Justice?

Albert Camus, the novelist and member of the French Underground during the occupation of France by the Germans, died at the young age of 46 in an automobile accident. Throughout his life he was opposed to capital punishment. He sensed that his opposition would be ineffectual, but he thought it worthwhile none the less. Indeed, he championed the view that despite the absurd nature of human existence one ought always to fight against what one thought was evil. Once one stops fighting he simply takes up space. He thought capital punishment was evil.

A clue to the depth of that feeling is found in his autobiographical novel The First Man, which was published after his death by his daughter, working from notes scribbled in the margins of the hand-written manuscript. In that novel he tells of an experience his father had early in the child’s life when he went to a public hanging of a man who was reputed to have killed his employers and three children. There was widespread hatred directed toward the killer and the trial was quick and public hanging was the verdict. Speaking of himself in the third person, as “Jacques,” Camus describes the scene afterwards:

“. . . Jacques’s father was livid when he came home; he went to bed, then got up several times to vomit, and went back to bed. He never wanted to talk about what he had seen. And on the night he heard the story, Jacques himself, when he was lying huddled on the side of the bed . . . choked back his nausea and his horror as he relived the details he had heard and those he imagined. And throughout his life those images had followed him even into his sleep . . .”

I have written about capital punishment before though it is a topic that seems to be only of mild interest to people for the most part — perhaps because we don’t have public executions — yet. There has been discussion of such a possibility, but even in this blood-lusting culture so far it has remained only a dream in the hearts and minds of those who think justice is all about revenge. Because, in a word, that is was capital punishment is: revenge. It is assuredly not justice, especially in an age when we discover growing numbers of cases of false identity and miscarriages of the legal procedures that incarcerate (and execute) men, mostly black men, only to discover that they were innocent. Indeed, it is precisely the likelihood (and I stress that term) of human error that undermines any possible argument for taking the life of one human being because he presumably took another or other lives. If humans were infallible, which we assuredly are not, there might be a case for capital punishment. But because we are not and because we tend to let our passions and raw emotions dwarf our judgment, there can be no possible argument for taking a human life to avenge another life.

I have often thought about this on a deeply personal level: how would I react if my wife or my sons were killed and the killer was caught and brought to trial? Would I want that person executed in order to right a wrong? It’s hard to say, but I expect I wouldn’t be thinking clearly and would simply want someone punished and punished soundly for what they did. But that would be my emotions taking control. In my mind, when it is clear, I know that it would be wrong. Taking a human life under any circumstances is wrong and cannot be justified. It can be rationalized, we can find bad reasons for doing what we want to do on a visceral level, but it cannot be justified.

Doing The Right Thing

There is a fundamental distinction in ethics that I have never seen anyone make  — not even the professional philosophers who study the subject. That is the distinction between what is right and what a person would actually be likely to do in a given situation. Indeed, I have seen professional philosophers quibble with Kant, for example, and dismiss his entire ethical edifice on the grounds that no one could possibly act that way in fact. But, as Kant himself said many times, he was not doing “anthropology,” he was doing philosophy. And the job of philosophers in ethics is to try to determine what is right, not what people would actually do. We can take it as a given that people don’t always do the right thing.

Take the case of capital punishment, which I posted about in a recent blog. If my wife or child were killed and the police caught the killer who was then tried and found guilty I would almost certainly want that person drawn and quartered. That’s what I would want — because I am angry and resentful. But I have never seen an argument yet that persuaded me that capital punishment is the right thing to do — especially, as my friend BTG points out, now that DNA tests are showing how often we find the wrong person guilty. All of the arguments, including Francis Bacon’s pithy statement quoted recently about revenge being a sort of “wild justice,” tend the other way: capital punishment is institutionalized revenge. It is brutal and may make us feel good — “give us closure,,” as we like to say — but it is not right.

