Monday, May 21, 2012

Justice - you fickle beast

I saw a news story that shocked me, just a little, and I wondered whether I've because too used to harsh Texas justice.

Although in Austin, "harsh" may not be the right word. But you know what I mean. SO here's the body of the story, the first few paragraphs.

A Dutch paedophile referred to as Robert M has been sentenced to 18 years in prison for abusing more than 60 children, some just a few months old.

Robert M was arrested after a US investigation into an international paedophile ring.

The Latvian-born Dutch defendant has been dubbed "The Monster of Riga" by the national press.

This is the worst case of its kind the Netherlands has ever seen, says the BBC's Anna Holligan in the Netherlands.

There were dramatic scenes in court, our correspondent says, with the accused throwing water and directing obscene gestures at the judge.

The presiding judge said he had imposed a long sentence in view of the "nature of the facts, the refined way they were planned and their duration".

The entire story is here, courtesy of the BBC.

So let me understand. This guy molested 67 kids, some a few months old, and actually confessed to even more. He planned the abuse systematically, shows no remorse, and it's the worst case Holland has ever seen.

And for that he gets 18 years in prison.

Ask anyone around this courthouse who the most lenient prosecutor is and I'll be in the top five. Ten, certainly.

And I'm horrified by this. For crying out loud, he managed to earn the nickname the "Monster of Riga." Around here, monsters get a lot more time than that. And so they should. He's getting 3.2 months per victim.

Sometimes I think Texas can be an unforgiving place.

And sometimes I think other jurisdictions should be.


  1. That is horrible. I’m a Texan, and sometimes I tire of our "hang 'em all and then let God sort them out" motto, but in this case, I don't think it would be unwarranted.

    It’s a sad day indeed when monsters—especially those that abuse children—only get a slap on the wrist.

  2. Hardly a slap on the wrist. That would be a fine.

    I don't know Dutch law, but...

    18 years would be an illegal sentence here in Finland. As in, too harsh. We do have the life sentence (but no LWOP), which would not be available in such a case. The longest sentence apart from life, authorized by Finnish law for any case involving multiple counts, is 15 years.

  3. Lee: I agree. That "hang 'em high" attitude wears thin with me, also, but not in a case like this.

    Antti: first, I'm thrilled to have someone from Finland posting here. Welcome! And that's just fascinating to me that 15 yeas would be the max there, I really appreciate you sharing your perspective. I wonder, do people worry about what someone like this might do when he gets out (perhaps not in this case, but in other pedophilia cases)? Again, thanks for posting, I greatly appreciate hearing how other jurisdictions/countries approach these matters.

  4. Thanks :) I found your blog a couple of days ago and spent a couple of days reading the archives. (I'm recovering from a severe cold.) It's been fascinating – as you can probably imagine, we Finns tend to have a very stereotypical view of American (and Texan) law.

    The 15 years is a general maximum, applicable if there are multiple counts. If there's only one count in play, the maximum is 12 years. Also, each offense carries its own maximum penalty; for a single count of aggravated sexual abuse of a child, that would be ten years. For the case at issue here, the 15 years would indeed be the effective maximum for a total combined sentence. Life in prison is authorized only for certain enumerated offenses (currently: genocide, crime against humanity, war crime, treason, aggravated espionage, aggravated murder, murder with terrorist intent).

    There's quite a bit of popular discontent regarding the general levels of punishment in Finland, and in particular regarding sexual offenses of all kinds. There is certainly some sentiment that pedophiles (and other serious sex offenders) should be kept locked up forever (or worse) so that they can't reoffend; similar sentiment exist also regarding murderers.

    I must run now so I can't check, but I think there's been actual cases of recently released serious offenders reoffending in spectacular ways. I'll see if I can look the media reports up later.

  5. Antti: thanks again and, yes, I'd be interested to see reports where that's happened. Finland, eh? Very cool.

  6. I'm an American CDL who lived for a term in Western Europe prior to taking up (US) criminal law. In Europe, I was shocked to encounter murderers who had been released without even probation after 15-20 year terms. So, after going into criminal law, I've thought extensively about this question, of "how much time" is adequate for society to respond to murder, rape, child sexual assault, and other serious crimes.

