Oscar Pistorius Sentenced to Five Years in Prison

Update: The judge sentenced Oscar to five years in prison on the culpable homicide charge and imposed a three year suspended sentence on the firearm count. The sentences will run concurrently. He was taken into custody. Neither side indicated they were going to appeal, and there was no mention of bail pending appeal or a delay to put his affairs in order. Oscar sat by himself throughout the sentencing, and did not display any emotion at the sentence. I didn't see any interaction between Oscar and his lawyer during the proceeding or after.

A summary of the judge's reasoning is below (from my notes this time, not tweets.)[More...]

She begins with saying the sentencing decision is hers alone. The fact-finding assessors who have been with her during the trial do not participate.

The factors to be considered at sentencing are the nature and seriousness of offenses, the accusedís personal circumstances and the interests of society

The purposes of sentencing are retribution, deterrence, prevention and rehabilitation. (Added: corrected to change the third purpose from "punishment" to "prevention.")

There may be more than one appropriate sentence in a case. Sentencing is a subjective process. It is an imprecise and imperfect procedure.

She will address mitigation and aggravating circumstances. There were four defense witnesses in mitigation.

Oscarís psychologist (Lore Hartzenberg) testified she conducted group and individual trauma therapy with Oscar. He was diagnosed with PTSD and depression. She said Oscar had lost his love relationship, his moral and professional reputation, his friends and career.

A social worker (Joel Maringa) recommended correctional supervision and house arrest, followed by community service and various treatment programs. He also opined Oscar would be an appropriate candidate for supervision and it would be easy to monitor him at his uncleís home.

Oscarís manager (Peet van Zyl)testified as to his career accomplishments. He said prior to the incident he was a global sporting icon who gave his time and money to various causes. He had a lot of opportunities in the future, and now he has none.

As to the stateís witnesses: A cousin of the deceased testified to her and the familyís feeling of loss. She met Oscar once, about a month before the incident.

A Correctional Services representative called by the State testified that South Africaís prisons have made progress. He has visited jails in other countries and said SAís jails were comparative. They can accommodate any kind of need.

As to Oscarís personal circumstances: He is 27 years old, and a double amputee. He lives with his uncle, is not employed, has no income and no property. He sold his property during the trial. He has no prior convictions. His parents divorced when he was 6. He was raised by his mom who died when he was 15. He was a born with a congenital defect and at age 11 months, underwent an amputation below his knees

The judge did not believe another defense witness, Annette Vergeer, who testified about the conditions of South African prisons. She was not credible and her testimony was not helpful. Her information was outdated. She says the state was correct in calling her uninformed and sketchy. On the other hand, she was impressed by the correctional services witness for the state. He said SAís prisons were not perfect but more progressive than they used to be. She found his conclusions true and reliable. Sheís satisfied with his statement that SA prisons can handle all types of disability

The judge says if an inmate feels he is being mistreated in prison, he can ask the court for redress.

She refers to the defense statements that Oscar needs treatment for trauma and depression and says medical assistance is available in prison, and inmates are allowed be treated by their own doctor. She agrees with the correctional services witness that Oscar will not present an insurmountable challenge to the prison system.

She analogizes Oscarís situation to a pregnant woman and in the next sentence says there should not one law for the poor and disadvantaged and one for the rich. (I don't get the first analogy, which seemed to be that because pregnant women go to jail, so should someone with no legs, and the rich/poor analogy made no sense, considering she found Oscar to be both broke and disabled.)

She thinks there has been an overemphasis by the defense on his vulnerability. She finds he has excellent coping skills. Thanks to his mother, he rarely thought himself as disabled. He competed against able bodied persons.

The correct approach is to balance Oscarís personal circumstances with the interest of society. She encompasses the deceasedís familyís views in the interests of society category. As to Oscarís circumstances, she finds his contributions to society, both in time and money, have been ďenormous.Ē He changed the general publicís perceptions of disabled persons. She says this impact cannot be ignored but must be put in perspective.

On the seriousness of offenses, she finds both very serious. She says counsel for the state correctly said Oscar acted with gross negligence bordering on dolus. He was negligent because he shot four times. He said he would have shot higher if he intended to kill. He knew the toilet was small and there was no escape for the person behind the door. She says this is very aggravating.

But Oscar is a first offender and remorseful. She accepts that he has attempted to apologize to the deceasedís family privately but they were not ready to hear it. She accepts that his conduct after the incident showed he wanted the deceased to live.

She rejects the stateís argument that because she took his disability into account in rendering the verdict, she cannot take it into account at sentencing. She says Oscarís vulnerability is part of his personal circumstances.

She disagrees with the defense that Oscar has also become a victim, although she agrees the negative media can affect his reputation, regardless of whether he follows what the media is saying.

She says the interests of society demand those who commit crimes be punished and punished severely, but there is a difference between what some in society want and what is in the public interest. Courts must make the distinction between punishment and vengeance. Fortunately, the SA Constitution applies to everyone, including offenders.

