What Would Madison Do?

Death in Prison.

That really is, as I've said repeatedly (check the search box), what an LWOP sentence means.  Life without the possibility of parole.  Without hope.  Without chance.  Regardless of rehabilitation.  Regardless of good sense.

It's a terrible sentence.  A sentence of despair.

Yet it's different from death as death itself is different.  It's what Justice Stewart said in Gregg v. Georgia.

[D]eath is different in kind from any other punishment imposed under our system of criminal justice. 

Which is of course true.

But then, maybe, so is LWOP.

A year ago, in Graham v. Florida, the Supreme Court said that the 8th Amendment to the Constitution prohibits a sentence of LWOP for a juvenile who did not commit homicide.  Last week the Wisconsin Supreme Court gave its answer to the next question:

Does the 8th Amendment prohibit a sentence of LWOP for a juvenile who did commit homicide?

The case is State v. Ninham, and the answer, according to the Wisconsin Supreme Court, is that LWOP for a 14 year old who committed homicide is just fine.

I haven't written about Ninham because I really didn't have anything much to say except that it was just deeply offensive.  LWOP is different.  So are kids.  Enough.

I've done that sort of post before, certainly, but ho hum.

And then, this morning, Doug Berman raised a question that's worth considering.

Might the Framers have viewed LWOP more like torture than like a death sentence?

Ninham makes clear that nobody made that argument.

Ninham does not argue that sentencing a 14-year-old to life imprisonment without parole was considered cruel and unusual at the time the Bill of Rights was adopted.

But Justice Ziegler's majority opinion addresses the question anyway.

At common law, children ages seven and older were subjected to the same arrest, trial, and punishment as adult offenders, In re Gault, 387 U.S. 1, 16 (1967), which means that, theoretically, even the death penalty could have been imposed for a crime committed by a child as young as seven years old, see Stanford v. Kentucky, 492 U.S. 361, 368 (1989), overruled by Roper, 543 U.S. at 574; see also Thompson, 487 U.S. at 828 n.27 (reporting that a 10-year-old child was hanged in Louisiana in 1855 and another in Arkansas in 1885). Notably, once a child turned 14 years old, he or she no longer benefitted from the presumption of incapacity to commit a capital, or any other, felony. Stanford, 492 U.S. at 368 (citing 4 William Blackstone, Commentaries *23-24); Thompson, 487 U.S. at 864 (Scalia, J., dissenting).

Given the common law understanding that 14-year-olds were not immune from capital punishment, it is clear that Ninham cannot establish that sentencing a 14-year-old to life imprisonment without parole was considered cruel and unusual at the time the Bill of Rights was adopted. . . .

Well, maybe.

But Berman wonders.

But, I am not sure this logic is air-tight, because (1) it seems likely the Framers expected and wanted the Eighth Amendment to prohibit torture as a form of punishment, and (2) is seems plausible that the Framers could have viewed an LWOP sentence to be more like torture than death as a punishment.
I understand that in modern times it is common (and perhaps even logical) to view an LWOP sentence as a categorically less severe punishment than the death penalty.  But in the Framing era, when lots of folks died young and when nobody was subject to imprisonment for extremely long periods, I am not sure everyone would have embraced this modern view of relative punishment severity.  After all, Patrick Henry famously said "Give me liberty or give me death!" and the discouraging prospect of lives subject to a sovereign's dominion fueled the American Revolution.  Against this backdrop, I do not think it far-fetched to wonder if some (many?) Framing era thinkers would have viewed an LWOP sentence eliminating all personal liberty and any future chance of personal liberty for half a century or longer to be more akin to torture than to a death sentence.

It strikes me that this is not merely an academic question.

At least two justices on the Supreme Court (Thomas and Scalia) are ostensibly committed to the proposition that the Constitution and its Amendments mean exclusively what they were understood to mean at the time they were adopted.  (Thomas's descriptions of how he determines that is generally more linguistic and Scalia's more historical, but they both claim a form of originalism.)

Make a strong enough case and add their votes to at least three of the plausible 5 votes otherwise available for the broader proposition that LWOP and kids don't go together and you get a curious but compelling majority.

