PUNISHMENT or PENALTY?

Now that the 2013 World Series has ended, with all its twists and turns,  who can forget Game 3’s dramatic conclusion as the St. Louis Cardinals won on that infamous “obstruction call.”  Nobody was satisfied that the game should be decided by a runner obviously tagged out at home plate being awarded the winning run because he got tangled up in the third-baseman’s legs, while trying to break for home, when the catcher’s errant throw to third whizzed by the helpless fielder.

Nobody was satisfied with the way it ended, and yet after reviewing the call, nearly everybody — including the losing manager of the Sox — conceded that the umpire had “gotten it right”:  The fielder, whether intentionally or not, had obstructed the runner’s attempt to run the bases.  Whether his obstruction was accidental or intentional, under the rule, it made no difference.

But should it?

Commentators suggested that the rule itself was at fault.   The “obstructing” fielder’s intent should make all the difference.  If it was an accident, then no team should be punished by the loss of a game, much less a World Series game.  On the other hand if the obstruction was intentional, the Sox got what they deserved.

Major league baseball itself announced it will revisit the rule in the off season.

Should the result of obstruction hang on the obstructing player’s intent?  Chief Justice Oliver Wendell Holmes once famously observed that “even a dog knows the difference between being kicked and stumbled over.”  Perhaps in the clear case.  And to this old dog, the third baseman, twice raising his legs, did intentionally impede the runner from dashing home with the winning run.  And therefore the Sox, for whom I’m rooting, got what they deserved by losing the game.

But thinking like this, I would argue, obscures the true nature of the rule and the rightful consequence of enforcing it.

Awarding the obstructed runner the base and therefore the team the game was not a punishment to the losing team.  It was a penalty – imposed to compensate the injured party.   There’s a world of difference between punishments and penalties, although the same Justice Holmes, a pragmatist, would deny it.  He counseled that if you want to know what the law is, and nothing else, look at it from the perspective of a “bad man.”  A bad man selfishly wants to know one thing only:  What’s going to happen to me?  Thus for Holmes and other pragmatists, the law becomes nothing more than “a prediction of what the courts – (umpires) – will do.”  To these “realists” – some of us would call them cynics – there’s no difference between a tax or a fine.  It’s all a cost of doing business.  The cost of obstructing the base runner, whether intentional or not, is to award him the base he would have reached.

Instinctively, however, most of us base punishment largely on the culpable mental state of the actor.  Two children die in a fire.  If they intentionally set the fire they’ve committed murder.  If they  accidentally knocked a candle off a table and didn’t even realize it, it’s a tragedy, but not murder.  Same harm, very different reaction.

So the point is, if we see the winning run as a punishment inflicted on the Sox, then the fielder’s intent should matter.  If however, as the rule reads, we hold the obstructing team strictly liable for the results of the obstruction – not as a punishment but as a penalty to keep the game on its correct course – then the rule as it stands was correct.

As everybody involved in criminal law and everyday life learns, we can only infer culpable mental states from surrounding circumstances.  Not always an easy matter.  I happen to think this particular obstruction was intentional – at least it sure appeared that way on replay.  But whether or not it was intentional, justice was done under the rules.

And when the Committee does revisit the rule – to assess the justice of the rule itself as opposed to the correct call made under it, I hope they keep the rule as is.  Penalties are not punishments.  Sometimes it’s important to remember the difference.

 



All’s Well That Ends Well?

So the U.S. and Russia has struck a deal, and the UN Security Council signed on.  Syria will fork over its chemical weapons – probably – for destruction, eventually.  The “international community” will destroy them.  Problem solved.

But is it?

Assume Assad, the mass-murdering international outlaw with friends in high places, means to comply with this agreement, and not secretly transfer his lethal contraband to confederates such as Hezbollah or Iran to commit further war crimes.   Assume this ruthless killer will be disabled for the foreseeable future from obtaining or using outlawed weapons of mass destruction, even as he becomes better assured of staying in power.  Other would-be criminals against humanity will witness this outcome and draw appropriate lessons.

