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cellioThis is based on the end of parshat Emor, Lev 24:10-23.
This week's parsha lays out some basic principles of law. We're
told that murder and blasphemy are capital offenses, and that when
one commits a crime against someone else, the same thing is done to
him -- wound for wound, eye for eye, and so on. (Life for life isn't
in this passage, though it comes up elsewhere.)
Another principle from this week's parsha is: one law for everybody. Last week's parsha told us not to favor the rich or the poor in judgement, and parshat Shoftim this summer will have plenty more to say about this. It all boils down to this: we're all equal in the eyes of the court. This seems like an idea we can all get behind; in fact, it's often a rallying cry when we (quite rightly, IMO) speak out about how the poor and non-white are sometimes treated by our courts. But I think sometimes we don't want to face all of the other implications of this principle.
"One law for all" means that all murderers should be sentenced under the same guidelines. But lots of Pittsburghers want special vengeance for our three slain police officers. I've heard people who are normally opposed to the death penalty say we should make an exception in this case. I cringe over this crime too; it's especially wrenching when those who protect us are attacked for doing that job. But are some victims really more valuable than others, and does that make some murderers more worthy of severe punishment than others? We see this when the victim is a child too; is not the adult victim just as dead? Other factors might influence the sentence, but "one law for all" calls for the same sentence for the same crime, regardless of who the victim is.
At the other end of the spectrum, many people want to change the rules for the eleven-year-old who killed his father's girlfriend recently. That he killed her appears not to be in question, so what the jury has to decide is if he did it willfully. If he did, why is his age relevant? And if he didn't, why would his age matter? "One law for all" means murder is murder whether the killer is 11, 40, or 90.
Sometimes, as with the police officers, we want to set aside "one law for all" out of anger. More often, it seems to me, we want to set it aside out of pity, as with the eleven-year-old killer. But when we bend the rules in favor of the poor, weak, or juvenile, what we are really doing is bending the rules against everyone else. Good intentions do not ease the resulting injustice.
This week there were news reports of a pregnant Briton who was facing a death sentence for drug trafficking in Laos. (The penalty has since been reduced.) We've heard quite an outcry against the sentence because she's a woman, or pregnant, or a westerner. We've heard this sort of thing before too, when westerners face shari'a courts in Islamic countries or corporal punishment in Singapore. But it's rare to hear such outcries when the accused are just "regular people" in their home countries. We hear it now for women in Islamic countries, I think because Americans have become more attuned to it in the last eight years, but I think this is the exception. Before this week I didn't even know that Laos had the death penalty. And Singapore still has corporal punishment (as do other countries); when's the last time you heard anyone object to it?
I am not saying we should not be outraged over the Laos situation. We should. But our outrage should have nothing to do with who the accused is. We should be outraged that a victimless crime, drug trafficking, carries a possible death sentence. We should be equally outraged if the person facing the firing squad is Laotian, or Saudi, or Canadian. If the law is really that this is a capital offense, then the British woman deserves no special consideration. If she deserves consideration because that penalty is unthinkable, then everyone facing it deserves that same consideration. That's what "one law for all" means.
"One law for all" applies in other contexts too, not just capital cases. It means we don't reward illegal immigrants with the trappings of citizenship while legal immigrants wait in line; the word "illegal" is important here. It means we don't grant some criminals amnesty so they'll testify against their collaborators, and if we don't need their testimony, they're out of luck. It means we don't send the 17-year-old rapist to a juvenile detention center for six months while his 18-year-old accomplice goes to jail for 30 years. It means we don't pursue corruption charges against lawmakers from one party while turning a blind eye to those from another.
But where is mercy in all of this? Surely none of us wants strict justice; that's scary. The list of offenses in the torah that can lead to death or excommunication is long, and who among us hasn't treaded close to that line at some point? (Blasphemy? Shabbat desecration? Need I go on?) Is that what we want?
The rabbis understood this problem too, and this is probably part of why they legislated the death penalty and "eye for eye" out of existence and instituted fines instead, preserving fair compensation but removing physical punishment. While we're commanded, right after the flood, to set up courts of justice, human courts are inherently flawed so it is wise to limit the damage they can do. But, also because human courts are flawed, I don't think we can be trusted to make judgements about who deserves special mercy and who does not. And that, I think, is why we're told "one law for all" here. If we think the law is too severe, don't apply it selectively -- fix the law!
There is a role for mercy, to be sure. We must show kindness and mercy to our fellow human beings, in everything from giving tzedakah to speaking kindly to giving the benefit of the doubt. We should cultivate these traits when dealing with each other. And we can beseech God, who knows truth we cannot know, for mercy. But what we cannot do is pervert a system of human justice to achieve our goals of mercy. We must find other ways -- and if those other ways benefit everyone and not just special cases, we will have accomplished what the torah teaches us this week.
For the non-locals: police officers, 11-year-old.
(no subject)
Date: 2009-05-11 12:31 am (UTC)I like that quote a lot too. BTW, it's from Dani.
As I understand it, the thinking goes that police officers doing their jobs are prime targets, in a way civilians aren't, so an additional deterrent is need to discourage criminals from compounding their crimes with murder. Whether or not it's effective, and whether or that's a value our society wishes to endorse, are good but separate questions.
This is an interesting point (speaking to the value side).
Children are an interesting case. Can they form intent? And at what age? My argument here is that if intent was in fact formed, I don't care how old you are. Maybe the point is moot; I don't know. I reacted to the story of the 11-year-old because from early news reports (apply usual caution, of course) it sounded pretty clear that this particular killer did have the intent to commit murder, and that surprised me. If that stands up under scrutiny, then I don't think the "but he's a child!" folks will have much of a case. How common is it for someone to understand a serious crime and not understand the punishment? (You know way way more about that than I do. It's not a rhetorical quesiton.)