Will it happen?  Not in Ninham I don't imagine.  It's an easy case to punt on the question since the argument wasn't made below.  But the door is now open.

We ought to be prepared to walk through it.

"She Would Not Want Us Suffering with Unforgiveness"

Az 53 minutes away from killing someone

That was the subject line on an e-mail I got, from a lawyer friend in Arizona yesterday.

A while later, Donald Beaty was killed.

It's just a couple of weeks past 27 years since he murdered Christy Ann Fornoff.  Laurie Roberts, columnist for the Arizona Republic, gives the rough plot.

It was May 9, 1984, a hot Wednesday evening, a little before 8 p.m. Christy, just six days past her 13th birthday, grabbed her tennis shoes, pulled on some shorts over her swimsuit and announced she needed to collect a few overdue accounts from customers on her paper route.
It was a trip she had made dozens of times but it would soon be dusk and so her mother, Carol, decided to go along.
She clipped a leash on Pepe, the family cockapoo, while Christy hopped onto her brother's bike and off they went, to the Rock Point Apartments on McClintock Drive.
At the complex, Carol stopped to chat with a resident while Christy went on ahead.
"Mom, you know where I'm going," Christy said, and her mother told her that she'd catch up shortly.
"We were already in the complex," Carol told me this week. "I thought it was fine."
Five minutes later, Carol broke off the conversation, noticing that it was getting dark. She found the bicycle, leaning against a back patio fence and knew instantly that something was wrong. Christy, Carol said, would never leave her brother's new bike unattended.
Two days later, Christy's body was found behind a dumpster in the apartment complex. She'd been raped and suffocated, wrapped in a sheet and dumped beside the trash. The man who discovered her body was Donald Beaty, a 29-year-old maintenance worker in the complex and the man who killed Christy Ann Fornoff.

Roberts says the case "wrenched in the heart of this city."  From what happened to Christy Fornoff, Arizonans learned to live in fear.  The gates of hell opened on a residential side street, and the world would never be the same.

Maybe.  I've never lived in Arizona, been there only briefly, in the Phoenix airport to change planes.  I hear it's a beautiful state.  I know it has an interesting history, a politically curious present.  The demographics of the place are fascinating.  I've got a number of friends who live there.  

And although I pay more than my share of attention to death penalty cases around the country, and although I had some very vague sort of familiarity with the name of Donald Beaty, I didn't know anything about the case and don't think I'd ever heard of Christy Ann Fornoff - yet another thing that's bizarre about those who are passionate about the death penalty - for years, maybe decades, the press will be all about the killer with the victim of the criminal act no more than an afterthought. 

Want the focus on your loved one rather than the person who did her in?  Convince the prosecutor not to seek death.  If only Dr. Petit understood that.

But I digress.

Since I don't know anything much about the case beyond what I've read in the last 36 hours or so, I'm prepared to assume that Beaty was a monster and Christy Ann an angel.  I have no doubt that her death was devastating to her family.  And it's difficult, especially without knowing anything of the man, to stir up much sympathy for Beaty.

Still, it's well to remember both she and he.  In some sense, they're permanently joined, have been for 27 years.  And each was killed, murdered.  She by him; he by the people of Arizona.  No equivalence, as I've said before since, whatever else it may be, death (and murder in particular) is always deeply personal and individual.  But joined in those facts nonetheless.

But it's not my case, not my state, and there are plenty of murders, by individuals and by governments, to go around.  And my subject, despite how this looks so far, isn't she or he or her killing or his. 

My subject is Christy Ann's family.

Laurie Roberts reports that along with lobbying for "victims' rights" (and I don't want to get side-tracked into that subject here) they've been holding retreats for those who grieve the loss of a loved one.  That's her set up for this.

They've taught the rest of us a thing or two as well, about humanity and how to live.
"We forgave him immediately because Christy was a forgiving child and we just knew that she would not want us suffering with unforgiveness," Carol told me. "It eats at you. It's a selfish thing in a way. I don't want to hurt any more than I already am. Forgiveness is the only way."

They plan to be at the prison in Florence when Beaty is killed, but not for hate and vengeance. 

