DOMINIC CARTER, CRIME AND CHANGING PUNISHMENT IN AMERICA

AN ESSAY

A few months ago, I wrote a short article about Dominic Carter, the former New York 1 anchorman who allegedly beat his wife. I used Mr. Carter's story to illustrate how difficult it is to "prove" things in our empirically-based evidence system. Now, a State court in New York has sentenced Mr. Carter to an unusual punishment for attempted assault. This presents compelling new issues.

Just as Mr. Carter's case provided an excellent vehicle to discuss evidence law, his sentence now provides an excellent vehicle to discuss criminal penalties in modern America. Put simply, criminal penalties are changing in America. And they are drifting far from their traditional purposes. In my view, this is not a good thing.

According to the New York Post, Mr. Carter was convicted of attempted assault for pervasively abusing his wife since 1997. See N.Y. Post, Crying shame of jailed NY1 journo, Jan. 15, 2010 at 5. Although his wife denied that Mr. Carter beat her, the trial judge--Arnold Etelson--referenced police reports detailing marital strife in the Carter home for over a decade. Id. He sentenced Mr. Carter to 30 days' imprisonment. Id. He also ordered Mr. Carter to "stay away" from his wife for two years unless "he is prescribed medication by a psychiatrist able to assure the judge that [he] is well enough to see her." Id. Additionally, the judge gave Mr. Carter an article from New York Magazine detailing Matt Damon's views about "honesty and humility." Id. During sentencing, he told Mr. Carter: "Try some humility and honesty--it goes a long way." Id. Finally, the judge gave Mr. Carter's wife a sticker with the words "Attitude Makes the Difference. " Id. He instructed her to affix the sticker to her bathroom mirror so that Mr. Carter can see it when he visits. Id.

This is highly irregular judicial work. As a general rule, the criminal law forbids specifically defined conduct. The criminal justice system decides whether the defendant engaged in that conduct, then neutrally decrees the legal consequences. While morality animates all criminal codes, it is not for judges in the criminal justice system to pontificate about it, let alone publicly scold criminals for sport. This New York judge transformed his courtroom into an entertainment circus. And the spotlight was not on Mr. Carter--it was on the judge.

To start, it is strange that Judge Etelson characterized these facts as "attempted" assault. At common law--and under New York State law--an assault means an intentionally harmful or offensive touching. See, e.g. NYPL § 120.00, et seq. Any intentional crime can be "attempted" if the defendant intends to achieve the bad result envisioned in the criminal code, then takes some action corroborating that intent. But it is no longer "attempt" when the defendant achieves exactly what the law forbids. Here, the judge relied on police reports that detailed Mr. Carter's abuse. They all but verified that he had routinely hit his wife since 1997. If the judge believed those reports, then he should have convicted Mr. Carter of assault, not attempted assault. If Mr. Carter succeeded in harmfully or offensively touching his wife, it was no longer attempted assault. It was just plain old assault--and it's a worse crime than attempted assault.

But Judge Etelson's legal errors pale in comparison with his bizarre approach to criminal penalties. Traditionally, criminal penalties in America--as in all Western countries--target the body and property. The law assumes that people do not want to suffer bodily pain or lose their property, so penalties targeting those things ostensibly dissuade potential criminals from making "bad choices." The death penalty, imprisonment, fines and corporal punishment encompass everything a State can realistically do to penalize crime.

In modern America, imprisonment is the preferred penalty. Fines follow in second place. Most consider corporal punishment an archaic penalty; it really never happens anymore. The death penalty is more common. Still, State-ordered death is quite a rare punishment, too.

Judge Etelson did not give Mr. Carter a traditional punishment. Rather, he theatrically used Mr. Carter as an instrument. The only traditional part about Mr. Carter's sentence was his imprisonment. To some, thirty days in prison for attempted assault might appear harsh. But no one would call it bizarre. People expect either fines or imprisonment for crimes in America. The criminal justice system works in part because the public knows what to expect for certain transgressions. They trust judges to declare penalties that everyone expects. At the same time, they understand that even a convicted criminal is entitled to some dignity before the law. He need not be publicly humiliated, ridiculed or belittled in the courtroom. His prison term and social ostracism accomplish that on their own. It is not the judge's role to morally grandstand or scold. He simply must pronounce sentence. Legislators moralize when they write the laws. Judges should not.

What does a New York Magazine article or a sticker have to do with the law? When did Matt Damon become a legal authority? True, "honesty, humility and a good attitude" are virtues. But it is not the law's role to chastise people for failing to be virtuous. The law's only role is to decree whether a person acted in a defined way. It does not matter whether he was virtuous or not when he did. A defendant suffers enough when a judge declares the penalty for violating the law; he does not need to "rub it in" by acting the moralist. In fact, I argue that judges overstep their bounds when they do.

