CRIME + JUSTICE

CRIME

The matter of responsibility is very curious. We refer to some as responsible persons, generally meaning that we consider them to be reliable, that they perform with due consideration for others and according to expectation. We refer to others as irresponsible, generally meaning that we consider them to be both inconsiderate and unreliable, that they are unlikely to perform according to our expectation, unless the expectation is that they will be inconsiderate and not perform according to expectation. We then tend to praise or condemn either of these simplistically labeled persons according to our assessment of accountability.

Those who perform irresponsibly are sometimes held to be less than fully accountable for their actions. There are said to be extenuating or mitigating circumstances, which justify special consideration, and which may be identified as internal and external. We consider some to not be held accountable for a particular action or even all actions, whether criminal or merely reprehensible, when such actions seem to have been made unavoidable by these circumstances.

This can be a socially dangerous practice since theoretical extrapolation seems to have no naturally limiting barriers, and it can be successfully expanded to an extreme in the courts when a critique of the position by the prosecution has been limited and it becomes especially important if it succeeds and results in a ruling that may be used as precedent.

The action of any individual, at any one time, can be said to be the result of a set of interacting external and internal circumstances, some of which can be said to be of their own making and some not. They cannot reasonably be held accountable for internal or external conditions which are clearly beyond their control.

It can be arguably claimed that the internal circumstances affecting decisions made and subsequent actions taken, at any point in time, are the direct result of existing mental characteristics as inherited and modified by prior experiences. The inherent part is undeniably beyond the control of the subject and its modification by prior experience is the result of prior circumstances, both internal and external, which would be partly the result of prior decisions made by the subject and partly the result of factors beyond the subject's control. In each successively prior instance wherein the subject was able to make decisions, the decisions were the result of existing mental characteristics as inherited and modified by prior experiences. As you should now be able to see, we can establish a trail of historically deferred accountability back to a subject's emergence from the womb, if not before.

After reading this far, you should begin to get an overview of the situation in our experimentally extreme scenario that seems to indicate that no one can be held inarguably accountable for anything they do or ever have done. If this is to be accepted as representative of a truth, we must also accept that it can be applied to more than the defense of the accused. It can be applied to the Judge, the Prosecution, the Jury, the characterizing Media Reporters and anyone connected with a case. It can be used in defense of their attitudes regarding justice and their administration of it, however lenient or harsh it may appear. Removing or adding this argument regarding accountability on both sides of a social or legal equation should limit its use or at least give it a more equitable perspective,

Such legal complexity may eventually result in a desperate move to find some justification for reverting to a simpler "square one" of jurisprudence, extant at an earlier time, which required less toleration of the crimes against humanity that are caused by toleration of specious argument.

The point is that the placing of blame for the individual, and for the collective of individuals called society, should not be skewed in favor of one or the other. When there is an expectation of responsibility and there is a dereliction of it by the individual, the collective may be wrongly made to appear arguably at fault and their workable social control system may be made to appear arguably defective, if we fail to point the argument in both directions. While we busy ourselves in pondering intellectually intriguing alternatives, we should not rush them into practice. In our hope for improvement and dreams of perfection, we must not disregard our immediate need to employ a system we have found to be workable.

HOW GUILTY?

Those who are adjudged to be mentally defective due to deficiency or derangement, after being proven to be perpetrators, are sometimes found "Not guilty, by reason of mental defect" Here, society feels unwilling to punish those who have an especially strong and generally acceptable case for unaccountability. However, the language seems misleading and is clearly misrepresentative of the true issues. If a person can be proven to have committed a crime, are they not guilty? If we find the crime to be result of such a degree of mental defectiveness that we choose not to exact punishment, is it necessary to then try to alter our perceptions regarding the factual commission of the crime? It would seem far more accurate to say "Guilty, by reason of mental defect rather than infer innocence" for these reasons. This phrase alteration would acknowledge the act as well as the mental state or capability of the perpetrator, which may have been the reason for the commission of the crime as well as our reason for discounting accountability.