Mirriam Seddiq has one of the great tag lines in blogdom

We are all not guilty of something. . .

Equally, of course, we are all, each of us, guilty of something.  We each need to be forgiven, even if we don't deserve it.

The Fornoff's get it.  More, they know that hatred really doesn't heal and that death, however it is administered, is no cure, no remedy, has nothing to recommend it.

Roberts quotes Carol again.

"I'm just expecting it to be very sad," she said. "It's not joyous to see a person die. We feel sad and many of us wish to pray for his soul and hope that he has forgiveness."

For the children.

Sheriff, Arrest Thyself

I turned to the Arizona Republic because I wanted to write about the execution this evening of Donald Beaty.  I still want to, and I will.

But you know how it is when you dip a toe into the waters deserts (that's not fair, there's water, in the Copper State, too) of the Grand Canyon State.  You just get sidetracked because dammit, Sheriff Joe and the boys have made the news again.

This time it isn't Joe himself making the headlines, it's three of his minions.

3 in MCSO accused of cartel ties

Seems that Tuesday morning, following a yearlong investigation, a Multi-District Drug Task Force arrested a dozen people and darned if three of them didn't work for Joe.

Deputy Alfredo Navarrette, 37, has worked with the Sheriff's Office for nearly a decade, serving in a special unit designed to target human smugglers moving through Maricopa County. But investigators believe Navarrette was himself involved in human smuggling. Investigators found two undocumented immigrants in Navarrette's home when he was arrested early Tuesday morning in a sweep that concluded a yearlong investigation.
"The fight against drugs, illegal immigration and human trafficking is important not only to me but the citizens of Arizona," Sheriff Joe Arpaio said. "That a deputy sheriff would provide information and associate with these drug and human traffickers is despicable."
Investigators from a multijurisdiction drug task force also arrested two sheriff's detention officers, Sylvia Najera, 25, and Marcella Hernandez, 28. They are accused of laundering money and moving drugs for a Valley-based drug-trafficking organization with ties to Mexico.
Arpaio said Hernandez is eight months' pregnant with the child of another suspect arrested Tuesday, Francisco "Lorenzo" Arce-Torres, who is described in court records as a member of the Sinaloa drug cartel and the leader of the Phoenix-based drug-trafficking organization at the heart of the probe.
Court records indicate Hernandez had $20,000 cash on her when she and Najera were arrested Tuesday morning on their way to work at the Lower Buckeye Jail.

So, let's recap.  Three of Joe's folks are busted for being part of a drug smuggling ring.  One of them is part of Joe's special anti-immigrant unit and allegedly hires or harbors or something undocumented immigrants.  That's embarrassing.  Another is 8 month pregnant with the child of the head of a drug cartel.  A third is carrying 20 grand that are, supposedly, drug proceeds.

Are any of the three (hell, any of the 12) guilty?  No idea.  Innocent people get arrested all the time.  So do guilty ones, of course.  But it isn't pretty.

And Joe?

Physician, heal thyself.

Schadenfreude.

A Moment of Self-Promotion

I don't do this, but then I'm not really promoting me but the ACLU.

I'll be the speaker Thursday night at the annual dinner of the ACLU of Northwest Ohio. I'll be talking about the death penalty, so you might say you've read it here first.

If you're in the vicinity of Toledo, and have nothing else to do . . . .

More information and how to make a reservation here.

Forgiving the Unforgivable

We've seen these stories of forgiveness before.  We've seen those who understand that hatred doesn't heal and that every killing causes pain.
Let me introduce you to Rais Bhuiyan.

He was shot in the face, blinded in one eye, by Mark Stroman, a white supremacist.  It was 2001, and Bhuiyan was shot because he was from Bangladesh, because he seemed middle eastern, because he is a Muslim.  It was a hate crime and a revenge crime.  Stroman was striking back because of what happened on 9/11 that year.

Bhuiyan tells the story in the Dallas Morning News (unfortunately, behind a paywall):

"Where are you from?"

The question seemed strange to ask during a robbery, which certainly this was -- the man wore a bandana, sunbglasses and a baseball cap, and aimed the bun directly at my face as I stood over the gas station register.

"Excuse me?" I asked.