She then says retribution is not the same as vengeance. If sentences are too lenient, people may take the law into their own hands and the administration of justice will fall into disrepute.

She acknowledges the loss of life cannot be reversed, and says hopefully this sentence will provide some closure for family and all concerned.

She says ďIn conclusionĒ, she must assess the degree of blameworthiness in committing the negligent act and the extent of deviation from norms of reasonable conduct. She refers to cases the defense submitted and says none are on point. She then spends a very long time quoting the facts and sentence of a case called Voster (No. 125, 2009) which sounds very similar. Voster got a 3 year suspended sentence. But she says itís different because Oscar, unlike Voster, knew someone was behind the door, Voster only fired one shot and aimed above the door while Oscar fired four shots into the door. She said Oscarís aim was to shoot the intruder.

She cites another case and again says itís not the same.

She says a suspended sentence is not appropriate and a non custodial sentence would send a wrong message. But a long sentence would be inappropriate because it would defeat rehabilitation and Oscarís prospect of becoming a productive member of society.

She then addresses the firearms charge. She says no one was hurt, and although it is serious, she does not believe his degree of negligence warrants prison on this count.

She asks Oscar to stand. He does (by himself, his lawyer remains at counsel table). She sentences him to five years in prison on the culpable homicide charge and imposes a three year suspended sentence on the firearms charge, to run concurrently (served at the same time.)

She asks if either side has anything further. The state says something about the citation to the firearms statute but has nothing else. The defense has nothing. Court adjourns. An officer comes and takes Oscar out of the courtroom.

Just a few comments: She seemed to have almost a patriotic interest in portraying South Africa's prisons in a positive light. She pulverized the defense expert on the topic, more so than any other witness at trial or sentencing that I can recall. She agreed with the prosecutor today that Oscar's negligence was "reckless" (not just negligent -- I don't recall her doing so before today.) In her verdict, she said the state failed to prove Oscar intended to kill anyone, and today she said he was aware he was shooting at someone and that they would have no ability to escape. She describes Oscar as broke and unemployed and then says there can't be different outcomes for the rich and the poor, obviously putting him in with the privileged class. She says that what members of society think is an appropriate sentence is not the same thing as the best interests of society and as a judge she has to ignore it. Then she endorses, not once but twice, the specious claim by the prosecutor that if a sentence is lighter than the public wants, it may cause riots, and she should take that into account. On the gun count, she says it's a very serious offense, and then says no jail is warranted because (in effect) no one was hurt, so no big deal.

Personally, I think her sentence was in large part based on her belief that Oscar didn't tell the full truth when testifying at trial. She said she didn't find him credible when she delivered the verdict. Since she also said when reading her verdict that the state failed to prove the murder charge, and the state's case was mostly built on the theory Oscar lied, her verdict was a finding that the state failed to prove he lied. Since the state never proved he lied, she wasn't about to substitute her own judgment on that point today and use it as a reason for her prison sentence. Instead, she enhanced her verdict ruling to find he was reckless (not simply negligent), "bordering on dolus" (which she also rejected in her verdict) to arrive at her desired outcome and minimize the chance of being reversed on appeal. In other words, I think she decided he should get a five year sentence and then created acceptable reasons to justify it.


Oscar Pistorius' returns to court today at 9:30 am SA time (1:30 am MT. Judge Thokozile Masipa will read her sentencing decision. It is anticipated this will take one hour. She has a variety of options. Prison is not mandatory. The prosecutor asked for 10 years, while Oscar's lawyer asked for an alternative sentence of house arrest.

Oscar is not being sentenced for murder. He was acquitted on the murder charge and found guilty of culpable homicide, which is similar to criminally negligent homicide in the U.S. Culpable homicide is the act of causing death through negligence, without criminal intent.

He is also being sentenced for one count of negligent handling of a firearm (involving his holding a firearm that went off in a restaurant.) He was acquitted of two other firearm-related charges, one involving shooting a firearm through the sunroof of his vehicle and one pertaining to unlawful possession of ammunition.

According to journalists covering the trial, both sides can appeal the sentence. If Oscar appeals, he has to re-apply for bail. He's been on bail in this case for 18 months, since February, 2013.

Update: The judge is almost done. It's not looking good for Oscar.

< Monday Night Open Thread | Robel Philippos: Verdict Watch >
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    He may be broke now, but he certainly was well (5.00 / 3) (#1)
    by ruffian on Tue Oct 21, 2014 at 05:38:39 AM EST
    off at the time of the shooting. All due to his own talents, I don't begrudge him that, but going into this proceeding 'justice for the rich' would have applied to him if the courts allowed.  But against him was the possibility of making an example of a celebrity, if the court allowed that.  

    Interesting that there were attempts to tell the judge what the prisons were like...I guess I assumed judges know the state of the prisons they are sending people to...but I am probably naive about that.

    I can't find fault with the sentence, (5.00 / 1) (#3)
    by Reconstructionist on Tue Oct 21, 2014 at 08:48:33 AM EST

      or her rationales as summarized, even if I personally believe a sentence closer to the maximum would also be justifiable.

