Emor

[cellio]

This is the d'var torah I gave yesterday. I expect some of my readers to disagree rather strongly, just as I expected (and got) some disagreement in the minyan. If you can't take some risks among friends, where can you?

This 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.

Comments

[siderea]

[continued]

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:

I'm fairly certain the APA didn't think about this when it filed its amicus brief. They never think these things through, because they believe they are an instrument of social change. But, like forced medication to render competent to be executed, psychiatrists have now boxed themselves into a corner. It is now solely up to them-- and their "tests"-- to decide who gets executed.

Consider the ethical dilemma for a forensic psychiatrist asked to evaluate for MR [mental retardation]: given that the defendant can fake MR; and given that finding the defendant does not "have" MR--or suspecting that he is faking MR-- is exactly equivalent to sentencing him to death, can there be any other medically ethical outcome than finding they are MR? Think well. In other words, an answer is forced, an answer is created, simply by asking the question. The situation here is identical to the judge leaning over and asking, "Do me a favor and decide for me. Should I hang him or put him in prison?" Um, well, gee, it's up to me? um, since you asked...

I know, doctors are going to inwardly smile, pat themselves on the back for their cleverness; after all, the goal is to abolish the death penalty for everyone, one group at a time. And I am sure there are organizations who will actively, openly, exploit this loophole.

Notwithstanding the laudability of this goal, this isn't about the death penalty, it's about who decides the death penalty.

Just remember, when society allows psychiatrists to decide who lives or dies, then psychiatrists will also decide who dies or lives. I want everyone on the planet to take a very deep breath, and think about this.

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."

[cellio]

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?

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.

[jerusha.livejournal.com]

Well, there's also the difference, which I think siderea is alluding to, between intent and ability to fully comprehend the consequences of one's actions. (I refer here only to "natural", or logically necessary, consequences, not any consequences that may be imposed by the justice system.) The 11 year old may want the interloper 'dead', without really fully grasping how irrevocable and permanent 'dead' is. (See the anecdote from siderea's HumDev professor, in the sixth segment of her first reply. Yes, I know that anecdote is not the singular of data; however, my understanding is that the actual data show the same result.)

[cellio]

Yeah, I don't know how you figure out in any individual case whether someone understands that dead is dead. I doubt there's a clear rule, whether based on age or some mental/developmental factor.