Archive for March 2007

Insanity and Response to Hart

March 28, 2007

When people ask me what factors could mitigate responsibility in a criminal case, insanity is always the first that comes to mind.  So it is interesting that we are covering it so late in the semester and that the literature about it is relatively sparse.  I think this is because as MacNiven said, lawyers are not psychologists, so they do not have expertise with this condition and cannot write very profoundly about it.  Likely in court, the burden of proof for insanity falls on doctors, not lawyers, and we must consider each case individually because every madman is different in his own way.

One of MacNiven’s arguments which I had foolishly not considered before is that there are different levels of mental illness, so a defendant should not escape sentencing based on minor conditions like ADD.  A person with mild or moderate mental illness can still control his actions enough to avoid breaking the law.  We should excuse only severe cases, and these should be sent to the asylum immediately after trial.  My suggestion is that an inmate should serve at least as much time in the asylum as he would if he were in prison.  This would deter some criminals from pleading insanity in my opinion.  Regardless, with neurology constantly improving, we should now be more equipped than ever to correctly judge cases featuring these pleas.

“Temporary insanity” seems like a ridiculous concept to me absent medical evidence.  Congressman Daniel Sickles tried to use it in 1859 when he was tried for killing his wife’s lover.  Certainly, Sickles killed the man out of rage and shame, but I would still hold him responsible, following Aristotle’s rule that a man should bear responsibility for actions under an avoidable condition (see: drunkenness).  How many people go temporarily insane, anyway?

Hart considers the role of punishment in “Punishment and the Elimination of Responsibility.”  He is skeptical of the role of punishment, and so am I.  This is a difficult topic for me and for the West due to Jesus Christ’s advice for one to judge not lest he be judged, to always forgive his neighbor, and to turn the other cheek when one has been struck.  It is much easier for me to accept incarceration as protection against future wrongdoing than as punishment.  A total restriction of punishment, however, would even preclude parents from spanking unruly children, not to mention the punishment nuns would mete on children in generations past.  If Jesus meant we should never punish, how could so many believers disregard that advice?

Hart’s argument that sentencing is arbitrary seems quite strong to me.  Yes, we continue to shape our statutes every year, and yes, there is a general correspondence between the seriousness of the crime and the seriousness of the punishment, but who decided how many years of prison theft merits or how many dollars should go into a parking fine?  Most are sensible but rough estimates in my opinion.  The policy of giving treble damages to a plaintiff is also really an approximation.

Parole, or the early liberation of certain prisoners for good behavior, seeks to provide rehabilitated criminals an escape route, but it is a controversial practice.  In some cases, it creates the impression that crime has no consequences at all as long as the criminal has the self-control to keep his mouth shut once he’s in jail.

I have one final comment: I frequently hear jokes about prison rape, which for some people seems to be the “real” punishment for crimes.  Should this casual acceptance of prison insecurity and physical violence disturb us?  Should we look the other way on what happens to inmates because they “deserve” it?



March 21, 2007

The selected readings on ignorance were generally reasonable, so I found little to challenge among them.  I agree with the jury’s decision in Reg. v. Prince.  Though the defendant thought the girl was 18, he could not justify taking her without her father’s consent unless she was 21, so he had mens rea.  In my opinion, once mens rea is proven, the accused is culpable for anything he has done.  That is one of the risks of intentionally breaking the law.  I believe this arrangement would change the behavior of would-be criminals, especially when attempting complicated crimes like bank robberies.  Holmes and his utilitarian brethren would likely agree with me.

Sensible as the readings were, they did not have much breadth, so I will spend the rest of this response asking more questions about ignorance and mistake.  For instance, Austin writes that the citizen has a duty to know the law of his own country.  What policy, then, should a country take toward tourists?  The government should not expect a visitor to know all its laws, but it should not grant him total immunity, either.  (Diplomats receive this immunity, but its purpose is to protect them from kidnapping or death in times of war, not from D.U.I. citations in times of peace.)  Since Western nations have similar codes of law, I doubt ignorance would be problematic among them; there may be confusion over drinking age and drug laws, but that would lead to nothing more than a few nights in jail.  Ignorance would be a huge issue, however, for travelers between the West and the East.  For instance, if an American woman travels to a country which practices sharia law, is she obliged to follow all of that nation’s customs?  What about an African tribesman who is arrested for stealing in America, but who lacks mens rea because he believes in communal property?  I believe cultural ignorance should mitigate punishments for travelers, but this generality is not sufficient to judge individual cases.  This branch of international law merits more investigation.

I would also like to examine the case of amnesia.  If a person loses his memory, he may forget the law as well, so should we hold him responsible for any crimes he commits in that period?  I would say no.  What, though, should we do with a criminal who loses his memory?  Should he still be held culpable for crimes he does not remember committing?  On a moral level, it seems fair to excuse him on the basis of ignorance.  It seems we would be punishing the wrong person.  On a practical level, however, admitting this excuse would inspire other criminals to falsely claim amnesia.  The defendant would have to use scientists to prove his argument; polygraph tests might be especially effective.  What would become of a person who regains his memory months or years after the trial?  We could not bring charges against him twice.  The most fair option, then, would be to delay the trial for five or six months to see if the criminal’s memory returns.

Most scholars agree we should not hold the insane or children accountable for crimes because they are not capable of making their own decisions.  I would like to hear their opinions on the proper treatment of juveniles between the ages of 13 and 18.  For instance, Andrew Riley of Ohio was recently charged with 128 felonies, including theft, vandalism, and intimidation.  He is 13 years old, too young to give informed sexual consent, too young to spend life in prison, but old enough to spend significant time in juvenile detention.  So, he is considered partially ignorant about violence and totally ignorant about sex.  Andhow many times have adults said of their childhood indiscretions, “I didn’t know better”?  Adolescence is a complicated age, indeed.

