Thoughts from Criminal Law

In case you haven't guessed, school is back into full swing and so you can likely expect my posts to be more sporadic and to focus on legal issues more heavily (because, quite frankly, law school is an all-consuming beast that leaves little time to read or even think about much else).

There is a theory in the philosophy of punishment called utilitarianism. Essentially the utilitarian looks to the future rather than the past and justifies punishment based on whether it will provide any good for society (e.g. if punishing a criminal will deter him or others from committing crimes, then he should be punished; alternatively, if it will neither deter him nor anyone else, then he should not be punished despite his crime). An extreme utilitarian view might even suggest that the punishment of an innocent might be justified if it had a benefit for society (e.g. deterrence, maintain social order, etc.). Here is an exercise we engaged in on our first day of my criminal law course to help us explore this:

First, a real case from 1884: The Queen v. Dudley and Stephens, 14 Q.B.D. 273.

Four men are on a small life boat after their ship is lost at sea. Three are older, experienced seamen with families. One is a 17 or 18 year old cabin "boy." For two days they eat canned turnips. After these run out, they catch a turtle and ration it for 9 days. Two days later, now nearly two weeks since their time in the life boat, their fresh water runs out. Four days after this the 3 older men begin to consider killing the younger one in order to survive (yes, by eating him). One of the men dissents, but the other two are in agreement. Note, that the younger man is now sick from dehydration and from lack of food (for some reason he is not fairing as well as the others), and is likely to die soon. Three additional days later, now three weeks at sea and a full week without fresh water, the two men kill the cabin boy. The three men eat for four days and are then rescued. The two men are prosecuted for murder. Question: Was the killing justified, given that the life of 1 saved 3 others? If not justified, should the two men at least receive a lesser punishment (death was the only punishment for murder at this time)?

Next, a hypothetical situation suggested by my casebook author, Joshua Dressler, Cases and Materials on Criminal Law, 4th ed., 37 (2007):

An especially violent murder occurs in a small, racially divided community. The victim is white and, although there is no hard evidence to prove it, a rumor quickly spreads that the killer was black. As the result of racist activity by white supremacist groups, a white mob threatens to enter the community and kill innocent African-Americans and burn down their homes in order to exact vengeance. The town sheriff realizes that she lacks adequate personnel to stop the mob. She is convinced, however, that if she arrests an African-American for the crime and promises a quick trial, the mob will be satisfied.

Assume that the sheriff has only the two options presented. Would she be justified in framing the innocent person to save the lives of others in the town?

Finally, consider William Blackstone's: "[It is] better that ten guilty persons escape than that one innocent suffer." Do you agree with this? If so, how many guilty persons would you be willing to let escape in order to ensure that the "one innocent" does not suffer? One hundred guilty persons? One thousand? All of them? Consider your answer and then see my comment on the "comments" section of this post to see what our professor left us with that day.

Optical Intercourse a/k/a Making Eye Babies

This is a rather short post only because a mention of this article actually made it into my law school criminal law text book. While discussing the importance that criminal laws provide notice to the public on what kind of conduct is criminal, thereby giving people the opportunity to conform their behavior appropriately, the case book editors noted an incident at Pensacola Christian College. Apparently, a female student was disciplined for engaging in "optical intercourse" or "making eye babies" with a member of the opposite sex. The case book then challenged us, without further details, to imagine what such an offense might be.

Putting aside the absurdity that is Pensacola Christian College (see the article for further details as well as an explanation of the offense mentioned above), it bothers me to think what will happen to some of these students when they have to face the real world. Additionally, it bothers me that this is the public impression the school is giving of what Christians are like. And if one doubts that the public is seeing this... remember, it has made it into my textbook.

PS: I pull the associated photo from PCC's website. I wonder if that guy is engaging in some optical intercourse...?

mixed messages(?)

To be quite honest, I really have no idea why I am even attempting to comment on matters of legality. This post would be better handled by another writer of this blog--i.e., the Learned Hand. I will, however, offer my thoughts and inquiries on this particular issue and open it up for discussion.

In a story, posted by Yahoo News, an Army Pfc was sentenced to (get this) 110-years for taking part in the raping of an Iraqi teenage girl and then murdering her and her family. What caught me off guard was the little side-note immediately following this pronouncement: Pfc Spielman would be up for parole in (get this) 10 years. Three other soldiers took part in this heinous act, and they were sentenced to anywhere from 5-100 years in prison; but nothing was said about the possibility of parole for them.

My uneasiness with this is multi-layered. Here are the two main ones:

1. There is the issue that Pfc Spielman is sentenced to 110-years with the possibility of parole in 10 years. This, according to the article, was part of the plea-deal "regardless of the jury's recommendation". The jury did offer life with parole; but, (again) according to the article, this would have caused Pfc Spielman "to wait longer for the possibility of freedom."
   
2. The other soldiers, who apparently took a more active role in this crime, got a lesser sentence. (The article even states that Pfc Spielman "received the longest sentence of the four soldiers"). Granted, they were still charged with a number of crimes and convicted of such crimes; yet, the duration of their punishment was not as long Spielman's. (But the bottom-end of the range [i.e., 5-years] seems to contradict this statement).
   

What strikes me about the first point is that the jury is under the impression that justice will be served--according to the recommendation they provide. Yet, unbeknownst to them, an alternate line of justice was already established. There is also the issue of: why issue a sentence 110-years if it is already known that a) it will never be humanly fulfilled--no one lives that long any more; b) had the jury given life without parole, the sentence would have been overturned; and c) parole hearings would commence within the first 10 years?