What’s wrong with this picture?  This chemical castration, if carried out, incapacitates Assad somewhat.  Perhaps the memory of almost being degraded by U.S. missiles will convince him not to commit further war crimes, by either repeating this particular offense, or committing the next with nuclear or biological weapons.  Imagine, and it’s a stretch, that other would-be murderers, similarly situated – say Iran, in the midst of its own charm offensive – feel deterred from their own contingently planned criminal behavior.

Let’s stretch the scenario beyond the outer limits of reason.  Imagine this new deal and near miss with U.S. missiles causes Assad to regret and repent the hundreds of children he gassed to death.  He suddenly feels transformed with a new set of values that will hereafter restrain him from future mass murders of innocent civilians.

According to this rosy but unrealistic picture in classic terms, the deal now struck between Russia and the U.S. at the UN incapacitates Assad, specifically deters him, generally deters others, and rehabilitates him.  Furthermore, the vaguely written final text of an artfully crafted UN resolution denounces his despicable behavior in poison gassing a village while not specifically attributing responsibility to him.  All traditional purposes of the criminal law have been served.

Except one.

“What about the murderer Bashar who gave the order?” Gen. Salim Idriss, the Syrian rebel commander, demanded of the powers that be, when both sides first announced the possible U.S./Russian deal.  “Should we forget him?”  Gen. Idriss rejected this dirty deal for one simple but deep-seated reason:  It fails to punish the mass murder retributively.

The past counts.

We too easily forget that justice means more than deterrence, incapacitation, rehabilitation, and denunciation.  Justice for the worst of the worst requires retribution – actual, proportionate punishment.  The vague UN resolution does threaten someday to punish ‘those responsible’ for the August attack without assigning blame.  Likely, after Assad’s regime has crumbled, if he’s left alive, he’ll be punished for this or a thousand other crimes.

Meanwhile, by setting a timetable for weapons’ destruction that assures Assad at least another year in power, the UN resolution rewards this crime against humanity — while the world rejoices at the peaceful resolution, without much caring whether the criminal gets his just deserts.



When We Can’t Kill Those Who Deserve To Die

By ROBERT BLECKER, The Hartford CourantApril 1, 2012

Once again the politicians think they know better than the people, preparing to abolish capital punishment in the teeth of popular support for the death of those who most deserve it.

Ask the people about Joshua Komisarjevsky and Steven Hayes — at least three quarters of Connecticut knows that these depraved and sadistic monsters deserve to die for raping then burning alive the Petit family in 2007. But the majority of Connecticut’s General Assembly and governor would abolish the death penalty, call it “justice” and call it a day.

If the legislature abolishes the death penalty, it will be a great day in Connecticut for the worst of the worst. Condemned killers on death row, no less than experts on both sides, all understand “prospective only” abolition as a fraud.

The state will never execute anybody for a crime that could no longer get death. The death penalty and death row will be left to wither. Russell Peeler, who had an 8-year-old and his mother killed to eliminate the child as a witness; Todd Rizzo, who used a sledgehammer to beat to death a 13-year-old boy to know what it felt like — all the condemned can look forward to their release into general population where their crimes will be forgotten and consciously ignored by officers and prisoners alike, eager to make the best of their lives, day-by-day.

Historians will record it. In 2012, the death penalty in Connecticut had this feel: Unable to withstand well orchestrated and relentless attacks, weighed down by disuse and expense, its time seemed to have passed. The whole institution felt like a burdensome vestige of an irrational obsession with the past. Even Dr. William Petit Jr. appears more prepared than ever to move on, with his announced marriage and absence from the latest hearings before a judiciary committee preset to recommend abolition.

Grieving survivors should never be made to feel guilty in giving up the hate and getting on with their lives. But Dr. Petit was not murdered, raped and burnt alive. His family was. We, the political family of the victim, although one step removed, in our righteous indignation, our need for justice — we, strangers but fellow citizens, fellow survivors, equally vulnerable to viciousness and terror, feel — yes, feel — continually connected to the slain. Compared to the survivors’ grief, immediate and intense, enduring sometimes crippling — our righteous indignation, our rage at the callous or sadistic murderer may seem mere commentary. Their healing takes priority.