This concern for semantics, is in regard to law, where the value of semantics cannot be exaggerated. If the person is found to be innocent or not guilty of a capital crime by reason of mental defect and is later judged by someone in authority to be less than irresponsibly defective, the perpetrator may become free to rejoin society, perhaps to relapse at some innocent's expense. If they are found "Guilty by reason of mental defect", finding them more responsible at some later date will not free them of the guilty verdict. While they may not be remanded to the prison system for conventional punishment, and be eventually given some gradually increasing degree of freedom, the Justice System will be given a stronger basis for exercising a right to limit that freedom, a right to curtail or otherwise control the activity of the perpetrator and thus be more active in its effort to protect society from an individual with a demonstrated propensity and a possible potentiality for hazardous behavior.

PUNISHMENT

Punishment can be defined as a penalty to be inflicted with the expectation of improving societal behavior, but society can hardly benefit from corrective efforts when a person is incarcerated for the rest of their natural life. The apparent ineffectiveness of rehabilitation makes subsequent reduction of sentence a questionable practice. Good behavior in the absence of temptation is a poor criterion for release and apparent, well demonstrated evidence of corrected attitude can be easily maintained when the motivation is great enough and inmate intelligence is sufficient.

Execution for a capital crime may not be considered punishment in this usual sense. There can be no expectation of resulting improvement in the subject's behavior. However, there is an expectation of corrective value in the graphic visualization and contemplation of the penalty by others who may be contemplating a crime. This is a pre-crime "punishment" that we call a deterrent.

When the law imposes sentences of a length that precludes rehabilitation or sentences people to death for their crimes, why is it not just for society to eliminate them in the most convenient way? Their crimes have been against individuals for which society offered no protection and, theoretically at least, society now recognizes the threat their freedom would impose and seeks to protect others to the maximum extent. Why are the convicted due the consideration of a pleasantly continued existence, made hopeful for them and dangerous for others by the prospect of early release, while society is punished with the expense of their support?

THE DEATH PENALTY

The death penalty is often criticized as barbaric, although truly barbaric societies have historically included penalties far more feared than a quick and simple death. Executions are said to put society on the same abominable level as that of a convicted murderer, when critics refuse to make distinctions as to the motivations and reasoning for taking a life. Unlike the criminal who may remove a portion of your anatomy in the commission of a crime, a surgeon might remove the same portion, if diseased, in order to save your life. As I have stated in a previous publication: "Capital Punishment is Social Surgery, removing a diseased portion of society to assure its continued health.

The death penalty is said to lack demonstrated deterrent qualities, yet this is quite apparently due to our increasingly indecisive ability to exact the penalty with any appreciable degree of immediacy. Like most deterrents, there must be an immediate connection between act and consequence, clearly and convincingly established in the minds of those tempted to transgress, before it can be expected to become effective. Even if we possessed effective crime prevention therapies, realistically portrayed penalties which become deterrents will reach potential perpetrators that we could never hope to have the right, the means, or the opportunity to identify and treat.

While errors of justice have caused the execution of the innocent, indecisive failures of the Justice System, some causing immediate release of the guilty, and others their eventual release after inconsistently and indefinitely delayed administration of sentencing that permits endless appeals, have caused the death of many more. A well-documented fact is that a majority of serious crime is committed by repeat offenders.

CORPORAL PUNISHMENT

There was an archaic form of corrective action, taken by society to reduce infractions of its lawful rules and regulations, most recently limited to parental use and largely abandoned in more recent times.

Corporal punishment, punishment administered to the body of miscreants found guilty of serious and even trivial laws, may seem cruel to many but it has proven to be quite effective. It has qualities that strongly support a current recommendation for active reinstatement, at least for serious, but not capital crimes, committed by adults. Like children, adults often fail to be affected by abstract reasoning regarding the value of acceptable behavior and they seem to become immune to repeated warnings regarding the consequences of unacceptable behavior.

