Radley Balko summed up what was wrong with Alabama Judge Marvin Wiggins’ offer: “Alabama judge literally orders impoverished defendants to pay fines with their own blood.” Blood money. Literally. And the New York Times article made it abundantly clear that it was wrong.
“What happened is wrong in about 3,000 ways,” said Arthur L. Caplan, a professor of medical ethics at NYU Langone Medical Center, part of New York University. “You’re basically sentencing someone to an invasive procedure that doesn’t benefit them and isn’t protecting the public health.”
Yet, it wasn’t quite as nefarious an order as it would seem.
“Good morning, ladies and gentlemen,” began Judge Wiggins, a circuit judge here in rural Alabama since 1999. “For your consideration, there’s a blood drive outside,” he continued, according to a recording of the hearing. “If you don’t have any money, go out there and give blood and bring in a receipt indicating you gave blood.”
Was this an order to give blood instead of money? Or was this an option to give blood rather than go to jail for failure to pay a fine?
For those who had no money or did not want to give blood, the judge concluded: “The sheriff has enough handcuffs.”
Ending with a statement like that certainly conveys a threat, one that likely pushed some people, who either lacked the ability to pay fines because, well, they were poor, or figured that giving blood wasn’t a bad thing, and it beat the hell out of giving money, not to mention going to jail, into a choice they might otherwise not have made.
Efforts by courts and local governments to generate revenue by imposing fines for minor offenses, particularly from poor and working-class people, have attracted widespread attention and condemnation in recent months. But legal and health experts said they could not think of another modern example of a court all but ordering offenders to give blood in lieu of payment, or face jail time. They all agreed that it was improper.
Legal and health “experts” said so. They agreed that Judge Wiggins “all but ordered” offenders to give blood. They all agreed that it was improper. Why?
The explanation by Caplan, the New York medical ethics professor, is long on hyperbole but short on an actual explanation. Had Judge Wiggins left giving blood off the list of options, these defendants would have gone to jail for failure to pay a fine.
Does it not occur to those condemning the option that the defendants who selected it preferred the option of giving blood to the option of jail? If not, they would have held out their wrists and said, “take me.” They didn’t.
Carl Crocker, who was among those who owed money to the court, recounted seeing one older man pass out after his blood was taken. Another defendant, Traci Green, said that one young man became so angry about the choice he was given that he was taken out of the courtroom.
Giving blood is something that people, at least some people, do without owing any fines or as an option to jail. Some people give blood so that others in need of blood will live. An older man passed out? What would the story have been had the older man passed out while voluntarily giving blood because he did so for noble reasons?
A young man was angry at the choice? What part of having a choice gives rise to anger? Would he have been happier with no choice? Was he looking forward to going to jail, and the introduction of this alluring option ruined his chances? What was he angry about? Judge Wiggins didn’t order him to give blood, but offered him an option. Hey, there are cuffs with your name on them, if that’s what you want.
There is a sound, actually strong, argument to be made that the option of paying a fine or going to jail is the new poorhouse, where municipalities use petty offenses as cash machines to fund their good times. There is a good argument against requiring poor people to give up what they don’t have to avoid jail. And indeed, there is a good argument that locking them up is a fiscal disaster.
But none of these arguments bear upon the question of whether it was improper for Judge Wiggins to offer a third option. And the fact that defendants seized upon the alternative of giving blood tells you something that many don’t want to hear. There are plenty of defendants who would beg a judge for an option other than fine or jail. Beg.
Alternative sentences, whether wearing a humiliating sign or an orange jumpsuit while cleaning up the garbage that people throw on the side of the road (and get away with, which raises a whole different issue), are often controversial.
We’re so attuned to the usual sentences, fine or jail, that we are more readily prepared to accept the premise that it’s better to put a poor person in jail, so they lose their minimum wage job, maybe their home or car, even custody of their children, than come up with an alternative that won’t completely ruin their lives.
Sure, we can blame the fine system as one that impoverishes poor people, and indeed it does, but without it, jail would be the most likely bludgeon. There is community service as well, but that too precludes a poor person from going to work to keep his job.
Mired in miserable choices, Judge Wiggins gave the defendants in his courtroom an option. Yes, it involved an invasive procedure. Blood draws on the roadside are invasive as well, yet not nearly as beneficial to others. It’s unfortunate that he laid it on thick with his “enough handcuffs” jibe, but that still didn’t force anyone to take him up his offer. Yet they did.
The defendants in Judge Wiggins’ courtroom voted with their veins. Yet, here we are, far, far away, condemning the barbarity of his option. The defendants who took it made their choice, and it is not up to us to condemn them for their selection or Wiggins for giving them an option. Even when it’s blood money.