Resumen de Lazarillo de Tormes

March 19, 2007
  • Publicado en 1554 durante el Siglo de Oro
    • El apogeo de poder español (Armada Invencible: 1588)
    • Rey Felipe II, Teresa de Jesús
    • Dos generaciones anterior de Miguel Cervantes y Lope de Vega
  • Crea un género: la primera novela picaresca (cf. Don Quijote, Huckleberry Finn).  Por las aventuras del pícaro, el autor hace comentario social de una manera humorística.
    • Es una de las primeras novelas sobre la vida de un hombre común.  (Los más populares fueron libros de caballeros.)
    • Personajes no familiares tienen nombres típicos: El Ciego, El Clérigo, El Escudero…
  • Estilo epístola: es una carta a una autoridad de la iglesia para que sepa la situación terrible de los pobres
  • Autor anónimo
    • Hay muchas referencias literarias en el texto, pues el autor tenía que ser muy educado, un noble o un clérigo…
      • En el prólogo, Lazarillo, un analfabeto, cita Plinio y Tulio
    • …pero el libro es un duro crítico social, pues el autor se hace anónimo para proteger su posición
  • Crítica social
    • Tres castas sociales: la nobleza, los clérigos, y la burguesía
      • Lazarillo sirve tres amas, asciendo en estatus: un mendigo ciego, un sacerdote, y un escudero.  Pero lo más alto el estatus del ama, lo menos que Lazarillo come
      • El ciego vive por sus ‘profecías’
        • Luchas humorísticas entre él y el chico Lazarillo por comida
        • La columna de piedra
      • El clérigo come mucho pero da nada a Lazarillo
        • La escena con el calderero compara el pan ordinario dentro de la caja del sacerdote con el Pan de Vida
        • Una crítica plena de la iglesia: los pobres necesitan la ayuda temporal más que la ayuda espiritual
      • El escudero está muriendo de hambre, también
        • Perdió su tierra porque se olvidó saludar a un superior en la manera correcta
        • No puede trabajar porque ensuciaría las manos traería vergüenza a toda su familia
      • El budero manda indulgencias divinas en colaboración con el alguacil
    • La situación familiar de Lazarillo
      • Pierde su padre a una guerra contra moros
      • Su madre se prostituta y atrás vive con un hombre moreno para sobrevivir.  Él está ejecutado por robar, la madre azotado por vivir con él
      • Lazarillo sirve el ciego porque su madre no puede apoyarlo más
      • Como adulto, Lázaro tiene seguridad porque su marida es el amante de un sacerdote (quien tiene un voto religioso de celibato)

Response to Dray

March 7, 2007

Chapter Four of William Dray’s Perspectives on History is largely concerned with the amount of control an individual has over massive events which affect millions of people, such as wars.  Dray seeks to refute A.J.P. Taylor, a historian who contended that Adolf Hitler was a passive figure reacting to other, more aggressive politicians, and to international trends which basically guaranteed the outbreak of a conflict, so he was not responsible for World War II, as other historians claim.  In my opinion, Taylor’s belief in the “inevitability” of certain events, and its implied denial of free will, is wrong.

I first heard this theory of history in the last part of Leo Tolstoy’s War and Peace.  The Russian scholar first advocates the determinist position on human conduct: every action we take is predetermined by our desires and our experiences.  Tolstoy then contends that the higher an individual’s social station is, the more he is subject to the wills of others.  Hence a father is subject to the wills of his mother and children, a coach to his players, a president to everyone in his country and most especially to his closest advisors.  According to Tolstoy, it is incorrect to call anyone influential: the general will of the masses, not the particular will of one person, is what moves history.  Napoleon, who considered himself a central figure, couldn’t have gotten anywhere without all the soldiers who fought for him, and the will of the masses is what put him in his lofty place and took him down.  Since the actions of these powerful masses were also determined, everything that happens in this world had to happen.

In my opinion, this “general will” so strongly advocated by Tolstoy and Rousseau is nonsense.  Certainly, I have never been a part of it: each time I participate in a class or an election, I act on my own behalf.  After each election, pundits speculate about what kind of statement “the people” made, disregarding that most “winners” had 48% of the country against them and that each person who supported him had different reasons for doing so.  If there is a general will, it is only as an aggregation of individual wills.  Furthermore, in some cases when everybody acts on what he thinks the others want, no one gets what he wants: the people who constituted the general will could not even understand it, so what utility could it have?

Thus, macro-level “circumstances,” such as “the anger of the German people” about the Treaty of Versailles, are not uncontrollable events or manifestations on the general will.  They are aggregates of the actions of millions of individuals, from businessmen to voters, all of them responsible for their own parts.  A war is never “inevitable;” someone was responsible for everything that leads to it.

As for Hitler, Collingwood provides us a better way to judge the relative causal importance of circumstances and of individual action.  He says that in some circumstances, the “cause” is the deviation from normality which leads to a certain event: for example, if a car stalls on a hill, we blame engine problems, not gravity.  In the case of Germany, Hitler was certainly the primary mover.  His personality and actions were the deviation for which we can blame the war[1].  (Hitler could have chosen to be a pacifistic dictator, of course.)  So individuals made the war possible, and then an individual plunged his country into the war.   Free will was involved all along.

[1] Time Magazine once understood this as well.  Its “Man of the Year” magazine was meant to acknowledge individual contributions to society.  The magazine has plunged in a Rousseauvian direction since then, as evidenced by its selection of “You” this past year.