Angina Monologue 20

I must obey my master.

Who now insists that I am his obvious running mate for the Presidency.

On the bright side, breakfasts are becoming more entertaining.

I see from the morning paper that a verdict has been reached on the recent notorious murder case. You know the one. A man strangled his girlfriend while in a drunken rage, then left her naked body in the trunk of his car, where it was found by the police.

The case was somewhat unusual in that the defendant asked for a bench trial. I have long said that, if I am ever hauled into court, and the facts or the law are on my side, I will ask for a bench trial rather than risk leaving my fate to nine citizens selected at random from those unable to come up with a good excuse from jury duty. If the facts and law are against me, I’ll take my chances with the jury.

The facts and the law were hardly on the side of this defendant, yet he asked for a bench trial. And it seems to have worked out better for him than he had any right to expect. The judge found him guilty of second-degree murder, on the grounds that he was too drunk to form a sufficiently criminal state of mind for a first-degree murder conviction.

This is all wrong, even according to settled law, as I understand it. The criminal who deliberately impairs himself is fully responsible for his acts while impaired, or he ought to be. Otherwise, the incentive structure you set up is unsustainable.

So the horny college frat boy who gets stinking drunk and sleeps with an even drunker girl is responsible for rape after all?

The circumstances are somewhat different. Sexual relations are not inherently criminal, even between unmarried persons, since the Supreme Court has effectively struck down anti-fornication laws. The presumption of the law is of legality, unless there is evidence the relations were not consensual. This is not true of strangulations.

I really wish His Majesty wouldn’t go on like this about strangulations.

This is not to say that a drunken frat boy couldn’t be guilty of rape under such circumstances, but it’s going to be a difficult case to prove, and nine times out of ten the prosecution should fail on the presumption of innocence.

The lesson for society is that drunken parties at fraternities should be strongly frowned upon. The lesson for college girls is that getting drunk at a fraternity party is a really bad idea, on a par with leaving your apartment unlocked at night or leaving your car keys in the ignition while you are in class.

Feminists will condemn this as blaming the victim.

Reality isn’t optional, even for radical feminists. When you undertake a course of action with an obvious risk of a bad outcome, whether it be bungee-jumping, eating pufferfish at a one-star Japanese restaurant, investing your life savings in cattle futures (unless you are a rising Democratic politician), or getting stinking drunk at a fraternity party, you must take some responsibility for the risk you assume.

Of course, one of these is not like the others. The frat boy who takes advantage of your drunken stupor is guilty of a serious crime — assuming he is himself in a frame of mind to understand that you have not given consent. The last part is ticklish, but unavoidably so. The others are classic cases of assumed risk, a legal doctrine which, together with actual negligence, badly needs a renaissance in this country.

But back to the original case. As Thomas Sowell has pointed out, were we God on Judgment Day, we might have the luxury of deciding that the heavily intoxicated murderer is somewhat less culpable than the murderer with all his wits about him, and sentencing him to be immersed only up to his knees in the boiling blood of Phegethon rather than to the waist. But God doesn’t have to worry about the day after Judgment Day. Human judges must beware the perverse incentive structure they establish with every unconventional judgment.

So the defendant who willfully impairs himself must not be permitted to claim his impairment in mitigation of his criminal acts. Particularly in a society which places no meaningful criminal penalties on alcohol abuse per se.

This is probably as good a place as any to add another plank to our platform:

6. Eye for eye, tooth for tooth, makes the whole world blind and toothless only if the whole world consists of really slow learners.

Lex talionis is, in fact, the foundation of any system of justice or equity worthy of the name. And so, naturally, I favor the death penalty for premeditated murder.

The proportionality of the punishment is only one of the many attractive features of capital punishment for murder. Another is that it permanently incapacitates the murderer at relatively little expense.

And yet, it is claimed that executing a man is actually more expensive than imprisoning him for life.

This is one with the claim that nuclear power is more expensive than other forms of alternative energy. It is so only because opponents have found ways to drive up the costs.

A scaffold and a rope aren’t that expensive.

You favor hanging, then?

Yes. It requires some skill, but given present murder rates, there should be plenty of opportunity for practice, and then we may count on hangings being run tautly. The weight of evidence is that measured drop hangings are relatively merciful, both in producing immediate unconsciousness and in being amenable to quick execution. In the latter respect, hanging is much superior to lethal injection, which which really leaves me cold. So to speak.

The record time for slapping a convict awake, marching him to the scaffold, and dropping him through the trap is seven seconds. You can’t do that with lethal injection, or a firing squad (which is nonetheless my second choice, for other reasons.) You can do it with the guillotine, but this has other difficulties which I will explain presently.

Of course, the record of seven seconds was for a private execution. I would prefer hangings to be public. Oh, not televised, certainly; there is something about television that strips these kinds of things of their meaning. It’s one with the way that television strips even the most dignified persons of their sense of presence. Presence requires presence. And capital punishment requires presence.

