The Death Penalty: Execute Them Before They Get Too Fat, Too Good, or Too Stupid

     America’s weight problem has changed the way we live and die and has affected how we punish, or can’t punish, some of our worst criminals. While the U.S. Supreme Court has not prohibited the execution of certain types of murderers, …

     America's weight problem has changed the way we live and die and has affected how we punish, or can't punish, some of our worst criminals. While the U.S. Supreme Court has not prohibited the execution of certain types of murderers, it has mandated that the state must kill condemned prisoners in a "dignified and humane manner." I would argue that how a prisoner is dispatched is less a matter of dignity and humanity than aesthetics. For this reason, death sentence prisoners no longer end up swinging from the end of a rope, being gunned down by a firing squad, or giving off smoke while twitching in an electric chair. These methods, while effective, look unprofessional and barbaric. In states where certain criminals are still executed, the government has to use methods that do not offend our tender sensitivities. The execution business also has to be politically correct. This is why juries have been reluctant to recommend the death sentence for women, people under 21, and folks with low I.Q.s. Of the 3,322 people currently on death row, only 61 are women. Wives convicted of murdering their husbands spend, on average, 6 years in prison. Men who murder their wives are, on average, sent away for 17 years. (In terms of race, 42 percent of the death row population is black, 12 percent Latino, and 44 percent white.)

     Today, death row inmates are killed by lethal injection. This method of execution fits in nicely with our pharmaceutical culture. We take drugs to get well, to sleep, and to get high, so why not use drugs to execute certain murderers in the 32 states where the death penalty is still legal. But now there is a growing concern about executing people with drugs. Over the past twenty years, several death row prisoners have tried to escape their fates by claiming they are too obese to be humanely injected. In Ohio (one of our fattest states), this has been a recurring correctional issue. (West Virginians are fatter than Ohioans, but in that state they have abolished the death penalty. In the Mountaineer State, convicted, overweight murderers probably don't live much longer than those on Ohio's death row.)

     In May 2007, an executioner in Ohio ran into difficulty when he tried to kill, by injection, 38-year-old Christopher Newton. Six years earlier, while serving time for burglary, Newton murdered his cellmate. Now it was his time to go. Because of his weight,which was 265-pounds, it took the executioner two hours and ten attempts to find a receptive vein for the lethal dose of pentobarbital. During the prolonged execution Newton was actually allowed to go to the bathroom. It would be his last bathroom break, however.

     Nineteen-year-old Richard Cooey, in 1986, threw chunks of concrete off a bridge over Interstate 77 near Akron, Ohio. The act caused the deaths of two University of Akron students. As Cooey's execution date drew near, the 5-foot-7, 267 pound inmate alleged that prison food and lack of exercise had made him too fat to painlessly execute. According to the 41-year-old Ohio prisoner, the executioner's difficulty in finding a friendly vein would cause him stress and discomfort. On October 14, 2008, the Ohio executioner, probably under a little stress himself, had no problem introducing the pentobarbital into Mr. Cooey's system.

     In 1983, Ronald Post murdered Helen Vantz, a hotel desk clerk in Elyria, Ohio. A jury found him guilty and a judge sentenced him to death. There wasn't then, nor now, any question regarding his guilt. Because Post didn't exercise and ate too much, he ballooned-up to 400 pounds. In an effort to get control of his weight, Post asked the government to pay for gastric bypass surgery. (Had he been incarcerated in Massachusetts, Post could have gotten his gastric surgery plus, if he wanted, a sex change operation. Ohio is cruel that way.)

     In 1997, claiming that prison health care providers were having difficulty finding his veins for medication, Ronald Post argued that to execute him this way would amount to a violation of his Eighth Amendment right against cruel and unusual punishment.

     After the federal appellate judge refused to take Ronald Post off death row, prison authorities in Ohio scheduled his execution by lethal injection for January 16, 2013. In November 2012, Mr. Post, claiming to weigh 480 pounds, filed another appeal in which he argued that he had grown so fat his veins were even less accessible. Not only that, the prison didn't own a gurney sturdy enough to roll him into the death chamber. According to Post's attorney, executing his client under those circumstances would comprise "a substantial risk that any attempt to execute him will result in serious physical and psychological pain to him...." The lawyer added that Mr. Post's execution would consist of "a torturous and lingering death."

