole is defined at the state level. And Gavin Newsome was acting within the power granted to him by the statute. So everything about this is lawful.

However, it’s fair to ask if this was in keeping with the intent of recent changes to California parole laws that increased the variables that a parole board must consider to include age, health, even childhood trauma as mitigating factors. It was those very changes that led to the California Parole Board’s decision to recommend him for parole. This is also most likely part of the reason that LA County Prosecutor George Gascón, opted not to weigh in on the issue as well.

I am pragmatic enough to understand that the reason that Sirhan did not get parole is that he’s Sirhan Sirhan and the person he killed was RFK. That is an inescapable act that we as a society accept that he always needs to be punished for. What I was struck by was the mental gymnastics that Governor Gavin Newsome, who has consistently run on a criminal legal system reform platform, undertook to avoid admitting this. There was one line of reasoning, published as an LA Times Op-Ed, that particularly stands out:

Yet, after decades in prison, Sirhan still lacks the insight that would prevent him from making the kind of dangerous and destructive decisions he made in the past…. It is abundantly clear that, because of Sirhan’s lack of insight, his release on parole would pose a threat to public safety…. He does not understand, let alone have the skills to manage, the complex risks of his self-created notoriety. He cannot be safely released from prison because he has not mitigated his risk of fomenting further political violence.

https://www.latimes.com/opinion/story/2022-01-13/sirhan-gavin-newsom-parole-decision

By all accounts, Sirhan was not, and most likely still isn’t, a paragon of mental or emotional stability. Beyond his attack on RKF (and others injured in the shooting), his biography involves falling in with religious cults and substance abuse issues. However, what Newsome appears to be engaged in is a bit of a tautology here to demonstrate how the mental state of a 77-year-old presents a clear and present danger to the community. The expectation that 55 years in prison will somehow give this (or any individual) “the skills to manage the complex risks of his self-created notoriety” is laughable. Likewise the only evidence the governor can summon up for the potential real-world danger he poses is a single hostage-taking incident that occurred in Sudan 49 years ago.

I fully acknowledge that Sirhan’s own actions haven’t done him any favors. After initially taking full responsibility for the assassination (he wasn’t able to change his plea to guilty prior to the start of his trial, even after he had recorded a confession) he began advancing a conspiracy theory about the assassination that involves multiple shooters. Still, he expressed regret for his actions in his hearing:

“[T]he ripple effect of the crime and — and the harm, the injury, the pain of the family, of their, uh, of — of their extended family and their friends, the community, the — the — the ambassador staff, and the — the country, the world. This, uh, Senator Kennedy was the hope of the world as far as I, as — as I can say, and, uh, it, I injured and I harmed all of them and, uh, it pains me to — to — to experience that — that, the knowledge that I’m responsible for such a horrible deed, if I did in fact do that. And whether I did or whether I did not, I’m still responsible for being there and — and, uh, and probably causing this whole incident, through my own gun or other guns.

https://sanfrancisco.cbslocal.com/wp-content/uploads/sites/15116056/2021/11/Sirhan_B21014_2021-08-27_Corrected2.pdf

As I said before, all of what happened was within the Governor’s power. But I also think we should be honest enough to admit that even if Sirhan had shown the necessary contrition, most likely the outcome would have still been the same (and the rationale given as cover probably would not have changed much). However its critical for the system that we pretend there is an opportunity for him to “redeem” himself.

But what of those who do “redeem themselves” in the eyes of the state?

This leads me to the second article I want to highlight–a hospital is under fire for a medical procedure performed on an individual who had been convicted of a violent crime:

A Maryland hospital is defending its decision to transplant a pig’s heart into a dying man following reports that the patient had a criminal past, saying his eligibility was “based solely on his medical records.”

A Maryland hospital is defending its decision to transplant a pig’s heart into a dying man following reports that the patient had a criminal past, saying his eligibility was “based solely on his medical records.”

David Bennett, 57, is still recovering from last week’s highly experimental transplant, a medical first and a step in the quest to one day ease shortages of human organs by using animals. While the new heart is functioning, it’s too soon to know how Bennett will fare.