    I don't know the answer, myself. First, I don't fully understand what it is to experience a 10, 20, or 50 year sentence within the austere conditions of a US penitentiary. I suspect (from interacting with habeas clients who have already been incarcerated for 10-30 years) that these sentences are more severe than many of us who have never been incarcerated appreciate.

    Second, we acknowledge in virtually all non-first-degree murder cases that after some length of incarceration, society should assume the (hopefully very minimal) risk of a felon reoffending. (Otherwise, every felon would receive LWOP, so that society could be absolutely assured of no further harm from that offender outside prison walls (barring escape)). So how can we measure the point when the risk of recidivism has become so minicule that society should release the offender? (This question, of course, implicates a full range of retributivist, deterrent, and rehabilitative considerations that I can't do justice to in a single blog comment.) I tentatively favor indeterminate sentencing (e.g. 15-to-life, 25-to-life) with GENUINE parole review - and with intensive transitional assistance to help those who have shown themselves worthy of parole adjust to post-prison life. (By genuine parole review, I mean that an offender's clear showing of rehabilitation, remorse, and cultivation of employable skills will lead to parole after the determinate portion of the sentence is served - that parole will not be denied repeatedly based solely on the commitment offense.) I think that we must also look seriously at the brutalizing effects of our prisons and consider how we can mitigate those effects particularly for people who will one day return to society. (Someone who endures sexual assault in prison; who believes it necessary to join a gang for protection; who routinely sees other inmates stabbed with shanks or shot by guards; who learns not to feel anything when he sees violence, not to care about anyone lest he get emotionally hurt, and that he may need to use violence in self-defense ... this is not someone whom we are preparing well for eventual release.) I also think that we should recognize the huge societal loss each time we must reach the conclusion that someone can NEVER safely return to society, and that we should consider how we can limit the population of people who will be subject to that extreme judgment.

  7. American CDL here, part two:

    Despite these comments, I find many Western European felony sentences to be of surprisingly short duration - and in turn, I know they find our sentences to be unconscionably long (or improper, in the case of the death penalty). One idea I've mulled in that regard is the fact that our violence rates - especially our homicide rates - are much higher than theirs. I think that it is much easier for states and countries to consider shorter sentences and offenders' rehabilitative potential when the citizenry as a whole is not as scared of being on the receiving end of felonious violence or other harm. So it may be, in a sense, that their lighter sentences are appropriate for their lower violence rate and that we, too, will be more open to considering shorter sentences as our violence rates decrease. (Of course, if your Finnish commenter shows us evidence of horrific, repeated reoffending under their system, it may be that their sentences are not adequately structured to rehabilitate offenders prior to releasing them, and perhaps they need to move closer to an American model. However, one or two anecdotal cases of reoffending would not alone establish that Finnish sentences are inappropriately short - particularly if the last 1,000 other similar defendants they released were able to lead gainful, law-abiding lives. If one makes the argument that "even one instance of recidivism is too many," then we again return to the principle that LWOP would have to be standard for all felony offenses.)

  8. CDL: thanks for your comments, and I agree with pretty much everything you say. One question I've always had, if everyone agrees that our prisons aren't doing a good job of rehabbing people, and if we all agree that we want our offenders rehabbed, why isn't it happening? It seems to be one of those things we want, just not enough to pay for.

    I suspect, too, that part of the problem is the deterrence/punishment dichotomy, with no hard numbers or statistics to establish a firm societal preference or norm.

  9. Last comment from the above American CDL: I wanted to add that I am not a fan of the term "monster" to refer to felony defendants. This is less because it is disparaging and dehumanizing to the defendants in question (which I understand is the intent of the speakers.) It is more because "monster" is an othering term: it sets "them" apart from "us" and absolves "us" of responsibility (both as members of society and as participants in a criminal justice system) to understand, address, and fix the factors (environmental, mental health, childhood physical and/or sexual abuse, poverty, neglect, racism, the brutalizing effects of juvenile incarceration, etc.) that, in addition to individual choice, contributed to their criminal behavior. Don't get me wrong: I do not dispute the justice system's need to hold adults strictly responsible for their individual choices to participate in criminal behavior, notwithstanding the above factors. But, for the sake of future generations of potential victims (AND future generations of children whose traumatic upbringings put them at disproportionate risk of becoming adult perpetrators), I think we as a society have an obligation to learn about and address the other "social history" factors that contribute to turning once-innocent children into adults (human adults like you and me, not "monster adults" of some different species) who victimize children. And I feel that the term "monster" detracts from that obligation. (After all, we need only cage monsters and keep them away from us. We need not try to understand why they are as they are.)

