"You Are Probably Wrong"

Let's talk about desert.

I didn't want to do this.  I've been fiddling for the better part of a week with a post about judges getting it right and free speech and running for judge and the prohibition in Alexandria, Louisiana against "palmistry, card reading, astrology, fortune-telling, phrenology, mediums or activities of a similar nature," and a desperate effort to use the law to protect us all from things that only really really really really really stupid people would get wrong and that even they don't need protection from.  

But that post didn't want to get written, and then there was the news which I could kind of ignore when it was mainly about bodies piling up and the names of the dead heroes in the dark and the mechanics of how it was done and whether the proper lesson from this is more guns or fewer. Because the piled up bodies and the names of the dead and the heroes and the mechanics and the gun and anti-gun forces . . . . 

Sigh.

Really, I've nothing to say about all of that that wasn't better said by Garance Franke-Ruta at theatlantic.com in the wonderfully titled "Aurora and the Template of Our Grief" and then, far more sadly, because in the words of my friend Kathy G, "Dear lord that isn't even satire," in The Onion.

But then Doug Berman decided that we should all know about his visceral reaction (Kill! Kill!), which is what plenty of bloggers do, but Doug isn't just some hack with a personal blog.  But, as Scott Greenfield explained, that's not who Doug is or what his blog is and he has some self-generated responsibility for what he says.

The distinction between other cries for death, such as that of Bill Otis throughout the comments to Berman's post, and Doug's is that Otis never met a miscreant he didn't think should die (yes, hyperbole, but it makes the point), while Berman is the Robert J. Watkins/Procter & Gamble Professor of Law at Moritz College of Law at The Ohio State University, and has positioned his scholarship to be a leading academic on the issue of sentencing. 

As such, he has attained a significant level of credibility on sentencing matters. In other words, his thoughts on sentencing are taken seriously. Maybe too seriously, but having chosen to stake out his ground, he carries the burdens that go with it.

And then Dave Cullen, author of the deeply moving Columbine, has an op-ed in today's Times warning us not to jump to conclusions.

YOU’VE had 48 hours to reflect on the ghastly shooting in Colorado at a movie theater. You’ve been bombarded with “facts” and opinions about James Holmes’s motives. You have probably expressed your opinion on why he did it. You are probably wrong.

He's right. 

You're probably wrong if you think he's the loner/scholar/drop-out/maniac.

You're probably wrong if you think all those things are somehow false and deceptive.

You're probably wrong if you think they they're true and tell you anything meaningful.

Bill Otis is probably wrong when he says in a comment to Berman that the guy is sane and that "the basic rules of civilized life" mean that he should be executed.

A society unable or unwilling to recognize this man as having earned a trip out of this world is a society that no longer cares about the basic rules of civilized life (or its own safety, for that matter).
I just hope the defense bar can clean it up long enough to avoid cooking up the usual phony shrink-sponsored tales, but I doubt it.

It is, as all things are, more complicated than that.

As I said, I want to talk here about desert. Not the hot dusty place (though perhaps there's something fitting in that) but the other sort, pronounced like dessert but related to deserve. 

Berman this morning tried to walk back from his "first cut" instincts and without quite admitting it, acknowledged that his earlier comment was, er, insufficiently academic.

Putting all this together, it is not at all surprising that some are eager to reach first-cut punishment assessments based on the Batman mass murder offense conduct, while others are eager to resist any such assessments based on the shooter's mostly unknown offender characteristics.

Look, I'm one of those unrepentant abolitionists who believes that we shouldn't execute anyone and that death penalty is a mark not of "civilized life" but of barbarism.

Bill Otis and I will never come to agree on that part, but the very disagreement (and of course it's not just Bill and I) demonstrates the fatuousness of Bill's apparent belief in the self-evident correctness of the view that we don't kill nearly enough people or kill them quickly enough.  That's not to say he doesn't have an argument - one based on a vision of morality and policy - but that he simply can't take seriously those who don't accept its obvious truth.