On Thursday, The Washington Post reported that 34 years ago Bennett was charged with a stabbing that left a young man paralyzed. The state’s Division of Corrections told the newspaper that Bennett was released from prison in 1994 after serving six years of a 10-year prison sentence.

In a statement Thursday, the University of Maryland Medical Center said doctors are obligated to provide the best care for every patient regardless of their background.

https://apnews.com/article/health-maryland-university-of-maryland-heart-transplants-54687fd2fbfb42d29839c5d836aa67ee

Again, let’s start by getting the obvious out of the way: Bennett committed an atrocious act 34 years ago. He was convicted, sentenced, and by all accounts completed the terms of his sentence to the satisfaction of the state. And yet, as the Washington Post article referenced above frames it:

More than 106,000 Americans are on the national waiting list for an organ transplant, and 17 people die each day never receiving the organ they need. In the face of such a shortage, it can seem unconscionable to some families that those convicted of violent crimes would be given a lifesaving procedure so many desperately need.

https://apnews.com/article/health-maryland-university-of-maryland-heart-transplants-54687fd2fbfb42d29839c5d836aa67ee

This passage, unfortunately, articulates our society’s overarching approach to punishment. There are no laws or regulations that state that criminal history must be considered when considering someone for a transplant. And in this case, the individual did not even receive a human organ (he was disqualified from that pool due to health conditions). However, it’s an example of how, for so many people, successfully completing a sentence will never be enough. And so, the doctors and hospital find themselves in a position where they have to defend this decision against moral indignation.

This is a particularly dramatic example. The reality is that for people living with convictions (violent or otherwise) this type of stigma occurs regularly. The proliferation of computerized records and the background checking industry (both FCRA-compliant and shady “people search” sites) means that people who have completed their sentences have to constantly live with the fact that they may not be able to get jobs, rent apartments, or even volunteer because their past is always present. They also live knowing that at any point their record can come back in unexpected ways (like an individual I interviewed who, after an argument at work, had a coworker run a people search background check on then and came into work the next day to find a copy of their court records pinned to the lunchroom bulletin board).

For as much as our national narrative is that this is a country that provides second chances, the fact remains that our focus on moral punishment above all, often makes that impossible. Of course, this isn’t a new issue and we’re not unique in this. Oscar Wilde noted a similar tendency when he wrote the following stanza in The Ballad of Reading Gaol over a century ago:

The Chaplain would not kneel to pray
  By his dishonored grave:
Nor mark it with that blessed Cross
  That Christ for sinners gave,
Because the man was one of those
  Whom Christ came down to save.

https://poets.org/poem/ballad-reading-gaol

FILED UNDER: *FEATURED, Crime, Law and the Courts, Punishment
Matt Bernius
About Matt Bernius
Matt Bernius is a design researcher working to create more equitable government systems and experiences. He's currently a Principal User Researcher on Code for America's "GetCalFresh" program, helping people apply for SNAP food benefits in California. Prior to joining CfA, he worked at Measures for Justice and at Effective, a UX agency. Matt has an MA from the University of Chicago.

Comments

  1. grumpy realist says:

    If we leave parole in the hands of anyone who gets voted to public office, it’s no wonder that parole is given so rarely. If the parolee commits another crime in the future, it’s going to be brought against the public official, no matter how irrelevant.

    As a society, we also haven’t still figured out how to treat criminals after their imprisonments are over. We certainly don’t wipe the slate clean and return them to a zero status. Felony crimes can bar them from all sorts of positions. Even non-felony crimes will have an effect if the crime is one involving lying, fraud, or embezzling. The is partly because no company wants to open itself to liability because it knowingly hired someone with a history of lying/fraud/embezzlement who goes on to do it again in the future.

    And can you really blame them?

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  2. gVOR08 says:

    that, the knowledge that I’m responsible for such a horrible deed, if I did in fact do that. And whether I did or whether I did not, I’m still responsible for being there and — and, uh, and probably causing this whole incident, through my own gun or other guns.