     State authorities opposing Ronald Post's attempt to see the other side of January 16, 2013, argued that in fact the death row inmate only weighted 396 pounds. In this case it really didn't matter how much this man weighed. The federal appeals court in Cincinnati had already ruled against Mr. Post on the weight issue. Moreover, the state of Ohio, given all of its resources, could probably find a heavy-duty gurney and an executioner who can locate hard-to-find veins. This killer's execution became a moot issue however when, on December 17, 2013, Governor John Kasich granted Ronald Post clemency on the grounds he had poor legal representation at his trial.

     If our procedurally oriented criminal justice system were efficient and reliable enough to dispatch first-degree murderers within two years of their convictions, death row inmates wouldn't have time to get so fat. After ten or twenty years on death row, many of these inmates also find religion and become different people. The person being executed is not the same person who committed the crime. (The Karla Faye Tucker case in Texas is a good example of this. While on death row, Karla found Jesus. To the dismay of protesting evangelicals, Texas went ahead and executed her anyway. I don't think the state has dispatched a female since.)

     There are death row inmates who, while smart enough to have committed first-degree murder, when it comes time to execute them, are too stupid to kill. It seems cruel and unusual to execute slow-witted killers. So, if a death row inmate isn't fat, or hasn't found Jesus, he can pretend to be stupid. (Hell, who can't flunk an I.Q. test? What's tough is pretending to be smart.)

     The way it's administered, the death penalty isn't worth the effort. If there is anything "torturous and lingering" about the execution process, it's the time and money it takes to dispatch these brutal, inhumane killers. 


Correcting America’s Bail Crisis Isn’t Out of Reach

On any given day, there are about 450,000 people in jail who haven’t been convicted of anything–at an estimated cost to taxpayers of $38 million a day. These men and women sit in jail because they don’t have the money to get out. It’s time to change the system.

On any given day in the United States there are about 450,000 people in jail who have not been convicted of anything. According to the Pretrial Justice Institute, they cost taxpayers about $38 million a day.

Those 450,000 people have been charged with a crime, and all—except for a small percentage facing life in prison—have a right to be free. These men and women sit in jail because they do not have the money to get out, pending trial.

Bail is an age-old tool that allows judges to release defendants pending trial by requiring them to post a certain amount of money as a way of ensuring they’ll return to court. To make bail, defendants post collateral, pay the amount in cash or get a bail piece—insurance policy—from a bail bond company, which typically charges a 10 percent fee.

Let’s do the math.  Mr. Smith gets arrested for assault.  The court sets his bail at $1,500.  The bail bond company needs $150 to post Smith’s bail.  Smith doesn’t have it, so he sits in jail for 75 days awaiting trial.  Smith pleads guilty and is sentenced to time served and released.

Because Mr. Smith didn’t have $150, taxpayers shelled out $85 a day for a whopping $6,375.

Bail serves two purposes: To guarantee that defendants appear for court; and to protect the public from those who are a potential threat.  Proponents of cash bail say the money to post bail often comes from family members, and serves as a deterrent to fleeing.

Bail is not punitive. Although violent crime rates are at historic lows, the Trump Justice Department has made violent crime a top priority.  Attorney General Jeff Sessions would do well to be smart, as well as tough, on crime.  A first step might be setting aside funds for states who commit to reexamining pretrial detention.

A recent study in Maryland found that people arrested in the state from 2011 to 2015 paid combined bail premiums of more than $256 million. Those who use the services of a bail bond company do not get back any of the money paid.  More than 25 percent of that money was paid by people who were acquitted or never faced trial.

Last fall, Maryland Attorney General Brian E. Frosh told members of the House of Delegates that judges and court commissioners must take into account the accused’s ability to pay before setting bail. According to the Baltimore Sun, Frosh said that if bail is out of reach for a defendant, the courts would find that unconstitutional.