As soon as I spoke, God sent some angel, and I turned by face a bit to the left; otherwise, I would have been blinded in both eyes, instead of just one. I felt the sensation of a milion bees stinging my face and then heard an explosion. Images of my mother, father and finace appeared before my eyes, and then, a graveyard. I didn't know if I was still alive.

I looked down at the floor and saw blood pouring like an open faucet from the side of my head. Frantically, I placed both hands on my face, thinking I had to keep my brains from spilling out. I heard myself screaming, "Mom!" The gunman was still standing there. I thought," If I don't pretend I'm dead, he'll shoot me again."

This was not a robbery. This was a hate crime because of the tragedy at the World Trade Center on Sept. 11, 2001. Mark Stroman, a white supremacist, was in the middle of a shooting rampage to express his anger toward those of Middle Eastern descent. He shot and killed Waqar Hasan, a Pakistani immigrant, on Sept. 15, 2001. He shot me, an immigrant from Bangladesh, on Sept. 21. He shot and killed Vasudev Patel, from India, on Oct. 4. We were all shot while working at gas stations and convenience stores in Dallas.

Stroman is on death row.  For the killing of Patel, he's scheduled to be murdered on July 20.  Bhuiyan wants to prevent that.

I am requesting that Stroman's death sentence be commuted to life in prison with no parole. There are 3 reasons I feel this way. The 1st is because of what I learned from my parents. They raised me with the religious principle that he is best who can forgive easily. The 2nd is beacuse of what I believe as a Muslim, that human lives are precious and that no one has the right to take another's life. In my faith, forgiveness is the best policy, and Islam doesn't allow for hate and killing. And, finally, I seek solace for the wives and children of Hasan and Patel, who are also victims in this tragedy. They have already suffered so much; it will cause only more suffering if he is executed.

The other victims in this tragedy are Stroman's children. Not only have the Hasan and Patel children lost their fathers, but, if Stroman in executed, his children will lose their father, as well.

Now meet Mary Johnson.

In 1993, Oshea Israel murdered her son, Laramium Byrd after an argument at a party in Minneapolis.  NPR tells the rest of the story.

As Johnson recalls, their first face-to-face conversation took place at Stillwater Prison, when Israel agreed to her repeated requests to see him.
"I wanted to know if you were in the same mindset of what I remembered from court, where I wanted to go over and hurt you," Johnson tells Israel. "But you were not that 16-year-old. You were a grown man. I shared with you about my son."
"And he became human to me," Israel says.
At the end of their meeting at the prison, Johnson was overcome by emotion.
"The initial thing to do was just try and hold you up as best I can," Israel says, "just hug you like I would my own mother."
Johnson says, "After you left the room, I began to say, 'I just hugged the man that murdered my son.'
"And I instantly knew that all that anger and the animosity, all the stuff I had in my heart for 12 years for you — I knew it was over, that I had totally forgiven you."

But wait, that's not all.

Johnson's forgiveness has brought both changes and challenges to [Israel's] life.
"Sometimes I still don't know how to take it," he says, "because I haven't totally forgiven myself yet. It's something that I'm learning from you. I won't say that I have learned yet, because it's still a process that I'm going through."
"I treat you as I would treat my son," Johnson says. "And our relationship is beyond belief."
In fact, the two live right next door to one another in Minneapolis.
"So you can see what I'm doing — you know firsthand," Israel says.

Israel is out of prison. Mary Johnson is rooting for him.

Bhuiyan is working to save Stroman's life.  The Dallas Morning News, in an editorial that's not behind their paywall, approves.

It’s time for the hate to stop, says Rais Bhuiyan, a native of Bangladesh.
With his attacker set to die in Huntsville this summer, Bhuiyan has begun a quiet campaign to spare the man’s life.
We wish to give that campaign voice. It delivers a potent message to a nation still torn by the loss of 9/11. It resists the cycle of revenge that doesn’t stop until someone has the courage to say enough.

Which is exactly right, of course.

That's not to say it's easy. But the capacity of the human heart.

According to Dianne Solis of the Dallas Morning News, posted by the Greenfield Daily Reporter,

Bhuiyan said the event changed him and he now celebrates Sept. 21 as his new birthday because it was then he got his life back.

