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cases make bad laws'' was an expression that always puzzled me when
I was a child. What did it mean? It could hardly refer to ''hard
cases'' in the colloquial sense of ''tough guys'' since they surely
had little influence on the making of laws, good or bad. And if
it meant legal cases, how did they help to make laws anyway? After
some puzzling and schoolyard discussion, I resolved that it probably
meant that laws designed to meet especially difficult situations
were likely to be distorted and inapplicable to the generality of
legal cases. And that seems to be its true import.
As maxims go,
moreover, it has great merit. Take the three hardest cases likely
to come before the courts. These involve (a) dangerous madmen, (b)
criminals whom we think likely to re-offend after their sentences
have been served, and (c) those who were children when they committed
their crimes. We judge these to be ''hard cases'' because society
has an interest in confining them in prison or psychiatric hospitals
— either in order to punish their crimes or to protect itself from
them in future — yet it also doubts its moral right to deny them
their liberty.
Dangerous lunatics
must be confined for their own good and for that of the rest of
us. Yet because they are morally innocent, we have no right to add
suffering or even discomfort to their loss of liberty. The conditions
of their confinement must mimic freedom as much as possible. That
is why, for instance, it is morally odious and an abuse of power
for anti-smoking doctors to refuse the right to smoke to those forcibly
confined in psychiatric institutions.
Criminals we
think likely to re-offend are a middle-ground case. Since they have
''paid their debt to society,'' we have only a very dubious right
to keep them in prison. But legitimate concerns over the welfare
of children have caused the passage of ''Megan's Law'' legislation
in several states to detain sexual offenders indefinitely on the
grounds that statistically they are likely to offend again.
Unfortunately,
loose statistics make even worse laws than bad cases. Suppose that
70 percent of child molesters are judged likely recidivists? And
suppose the definition of child molestation includes such crimes
as indecent exposure that, however gross or sordid, scarcely deserve
life imprisonment? We would then find ourselves keeping in prison
both the 30 percent of former offenders who would lead peaceful
and law-abiding lives in the outside world and some sad cases who
mainly pose a threat of embarrassment and distaste to the rest of
us.
The dilemmas
posed by the third group — children who commit a terrible crime
— are currently roiling Britain. Two 10-year-old boys who tortured
and murdered toddler James Bulger eight years ago are about to be
released. Originally, Jon Venables and Robert Thompson were sentenced
to life imprisonment, which, on the instructions of a former Home
Secretary (the British version of attorney general), was to have
meant a minimum of 15 years. But a combination of the European Court
of Human Rights and a liberal British Lord Chief Justice lowered
that to eight years. And the two adolescents are now to be released
while their crime is still fresh in the imagination of the public
and of the family of the murdered boy.
It is the hardest
of all possible cases. On one hand, there seems little doubt that
the boys knew they were doing wrong and to that extent met the criterion
of criminal responsibility. But did they, at age 10, have the full
knowledge that would justify a longer sentence? Most European countries
set the age of criminal responsibility higher than 10 — some as
high as 18. So the two boys are either murderers getting off lightly
or themselves victims of an antiquated law who needed moral instruction
rather than punishment.
Our answer
may depend on how we respond to a deeper question: Are the two boys
the moral monsters that James Bulger's family understandably believes?
If we are honest about it, we can all recall how as children we
felt the impulse of cruelty to others at times. We were taught to
restrain and overcome it by training at home and school. Were Venables
and Thompson just unfortunate in not receiving that training? Or
are they among that tiny psychopathic minority that never internalizes
moral rules and so is always a threat to others? We simply cannot
know that with certainty. And the exemplary behavior of the boys
in supervised circumstances, though it tells us something favorable
about them, does not settle the matter.
The British
may have stumbled on the solution. Life imprisonment in Britain
is known formally as ''being detained at Her Majesty's pleasure.''
In other words, the sentence is an indefinite one, and Venables
and Thompson, though being released from confinement, will never
be entirely free. They will have to report to probation officers
and the police; they cannot return to the Liverpool region; they
are forbidden from seeing each other again; and they will be closely
watched for many years (for their own safety against vigilante justice
among other considerations). If they show signs of being a danger
to themselves or others, they will be returned to prison. But they
will not be punished indefinitely for the sake of punishment. The
result is a kind of compromise between the safety of society and
the rights of the prisoner. Hard cases, in this case, make flexible
sentences. It is a lesson we might apply to the other hard cases.
This piece originally appeared in the Chicago
Sun-Times.
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