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Friday
Nov192010

a response to "mine's not breathing but he gets to?"

There's news this morning of a verdict and non-death sentence in a shooting in Texas.  One member of the victim's family is quoted as saying, "[H]e should have got the death penalty.  Mine's not breathing but he gets to?"

So that deserves a response.  Actually, two responses.

I understand the family's desire for the worst possible punishment.  I do.

1.  But that's exactly why we don't let victims'  families decide punishment.  Families are rightly grieving and raging.  They are not cool-headed.  They can't possibly see things from both sides, as juries are required to do.  They would so often (not always, but so often) choose to inflict as much suffering as possible on the defendant.  But creating suffering is not the goal of the justice system.  And the jury is not a stand-in for the family-- it's a stand-in for society.

2.  By this kind of eye-for-eye reasoning, there is no room for mitigation.  If A murders B, then the circumstances don't matter.  Well, maybe they matter in the case of clear self-defense or some other justification.

But does nothing the victim did matter?  Does a shooting by a terrified (but not threatened at that very moment) domestic violence victim deserve the same punishment as a kidnap/rape/torture/murder?

How about mental illness as a factor?

Is there nothing in D's past that matters?  Constant and vicious childhood sexual abuse beginning when he was 3?  Never psychologically recovering from heroic military service?

Our criminal justice system says these things matter.  The jury is required to consider all the things that make the crime worse (the aggravating factors) and all the things that mitigate.

There is a huge misconception about mitigating factors.  Someone will always begin to screech that being abused as a child does not excuse the defendant's behavior.  Of course, that's not what mitigating evidence does.  There are certain things that excuse or justify a killing, like accident, self-defense, etc., but those are different.  Once the judge or jury gets to the sentencing decision, they've already decided that the killing is not excused or justified.

Mitigation is based on the idea that culpability--guilt-- is not binary.  It's a continuum.  Even if someone is guilty, he can be more guilty or less guilty.

Here's an example:  D hangs around and waits for V to leave the bar and shoots and kills him from behind a dumpster.  Planned, premeditated killing.  Not an accident, not self-defense.  He's guilty of murder, no question.

Is it obvious what the sentence should be?  The loss to V's family is the same, no matter what else was going on, so on the eye-for-eye basis, the analysis stops here.  But should it?

Does it make any difference if D just discovered V was molesting D's 12-year-old child?  D is not excused.  He murdered V.  He should have let the criminal justice system handle this.  Maybe he's wrong about the molestation.  In any case, death is not society's punishment for child molesters.  He was wrong to take justice into his own hands.

But we get it.  V's murder is still wrong, still illegal, but we can find some empathy for D.  There will be punishment but not the same punishment as we give to another murderer.  It's murder, but each murder is different.

That's the bottom line.  That's why we have juries.

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    Mine's not breathing and getting the opportunity to breathe. It is the story of the Catherine who becomes the lawyer after hard toil. It is the story of the struggle and waves of the future and prospective planning.
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