Many immediate survivors could better come to terms with their loss, but for this nagging feeling that moving beyond their anger means letting down their loved one. Only by keeping the wound fresh, they fear, can they keep the memory alive. They may feel guilty in healing, as if looking forward turns their backs on their beloved and buries them a second time.

Although brutal murderers may enjoy long lives in prison while the memory of their suffering victim decays, many abolitionists, especially devout Christians, maintain their moral equilibrium through faith that justice will be done in the hereafter. This belief consoles them. The need for justice may especially incline victims’ survivors to those religious beliefs — seeking as they do, solace in the face of suffering. It would console me to believe that my loved one’s brutal murderer will someday face ultimate justice. Our secular society, however, separates church and state. We, the people, commit ourselves to human justice in this world — here, now — as if there will be no hereafter.

Can we abolish the death penalty and still keep our covenant with the victim we never knew? Never to forgive; never to forget. Can we keep the fire burning until justice at last is done? We, fellow citizens of the slain, declare to the survivors: The voice of your brother’s blood, your parent’s blood, our children’s blood, the blood of your beloved, cries out to us from the ground. It remains our responsibility and we accept it: to continue to hate sadistic viciousness, and callous predators. We will not allow politicians’ anguished deliberation to diminish our felt need for justice.

Now is the time to take our turn at the watch; to sit in for the family. We pledge to the survivors we will not let our anger cool, our memory decay. We will retain our righteous indignation, and keep up the pressure for justice. And if we no longer can punish the worst killers by the death they deserve, we will do our best to keep a covenant with the dead. We pledge to the victims that we, the lucky, spared the murderous wrath of their depraved and sadistic killers, will punish those murderers every day with life. Steven Hayes and Joshua Komisarjevsky deserve to die. If the state keeps them alive, they deserve to live miserably, forever condemned, segregated and denied the perks and privileges of daily prison life.

The end of death as punishment does not end, but opens a conversation. What should the punishment of life feel like, day-to-day, when we can no longer kill those who most deserve to die?

Robert Blecker is a criminal law professor at New York Law School. Part I of his punishment memoir, “Let the Great Axe Fall,” is available as a Kindle Single


Playing Poker with Iran

Would declaring it not a bluff make it more or less likely that the threat was a bluff? Well that depends on the purpose of a bluff. Many of us may think the purpose of a bluff is to win with a losing hand. But I came to understand from two very different sources that’s not how it works.


Over A Barrel: Insurance — the Tail that Wags the Dog

Over A Barrel:  Insurance — the Tail that Wags the Dog

Unable to sleep, I tuned on CNBC – a business channel – this morning and heard an oil analyst attribute much of the spike in oil prices to the higher insurance costs surrounding the uncertainty over Iran’s near term actions.  The analyst further suggested that these days, insurance rather than any true equilibrium of supply and demand irrationally determines the price of a barrel.

Insurance, I’m discovering, plays a much larger role in life, including the arts, than we might imagine.  I was struck by this not long ago when a friend of mine, Richard Abramowitz, advised me that I’d have a hard time ever showing my documentary “The Death of Punishment” if it included a scene inside the library of a maximum security prison, where a prisoner/librarian, sat back leisurely listening to Crosby, Stills, Nash & Young’s classic song, “Woodstock” while the camera panned along rows of books and focused on – yes, the prison library’s well stocked “True Crime” section.  Got to keep the prisoners entertained and informed!

So why couldn’t I show that?  Because the band was unlikely to allow it.  Now we do have a legal doctrine of “fair use”, which allows anybody to use small pieces of others’ work, provided we’re not expropriating, or stealing its creative core.  I was just recording the scene as it happened which included only a few seconds of the song.  I wasn’t stealing the music, the tune, the sequence or anything.  Surely this qualified as “fair use.”  Legally, sure, Richard, conceded.

But that didn’t mean any distributor would distribute the documentary.  “They’ll never get E&O insurance” Richard informed me.  And without it, no theatre will show it.  “E&O”, I learned, stands for “errors and omissions”.  Apparently few if any films are released or shown without that insurance, which protects the theatre owners from lawsuits, however frivolous.  And the insurance company will not issue the policy without the songwriter’s or performers’ release.  And the artists will not sign the release if the scene disturbs their political sensibilities.