Execution is not just about life for life (equitable as that is) or incapacitation (certain and desirable as that is). It is not even just about deterrence. It is also about showing that we are serious, that we take civil society and government seriously; and that we take punishment for the most hideous of crimes seriously. At the crudest gut level, it is about showing that government is the baddest player in town. I mean that, of course, in the patois of criminals, law enforcement, and the military.

The lawful execution is the most effective of all displays of the frightful power of government. When it is carried out for murderers, duly convicted after being given every opportunity to present evidence in their favor, by a jury instructed that only proof beyond a reasonable doubt will do, they are also an effective display of the majesty of the law. It is terribly important that a jury of ordinary citizens be asked to give the verdict of guilt; not because juries are good fact-finders — though they do better than we have any right to expect — but because it renders the subsequent execution something the government does at the behest of its citizens, to repair an injustice and remove a threat to the people themselves.

In other words, there are mythic aspects to the lawful execution.

The guillotine here fails for a number of reasons, including that it leaves too little to the imagination. This is as fatal to the myth of the public execution as it is to the myth of sex.

Isn’t it a sign of weakness that a government fears a criminal enough to kill him?

It’s realistic. Criminals are, in fact, a serious threat to the social order.

But would you consider a man weak because he feels obligated to use lethal force to defend his wife from a rapist? To borrow some symbolism from your own superstitions: Just as Christ is the Bridegroom and the Church the Bride, for whose sake Christ will someday destroy the wicked, so government is the bridegroom and the people its bride, for whose sake it destroys the criminal.

Your objection makes more sense as an argument against severe penalties for sedition and similar crimes. The strong government can show its strength by ignoring the dissident. Fortunately, most dissidents so hate being ignored, which they correctly interpret as a show of contempt, that they eventually commit some unquestionably criminal act against their fellow citizens to force the government to pay attention. At which point the government can quite properly crack down on them while emphasizing how their crimes have harmed their neighbors. It is an effective way to seize the high ground.

How’s that working out in Ferguson?

I will thank you never again to suggest that I am as feckless as Mr. Obama.

Let us return to the point of discussion. A government that kills on its own behalf may betray weakness; a government that kills on  behalf of its citizens, from a real and manifest threat, will be perceived as a strong government.

What about the possibility of error? The death penalty has a reversibility that life imprisonment does not.

I doubt a convict released after thirty years in prison would be much impressed with the reversibility of his sentence.

When you accuse a man of premeditated murder,  you had better be d*mn sure of your facts. (1)  But this is true of any serious crime. It’s why we are so careful to extend the presumption of innocence and such strong procedural protections.

But, in a larger sense, a society that cannot act decisively even when there are no reasonable ground for doubt is a society that is doomed by its own indecisiveness.

Every time a citizen argues against the death penalty, on the grounds that he cannot trust his society to determine guilt and act decisively against it, it is his society, not the death penalty, he has condemned.

But what of all the convicts that have subsequently been exonerated?

It would be more accurate, in the great majority of these cases, to say that new doubts have been raised about their guilt, than to say that they have actually been exonerated. This is remarkably easy to do, once you allow activists to second-guess a conviction from ten or twenty or thirty years’ remove.

There is need for reform of forensic science, and this will be a prominent part our platform alongside support for the death penalty. I will demand that judges ruling on forensic evidence apply the usual scientific rules of falsifiability to evidence: It is not enough to know that the evidence points the defendant. It must be demonstrated that the evidence actually clears most of his fellow citizens — for example, the nine citizens sitting in the jury box.

I will also apply the old common law rule to fabricated or sloppy evidence: If you fabricate evidence that condemns a man, you will yourself be hanged. If you are sloppy with evidence that condemns a man, you are jailed for manslaughter. In principle, this is already the law; but I have seen an appalling lack of actual prosecutions on this basis. Nifong, for example, got a single day in jail for fabricating the rape case against the three Duke lacrosse players, which is a laughably tiny faction of the jail time they were facing.

Are we going to call for an end to qualified immunity?

Ah, good suggestion for yet another plank:

7. No one is above the law.

That could backfire.

Does the phrase “I will make it legal” ring any bells?

Yeah. How’d that work out for us?

Just fine, Lord Vader. It was your hotshot son and remarkably stupid engineering on our ultimate weapon, not legal difficulties, that ultimately forced us into retirement.

Once my son came into it, I knew the conversation was over. His Majesty has a bad attitude towards my family; the last time they came to visit, they had to stay in a hotel rather than board with us. Perhaps it’s just as well; both Luke and Leia are allergic to dachshunds. (Which mystifies me, considering that they seem not bothered by Wookies.)

It’s going to be a long campaign.

(1) As always, I feel it my duty to report His Majesty’s ruminations accurately, even when they are somewhat colorful.