    That sounds more like confusion than contrition. I know nothing about how parole works in CA and maybe the system provides some level of material and psychological support and supervision. But if not, this isolated soundbite doesn’t speak well for his ability to function on his own.

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  3. Matt Bernius says:

    @gVOR08:
    Mental and emotional support for folks on parole is just about as bad/non-existent as it is for folks on the inside.

    The question of whether or not Sirhan is mentally competent enough to be released is a fair question. But if that was raised then it would require us to also ask if he’s mentally competent enough to wantent continued imprisonment versus some alternative forms of state care.

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  4. Matt Bernius says:

    @grumpy realist:

    As a society, we also haven’t still figured out how to treat criminals after their imprisonments are over.

    Yes. And that even includes the language that we use. For example, what does it mean to be a “criminal”? Does a single conviction make someone a criminal for life (i.e. as with the practice of visually branding criminals that occurred in Western Countries into the nineteenth century)?

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  5. grumpy realist says:

    @Matt Bernius: I suspect it’s also from the punishments from Common Law that we historically used. Look at what England thought was a suitable crime leading to transportation to Australia, for instance. And what they used to give out the death penalty for.

    The overlap between “criminals” and “people suffering from mental illnesses who carry out anti-social behaviour” is also not negligible. Part of the problem which we’ll not solve until we figure out how to get mental health treatment to people who don’t realise/refuse to admit they need help.

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  6. John430 says:

    Let me clear things up for you, Mr. Bernius. “Don’t do the crime if you can’t do the time.”

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  7. Michael Reynolds says:

    You have to look at these things in the long sweep of history. We no longer draw and quarter people. We don’t burn anyone to death, or impale them. So. . . progress!

    I don’t feel sorry for Sirhan. He did serious, long-term damage to this country. Fuck him, he can die in a concrete box. But some kid who boosted a car, or a dude who sold meth to support his own addiction, or the guy who takes a drunken swing in a bar and ends up doing much more damage than he intended, those guys, once they’ve done their time, are clean. They have to be seen as clean or the entire concept of prison is a lie.

    There has to be a path to real redemption for 90% of the people who end up doing time.* Continuing the punishment after they’ve done their time is unfair, unjust, and stupidly self-harming for society at large. We want people inside the tent. We want them caring for their children and paying taxes, not forced onto the fringes of society where the choices are lifelong poverty or a return to crime.

    *10% are straight-up evil and can never be redeemed.

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  8. Michael Reynolds says:

    @John430:
    I completely agree, which is why I’m overjoyed to see the felony charges piling up around January 6. I am pleased that you and I can agree that Stewart Rhodes and the rest of his ‘Oath Keepers’ should do the full twenty years. Lock him up! Lock him up! Can I get a high five, John?

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  9. Mu Yixiao says:

    @John430:

    Show me a clear and comprehensive list of all the things I’m forbidden by law from doing, and perhaps we can talk.

    As it is, a rough estimate is that the average American unknowingly commits Three Felonies a Day.

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  10. gVOR08 says:

    IANAL and I know very little about the system. I look forward to being enlightened by any future post from Matt Bernius on the subject.

    It’s always struck me that a lot of what we do is based on Calvinistic attitudes, that we’re trying to punish “evil” and yes, @Matt Bernius: acting as though “criminal” is something the person is rather than something he’s done. In the 1/6 prosecutions we see a lot of trouble from needing to establish mens rea, that the individual knew the act was criminal and had criminal intent. If our purpose is deterrence, we should only care whether he did or did not do the criminal act. The need to establish evil intent strikes me as a useless Calvinist hangover. I was always taught that in proper business management you punish/reward actions, not attitudes.

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  11. Mu Yixiao says:

    This came on my radar recently:

    Inmate firefighter denied ability to become non-inmate firefighter.

    “I made mistakes as a teenager and I regret the things I did,” said Fernando. “But serving in the fire camps showed me that I can give back to my community. Unfortunately, California says I can never get certified as an EMT, even though I was good enough to be a first responder while in prison.”

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  12. mattbernius says:

    @John430:

    “Don’t do the crime if you can’t do the time.”