Two years ago, New Jersey voters changed the state constitution to implement a new bail system that focused on expanding assessments of defendants to determine whether they should be released.  The New Jersey Bail Reform and Speedy Trial Act went into effect in January.  The new law will rely on a computerized risk assessment tool to make bail decision and is expected to reduce costs and significantly reduce the state’s jail population.

In New York City, Mayor William de Blasio earmarked $17.8 million to supervise 3,000 defendants in the community who are awaiting trial. The “supervised release” initiative permits judges to release defendants to a supervisory program that allows defendants to remain at home with their families and continue working while awaiting trial.

Those awaiting trial represent 63 percent of the total jail population.  Less than four out of 10 men and women sitting in county and local jails are actually serving a sentence. Those sitting in jail not serving a sentence drain about $14 billion a year from public coffers.

America’s bail system has become a central issue in the fight to reverse mass incarceration. According to NBC News, in courthouses, statehouses and ballot boxes across the country, civil rights lawyers and progressive policymakers are working to curb the practice of demanding money in exchange for freedom before trial.

“The nation needs to reform its bail system. But it’s not as simple as saying, ‘Eliminate cash bail,’ ” Kevin Burke, a Minnesota district judge and past president of the American Judges, Association told Stateline.

According to Burke, judges only get a few minutes to assess a defendant’s case, and often judges set bail without knowing the full circumstances.

“The fear (they have) is ‘I’m going to let somebody go and they’re going to go out and do something terrible, or they won’t come back, so I’ll set bail,.’”  Burke said.

The current bail system denies freedom to thousands of people who are presumed innocent but are financially challenged. Those who sit in jail are at risk of losing their jobs, their homes, and their families.

Certainly, it’s unfair to incarcerate someone merely because they cannot afford bail. It is equally unfair to every man and woman in America to spend about $1 trillion, according to the Pretrial Justice Institute on pretrial incarceration, which amounts to about six percent of the Gross Domestic Product.

According to the White House Council of Economic Advisers, the use of bail has exploded in the past two decades, driving a 59 percent rise in the number of un-convicted jail inmates.

Matthew T. Mangino

Correcting America’s bail crisis is not out of reach.  This isn’t about being tough on crime.  It’s about being fair.  For some, even a nominal bond is out of reach. When an accused has no money, $1,500 might as well be $150,000.

For taxpayers the issue is just as compelling.

If the cost of pretrial detention could be cut in half, taxpayers could save $7 billion a year. In these challenging economic times those dollars are difficult to ignore.

.Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino. He welcomes readers’ comments.





Women Shortchanged by Justice Reforms: Report

Criminal justice reform has not helped women to the same extent that it has benefited men, says a study from the Prisoner Reentry Institute at John Jay College. Drawing from women’s experience at Rikers Island, the report argues that reform should be trauma-informed and gender-responsive to account for women’s unique needs.

Criminal justice reform has not helped women to the same extent that it has benefited men, a new report has found.

The report, commissioned by The New York Women’s Foundation and released by the Prisoner Reentry Institute  (PRI) of John Jay College of Criminal Justice, argues that reforms must be gender-responsive, faithful to the principles of parsimony and proportionality, and engage social services to better serve individuals with criminal justice involvement.

“The administration of justice has paid insufficient attention to gender,” writes the report’s author, PRI Policy Director Alison Wilkey. “Women have not been served well under a ‘one size fits all’ approach.

The number of women in the American justice system has grown exponentially, by more than 700%,  from 1980 to 2014, the report notes. Although they are a lower-risk population in the system, policymakers must pay special attention to the “pathways” that have brought them there, including violence, trauma and poverty.

Women of color in particular are disproportionately arrested and incarcerated, said the report, entitled “Women In Justice: Gender and the Pathway to Jail.”

The report examined data on women in the criminal justice system obtained from the New York State Division of Criminal Justice Services; interviews with experts, criminal justice policy organizations and service providers; and the current literature on women involved with the criminal justice system.

