Veterans Day: The Man He Killed, by Thomas Hardy

"Had he and I but met

            By some old ancient inn,

We should have sat us down to wet

            Right many a nipperkin!

            "But ranged as infantry,

            And staring face to face,

I shot at him as he at me,

            And killed him in his place.

            "I shot him dead because —

            Because he was my foe,

Just so: my foe of course he was;

            That's clear enough; although

            "He thought he'd 'list, perhaps,

            Off-hand like — just as I —

Was out of work — had sold his traps —

            No other reason why.

            "Yes; quaint and curious war is!

            You shoot a fellow down

You'd treat if met where any bar is,

            Or help to half-a-crown."

(first published 117 years ago this week)

Profiles in courage within the U.S. State Department

State Department Foreign Service officers usually express their views in formal diplomatic cables, but these days they are using closed Facebook groups and encrypted apps to convey their pride in Marie L. Yovanovitch, the ousted ambassador to Ukraine, whose House testimony opened the floodgates on the impeachment inquiry into President Trump, reported the New York Times.

#GoMasha is their rallying cry.

In private conversations, they trade admiring notes about career State Department officials like William B. Taylor Jr. and George P. Kent, who delivered damning testimony about a shadow Ukraine policy infected by partisan politics and presidential conspiracy theories, and William V. Roebuck, a senior diplomat in Syria who wrote a searing memo on how Mr. Trump abandoned the Kurds and upended American influence.

And they are opening their wallets to help raise money — including nearly $10,000 last Monday alone — to offset the legal bills of department officials called to testify before Congress.

Rarely has the State Department, often seen as a staid pillar of the establishment, been the center of a revolt against a president and his top appointees. But as a parade of department officials has recounted to lawmakers how policy was hijacked by partisan politics, many career diplomats say they have been inspired by their colleagues’ willingness to stand up to far more powerful voices after nearly three years of being ignored or disparaged by Mr. Trump and those he has chosen to lead the department.

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GateHouse: The purpose and utility of punishment in the criminal justice system

Matthew T. Mangino

GateHouse Media

November 8, 2019

The grandfather of a toddler that fell through an open window on a cruise ship last summer has been charged with negligent homicide in the toddler’s death, according to the Puerto Rican Department of Justice.

Salvatore Anello was playing with his granddaughter on the ship’s 11th floor near a window while the ship was docked in Puerto Rico.

Anello apparently sat the girl on rails near the open window, thinking it was closed. Prosecutors allege that Anello “negligently exposed (his granddaughter) through one of the windows,” according to a statement from Puerto Rican prosecutors.

Prosecutors have an enormous amount of power. They have the discretion to file charges, to determine what charges to file, to impose sentence enhancement, to offer plea bargains or drop charges altogether. Prosecutors have the power to investigate a matter and sometimes just do nothing.

The tragic, and unintentional, death of this child has had an unimaginable impact on the family. What sort of punishment could a Puerto Rican court impose on Anello that could have a greater impact on him than what he has already endured?

Anello’s arrest begs the question - what is the purpose and utility of punishment in the criminal justice system?

Most states and the federal government have relied on four theories - rehabilitation, deterrence, retribution and incapacitation - when establishing a sentencing scheme. Puerto Rican lawyer Dora Nevares-Muniz wrote in the Journal of Criminal Law and Criminology, the Puerto Rico Penal Code’s sentencing provisions are based on the aims of “prevention, rehabilitation, parity, retribution, and deterrence.”

How do those theories relate to Anello?

The goal of rehabilitation is to restore a convicted offender as a productive member of society. It seems counter-intuitive that housing a bunch of “criminals” together in a restricted environment will somehow reform offenders. However, research suggests that a combination of treatment, education and training can help straighten the crooked ways of an offender.

Does Anello need rehabilitation? There is nothing to indicate that Anello has led a life of crime or that he would receive any benefit from treatment. Anello was involved in a tragic accident; maybe he’s negligent - but criminally culpable?