What strikes me about the second point is that Pfc. Spielman is charged more severely for--per the testimony given--standing guard, acting "as a lookout". I understand that there is a moral and ethical imperative that says: if something wrong is taking place, and it is within your power to stop it, then do what you can to stop it. Now, in this case, Spielman ignored this imperative and he should be charged accordingly; but to charge him more seems to suggest that his actions were more severe than what he watched.

I leave these two points up to those who know more about this sort of thing, and I earnestly seek counsel in this regard. My concern is that (at least) these two points imply a mixed message about justice and how it is upheld.


A brief side-note:

The sister of Pfc Spielman, after the sentence was given, cried out: "I hate the government. You people put him [in Iraq] and now, this happened." What intrigues me about this twofold comment is the shear lunacy of it--the second part more than the first.

The government did not necessarily put her brother in Iraq; he put himself in Iraq. When he enlisted in the Army, he agreed to protect the freedom and livelihood of this nation if it was being attacked. If that attack was taking place in Iraq, then he must fight in Iraq; if that attack was taking place in Siberia, then he must fight in Siberia. Granted, he may not want to fight in such places; but he must fulfill his duty as a soldier in the US Army.

She then blamed the government for putting her brother in jail. (I would feel safe in assuming that she was also blaming the government for her brother's actions--i.e., because they put Pfc. Spielman in Iraq, they caused him to commit such actions). She failed to see/hear that Pfc. Spielman admitted his culpability in what happened and that he accepted the weight of his punishment. But she would probably retort with: "He admitted to it because they made him admit to it".

The Dangers of Torture and Denying Human Rights to Terrorists

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights . . .

-The Declaration of Independence

What is interesting to note about this statement is where it claims human rights originate. It says that the rights we enjoy come from our Creator and that those rights are "unalienable." It is therefore disturbing when people, both Christian and non-Christian alike, say that it is okay to torture terrorists or to deny them other human rights because they are enemies of America and / or not American citizens. Here is the danger in such thinking: it makes one believe that our rights come by virtue of being American and not by virtue of our Creator endowing us with them. In fact, it was the very argument that these rights do not originate from one's government that made the founding fathers feel justified in rebelling against the sovereign of England. Putting aside, for now, the question of whether, in fact, our Creator has endowed us with certain unalienable Rights or whether the revolutionary war was Biblically justified, if as Americans we stand behind this document and the reasoning behind its arguments, then it is impossible for us to also claim that those captured outside this country should not enjoy the same rights to fair justice as we do. Saying that our rights come by virtue of our Citizenship places the origins and foundations of our rights in the hands of government. If a government can grant rights, it can also take them away. Such a thought is antithetical with the Declaration of Independence. Our justification for setting up our own country is that our rights originate not from the government, but from our Creator. When we begin to lose sight of this understanding, we open the doors to allowing our freedom to be stripped from us, even under the guise of security.

An Explanation of the Name: BPL in Daily Life

As an initial post, it seemed appropriate to explain what "The Learned Hand" refers to. For any of you who have some experience in the legal field, this explanation should not be surprising. In law school, instruction is done by individually reading assigned judicial opinions (the written copy of the court's ruling and its reasoning), almost always contained in a large textbook (think 9th grade English Class reader which contained lots of short stories, but with bigger words and duller stories), and then discussing them in class. At the beginning of almost all of the opinions is the name of the judge who wrote it. After reading enough of these, one begins to recognize the names of certain judges. One such judge was the Honorable Judge Learned Hand. As for why I decided to use it, well... its just a great name!

One thing Judge Hand did was write an opinion which became well known for utilizing something called the BPL test. Simply put the BPL test attempts to balance risk and utility. Utility balancing tests are used often in law, especially when the law is more like a standard (e.g. use the care a reasonable person would use in the same circumstance) instead of a bright-line rule (e.g. 55 MPH speed limit). The idea of BPL is that someone might be negligent (i.e. failed to use reasonable care) depending on the balancing of the risk of harm occurring * the gravity of the possible harm compared with the cost or difficulty in preventing the harm. For example, in one case, a man was electrocuted and killed when he moved his amateur radio antenna and hit a live electrical wire above his house. The question was, was the electric company negligent for not putting an insulated covering on the wires? A BPL analysis would attempt to balance the likelihood of someone coming in contact with the wire (if high enough, probably small) * the possible harm (likely death) with the cost of insulating all electrical wires ($$$). The idea is that if the cost is reasonable [utility] compared with the risk of harm [risk], then it would be negligent not to take the preventative act. On the other hand, if the cost was very high and the amount of prevention very small, then it might not be negligent to fail to take the preventative act.

Putting aside the difficulty in comparing money with human injury, this is a formula that people use all the time. The other day my wife and I were cleaning her car because we were trading it in. We were able to vacuum and clean the entire inside of the car in about 1 hr, but there was a certain spot on the inside molding that would not come clean. Since we only had a limited time to work on the car, we opted not to spend too much additional time on that spot. Why? Because of utility. For the small return (getting a small spot clean) it would take too much time and effort (perhaps a half hour or more when we only had 2 hrs total). Utility balancing is used throughout daily life. It is therefore not much surprise that it has found its way into law. Whether this is a good thing, though, especially when human life and money are compared on the scales of justice, is debatable.