     One thing confused me and may be lost "in translation" even though she's speaking English.

     A)She said she didn't find him credible when she delivered the verdict.

      (B)Since she also said when reading her verdict that the state failed to prove the murder charge, and the state's case was mostly built on the theory Oscar lied, her verdict was a finding that the state failed to prove he lied. Since the state never proved he lied, she wasn't about to substitute her own judgment on that point today and use it as a reason for her prison sentence.

     As, in this case the judge was the finder of fact and charged with determining credibility, I have difficulty reconciling (A) with the bolded portion of (B).  If she believes he was not credible when testifying how is that different from state proving he lied? I could see finding a witness was untruthful at times during his testimony  but that the state failed to prove he was untruthful on certain critical points but as broadly phrased it is puzzling.

    I also don't quite get "substituting her own judgment" in a case where she is the only fact-finder involved. A judge not substituting her judgment for a contrary determination reached by a jury is one thing , but here she made every determination.

    Instead, she enhanced her verdict ruling to find he was reckless (not simply negligent), "bordering on dolus" (which she also rejected in her verdict) to arrive at her desired outcome and minimize the chance of being reversed on appeal

    That's a new word for me. I had to look it up. A general definition:

    Guile; de- ceitfulness; malicious fraud. A fraudulent addressor trick used to deceive some one; a fraud. Dig. 4, 3, 1. Any subtle contrivance bywords or acts with a design to circumvent. 2 Kent, Comm. 560; Code, 2, 21.Such acts or omissions as operate as a deception upon the other party, or violatethe just confidence reposed by hiin, whether there be a deceitful intent {mains animus)or not Poth. Traite de D6pot, nn. 23, 27; Story, Bailm. S 20a; 2 Kent, Comm. 506, note. Fraud, willfulness, or intentionality. In that use It is opposed to culpa, which is negligence merely, In greater or less degree. The policy of the law may sometimestreat extreme culpa as if it were dolus, upon the maxim culpa dolo comparatur. A person is always liable for dolus producing damage, but not always for culpa producing damage, even though extreme, e. g

    Law Dictionary: What is DOLUS? definition of DOLUS (Black's Law Dictionary)

    A more specific discussion from  South Africa:

    Intent can occur in three forms: dolus directus, dolus indirectus and dolus eventualis.

    "Intent in the form of dolus eventualis or legal intention, which is present when the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences, suffices to find someone guilty of murder.
    The South African Court of Appeal held that mens rea in the form of dolus eventualis is an elastic concept. It can range from bordering on negligence (culpa) on the one hand to dolus directus on the other. However, the test always remains whether the accused person subjectively foresaw the possibility of the death of the deceased and associated himself therewith.1

    Dolus eventualis is sometimes said to be the criminal law equivalent to the tort concept of gross negligence.
    "Dolus directus, on the other hand, known as intention in its ordinary grammatical sense, is present when the accused's aim and object is to bring about the unlawful consequence, even should the chance of its resulting be small."

    From my live blogging of the verdict (none / 0) (#16)
    by Jeralyn on Tue Oct 21, 2014 at 02:56:59 PM EST

    [the judge]spent some time saying Oscar was a poor witness and not candid with the court, but said that isn't enough to conclude he's guilty. His testimony must be viewed in conjunction with all the evidence presented.

    ...she recounted Oscar's testimony and his conflicting statements which included that he did not shoot intentionally, he shot accidentally, and he shot unconsciously, without thinking. She doesn't buy his version, and cites him having released the safety mechanism and that he also said he fired because he thought someone was in the bathroom and might come out and attack him.

    I agree with the (5.00 / 1) (#25)
    by Reconstructionist on Tue Oct 21, 2014 at 04:10:45 PM EST
    elementary and inarguable points of law. What I was saying is that I was confused by her saying both that he was not credible (or he was mendacious, untruthful, etc.) and that the prosecution failed to prove he lied.

      No doubt the mere fact a defendant lies does not establish that he is guilty of an offense but it would seem to mean the prosecution proved he lied.


    on the first point (her view of his credibility) (none / 0) (#19)
    by Jeralyn on Tue Oct 21, 2014 at 03:12:30 PM EST
    S v Gqirana (CA&R/2008) [2008] ZAECHC 76 (28 May 2008)

    This Court stands to be reminded that mendacity on the part of an accused is not to be equated with proof of guilt. Included in the institutional memory of the Court must be the sober realization that even innocent people lie, "guild the lily", massage facts, exaggerate and change their stories particularly if the accused has a perception that the actual truth and/or circumstances of the matter are contextually embarrassing, seemingly incriminatory or just not good enough and that therefore the court will simply not believe him or her. See for instance S v MTSWENI 1985 (1) SA 590 (A) which in the headnote reads -