    The time should not be the rest of your life–which is the issue at hand. In the second story, that person finished his “time” approximately 20 years ago and he’s still being punished.

    But hey, thanks for proving the point of the article.

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  13. Michael Reynolds says:

    @Mu Yixiao:
    The average American may well commit the occasional misdemeanor, but they do not commit felonies. If the average American committed three felonies a day, that’d be roughly a billion felonies committed by Americans, every day. There are not 365,000,000,00 felonies committed in the US in a year.

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  14. mattbernius says:

    Also, for the record, the current estimate is:

    Approximately:
    – 19 million Americans have a felony conviction (5% of the population)
    – 77 million Americans have some form of criminal record (23% of the pop)
    – 113 million Americans have an immediate family member who has been in jail or prison (34% of the pop)

    This is not a small problem.

    https://www.prisonpolicy.org/reports/pie2020.html

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  15. mattbernius says:

    @Mu Yixiao:
    Unfortunately, they lost that suit: https://www.forbes.com/sites/nicksibilla/2021/02/16/federal-judge-californians-who-fought-fires-in-prison-cant-become-career-firefighters/

    The CA Legislature did approve a bill that allows for Prison Firefighters to petition for expedited expungements.
    https://www.npr.org/2020/09/11/912193742/california-bill-clears-path-for-ex-inmates-to-become-firefighters

    However, that process involves a lot of paperwork and it’s difficult to get through without a lawyer. Additionally, Judges and DAs have a high degree of discretion which means you can do everything right and still get turned down if the judge doesn’t think you’ve learned your lesson. It’s one of the reasons that many reform-focused organizations (including mine) have been working to automate the expungement/record clearing process.

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  16. matt bernius says:

    @Michael Reynolds & @Mu Yixiao:
    That book is a classic in libertarian circles. I’ve yet to read it to specifically understand the felonies that the author is using. I suspect that many are non longer enforced laws or cases where the statute is so broadly written as to be unenforceable. That said, it’s time I do the work to actually understand the argument in detail.

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  17. Mu Yixiao says:

    @Michael Reynolds:

    There are not 365,000,000,00 felonies committed in the US in a year.

    It’s not a precise number. It’s a reference to the fact that every day people are doing things that could–if a prosecutor so desired–get them charged with a felony. Things like “picking up the wrong feather” is a felony. Depositing less than, but close to, $10,000 in a bank account more than once is a felony (“structuring”).

    The point is that our laws are so convoluted and imprecise that most of us have no clue that we’re doing things which are illegal.

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  18. Mu Yixiao says:

    @matt bernius:

    I’ve yet to read it to specifically understand the felonies that the author is using. I suspect that many are non longer enforced laws or cases where the statute is so broadly written as to be unenforceable.

    I’ve got it, and read a bit here and there. The main focus is on the obscurity of laws and how the average person has no real way of knowing that their actions are illegal.

    “Structuring” is one that gets brought up a lot. Any bank transaction of $10,000 or more requires reporting (by the bank) to the federal government. There’s nothing illegal about the transaction, but it’s a way for the Feds to watch for money laundering and tax evasion. It is illegal to “structure transactions to avoid reporting”.

    You’re a small restaurant owner who brings in a weekly deposit of around $9k (because that’s how much money the restaurant makes in a week)? You’re committing a felony. It’s all those little things that the book refers to.

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  19. Just nutha says:

    @John430: Once again, you’ve left us amazed at the senseless slaughter of innocent pixels that bore no one ill will.

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  20. Modulo Myself says:

    @Mu Yixiao:

    Depositing less than, but close to, $10,000 in a bank account more than once is a felony (“structuring”).

    Yeah, lots of people are going around depositing 100K in cash into their bank accounts in increments less than 10k. Happens to me twice a week, at least.

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  21. Mu Yixiao says:

    @Modulo Myself:

    Womply analyzed daily revenue for over 36,000 restaurants in all 50 states, as well as the District of Columbia, for all 365 days of the 2019 calendar year. Restaurants were only included in the analysis if they qualified as small businesses, Womply had a full year of transaction history, and the business recorded multiple transactions per day, on average.

