Tillikum

With apologies to Oscar Hammerstein, II, how do you solve a problem like an Orca?

I've not gone off the deep end here - or even off topic.  This is a post about crime and punishment.

First of all, let me come clean.  I'm not an animal rights kind of guy.  I eat meat, and do so happily (some would say joyously).  I think it's a fine thing that we test drugs on animals before trying them out on people (though I wish the testing were more thorough and competent).  I'm not opposed to zoos.  In fact, I thoroughly enjoy them.  I like looking at beautiful animals - cute ones, too.  And I like it that I don't have to get too close.  I don't hunt, but that's not based on any sort of moral choice, I don't think.

It's not that humans are better than other animals.  I don't know what "better" would mean in that context, at that level of abstraction.  And I can't imagine how it would be measured, though I have a suspicion that if I knew what to measure and how to measure it, humans wouldn't be at the moral pinnacle.   But we're different from other animals, and it's a difference I'm happy to benefit from.  If that makes me, what?, species chauvinistic, so be it.  Spoils to the winner, and so far, it is we who have won.

Anyhow, I'm writing about crime and punishment.

Start with crime.  

Tillikum, of course, is the serial killer orka, who struck again last week after more than a decade's quiesence.  This time the victim was Sea World killer whale trainer Dawn Brancheau.  It's a horrible thing, of course.  But the question of an appropriate response always lingers after homicide.

We have to begin with the recognition that we don't really know what happened.

The latest word from Sea World is that Brancheau was rubbing Tillikum as a reward for putting on a great show earlier when he grabbed her ponytail and pulled her under.  Some thrashing about later, and she was dead.  On the other hand, some observers reported that she was grabbed by the arm, others that Tillikum took her by the waist.  All this is typical with eyewitness reports, which are notoriously unreliable except to jurors and the court system which think they're gospel.

In any event, and regardless of the details, there seems little question that Tillikum killed Ms. Brancheau.  And that it was horrible.  And that he has killed people before.

OK, that's the event.  In the Latin of the law, we call it the actus reus, the bad act.  Typically, the bad act isn't enough to be a crime.  It's necessary that the actus reus be accompanied by the proper mens rea (mental state), though there are exceptions - things that are criminal regardless of your mental state.

[Regardless, don't get excited and think you can commit criminal acts at will as long as you control your thinking.  It doesn't work that way.]

So what's the relevant mental state for a homicide?  Well, it depends on the degree of homicide (and the jurisdiction, but I'm not concerned enough about the details now to worry about jurisdictional differences; this discussion applies pretty much everywhere there's any derivative of the English, the American, which is a derivative of the English, or the Anglo-American legal system).  

Basically, there are three options.  Negligence is the mental state of (here's a shock) negligent homicide.  It involves violating a duty of care or attention.  There's recklessness, which is the mental state demanded of most things we call crimes.  Roughly, criminal recklessness is the heedless disregard of a known risk.  A reckless homicide might be a manslaughter.  And there's purpose, which is intent.  That takes you to murder.  There's a further level of depravity, of course: think of the premeditated murder.

Got all that?

Then, back to Tillikum.

What do we make of the serial killer whale?  Is he a criminal?

I know that sounds silly, but we're talking about one of the creatures widely understood to be the most intelligent on the planet with the possible exception of humans.  Richard Ellis, a marine conservationist with the American Museum of Natural History, told the AP that killer whales don't do things accidentally.  The killing of Ms. Brancheau was, he said, premeditated.

Why?  Because captivity is so inhumane.  It's Orca resistance.  Think The Birds but in the water - and reality. 
Nancy Black, marine biologist at the Monterey Bay Whale Watch, imagines a stress reaction.

"He’s more excitable. Maybe he was stressed out, maybe he had frustration,” she says. “So he grabbed the closest thing to him to take out his frustration and high energy level.”

Or maybe not.  Kathleen Parker asked her cousin Heidi Harley, an animal psychologist and former orca rider, what Tillikum was thinking.  Parker offers this summary of Harley's answer.

Most likely, Tilikum the Killer Whale simply had a "seeing red" moment. He lost control -- and then it was over.
Sometimes the Discovery Channel eats Disney.

Or, maybe, Tillikum was just being Tillikum.
What then do we do?
One possibility is to kill the whale.  That may seem cruel, but we euthanize dogs that attack children.  And, in fact, there's a long and weird history of trying animals for criminal acts and executing them when they're found guilty.  You can read about it in The Criminal Prosecution and Capital Punishment of Animals.  The thing is, we don't do that any more. 
For all the anthropomorphising and for all the intentionality we dump on animals, we're not inclined to give them moral sense.  And without that it's difficult to blame them for their actions.  You know, killer whales are killer whales.  What do you expect them to do?
So what do we do?  We isolate.  (One wonders why Tillikum wasn't isolated after the first or second killing, but it seems clear that will happen now.)  Tillikum, already denied full orca companionship and life in the open ocean, will now be denied (I assume) the chance of close up interaction with trainers - and maybe with other orca.  Think of it as life in prison.  It may or may not make Tillikum happy.  But it might save a few more lives.
Now, maybe we ought to think about an extension of that principle, that life is enough.  Because blame really doesn't accomplish much.  Because just maybe Tillikum did want to kill Ms. Brancheau.  But maybe we shouldn't kill him anyway.