    Although the untruthful evidence or denial of an accused is of importance when it comes to the drawing of conclusions and the determination of guilt, caution must be exercised against attaching too much weight thereto. The conclusion that, because an accused is untruthful, he therefore is probably guilty must especially be guarded against. Untruthful evidence or a false statement does not always justify the most extreme conclusion. The weight to be attached thereto must be related to the circumstances of each case. In considering false testimony by an accused, the following matters should, inter alia, be taken into account: (a) the nature, extent and materiality of the lies and whether they necessarily point to a realisation of guilt; (b) the accused's age, level of development and cultural and social background and standing insofar as they might provide an explanation for his lies; (c) possible reasons why people might turn to lying, e.g., because, in a given case, a lie might sound more acceptable than the truth; (d) the tendency which might arise in some people to deny the truth out of fear of being held to be involved in a crime, or because they fear that an admission of their involvement in an incident or crime, however trivial the involvement, would lead to the danger of an inference of participation and guilt out of proportion to the truth."

    The state had the burden of proof:

    In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true.

    The judge quoted this paragraph in reading her verdict:

    The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable; but none of it may simply be ignored."

    The state didn't prove he lied, and she found other evidence, such as the neighbor's testimony, inaccurate (mistaken, not lies.) So her belief he lied is not enough to convict him.


    on dolus eventualis (none / 0) (#31)
    by Jeralyn on Tue Oct 21, 2014 at 05:05:42 PM EST
    When she read her verdict, she said she didn't agree he acted with dolus eventualis.

    Fault consists in either intention (dolus) or negligence (culpa). There are three forms of intention (direct, indirect, and eventualis) and two forms of negligence (conscious and unconscious). Dolus eventualis refers to one form of intent.

    As I understand SA case law, while SA refers to dolus eventualis as "gross negligence", "gross negligence" has a different meaning in SA than it does in the U.S.

    Here, gross negligence is an aggravated degree of negligence. In SA,  "gross negligence" refers the volitional component of dolus (intent). It applies where the perpetrator "consents" to the consequence foreseen as a possibility, he "reconciles himself" to it, and he "takes it into the bargain".

    "It is the particular, subjective, volitional mental state in regard to the foreseen possibility which characterizes dolus eventualis."

    Dolus eventualis relates to circumstances or consequences which the actor does not plan or desire but which, in the light of human experience, can be expected to follow if the actor proceeds with a planned course of action

    Intention is a subjective test (place yourself in their shoes... what the person was thinking or feeling or perceiving) while negligence is an objective test (looking at the situation from the outside... the reasonable man).

    In plain English, for there to be dolus eventualis, Oscar had to have foreseen the possibility death would occur by his action and with that knowledge, proceeded to act. It is not about what a reasonable person would have foreseen, as is the test for negligence or culpable homicide.)

    What the judge didn't believe at verdict time was Oscar's claim he didn't intend to shoot at someone, not that he didn't intend to kill someone. ("He was not candid with court when he said he had no intention to shoot at anyone.") The judge said he intentionally armed himself thinking there was an intruder, and he had the intent to shoot, but he did not have the intent to kill, let alone premeditation. She said (from my notes that day): "No onus rests on the accused to establish the truth. Even if his explanation is improbable, the court must be convinced his explanation cannot be true... The onus is on the state beyond a reasonable doubt."

    This whole concept of Dolus is pretty confusing. For more on Dolus, in addition to the cases, see this primer, this legal paper and this SA lawyer's explanation.


    Isn't it remarkable that defendant (5.00 / 1) (#38)
    by oculus on Tue Oct 21, 2014 at 06:55:48 PM EST
    did not display any emotion at the sentence.

    not really (none / 0) (#46)
    by Jeralyn on Wed Oct 22, 2014 at 03:53:51 AM EST
    He appeared to me to be heavily sedated. His doctor probably prescribed something. He not only showed no emotion, he barely moved. I watched the live proceeding and he was as still as piece of furniture.

    Is it possible (none / 0) (#48)
    by NYShooter on Wed Oct 22, 2014 at 05:29:50 AM EST
    he was given an advance "heads-up" by the court?

    Why not; it would have given Oscar some time to compose himself, and preclude the possibility of some kind of public, emotional reaction.....

    It just seems to me that it would be a fairer, more humane, way for a defendant to hear his/her fate.


    In contrast to his nonstop emoting (none / 0) (#55)
    by Mr Natural on Wed Oct 22, 2014 at 10:32:36 AM EST
    during his trial?  Yes, it is.

    But then, I've never watched actual defendents at the moment of sentencing following a protracted trial.  Jeralyn has, at least in one case we all heard about.

    Too bad we don't have a resident shrink to explain.


    She split the difference (none / 0) (#2)
    by jbindc on Tue Oct 21, 2014 at 07:31:42 AM EST
    The prosecutor wanted 10 years, the defense wanted community service and house arrest, so she gave him 5.  He's still probably only going to do 10 months in prison, and the remainder will be house arrest.

    The International Paralympic Committee said he won't be able to run at an event for 5 years, even if he is released early, which means he still may have some role to play with the organization in the future.