Mary Johnson?

"Well, my natural son is no longer here. I didn't see him graduate. Now you're going to college. I'll have the opportunity to see you graduate," Johnson says. "I didn't see him getting married. Hopefully one day, I'll be able to experience that with you."

I don't want to get mawkishly sentimental about this.  We can't all be so forgiving.  I'm far from convinced that I have so much generosity of spirit.  But that it's possible at all.  And the healing that it brings.

Rick Halperin, Director of the Human Rights Education Program at Southern Methodist University, is working with Bhuiyan to try to save Stroman's life.  Solis, again:

The events, Halperin said, "raise questions about compassion and healing and the nature of justice."
As for Bhuiyan, Halperin said, "I am amazed at the calm with which some can forgive the unforgivable."

Yeah.

h/t for Bhuiyan's story to Joachim and Amnesty International USA

I Should Give a Urine Sample to My Probation Officer Because . . .

Danny Gears entered a plea of guilty to burglary.  He entered a residence and took jewelry and other personal items.  At his sentencing before then-Judge, now Ohio Supreme Court Justice Judith Ann Lanzinger, here's what happened per the appellate court's opinion in State v. Gears.

At appellant's sentencing hearing, the trial court read the victim's impact statement, which stated that the jewelry and jewelry box taken from her by appellant had sentimental value and were never recovered. The judge then engaged in the following colloquy with appellant:

"THE COURT: What are you wearing around your neck?

"THE DEFENDANT: A necklace my ex-girlfriend gave me.

"THE COURT: Your girlfriend gave it to you. Does it have sentimental value?

"THE DEFENDANT: Yes, Ma'am."

She then ordered appellant to forfeit the necklace and other jewelry he was wearing as restitution.

Judge Lanzinger was trying to be creative.  She wasn't sending Danny to prison; she wasn't locking him up at all.  She knew that a prison sentence wasn't appropriate.  But she wanted to teach Danny a lesson he'd never forget, and to make him understand something of the pain he'd caused.

One goal of sentencing is rehabilitation.  If the criminal realizes that violating the law has negative consequences, the theory goes, he won't do it again.  That's part of the idea behind the cost/benefit analysis that leads to lengthy prison terms for even comparatively minor offenses.

The thing is, most people who commit crimes don't do the calculation because they don't expect to be caught.  So judges, some anyhow, cook up creative sentences to make criminals understand not that it's not worth it to them but that it's a generally bad idea.

Sometimes they're designed to shame the criminal.  That's when judges do things like require people to wear sandwich signs explaining that they did whatever.

Sometimes they're just designed to put a personal tweak into punishment.  Cory Mendoza was sentenced to prison for 39 years for killing two people and seriously injuring a third while driving drunk.  In an effort to make Mendoza suffer just a bit more, and to make him think about what he'd done, the judge ordered him to be placed in solitary confinement every year on the anniversary of the accident.

Sometimes, as with Danny Gears, they're designed to make the criminal understand in a personal way the harm he caused.

The court of appeals wasn't happy with what Lanzinger did to Danny Gears.  When Danny's lawyer got up to speak during oral argument, the presiding judge looked at her and said, "We don't want to hear from you."  Then, glaring at the prosecutor, he said, "We want to hear from you."

The prosecutor tried gamely, but it was hopeless.

The court explained the problem.

Unless a specific sanction must be imposed or is precluded from being imposed pursuant to law, a trial court has the discretion to impose any sanction or combination of sanctions provided in R.C. 2929.14 through 2929.18. R.C. 2929.13(A). As applicable to this case, R.C. 2929.15(A) provides that "the court may directly impose a sentence that consists of one or more community control sanctions." A community control sanction is a sanction that is not a prison term, R.C. 2929.01(F), and may consist of (1) community control, R.C. 2929.15; (2) residential sanctions, R.C. 2929.16; and (3) financial sanctions, R.C. 2929.18.