    Weekly average income: $9450

    That’s just restaurants. Small retail shops come in around $8k. There are lots of small to medium businesses making deposits around that $10k mark for a weekly deposit.

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  22. mattbernius says:

    @Mu Yixiao:

    Things like “picking up the wrong feather” is a felony.

    For people who have questions about this one, it’s part of the migratory bird act: https://www.fws.gov/lab/featheratlas/feathers-and-the-law.php

    So for example it’s technically illegal to possess a Bald Eagle or Red-Tailed Hawk feather.

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  23. Gustopher says:

    This leads me to the second article I want to highlight–a hospital is under fire for a medical procedure performed on an individual who had been convicted of a violent crime:

    I suppose it says something about me that when I saw that article a few days ago, I thought it meant that we had begun performing medical experiments on criminals, and then didn’t bother clicking through.

    (I just assumed we have enough criminals that we can get volunteers for our experiments, rather than forcing them…)

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  24. Modulo Myself says:

    @Mu Yixiao:

    Structuring is a specific activity designed to obscure income from being reported. The people who wrote the laws are not idiots and they know very well that small businesses might deposit cash amounts under 10k on a weekly basis. Unless they are not reporting this income to the IRS nothing is happening and they haven’t committed a felony.

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  25. matt bernius says:

    @Gustopher:
    In all honesty I had the same initial reaction.

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  26. Modulo Myself says:

    The main focus is on the obscurity of laws and how the average person has no real way of knowing that their actions are illegal.

    The opposite is true. Most every person who gets caught in the legal system has some idea that their actions are illegal. Nobody is like wow is shoplifting/fighting/carrying around a couple grams or of coke in your glove compartment a crime? The central problem with the legal system is that it feeds on hedonism and wildness in kids and young adults (especially if you are poor and not white) and then builds up a caste of people and communities with records and time served for what is a valid human impulse.

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  27. @John430:

    Let me clear things up for you, Mr. Bernius. “Don’t do the crime if you can’t do the time.”

    If only the whole of moral and legal philosophy was as easy to reduce is silly cliches as so many think to be the case.

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  28. Kathy says:

    I’ve been following the porcine heart transplant story, but I’d no idea the recipient was a convicted felon.

    I don’t see that it matters. This procedure is experimental, as the pig was genetically altered to make the heart less prone to rejection by a human immune system. Such procedures are tried first in patients who cannot improve with any other treatment. Meaning this man would die shortly without some sort of transplant. We’ll see how rejection develops and whether it can be managed or not.

    He may survive only a few months, like the people who volunteered for artificial hearts, or he may last several years. As yet, there’s no way to tell.

    If the experiment works, and for that we’ll need many more patients first, we may solve the organ shortage issue. But right now it’s just the first experimental treatment.

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  29. Kingdaddy says:

    We’re not really as Christian a country as we think we are. We’re more an Old Testament country.

    Americans enjoy inflicting punishments. We’re happy to make “drop the soap” jokes about prison conditions, knowing what we’re really saying is that we’re happy consigning our fellow citizens, whatever their crimes, to daily horrors. Many of us are happy to ensure that the punishment isn’t confined to the time spent in those unspeakable conditions, but long afterwards, in which a return to a life of economic advancement and participation in the body politic is impossible. Many don’t think twice about supporting draconian new laws, knowing that they’re likely to catch at least some innocent people in their iron jaws. And that includes laws that attach the death penalty. Some don’t care about any complexity in the relationship between incarceration and recidivism. It just matters that we punish.

    At the same time, we’re seeing in some places, like my native California, crime waves because of decriminalization. However, there is certainly a place between laxness and harshness that we can find.

    John Locke and Thomas Hobbes both argued that we needed government because we cannot trust ourselves not to go overboard when we are judges in our own cases, part of living in “the state of nature.” A measure of the quality of government, if you accept this point of view, is its ability to craft and enforce laws in a way that do not go overboard. It’s tough to balance deterrence, fairness, and everything else that goes into a legal system. But it’s also necessary to point out when the current balancing act isn’t working as well as it should.