I understand that people like to see criminals squirm. But their convictions should make them squirm, not a judge's moralizing antics. If every judge took it upon himself to act like Judge Etelson, our criminal justice system would look more like a Catholic school than a neutral forum for just laws. In a word, it is not a judge's job to castigate a convict's moral failings. Moral failings are irrelevant to the law. And the law is the only thing that judges are constitutionally empowered to decide. Anything else they say is unauthorized fluff.

Judge Etelson-style grandstanding is not the only abomination that occurs in our criminal justice system. Now, criminal penalties also increasingly intertwine with psychiatry. Mr. Carter's case is no exception. In his sentence, Judge Etelson conditioned Mr. Carter's future with his wife on his agreement to take psychiatric medications. He also retained discretion whether to permit Mr. Carter to see her, depending on whether a psychiatrist could assure him that he was "well enough."

Are these judicial inquiries? If they are, do they not negate the State's moral outrage against Mr. Carter? After all, if the court believes that Mr. Carter needs psychiatric medication, that means he is mentally ill. If he was mentally ill at the time he struck his wife, that makes him far less morally blameworthy. After all, the criminal law depends upon free, rational choice for its moral strength. It is easy to condemn someone who knowingly makes a bad choice. But it is not easy to condemn someone who lacked the mental composure to make choices, let alone recognize they were wrong.

In this case, Judge Etelson tried to wear too many hats. He wanted to punish Mr. Carter for doing something that violated the law. But then he stepped back and ordered Mr. Carter to take psychiatric medications for his "mental problems." Put simply, judges are not psychiatrists. They are not social workers. It is not their job to monitor people's behavior once they serve their sentences. Nor is it their job to declare whether people are "normal." Rather, they are mere judicial officers, and it's not a complicated job. It is not about management; it is about judgment: Did the defendant do this or not? If he did, he goes to jail. If he didn't, he goes free.

There is undoubtedly a relationship between law and psychiatry. But a judge's only concern with psychiatry is to determine whether a defendant is mentally well enough to be criminally responsible. If he is, that ends the inquiry. In fact, judges must be extremely wary when dealing with psychiatry in criminal cases. After all, the entire rationale for criminal punishment collapses as soon as psychiatry shows that the defendant cannot make rational choices. In that light, judges should tread lightly when tampering with psychiatric issues. They might just discover that the "evil defendant" is really no ogre at all. He might just be "sick." And it is not proper to morally condemn sick people, let alone jail them for choices they could not make. For better or worse, the law only works on sane people.

I doubt that Judge Etelson understood all these issues when he entertained the news media during Dominic Carter's sentencing last week. From his perspective, he was in the spotlight and he was going to relish the moment. He was not content to play the neutral magistrate who calmly decrees the legal consequences of statutory violations. No, he had to play the scolding father, too, as well as the psychiatrist and the actor.

I do not like this. While it may be impossible to separate law from popular morality, judges should consciously try to do so. True, laws enshrine popular morality. But they are not moral weapons. They are technical guidelines. It does not matter whether a law-abiding citizen is moral; he must merely not violate the technical guidelines. Morality is about character. Law is about conduct. It is much easier to control conduct than character. And a judge simply declares whether the individual in question violated the conduct guideline.

Well, at least that's what a judge is supposed to do. American criminal law is changing for the worse because the distinction between morality and law is eroding every day. Just look at the Carter case. It's all right there to see.

DEBT, EDUCATION AND INDENTURED SERVITUDE--AMERICAN STYLE

A REFLECTION

This morning, I read an article in Above the Law, a magazine that targets issues relevant to freelance lawyers. In it, editor Elie Mystal lamented the $150,000 debt he assumed to finance his legal education. He called law school debt "The Silent Killer." His experience with debt even caused him to characterize his legal education as an "expensive vacation that debt financed."

In many ways, I am in Elie Mystal's boat. I graduated from law school in 2006 with about $95,000 in debt. Like Elie, I detested private practice and gave it up on principle. You see, I have this little problem: I insist on ethics and honor. That makes private law practice, well, a bit incongruous.

Since 2007, I have done consulting jobs that pay the crushing loan installments. Even more recently, I haven't been able to work at all due my partner's health crisis. The creditors don't care, of course. They just want their monthly checks; they don't give a damn about your problems.

I agree that debt is a "silent killer." Thanks to bank-friendly Bush-era deregulation in place at the time I signed my promissory notes, my loan principal has actually increased since I began repaying in late 2006. In essence, the banks have a permanent lien on my financial lifeblood, which is meager at best. This permanent financial burden robs voluntariness from all my employment decisions: I can't work a public interest job that won't even cover my monthly debt bill. I call this predicament "modern indentured servitude" because debt essentially compels work particular jobs in order to pay off the boulder that has been tied around their necks. Their choices are illusory; they must take a job that pays a certain amount or go bankrupt.