The author also looked closely at women’s experience in Rikers Island, the only New York City facility where women are held.

The New York City data shows that “women are charged with less serious crimes, are less likely to be charged with violent crimes, and are less likely to return to jail within one year.”

Nevertheless, reforms to the system must be “gender-responsive” through use of social service system and counseling alternatives that address women’s needs, the report said.

While these needs are common among women in the justice system, provision of basic social services shouldn’t be “entangled in the adversarial court process,” it cautions.

Moreover, the author said , participation in such programs should not be mandatory unless it is a “proportionate and parsimonious” response.

The report is divided in four parts: How They Get There: The Journeys That Lead Women to the NYC Justice System; The Road to Rikers: Mapping Women’s Trajectories through the NYC Justice System; The Needs of Women in the NYC Justice System; and Addressing the Needs of NYC’s Justice-Involved Women.

The full report is available here.

This  summary was prepared by TCR intern Davi Hernandez.




Returns to Prison Vary Greatly By State

Observations There are major differences in the numbers of people on parole and probation returned to prison when examining state data. If the vast majority of those released from prison are rearrested, and fifty-five percent return to prison, and if most are violent or multi-repeat felony offenders, how can states be returning different numbers of […]

Observations There are major differences in the numbers of people on parole and probation returned to prison when examining state data. If the vast majority of those released from prison are rearrested, and fifty-five percent return to prison, and if most are violent or multi-repeat felony offenders, how can states be returning different numbers of […]


Americans Favor ‘Rehabilitation’ Over Jail Time, Survey Finds

A significant majority of Americans believe putting people behind bars for non-violent offenses is a wrong—and almost three-quarters favor “rehabilitation” over jail when such offenses are committed by those who suffer from mental illness, according to a Zogby Analytics/RTI International poll released today.

A significant majority of Americans believe putting people behind bars for non-violent offenses is a wrong—and almost three-quarters favor  “rehabilitation” over jail when such offenses are committed by those who suffer from mental illness, according to a Zogby Analytics/RTI International poll released today.

The  results, from an online survey completed by 3,007 persons across the country between December 9-13, are a sharp counterpoint to the “law-and-order” rhetoric  that many observers considered one of the key appeals of President Donald Trump’s campaign for the White House  last fall.

According to the poll, commissioned by the John D. and Catherine T. MacArthur Foundation, 62 percent of those surveyed agreed that “rehabilitating or treating the person” was a more appropriate response to non-violent offenders than incarceration.  Some 74 percent opposed imprisonment for offenders who were mentally ill.

The survey specifically asked respondents only about their attitudes towards crimes that did not involve violence, a sexual offense, or significant property loss. So the results may not necessarily reflect similar attitudes towards violent offenders—a category that the Trump administration claims represents a rising danger to the country.

All the same, the survey  revealed a telling ambiguity among Americans towards punishment after several decades of tough-on-crime policies that have shunted over 2.3 million Americans into prison today—many of them people of color.

Almost 20 times that number of jail admissions are recorded annualy—nearly 12 million—many of which represent detentions of individuals who have not been convicted and are awaiting trial.

Just 18 percent of survey respondents considered punishment to be the central purpose of jail, while nearly twice that number  (33 percent) felt  jail time should incorporate the kind of treatment or rehabilitation that would prevent future crimes.

Supporters of bail reform are likely to be encouraged  by another survey result which showed two-thirds of the respondents believe that release of those awaiting trail should be determined by the danger they might pose to public safety, rather than by their ability to pay money bail.

Most tellingly,  when told that  three out of every four persons in jail today were detained for non-violent offenses like traffic, property and drug violations, only 13 percent of Americans said they   were aware of that fact.



At ‘Critical Moment’ Under Trump, Report Gives Hard Facts on Incarceration

The Prison Policy Initiative’s annual report on U.S. prison populations offers a reality check on the administration’s fear-loaded rhetoric on rising violent crime. The number of incarcerated persons in the U.S. remains unchanged at 2.3 million–a figure the authors say should make the feds think about how to encourage states to reduce that number instead of filling more prison cells.