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  30. Kingdaddy says:

    The “Let him rot!” mentality is both dangerous and immoral. Every individual in prison deserves fair consideration. If not, then you presume there’s some authority who can decide who deserves to rot, outside of the normal deliberative channels we have. Personally, I do not trust that we can have the “right person” make those judgments now, and in perpetuity — if we can even decide what traits that “right person” should have.

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  31. wr says:

    @Mu Yixiao: “You’re a small restaurant owner who brings in a weekly deposit of around $9k (because that’s how much money the restaurant makes in a week)? You’re committing a felony”

    No, you’re not. If you’re doing that with the intent to avoid paying taxes, then maybe you are. And depositing that amount on a regular basis may well raise red flags… but the deposits themselves are not illegal.

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  32. Just nutha says:

    @Kingdaddy: Justice for thee but grace for me has a deep traditional appeal.

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  33. motopilot says:

    I saw this Ted Talk the other day and it seems applicable to this conversation…
    https://www.youtube.com/watch?v=wtV5ev6813I

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  34. Mister Buster says:

    @Gustopher:..I thought it meant that we had begun performing medical experiments on criminals,..

    Ha! When I was but a young impressionable lad and saw the bad guys get shot dead on TV westerns in the early ’50s I just figured that they were convicted murderers in real life. I actually believed that this was the way that they were executed.
    I suspect that I mentioned this to my parents and got an early schooling in the difference between TV and real life.
    In fact since then about the only thing besides sports events and the moon landing that I have seen on live TV that I accept as true was seeing the horse drawn caisson carry President Kennedy’s body to St. Matthew’s Cathedral in Washington DC. I was with my friend in his parent’s living room watching on their black and white TV when we were both 15 in November of 1963.
    “That’s where we should be.” he said in a somber voice.
    “Yeah.” was all I could reply.

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  35. Kathy says:

    Sirhan is a hard person to sympathize with. Though we can’t ever know, the feeling is pervasive that Robert Kennedy had a good chance of defeating Nixon in 68.

    We also can’t know how well he would have fared, had he beat Nixon, with the Vietnam mess on his plate, and everything else that was going on during that tumultuous time.

    And the reason we don’t and can’t know any of this, is the man jailed in California for his murder.

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  36. grumpy realist says:

    @gVOR08: the lack of mens rea isn’t a get-out-of-jail card, by the way. Usually it just means you get convicted of a lesser charge. (2nd degree murder vs. 1st degree murder, for instance.) And you can’t carry out an act (like stabbing someone in the chest) and then protest that you didn’t mean to kill the individual even though you willingly stuck the knife in him 6 inches. You had the intention to carry out an act which had as its logical consequence the death of the individual, hence there was sufficient mens rea.

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  37. Roger says:

    @Mu Yixiao:

    You’re a small restaurant owner who brings in a weekly deposit of around $9k (because that’s how much money the restaurant makes in a week)? You’re committing a felony.

    This drives me crazy. No, under the facts you set out you’re not committing a felony. Under 31 USC 5324, which I assume is the statute you are referring to, it’s a felony if you structure the deposit below $10,000 “for the purpose of evading the reporting requirements.” If that’s not your purpose, it’s not illegal. Now if you want to complain that the statute gives prosecutors way too much discretion to abuse the statute without evidence of improper intent, I’m right there with you, but the fact that prosecutors have the ability to make life hard for small business people, or that sometimes people without the requisite intent will get charged or even convicted, doesn’t mean that everyone who makes a $9,000 bank deposit committed a crime.

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  38. liberal capitalist says:

    Timely topic, as most here are.

    My wife and I recently watch Sandra Bullock in “The Unforgivable”.

    The movie lays out graphically what post prison life is like. In this case the film involved the shooting of a sheriff.

    My wife’s point: She killed a cop, she should be punished the rest of her life.

    My point: she went to prison for the time that was specified for her crime. If she was punished, why does punishment continue?

    Without giving up plot and ending, I suggest it’s a good watch.

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  39. Mimai says:

    I’m enjoying your contributions Matt. Well done.