Elie also should have mentioned another issue that contributes to the debt crisis plaguing American graduate students: Deception. To be blunt, I entered law school under almost laughably false economic assumptions. I believed that my legal education would entitle me to an automatic $125,000-a-year job. I had worked at a law firm before law school and everyone there said that a law degree is basically a meal ticket. Law schools perpetuated that belief with "employment statistics" that corroborated my assumptions. Thus, I happily took out $100,000 in loans to finance my meal ticket. After all, I thought, what's $100,000 in debt if I'm certain to have a $125,000-a-year job waiting for me when I'm done?

"Ha! I can pay that off with a single bonus check," I declared in 2003.

What foolishness. But it is widespread foolishness. And every new law student subscribes to it. I know I did. Plus I was a wet-faced 25-year-old who knew nothing about the brutal vagaries of the private employment market. No, I learned the hard way--and only after sinking myself into an intractable debt pit.

Despite all this, I disagree with Elie's assertion that law school was a "very expensive vacation that debt financed." I do not regret my education in the least. I took it seriously; I never felt that I was on vacation while studying. True, it is unfortunate that I had to become an indentured servant in order to obtain my education. But I relish what I learned in law school. As a writer, it helps me every day. It enriched the way I think about every intellectual issue I encounter. I am thankful for my legal education. It pays psychic rewards in the classical sense, even if it does not fill my bank account.

But most people do not get educations--at least in America--to enrich their perspectives. They get educations to get jobs and make tons of money until they die or retire. In my view, this is the fundamental problem with the American system: People do not care about learning for its own sake. They use it merely to become commercial instruments for the rest of their lives. In that light, it is no surprise that debt plays a role in the system. Just as entrepreneurs take out loans in order to make more money in the future, so too do students take out loans in order to transform themselves into "profitable ventures." American students, in other words, are no different than entrepreneurs; they both gamble with debt in order to cash in later. And the goal of education in America is exactly the same as the goal of everyday business: Simple commercial success.

This leads me to my core objection: Shouldn't academic pursuits and crass commercial concerns be distinct? Sadly, the educational debt quandary in America shows that they are not.
That's a shame. And it's ruining many people's lives every day.

If only we could follow Aristotle's prescription for education: "[F]or it is more necessary to equalize appetites than possessions, and that can only be done by adequate education under the laws." The Politics, Book II, ch. vii at 1266b24.

In other words, education should not be a means to obtain "possessions," but rather to refine "appetites." It is not about "having" tangible things. It is about character; and you can't buy that.

ANIMALS CANNOT BE CRIMINALS

AN ESSAY

Several months ago, I wrote an essay outlining the relationship between moral choice and the criminal law. http://reasoncommercejustice.blogspot.com/2009/03/good-bad-or-just-sick-why-we-punish.html. I concluded that the criminal law implicates public morality in a way that other legal doctrines do not. Specifically, I pointed out that our society relishes the opportunity to pronounce both legal and moral judgment on "deviants" who make "bad choices." Finally, I noted that in some cases, it is impossible to channel moral outrage against certain trespassers--particularly the mentally ill--because they do not possess the capacity to rationally make "good" or "bad" choices.

Yet our society enjoys criminalizing things. It is an easy way to express condemnation for shocking outrages, even if it is not the most effective response. When we pursue someone as a "criminal," we collectively say that the he "broke from the moral norm." We justify his punishment by referencing his bad moral choice. Then we feel good about ourselves when he suffers for daring to violate the moral standard. Choice is the touchstone: Criminals know the behavior that society expects, yet they knowingly choose to violate it. In this sense, the criminal law acutely relates to popular morality.

Criminal sanctions make rational sense in two cases. First, there is the moral function. Under the "morality" theory for punishment (originally championed by Immanuel Kant), the criminal law prescribes exactly enough punishment to match the moral guilt in the actor's choice. The more shocking the choice, the worse the punishment. The morality theory focuses on individual choices; it envisions a direct confrontation between the law and the criminal. Punishment in this case does not aim to intimidate others; it is a discreet affair between the sovereign and the trespasser. True, society looks on and judges the moral deviant. But it serves no utilitarian purpose beyond venting moral outrage against the individual criminal. The "morality theory" has a significant role in the American justice system, but it is even more prevalent in civil law countries like Germany and France.

In the second case, the criminal law performs a strictly utilitarian function. Under the utilitarian theory, criminal law uses punishment against one man in order to frighten others from committing the same infraction. This is called "deterrence." Its focus is not moral; it is practical. Society does not like criminal choices because they disrupt the social order and cause damage to others. Society would simply like to see fewer criminal choices, regardless of whether the criminal acknowledges his moral failing. Deterrence is all about numbers: The criminal law performs a "practical" function if it reduces the number of robberies each year. Morality is not the issue; the criminal law just wants people to refrain from making choices that hurt others. In this sense, it is "useful" for everyone in society.