Corporal punishment can take the place of incarceration, which is expensive for society and also for the lawbreaker who needs to work for the support of a family that should not be deprived of such support and thus be forced to share the punishment. Incarceration also puts those who commit crimes together in a prison society in which they hear each other far more than they hear those who seek to rehabilitate. They tend to mutually rationalize wrong to the extent that it is either trivialized or justified in some way and this can easily generate a more criminally tolerant attitude and predispose them toward the further commission of crime when released. Corporal punishment, inflicting a traumatically memorable level of pain, made commensurate with the transgression, can be quickly administered in such a way as to avoid incapacitating injury and subsequent loss of time and thus replace incarceration and its creation of a state supported criminal society. An intensive and immediate mental preconditioning can be administered to firmly establish the connection between the crime and the punishment. This is best administered when the crime is still fresh in their minds. As parents who have employed such punishments are well aware, these conditions of punishment are of prime importance.

Corporal punishment can be publicly administered, as an option that would add humiliation to the physical pain when deemed appropriate, presumably in more serious instances. However, In the less serious ones, and particularly when it could affect present employment and future employability for the wage earner, both public display and publication of its administration would be omitted.

PRECEDENT LAW

It would appear that all formal systems of justice suffer from some degree of self-poisoning, a "side-effect" in the use of precedent rulings. Precedent is a useful convenience that provides support for new rulings in what may be taken as similar cases. Its use alleviates much of the more oppressive deliberation that would be required in forming original judgments, and in the purest sense is unavoidable, since any reasonable ruling must at least include references to precedent religious commandments or even socially acceptable "unwritten laws."

It is perhaps the convenience that is at fault. Once a formal ruling is allowed to stand it assumes a kind of historical significance and stature, a respectability that increases with each successful employment. Any degree of defect gets carried forward and any initially critical controversy that might interfere with its use, gradually tends to diminish and may eventually disappear.

New rulings, justified by such precedent support, become new precedent and may include their own degree of defect as well as giving the older, reference rulings, more functional credibility.

In an effort to protect the innocent from false accusation and lawful errors of conviction, precedents have been cavalierly over-used, although many of the oft-quoted rulings had been based on nothing more than a reticence to follow the spirit of the law in the face of a popularized, highly vocal public reaction of the moment. This has had the effect of skewing the thrust of the law is such a way as to favor the criminal. Police have been hamstrung by picayune concerns that sorely limit their effectiveness. Prima Face evidence of justifiable homicide, even by reason of self-defense, is often so inextricably entangled in tortuous technicality that the survivor may be punished.

Precedent rulings become relatively unassailable after time and going back to determine and then retroactively correct initial errors, would not be enough even if it were possible, since each use has continued and given new life to the old in the generation of new precedent and has compounded the problem.

The antidote for this lawful poisoning is even more precedent; new rulings that include reference to the old, but in which justifiable overulings of the defective precedent will be courageously made at every opportunity, to become corrective precedent. These actions must be the result of a careful analysis of precedent that maintains a focus on the intent of the law, when considering the breadth of interpretation possible within the letter of the law, and must avoid toleration of the unreasonable, whenever the freedom to do so permits.

Lawrence Edward Bodkin, Sr.

JUSTICE

Legal representation in the courts, having been given the freedom to do so, has naturally progressed to the point of providing a client with protection from justice as well as injustice. Defense attorneys, as officers of the court, were once perceived to be necessary only in order to assure a fair treatment and a fair trial for their clients. They then gradually came to see themselves as mercenary champions whose function is to protect their accused clients from any harm that may be legally imposed. Since it is not their duty nor right to determine guilt or innocence, presumption of innocence before legal judgment of guilt is an acceptable position for defense attorneys, even in the presence of a prima face level of evidence to the contrary. Evidence of guilt cannot be legally accepted as proof of guilt until trial results have legally made it so. There are many instances in which evidence is excluded from consideration in the trial process.

Such champions of the legal system receive compensation for their efforts. Public defenders may be seen as soldiers of the realm like those of medieval kings who were chosen to defend the king in the service of their country, except that they have no royal criteria to meet in the protection of a king, only enough to qualify them to serve the poor and are therefore poorly rewarded. They are funded by the taxpayers, even when assigned to defend those who have had great wealth when arrested; wealth that was then legally confiscated. Other legal champions, like royal challengers, are richly rewarded, having been chosen for their aptitudes and accomplishments which they market to those who can bear the cost. There are exceptions of course. A high-profile case can provide beneficial exposure and promise of a high-profile victory can attract new clients and be translated into justifiably increased, future fees for representation.