Update: As Nigel Declan asked by email, does this post reflect a change in position from my earlier post on alternative sentences? I still think that the use of alternative sentences shouldn’t be left to the judge to pull out of thin air, but that the law should provide parameters of appropriate sentencing.
That said, this post isn’t about the merits of alt sentencing, but the evils perceived in the particular sentencing option offered by Judge Wiggins, and to address the harsh view of it as some horrible and invasive punishment. It wasn’t.
This wasn’t an instance of a judge imposing some bizarre sentence to sate his moralistic view of the world, or to do something that weird or humiliating that no one would possibly do it without coercion. It’s giving blood. It’s a blood drive. People voluntarily walk in, give blood, help others, all the time. It’s just not evil, outside the realm of normalcy or intrusive.
If you want to stop intrusive, try DUI blood draws on the road side, or vaginal probes on the street corner, or anal probes anywhere. So while I still think alt sentencing should not be left to judges’ discretion, this specific option (and it’s key that it is just an option) just wasn’t that big a deal or that awful a sentencing option.
What if the blood is not acceptable? Not everyone’s blood is medically suitable for intravenous procedures. Now does the defendant get a pass? The judge here is treading on thin ice. However, judges are always treading on thin ice whenever sentencing anyone for anything. Who are they to “judge”? The system is barbaric and needs reform. Alabama has a questionable judicial history. The option to give blood may seem laudatory on its face, but really! We would rather hear the judgments of the Times than the judgment of an Alabama judge.
That’s why we visit New York City and avoid Birmingham.
May god have mercy on your soul.
Judge not, lest ye be judged! It’s in the Bible: One nation under God. Remember?
One of my favorite quotes: “Why can’t we all just get along?” (Rodney King, L.A.)
Also, “What we have here is a failure to communicate.” Notice, it’s “communicate” and not “communionate”, Paul Newman-breath. Render unto Caesar what is Caesar’s, and unto God what is God’s. Caesar does not own our blood. Perhaps the corpus–as in habeas corpus–but not the blood!
Or the “soul”,… whatever?
Huh. I saw your twit and wondered whether you’d join in the condemnation. It seems even the strongest appealz to feelz fail to sway you.
What about this SPLC lawyer who claims some anonymous defendants she spoke to didn’t get credited for giving blood? That’s weird.
The SPLC’s position, having filed an ethic complaint against Judge Wiggins, is pretty interesting. So they are demanding that the poor be imprisoned? Go figure. As for the mechanics, if there were problems in getting credit, that’s an entirely different issue. Like holding a guy in jail for longer than his sentence, it’s clearly wrong, but not because jail is wrong.
Look at the other side of it: Just like paying skid row bums for blood, “I’m a low-level offender and the judge ordered me to give blood” should be a red flag for the blood bank to be wary of blood-borne diseases, as well as unwelcome “additives”.
That has nothing to do with anything. It’s not “the other side of it,” but completely irrelevant.
Putting aside whether give “blood or stay” is worse than “pay of stay,” is there (or should there be) a limit to the idiosyncrasies of judges? Or even only to how they are affected by such as the happenstance of when the blood drive is within sight of the courthouse? Unfortunately, most of the attempted cures have seemed worse than the disease. And, if justice were perfect, what would all the lawyers do?
So by starting with “putting aside” the point of the post, what are the chances that your going orthogonal from what I’ve chose to post to other stuff that interests you will receive a warm reception here?
That article is a case study in our culture of lawlessness, all the shared knowledge and forms we have for ignoring the rule of law and becoming outraged at nothing. There’s 3,000 reasons why this is bad, so there’s no need to state what they are. A lawyer doesn’t know if it violates half the Constitution, so we don’t need to consider whether any provisions of the Constitution are even genuinely implicated. One guy got mad. Well, he’s probably a vampirekin, or some other made up mental disorder he found on tumblr. The only thing they forgot to do was to mention that one out of every one people has gotten sick at some point in their lives next to the paragraph about the one, unrelated case of infected blood.
“no one was taken into custody that day”
Awesome! Maybe next time they can do a walk-a-thon, if they’re all a bunch of ablist shitlords like me.
Self-assessments are notoriously suspect, ableist shitlord.
Ablist shitlord isn’t my self assessment. It’s what tumblr called me right before every single one of their users blocked all communications from me.
That’s completely different, then. Tumblr? Seriously?
Getting banned from the entire internet is no small feat. Sometimes you have to take the low hanging fruit.
You exaggerate. I haven’t blocked anyone on Tumblr to date, so not every single one of Tumblr’s users has blocked you.