I've got an argument from morality and policy, too.  I think it's better than Bill's.  But it doesn't strike me as self-evident.  Nor does much of anything else in this world.* 

As I've noted on more than one occasion in my ramblings in this blawg, the correct answer to every legal question is "It depends."  The legal world is a world of ambiguity and complexity and random chance falsely presented by its nominal explicators (judges) and formal expounders (law professors) as a world of stability built on reasoned analysis and precedential regard for rules.  As the legal so the workaday quotidian.  What the particle physicists who study quantum fluctuations and the evolutionary biologists teach us about the physical universe and the creatures who lived and do live in it applies in large part to everything.

What we pretend to know is, at bottom, just today's best understanding, subject always to debate and discussion and recalculation and recalibration.

It depends.

And so the question of desert and the accused James Holmes.  Accused, not guilty.  Not yet, anyway.  At least not legally.  Guilt, the kind that leads to earthly punishment (the only sort we can impose) under the Rule of Law, is after all a legal construct, determined not by what the police assert and the press reports or even by what the accused might declare but by jury and judge.  

But as there's both legal guilt and factual (and moral and philosophical and original sin and . . .  enough) so there's desert in this world and, if there is another world of judgment in that.  And, too, there's the desert of the legal systems (ours and those of other societies) and of the lynch mob.

Did Holmes do it?  On the surface, there seems no reason to doubt it.  Did he?  I don't know.  You don't either. Whatever you think and however strongly you believe it.

Is he, more precisely will he be found, legally guilty?  Probably.  But not certainly.

And then what?

Not what will happen.  The odds, I suppose, are that he'll be sentenced to die.  But maybe not.  And if he is sentenced to die, perhaps he'll be executed.  But maybe not.

Because the question here is desert.  So let's assume for a moment that he is factually guilty and is so determined to be.  And let's assume for a moment that he is not legally insane.  (Which is altogether different from being crazy - anyone who does what we're assuming here he did is clearly crazy.)  And let's assume further that he had no good reason/excuse.  (Don't worry about trying to imagine what one might be, that'll be a distraction; just assume there isn't one.)

Assume all that, and what then? Do you believe in mitigation?  Will it be relevant to you how and why he became the person who did those things for no good reason and not being legally insane?  If not, you're properly excludable from the jury.  That's our system.  Just as it's our system that if you believe the fact that he's human outweighs any argument in favor of execution you're properly excludable from the jury.

If the lawyers are competent and the judge follows the law and if we're both honest, neither Bill nor I will sit on a capital jury.  Like it or not, think it's proper or not, that's our system.

But desert?  Legally that's supposed to be a function of the evidence that will come in at a trial that comports with the rules and standards of Colorado law and the Constitution and judged by twelve good men (and women) and true.  Or something like that.

In absolute terms?

We don't do equivalence.  We don't find a way to kill him 14 times and wound him 50.  We don't and can't make him fear and panic in exactly the way all those in the movie theater did, and make him evacuate his home as the neighbors were made to.  We do not and cannot do equivalence.  (I'd argue that we also should not, but it's a moot point.)

We can order him removed from society, and pretty surely that will happen.  (I say this in total ignorance of the possibilities under Colorado law, except that the state allows in some circumstances, though I don't know just which, both LWOP and death as sentences.)  He will, that is, and given our assumptions above, likely receive a sentence of death in prison.  The question will be whether the death is to be effected by (1) authorized murder performed by agents of the state or (2) by age or illness or happenstance or unauthorized murder.

Is that proper? Is it what deserves? Is it what we do?

Or maybe, just maybe, there should be a chance?  Not a promise.  Perhaps not even a likelihood.  But a chance.  Because the James Holmes as we have assumed him today may not be the James Holmes as he will be at some future time.  And then what's the point?  Unless it's simply to exact revenge.  But that suggests that we're aiming for equivalence - of pain, of fear, or trauma that may last decades or may be resolveable and actually will be both for those who survived and those who did not. 

And even if we call revenge retribution . . . . What if he wants it?  What if it gives him satisfaction, pleasure, relief?  What then?

What if he tries to kill himself?  Must we keep him alive? Why? Yet why not.

The problem with desert is the problem with the law and the problem with life.

It depends.

And we really can't ever know.  Though we can certainly believe.

And if we can't know?

Then how dare we?

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* Except, maybe, that the earth is flat and that the sun and start revolve around the earth.  So much for the value of the self-evident.