    Who “should” be convicted (and of what)?
    Who “should be paroled?
    Who “should” get an organ transplant?

    Answers to these questions require us to grapple with the reality that there is so much we don’t know about human psychology and behavior. And that’s to say nothing of our less than stellar ability to make above-chance predictions about such (most) things.

    I’ve conducted scores of such evaluations, mostly for organ transplantation and competency to make medical decisions. But some legal stuff too. It’s an impossible task. The execution of it is more art than science. “They” want a single definitive answer. Uncertainty and probabilistic thinking frustrates. Because resources are finite and/or implications are massive.

    And, so, here we are. Governed by our tendency toward black and white thinking. Our group allegiances. And our moralistic nature.

    Oh, and perhaps most of all, our hypocrisy.

    Still though, I like humans. Most of us are just trying to get through the day.

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  40. Andy says:

    Matt,

    Great post, just want to mention again that it’s so great to have your perspective back on top of the fold.

    Honestly, I don’t have much of an opinion on Sirhan. I was born in 68 a few months after he committed his crime so, for me, all that is “history” and doesn’t carry any emotional baggage as it does for Boomers and older generations.

    But in general terms, I do think it’s probably important to distinguish the context of a crime – a political assassination is not the same as other types of murder. I also have to wonder what the point of continued incarceration is supposed to achieve beyond giving satisfaction to those who hate him and what he did. Finally, as a general rule, I think contrition is an important element of clemency or parole. It seems from your post and my extremely limited research, that Sirhan is a waffler on this – that doesn’t speak well for him.

    But I also think about Shawshank Redemption. And yes, shame on me for being influenced by a flawed Hollywood depiction, but I can’t help but think of the character in that movie named Brooks, who was in prison so long, became “institutionalized” and didn’t know anything else. He got his parole, couldn’t deal with it, and ended up hanging himself.

    Sirhan has been in prison for as long as I’ve been alive. He’s had a very sheltered five decades and should he be paroled the world will be substantially different for him than when he left it. I have to wonder whether he can cope or end up like Brooks, especially given he’s not some guy the world forgot, but an infamous killer who murdered one of the most prominent members of one of the most famous and influential families in American history. I mean, really, who knows what he will be like if/when he gets let out? I doubt even he knows, much less anyone else.

    So I dunno, I go back and forth on the merits.

    But as a political and governance matter, I think Newsome is wrong to overrule the parole board, particularly for such weak reasons which don’t pass the smell test for me. So on that basis alone, I’m inclined to think he ought to be paroled.

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  41. HarvardLaw92 says:

    @grumpy realist:

    Mmhmm. I was totally poised to launch into a discussion about the intersecionality between mens rea and scienter, and general vs specific intent, but stopped myself.

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  42. ImProPer says:

    “What I was struck by was the mental gymnastics that Governor Gavin Newsome, who has consistently run on a criminal legal system reform platform, undertook to avoid admitting this.”

    If he truly is serious about criminal justice reform, the cognitive dissonance must be great. That a decision made by a parole board is overridden by a politician can only be comforting to someone that is content with the current state of our criminal justice system. The politicization of crime and punishment has gotten us to where we are now. When California did away with indeterminate sentencing in the late 1970s,”
    almost all crimes except for 1st and 2nd degree murder, fell under determined sentencing. At the time it’s stated goal was to be more fair to minority inmates who evidently were incarcerated longer than whites for similar offenses. I don’t think many would argue today that this has been successful. However it has been a success for those in the corrections industry, and fear based politics. Violent offenders no longer have to go in front of a parole board and show that they’ve worked on their issues and are ready to rejoin society. This is how people like Lawrence Singleton, and Richard Allen Davis are able to get out untreated, and unrepentant, to serve as real boogie men for demogogic politicians, and corrections unions.
    I don’t have an opinion on Sirhan Sirhan, but the parole board did. His crime was definitely consequential, but less so than politicizing crime and punishment imo.

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  43. Matt Bernius says:

    @HarvardLaw92:
    I honestly would have been here for that masterclasses.

