First, a quote from the family of Joselito Barber, the police officer killed last week by a driver doing over 80 mph on a city street under the influence of cocaine. When commenting on the exceptional sentence expected to be sought against the driver for her "outrageous recklessness," Barber's family members are quoted as saying, "We have faith in the legal process and will do what we can to assist in the criminal proceedings as they unfold. We want our focus to remain on celebrating Lito's life and on preserving his memory. No legal or criminal proceeding is going to return him to us, or reduce our pain."
Second, the response of Heidi Coffee, who lost her husband Gavin this week when he swerved to avoid falling metal shelving that had fallen from a pickup truck on I-5. Recent law, passed in response to similar unsecured-load accidents, criminalizes this kind of negligence. It remains to be seen whether this driver will be prosecuted under the new law. But Heidi Coffee has moved toward personal reconciliation by inviting the driver to her husband's memorial service. "Gavin had this great saying, 'Holding a grudge is like taking poison and waiting for someone to die.'"
Grief can rage. Anger is an awful but expected part of an awful but expected human process. At some point, though, when rage turns into blame, resentment and hostility, we're not just feeling a raw emotion -- we are choosing a course of action. It's useful to remember that, in our grief, we don't have to take on the burden of judging and punishing those who wrong us. That's what our legal system is for.
Of course it remains to be seen (as always) whether the system works. Criminal punishments serve a few different purposes. Punishments should deter -- presumably, the threat of being caught and prosecuted will make us all extra cautious when securing our loads. We have an incentive to be careful. Our criminal penalties give voice to our society's "standard of care" -- we have a duty to each other to be sober when we drive. We owe each other an extra bungee cord in the back of the pickup. Unfortunately and ironically, the punishment is meted out once its deterrent effect has failed. It's too late for those lives to be saved; for the system to work, I guess the idea is that we prosecute these individuals to make an example out of them, and deter others.
Punishments also serve as retribution. Penalties make someone suffer for the suffering they caused. This idea is so old, and so embedded in our cultural consciousness, it's hard to think critically about. We're left wondering whether someone "deserves" to be punished without remebering what this really means. These drivers won't be punished simply because of the choices they made: they are no more culpable than thousands of other drivers that do the same thing, month after month -- but with enough luck or whatever other links in the chain of cause and effect that no one was killed. The crimes in question are combination of their choice (failing to meet what our legislators and prosecutors have defined as a duty to society), and the consequence. What is a fitting punishment? And why?
As a tripartate democracy, the idea is that we can learn and change as we go. Perhaps we'll learn that our driving while intoxicated laws aren't "strong" enough. Or that the unsecured load law really doesn't help anyone, and makes us all end up feeling lousy instead of vindicated. Thankfully, we've also learned from the Barber and Coffee families that forgiveness and dignity -- peace -- can be ours, even in the face of brutal grief -- and that our legal system doesn't have to be perfect in order for us to find peace and move on.
Postscript: Punisment through incarceration also can serve to protect society by taking the criminal out of circulation for a specific period of time. This makes practical sense in the case of Officer Barber's death -- where the driver has a history and propensity for similar behavior, and may be for those reasons a "menace" (although I don't know that the vehicular homicide statute is designed for this). Less so in the case of Gavin Coffee's death, where the driver, one might imagine, has a very, very slim chance of ever posing a similar freeway risk again.
9 comments:
Yeah, I was struck too by the Officer Barber's family member's statement that "No legal or criminal proceeding is going to return him to us, or reduce our pain." I think that must be right (certainly Lito will never come back). But is it the whole story? I think when it comes to grief and loss we tend to see things as a dichotomy: death and loss; pain and happiness. But emotions are complex, pain and happiness aren't opposites, and, I think, there is no zero-sum here. Throwing the book at Lito's killer probably won't make the pain go away. But it could make some of the family members feel a bit more, well, happy. And, given their loss, that's worth something.
That's the idea, isn't it. Without restorative justice -- no restitution that can make them whole -- the victims' emotional vindication becomes one of the objectives.
That concerns me because the system can fail. They'll "throw the book," but what if it takes too long, looks too sloppy, or comes off too easy? Will they only be "happy" if it results in an exacting vindication? Can the justice system take responsibility for individual, subjective feelings? Is the path through grief full of choices we can make -- what to demand of others, and what to let go of?
We've all seen the heartbreak of victim families who wait for the system to give them closure and finality, and end up experience each setback, appeal and ruling as a new grief.
I'm also concerned with basing policy on measures of "worth" and "happiness." What happens when the victims demand more than society is willing to inflict as punishment? (Capital punishment for a drunk driver, for instance). A heart-rending situation like Officer Lito's could threaten to be the kind of hard case that makes bad law.
I abolustely agree that the driver should be prosecuted for the crimes committed. I'm just relieved to see it placed in a healthy context in the process of personal grief. And I'm interested in the big-picture policy implications -- will this start a dialog in the political machine -- that remains to be seen.
