Throw Away the Key-An Update!

Early in November of last year I reported on Bad Lawyer about Graham v. Florida.   I am happy to provide you with the update, that the US Supreme Court today held that life sentences for children in non-murder cases violates the 8th amendment prohibition against "cruel and unusual" punishment.   Since the US Supreme Court so rarely finds anything "cruel and unusual," this is an encouraging sign that the 8th amendment still means something. 

Fake Electrocutions of Inmates, That's a Lot of Fun!

There are just so few real bennies to correctional work, so who would be churlish enought to deny the guards the fun of a few "fake electrocutions?"  This report is from NJ.Com reporting from Avenal, New Jersey cuts to the chase:

"One week before Javier Tabora’s release from the Adult Diagnostic and Treatment Center in Avenel, a specialized prison for sex offenders, he was summoned to an examination room.  Once there, Tabora later told investigators, a sergeant instructed him to sit in an electronic chair used to scan inmates for contraband and pretend to be electrocuted.  Tabora sat in the chair yelling and shaking, 'pretending that electricity was coming from the chair,' he said. Then he placed 'cream soup' in his mouth and allowed it to seep out 'for added effect.'  The entire ruse was allegedly conducted to frighten a second inmate, Robert Grant, a sex offender with a history of mental health problems whom officers planned to question. In a separate interview, Grant told investigators he saw an inmate with 'foam coming from his mouth' and then became 'upset, nervous and shaking' when officers sat him in the chair while interrogating him.

The officers involved denied the allegations, saying none of Tabora’s account was true. They told investigators they were only using the chair to search Grant for contraband before questioning him. Instead of threatening to electrocute Grant, they said, the officers were trying to reassure him by unplugging the chair, used to detect metal in objects like weapons or cell phones, because Grant’s handcuffs set off an alarm, scaring him.

The conflicting accounts of the Oct. 3 incident were contained in a confidential internal affairs report obtained by The Star-Ledger.  The investigation, which concluded this month, did not substantiate the electrocution threat or the preceding ruse, according to the report. Without a video camera in the examination room, the case boiled down to the officers’ word against the inmates’.

Earlier this month, the department moved to fire the three veteran officers involved but instead struck a deal allowing them to keep their jobs and receive transfers to other facilities, according to officials and documents.  Each pleaded guilty to multiple infractions including conduct unbecoming and violation of safety regulations, according to the settlement agreements. Sergeants Mark Percoco and Steven Russo, also charged with neglect of duty, are serving 105-day suspensions without pay, while officer Edward Aponte will be off the job for 14 days. Officials, who requested anonymity to discuss an internal investigation, said there wasn’t enough evidence to support firing the officers if the case reached an administrative hearing.

'The investigation didn’t produce the results that we thought,' one official said. 'We knew we weren’t going to be able to sustain the removal.'  In addition, the Middlesex County Prosecutor’s Office declined to pursue criminal charges. The internal documents obtained by this newspaper provide a rare glimpse at an internal investigation and the disciplinary process within the state’s prison system. Such proceedings are kept confidential: public records show when disciplinary action is taken but reveal little about the employees’ infractions or how the punishment was decided.

The Oct. 3 incident also raises questions about how inmate complaints are handled in state prisons. Officers told investigators they were questioning Grant because he was making threats against an officer, but the internal report concluded the 'threats' were only the filing of 'remedy forms,' which give inmates a way to express concerns. And, when pressed, no one could locate the 'threatening' complaints Grant was accused of writing.  Deborah Jacobs, executive director of the New Jersey chapter of the American Civil Liberties Union, expressed concern that inmates were being discouraged from complaining.  'Respect for internal affairs and prisoners’ rights to address grievances is essential to the integrity of prisons and other such institutions,'  she said. 'The only way to create a silver lining to this tragic and appalling incident is to use it as a springboard for establishing grievance and oversight systems and training programs to ensure that nothing like it ever happens again.'

During the four-month probe documented in the internal report, investigators videotaped interviews with inmates Grant and Tabora, the three officers under investigation, and several other employees in the prison.  The facility, built in 1976, provides treatment to about 650 sex offenders, including those with mental illnesses. Corrections spokesman Matt Schuman declined to comment on this case, and Russo’s lawyer did not return messages left at his office. Tabora, now under parole supervision, referred questions to his lawyer, who did not return calls for comment.

Robert Fagella, a Newark lawyer representing Aponte, said his client is a model employee whose lighter suspension shows he didn’t do anything seriously wrong. 'He just happened to be in the wrong place at the wrong time,' Fagella said. 'There wasn’t very much there to charge him with. I think it was a face-saving device.'

The Oct. 3 incident was brought to the attention of investigators by a third inmate at the prison, the report said. The inmate told investigators Grant was being mocked by staff members who were "making a sizzling sound" like they were 'frying meat.'  The inmate said Grant was telling other inmates he was strapped to a chair and threatened with electrocution.  The investigation found that Aponte and Russo had gone to the prison’s recreation yard to fetch Grant, then brought him handcuffed to the examination room for a strip search. Percoco told investigators he brought Tabora to the room to reorganize equipment, then sent him out when Grant arrived. Russo said they asked Grant to sit on the electronic chair to search him for metal. According to Russo, Grant has a habit of using razor blades to remove tobacco from cigarette butts in the prison yard.  Afterward, Russo told investigators, they escorted Grant from the room, providing him juice at a nearby office before releasing him.  According to the Corrections website, Grant is now serving his five-year term at South Woods State Prison in Bridgeton.