With a gimlet eye trained on the Trump administration’s emerging criminal justice strategies, the Prison Policy Initiative (PPI) today released its annual headcount and analysis of the 2.3 million people held in America’s “byzantine” incarceration complex.

Peter Wagner and Bernadette Rabuy say their report, “Mass Incarceration: The Whole Pie 2017,” comes as the country’s criminal justice systems stands at “a critical moment.”

“The new administration has taken aim at the past decade’s advances toward criminal justice reform, and has a troubling reliance on ‘alternative facts’ to support its agenda,” they write.

“While the White House is moving away from criminal justice reform, The Whole Pie offers the reassuring reminder that the bulk of incarceration flows directly from the policy choices made by state and local, ­ not federal, ­ governments.”

Bernadette Rabuy. Photo courtesy PPI

Since 2014, the nonpartisan, Massachusetts-based nonprofit has published annual graphic portraits of government data showing how many are locked up, where, and why. The goal is “to provide policymakers and the public a clear and accurate big picture view of punishment in the U.S.,” according to the authors.

The new count says state prisons hold 1.33 million people, 58 percent of the national incarceration total. Local jails are second at 630,000, federal prisons 197,000, territorial prisons 14,000, and juvenile facilities 34,000.

The 2.3 million total incarcerated population is unchanged from last year.

Peter Wagner. Photo Courtesy PPI

“The biggest changes are in the smallest slices,” Wagner told The Crime Report.

For example, the federal prison population is declining, while immigration detention is surging. But those two figures combine for just one-tenth of the overall incarceration population, which is unchanged over last year.

Other key findings: [See also table below]

  • Some 57,000 people are locked up for criminal or civil immigration offenses, including 16,000 in federal prisons and 41,000 in other forms of detention. Those numbers are up about 10 percent from PPI’s 2016 count.
  • Although local jails attract meager attention, they are the invisible giant of the incarceration industry, with 11 million individual jailings per year, many of them brief.
  • Virtually all growth in jail incarceration over the past 15 years has come in pre-trial detention. At any given time, just three out of 10 people held in local jails are serving time for a conviction.
  • Despite the country’s increasing focus on narcotics use as a health rather than crime problem, American law enforcers continue to arrest more than 1 million people a year for drug possession.
  • Data suggests that mass incarceration reforms hinge largely on rethinking violent-crime sentences. Just 46,000 of the 1.33 million people in state prisons are serving time for drug possession, compared with 704,000 for violent crime.
  • Some 7,200 juveniles are locked up for non-criminal offenses, including 6,600 for “technical violations” of probation and 600 for “status” offenses, “such as running away, truancy, and incorrigibility.”

‘Whole Pie” table showing the breakdown of America’s incarcerated population. Courtesy PPI

While state and local laws drive the engine of criminal justice in America, analysts say federal influence is far from benign. And they worry that anecdote-driven directives from President Trump and Attorney General Jeff Sessions suggesting shrill responses to what Trump calls “American carnage” could snuff out the nascent justice reform movement.

Citing Trump’s “law-and-order bombast,” Nkechi Taifa, criminal justice advocacy director for the Open Society Policy Center, says, “The handwriting is on the wall that we will likely see a return to the flawed policies of the past which resulted in the current era of mass incarceration.”

Nkechi Taifa. Photo courtesy Open Society Foundations.

“Contrary to some views,” Taifa told The Crime Report, “criminal justice policy reform at the federal level remains pertinent, despite an administration and Congress seemingly hostile to reform.

“It is incumbent that the progressive voice in federal criminal justice is principled, valued and strong, that we protect the gains previously made, and engage in defensive strategies that make it more difficult for harmful policies to pass.”

Last week, Sessions ordered the country’s 94 U.S. attorney’s offices to partner with local and state prosecutors “to investigate, prosecute and deter the most violent offenders.”