Had Judge Wiggins left giving blood off the list of options, these defendants would have gone to jail for failure to pay a fine.
That is not entirely clear from the article. Note the part below. (I also think that writing about the issue with any degree of confidence is problematic since we don’t have a transcript.)
Several people who were at the hearing on Sept. 17 said they were unsure whether they were being ordered to pay the entire amount due or their usual monthly payment, which many had already been paying on time, often for offenses dating back a decade or more.
Regardless of whether Wiggins would, in fact, have followed through with the implicit threat of there being “enough handcuffs,” that was clearly the implication. If we try to focus on the primary issue rather than the meaningless outlier possibilities, we can address the core issue of the propriety of the blood donation alternative. Finding excuses to avoid issues is easy. Dealing with them, not so much.
And, of course, if you’re uncomfortable writing about an issue without a transcript, then don’t. It’s not like Wiggins is forcing you to do so.
shg:
And, of course, if you’re uncomfortable writing about an issue without a transcript, then don’t.
I didn’t say not to write, only to keep a healthy dose of skepticism about the actual details in your back pocket because initial news reports are often skewed. If you wrote only about the theory of alternative sentences, I wouldn’t have bothered.
Andrew:
The story has been sufficient for tons of people to criticize Judge Wiggins. Did you complain there that they shouldn’t say anything without a transcript?
Yes, I have spent every waking hour finding every single website that ever mentioned the issue to apprise them of the problems they have with the words they wrote. I will not rest until the internet has been purified and sanitized of this outrageous and scandalous issue. Here is a picture of me in action:
http://laughingsquid.com/someone-is-wrong-on-the-internet/
You have a tendency to throw a pointless skunk into the middle of a garden party, not because you have any information to suggest it belongs there but because you, out of nothing, decide that you think skepticism is the better approach. If you have an actual reason for suggesting it, then it would be valuable and influential. But you don’t. It’s simply your preference, which you inexplicably think is important enough to supplant my preference.
Why? You do this a lot. It’s a terribly liberal approach, where you take your own gut feeling so seriously that it’s not only critical to announce, but you expect it to replace mine. Why do you think any baseless idea that pops into your head is so important that you must express it and expect others, me, to change my entire world view because Turk feels differently?
You need to give this some serious thought, and figure out whether you are the most special person ever in the history of the world, god-like in your omniscience, or stop doing this. Much as I like and respect you, my ideas do not require your approval or validation. Not even a little bit. And need I note, you really don’t have a clue when it comes to crim law.
If you have something worthwhile to add, especially critical, then by all means, do so. But if it’s nothing more than some amorphous feeling, what do you expect me to do about it? Why do you feel that it’s important to announce?
Why?
Because time after time I see viral stories that aren’t what they initially seemed. I like keeping an open mind as to facts.
You do this a lot. It’s a terribly liberal approach…
I would call it conservative. Your mileage may vary.
And need I note, you really don’t have a clue when it comes to crim law.
True, which is why I didn’t post about crim law, only that initial news stories aren’t always entirely accurate.
Why do you think any baseless idea that pops into your head is so important that you must express it and expect others, me, to change my entire world view because Turk feels differently?
I didn’t comment on your world view, or whether blood donation was an acceptable alternative sentence.
I can always wait a month, year, decade, after a story happens, while others write about it, people read the stories, are influenced, make up their minds and move on. Or deal with the facts as propounded, address the commentary before minds are made up and try to prevent people from being made stupider.
It may be that subsequent stories correct facts, though usually there are no material changes. Still, it happens sometimes. That’s a risk I’m prepared to take. But stories like this, which deal with concepts greater than one particular scenario, are very dangerous. My approach is to introduce thought before the stupid sets in and congeals. A month from now, it’s a lost cause. My choice is to address issues before its too late to introduce alternative thought. Your mileage may vary, but this is what I do at my blawg.
The story has been sufficient for tons of people to criticize Judge Wiggins. Did you complain there that they shouldn’t say anything without a transcript?
The issue I see with it is that the people at the hearing had an incentive to not be honest about deferral factors (I’m assuming here that Judge Wiggins would not have accepted “I’d love to, Your Honor, but I’m gay” in lieu of a receipt). There’s probably a discussion to be had about the actual risk present, but giving people an incentive to bypass one of the layers of defense on the blood supply is questionable.
How bizarre that you focus on an orthogonal issue. No one was entitled to give blood if they were otherwise precluded by their health. If a defendant was precluded, then the option (which was otherwise unavailable to him) is unavailable to him. It’s a non-issue.
