The quest for justice within the rigidities of the law is what has filled my mind in the past week. Three young men have just been sent to their deaths one after the other for robbing a passenger jeep and killing a policeman in the process. A few days later, another man, past middle age and clearly of middle class background, is sentenced to die for the shooting of a pregnant woman and a child after a traffic altercation between him and the woman’s husband.
Meanwhile, one more rapist awaiting execution gets a reprieve after the Supreme Court orders a re-trial, following its discovery that the 28year-old convict is a deaf-mute with the mental age of an 8-year-old. Such a disability may pave the way for his eventual acquittal. Of parallel interest is the case of a Swiss pedophile, who was charged before a court in Antique for abusing more than 30 Filipino children during prolonged stays in the country, and recently found by a Swiss court to be suffering from a psychological condition requiring not imprisonment but confinement in a psychiatric institution.
Except in cases of severe mental impairment, the law assumes that people are responsible for their actions because they can choose not to act in a particular way. But being under the influence of alcohol or of mind-altering drugs, whose effect may be akin to temporary mental disturbance, is not a ground for avoiding criminal responsibility. The operative principle of responsibility assumes that the offender has the ultimate choice not to get drunk or drugged.
“But this leaves a vast number of cases – the majority indeed,” argues British Lord Justice Stephen Sedley in an essay, “in which a defendant may have been driven by something, inside or outside him or herself to offend. For thieves it may be need, genuine or perceived; for sexual abusers it is commonly a history of having themselves been abused; frequently in mugging or burglary cases it is the compulsion to feed a drug addiction; and as frequently in cases of violence it is the short fuse of anger.”
Justice Sedley says that on the whole the law has been uncompromising in holding offenders accountable for what they do under such pressure. Although judges may acknowledge some of these as mitigating circumstances or as grounds for mercy, the concept of responsibility is never completely given up.
Yet there is reason enough, Sedley says, for believing that responsibility is at least relative. “For a long time, this moral, even moralistic view, has sat awkwardly beside the belief that criminality, far from being a matter of choice, is an aspect of personality – in its cruder forms a function of heredity discernible in the shape of the skull.”
Indeed early studies of crime and deviance focused much attention on the hereditary correlates of criminality. We still hear echoes of this perspective in many prefatory discussions issued by the courts as they try to make sense of the behavior of criminals they are about to sentence. But it is seldom made to benefit the offender. Criminals still end up being locked up or executed, their assumed inherent incorrigibility ironically becoming the main justification for getting rid of them.
As Sedley puts it: “The court knows, as it sends them down, that it is in a sense punishing them again for what life has already done to them; yet it also knows, or believes, that without a condign response, society risks losing its already contested grip on civil order and the courts their toehold in public confidence; and so we continue to hold them responsible for what they have done.”
Sedley is not saying that the finding of a genetic factor in criminal behavior should prevent the courts from assigning responsibility to the criminal. But he does argue for a concept of justice that allows enough room for “the symbiosis of justice and mercy.”
I am not myself a follower of genetic determinism, notwithstanding the wealth of evidence that has been accumulated in recent years. But I would give to sociological factors the significance to justice that genes have in the frameworks of biological determinists. Among such factors, I would count poverty as the most important in figuring out the meaning of justice in a regime of law. Even as they formally apply without exception to every citizen, I believe that most of our laws do in fact discriminate against the poor. They exemplify, in Anatole France’s immortal words, “the majestic even handedness of the law, which forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread.”
But poverty is not defined by hunger alone. Being poor also means being abandoned as children while parents work abroad. It means having to grow up in neighborhoods infested by drug pushers and assorted criminals. It means going to sub-standard public schools run by underpaid and cynical teachers who can offer no hope. It means being formed by an escapist culture of cheap thrills, sexy tabloids and violent movies, with no vision of a life of sublimity or beauty.
Justice in such circumstances must be more than the mere legal allocation or denial of rights, says Sedley. “It has to do with a common sense of equity, an ethic of kindness, a morality of feeling, which does not and cannot be expected to stop at a desire for legal justice, even though that is necessarily where the law itself must stop.” It may be beyond the power of judges to change an entire social order, but they need not endorse the resulting injustices of an unequal society.
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