Admittedly, the attempt to determine in a given case whether an act is right or wrong is immensely difficult. It is so difficult that many intelligent (and especially unintelligent) people shrug their shoulders in dismay and then abandon the effort. But the attempt to determine right and wrong is like a jury trial: there is a correct answer (the defendant is either guilty or he is not, he can’t be both guilty and innocent) and we simply need to think about it until we can see what the correct answer is. Similarly, a given act is either right or wrong, it cannot be both. We will never reach the plateau of certainty in ethics — as Aristotle famously said it is the mark of an educated person to look for the degree of precision that the subject allows — but we can reach a tentative answer that stands up to criticism. That’s the best we can do, and it is a hellova lot better than shrugging one’s shoulders and giving up, resorting to a sort of mindless relativism where all ethical answers are matters of opinion: you have yours and I have mine.

This sort of relativism, as I have noted in previous blogs, leads us away from the challenge of trying to find the right answer — like raising one’s hand and excusing oneself from a jury trial. If we stay around and weigh the evidence, look at the issue from both sides, and think about possible courses of action, we might reach a level of confidence that seems solid and assured, at least until further examination. From where I sit, capital punishment is wrong — even though I may want to see it done if someone close to me were murdered. What I want and what is right are two entirely different things and the two only coincide perfectly in the case of the Saint. Or, perhaps, Immanuel Kant.

Ooops! My Mistake!

How can anyone read stories like this one and still defend the death penalty? If juries make one mistake in 1000 it forever refutes any attempt at rationalizing the taking of a life on the grounds of a trial where human error is ever-present.

NEW YORK (AP) — From the day of his 1989 arrest in a deadly New York City shooting, Jonathan Fleming said he had been more than 1,000 miles away, on a vacation at Disney World. Despite having documents to back him up, he was convicted of murder.

Prosecutors now agree with him, and Fleming left a Brooklyn court as a free man Tuesday after spending nearly a quarter-century behind bars.

Fleming, now 51, tearfully hugged his lawyers as relatives cheered, “Thank you, God!” after a judge dismissed the case. A key witness had recanted, newly found witnesses implicated someone else and prosecutors’ review of authorities’ files turned up documents supporting Fleming’s alibi.

The exoneration, first reported by the Daily News, comes amid scrutiny of Brooklyn prosecutors’ process for reviewing questionable convictions, scrutiny that comes partly from the new district attorney, Kenneth Thompson. He said in a statement that after a month-long review, he decided to drop the case against Fleming because of “key alibi facts that place Fleming in Florida at the time of the murder.”

From the start, Fleming told authorities he had been in Orlando when a friend, Darryl “Black” Rush, was shot to death in Brooklyn early on Aug. 15, 1989. Authorities suggested the shooting was motivated by a dispute over money.

Fleming had plane tickets, videos and postcards from his trip, said his lawyers, Anthony Mayol and Taylor Koss. But prosecutors at the time suggested he could have made a quick round-trip plane jaunt to be in New York, and a woman testified that she had seen him shoot Rush. He was sentenced to 25 years to life in prison and was due to have his first parole hearing soon.

The witness recanted her testimony soon after Fleming’s 1990 conviction, saying she had lied so police would cut her loose for an unrelated arrest, but Fleming lost his appeals.

The defense asked the district attorney’s office to review the case last year.

Defense investigators found previously untapped witnesses who pointed to someone else as the gunman, the attorneys said, declining to give the witnesses’ or potential suspect’s names before prosecutors look into them. The district attorney’s office declined to comment on its investigative plans.

Prosecutors’ review produced a hotel receipt that Fleming paid in Florida about five hours before the shooting — a document that police evidently had found in Fleming’s pocket when they arrested him. Prosecutors also found an October 1989 Orlando police letter to New York detectives, saying some employees at an Orlando hotel had told investigators they remembered Fleming.

Neither the receipt nor the police letter had been provided to Fleming’s initial defense lawyer, despite rules that generally require investigators to turn over possibly exculpatory material.

Patricia Fleming, 71, was with her son in Orlando at the time of the crime and testified at his trial.

“I knew he didn’t do it, because I was there,” she said. “When they gave my son 25 to life, I thought I would die in that courtroom. Still, I never did give up, because I knew he was innocent.”

On Tuesday, Jonathan Fleming left court with an arm around his mother’s shoulders and the process of rebuilding his life ahead of him.

Asked about his plans, he said: “I’m going to go eat dinner with my mother and my family, and I’m going to live the rest of my life.”