A reading of these statutes reveals a total lack of any intent to authorize in-kind restitution. As aptly observed by amicus:

"[T]he law does not provide that because the victim may have lost items of sentimental value the offender may be deprived of items of sentimental value. Restitution as penalty is a financial rather than moral sanction. It is for that 30 reason that the section of the Revised Code addressing restitution for felony offenses is captioned `Financial sanctions.' R.C. 2929.18."

Thus, we conclude that as a matter of law, the common pleas court lacked the authority to order appellant to surrender his personal jewelry as restitution.

The court invalidated that annual day of solitary confinement for Cory Mendoza, too. Judges can send people to prison.  They can't send them to solitary.

See, the problem with creative sentences (aside from the fact that they're frequently offensive) is that even when they feel right, when they seem to capture something or attempt to accomplish something, they're often illega.

But maybe not always.

Erika Blake, who covers the local courts for the Toledo Blade, wrote on Monday about the creative efforts of Lucas County Common Pleas Judge Stacy Cook.

“From years of practicing law, I felt that there was a huge missing link in getting people to understand what they did wrong, not just in committing the crime but where there was error in judgment,” Judge Cook said. “I’ve always thought people needed to understand that what they did sent out this ripple effect.”

No sandwich signs.  No solitary.  No in-kind sentencing.  

Stacy gives homework assignments.If she were ordering people to write "I will not commit more crimes" 500 times on a blackboard, I'd make fun of her and the assignment and explain that it was worthless, stupid, and maybe unconstitutional.  But she isn't doing that.  Instead, she's doing something that makes some intuitive sense and that's probably lawful.  I could still poke fun, but I won't.  I like this too much.

Judge Cook has ordered as many as 30 defendants to write reports on closed-head injuries and several others to document statistics of guns and violence among youth. At any given time, the judge may have a few of the ordered reports mixed in with the daily paperwork scattered about her desk.

She reads them all.

As a special condition of community control, and if the essay is related somehow to the offense, the requirement is almost surely legal.  The question is whether it accomplishes anything.

And while she has no statistics and can’t say for sure, the judge said after a few reflective moments that the numbers for what she would consider serious violations seem to be low.

The public defender assigned to her courtroom thinks it makes a difference for at least some of those students convicted people who write the essays.  He points to people who've given up drug use and others who've gotten GEDs.

Mo Jenkins, too, thinks there's a likely positive here.

Morris Jenkins, chairman of the criminal justice and social work department at the University of Toledo, has researched alternative sentencing and restorative justice. He said that by adding requirements to offenders’ probations, the court is making individuals more accountable.

Mr. Jenkins said he has not studied the effects of written papers on recidivism, but added that he’d be willing to do so. But of the research he has conducted, much of which originates in juvenile court, he has seen that alternative sentences have proven effective.

“I’m glad that we have a judge with foresight and courage to do [alternative sentencing] with adult offenders,” he said. “A lot of individuals deserve second chances. Not everyone but a lot of people do, and by making them do something like a paper, I guarantee they’ll remember it later.”

I'm not going to be churlish.

I spent 15 years teaching, among other things, freshman comp.  I believe in the power of the written word and the discipline of writing.  I believe in education, not just training.

There are programs, successful ones, where they teach Shakespeare in prisons.  

And I'm rooting for this.

You go, Stacy.

Oh, and I can hear Hollywood calling for the movie rights.

Maybe Someone Stole the Tent

How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?
Sherlock Holmes, The Sign of the Four by Sir Arthur Conan Doyle

Would that it were that simple. 

Oh, Holmes's logic is impeccable enough.  Right up to the point where it's rot.

There is, and really I shouldn't need to elaborate on this, one basic problem.

Eliminating the impossible isn't the same as eliminating all but one theoretical possibility.

There are also lesser problems: Mistaken determinations, lack of information, false information, and so on.  We don't know enough, never will, to be able to eliminate all possible error or even, dare I say, all impossibility.

Life, like the universe itself, is far too complex and random.  Our own capacity is too limited.  Many things are possible - remotely possible sometimes, but possible nevertheless.  Occam's razor, like the related principle of parsimony, is a useful tool for cutting through the clutter, but it proves nothing.

The specific subject today is arson, more properly, it's fire which is sometimes arson but sometimes not.  (See Willingham, Cameron Todd.)