I think we have to back to deciding what is the purpose of punishment? I don't believe "vinidication" is an appropriate or just reason to punish someone. It borders on revenge, and that is dangerous. I can understand it as an emotion, certainly, which family and loved ones might certainly feel; but not as a legal purpose, in the grander scheme of achieving a just society. "Retribution" might be a better term, which means "restoring to order."
So how does retribution operate in these cases -- how does punishing these offenders restore us to order? I'm not saying it doesn't, I just want to think hard about how exactly it works, and what the implications are.
I'd answer that by suggesting that "retribution" implies restitution or recompense--strictly speaking, the word means (in Latin) "pay-back" or, according to modern dictionaries, "something given or exacted in recompense". For purposes of punishment--whether criminal or civil--I think this concept isn't very satisfying.
First, as Robin points out, it's very hard to measure the "worth" or cost of a criminal act. Some damages are simply inchoate--pain and suffering, loss of consortium, and the like. What quantum to we use to determine if the victim has been made whole?
Second, simply making victims whole in an restitutionary sense doesn't necessarily create the social incentives we might be looking for. Some people might have just enough assets (such as money or time) to "pay for" a purposeful criminal act: "Hell, I'll punch this guy in the face because I have a spare $20,000 lying around, and that's the going rate these days for assault and battery." Creating disincentives for malfeasance is, of course, the theory behind punitive damage awards in civil cases and, I'd argue, rights-deprivation penalties (such as confinement) in criminal law.
Third, restitution alone doesn't seem fair. Imagine a system that focuses only on recompense: criminal perpetrators are required to fully reimburse their victims for the cost of the criminal act. And if the criminal can't pay in full (in legal jargon, if he's "judgment proof"), the state could pay the victim. Putting aside the question of incentives, doesn't it feel like there's something missing in this system? Doesn't our social community have a stake in avenging bad acts?
For these reasons, simple restoration doesn't quite fly in my book. There needs to be something more.
Certainly there does. I didn't mean to imply restitution alone was sufficient for punishment. I was just replacing "vindication" with "restitution," since vindication is too close to "revenge," and that's not justice. And yet you say our social system should "avenge" bad acts. Dear me. I hope not.
Our social system should protect us, exact some rebalancing restitution - it does make sense to have a car thief pay the cost of the victim's loss - impose a deterrence of some kind, and try to rehabilitate the criminal. I don't think vengence has any role to play at all in an objectively fair legal system.
But the vengeance question is important. Because many people -- including judges, prosecutors, legislators, and victims -- blur the lines between "retribution/ rebalance" and "vengeance." That's why I wrote -- It's so nice when they don't.
Really, I don't see how incarceration serves as a kind of rebalancing restitution. Does it take away one person's freedom as some kind of social tribute to the victim's loss? Is that the idea? This is close to "make them suffer because we suffered." I guess I don't see where the line is drawn.
And I don't think we're anywhere close to an objectively fair legal system, but wonder how to get there from here. The "unsecured loads" law, for instance, tried to impose a deterrent and presumably a mechanism for "retribution" when someone was injured due to this kind of negligence. But is it "objectively fair" to prosecute the man who's bookcases killed Gavin Coffee. And he doesn't need rehabilitation, does he.
On the other hand, the cocaine driver who killed Officer Barber seems more flagrantly culpable, also more in need of rehabilitation. Personally I don't see how incarceration addresses any of that. At the same time, as a prosecutor or legislator, I sure wouldn't use this as a test case for making the law less punitive. Is that because we (generally, not we bloggers) are hung up on vengeance?
I think "security" is one of the main reasons we incarcerate criminals. I also think (well, hope) that there is some kind of rehabilitative process going on behind the walls. I doubt it, but I think it should be there.
I think the man whose bookcases killed Gavin Coffee is guilty of "gross negligence" and that that was the purpose of the new law. Gross negligence serves as a criteria for malice. So while there was no real intent to hurt anyone, or malice as we think of it, there is a negligence issue here that makes the driver culpable.
It's not the same level of gross negligence that a cocaine user speeding at 80 mph is guilty of, I don't think. So that would certainly mitigate the punishment. Unless one wants to argue that the cocaine user is hooked on drugs beyond her control, and the bookshelf guy was sober and just stupid. Not sure how that'd play out, but I wouldn't buy it.
Vengeance, in my mind (and, I think, the dictionary's) simply means punishment in response to a wrong. It doesn't imply degree or method.
For what it's worth, because I think issues of "justice" and "retribution" and the measure of "deterrence" or so difficult to understand--and because so many smart and savvy people can disagree what they mean--I come down on the side of incarceration solely for security. Dangerous people need to be segregated from society. For how long? Well, I guess as long as they're still dangerous. So rehabilitation is a good idea (if it works). Or maybe locking people up until they're old and feeble is the way to go. Issues like unsecured loads don't really trigger penal theories in my mind because they're so easily dealt with by our civil system. Reckless behavior may warrant taking someone out of society. But not one-time gross negligence.
At any rate, this is the way I think about it.
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