Will the punishment Anello have a deterrent effect on crime? Deterrence is most effective when the conduct punished is a deliberate act carried out to achieve an illicit goal. What type of crimes will prosecuting Anello deter? Will other grandfathers be deterred from playing with their grandchildren?

One of the oldest and most basic justifications for punishment involves the theory of retribution. The victim, or the victim’s family, wants an offender punished for punishment’s sake. Retribution is concerned with neither preventing future crime or mending the ways of a deviant. Retribution is about revenge. In biblical times it was “an eye for an eye,” today it’s “do the crime, do the time.”

The family of Salvatore Anello doesn’t want revenge. They have sued the cruise line for negligence. Anello is, and will continue to be, punished every day far more than any mere mortal can impose.

The principle of incapacitation focuses on the elimination of an individual’s opportunity for crime through a physical restraint on freedom.

In earlier times criminals were banished from society. France would send offenders off to Devil’s Island where they could do no more harm. Today, punishment in the form incarceration - or in extreme cases, the death party - prevents criminals from victimizing others.

Incapacitating Anello serves no purpose. Does anyone fear that he will harm another family member or another child?

Anello’s prosecution serves no legitimate criminogenic purpose. Dragging Anello and his family through the trauma of this tragic incident is a blatant disregard for the rights of crime victims.

Sometimes doing nothing is one of the most difficult decisions a prosecutor has to make. This case is crying out for a courageous prosecutor to say “this family has suffered enough and society gains nothing from prolonging their pain.”

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 www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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White supremacist leader of Aryan gang executed in Texas

The 19th Execution of 2019

On Oct. 6, 2016, Justen Hall, acting as his own attorney, wrote to a district court in El Paso, asking that it dismiss the appeals filed on his behalf and set his execution date. "These walls 24/7 have broken me," he stated. "I need to be put down like the rabid dog I am."

He got his wish. Hall was executed on November 6, 2019 for the strangulation murder of a woman in 2002, reported the El Paso Times.

Hall, 38, had been on Texas' death row since 2005 when he was sentenced to die after being convicted of capital murder in the strangulation of 29-year-old Melanie Ruth Billhartz in 2002.

The killing of Billhartz occurred while Hall was out on bond on another murder charge, the fatal shooting of a transgender woman that was labeled a hate crime.

Hall was a member of the white supremacist Aryan Circle gang and investigators had said that prejudice was a motive in the hate crime killing.

In October 2002, Hall strangled Billhartz to death with a black electrical cord and then buried her body in the New Mexico desert because he feared she would tell police about a methamphetamine cooking operation at a house in El Paso.

Another man had assaulted Billhartz during an argument and Hall and other gang members feared the meth operation would be discovered after Billhartz threatened to call police to report the assault.

Police had said Hall was the first person in El Paso to be charged with murder while out on bail on another murder charge.

Hall had been previously charged in fatal shooting of 28-year-old Arturo Diaz, who identified as a transgender woman.

On April 10, 2002, Diaz was found dead after being shot in the back off Anapra Road near Sunland Park, New Mexico, according to El Paso Times archives.

The two possibly met at a gay bar in Downtown El Paso, where Hall had been seen hanging around for some time before the killing, according to news archives.

Hall's indictment alleged he was motivated by prejudice over Diaz's sexual orientation, and the killing was classified as a hate crime.

Hall's bond in that murder was set at $75,000 by a municipal judge, and Hall paid $7,500 to get out of jail.

Hall was 21 years old at the time of Billhartz's killing on Oct. 28, 2002.

But at a March 2017 court hearing, Hall told a judge his request for DNA testing was a "stall tactic," the Associated Press reported.

"I killed Melanie, and I killed Arturo. And I accept the punishment for it, and I'm ready to get it over with, you know," said Hall, who stopped talking to his attorneys and asked that appeals be stopped.

Hall was the 19th inmate put to death this year in the U.S. and the eighth in Texas. Three more executions are scheduled in Texas this year.