This morning, Scott Henson, at Grits for Breakfast, who's been following fire investigation in Texas and the gymnastics of the Texas Forensic Science Commission has gone through to avoid actually investigtating and reporting just how problematic it is, wrote about Dee J. Hall's article, "Burning Questions: Old Assumptions Hard To Put Out," from the Wisconsin State Journal. 

John Lentini, a prominent fire investigator and one of the harshest critics of the current state of fire science, said some of the probes amount to little more than "witchcraft and folklore."
He cited a 2005 test designed by the U.S. Bureau of Alcohol Tobacco and Firearms in which fire investigators were asked to identify the general area where two test fires were started in separate rooms. The fires were extinguished less than three minutes after achieving "flashover" — the point when, Lentini says, "a fire in a room becomes a room on fire."
Each time, just three of the 53 investigators got the area of origin right, and it was a different three each time, Lentini said. Subsequent tests have produced similar results.

Let's focus on that for just a minute.

ATF did a test.  That's not me, not some bleeding heart, sleazoid, criminal defense lawyer or plaintiff's lawyer (much fire investigation is done by insurance companies desperate to prove arson so they don't have to pay out).  That's a federal law enforcement agency.  They're in the business of trying to put people behind bars.

So they did a test.  53 fire investigators each examined two fires.  That's 106 examinations.  6 correct results.  6 of 53 investigators were wrong half the time.  The other 47 were wrong all the time.

When a fire investigator says the fire started at location X, you can bet that it started somewhere else.  You'll be right more than 95% of the time because that's how often the professionals, the experts, are wrong according to the law enforcement folks who rely on them.

But wait, as Ron Popeil would say, there's more.

Hall's article actually focuses on the investigation of a fire at J.J.'s Pub in rural Marquette County.   That fire was investigated by Deputy State Fire Marshall Joseph Siehelr and investigators hired by the insurance company to prove arson.  And so they did.  Along with V patterns, which ATF says don't mean a thing, and origin point examinations which we've seen are wrong 95% of the time, Siehelr used the Sherlock Holmes method.

Perhaps most important, Siehelr used a form of reasoning known as "negative corpus" in determining the blaze was an arson. Siehelr testified he and the experts paid by Awe's insurance company ruled out all accidental causes in their area of origin, "which leaves no other possible conclusion than for this to be incendiary."
The National Fire Protection Association's Guide for Fire and Explosion Investigations is considered the gold standard in the field. It has been revised for 2011 to add strong language saying such reasoning never should be used.
"It is improper to opine a specific ignition source that has no evidence to support it even though all other hypothesized sources were eliminated," the guide states. In those cases, it says, the investigator must label the fire as undetermined.
Denny Smith of Kodiak Fire and Safety Consulting of Fort Wayne, Ind., a national expert in using the process of elimination in fire investigation, said it's "pretty clear" Siehelr's reasoning "meets the criteria of what shouldn't be done."

That's a nice way of saying it's all bullshit.

Oh, the fire at J.J.'s Pub might have been set.

It's not impossible.

But that's no reason to think it's the truth.

Richard Wiseman, a professor of psychology at the University of Hertfordshire, working with the British Association for the Advancement of Science conducted a study to find the funniest joke in the world.  This came in second.

Sherlock Holmes and Dr Watson were going camping. They pitched their tent under the stars and went to sleep. Sometime in the middle of the night Holmes woke Watson up and said: “Watson, look up at the stars, and tell me what you see.”

Watson replied: “I see millions and millions of stars.”

Holmes said: “and what do you deduce from that?”

Watson replied: “Well, if there are millions of stars, and if even a few of those have planets, it’s quite likely there are some planets like earth out there. And if there are a few planets like earth out there, there might also be life.”

And Holmes said: “Watson, you idiot, it means that somebody stole our tent.”

Eight More Pardons for Those Who Don't Need Them

It was early Friday morning (or late Thursday night, depending on how you count these things), that I wrote about how the majority of the judges on the 11th Circuit told Ezell Gilbert that it really was a shame that he has to serve 8 1/2 years more than a legal sentence would be but that, darn it, that's just one of those things.

Cue music here.