If we are willing to convict the intentional killer and free the unintentional killer, regardless of age, and we are willing to pursue a standard by which we can measure intent, then we don't disagree. I don't hear you saying that kids should get a free pass. I do hear other people saying that. Now if it can be shown that no child under $age is capable of forming intent, then I'm willing to jump straight to the shorthand. But until then, I think each case needs to be examined, and we need to be willing to pursue the outcome that makes us sad if that's how the facts fall.
Fairness and justice might not be the same ideals, but when justice deviates from fairness it should be for sound reasons. Or, to use your analogy, those gates and stiles should be in logical places. Of course, figuring that out is the hard part.
(no subject)
Date: 2009-05-11 01:05 am (UTC)HAH. I'm like the last clinician on earth to ask questions of about child development.
But regardless, this starts us down the path into one of the most interesting professional/moral-philosophical thickets I know. You say:
I don't hear you saying that kids should get a free pass.
You haven't heard me saying many shoulds at all, yet. :) I'm mostly merely pointing out what I understand the arguments to be, not taking a side.
You haven't heard me say that kids should get a free pass based on their value as kids. However, I can make a pretty compelling argument that there's an entirely other highly non-obvious reason why we should give kids a free pass (more or less). I owe this one to thelastpsychiatrist.com who brought the issue to my attention.
You ask whether an 11-year-old has the comprehension I allude to above, in explaining what legal reason generally argues is necessary for the felon to be meaningfully/effectively punished. Well, if I got out my HumDev textbook, I could tell you what most 11 year olds are intellectually capable of. One of the issues here is that some kids who say they want someone to die don't entirely grasp death: they don't realize that death is forever. (Heck, my HumDev prof was in fact in forensics and spoke of talking to teens down at the county jail who did things like accidentally shoot a friend while horsing around with a loaded firearm, who plead with tears in their eyes for her to tell them that their friend was alright and coming back.)
But I expect neither of us would be much satisfied with that. As you say:
Now if it can be shown that no child under $age is capable of forming intent, then I'm willing to jump straight to the shorthand. But until then, I think each case needs to be examined
We don't care what the average 11yo might understand. We want to know what that them there 11yo understands. If it turns out he's precocious and has been reading Tolstoy in his spare time, you know, I think he probably gets it and could plausibly be tried as an adult. If it turns out he's developmentally delayed and has been struggling to read Dr. Seuss, probably not. If you've granted my argument about competence, you probably agree with this.
So, it logically follows what you and I would need to determine whether this, particular 11yo should be tried as an adult is for him to be assessed by an expert in forensic psychological assessment. Sounds reasonable, right?
Just one problem.
[continued]
(no subject)
Date: 2009-05-11 01:06 am (UTC)Step back ten feet and look at the situation we've just set up:
That the 11yo committed the crime is beyond question. He is guilty. Now, whether or not he will be punished for it as an adult -- life in prison, even execution -- will be entirely determined by a mental health professional.
Not by a jury.
Not by a judge.
By a shrink.
As the Last Psychiatrist writing on Atkins v. Virginia puts it: "Psychiatrists now actually choose the sentence. Not inform the sentence-- choose it."
He goes on to say:No, I don't know a satisfactory solution to this, but it does make a case for saying, "If you're under 18, you're tried as a minor, and we make no attempt to assess your moral capacity."
(no subject)
Date: 2009-05-11 02:05 am (UTC)No, I saw where this was going before seeing your second comment. :-)
But the choices aren't only "expert determines sentence" and "expert is irrelevant". I, from my hypothetical seat in the jury box, do not have the knowledge to directly assess the defendant's capacity for intent and must rely on expert witnesses. I also don't have the knowledge to evaluate the physical forensics, like whether that gun could have fired that bullet from that location and produced that wound, so I rely on expert witnesses. In other situations we could be talking about medical knowledge like how quickly that poison works or how quickly someone would bleed to death from that wound or whatever. There are all sorts of factors that jurors (and judges) are not qualified to evaluate independently. The psychologist should not be special here.
I'm actually surprised that a lone psychologist can have this effect now. Doesn't the other side bring their expert to the ring too? (Don't the lawyers fish until they find an expert who suits their needs?)
While each case has to be evaluated on its own (as we both agree), general statements can still have value in one direction. If it is possible for an 11yo -- any 11yo -- to form intent, then whether this one did is a matter for the jury to decide (along with whether that weapon was fired as described, etc). If we had a threshold that the entire (accredited) field agreed on below which intent could not be formed, we could dismiss cases in that group. (A 3yo is likely safe.) Is there room for professionals to be manipulative? Yes, but they'll all have to do it together and in public. If the AMA published a statement that 12oz of 5%-alcohol beer was not enough to impair the motor skills or judgment of anyone weighing at least 200lbs with a BMI no higher than 25 (I'm making this up, to be clear), then I'd feel just as compelled to take that into account in DUI cases.
No, I don't know a satisfactory solution to this, but it does make a case for saying, "If you're under 18, you're tried as a minor, and we make no attempt to assess your moral capacity."
It's a hard problem, yes. And agreeing on an age is hard too; I've known too many 17-year-olds who were definitely capable of intent to be comfortable with 18 as the threshold. But if I counter with, say, 13, someone else will counter with a study that our psyches don't really form until age 25. I don't know how we as a society decide.
(no subject)
Date: 2009-05-11 06:20 pm (UTC)(no subject)
Date: 2009-05-12 03:40 am (UTC)somewhat off topic
Date: 2009-05-12 12:01 am (UTC)Would Dani mind if I share that quote?
Re: somewhat off topic
Date: 2009-05-12 03:41 am (UTC)