September 7, 2004

"Why" Doesn't Matter

I've been giving a lot of thought lately to the current state of affairs in the United States, and I think I have finally figured out when things started changing for the worse in our culture. It's the moment that we let "Why" matter.

Let me explain.

Up through World War II, if you committed a crime and were caught, you were sentenced and did your time. That was it. There was only one crime where "Why" mattered, and that was murder. If you killed someone in self-defense, it was considered justifiable homicide.

Starting in the late 1950's and going through the 1960's, however, motive started playing more of a part in judgment. Due to a rise in the visibility of mental disorders due to "shell shock" from WW2 veterans, an additional defense was brought into general use: Not Guilty By Reason Of Insanity. If you weren't in control of yourself due to mental illness, you were sent to a hospital until you got "better" instead of being sent to jail.

From there, it was a simple step to emotional distress: the wonderful "Temporary Insanity" plea. Then, a criminal's past came into play. "You see, Your Honor, my client was fondled by an ice cream salesman as a child, so when the victim bought a Rocky Road ice cream cone and walked by my client, he was actually taunting my client, so my client had no choice but to drag him into his basement and chop off his head with a dull hacksaw, refrigerate the remains and slowly devour them over a three-week period in order to protect himself."

We spend so much time trying to discover why people do what they do that the rights of the victims are forgotten. When looters are let off the hook because they weren't aware that looting wasn't wrong, we're robbing the store owners all over again. When we let murderers off the hook because the only reason that they killed was because they had low blood sugar, we're slaughtering their victims all over again.

I think that there is a simple solution to this, but it's one that judges (especially in the 9th Circuit) are unlikely to do. For each charge, tell the jury to disregard motive. Simply ask, "Did they do it? Yes or no?"

If the jury decides that they did the crime, if it is a crime that has multiple levels, such as homicide, where motive does matter, the judge should be able to make a judgment call based off of the facts presented in the case.

Finally, I think that Texas has the right idea. If you kill someone (not in self-defense) and three or more credible witnesses see you do what you did, forget years of endless appeals. You've got a date with a lethal injection. Don't be late.


S said...

I don't know where you got your legal history but your description of insanity defense is inaccurate. Insanity defense has been one of the oldest defenses in legal history. Records go back to ancient Rome and written cases decided on the insanity defense can be found from cases as old as 1724 in England. They weren't limited to murder cases, either: any crime that requires bad intent, such as murder, burglary, theft or battery could be defended on the ground of insanity.

I'm not even sure whether it started playing more of a part in trials. It certainly is a favorite pinata for people advocating tougher stance on crime but the fact is most insanity defenses go nowhere. Often, this is grossly exaggerated by the media (for example, the "Twinky Defense" actually did not succeed--the guy got off on other grounds but media hype contorted the case in public mind).

Finally, your suggestion that the judge make a judgment call on whether the defendant would be insane would be flat unconstitutional. The Sixth Amendment guarantees the right to a jury trial. Since, as you admit, insanity is an essential element of a crime, allowing judge to determine that fact would take the case out of the jury's hand into the judge's. You think that's a good idea? Fix the constitution.

Michael Russell said...

Thank you for well-reasoned response. I will agree that perhaps I did harp a bit much on insanity defenses.

Also, thank you for pointing out that my "judge's discretion" comment was not as clear as it could be.

The Sixth Amendment states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.However, once guilt is established by the jury, the role of the jury (determining whether or not the accused is guilty beyond a reasonable doubt) is essentially over.

I'm not saying advocating that the jury be eliminated. For all of its flaws, the jury system is one of the better elements of our system of justice. What I am advocating is giving the judge the option to reduce the charge after a guilty verdict from a jury based off of the facts of the case. In exchange, the role of the jury should be reverted to its basic role, which is merely to determine whether a violation of the law occurred beyond a reasonable doubt.

However, that change itself may violate the Due Process clause of the Fifth Amendment. After all, in Solesbee v. Balkcom, it was found that due process is violated if a practice or rule "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."*What do you think?