  10. That is really, really appalling. I mean beyond apalling and disappointing. I still think if you commit a crime against a child you should get life in prison or death. Preferably death. I'm a real hard-ass when it comes to crimes against children. That is sad. Especially for the victims.

  11. (Sorry, almost all links lead to Finnish material. This stuff does not appear to have been reported much in English. I'm adding the links mostly for completeness.)

    The Finnish Criminal Sanctions Agency recently released high-level stats on recidivism. 44 % of convicts released in 2008 straight from prison had been convicted to a new prison sentence within three years.

    One recent news item involves the cases of two middle-aged men, both previously convicted of a (low two-digit) number of counts of sexual abuse of a child. One was apparently released after two years (implying a sentence of 3-4 years), the other after one year (implying a 2-3 year sentence). One is now suspected by the police to have lured pubescent boys to his apartment for sex, offering alcohol and tobacco in exchange. The other is suspected to have done something (the story is vague here) to 10-year-old girls.

    Another recent news item gives us a man, convicted in 1990 to life in prison for aggravated murder, who was released on the 1st of March. On the 6th of April he killed a man. He has confessed, but the police also suspects two other people of having been involved. The police is treating the case as another aggravated murder.

    Another recent news story tells of a man who was convicted in 1993 of (non-aggravated) murder, was later convicted of something (unspecified) else and was released in early 2009. The story is about a District Court judgment convicting him of aggravated rape, aggravated battery and false imprisonment, all committed late 2009, to four years and four months in prison. The court also decided that the individual is highly dangerous and ordered that he must serve the full specified time in prison. Normally, an adult non-life prisoner is released on parole after having served one half or two thirds (depending on prior convictions) of the specified sentence.

    Then there's of course the famous Nikita Fouganthine, but since he has his own English Wikipedia page, I'll just link there, though it appears to be incomplete. Of course, his recidivism isn't very spectacular, but it's been widely reported because of the notoriety of his early offense.

    Apart from the radically different sentences, how does that compare to the Texan experience?

  12. Lisa: agreed. I can't imagine such sentences passing muster here, though. Thankfully. :)

    Antti: thanks for those. One can always debate the value of anecdotal evidence, of course, but with each anecdote comes a dose of reality - and apparently a second victim. I'm not sure how to compare with Texas - certainly we have recidivism, but we don't have too many cases where someone commits a heinous crime, then gets out of prison to do so again. Off the top of my head, I'm not coming up with any. That's because of the long sentences, I'm sure, but those long sentences being their own set of problems, of course.

    I suspect the major problem with recidivism in our system arises when people get moderate (relatively speaking) sentences for non-violent crimes, then while in prison become disillusioned, violent, etc, and have few prospects when they get out. I see a lot of repeat offenders, although mostly they are addiction-related offenses (drug dealing, DWI etc).

  13. Finland is quite violent. However, the typical crime of violence here, including murder, involves alcohol. Lots of it. There's a drug problem, but it's minor compared to alcohol.

    I was surprised how easy it was to find several examples of serious recidivism. Still, I think it's a common belief here that nothing really bad can happen here. (In fact, there's a word for that, "lintukoto", literally 'a bird's nest', referring to the perceived safety of Finland.) In the recent years there's been a number of shocking and nearly unprecedented crimes (such as two separate mass shootings at schools), which may end up changing that perception. (And then there's Breivik, not in Finland but close enough to really shock us.)

    I used to absolutely oppose the death penalty, and I used to think the current Finnish penal system was just fine. But having served as a lay judge for seven years now, I am no longer sure.

    I should probably note that my translations "aggravated murder" and "murder" are nonstandard. For example, when the Fouganthine Wikipedia page talks of murders, it's referring to what I'm calling aggravated murders. I believe my translations convey the meaning better: the offense I call "murder" consists of intentionally causing the death of another person, and it's prosecuted as what I call "aggravated murder" if at least one qualifying factor (such as premeditation) is present and the offense is aggravated when considered as a whole.