So how does the criminal law induce autonomous individuals to refrain from making certain choices? Simple: It threatens punishment to anyone who dares to make the choice. It assumes that people are rational actors. It assumes that they will engage in a cost-benefit analysis before making any choice. It also assumes that they do not like punishment, so they will not make choices they know will lead to it. When the criminal law aims to fulfill a deterrence function, it is not so much concerned with the individual criminal who suffers. Rather, it is much more concerned with all the potential criminals who watch the condemned man suffer, then say to themselves: "I do not want to meet the same fate." If the punishment inspires fear in those who otherwise might have committed the same crime, it serves its purpose.

Deterrence has always been an overt goal in the Anglo-American criminal law tradition. But it has fallen into disfavor in civil law systems. The German system specifically disavows any intention to deter future criminals by punishing present ones. Kant said that using one man as an instrument to frighten others demeaned human dignity and autonomy. That sentiment has found traction in Western Europe.

But no matter what punishment system a country adopts, the criminal law still assumes that people will act rationally. If a person cannot make rational choices, he cannot know whether his choice will violate an "intuitive moral standard." He also cannot make a cost-benefit analysis before deciding whether to commit an act that will injure another. And most of all, the criminal law only works on human beings.

This is not a facetious observation. Just this week, prosecutors in Connecticut actually deliberated whether they should bring charges against a chimpanzee that brutally mauled a woman last year. They also deliberated whether they should charge the chimp's owner.

What foolishness. The fact that prosecutors even entertained the proposition to charge an animal with a crime reveals a gross misunderstanding of the criminal law's basic functions. It would serve neither a moral nor a utilitarian purpose to punish an animal. After all, animals do not make rational choices; they know only instinct. They cannot grasp intuitive human moral teachings, nor can they feel fear when they see a fellow animal punished for making a "choice." Indeed, we might even wonder whether animals make "choices" at all in the way humans understand the word. Animals do not assimilate information as humans do. Nor can they learn to adapt their behavior to meet accepted "social norms." How can the law serve a purpose when the subject cannot even use language? Law must communicate before it can have any beneficial effect on society. Animals do not communicate with language. Thus, it is absurd to even consider using criminal penalties against them when they do something outrageous.

Still, Connecticut's debate about prosecuting a chimpanzee reveals a bothersome issue. Specifically, it reveals our society's reflexive--and ridiculous--propensity to use the criminal law to address any conduct we find abhorrent. In recent decades, States have greatly expanded their criminal codes. When there is a new social issue that arouses people's anger or disgust, there is an immediate push to criminalize it. Someone doesn't wear a seatbelt? Make it a crime. Someone texts while driving? Make it a crime. Someone doesn't inspect a restaurant every two weeks? Make it a crime. Someone forgets to feed their child lunch? Make it a crime. Someone did not clean their apartment? Make it a crime. Someone puts recyclables in the trash? Make it a crime.

In short, by making all objectionable conduct potentially criminal, States have diluted what it means to make "criminal choices." They have also shown that people just like taking revenge on things, even if it does not seem reasonable.

This explains why Connecticut prosecutors thought about prosecuting the chimpanzee. When something outrageous happens--like a chimpanzee chewing off a woman's face--people in our society rush to assign blame and take revenge on the culprit. This makes sense from a human perspective; human beings naturally thirst for revenge when injured. Oliver Wendell Holmes noted in The Common Law (1881) that both criminal law and compensation law flow from the natural human anger that arises when people get hurt: When a person accidentally slams his hand in a door, he kicks the door. Or when a branch falls on a man, he burns the tree. People want to take revenge against things that hurt them, even if they are inanimate, and even if it would serve no useful or moral purpose.

Criminal law is not the same thing as natural human revenge. It is a human invention with a human focus. It enforces human norms and aims to influence rational human choices. It makes no sense to apply it to anyone--or anything--that cannot make rational choices. If the criminal law cannot either: (1) Express moral outrage against a person who knew or should have known he made an intuitively "bad choice;" or (2) Realistically frighten potential criminals by punishing a convicted criminal, then it makes no sense to apply it. Animals cannot know they make "bad choices." They do not have the capacity to grasp complex verbal communication, let alone subtle moral principles. They also cannot be frightened from acting in ways that injure humans. This is why it is utterly pointless to prosecute an animal.

Now, that does not mean humans do not feel a natural desire to take revenge against an animal that hurts them. Just as people burn trees that fall on them, they can kill animals that pose a danger. But taking bald revenge on an animal is very different from prosecuting it, then punishing it consistent with law.

For better or worse, the criminal law has come to signify "revenge" in our society. True, the criminal law undoubtedly sates the natural human craving for revenge in many situations. But it would behoove us to remember that the two concepts are not entirely coextensive. Understanding the difference saves us from embarrassing spectacles, like seriously debating whether to hale a chimp into court to stand trial.

