Moral Judgment: Does The Abuse Excuse Threaten Our Legal System?
144
Moral Judgment: Does The Abuse Excuse Threaten Our Legal System?
144Paperback(REPRINT)
-
PICK UP IN STORECheck Availability at Nearby Stores
Available within 2 business hours
Related collections and offers
Overview
Product Details
| ISBN-13: | 9780465047338 |
|---|---|
| Publisher: | Basic Books |
| Publication date: | 04/11/1998 |
| Edition description: | REPRINT |
| Pages: | 144 |
| Product dimensions: | 4.90(w) x 7.90(h) x 0.50(d) |
| Lexile: | 1490L (what's this?) |
About the Author
Read an Excerpt
Many Americans worry that the moral order that once held the nation together has come unraveled. Despite freedom and prosperity—or worse, perhaps because of freedom and prosperity—a crucial part of the moral order, a sense of personal responsibility, has withered under the attack of personal self-indulgence.
By responsible people I mean accountable: We ought to answer for our own actions and not, save for the extraordinary reasons, claim that we were compelled to act badly by forces over which we had little control. We all know that society helps shape our character, but most of us deny that society excuses it. People ought to own up to what they do and accept the consequences of their actions. High rates of crime, the prevalence of drug abuse, and the large number of fathers who desert children and women who bore them all support the popular belief that responsibility has given way to selfishness.
Nowhere does the problem of personal responsibility seem greater than in the criminal law. The public worries that criminals are too often excused rather than punished or, if they are punished, that the sentence is too short when imposed and even shorter in practice. The public suspects that criminal trials, especially those involving murderers, have been hamstrung by the introduction of a range of implausible excuses. These range from the so-called Twinkie Defense, a claim of judgment impaired by the toxic effects of junk food, through claims of psychosexual abuse used by Erik and Lyle Menendez to produce a hung jury in their first trial, to arguments that a woman may castrate or shoot a brutal husband even though he isasleep. Americans have never been entirely comfortable with the insanity defense as raised by John Hinckley after he shot President Ronald Reagan; that discomfort has been heightened by what people view as an indefensible effort to extend insanity, narrowly defined, to include psychological states described by such terms as "temporary insanity" or "diminished capacity" or by various "syndromes"—premenstrual, postpartum, posttraumatic, and the like. The emergence of these concepts suggest to many people that essential notions of personal responsibility have been weakened by the frivolous use of dubious theories of social causation. The stern task of judging the behavior of a defendant, based on a dispassionate review of the objective evidence, has given way to explaining that behavior on the basis of conflicting theories presented by rival expert witnesses speaking psychobabble.
Experts on criminal justice see the matter quite differently. Though the law reviews are filled with learned and subtle discussions of every new defense claim that is considered by an appellate court, and though some journals overflow with proposals from law students for even more fanciful defenses, law professors are usually inclined to dismiss public anxiety over such novel defense stratagems. The insanity defense, they point out, is rarely raised and even more rarely successful. And a person found to be insane may spend more time in an institution than one convicted of murder. The Twinkie Defense, though it made for interesting headlines, probably played no role in the case of Dan White, accused of shooting two San Francisco officials. New defenses are being introduced, but few of them lead to killers being acquitted; at most, theories about the mental state of the defendant may lead to verdicts of manslaughter rather than murder, and even that occurs only infrequently. The first trial of the Menendez brothers was an anomaly, not at all representative of the great majority of homicide prosecutions. To be sure, the battered-woman syndrome has been introduced into many trials of women who killed their husbands, but such killings are unusual; the syndrome rarely leads to any outcome more questionable than a lenient sentence based on a recognition of grave prior brutality; and, in any event, battered women are entitled to have the jury hear what has befallen them at the hands of a sadistic or out-of-control husband. Finally, all these excuses, defenses, and syndromes can have no greater effect than a jury chooses to give them; if jurors find such arguments compelling, there is no more reason to exclude from the trial these claims than there is to exclude physical evidence.