  14. Antti, this is fascinating stuff. How prevalent are guns in Finland? Easy to get, hard?

  15. Antti: this is really interesting to read.

    Since I can't read the link to your statistics: you say that 44 percent of convicts released in 2008 reoffended within three years. Does the link describe whether these convicts' initial offenses were violent? Whether the subsequent offenses were also violent? Specifically, I'm wondering if Finland has information for how many murderers released from prison went on to commit additional homicides (aggravated or otherwise).

    Also, you used the phrase "straight from prison" - is there an alternative in Finland to releasing convicts straight from prison into the real world (any sort of transitional/halfway housing)? If so, were the people who went through an assisted transition less likely to reoffend?

    Thanks - this is very interesting info. I am currently a practicing defender, but I'd really like to find the wherewithal (Fulbright + leave of absence?) to do some serious research on recidivism rates in different US states and foreign countries based on the commitment offense; conditions of incarceration (including educational and other rehabilitative opportunities); and opportunities (or lack thereof) available to ex-offenders upon release. I am not sure exactly what such a study would find, but posts like yours make me feel like it should be done, if someone hasn't beaten me to it.

  16. In January 2010, according to an official report (p. 13, PDF page 18), there were about 1.5 million privately-owned licensed guns in Finland. There were were 700,000 rifles, 600,000 shotguns, 200,000 pistols, 40,000 revolvers, as well as other minor categories of guns, in legal private ownership. All the numbers are rounded (and thus do not quite add up).

    For comparison: the population of Finland is 5,4 million.

    Gun permits are issued only for the following enumerated purposes: lawful hunting, shooting sport, shooting hobby, professional use (only if the use of a gun is a necessity), exhibition, memento, and signalling. Individual self defense is thus not a lawful use for which a gun license could be granted.

    I am not a gun person and thus I lack personal experience, but it is my understanding that if one can honestly demonstrate a lawful use, and one has no criminal history or relevant health issues (a doctor's certificate may be required), getting a gun license is not a big problem.

    I found a recent short article in English about Finnish gun law tightening.

    I've heard an estimate that there are several tens of thousands of illegal guns in Finland. Some of them date back to World War III. There's a special provision in the penal code that allows a person illegally possessing a gun to avoid prosecution for it if he turns it in on his own initiative.

  17. The Criminal Sanctions Agency's statistics are very basic; there's no breakdown based on offense types. But it did have a bit more information than I gave previously.

    First, let me define the terms.

    The statistics concern two types types of punishments: actual prison time and community service. The latter is available to a court as a substitute for a prison sentence of at most eight months or as a supplement to a suspended prison sentence of at least one year, in both cases if the defendant qualifies for it.

    Normally, an adult convict is released on parole after one half or two thirds (depending on the convict's criminal history) of the specified sentence has been served, unless the sentencing court ordered that this regular parole release will not be available. A relatively new option is a supervised release at most six months before the regular parole release. Supervised release requires the convict's consent and commitment.

    Now, on to the stats (the numbers are percentages, first as of 2011 and then, in parentheses, as of 2010):

    – New prison sentence within three years of a non-supervised release: 43.8 (44.5)

    – New prison or community service sentence within three years of a non-supervised release: 49,8 (50,2)

    – New prison sentence within three years of a completed community service sentence: 18,8 (19,2)

    – New prison or community service sentence within three years of a completed community service sentence: 30,2 (32,0)

    – New prison or community service sentence within three years of a supervised release: 22,4 (24,0)

  18. I managed to coax up further data from the public databases of Statistics Finland (the databases are only in Finnish, sorry). Now, the data is fairly sparsely explained so it's possible I'm using the system wrong, but I believe the data allows us a rough value.

    Considering all murder cases (including aggravated murders, murders in the presence of mitigating circumstances, and attempted murders) decided in the first instance between 1988 and 2002, about 12 % of the convicts have been later convicted of a similar offense (28 % considering both similar and dissimilar offenses). I haven't found their definition of offense similarity. The data has been last updated in early 2009.

    Note that the data is not corrected for the effect of prison term length – the worst offenders are given less opportunity to reoffend than the more mundane ones. Also, the available data does not allow for more finely broken down statistics, for example, I cannot separate aggravated murders from mitigated ones.