GOOD, BAD OR JUST SICK : WHY WE PUNISH CHOICE

AN ESSAY

Everyone loves hearing about crimes. We all have a dread fascination with our society’s lawbreakers. Sometimes we love to hate them. Other times, we rally around the accused, calling his prosecution “unjust.” In still other situations, we criticize the State for prosecuting someone because he is “not bad, just sick.” We express our condemnation for people who make conscious choices that revolt us. We express our approval for people who make conscious choices we deem correct. But we express sympathy for people who have mental difficulty making any conscious choice at all. Interestingly, the result in each case may be precisely the same. Yet our law and our judgment vary depending on the circumstances surrounding the actor’s choice.

Why is choice so important to the criminal law? To answer that question, we must first understand what the criminal law is. Like no other tradition in Anglo-American law, criminal law doctrine draws upon contemporary morality. Morality is not law. Morality simply states how most people in a society generally feel about particular conduct. In other words, morality codifies popular intuition about behavior and thought. Law, on the other hand, has nothing to do with feelings or intuition. Rather, law declares categorical rules of prohibition and permission. It establishes concrete guidelines and consequences for violations. Broadly stated, human reason creates law, not intuition. Yet in criminal matters, law takes on a moral dimension. The People act through their elected representatives to enshrine their moral understandings in law. The result: Criminal law.

Moral systems develop over centuries in every society. In the English tradition, morality developed hand in hand with Christian church dogma. In fact, English common law courts routinely charged defendants with “crime and sin” in the same indictment. Sins represented moral transgressions against God’s law, while crimes represented moral transgressions against Man’s law. Today, this connection may seem untenable. Yet history explains us far better than we like to think. Sin and crime are linked because both involve moral choices. A sinner chooses to do something that God forbids. Similarly, a criminal chooses to do something that the law forbids. What, then, is forbidden? Through law, men are free to forbid virtually anything. Today, there are constitutional limitations on a legislature’s power to forbid certain conduct. But traditionally—and this remains the case—legislatures forbid conduct that most people consider “abhorrent,” “disgusting,” “dangerous,” “revolting” or “unappetizing.” In other words, they forbid things they consider “immoral.” Morality orients itself according to the average man’s sense of outrage and disgust. Not surprisingly, the criminal law follows a similar paradigm. While law may generally follow reason, criminal law is a special case. It uses reason to establish its legal authority, but in substance, it enforces popular morality.

Criminal law punishes people for choosing to do forbidden things. Choice implies that a person faces an alternative between a good path and a bad path according to moral intuition. For example, when a boy walks into a store, he faces a choice: “I can buy some chewing gum or I can steal it. This is my moral choice. I know it is wrong to steal. If I choose to steal, it would be a ‘bad choice,’ because I learned from my earliest days that stealing is ‘bad.’ But if I choose to buy, I would make a ‘good choice.’ Therefore, I will make a good choice and buy the gum.” Here, the boy acts according to intuitive moral understanding. Those intuitive moral understandings find expression in the law. The two systems are identical. It is both criminal and immoral to steal. It is criminal because the criminal statute book literally outlaws stealing property belonging to another person. It is immoral because it is “disgusting and wrong” to deny other people their intuitive property rights.

Crime and immorality are consistent in the opposite situation, too. If the boy chooses to steal, he knows he made a wrong choice. He acted immorally. In the same stroke, he violated the criminal law. Here, however, we witness the criminal law’s intimate concern with moral choice. In proving the crime, the State must show not only that the boy behaved a certain way; it must also show that he had a “bad mind” when he did. It must prove that the boy took the gum. That is easy. Yet it also must prove that, at the moment he took the gum, he knew he did not own it and that he intended to steal it. In other words, the criminal law must prove that the boy had a “bad mind.” In so doing, the State not only proves the boy a criminal. It also holds him up to moral contempt. After all, when a jury hears proof about the boy’s behavior, it also hears about his thoughts, motivations, desires and ultimate “choice to do wrong.” That shows him to be immoral, as well as criminal. And people love to hate immoral choices, because morality is intuitive. You do not need a law degree to feel outrage about revolting choices. We know them when we see them. In this way, the criminal law not only satisfies the cold requirements of reason. It also satisfies the public lust for condemning bad choices. Put simply, the criminal law does far more than prove technical elements. It provides a platform for the public to express their outrage against people who make “the wrong choices.”

Choice means everything in the criminal law, just as it means everything in morality. Choice provides a justification upon which to feel righteous outrage against “lawbreakers” and “moral deviants.” If a person knows he makes a bad choice, he cannot complain when society condemns him. From a historical perspective, common law courts reserved their harshest condemnation for criminals who made “wicked” choices. The judges routinely debated punishment to match the level of “wickedness” inherent in the criminal’s choice. A less “wicked” choice mandated a lesser punishment than a “grievously wicked” one. Even the word “wicked” reveals the intimate connection between morality and criminal law. It is an archaic word that we associate with monsters, witches and primeval demons who plot evil. It is morally charged. By using the word “wicked,” common law judges simultaneously cast themselves both as moral watchmen and as detached legal technicians. The fact that punishment depends upon the “level of wickedness” inherent in any particular choice provides further support for the assertion that the criminal law draws its entire strength from popular morality.