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You know, it's kind of a relief that we don't just pull this sort of shit on Iraqis and Afganis. 

Death Penalty Intellectual Framework--Nah, Just Kidding!

When you study law you quickly encounter references to the Restatement of Law addressing various areas of the law.  For instance, there is a Restatement of the Law of Torts, Evidence, Property, and so on.  The Restatements are issued by the American Law Institute, the ALI,  which  is an independent and immensely influential group of legal scholars.  The ALI craft a "restatement" in nearly every area of law positing precisely where the law is, and where law is evolving.  The ALI's influence is so widely-acknowledged that as a law student or lawyer, you become accustomed to reading citations and excerpts to the Restatements in the opinions of every court.  You are meant to take for granted that the Restatements are THE LAW.

Adam Liptak, of the New York Times, reported, today, on the ALI's abandonment of the effort to "restate" the death penalty law.  In effect, the ALI by its actions have pulled the last underpinnings of intellectual support for the state killing of death row inmates in America. 

The Bad Lawyer is not a deep thinker, in fact by definition the Bad Lawyer is, well,  a bad lawyer, but the Bad Lawyer has known many good lawyers--and, notwithstanding, his personal limitations the Bad Lawyer cares deeply about crime and punishment.  The problem with capital punishment is that it runs headlong into the U.S. Constitution's  eighth amendment prohibition against "cruel and unusual punishments inflicted." and the fourteenth amendment's prohibition against State laws that "deprive persons of life, liberty or property without due process of laws, ...or, the equal protection of the laws."   Perhaps this is obvious to you, death is unusual as we have seen on this blog, some folks get the death penalty where other people committing essentially the same act in the same set of circumstances, walk, remember Gaile Owens? 

As Adam Liptak nicely parses the ALI decision, how can the death penalty framework "reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. [The ALI report (on its decision to abandon efforts at a restatement)] added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections."  All concrns we've talked about on Bad Lawyer.  Now, it is time for the Supreme Court to act to end the farce of constitutional state killing of death row inmates, if a Bad Lawyer can understand these deep thoughts, the Nine certainly can.

Physical Injury

Physical injury, sounds like a redundancy?

There is a requirement in federal law that an inmate who's been sodomized who subsequently seeks to sue the prison and officials in charge of his safety prove "physical injury."  The New York Times in an editorial, Combating Prisoner Abuse addresses the absurdity of the requirement; and, supporting legislation proposed by Rep. Robert Scott, Democraat of Virginia.

I encountered this requirement while representing victims of sexual assaults at work who sought compensation through workers' compensation systems.  It's a ridiculous rule that I know to be a vestige of the hyper-concern that people with "non-physical" injuries can fake claims to get compensation.  Let's be clear, fraud happens all the time.  Sometimes the perpetrators of fraud are Judges, lawyers, and law enforcement as I document, here, all the time.  The notion that we should not compesate genuine injuries arising out of sexual assault because there might be fraud is sickening.  Surely, we are sufficiently sophisticated in this country to work through efforts to game the system in order to compensate truly traumatized individuals. 

Depriving someone of their freedom, their family and friends, incarcerating them with other criminals seems to me to be adequate punishment; adding sodomy; that's probably one of those things contemplated under "cruel and unusual" punishment, well... maybe not for 'Nino.

29 Years on Death Row Is Not Cruel and Unusual If They Kill You In the End

Tennessee is set to kill Cecil Johnson, Jr. next week 29 years after they convicted him of a triple homicide.

There appears to be some doubt whether Mr. Johnson did the deed, and no doubt that the prosecution and police were engaged in misconduct and manipulation of so-called eyewitnesses.  Oh well, why let a little thing like doubt get in the way of a good state sanctioned killing.

Govenor Phil Bredesen has denied clemency.

For more on  the Johnson case:  http://www.tennessean.com/article/20091128/NEWS03/911280346/TN+killer+set+to+die+next+week+asks+for+stay+of+execution

Huh?!

See:  http://www.bostonherald.com/news/regional/view/20091126wife-killing_tranny_denied_electrolysis_for_time_being/

Robert "Michelle" Kosilek murdered his wife.  "Michelle" lives as a woman in an all-male prison.  He's suing the department of corrections in Massachusetts for denying him further electrolysis treatments, and while the Judge upheld the denial of further hair removal procedures (he's already received 7 at $500 a piece, thak you taxpayers of Massachusetts), the Judge criticized the Department of Corrections saying they were dangerously close to engaging in "cruel and unusual" punishment violative of the 8th amendment o fthe U.S. Constitution.

I doubt that anyone thinks of me as being terribly illiberal, but every once in a while something comes across my radar screen that reminds me that there is a reason so-called liberal judges earned a bad name.

Then there is the other side of the coin the Judge who throws the book,  on this occasion let's thank the Judge.  Prentiss R. Fulton earned a trip to the Big House for double murder, robbery, and shooting and stabbing his partners in crime. The Kansas Judge Larry D. Harman felt that two consecutive life terms plus 495 years was just about right..  This is a guy we can only hope never gets out.

http://www.kansascity.com/news/breaking_news/story/1593545.html