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  44. HarvardLaw92 says:

    @Matt Bernius:

    It seemed like it would be going off of the reservation with regard to the topic. Keeping it simple, consider the elements of capital murder – premeditation (I thought about killing you in advance of acting to kill you) , deliberation (when I acted, I believed / hoped that acting would cause your death) , and willfulness (I am choosing to act, nothing is forcing me to. I want to act). Mens rea gets into intent – when I acted, I intended to kill you. I expected your death to result and wanted it to happen, while scienter gets into my knowledge of wrongfulness (when I acted, I knew killing you was wrong / against the law).

    It’s not generally required to establish, for example, that someone knew killing is wrong when they acted for them to be convicted of murder (scienter – it varies in practice by jurisdiction, but keeping it general here), but it is required that to establish that they intended to cause death when they acted (mens rea). There are some exceptions (for example tax courts have generally held that someone needs to have known that they were violating the tax code to be found guilty, as opposed to an unintended violation stemming from a deliberate act in ignorance of the code).

    Specific vs general intent goes to result mostly – I intended the conduct and the result, for example murder, larceny, etc. (specific) vs I intended the conduct (for example battery). Getting into the nuances and quirks could run to pages and pages of discussion, but that should hopefully be OK for a high level explanation.

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  45. Matt says:

    @Roger: Intent is in the eye of the beholder. I know people who have been arrested with a personal amount of drugs (usually marijuana) who ended up charged with intent to distribute on top of the other charges. Because a single baggie of 8 grams of low grade pot is clearly a dealer quantity.

    So yeah not everyone will get hit by that law but you damned well know some will…

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  46. Tony W says:

    When I read the pigs-heart story, my mind went immediately to COVID triage for our bulging hospitals.

    My question to those who question the use of societal treasure to keep a man alive who has a criminal history is to ask them how they feel about using societal treasure to keep a man alive who refuses immunization and harms the community with anti-vax rhetoric?

    I see a parallel.

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  47. Matt Bernius says:

    @HarvardLaw92:
    That was great. It confirmed somethings and added important nuance (willfulness). Bravo!

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  48. HarvardLaw92 says:

    @Matt Bernius:

    No problem. Willfulness has to play a part, or else we’re into the realm of affirmative defenses & lesser degrees. Take, just as a hypothetical, this scenario:

    You (generic you) live in my neighborhood. You’re known to be a loose cannon prone to fits of rage, you open carry at all times (ergo you can be presumed to be armed,), and let’s say you’ve popped off a few rounds at the sky in anger in the past.

    If I consider the situation, I will realize that this situation potentially puts me into the position of having to kill you in the future to protect myself and think about how that might play out (premeditation). If I’m put into that position, the odds are pretty good that if I have to act, my goal is going to be to kill you first before you kill me (deliberation), but I wouldn’t be choosing to act. I’d be forced to act by a situation where your aggression gave me no reasonable alternative (no willfulness). Capital murder is off of the table. Depending on the success of my affirmative defense, I’m either not culpable, or I’m culpable for a lesser degree of homicide.

    Expanding a little on specific vs. general intent – in crimes of specific intent, intent can not be inferred. It must be proven beyond a reasonable doubt. In murder, for example, the state must prove that the defendant intended to cause death, a specific outcome.

    Contrast that with general intent, where intent may be inferred depending on the statute (for example, in battery, it’s sufficient for conviction to establish that I acted, I intended to cause harmful or offensive contact, and that harmful or offensive contact occurred. ). It’s not necessary, for example, to establish that I intended for you to get a broken arm or some other specific outcome. That intent can be inferred by my choice to initiate the contact.

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  49. grumpy realist says:

    @HarvardLaw92:….and then there’s all the different rules for insanity….

    (I never did figure out why certain crimes were considered specific intent crimes and others weren’t. I chalked it up to English legal history.)

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  50. HarvardLaw92 says:

    @grumpy realist:

    G-d, don’t even get me started on that nightmare.

    I chalk it up to English common law, yah. Louisiana, the only state which derives primarily from the Napoleonic Code instead of ECL, is all over the place with respect to intent because of that origin – specific intent can be inferred in LA. It’s a whole different legal world down there.

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