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Oklahoma grants clemency to 2% of all prison inmates

Across Oklahoma on Monday, 462 inmates doing time for drug possession or similar nonviolent crimes had their sentences commuted as the first step in an effort by state officials to shed the title of the nation’s incarceration capital, reported the New York Times.

“This is truly a blessing, to be able to get out on something like this, when you get overlooked so often,” said Ms. Faircloth, who plans to return to Willow, Okla., and hopes to attend college and score a job at a Hobby Lobby store.

As she and the other prisoners left the Dr. Eddie Warrior Correctional Center, they embraced relatives, some of whom they had not seen in months or years. Camera crews crowded around, recording a scene that would have been unfathomable in the state just a few years ago.

For more than a decade, legislators in several states have sought to send fewer nonviolent, low-level offenders to prison, in an effort to save money on incarceration and reserve resources for going after more serious criminals. Those efforts have occurred in states led by both Democrats and Republicans, including neighboring Texas.

But change has been slower to come to Oklahoma, which continues to vie with Louisiana for the highest per-capita imprisonment rate in the country.

Voters forced the hand of Oklahoma lawmakers in 2016 when, by a wide margin, they approved a plan to shrink prison rolls by downgrading many felonies to misdemeanors, including simple drug possession and minor property crimes.

The Legislature then approved a measure this year making that law retroactive and allowing the state’s pardon and parole board to more quickly review the sentences of many inmates whose crimes would no longer be considered felonies if they were charged today.

On Friday, the pardon and parole board recommended immediately commuting the sentences of 527 prisoners under that law, or about 2 percent of the state’s prison population of just under 26,000 inmates.

The governor, Kevin Stitt, ordered the commutations, and all but 65 of the 527 inmates walked out of prison on Monday; the remainder were being detained because of issues with their immigration status or because they face charges in other states, according to Oklahoma officials.

In addition to releasing the inmates sooner than expected, the state is taking other steps favored by criminal justice reform advocates to help the newly released prisoners with re-entry into society. Those include ensuring that inmates are released with a state-issued driver’s license or identification card, which are crucial for securing jobs, housing and other needs.

State officials said the prisoners being released had on average spent three years incarcerated, and were being let out an average of 1.34 years early. About three out of four are men. Officials also estimated that the release would save about $12 million in incarceration costs.

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South Dakota carries out execution

The 18th Execution of 2019

A convicted killer who fatally stabbed a former co-worker during a 1992 burglary used his last words on November 4, 2019 to speak directly to the parents of his victim, saying he forgave them "for your anger and hatred towards me," reported CBS News. But the victim's parents refused to acknowledge the man who killed their son, instead focusing on the young man whom they called a blessing.
Charles Rhines was executed by lethal injection at 7:39 p.m., after the U.S. Supreme Court denied to halt his execution despite three late appeals.
"Ed and Peggy Schaeffer, I forgive you for your anger and hatred toward me," Rhines said, before thanking his defense team. "I pray to God that he forgives you for your anger and hatred toward me. Thanks to my team. I love you all, goodbye. Let's go. That's all I have to say. Goodbye."

Rhines, 63, ambushed 22-year-old Donnivan Schaefer in 1992 when Schaefer surprised him while he was burglarizing a Rapid City doughnut shop where Schaeffer worked. Rhines had been fired a few weeks earlier.

Rhines ambushed him, stabbing him in the stomach. Bleeding from his wound, Schaeffer begged to be taken to a hospital, vowing to keep silent about the crime; instead, he was forced into a storeroom, tied up and stabbed to death.