Remuneration from the sale of book and motion picture rights to the inside story are usually envisioned as well.

It would seem that the defense attorney position needs to be revised and limited to the original purpose of assuring a fair and impartial treatment by the court in the determination of guilt or innocence, and fair and impartial administering of sentence, in the event of conviction. The prosecution is far more limited in its endeavor to obtain a verdict than the defense. While defense attorneys may succeed in having convincing evidence of guilt withheld, prosecuting attorneys cannot have technicalities excluded that might deter an otherwise straight-forward prosecution. Defense attorneys have made increasingly successful use of flimsy precedent rulings, which continually increase, and employ clever manipulations of the letter of the law to subvert legal intent.

The fee that a defense attorney can command is usually based on his demonstrated ability to protect the guilty. Attorneys commanding such high fees are called in when a conviction is anticipated, usually because of overwhelming evidence. They then function as the enemy of the people when they attempt to prevent a just verdict of guilty.

They attempt to use their cleverness to prevent rather than assure a fair trial. We need a way to exclude the purchase of the excessive legal protection that denies fairness in the justice system. However, reliance on various rulings to correct this situation, would probably fail due to myriad interpretations, and an any included attempt to arbitrarily limit the fees of defense attorneys would be impractical.

Perhaps we could accomplish our goal by simply requiring that the remuneration of prosecution and defense be made substantially equal, with upward adjustment in standard prosecution fees to be borne by the defendant rather than the taxpayer. While it would ostensibly appear that an accused would sometimes be paying in part for their own conviction, it would help prevent the financially superior from obtaining a more favorable form of justice. The role of prosecutor would begin to be as attractive as that of defense attorney in criminal case. Far more enlightening legal contests would surely result, and better precedents be established, if champions were well matched. If we should succeed in doing something of this sort, we would need a means of policing all avenues of compensation and exact a disbarment penalty for rule infractions. It is unfortunate, but some form of corruption is certain to eventually arise to mar the practicality of this or any other idealistic proposal. When attorneys for the defense are willing to consider media deals as part of their compensation, prosecution should be allowed the same privileges while providing restricting guideline for both to ovoid increasing tendency to turn the administration of the law into entertainment. While prosecution attorneys would still be appointed from those available and paid the newly determined fee, bureaucracy is involved and there is always the possibility that selection will be according to something other than demonstrated ability. We are constantly reminded that perfection is always the unreachable goal.

While members of the general public should be primarily concerned, most of them simply expect elected officials and appointees to fulfill their stated functions and are prone to accept a defensively explanatory "spin", when it is revealed that they have not.

People typically have far too many concerns in their personal lives to devote any substantial part of their time to a continual reassessment of bureaucratic integrity.

DOUBLE JEOPARDY

The idea of providing protection against double jeopardy, or trying the accused twice for the same crime, has been useful in providing closure for all concerned. But such finality is often achieved at the expense of justice. In more primitive times, such as evidenced in the history of the early west in the United States, some of our present verdicts would have, quite probably, infuriated the townspeople to the point of hanging the accused, the judge and the attorneys on both sides. While they were going about what they perceived to be a work of correctional justice, they might be inspired to hang the members of the jury as well. We are more civilized now and acceptance of shockingly ridiculous verdicts has become commonplace.

While any consideration of public interest tends to be less interesting and evoke less sympathy, It would seem reasonably equitable to provide the people at large with rights that equal those of an accused individual. Among such rights would be the right to appeal a not-guilty verdict on much the same grounds afforded the defendant for the appeal of a guilty verdict. The convenient finality of closure of double jeopardy protection would still be recognized, except when evidence is sufficient to support a request for retrial. If the same criteria for retrial were applied to both sides two purposes would be served. Fewer unjust verdicts would be handed down, since they would be considered to be unlikely to stand. Fewer defendant appeals would be filed on the basis of procedural technicalities that have no bearing on matters of guilt or innocence. A not-guilty verdict, won by an expensive and manipulative attorney, would be a Pyrrhic victory for a guilty defendant, with a second contest to be expected and less likely to be won.

