Posted on
May 23, 2009 in
“There is no comparison between the crimes and the sentence,” said
Sheik Fadhil al-Janabi, a Sunni tribal leader in Anbar Province. “That
soldier entered an Iraqi house, raped their underage daughter and
burned her with her family, so this sentence is not enough, and it is
insulting for Iraqis’ honor.” (NYTimes.com)
When I read that Iraqi tribal leaders are upset and insulted that an American jury spared Steven D. Green’s life for the rape of a 14-year-old Iraqi girl and the murder of her and her family in 2006, my first response was, “that’s the way we roll in the USA. We don’t kill people, or even imprison them, to restore others’ honor.”
But then I remembered that at one time a then-Harris County Prosecutor gave me cause to write this post.
People’s basest instincts – retribution, to name one at play here – are the same the world over. That the American criminal justice system is better than many is not attributable to the character of our government officials, but rather to the principles that constrain them.
Good to ponder. So how do you talk to federal judges at sentencing about “punishment” or “retribution”? Especially for my first offenders, involvement in the system and that felony record is huge punishment. Why do judges feel time is jail is required and how do we talk them out of it, especially for the defendants of a different race and class with whom they feel no affinity?
I like to point out the conspicuous absence of “retribution” in §3553, and try to make the judge aware of what’s driving his decision.
They spared this guy because he was a former soldier. If he had been black, and his victim had been white, they would have strung him up for sure.
It’s called selective retribution. I’ve seen child molestors impregnate a twelve year old and get probation “because he was in the service, so he must have been okay.” Redneck logic.
I’ve seen an illegal immigrant get life for shooting a white cop to death after he was cuffed in the back of the patrol car. Lawyering (not mine) had something to do with that result.
Sure, there are exceptions to any rule (life ain’t exactly going easy on the guy), but I don’t think you’ll deny that minorities get hit harder by white juries than white defendants do. Other factors, like the defendant being former military, just add to the discrepancy.
I’m all on board with the presumption of innocence and with not punishing offenders any more than is necessary and proper, but I’m not so sure that retribution and the satisfaction of honor are among the basest of human instincts, and that they don’t have a proper role to play in our criminal justice system. If men were angels, no one would seek retribution, and the sole purpose of society’s criminal justice system would be rehabilitation and the prevention of future crimes. But it would be unjust to demand of crime victims that they angelically swear off such motives, and especially unjust for our inherently unangelic political system to impose the standard of angels upon the merely human victims of crimes. If a parent’s young daughter is brutally raped and murdered, I can’t say that the parent’s desire for the criminal’s death is unjust, although such a desire is probably not saintly. The State has taken it upon itself to monopolize punishment for crimes. It would charge with a crime the parent who undertakes to take the law into his or her own hands and to punish with death the perp who raped and murdered his or her daughter. We have to recognize that we risk severe injustice if while denying the victim’s ability to avenge crime the State itself refuses to do so in his place.
On the other hand, I recall a recent story (although I don’t remember the details) where the family of a murder victim was asking the sentencing judge or the governor not to execute the offender. They said they didn’t want him killed on their behalf. I admire them for that. I think in such a circumstance it would be unjust not to honor such a request. The State itself should not be motivated by retribution for retribution’s sake. It does, however, have a duty to honor and respect a victim’s just desire for retribution, with all due moderation and due process and even-handedness. I don’t think it’s improper for the State to presume that the victim desires just punishment and retribution. Society itself, not only the actual victim and his family, can justly desire retribution for particularly heinous crimes, although again, if the victim and the victim’s family expressly wants no part of such retribution, their wishes should be given great consideration.
The State may have some obligation to take into account a victim’s desire for retribution, if only to maintain a stable order, but it also has a duty, as you recognize, to act with “due moderation.” Killing some of its citizens to avenge others is an extreme act, not a moderate one.
The State has a duty to temper citizens’ blood lust. Endorsing death as a penalty only fuels it. The family of a murder victim will almost always ask the State to apply the severest sanction legally available as a measure of and outward demonstration to the world of the gravity of their loss.* To ask for less is, to them, a kind of admission that the loved one’s life was not maximally valuable to them and to make such an admission following death is viewed, psychologically, as a betrayal of that person. So the State’s making death the severest legal sanction available is more than simply an attempt to comply with victims’ retributive requests. It affirmatively encourages requests for the sentence, and this the State should not do.
* As you pointed out, there are exceptions to this, but this takes a supreme kind of self-confidence that many humans lack.
I am ambivalent about the death penalty, as any thinking human should be. I’m for the most part against it, but a lot of my opposition has to do with how it’s been applied in the real world, where it’s been applied unevenly depending on the race of the perp and the victim, and where we’ve seen many sentenced to death who’ve been later exonerated. For it to be acceptable in my view, a higher standard of proof should be applied (i.e. not merely “beyond a reasonable doubt,” but “beyond a shadow of a doubt”), and it should be applied to only the most heinous subset of murders (e.g., those preceded by rape and/or torture, devoid of all mitigating factors). The death penalty would have been appropriate, in my opinion, for the BTK killer, and monsters of his ilk.
Setting aside how the death penalty has been in fact implemented in the real world, I’m not convinced that as a matter of principle it is inherently always an extreme rather than a moderate act. For certain criminals, one gets the sense that life in prison without parole is simply not an adequate punishment, that certain of these cold-blooded killers will live a “fulfilling” life and even thrive in the peculiar environment of prison. I became persuaded, after being more or less on the fence, that the death penalty is sometimes warranted after seeing “Dead Man Walking,” ironically a putative anti-death penalty movie which nevertheless did a very good job of showing both the condemned man’s perspective and the victims’ perspective. One got the sense that the enormity of what the character played by Sean Penn had done would never have been brought home to him in the absence of his own impending cold-blooded execution by the state, if he had just been left to rot away in a cell nursing his resentments and self-justifications.
The death penalty may in some cases be appropriate, not because retribution is a worthy aim, but rather because there may be cases in which nothing short of the death penalty can satisfy the other penal goals – specific deterrence and incapacitation, for example.
That doesn’t make the ultimate penalty “moderate”.
The State has taken it upon itself to monopolize all legitimate use of force. The contract is not, “if you don’t seek vengeance, we’ll do it for you.” The contract is, “if you play by the rules, we won’t put you in prison.”
Retribution – vengeance – “getting even” is not a rationale for punishment in any American penal code that I know of, and rightly so – objective observers know that we can never get even. The victim has a harder time seeing this, which is why he doesn’t get to decide what the punishment is.
So if a victim’s family says “Don’t kill the defendant” it’s a good, decent thing and they should be commended, but if they say “fry the bastard” then it’s blood lust with no legitimate end?
Interesting.
Sort of a New Testament – Old Testament thing going on there.
Isn’t that matter-of-factly true? I don’t understand the apparent sarcasm.
Sorry Mark, Gotta call BS on this. Our system happily doles out retribution for ‘victims’ of crime in the US. All I would have you do is look at Art. 62 Texas statute. After the time served, and after everything is paid, we still pay, for life! Oh yeah, that is a ‘civil action’.. pfft, ask my kids how civil it is…
The only reason we didn’t do the same to this kid is that the people of the US and our government believe the Iraqi’s to be savages, not worthy of our brand of retribution. personally, I believe the kid should be sent back to the scene of the crime and allow the laws that were broken THERE to be the ones that he and the rest are tried for. If Joe Student did the same, then they would be tried in the Iraqi Court without any eye blinks.
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I’ve seen Warren Diepraam be biggest asshole in Houston area. Guy would have sent Jesus to the cross. Thats how we roll haha