    Also, the data is based on first instance judgments only. If an appellate court disagreed, it's not reflected in the data.

  19. Antti: thanks, this is all great info. So interesting to compare the different systems, one can really see the difference in attitudes. Thanks again!

  20. Hi, I am new to your blog and glad I found it. As a former prosecutor for twenty years (most of those the chief assistant district attorney), I handled all violent crimes and I really was known as the most lenient prosecutor; I am appalled. I am furious. They call this justice. WTF? In Louisiana he would be doing life at Angola.

    I will be back often to read more..

  21. Melissa: welcome! Glad you found us, make yourself at home. I suspect there are many ways in which Finland and Louisiana differ... snow, alligators, gumbo... Heck, maybe they have Finnish gumbo.

  22. The story is Dutch, though. I think Melissa was talking about the story.

    You know, what you said about comparing systems is quite true. But comparison works both ways. I would love a civilized discussion. Failing that, I could take silence. I think I could take outright attacks at the system I know and participate in (at least I wouldn't have to guess!).

    What I'm hearing right now is, at best, bad attempts to be polite. Or worse, bad attempts at ridicule. If that's what I get in exchange for digging up all that data at request, I think I won't bother returning here much longer.

  23. You don't have to go all the way to Finland to find sentences like that. You just have to go across state lines. In New Mexico, the maximum sentence for 1st degree murder is life with parole in 30 years. 2nd degree murder is 15 years, none of it mandatory. We have several defendants with open cases in our office that have prior vehicular homicides or manslaughter convictions. There are several defendant's around the state right now facing their second murder conviction. I often end up with more exposure on my financial crimes than the violent crimes unit does with their defendants, because the financial crimes end up with so many more counts.

    The chances of getting prison time on any first or second felony offense is pretty much none in the central part of the state. Defendants will often tell the police that "nothing will happen." Worst case scenario, they spend a few days in jail. At least 75% of defendants get probation. We get a fair number of people from California who have two felony convictions there and don't want to face the three strikes law. There is also a large gang migration from California to New Mexico specifically because are sentencing is so lax.

    I'm as big as a bleeding heart liberal as you can get, and I firmly believe that light sentencing leads to high recidivism rates and a higher percentage of the population engaging in crime.

  24. Antti: don't take offense, I think when systems are so different people can be shocked by what they see. Over here there's sometimes a stronger tendency to look at sentencing from the victim's perspective, so when the crime is bad and the sentence (apparently) short the outrage is on behalf of the victim. I think people have been pretty civil here, and you're right they should be. I for one appreciate your presence and am grateful you dug up that data.

    And on an unrelated note, I got to see Anthony Bourdain in Finland last night - do you get his show? Did you see that one?

    Melissa: thanks for joining in. First-timers here in Austin usually get a big break, too. In fact, there's a remarkable (and frequently remarked-upon!) difference between how defendants are treated in Austin and the surrounding Texas counties.

  25. Yeah, my apologies. As you can see from the timestamp of my comment, it was well after midnight. I had just woken up from a nightmare and so was already upset and quite tired when I read your first response to Melissa. (Contrary to what you could expect with many Finns, I was in fact sober:-) In better circumstances, I probably wouldn't have sent the comment.

    I can see what you mean about the victim's perspective. A friend of mine, a German who studied here at the time, was robbed at knifepoint (well, actually, it was the bayonet of a World War One gun) and was injured to the arm in 2006. The perpetrator was in the first instance convicted and sentenced in the District Court for robbery and other lesser offenses to prison for 2 years and 6 months. On appeal, the Royal Court[*] modified the conviction by holding the robbery aggravated, and sentenced the perpetrator to three years in prison. I saw in my friend the fear of meeting the perpetrator again, and he hasn't been back to Finland much since. (Several years later I sat on a District Court panel hearing a new criminal charge against the perpetrator of that crime, committed after he had been released. I asked the presiding judge whether there was legal cause for me to recuse myself. She thought that the question was laugh-out-loud funny. I remained in the panel.)

    [*] The Royal Courts (hovioikeudet), named so for historical reasons, are the regional general appeals courts.