EVIDENCE

If we are truly interested in justice; predicated upon the guilt or innocence of an accused, we cannot in good conscience exclude any substantive evidence or information regarding any extenuating or mitigating circumstances that might affect our considerations. We should be able to hold legitimate evidence as untainted, even when obtained improperly, and hold the impropriety separably subject to prosecution and penalty. We must protect our citizens against invasion of privacy and unwarranted search and seizure and penalties should be severe enough to deter such action, but when evidence is uncovered, however it is uncovered, it is a far more grievous crime to ignore it.

APPELLATE COURT

Witnesses for both the prosecution and defense are often openly subjected in court to harassment and intimidation by those who disagree with their position, and it is such treatment by the courts that most discourages witness cooperation, especially when there are numerous appeals. The time lost and effort expended to act as a witness also increases the likelihood that appeals will eventually prevail. Witnesses for the prosecution may tire and change their stories or feign forgetfulness just to end the agony of their usefulness.

If they do not, they may simply find various ways to become unavailable. A friend lost many days away from his office when forced to testify at the trial of a professional lawn ornament thief who stole his birdbath. His business loss was many times greater than the cost of another birdbath and he is unlikely to report a similar loss. Future thieves are sure to benefit. Time also serves the defense when prosecution witnesses legitimately move away, become too ill to testify or die. Subjecting a witness to the torture of a vigorous cross-examination, and attempted character assassination in order to invalidate their testimony are among the possibilities that can be anticipated and that act to discourage cooperation. Recordings of initial testimony and cross-examination in the presence of the defendant, which could be replayed when required, would be inadequate without being subject to challenge. However, any witness recall could also be video recorded outside the courtroom, at a time convenient to the attorneys, and the witness given equitable compensation for time, travel and work interruption. It is hoped that adoption of the previously suggested equalization of prosecution/defense rights and fees would shorten trials and eliminate most of the appeals.

OUR PEERS

We are said to have have a right to be judged by our peers.

Perhaps such a right should be characterized as a right of the people rather than that of the accused. Judgment by a peer group does not, as many think, invoke more sympathetic considerations but works to assure a more just verdict. Many defendants are quite pleased that they are not judged by their true peers, since a clearer appreciation of their situation might result in a harsher verdict. Someone with medical training is more likely to personally know if the actions of someone else in their field can be considered professionally acceptable or not.

Those outside the field have their opinions formed by whatever they can understand in the testimony of witnesses, qualified as expert, who often offer conflicting opinions. While the current perception of equality under the law currently seems equitable to most, defendants are unlikely to be truly judged by a jury of peers, if such can be defined as those of equal standing in regard to age, sex, personal appearance, wealth, occupation, religious affiliation, political belief or any other factor that makes one different from another. It is impractical to expect such explicitly defined peers to serve as their jurors, but unless an accused is unemployed, a low-level government employee, or otherwise has little else to occupy them, the accused is unlikely to be judged by anything remotely resembling a peer group, unless some of the preceding once answered to their description and can recall having life experiences resembling their own. In any case, it is very unlikely that there will be a single bank employee in the jury at a banker's trial, or even one retired medical practitioner at a doctor's trial, if they were available in the jury pool they will probably have been eliminated by the prosecution, as having a favorable bias, or by the defense as possibly inclined to be overly critical. While attorneys' selections are intended to eliminate those with unwanted prejudices, they typically have to accept the unchallenged. Background information may not be available, and they too often have to rely on the veracity of a prospective juror's statements to determine acceptability. Even when technically true, such statements are only marginally useful in determining attitude. Attorneys try to develop a keen personal judgment in these matters as a partial compensation but, in many instances, this is a bit like relying on witchcraft. Perhaps we all need to provide the courts with periodically updated prospective juror information. Perhaps jurors need to be more forcefully conscripted.

Lawrence Edward Bodkin, Sr.