His directive, dated March 8, declared: “To accomplish this goal, in all cases, federal prosecutors should coordinate with state and local counterparts to identify the venue (federal or state) that best ensures an immediate and appropriate penalty for these violent offenders.”

Some see that as federal encroachment.

“An expanded federal criminal justice agenda comprised of federal-state-local task forces targeting violent offenses and coupled with tougher federal sentences would be a substantial change in practice and a step in the wrong direction,” says Ryan King, senior fellow at the Urban Institute Justice Policy Center.

He says a renewed federal push for draconian sentences could quickly reverse prison population declines.

Ryan King. Photo Courtesy Urban Institute

“Last time I checked,” King told The Crime Report, “the states did not seem to have trouble prosecuting and incarcerating people for violent crime for very long prison terms. I’m just not seeing the need to expand the role of the federal system to pursue violent crime more aggressively.”

According to the new Prison Policy Initiative tally, 50 percent of the 197,000 federal prison inmates were convicted on narcotics offenses. Violent-crime convictions account for just 7 percent of the federal total.

By contrast, 16 percent of those in state prisons and 26 percent of convicts in local jails are confined on drug offenses. Overall, one of every five incarcerated persons in the country are locked up for drugs.

“Looking at the big picture requires us to ask if it really makes sense to lock up 2.3 million people on any given day, giving this nation the dubious distinction of having the highest incarceration rate in the world,” Wagner and Rabuy write.

“Both policymakers and the public have the responsibility to carefully consider each individual slice in turn to ask whether legitimate social goals are served by putting each category behind bars, and whether any benefit really outweighs the social and fiscal costs.”

Taifa says that while she hopes for passage of the bipartisan sentencing-reform legislation that is stalled in Congress, she fears Trump will steer Republicans toward more 1980s-style mandatory sentences, aggressive policing, and increased use of capital punishment. And King says a best-case scenario might be to simply maintain the sentencing reform status quo under Trump.

“While there does still appear to be support for federal criminal justice reform by many members of Congress, it is hard to imagine anything significant being accomplished in terms of sentencing reform,” he says.

But the federal influence on criminal justice goes much deeper.

King notes the leadership role Washington has assumed in promoting rational reforms–after decades in which policies and laws seemed driven by crime aberrations.

“The DOJ under the Obama administration invested heavily in technical assistance and research that supported smart, data-driven, and evidence-based policies at the state and local level,” he says.

These innovations have prompted “a culture change where success is increasingly not measured by rates of conviction and incarceration alone,” King adds.

He says it is a telling sign that while Trump and Sessions hector from their gloomy perspective of violence run amok, “The states are still lining up for this support.”

King says, “There remains an appetite for smarter criminal justice policies that protect public safety while also preserving the dignity of the individuals in the system, their families, and their communities.”

David J. Krajicek (@djkrajicek) is a contributing editor of TCR. He welcomes comments from readers.


Why The Vast Difference Between State and Federal Prison Recidivism?

Observations Federal offenders (in eight years) had less than half the returns to prison than states (after five years). Over an eight-year follow-up period, almost one-half of federal offenders (49.3%) were rearrested for a new crime or rearrested for a violation of supervision conditions compared to 76.6% of all state prisoners after five years. Over […]

Observations Federal offenders (in eight years) had less than half the returns to prison than states (after five years). Over an eight-year follow-up period, almost one-half of federal offenders (49.3%) were rearrested for a new crime or rearrested for a violation of supervision conditions compared to 76.6% of all state prisoners after five years. Over […]


Freddie Lee Hall: Should Cold-Blooded Killers Be Spared The Death Penalty Simply Because They’re Stupid?

     Throw a ball in any maximum security prison and it will bounce off a lot of stupid men. If these vicious rapists, thugs, and murderers were smart, they wouldn’t be behind bars. Thank heavens so many criminals are dimwits. Moreover, …

     Throw a ball in any maximum security prison and it will bounce off a lot of stupid men. If these vicious rapists, thugs, and murderers were smart, they wouldn't be behind bars. Thank heavens so many criminals are dimwits. Moreover, it's not stupidity that makes a person violent. Most stupid people obey the law and wouldn't hurt a fly. So, just because a cold-blooded, sadistic killer has an IQ so low he can't get into community college is no reason to cut him a break when it comes time for the death penalty. Take Freddie Lee Hall.