Morality lends itself to righteous hatred. People with a keen moral sense do not hesitate to express their revulsion at individuals who violate moral standards. When those moral standards find expression in the criminal law, criminal trials provide a popular outlet for that righteous hatred. But again, only choice arouses moral hatred. For example, most people detest killing. Yet not all killing is immoral, and not all killing is criminal. Results, in other words, do not always determine moral or legal consequences. Just because someone dies at another person’s hands does not mean the killer is immoral or a criminal. Choice determines morality and criminality far more effectively than mere results. For example, if a driver kills a pedestrian while driving drunk, we say he is far less immoral than a man who calmly murders his wife to get her life insurance money. A man is somewhat immoral when he stabs a rival in a heated argument after a “sufficient provocation.” And we say a man is not immoral at all when he shoots a robber in his home.

On these examples, we see similar results: People killing other people. Yet morality condemns some killings more than others. The law, too, makes distinctions to match the moral feeling associated with each killing. A drunk driver makes a “bad choice” because he chooses to get into a car while drunk. An ordinarily prudent man knows that driving drunk creates extremely hazardous risks. Therein lies the bad choice; the drunk driver did not choose to deliberately kill the pedestrian. He simply chose to something that caused great risk to others. That choice is immoral, but not as immoral as choosing to kill your wife in order to get her insurance money. From a moral perspective, that choice arouses more popular disgust than choosing to drive drunk. It revolts us more. It shows us that the killer had financial motives in ending another person’s life. That is more shocking, outrageous and despicable—for one moral reason or another—than choosing to drive drunk. Morality assigns the distinctions based upon the intuitive feeling associated with each choice. And the law follows suit by punishing the more “wicked” choice more severely than the “less wicked” choice. The same reasoning applies to the man who wrathfully stabs his rival in an argument. It is immoral to intentionally strike another person dead, but according to popular morality, it is more “forgivable” when the killer is “beside himself” with rage. After all, we all have lost our tempers. We know that we do not think clearly when rage overcomes us. Our choices, then, are not “as bad” as they are when we think clearly. Again, we see choice as the sole basis upon which both law and morality draw distinctions.

Finally, we do not consider it immoral at all when a man shoots a robber in his home. Popular intuition tells us that preserving our own lives is so important that it entitles us to kill someone intent upon killing us. In these circumstances, there is nothing blameworthy or “disgusting” about killing another person when you must kill to live. The law responds in kind: It is no crime at all to kill someone in self-defense. This moral distinction may reveal a society’s values more than any other. The circumstances under which a society legally permits killing candidly demonstrate what a society holds dear. While many people would not argue that killing in self-defense is justifiable, what about killing unarmed trespassers? That is legal in Texas. Because the criminal law draws on moral sources, the Texas law—at the least—expresses the moral norms of the people who made it.

Criminal law, then, provides a forum in which the public can express measured moral outrage against all kinds of “bad choices.” Choice is the touchstone. We have no trouble labeling someone “morally bad” and a “criminal” if he makes a choice that arouses sufficient public disgust. In most cases, a “bad choice” leads to “bad results” and we have no problem taking revenge on criminals because their bad choices cause tangible damage. But what happens when damage flows from people who cannot make rational choices? In other words, what about the mentally ill or—to use a less delicate, 19th Century term—“the insane?” After all, the criminal law draws its strength from morality, and no one is immoral unless they make choices that violate intuitive moral standards. Mentally ill people, however, do not possess the same intuitive understandings as “average citizens.” They do not make “choices” in the same way as an “average man.” Unlike the boy in the store who faces an uncomplicated alternative between “good” and “bad” choices, a mentally ill person does not weigh moral paths. He follows totally different mentally processes, and they are not rational. To that extent, mental illness completely derails both the moral and legal justifications for punishment based on choice. If a person does not have capacity to “choose” as we understand it, the entire punishment rationale collapses. A mentally-ill person may cause as much damage as the cruelest sane murderer, but we do not revile him as “wicked.” Rather, we pity him for his “insanity.” We do not call him “bad;” we call him “sick.” Again, we see that the criminal law depends upon choice for its thematic consistency. It assumes that people can make rational decisions in life based upon intuitive moral understandings. When a person cannot make such decisions, it becomes entirely unjust to punish him because he "makes no choice."

But mentally-ill people pose dangers precisely because they cannot make rational decisions. They act on irrational impulses, which in turn create risks for people around them. The law recognizes this. When a mentally-ill person causes harm, the law steps in to incapacitate him, not punish him. In this sense, the criminal law does not express moral outrage. It simply performs a “utilitarian” function, namely, to protect the public from dangerous instrumentalities. The criminal law performs this function even if the criminal does make rational choices, but in the case of mental illness, incapacitation is the only alternative. There is no moral dimension to these legal functions. Nonetheless, when the law takes action against the mentally-ill, it still judges. It does not act as a moral judge, but rather as a judge of “normalcy” and “fitness to live in society.” In some sense, these judgments are even more pernicious and value-based than their moral counterparts.