Now, how does the State of New York go about giving the man twenty-five years of his life back?

One Mississippi

The following news story from HuffPost warrants a comment or two:

Convicted double murderer Willie Jerome Manning, who has been on death row for nearly two decades, is set to be executed Tuesday, after being denied a DNA test that could save him from the execution chamber, the New York Times reports.

In a 5-to-4 decision in April, the Mississippi Supreme Court ruled that there was “conclusive, overwhelming evidence of guilt” and that DNA tests would not “preclude his participation in the crimes,” according to the Times.

But in a dissenting opinion Justice James W. Kitchens argued that “whatever potential harm the denial seeks to avert is surely outweighed by the benefits of ensuring justice by the scientific analysis of all the trace evidence.”

Dov Fox of the Georgetown University Law Center says that “no physical evidence has ever linked Manning to the crime,” in a Huffpost blog.

Readers of these blogs who have followed closely over the past months (!) know I am opposed to the death penalty. This story simply highlights the reasons. I do realize that there are cases in which the evidence is “overwhelming,” but there are too many cases like those of Willie Manning: people (especially black people) who have been misidentified and linked by a web of circumstantial evidence to a crime he may or may not have committed. It has always seemed to me that the possibility of human error — which is at its highest when people are excited or nervous — trumps whatever evidence has been brought forward. In a word, I have always thought that as a caring people we should err on the side of compassion and even possible error. I would prefer to see a guilty man go free than to see an innocent man die a gruesome death at the hands of an executioner. I cannot get around the notion that much of our desire to execute people is nothing more or less than a remnant of our primitive blood lust — the sort of thing that surfaces in the outcries of angry protesters at the funeral parlor where the remains of the Tamerian Tsarnaev were recently claimed by his uncle who wants to give him a decent burial.

But in Manning’s case the conclusion that the court is simply blind seems obvious even to those of us who may not know all the details. If Dov Fox is right and there is “no physical evidence” linking Manning to the crime of which he was convicted, and, further, if a DNA test could provide convincing evidence one way or the other, then it seems a no-brainer that the test be done and the man be given every opportunity to prove his innocence. The thought of executing a man after two decades on death row on the basis of the decision of a seemingly biased court must disturb the most tranquil of minds. Whether or not a person is opposed to the death penalty on principle, as I am, one must admit that Manning’s case deserves a stay of execution until the DNA test is done. This decision was simply wrong.

Oops! My Mistake!

The following brief Yahoo News  story is worthy of extended comment, it seems to me:

NEW YORK (AP) — A New York City man whose murder conviction was overturned after 23 years in prison has suffered a heart attack on his second day of freedom.

David Ranta’s lawyer tells The New York Times (http://nyti.ms/102uUVo ) the former inmate had a serious heart attack Friday night and is being treated at a New York hospital.

Ranta walked out of jail Thursday after a judge threw out his conviction in the 1990 killing of a Brooklyn rabbi.

Brooklyn prosecutors had recently concluded Ranta’s prosecution in the death of Rabbi Chaskel Werzberger was fatally flawed.

Werzberger was killed by a bandit fleeing a botched robbery. One witness said a police lineup that helped convict Ranta had been rigged.

Ranta is 58. He told reporters Thursday that his new freedom was emotionally overwhelming.

It is terribly sad that Ranta had a serious heart attack after his release from prison. But, of course, he never should have been there in the first place. The possibility of human error in murder trials seems to me to make the case against capital punishment. If this man had faced execution for committing the murder he was accused of, his story never would have been told. But the fact that people do make mistakes and that such certainties as “witness” accounts in cases where emotions run high and people are confused cannot be said to be all that certain renders every “guilty” verdict questionable. The only plausible arguments in favor of capital punishment are the costs of long-term incarceration and, of course, the revenge factor. But these arguments simply do not hold up to scrutiny in the face of events like the mistake that was made in the case of David Ranta.