    Actually, she didn't split the difference. (none / 0) (#4)
    by Mr Natural on Tue Oct 21, 2014 at 10:08:46 AM EST
    Five years in a real prison is vastly more punitive than five years sitting on a sofa at home.

    Since (none / 0) (#6)
    by jbindc on Tue Oct 21, 2014 at 10:44:44 AM EST
    As I said, the prosecutor wanted 10 years in prison and the defense wanted none, I'd say she split the difference.

    She split the baby. The wisdom of (none / 0) (#35)
    by oculus on Tue Oct 21, 2014 at 06:44:47 PM EST

    If it is true that he will only serve 10 months, (5.00 / 1) (#37)
    by MO Blue on Tue Oct 21, 2014 at 06:54:56 PM EST
    the prosecutor got a lock of hair and the defense got the rest of the baby.

    Not really (5.00 / 1) (#52)
    by Reconstructionist on Wed Oct 22, 2014 at 09:00:02 AM EST
      The prosecutor was asking for a 10 year sentence with full knowledge that Pistorious would be eligible for release from prison and transfer to "home custodial" supervision after serving 1/6th of that sentence.

     It's half of what the state recommended either way you look at it.


    No Oscar for Oscar (none / 0) (#7)
    by Mr Natural on Tue Oct 21, 2014 at 11:12:20 AM EST
    Overindulgence tipped his performance from pathos into bathos.

    In an ideal world what we feel we know would be determined by what we can prove.

    Guardian Op-Ed: Oscar should not go to jail (none / 0) (#8)
    by Mr Natural on Tue Oct 21, 2014 at 11:23:42 AM EST
    Moving down the road to penal reform can hardly begin with a privileged celebrity. But to ask, again and again in such cases, what sensible purpose comes from imprisonment, might at least encourage debate. This month alone the British parliament indulged its regular urge to "get tough", with a demand for longer sentences for knife crime, gun crime, fraud and even fly-tipping. This is not mature legislating but kneejerk retaliation. It is back to the days of an eye for an eye.

    - Simon Jenkins

    As the judge said (5.00 / 1) (#10)
    by jbindc on Tue Oct 21, 2014 at 12:07:08 PM EST
    The purposes of sentencing are retribution, deterrence, punishment and rehabilitation

    I didn't like that she listed (none / 0) (#15)
    by Jeralyn on Tue Oct 21, 2014 at 02:49:55 PM EST
    retribution first.

    I agree (none / 0) (#26)
    by Zorba on Tue Oct 21, 2014 at 04:43:03 PM EST
    I would list rehabilitation first, and then deterrence, and then punishment, although I would not have a great deal of a problem if the last two were swapped.
     I do not think that retribution should have a role in this.  At least, I would hope that it doesn't have a role in any civilized country.

    Why not? (5.00 / 1) (#28)
    by jbindc on Tue Oct 21, 2014 at 04:58:37 PM EST
    It's a basic theory of criminal law.

    At least, I would hope that it doesn't have a role in any civilized country.

    Maybe you're thinking of revenge, which is a completely different thing?


    not different (5.00 / 2) (#33)
    by Jeralyn on Tue Oct 21, 2014 at 06:03:32 PM EST
    retribution: The felon harmed society; therefore society (or the direct victims) is entitled to inflict harm in return.

    Retribution: The act of taking revenge on criminal offender. This type of punishment is based on the perceived need for vengeance. It is grounded in religious dictum of "an eye for an eye."

    It's morality based and looks to the past.

    Our Supreme Court has said described retribution, as "an expression of society's moral outrage at particularly offensive conduct."

    Another SC opinion refers to it as society ensuring the offender gets his "just deserts."

    In Furman v. Georgia,  (1972) Justice Potter Stewart, who thinks retribution is fine, described it as)

    The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy--of self-help, vigilante justice, and lynch law.

    In the U.S. the purposes of sentencing, by statute, are:

    The court, in determining the particular sentence to be imposed, shall consider--
    (1) the nature and circumstances of the offense and the history and characteristics of the defendant;
    (2) the need for the sentence imposed--
    (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
    (B) to afford adequate deterrence to criminal conduct;
    (C) to protect the public from further crimes of the defendant; and
    (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

    Note the absence of the word "retribution."  The US Sentencing Commission lists the purposes of the guidelines as "just punishment, deterrence, incapacitation, and rehabilitation)-- again, no retribution.


    "just punishment" (5.00 / 1) (#54)
    by Reconstructionist on Wed Oct 22, 2014 at 10:26:29 AM EST
     can be (and is)  viewed as incorporating the concept of retribution. The lack of the specific word in  18 USC § 3553 does not mean Congress has repudiated the concept.

    Not really (none / 0) (#49)
    by jbindc on Wed Oct 22, 2014 at 07:35:15 AM EST
    I don't know why I linked that whole quote (none / 0) (#50)
    by jbindc on Wed Oct 22, 2014 at 07:35:50 AM EST

    That may well be, (none / 0) (#32)
    by Zorba on Tue Oct 21, 2014 at 05:09:27 PM EST
    But I don't agree with "retribution."
    I would prefer "restorative justice."
    That may well be due to my background in behavioral psychology and special education, but that's the way I feel.