Criminal law fascinates us because it has a uniquely public function. Few people care about individual civil disputes between private individuals. But everyone cares about trials against notorious lawbreakers and rascals. We devour crime literature and entertainment. We relish news stories about abominable crimes and their victims. We express popular contempt for nefarious suspects. We even pause to consider whether criminals are really “bad” or whether they are “sick.” We do all these things because criminal law is intertwined with society’s basic moral sense and because criminal cases proceed in the People’s name. Like few other legal fields, criminal law captures the public imagination. We feel that we play a role because criminals attack our values as a society. And when we feel under attack, we relish the opportunity to pronounce our moral judgments against the trespasser. That is just the way we are. The criminal law simply provides us an outlet for us to condemn or approve other people’s choices.

IF YOU BELIEVE IN DESTINY, YOU CAN'T "MAKE IT HAPPEN"

AN ESSAY

For the last two years, I have grappled with the concepts “fate” and “destiny.” I always heard these words in movies and on television: “It’s your destiny;” “I was fated to do this;” “You can’t escape fate;” “You were destined for greatness.” I never really paid much attention to them. They did not make any sense to me because I believed that I had total control over my life. I made decisions and those decisions led me places. I did not grow up with religion. My father was an engineer and I learned that reason solved problems, not faith. In fact, my family rejected churches and I cultivated a strong distaste for religious institutions. By the time I was 13, I was already calling priests hypocrites and laughing at invitations to “let us pray.” In my world, study and sense yielded real results. Life seemed to be discernible. I felt like I had control.

But things changed as I got older. Through no choice of my own, I met people who took my life in different directions. I created plans and abandoned them, even after I thought my plans would never change. Calamities struck with no reasonable explanation. When I was 28, my father developed cancer and died virtually overnight. A few months later, I lost all desire to practice law after I saw what really motivated lawyers. The next year, my life partner suffered a devastating accident and almost died, leaving me to care for him for the rest of his life. During these trials, I began to wonder whether reason and study really could affect my life’s course. After all, I felt that I always made reasonable decisions in life, yet these calamities struck anyway. I began to reflect deeply on my assumptions about life. Maybe I had been wrong all along. No matter the ultimate answer, my thinking changed. I still trusted my reason in many circumstances. But I did not give it full authority anymore. Life had shown me that things happen for no apparent reason. And I began to approach life with a new openness about truth.

“Destiny” refers to a belief that all events in life have been preordained. For example, if you get up one morning and meet the person with whom you will spend your life, a believer in “destiny” would say that the meeting was “destined;” your choices or “luck” had nothing to do with it. In “destiny,” nothing is incidental. “Fate” refers to a similar belief that events have been planned in advance, leaving us to experience them as the plan unfolds. To a believer in reason, these concepts sound absurd. Reason implies that all truth flows from human sense and the inferences we can make based upon our senses. A reasonable person would reject destiny because there is no way to verify whether some “higher power” planned or ordained events. Reason requires verification. When something cannot be verified, it cannot be believed. To that extent, reason and destiny cannot coexist. Destiny posits that something beyond our senses controls the course of our lives and the world. Reason cannot perceive this “controlling power,” so reason rejects destiny as “superstition” or “irrationality.”

Yet if something cannot be perceived, does that mean it does not exist? This is the core weakness of reason. Reason works only to the extent we assume that all truth must be perceptible to the senses. But suppose there are powers that cannot be perceived. Reason has nothing to say about them. Destiny is an appealing idea because the senses can neither prove nor disprove it. A reasonable man can freely say: “Destiny does not exist because I cannot perceive it.” Still, the same reasonable man cannot counter an argument that destiny exists beyond human sense. If human sense is the only language reason can use to counter arguments, then it has nothing at all to say about phenomena that may exist beyond human sense. That is the reason why I cannot confidently say that destiny is nonsense. I cannot say for certain whether it does or does not exist. My senses do not provide the answer. For a man who once fully trusted reason to answer life’s quandaries, this was a very disturbing thought.

My confusion deepens when I consider my life’s course. Looking back over the years, events seem to have occurred with seamless precision, as in a crafted theatrical plot. I met a person with whom I’ve spent my life. I studied law. I had encounters and experiences that changed my perspective, even though I did not choose to have them. My father died suddenly and I had to reevaluate what life really meant. My values shifted. I began to think that perhaps I really was not in control after all. Perhaps something planned this course beyond my knowledge. What did I know? My senses could not tell me one way or the other. Yet life keeps moving forward with some vague design. I like to think that my choices have an influence on its course. But how do I know whether I was not “destined” to make certain choices? I may or may not believe that. No matter what I believe, I cannot disprove it.