As far as concerns for the purity of the blood supply, that’s a matter for the people in charge of the blood drive to address, and similarly completely irrelevant as to the propriety of Judge Wiggins’ offer. Is it that difficult to grasp the issue without your head filling with irrelevant effluvia?
And apparently one of the ways they tried to address that was by communicating to the courthouse personnel organizing the blood drive that they don’t accept donations for community service.
You’re right that the judge should not be criticized for attempting to give options to defendants, and you’re right that other issues are orthogonal to this. OTOH, it seems unlikely that LifeSouth, which incurred considerable expense collecting and then throwing away blood because it didn’t meet their standards, feels the same way about the propriety of the judge’s actions as you do.
There are good reasons why the blood collection agencies have their standards but it’s not hard to imagine a gazillion other different worthy causes that would be similarly completely overwhelmed by the courthouse sending them hundreds of defendants to “help out” if they hadn’t had a chance to participate in a meaningful dialogue and prepare before the “help” arrived.
It’s a shame the baby of creative sentence reduction may be thrown out with the bathwater of a poorly-thought-out implementation, but (even if most commenters are completely focused on the wrong issue and even though this wasn’t what you came here to discuss) it seems likely that this implementation was poorly thought out indeed.
Sigh.
Yeah, I know. I’m not thinking clearly and need to get back to bed.
Feel better.
Meh. I think I misread the article, which is what I get for commenting when I’m drugged up due to a cold. It appears it was a LifeSouth employee who acted improperly, not a court employee.
People are precluded from giving blood for reasons such as which countries they have lived in, being gay, or having been in prison.
You said precluded “for their health”. It’s not clear there is a strong rational connection.
Regardless, SHG, I’m very interested to hear you say you are OK with gay men receiving worse sentences than others, due only to bring gay. Did I read you right?
Is this irrelevant?
Now this is about gay men getting worse sentences? Sorry, but just because you want to turn this on its head doesn’t make it so. No defendant got a worse sentence; they all got the sentence they were originally given. Should anyone capable of taking an option, to which none were entitled but some preferred, be denied because not every defendant could use the option?
SHG, you made it about gay men getting fewer options in sentencing. You are the one arguing that they should. Don’t put that on me. You also said it’s fine for people who’ve been to South America or Southeast Asia to get worse sentences. I didn’t turn it on its head, I asked you if you really meant it. Looks like you’re doubling down.
I’m sorry, just because you have a favoured, pet form of discrimination in sentencing doesn’t mean that it isn’t unconstitutional and deeply, deeply wrong. If two groups are getting different treatment at sentencing solely because of male homosexuality, having been to South America or having lived in Europe, that’s very troubling. Surely you see that equal protection is violated here?
If that’s how you want to twist it, whatever. The words are here to be read. Your saying I “made it about gay men” has nothing to do with me.
That problem is easily avoided if the court simply credits EITHER confirmation from the blood drive people that someone donated blood, OR confirmation from the blood drive folks that someone showed up, filled out the questionaire, and was told they were not eligible to donate.
This is a genius idea. The judge was giving a $100 credit for each pint of blood donated, so if you owed $800 in fines you can give eight pints and walk away free and clear!
*Some restrictions may apply.
When I read comments like (most of) these, I can’t figure out how your head doesn’t explode. Is it that they just don’t get the point, or that they’re so self-absorbed that whatever dumbass side-issue occurs to them suddenly becimes real in their minds. It’s not my blog, and I just want to reach through the computer and smack them. Esp Turk, who really should know better.
Some days are like this. It’s hard not to explode sometimes.
SHG,
Even though it tickled me pink, your post is bloodless.
All the best.
RGK
Ouch.
This reminds me of a situation that occurred in Mexico. An orphanage was soliciting donations. They had the assistance of the local police. The police stopped motorists on the highway so the nuns could ask for donations. So you’re stopped by the police wielding machine guns so nuns can push a donation box in your window ‘asking’ you to give them money. Different situation, sure, but the subversion is the same. Making charity mandatory instead of it being voluntary, good work.
Going to jail sucks but doing this instead of fixing the real problem just adds more potential misery on top of an already fucked up system. You should know that once a precedent is set it is expanded in ways that was never intended or expected. Consider the unintended future consequences. Is the short term relief worth the future disaster that will come with this?
Aside from your analogy being awful, you take a number of inferential leaps. Rather than impose your twelve step process on others, consider whether the people who decided to give blood would have preferred the option or not. Getting the option to give blood to a blood bank isn’t being force to give up organs.
It’s not a slippery slope, as the two are worlds apart. One thing that people seem unable to recognize is that defendants really don’t want to go to jail if they don’t have to. But you would deny them that option and force them into jail. So you want to replace your sensibilities for theirs? You know better?