    I consider his punishment restorative (none / 0) (#40)
    by Militarytracy on Tue Oct 21, 2014 at 08:10:51 PM EST
    The community has to know that a prison sentence will be served for such acts when an individual is found guilty.  Restorative also in that for most of us, Mr. Pistorius has been negligent with firearms in the past.  The law has afforded him warnings about this that seemed to have little or no affect, and now he has taken an innocent life. I don't know any other way at this time to restore Mr. Pistorius' firearm judgement other than some time in prison.

    I don't object to (5.00 / 1) (#41)
    by Zorba on Tue Oct 21, 2014 at 08:50:43 PM EST
    OP going to jail. He should be doing more time than five years. What I object to is the word retribution.  It smacks too much of vengeance/revenge.  That's not what a justice system should be, IMO.
    Punishment, yes, deterrence, yes, and rehabilitation.  And restoration.
    And, as I said in a previous comment, a whole lot of intensive anger management therapy.
    I think what we are speaking about may be mainly a matter of semantics.

    Oddly MT I agree with both you and J (5.00 / 1) (#42)
    by ZtoA on Tue Oct 21, 2014 at 09:01:02 PM EST
    "restorative" for society is not quite the same thing as "retribution" tho.

    This seems like a rather unfair sentence, but what leads-- popular culture/sentiment or the law?

    IMO the legal system(s) will not be fair (completely). No systems have ever been completely fair. What I have learned on this blog is that legal systems follow certain rules of evidence and proving, and that the making of laws is of vital importance. If his case can set a new tone for less retribution then IMO that is OK. BTW I don't feel like the Z case was the same in that regard.


    I am okay with a prescribed (5.00 / 1) (#43)
    by Militarytracy on Tue Oct 21, 2014 at 09:16:45 PM EST
    Penalty for a specific wrong.  That is what I associate retribution with.  And I feel that form of retribution is a part of restoration for the community.  We are able to have community because we have trust in our "system", and a prescribed penalty helps to keep that trust.  Granted, there are deviations in all systems, and those can challenge community and sometimes repairs must be made to heal trust and continue to maintain community.

    MT, I agree that challenges are (5.00 / 1) (#44)
    by ZtoA on Tue Oct 21, 2014 at 10:17:33 PM EST
    always being made to the social thinking of the day.

    The fact that celebrities (with enormous social focus and earning potential) have been held to a different standard is being discussed worldwide in this case.

    My hope is that this case will not just follow that old pattern but will lead into a more balanced pov where offenders (criminals) (and those who break laws) are not jailed for long periods of time. We have evolved over the centuries tho.

    I am not against long, even lifetime, jailing tho (don't kill them in retribution tho - capitol punishment) . I have personal experience where I think permanent jailing of a person who kills another should be kept out of society. Maybe I am too lenient about this tho. I tend to fall on the side of protection for people, including the perp.


    I am so sick of guns and gun violence (5.00 / 1) (#51)
    by Militarytracy on Wed Oct 22, 2014 at 08:21:38 AM EST
    I think they ought to just throw away the key :)  It's one of my "issues" right now.  I'm not sure a short stint in prison will have any affect on Mr. Pistorius and his gun problem.

    Is "consequences" (5.00 / 3) (#30)
    by sarcastic unnamed one on Tue Oct 21, 2014 at 05:00:29 PM EST
    a more acceptable term?

    Also, maybe the judge's wisdom comes from reading the wiki entry for "Criminal procedure in South Africa":

    The main purposes of sentencing are retribution, deterrence, prevention and rehabilitation.

    What a hue and cry that term would raise (none / 0) (#36)
    by oculus on Tue Oct 21, 2014 at 06:49:13 PM EST
    in the U.S.

    actually I mistook the word (none / 0) (#47)
    by Jeralyn on Wed Oct 22, 2014 at 03:56:48 AM EST
    prevention for punishment. She said     The purposes of sentencing are retribution, deterrence, prevention and rehabilitation. My mistake.

    I Would Suggest Simon... (5.00 / 4) (#11)
    by ScottW714 on Tue Oct 21, 2014 at 12:39:48 PM EST
    ...look-up an eye for an eye.  5 years, possibly out in less than 1, for a murder is not anywhere near an eye for an eye.

    I noticed that his entire argument is about Oscar's ruined life, not once did he mention the lives he ruined, including Reeva's.

    That was probably the worse case for not jailing Oscar I have read.


    I think it was a fair decision (none / 0) (#9)
    by ZtoA on Tue Oct 21, 2014 at 12:03:35 PM EST
    "easy" or not, she had more to consider than just punishment and restraint. He may not be rich, at the moment, but he still is a celebrity. Just my lay-person's pov.