    There was a shooting incident (news report in English) last night in Finland (after I had gone asleep again). It has been interesting to see the reactions of people I come in contact with. Uniformly, it was sadness and empathy with the victims. A common theme was people asking, how did we not prevent this occurrence (referring specifically to support of the youth, and mental health services). Not one was crying out for revenge or harsh punishments, though I'm sure that's just a matter of who my friends are.

    Incidentally, the suspect likely faces a life sentence – it's hard to see how that could be anything but aggravated murder [the news story calls it murder but means what I call aggravated murder, see my earlier comment]. I think Americans would call our life sentence 12 years to life (the first discretionary parole opportunity is at 12 years for adult offenders); it's extremely rare for people to serve more than twenty years of it.

    Bourdain's Finland episode will apparently air here in September. It will likely get massive media attention at the time – all foreign shows about Finland do. (One look at how Conan O'Brien got involved with Finland should suffice:-)

  26. Antti: no need to apologize, absolutely not. And I need to warn you, Bourdain didn't do Finland any favors. You've mentioned drinking in your posts, well, I'm afraid that was the emphasis in his show about your country. In past years he's talked about culture, history, and food but lately I feel like he's become self-indulgent, as if his show is a frat party for himself. Finland is barely showcased, but booze plays a central role. Shame.

  27. As someone who has worked and still works with vicitms of sexual violence in Texas, I am encouraged that this topic would draw so many comments.

    I like Vermont's attitude toward sex offender--unless somethig has changed, every conviction is a life sentence. You never get out. I think that this is more than generous in as much as the victim is often, sadly, 'sentenced' to a life sentence.

    Also as sad, not all prosecutors think victims deserve justice. I'll just leave it at that. Mark, thank you for not being like that!

  28. Hi,

    I'd also like to comment on this matter. In general European sentences are much more lenient than in the US, as Antti said. Here in Italy, while not as low as in Finland they are still woefully inadequate. We are also plagued by a system that calls for the arrest of perps in limited situations, i.e. they are apprehended, identified, charged and the released again immediately, while awaiting trial. Of course this means immigrant criminals who have no ties to the community will simply vanish. We also have the "brief rite" which is almost always granted upon request, even in homicide cases, which automatically means that a third of the sentence is knocked off the total if you are found guilty. You then have "general attenuating circumstances" (i.e. nothing in particular) which are liberally attributed by judges which further reduce sentences, and of course good conduct in jail which means every 8 months are counted as a full year. In the Meredith Karcher case the man who pleaded guilty to the homicide got only 15 years in total, meaning he'll be out in 10. This is for assisting in a 1st degree murder. In another recent case 2 people were sentenced to 15 and 12 years for beating to death a taxi driver who unwittingly drove over their sister's/girlfriend's dog. These people are dangerous criminals who should be locked up for much longer. I don't have recidivism rates but I doubt they are very good. Truth is jail does not rehabilitate and since the situation is very bad I'd be happy if it simply kept the public safe for sometime...


  29. Fred: thanks for another interesting perspective. I didn't realize Italy cut sentences so much, and as you say when they're already (relative to the US) short. You're right, sometimes all we can do is keep the public safe.

  30. 18 years is hardly a slap on the wrist except in the context of the out-of-control US system - that's a long damn time. Can you name anything besides live under your parents' roof that you've done for 18 years straight?

    Since folks brought up Nordic justice, see this item from Time magazine on Norway's system where the max sentence is 21 years, even for the neo-nazi mass murderer who recently killed dozens. Check their recidivism outcomes vs. ours in the story and decide for yourself if Fred is right that "jail does not rehabilitate."

    The issue is whether your primary concern is retribution or public safety. If the former, DAC's instincts are justified. If the latter, the length of sentence matters FAR less than whether the offender is prepared for reentry when it's time to leave, which like it or not almost all of them do.

  31. Just chiming in to say how much I've appreciated the thoughtful discussion in these comments, including Antti's very valuable international perspective.

  32. Yes, why don't you all blindly comment without the burden of any knowledge of the case whatsoever.

    He will serve 18 years in jail first.
    Afterwards he will be locked up for life in a psychiatric institution.

  33. Hi Anon - I didn't see anywhere in the story it said he'd go to a psych institution for life. You sure about that? If so, good, and thanks for pointing that out.


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