Though the public is not comfortable with the lawyers' response, there is considerable logic and some evidence behind it. Legal experts—law professors and criminologists—argue that the American criminal justice system is the most punitive in the free world: more likely to convict, more likely to imprison, and more likely to execute than that of any other democratic nation. We are frequently told that the United States incarcerates a higher proportion of its population than any other nation.
In response, many citizens argue that if this is so, it is only because America has vastly more crime than other nations. For each crime committed, they suggest, we still are more likely than other nations to excuse the offender and moderate the penalty.
In fact, both academic experts and ordinary citizens are partially correct. The experts are right to say that we have a higher fraction of our population in prison than do most other nations, but the citizens are right to think that the chances of going to prison for having committed a given violent crime were, at least in the early 1980s, about the same in America, Canada, England, and West Germany. The experts are correct to argue that America imprisons more of its burglars than do many other nations, but the citizens are right to think that this difference may help explain why the American burglary rate is significantly lower than it is in Australia, Canada, England, the Netherlands, or Sweden. The experts are correct to suggest that America hands out stiffer sentences for property crimes than does Canada or England, but the citizens are right to think that American sentences for property crimes have gotten shorter than they were in the 1950s and that sentences for homicide are not only about the same here as in other countries but are also relatively short (in the early 1990s around six years for the nation and around four years in California). The experts are correct to suggest that America has increased the use of prison for drug offenders, but the citizens are right to think that, at least in the states that have been studied, these offenders rarely go to prison just for selling drugs—most have much more serious criminal records. The experts have some grounds for saying that America is a punitive nation, but the citizens are right to suspect that when incarceration is based on crime rates and time served, America handles murderers much as other democratic nations do, is somewhat more punitive toward burglars, and seems to enjoy (perhaps as a result) a lower rate of burglaries than other countries. In short, the crime policies of this country are more complex than most persons imagine.
These complexities are not widely understood and, in any event, pale into insignificance in the context of a particular trial that has caught the public's attention. When Dan White was convicted of murdering two San Francisco public officials, when Bernhard Goetz was exonerated after shooting some black youths, when the first trial of Erik and Lyle Menendez led to hung juries, or when O. J. Simpson was speedily acquitted of his murder charge, what generally happens to murderers becomes much less important than what happens to a particularly notorious one. If there is an acquittal or a light sentence, we are treated to media complaints about the existence of mental conditions and social causes that excuse defendants and to arguments about the influence of race on jury decisions. We are aware that celebrated cases attract skilled attorneys and we suppose—with some reason—that expensive or highly motivated legal talent will produce results that are quite different from those in ordinary cases.
The best defense attorneys will raise the most detailed and persistent objections to prosecutorial arguments, urging every objection that has any support in the rules governing how evidence should be collected, testimony taken, and data processed. Beyond this they will try to portray the defendants as the victims of forces beyond their control—spousal abuse, parental mistreatment, psychological depression, questionable diets, and personal confusion.
Since most citizens have a tough view about crime and its control and regularly join with their fellows in denouncing defendant excuses and judicial leniency, one would expect that most jurors would repeat in their private deliberations the views that animate them in the public square. But repeatedly a remarkable transformation occurs: people who denounce crime as citizens understand, if not excuse, particular crimes as jurors. To some extent this reflects those attitudes we want jurors to display. We hope they will put aside passions and preconceptions, judge each case on its merits, and think dispassionately about what happened. But often our hopes lag well behind the reality: a representative group of jurors, most of whom have feelings about crime no different from those of the average citizen, decides a matter in ways that they would have likely denounced had they stayed out of the jury box.
What People are Saying About This
"In this thoughtful and story-packed book, Wilson shows how the criminal justice system has become a kind of theater of the absurd."
"Already our leading political scientist, Wilson also established himself as our leading moral philsopher with The Moral Sense. Now with Moral Judgment, he confirms that standing whilecasting new light on the sorry condition of our criminal justice system."