    She then says retribution is not the same as vengeance. If sentences are too lenient, people may take the law into their own hands and the administration of justice will fall into disrepute.

    her verdict, I think the long winded explanation of the sentencing really does help to mollify a lot of the public's potential anger at the sentence.

    After hearing all the ins and outs of the competing interests and information the judge had to sift through, I think many/most who care about the whole thing become somewhat placated.

    And like I also said previously, I think OP, like OJ, committed a crime of passion, and therefor has great potential to be a continuing danger to society, or at least any future love interest.

    I would be interested in what specific rehabilitation he will undergo that would make him choose not to act out his base instincts if/when he is angered by a future lover.

    Probably Won't Hurt... (none / 0) (#13)
    by ScottW714 on Tue Oct 21, 2014 at 02:01:38 PM EST
    ...that he can't own any guns, which from what I understand in SA, is a pretty serious offense if violated.

    I'm not convinced it was on purpose, but I am not convinced it was a mistake either.  Either way, 5 years is pretty light for taking a life no matter what he thought.

    I think part of the rehab, if let out early, should involve some serious interaction with the community he feared enough to blindly shoot into a door with the intentions of killing someone.


    OJ didn't need a gun. (none / 0) (#14)
    by sarcastic unnamed one on Tue Oct 21, 2014 at 02:32:51 PM EST
    Ya, I am pretty much convinced that it was on purpose; that he know it was her in his bathroom and he knew exactly where she was in that bathroom for him to aim at.

    OJ Had Legs... (none / 0) (#17)
    by ScottW714 on Tue Oct 21, 2014 at 03:00:01 PM EST
    ...and even though it sounds like a joke, it's not.  From, at least the defense perspective, he is at a disadvantage that makes him hyper scared of intruders.  So not having a gun, or having one illegally, is probably a hell in it's own right for him.  You know, once he gets out of prison.

    That is of course if you buy into it, you don't, and I am not far behind.

    It seems to me if he had a knife, he would have either not gotten through the door, or if he had, it would have been painfully obvious he did not think she was a burglar.


    Here's a little mental exercise (5.00 / 1) (#18)
    by jbindc on Tue Oct 21, 2014 at 03:05:26 PM EST
    Despite what the conflicting witnesses said, and of course, OP would never say anything about this, are we to believe that he actually never heard her scream in the bathroom?  Or that he wouldn't say, "Reeva, is that you?" before blowing through the door like Rambo?

    His story is so unbelievable that it defies credulity, but 5 years seems like a fair punishment.  Even her family has stated that they think it was fair and justice was served.


    I'm a Little Shocked... (none / 0) (#22)
    by ScottW714 on Tue Oct 21, 2014 at 03:35:27 PM EST
    ...that you are cool with 5 years if you believe it was on purpose.  Or is 5 years OK with the crime he was found guilty of ?

    I think 5 is good for the crime and I sure hope he spends at least 3 in jail.  Giving a 5 year sentence and letting him out in 10 months is absurd.  If you want him locked up for 10 months, give him a year, not 5.

    I hear what you are saying, but there is no way to know what she was thinking, and if they weren't fighting maybe she was scared to say anything thinking to herself it may have been a burglar.  Or if she was sleeping, too dazed to even realize what was happening.

    If I knew for a fact they were fighting, then I think I could come over to your side.  But it doesn't matter what I think, I am just glad that people still go to jail when they accidentally shoot someone.


    I'm not OK that he only got 5 years (5.00 / 2) (#23)
    by jbindc on Tue Oct 21, 2014 at 03:41:08 PM EST
    for deliberately taking a life (and no, while he wasn't convicted of murder, he DID deliberately shoot through the door intending to hit SOMEONE).  But based on what he was found guilty of, and the fact that the prosecution only wanted 10 years (shocking), and the defense thought 16 hours of community service and confinement in his uncle's nice house (even more shocking and offensive), 5 years seems about right.  But I agree with you- getting out in 10 months is ludicrous, but I guess that's how SA law works.

    I was really afraid he was going to get away scot-free (if you will pardon the pun) because of his little acting jobs.


    I would have preferred (5.00 / 1) (#29)
    by Zorba on Tue Oct 21, 2014 at 04:59:14 PM EST
    10 years.  But given the fact that the prosecution, shall I say, "scr*wed the pooch," (as they did in this country in the OJ trial), I'm amazed that he got any time at all.
    While, as I said in a previous comment, I really don't think that "retribution" should be the first thing  (or anything) that a civilized state should be considering, I do think that part of OP's sentence should have included, both in prison, and afterwards, intensive anger-management therapy.  He very clearly has a problem with this.  
    If OP does not learn how to get a handle on his anger (and, perhaps, his sense of some kind of entitlement), he may very well present a continuing danger to any future intimate partners.  

    As discussed in prior posts (none / 0) (#20)
    by NYShooter on Tue Oct 21, 2014 at 03:20:26 PM EST
    I think this case is similar to many domestic violence cases.

    Most men, when they lose their tempers, and smash their spouse/girlfriend in the face don't begin the confrontation with that in mind.

