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Andrew Stephen on a quadriplegic’s death sentence

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For those of you who cannot conceive of the US as a cruel country, read the tale of the young quadriplegic condemned to death for possessing marijuana. By Andrew Stephen

If you think that the number of law and order bills in Tuesday’s Queen’s Speech shows that Britain is becoming illiberal and authoritarian, you should look across the Atlantic. There you would see how bad it could be. I sometimes find it hard to describe to British friends just how galactically right-wing this country has become. They always insist that things cannot be as bad here as I say they are, that Britain is moving to the right too, that it is all just because of George W Bush. They have exactly the same reaction when I describe the US as a cruel and sentimental country, as I did in these columns not long ago: nowadays life in Britain, they say, is every bit as cruel as it is in the United States. In short, they do not want to see the negative sides of the US – or, for that matter, to acknowledge that positive aspects to Britain do still exist.

Occasionally, though, something happens that perfectly illustrates the point I am making. If anybody doubts that this is a cruel country – the sentimentality is absent from this story – they should consider the case of Jonathan Magbie, a 27-year-old citizen of Washington until he died in September of this year. What happened to him could never happen, I am convinced, in Britain. Not yet, at least.

Police stopped the car in which Magbie was a passenger last year. He was arrested and finally sentenced to jail in September for being in possession of marijuana. There is nothing at all unusual about being sent to prison for possessing marijuana in this country: in 2003 there were 755,186 such arrests in the US, compared with 597,026 for all violent crimes combined. But Magbie was unusual in several ways: he had never been arrested before, for drugs or any other offences, and he had become a devout Muslim in the period between his arrest and sentencing.

What really singled Magbie out, though, was that he was a quadriplegic. He had been paralysed since he was struck by a car driven by a drunken driver when he was four, and could do practically nothing for himself. He needed medical care for 24 hours a day, 20 of which were provided by nurses. Like the late actor Christopher Reeve, he was unable to move his lower or upper body; he navigated his motorised wheelchair by directing it with his chin, and needed a Ventilator to breathe. He was presented to President Reagan at the White House 22 years ago, when the chirpy little boy asked: “What are you going to be for Halloween?” “I think I’ll just keep being me,” Reagan replied.

This, though, is a culture of punitive retribution. Even the prosecutor in the case apparently did not think that Magbie should be sent to prison, and pointed out Magbie’s plight to the judge. But Judge Judith E Retchin – I have noticed that the progenitors of institutionalised cruelty are often women, unleashing the powers society has invested them with on men – had other ideas.

In a procedural hearing on 14 January, she asked his lawyer: “Where is Mr Magbie?”

The exchange continued:

Lawyer: “Your Honour, I wondered if the court would consider waiving his presence. He was hospitalised . . . he was released earlier in the week, having had a bout of pneumonia.”

Retchin: “No. I would not waive his presence. He needs to be here.”

Lawyer: “I’ll see if I can get him here later in the day, your Honour. But could we waive his presence just for purposes of scheduling matters, and then I’ll have him -”

Retchin: “I’ll issue a warrant for his arrest. It will be no bond as to Mr Magbie [sic].”

In the car in which Magbie was arrested, there were four grams of crack besides the marijuana. There was also a 9mm semi-automatic pistol and 20 rounds of ammunition. But it was literally impossible for Magbie to place a gun in the car. He could not, in any way, have used a gun and could not himself have secreted drugs in the car. The driver of the Hummer in which they were travelling, Bernard Beckett, was charged with possessing both crack-cocaine and the Glock pistol. The same initial charges against Magbie were dropped and he was charged only with possessing marijuana – which he smoked to help him cope with the Spasticity of his limbs and because “it makes me feel better”.

But Judge Retchin was having none of that. “As long as it’s against the law, you’re not permitted to do it, Mr Magbie,” she told him. Though he was not charged with the firearms offence, Retchin decided to take her assumption of guilt into consideration when sentencing him: “Mr Magbie, I’m not giving you straight probation,” she said. “Although you did not plead guilty to having this gun, it is just unacceptable to be riding in a car with a loaded gun in this city.” She sentenced Magbie, who was barely five foot in height and weighed less than nine stone, to ten days in prison.

In effect, it was a death sentence.

Magbie was taken that day, 20 September, to the DC jail – where he was supervised by some of the 15,000 employees of the Corrections Corporation of America, a Nashville firm hired to run prisons in DC and in 19 states across the country. Seven hours later, he was having difficulty breathing without his ventilator and was taken to the “Greater Southeast Community Hospital” (previously known as the DC General Hospital). He was returned to the prison’s “CTF” – the Correctional Treatment Facility – where his condition continued to deteriorate over the following three days.

With his lips “dry and whitish”, Magbie was then taken to hospital again, where he soon died of “acute respiratory failure following dislodgement of tracheotomy tube placed for treatment of respiratory insufficiency”. Who or what dislodged his breathing tube – and whether it was in the jail (which had an emergency button that Magbie was unable to activate), in an ambulance on his final trip to hospital, or in the hospital itself, is unclear. What is clear is that, once his tube was dislodged, Magbie was not in a position to do anything about it himself.

Could all this happen in Britain? I doubt it. Retchin is a former federal prosecutor who became a superior court judge 12 years ago, and is part of a breed that has not yet come to the UK: careerist judges anxious to make a name for themselves and to do so by flexing the muscles of authoritarianism. In a society that frequently invokes “swift justice” to deal with paedophiles and the like, they are ready to inflict their will on powerless defendants – and to be powered by the belief that they represent the force of the country when they do so.

Indeed, I suspect that people such as Judge Retchin feel very powerful and righteous when they impose swingeing sentences on the likes of Magbie. He was black, and had no powerful friends who could neutralise the potency of a Judge Retchin in full spate. Now she says that Magbie’s death was “such an unintended tragedy” – clearly true, but not necessarily one in which there is no culpability.

To my British friends, I therefore reassert that this is a cruel and sentimental country. What happened to Jonathan Magbie may not have been sentimental, but it was decidedly cruel and callous.

And, I regret to say, it was all very American.
This article first appeared in the New Statesman. For the latest in current and cultural affairs subscribe to the New Statesman print edition.

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