Near the end, I pointed out that Obama could fix the problem but that the evidence was that he wouldn't.

Of course, Presidents have the power to remedy this sort of thing.  Obama could commute Ezell Gilbert's sentence tomorrow.  Don't hold your breath.  P.S. Ruckman, Jr. has the numbers at the Pardon Power blog.  (The boldface is Ruckman's.)

The last 12 presidents have, on average, waited 338 days (.9 years) before granting the first commutation of sentence. President Obama, who has yet to grant a single commutation of sentence, has waited 834 days (or 2.3 years). No president has been slower to grant a commutation of sentence save George W. Bush!

The Pardon Power blog, written by P.S. Ruckman, Jr., is a great resource if you're interested in this sort of thing.  I don't have it on the blog roll because, well, there are lots of great resources out there and it's my blog roll so I get to pick and choose.  But I go over there fairly regularly and there's always something interesting.

So, even though I went there early Friday morning/late Thursday night to get those numbers I'd seen a few days earlier, I really should have gone back later on Friday.  Had I, I would have found "Obama: 8 More Pardons to the Tiny Little Pile."

1. Gotten more and more interesting numbers about commutations, and from the same post
2. Learned that Friday afternoon, Obama issued 8 pardons, the first since the 9 he issued in December, bringing his total up to 17.

Wowsers.

And what an 8 they are.  Evildoers all.

• Back in 1980, Danny Alonzo Levitz was sentenced to 2 years probation for conspiracy.
• That same year, Edwin Alan North got 6 months probation for not paying tax on the transfer of a firearm. 
• Patricia Ann Weinzati was ordered to serve 3 years probation for structuring financial transactions so as to avoid reporting requirements.
• Christine Marie Rossiter had to do 500 hours of community service as part of her 3 years probation for conspiracy to distribute marijuana.

The others did some time.

• Michael Ray Neal - 6 months for manufacturing equipment to steal cable signals.
• Allen Edward Peratt, Sr. - 30 months for conspiracy to distribute methamphetamine.
• Randy Eugene Dyer - 5 years (though it was back in 1975) for conspiracy to import marijuana.
• Bobby Gerald Wilson - 3 months and 18 days plus 300 hours of community service for selling alligator hides to the feds.

Good for Obama.  But really, is this the best he can do?

Should I add that none of these people are currently in prison?  Or under any sort of supervision?  Nah, you knew that.

Ruckman runs some numbers.

President Obama has now granted a mere 17 presidential pardons (all announced on Friday afternoons) and, amazingly enough, zero commutations of sentence. He has been in office for 850 days. How does he compare to other Democratic presidents? By this point in his own administration, Bill Clinton had granted 55 pardons and commutations of sentence. Jimmy Carter had granted 312 pardons and commutations and JFK had granted 381. Lyndon Johnson had granted 717 pardons and commutations.
Indeed, only a Republican, George W. Bush, has been slower to grant a single commutation of sentence. Julie Stewart, president of Families Against Mandatory Minimums (FAMM) notes fairly enough:

"We’re happy that these eight people will have their civil rights restored by this presidential pardon, but it's sad that the Justice Department has not brought the president one prison sentence to shorten. It can’t be true that there isn't a single person among the 210,000 currently in federal prison who shouldn't be there. In fact, during the campaign the president acknowledged that federal prisons are filled with nonviolent offenders serving excessive sentences. Why, then, can’t he find one to commute?"

I've said before, and repeatedly, that clemency (which is what a pardon or commutation is) is an act of grace.  It's about generosity of spirit.  It speaks to what we might aspire to be.

Whatever you think of Obama's politics or policies, generosity of spirit as reflected in acts of executive grace doesn't seem to rank high.

But its good news for the guy who sold the alligator skins to the FBI.

* * * * *

On the other hand, Myanmar's ruling junta just announced that it's granting amnesty to some 15,000 or so prisoners, converting death sentences to life, and reducing by a year the prison sentences of everyone else.

Not quite golden for the 2000 plus political prisoners, though.  only about 30 of them will be getting out.  And as Human Rights Watch points out, reducing a sentence of 65 years to one of 64 isn't really all that generous.