Destiny both comforts and confounds. It comforts because it removes our responsibility for choices. After all, if everything is planned in advance, then nothing we choose will alter the result. Thus, if we accidentally kill someone while driving, nothing we could have done would have changed the outcome. How can we be responsible if it was our “destiny” to kill this person? In a less severe example, suppose we do not get a job we want. How can we blame ourselves for the result if destiny mandates that we do not achieve the goals we intend to achieve?

Destiny confounds because it undermines responsibility and choice. Our society relishes blame. We constantly search for “culprits,” “wrongdoers,” “negligence” and “fault.” Yet fault implies that someone made an improper choice. Because he had the opportunity to choose correctly, we can justifiably punish him when he chooses incorrectly. But if destiny applies, then the “culprit” really had no choice at all; he was “destined” to make the wrong choice. How can we punish someone who simply does what fate intended? How can responsibility exist if a person is destined to be irresponsible? Destiny confounds social order. Social order depends upon enforcing “proper choices” that accord with dominant values. Yet destiny teaches that choice is an illusion. If people have no real capacity to make choices, then it would be perverse to punish them for merely following their allotted course. How could we justify condemning a murderer for “choosing to kill a man” if he really had no choice to make? He was “destined to kill that man.” That was his “allotted course.” Can we punish him for fulfilling his allotted course? Obviously our society cannot countenance this idea, even if it is true. For administrative convenience, the law punishes people for “wrong choices,” even though it cannot verify whether destiny controls people’s choices.

Destiny and fate leave us tantalized. The longer we live, the more it seems that our life’s course follows some prearranged logic. The longer we live, we encounter more and more unexplainable experiences. Why did we have an accident? Why did we meet this person? Why was I standing on that corner that day? Why did my father die? Why did this have to happen NOW? We cannot grasp the reasons. We may vaguely think we have an idea, but our reason cannot supply the answer. And it is difficult to reconcile destiny with social values that tell us we “are in control of our lives” and that we “are responsible for our actions.”

Commercial life embraces the notion that we are in control. Managers’ rhetoric encourages employees to “get out there and make it happen.” Commerce implies purposeful action. It implies that human volition can make a difference in events. On the surface, that appears true. After all, “successful people” all seem to work hard and force their way through to victory. But what about destiny? Was it really their choices that created the result? Or did they make their choices according to a higher power that arranged the sequence? Did they “make it happen,” or were things going to happen in their favor no matter what? Perhaps there was someone with as much drive, intelligence and spirit as Alexander Graham Bell, but destiny chose Bell to invent the telephone, not the unknown man who ended up lonely, misunderstood and forgotten. How do we know? Did Bell’s choices make the difference? Or did destiny intend his choices to make the difference?

Put simply, anyone who believes in destiny must reject the invitation to “go out there and make it happen.” If events and results are preordained, then no frantic effort will alter the course. A successful man may well say: “I got to my position because I worked hard and made all my own choices.” Yet can he also say that he was not destined to make those choices? What placed him in the position to meet the right people and say the right things? What caused his parents to meet and raise him the way they did? Did he control those things, too? In a word, he cannot disprove whether destiny played a role in creating the circumstances that led to his success.

These are truly elusive ideas. True, it is pure speculation whether destiny exists. On the other hand, speculation is our only tool when dealing with imperceptible phenomena. Many people squarely reject destiny because it is a dangerous idea. If they started to believe in destiny, they would lose their vigor for life. They would lose “control,” and people do not like losing control. People cling to the notion that their choices matter because they think their choices define them. Without the power to choose, people cease to be subjects; they become the objects of destiny. Nonetheless, renouncing destiny is more stubbornness than a categorically correct choice. One can reject destiny but not disprove it. By refusing to believe in it, an individual merely manifests his subjective impression that it does not exist; but belief alone does not objectively prove or disprove destiny.

If we even partially embrace destiny, life suddenly seems more bearable. We no longer must blame ourselves when our hopes and dreams do not materialize, for destiny intended a different result. Destiny obviates regret, since it makes no sense to second-guess ourselves for choices we really had no volition to make. Destiny removes the sting from life’s choices because we genuinely have no control over the outcome. If life’s course will be the same no matter what decisions we make, how can we feel bad about our decisions? In short, destiny comforts as much as it confounds.

It is impossible to refute destiny. At the same time, it is extremely difficult to fully embrace it. I try to steer a middle course. I like to think that my choices influence the general course of my life, even if some imperceptible power places me in situations where those choices can make a difference. On the other hand, life’s apparently irrational twists belie the contention that our choices have absolute control over events. Our choices will not save us from life’s inexorable course. Fortune and misfortune follow their own, unknowable path. Experience reveals that we do not have absolute control. And we never will, no matter who tells us to “go make it happen.” I think it best to have faith in our decisions, respect others and try to make ourselves happy, all the while remembering that there are some things we will never know. We can steer that course by at least winking at destiny. In other words, we need not take our hands off the wheel to believe that our final destination may be completely beyond what we reasonably envisioned.

We can try our best to “go make it happen.” But if it doesn’t, we should not regret it.