I’ve been in the situation of those people when I was in college and I appreciate that the judge and clerk bent over backwards to help me with alternatives. Going to jail sucks, I won’t disagree. When you’re down, it just screws things up even worse. I also don’t think jail is the proper place for people who can’t pay fines.
Allowing judges to pick alternates on a whim is the disaster I meant, but didn’t articulate very well. The system is screwed up enough as it is.
I agree with you about judges picking alternatives on a whim, and that statutes should provide for a list of alternatives to fines and incarceration, or at least the parameters within which judges my exercise authority.
But the issue in this case was the “invasiveness” of giving blood, not that he pulled an alternative out of his butt. There have been many other, often far worse and more harmful, alternatives than this one. In the scheme of alternative solutions, it was not only preferred by defendants, but it’s fairly benign. Certainly better than being jailed.
I do realize your feelz is that giving blood, in the scheme of things, is a benign and relatively non-invasive punishment. And as far as the majority, it would be a good bet to pick benign/non-invasive as being the top answer. I do know at least one person whose feelz is different due to a morbid fear of needles. And then there is the one defendant who picked jail, he doubles the number of folks, that I know of, that might not share your belief. Now if I could find a couple dozen more, I could have a shot at a legitimate, non-anecdotal argument.
You’re still leaving one critical piece out of the middle, which blows you out of the water.
So don’t choose to give blood. It’s an option, not a sentence. Not your thing. Don’t do it. Problem solved. My “Feelz” is that giving blood at a blood bank (as an option) is nothing like being forced to give up a body organ. That’s the benign comparison. You’re shooting blanks.
Today blood, tomorrow plasma, then sperm and eggs, then limbs and organs, then “3-5 years in the department of corrections or 4 years working and living in the walgreens you stole from.”
Lord, I’m hoping you’re being sarcastic.
“this specific option (and it’s key that it is just an option) just wasn’t that big a deal or that awful a sentencing option”
I read your post and your responses and my question still is where is the line where the “option” is no longer an “option”? We hear all the time where judges trade sentencing for other “favors”, cops threatening to give tickets if policemen ball tickets are not purchase or people sign consent forms in asset forfeiture cases.
There are many cases where “options” would be much preferable to jail time.
As a more practical matter, what is the difference between what the Judge did and him offering a “Get out of jail free” card if they donated $10 to his favorite charity? I agree that the “invasiveness” of blood transfusion is not that big of a deal but when the judicial system is willing to pervert itself to support whatever their personal cause is, that is a problem.
If you struggle to grasp the conceptual difference between giving blood and buying a ticket to the police ball or donating to the judge’s personal charity, then I can’t help you. The public good isn’t the same as personal benefit. It’s not hard to grasp the distinction.
I would have loved this option when I was poor and struggling to pay fines, since I routinely gave blood any way– I have a rare blood type, and Red Cross was always (nicely) asking me to donate more, then I made the mistake of living in Great Britain in the late eighties.
This post misses some important context. Under Bearden v. Georgia, 461 U.S. 660 (1983), imprisoning a person for failing to pay a fine that he could not afford violates the Equal Protection Clause. Under this decision, “a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.”
In other words, for defendants who were indigent and therefore unable to pay their fines and fees, putting them to the “pay or stay” choice is illegal, even before the “option” of a blood draw is offered in lieu of incarceration. (Note: This is especially problematic if the initial debt is an administrative/court costs fee for which payment does not serve the state’s interest in punishment and deterrence, as opposed to a fine that is part of the punishment for the original offense — but I’m assuming here that these are the latter.) For the indigent, ordering an alternative form of punishment is something the court is obligated to do, not an act of benevolence. Given this, the alternatives the court orders ought to be appropriate and civilized rather than (as in this case) barbaric.
Giving blood at a blood bank is “barbaric”? You better hope you never need a transfusion, or you’re going to have terrible cognitive dissonance.
As for Bearden, you misstate the holding.
No. Bearden requires the court to inquire into the reason for their inability to pay before incarcerating. Here, the court provided an alternative to payment, which is what Bearden says a judge should do.
Giving blood freely and voluntarily is not barbaric. Giving blood under compulsion as a form of punishment is barbaric. The voluntariness and the reasons behind it are important, just as with any other activity involving an invasion of a person’s bodily integrity.
As for Bearden, it requires the court to offer an alternative to incarceration, but that doesn’t mean ANY alternative is appropriate. If, for example, the court offered being waterboarded as the only alternative to incarceration, I’d have a similar objection.
I suspect the fallacy of your reasoning is sufficiently clear and obvious to let this go. Thanks for commenting.