    The difference here was that he had a loaded gun handy, and not just a fist.

    Actually, the dis-similarity that I see (none / 0) (#21)
    by sarcastic unnamed one on Tue Oct 21, 2014 at 03:33:38 PM EST
    is that most men/people who have a gun handy and lose their tempers in a confrontation with spouse/significant other, do not go get the gun and kill their spouse/significant other with it.

    making a statement (none / 0) (#24)
    by NYShooter on Tue Oct 21, 2014 at 04:07:24 PM EST
    refuting a position that no one has stated is called constructing a "straw man."

    Was my comment not clear?


    Making a statement (5.00 / 1) (#27)
    by sarcastic unnamed one on Tue Oct 21, 2014 at 04:53:54 PM EST
    that explores a different but related point is called a conversation.

    ... considered in full, it was pretty apparent that they couldn't even agree whether or not there was an argument in the Pistorius residence prior to the shooting. It was upon that very supposition that a prior argument had taken place, which the prosecution's contention of premeditation rested.

    Judge Masipa rightly refused to cherry-pick whose testimony she liked, and whose she found suspect. When she first recounted that testimony before rendering her verdict, she specifically noted the obvious inconsistencies of various neighbors who testified as witnesses for the prosecution, which were particularly striking when juxtaposed against the very real timeline of that night's events.

    Personally, I believe that Oscar Pistorius' propensity to rely on firearms for protection rested in both his documented fascination with guns and his much-less discussed paranoia about home invasions by black Africans, which has long been a staple in South Africa's white Afrikaaner communities, even before majority rule was finally achieved in 1994.

    (When we were in Johannesburg and Pretoria in Nov. 2010, the homes we saw in the well-to-do, mostly white Afrikaaner neighborhoods of those two cities often looked like those one would see in suburban L.A., Chicago or Atlanta -- save for the 12-ft. high brick walls, barbed wire, and high-tech alarm and electronic surveillance equipment on copious display. And mind you, these homes were already inside well-guarded and gated communities! I found the sight to be simultaneously creepy and over-the-top.)

    Indeed, the ominous spectre of black violence perpetrated against whites was invoked constantly as one of Apartheid's primary raisons d'etre, during the many decades that oppressive white minority regimes held power. And as an Afrikaaner, Oscar apparently swallowed that dubious missive hook, line and sinker, and it ultimately cost him dearly.



    It cost (5.00 / 4) (#39)
    by Zorba on Tue Oct 21, 2014 at 08:01:43 PM EST
    Reeva Steenkamp even more.  She's dead.

    All too true, Zorba. (none / 0) (#45)
    by Donald from Hawaii on Wed Oct 22, 2014 at 02:37:10 AM EST
    Further, whatever remorse and emotions that Oscar Pistorius must be feeling right now over his incarceration, simply pales in comparison to the pain and agony he's caused June and Arnold Steenkamp with the death of their young daughter.

    We pledge and strive to do our best in raising our children, nurturing them, keeping them safe and preparing them as well as we can for that inevitable day when they must make their own way in this world. We never really consider the remote but still very real possibility that we might actually outlive one or more of them, because that's just not the natural order of things.

    I can't even begin to walk in the Steenkamps' shoes right now and speculate what it must be like to lose a child at someone else's hand. The void in their lives must be deafening at times. I can only hope that today can bring them a sense of closure, so that they might one day have some peace of mind.



    Huh? (none / 0) (#56)
    by Reconstructionist on Wed Oct 22, 2014 at 10:40:36 AM EST
    Judge Masipa rightly refused to cherry-pick whose testimony she liked, and whose she found suspect.

      Other than using the perjorative cherry-pick,  you describe the essential role of the finder-of-fact in a trial. I believe, to the extent we assume for discussion this was a well-reasoned decision, she merely found none of the conflicting "ear-witness" testimony sufficiently reliable and credible (i.e., she rejected it all regardless of whose version it favored). Therefore, she based her decision on his testimony, the physical evidence and what she considered reasonable inferences therefrom.


    this may be unfair (none / 0) (#53)
    by Reconstructionist on Wed Oct 22, 2014 at 09:11:12 AM EST
    because I admittedly have a very limited and narrow perspective of the S.A. court system, but it strikes me as exceedingly odd.

      It brings to mind a Swiftian satire where one visits an isolated country where the institutions and customs are  recognizable as broadly  similar to what is familiar but the faults are exaggerated to highlight absurdities.

      That, or maybe that Star Trek episode where the inhabitants of the planet intended to model their society on Earth but their knowledge of Earth was based on a book about Roaring 20s Chicago left behind by earlier visitors from Earth.  

    Oscar's first night in his new pied-ŗ-terre: (none / 0) (#57)
    by Mr Natural on Wed Oct 22, 2014 at 11:44:51 AM EST
    Don't get too excited.  Most of the photos in this article are generic pics of life at the Kgosi Mampuru prison.  From the looks of the searches, I'm guessing that inmates aren't allowed guns under the bed.