I have a friend who many years ago was working as a bank teller when the bank was held up. She told me about one of the other tellers who had to deal with the thief directly, actually handing him the money at gun point. The woman swore she would never forget the man’s face. Sure enough, a few weeks later she was called in to identify a man the police thought might have held up the bank. He was in a line-up and with little delay the woman identified the man she was certain had held up the bank. Only she didn’t: the man she identified was a policeman who was just filling out the lineup. It was not the bank robber whose face “she would never forget.” People do forget. Our memories play tricks on us, especially when we are under stress. And we know that racial bias often enters into judgments of this sort as well. This has always seemed to me to be an unassailable argument against capital punishment. If humans were infallible there might be strong reasons to take another life, but as long as we are subject to mistakes the case seems to me to fall apart. Just ask David Ranta’s family.

Punishment

In a recent blog I quoted Tiger Wood’s statement that stroke penalties in golf for slow play were unacceptable because they would cost the players money. I want to pursue this a bit and talk about punishment in general. It does seem to me that the purpose of punishing someone for breaking the rules, or the law, is to make them want never to do that thing again. In golf, if players don’t want point penalties, then that would be an appropriate penalty precisely because they don’t want it: it would deter them from playing slowly. If we levied a penalty the players thought acceptable, it wouldn’t be effective. Indeed, it wouldn’t be a penalty at all. I sometimes wonder how Tiger ever got admitted to Stanford!

In any case, it raises the question of what punishment is all about. Thomas More, in his remarkable book Utopia, thought punishment ought to improve people, make them better. In our culture, historically, we have operated on the principle of deterrence: punishment ought to deter future undesirable behavior. But we apply this principle in strange ways. If a man robs a bank at gun point, we “put him away” for a few years. It is supposed to keep him from robbing banks in the future — not only while he is in jail. But we know this doesn’t really work, and the culprit is often robbing again once he is back on the streets — having learned new tricks while in jail, no doubt. The principle itself is strange anyway: years in prison for taking money that doesn’t belong to him. It’s the same punishment we dole out for a man who repeatedly beats his wife: doing time. In neither case does the punishment make much sense.

Don’t we like to say the punishment ought to “fit the crime”? Years in prison for beating one’s wife doesn’t seem to fit somehow. Perhaps we ought to put the man in a locked room with two or three other men and have him beaten up until he feels what his wife felt. This, in brief, is the principle Dante operated on in his Inferno: the punishment fits the crime. For example, usurers who were deeper in Hell than murderers since they commit a violent crime “against art, God’s grandchild” sit around a plain of burning hot sand with bags of coins strung around their necks forcing them to watch the bag through eternity — presumably waiting for it to grow larger. After all, that’s what usurers do: they lend money at interest and make the money grow without actually doing anything to earn the profits. At least that was the Church’s view at the time.

Dante, of course, never questioned the appropriateness of capital punishment. It was generally accepted by the church that one who commits murder forfeits his life and deserves to die at the hands of the state. Aquinas argued this in his Summa Theologica, insisting that those who murder are animals and ought to be treated as such themselves: it’s their choice. In principle I would agree, but as I have argued in a previous blog the flaw in the scheme is human fallibility. Jurors and even eye-witnesses make mistakes. If humans never made mistakes then capital punishment would be entirely appropriate. But we make mistakes more often than not, so it can, and does, lead to terrible blunders. Be that as it may, “doing time” is a strange way to punish a person for taking another person’s life, or for most of the acts we regard as criminal.

We aren’t very creative in thinking of appropriate ways to punish people, though I can think of one interesting counter-example. A judge in a township not far away from me fined a construction company $100,000 for bid-rigging — and insisted that the amount fined go to four regional universities to establish programs in business ethics. My university already had the program, so we used the money to start a lecture series and brought in some very interesting people who spoke to us about business and ethics. Now that was appropriate punishment, and a very constructive way to “make good” on a rotten situation.

But this example is certainly the exception. In general we like to think the punishment  ought to fit the crime; it ought to deter the criminal from further crime and, as Thomas More thought, ideally it ought to reform the criminal and make him a more useful member of society. This last element we seem to ignore for the most part in our desire to “get back” at the criminal. So in the final analysis, we punish people to make ourselves feel better, to relieve our own stress at the thought that the guy is “out there,” or to satisfy our own need for revenge. None of the lofty reasons we give for punishing people seems to hold water. So we settle for what makes us feel good.