Steve Allender, a Rapid City police detective at the time of the killing who is now the city's mayor, said Rhines' jury sentenced him to death partly because of Rhines' "chilling laughter" as he described Schaeffer's death spasms.
"I watched the jury as they listened to the confession of Charles Rhines on audiotape and their reaction to his confession was appropriate. Any human being would be repulsed by the things he said and the way he said them," Allender told KELO.
The Schaeffers made clear they didn't want to talk about Rhines. Patty Schaeffer appeared before reporters holding a photo of her two sons, including Donnivan, as children, and then displayed a graduation photo of him.
"We were so blessed to have this young man in our family and in our life," she said. "Today is the day that we talk about Donavan, the guy who loved his family, his fiancé, and his friends."
Media witnesses to the execution said Rhines appeared calm, and it took only about a minute for the pentobarbital used by the state to take effect. They said when he finished speaking, he closed his eyes, then blinked, breathed heavily and died.
Rhines had challenged the state's use of pentobarbital, arguing it wasn't the ultra-fast-acting drug he was entitled to. A circuit judge ruled it was as fast or faster than other drugs when used in lethal doses and speculated that Rhines wanted only to delay his execution.
The U.S. Supreme Court rejected that appeal, as well as his arguments that he was sentenced to die by a jury with an anti-gay bias and that he wasn't given access to experts who could have examined him for cognitive and psychiatric impairments.
Pentobarbital was used last year when South Dakota executed Rodney Berget, who killed a prison guard during a 2011 escape attempt. Berget was pronounced dead 12 minutes after the lethal injection began, and a transcript released afterward said Berget asked after the injection was administered: "Is it supposed to feel like that?" His comment prompted a national group that studies capital punishment to call on the state to release more details about the drug used.
After attending Schaeffer's funeral, Rhines moved to Seattle. Authorities thought the move was odd because Rhines had vowed to never return to Washington state, where he had spent time in prison. Allender said authorities initially interviewed Rhines and felt something was off, but Rhines wasn't arrested until four months later, after Rhines told his former roommate about the killing.
Rhines wrote to the Argus Leader in May 2013, saying that when he saw a grieving mother on the news in an unrelated case, he realized what he had done to Schaeffer's mother.
"Just at the cusp of her beloved child becoming an independent person, a responsible adult with a family and friends surrounding him and his mother waiting expectantly for grandchildren to spoil, having all that snatched away for almost no reason at all and the hole it has had to have left in her heart," he wrote. "Prosecutors talk of closure, but that wound will never close, no matter how long it is there."
Peggy Schaeffer, Donnivan's mother, rejected the words as insincere.
Schaeffer's family declined to speak with The Associated Press in advance of Rhines' execution. In June, when a judge scheduled the execution, Peggy Schaeffer told reporters, "This step was one big one for justice for Donnivan. It's just time."
In the afternoon, about 30 protesters gathered in snow flurries outside the state prison where Rhines was to be executed, praying and singing hymns. Denny Davis, director of South Dakotans for Alternatives to the Death Penalty, said they accept Rhines' execution but hope to steer public opinion against capital punishment.
"It is about a culture shift and changing the values of people," he said. "Why would we want to put this person to death when society is already safe?"

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PA Superior Court: Juveniles not required to comply with sexual offense registration

The Superior Court of Pennsylvania issued an opinion concluding that an adult convicted of a sexual offense that was committed while a juvenile could not be required to register as a sex offender, reported Jurist.

The adult “pleaded guilty to two counts of Indecent Assault of a person less than thirteen years of age” in connection to “incidents. . . that occurred sometime between 2005 and 2006,” when the adult was still a juvenile.

In its decision, the Superior Court focused on a prior case where the Supreme Court of Pennsylvania held that lifetime sex offender registration requirements for juvenile sexual offenders were unconstitutional. There were two main reasons for this holding. First, the court found that juvenile sex offenders were less likely to offend again, which is “a fundamental underpinning to the registration requirements.”

Second, the court looked to US Supreme Court precedent which has “held that mandatory sentences of life imprisonment without the possibility of parole for homicide defendants under 18 years of age at the time the crime was committed [were] unconstitutional.” The reasoning was due to differences in brain development between juveniles and adults, which the Supreme Court of Pennsylvania applied in its holding.

Ultimately, the Superior Court of Pennsylvania found that the Pennsylvania Supreme Court’s holding in a previous case “should apply with equal weight to juvenile adjudications as well as to defendants convicted as adults for crimes committed as juveniles.”

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