     In February 1978, 33-year-old Freddie Lee Hall was out on parole in connection with a recent conviction for assault with intent to rape. Given his long history of violent crime, it's hard to believe he wasn't in prison. Hall and one of his criminal associates, on February 21, 1978, were in Leesburg, Florida looking for a car to steal for use in an armed robbery.

     That afternoon Hall, and his accomplice spotted 21-year-old Karol Hurst coming out of the Pantry Pride Grocery Store. She was seven months pregnant. As Hurst walked toward her car the men accosted her and forced the terrified victim into Hall's vehicle.

     Hall drove off with the abducted woman in his car. The accomplice followed in the victim's vehicle. Hall drove Hurst to a wooded area where the two thugs raped and beat the victim savagely before, execution style, they shot her to death. To hide the body, Hall dragged the pregnant corpse deeper into the woods.

     That night, in the murdered woman's car, Hall and his friend drove to the convenience store in Hernando County they planned to hold-up. As they sat in the parking lot waiting for the right moment to strike, a suspicious clerk inside the store called the sheriff's station. The sheriff's office happened to be across the street from where Hall and his accomplice were casing out the robbery.

     Deputy Lonnie Coburn pulled into the parking lot and confronted the suspicious men. After getting the drop on the deputy, Hall shot the officer to death with his own service revolver.

     A jury found Freddie Lee Hall guilty of two counts of first-degree murder on June 23, 1978. Jurors, by an eight to four vote, recommended the death penalty. The judge, four days later, sentenced Hall to death row.

     At Hall's sentencing hearing, his lawyers argued that their client was too stupid to execute. Hall had been classified by public school officials in the 1960s as "mentally retarded." Ten years before his death sentence, Hall had scored as low as 60 and as high as 80 on IQ tests. According to the American Psychiatric Association's Manual of Mental Disorders, an IQ of 70, plus or minus five points, represents the upper range of intellectual disability.

     Over the years, Hall's anti-capital punishment attorneys arranged to have him examined by a battery of psychiatrists and other medical practitioners who declared the death row inmate mentally disabled.

     In 2002, the United States Supreme Court barred states from executing "mentally disabled" prisoners. The high court left the determination of who is so afflicted to the states. In Florida, as measured by an IQ test, the threshold for concluding that an inmate is mentally disabled is a score below 70. (In Florida, people with IQs as high as 75 are classified as mentally disabled for purposes of state welfare.)

     On March 3, 2014, appellate attorneys appeared before the U.S. Supreme Court on behalf of Freddie Lee Hall. The death house lawyers, in challenging Florida's mental threshold for execution, argued that IQ tests alone were insufficient in establishing mental disability.

     Justice Antonin Scalia pointed out the brutality of Hall's crime, and noted that it had taken several steps for Hall to abduct then kill the pregnant woman. The killing of the police officer was certainly premeditated. Didn't the crime itself reflect sufficient mental capacity?

     On May 27, 2014, in a 5-4 decision, the U.S. Supreme Court ruled that defendants whose IQ scores are near 70 should not be executed. Writing for the majority, Justice Anthony M. Kennedy noted that states should not "view a single factor as dispositive in determining intellectual disability." As a result of this high court decision, Freddie Lee Hall will live out his useless life on death row.
     If a criminal is smart enough to read, get a driver's license, plan a robbery, and make an effort not to get caught, he should be smart enough to execute. Implicit in this Supreme Court decision is the notion that somehow society is to blame for all the stupidity in this country.