So much for the 1st Amendment.  So much for our commitment to truth.  A higher principle intercedes:  insurance.

It’s a shame, and I haven’t made a deep study of it, but I suspect that insurance rules our lives to a greater degree than we imagine or even suspect.  I wish someone would blow the lid off this.  But if they did, perhaps no one would distribute it – not without proper insurance.


The Shadow

Poor Mitt Romney.  Seems every time he might get some traction these days, something messes up.  The latest – his appearance at Ford Field in Michigan, a football stadium with 65,000 seats, drew a crowd of 1200 to hear his major address.  It’s a respectable number in itself – but not in that setting.  And as the photos of the mostly empty space circulated in e-space, the atmospheric takeaway:  Romney plummets.
I learned travelling with my antifederalist monologue, “Vote NO!” – the best case against the Constitution by those who opposed it — how important the choice of venue.  One performance in a hotel’s cavernous grand ballroom that held 1200 drew two hundred  – very respectable for this kind of event.  And yet we felt like a tiny band,  mostly huddled around tables near the front, the rest lightly scattered about.  The performance began with an air of disappointment and fell flat.  The actor felt off from the start and later blamed the space.  Another time, we performed in a small town library on a snowy night.  The sponsoring humanities council, distressed at the weather, wisely shifted the venue last minute to a room that held 20.  Thirty two people showed up that night – some sat along the side on a radiator.  The place was packed, the performance electric.
Sometimes, though, the choice of space simply doesn’t matter.  I’ll never forget the first time I spoke publicly about my prison experiences.  Boston University – they reserved a large auditorium.  The hosts took me to a Chinese meal, and we suddenly realized we had gotten lost in conversation and the event was about to begin.  So we feverishly raced back to the auditorium, and burst through the door – 8:02 for an 8 O’clock start.  The place was empty.  We looked at each other.  Someone had obviously posted the wrong venue.  My host ran outside to check the posters and returned looking pale.  This was the spot.  Nobody was there.
Suddenly the door opened, and a lone young lady entered the large auditorium, looked at the four of us on stage, walked down the aisle, and plopped herself in the front row.  Now what to do?  Every person matters.  Who cares about the size of the audience?  It’s the strength of the message.   “Neither rain, nor sleet” – no that’s the post office pledge.  Besides the show must go on – ah, there’s the right cliche.
I cleared my throat, scanned the virtually empty auditorium, and altered my approach on the spot to address the audience of one.  “As we were talking about at dinner, Lorton prison offers some disturbing lessons—“  I saw her visibly discomforted.  She would get it, I imagined, and pass it on.  “Excuse me,” she interrupted, “but this isn’t the French Review session.”
It seems in life, nearly every event, every experience, every relationship is a ratio.  Nothing is itself.  They carry and cast shadows of their potential.  But zero/anything is still zero.  Is anyone reading this?  If you are, alas, it’s not the French review.

 

 


Taking the Penalty

Game and sport illuminate life. Where the offense seeks to penetrate a sacred space – score a goal, a basket, a touchdown – we playfully replicate sexual and power dynamics of human and political relationships.


Is Death Row a Form of Psychological Torment?

Death Row is Torture

Is Death Row a Form of ‘Psychological Torment’?

To the Editor:

“Lifelong Death Sentences,” by Adam Liptak (Sidebar column, Nov. 1), says that “foreign courts have ruled that living for decades under the threat of imminent execution is a form of psychological torment.” But the condemned do not live under threat of imminent execution; the long delays give the lie to that claim.

The condemned have advance notice of each execution date and learn to discount them with each successive stay. As my visual documentation of life on death row in several states shows, most often life on death row is more laid back than the daily life of convicted murderers sentenced to life.

Mr. Liptak cites the observation by the Columbia law professor James S. Liebman that we produce too many death sentences. True. But as Mr. Liebman and I declared in a joint op-ed article in The Houston Chronicle (May 25, 2003), opponents and death-penalty proponents can find common ground by narrowing the death penalty to the worst of the worst. Then we should shorten the time it takes to execute these monsters.

ROBERT BLECKER New York, Nov. 1, 2011