Do Longer Prison Sentences Reduce Recidivism? Federal Drug Trafficking Recidivism is Much Lower Than State Returns

Observations A new report from the United States Sentencing Commission examines a group of 10,888 federal drug trafficking offenders released from US prisons and examines the percent of rearrests after eight years. The rearrest rate for the federal drug trafficking prisoners studied after release (eight years at 50 percent) is much lower than all state […]

Observations A new report from the United States Sentencing Commission examines a group of 10,888 federal drug trafficking offenders released from US prisons and examines the percent of rearrests after eight years. The rearrest rate for the federal drug trafficking prisoners studied after release (eight years at 50 percent) is much lower than all state […]


A Prisoner’s Dream—and Disillusionment

In most U.S. prisons, the possibility of clemency keeps inmates’ hopes alive. But speaking from his own experience, one prisoner says it’s often just an “opiate” for the incarcerated.

“Hope springs eternal in the human heart,” wrote Alexander Pope in 1733. Today, his words are ritualized in a production staged quarterly in Olympia, Washington.

Countless Washington prisoners pray to one day star in the show.

It is televised on the public access channel, and produced by the Board of Pardons and Parole.

This Board recommends to the Governor whether a prisoner should receive executive clemency.  However, getting the Board’s five members to make favorable recommendations is no easy feat.

The overwhelming majority of petitions for commutation are rejected out of hand—no hearing deemed necessary. For those few petitions that are heard on the merits, clemency is recommended only if the Board believes that the case is extraordinary.

“Extraordinary”—that is the threshold established by the legislature.

Therefore, were you to watch one of these hearings you would see an attorney toiling away trying to convince the Board that the case is extraordinary because, for instance, the prisoner is not as culpable as decision makers initially believed.

Or the sentence is too lengthy in light of changes in public policy.

Or the victim believes that the prisoner should indeed be released early.

Whatever the bases put forth in support for relief, family and friends of the prisoner are then trotted out to share stories of why he or she is so extraordinary and no longer poses a threat to public safety.

He has done amazing things throughout his time confined.

She is no longer the woman that she used to be.

Everything is in place to allow for a seamless transition into law-abiding society.

It is almost always in vain. Once prosecutors and victims contest the prisoner’s release the Board acts accordingly.

Petition denied.

Rarely do these hearings depart from this script. If rehabilitation is relevant to the calculus of punishment, rarely do the outcomes serve the interests of justice.

What countless hearings have demonstrated to me is this: There is nothing extraordinary about reform in the eyes of this Board.

What is deemed to be extraordinary is when a prosecutor or sentencing judge supports granting clemency. Of course, very few hearings are this out of the ordinary.

However, were clemency still necessary to set me free I probably would be amongst this rare breed.

My trial judge planted the seed when he regretfully imposed a mandatory sentence of Life Without Parole upon me. Unconvinced that the legislature intended that juvenile transfer laws (that allow those under age 18 to be tried as adults) would subject a youth to such a sentence, he urged me to do positive things and, after 20 years, to apply for clemency.

Had I followed his recommendation and sought commutation the Board undoubtedly would have perceived his support to be extraordinary. Never mind that I was confined for crimes committed at age 14.

Yet such situations are exceedingly rare in the criminal justice system. They are the outliers. If anything, they highlight the improbability that the average prisoner will ever receive clemency.

Given these dismal prospects, it is astonishing that large numbers of my fellow prisoners still believe they may one day receive clemency. They are deluded, quite frankly.  Clemency is not meant to serve their interests.   It serves the interests of others who are far more important.

When a judge’s hands are tied by mandatory sentencing guidelines and he must impose a sentence with regret or changes in public perceptions makes a prosecutor want to undue the actions of a predecessor, both need a mechanism to set things right.  The clemency process provides the means to achieve this objective, and thereby helps to maintain the fiction that our criminal justice system is just.

Fortunately, not all is lost for prisoners.

Jeremiah Bourgeois

Faith in clemency keeps hope alive when the situation is hopeless. Ultimately, it is an opiate for the mass incarcerated.

Jeremiah Bourgeois is a regular contributor to TCR, and an inmate at Stafford Creek Corrections Center in Aberdeen, WA, where he is currently serving 25 years to life for a crime committed when he was 14. He will be eligible to go before the parole board in 2017. He welcomes comments from readers.