FEBRUARY 8, 2015
The history of crime and punishment across the millennia remains an inconsistent chronicle of experimentation, borrowing and adaptation, often dependent on time, place and history. The global history of crime and punishment remains a work in progress.
ON MY FIRST READING of An Eye for an Eye, Mitchel P. Roth’s new book, I recall closing it and asking myself a series of questions: “What have I learned?,” “How do I feel about what I had read?,” “Was it worth my time and effort?” This book is not a quick read, not a book where you can quickly turn to the next page. Often you have to, and want to, ponder what you’ve just read. But if you are interested in the subject matter, or if you are a judge, lawyer, elected official, or a “student” of jurisprudence, reading this book will be worth your time and effort.
My dominant feeling was when I finished my first read of the book was disappointment — but it was not the content of the book that disappointed me. The book is the first I have read that attempts to chronicle and dispassionately explore the world history of crime and punishment. Professor Roth’s effort is forceful, scholarly yet easily readable, informative, sometimes even entertainingly informative, and, lastly, provocative. Roth has said it was not written with the purpose of being a university textbook, but it easily could be the bones of a very interesting class for students of history or those interested in the law, government, philosophy, or criminology. The book is crammed with interesting facts and statistics and dozens of fascinating and sometimes gory anecdotes that have been brought together through disciplined and thorough research by the author (and probably others working with him). Roth, who teaches criminal justice and criminology at Sam Houston State University in Huntsville, Texas, has done an admirable job of scholarship.
My disappointment stemmed from the conclusion I drew, based on the facts Roth presents: that there is not one nation in the history of the world whose people, government, or rulers haven’t been responsible for perpetrating horrific acts of cruelty, sadism, and savagery on other human beings. Is this the nature of man? Are we any safer today than 100, 500, 1,000, or 5,000 years ago? Roth could persuasively argue that we are indeed much safer — at least from the common street criminal. When you put aside acts of terrorism and accept that crime statistics in some countries are at best woefully inadequate, I think he is probably correct.
WHAT IS A CRIME?
Let us go back to the beginning. Roth gives us this definition of what constitutes a crime: “for the purposes of this book,” he writes, “crime will be regarded as a legal concept, that is, what is or is not against the (written) law.”
Happily, for those interested in the history of crime and punishment, Roth goes back thousands of years to the Chinese, Egyptians, Israelites, Babylonians, Mongols, and world tribe histories to share with us what constituted a crime before there were written laws. These were norms of expectations that citizens of communities or tribes were expected to follow. Communities created what I would call “community justice,” sometimes very harsh and other times what would be called today “progressive.” When laws were ultimately written they were laws that came from these cultures, social norms, and religious beliefs. Once written, most laws were viewed as rules that came from a god or prophet and needed to be obeyed without exception.
Roth makes clear how most groups borrowed from others in dealing with the issue of crime and justice. The Japanese borrowed from the Chinese, and many groups borrowed from the Egyptians, the Babylonians, and the Israelites. The English borrowed from their invaders, especially from the Romans and the Normans. We in the United States, of course, borrowed primarily from the English — the norm for former colonies of European states. But clearly each nation state establishes its own definitions of what constitutes a crime and what is an acceptable process of justice. What one entity may call a crime, another may call lawful. For example, in our own country, there are still 21 states that define adultery as a crime.
In reading An Eye for an Eye, what stood out for me was how early definitions of crimes were clearly biased against women, ethnic minorities, and the poor. Today we might have a more even and fair system of justice, but clearly some of the prejudices and unfairness still exist in our country as well as in others.
The timing of this book’s release follows closely upon the publication of the Senate Intelligence Committee Report on the Central Intelligence Agency’s program that resulted in the detention and torture of terrorism suspects after the September 11th attacks. Interestingly the banner headline of The New York Times did not use the word “torture”; it used the word “brutality.” The editorial page in its lead editorial was not as lenient as the headline editors. The editorial page used the word that would have come to the mind of most Americans, “torture.” The report would seem to prove that CIA agents and their agents tortured and sometimes wrongfully detained people who were viewed or suspected of being terrorist suspects. Some might play word games and call some of the forms of torture used by CIA agents and operatives, “enhanced interrogation techniques.” Clearly, in my opinion, most Americans would view many of these “techniques” as acts of torture.
Chairwoman Senator Dianne Feinstein called the CIA acts “a stain on our values.” But who is asking that someone, the Attorney General or a special prosecutor, review this conduct to determine whether criminal prosecution is warranted? Do the clear acts of torture establish a crime? If not, how will we be able to deter similar conduct the next time we have a terrorist attack in our country? These are questions that deserve answers. Perhaps the Patriot Act or some other federal law protects those who engaged in acts a majority of the committee concluded were torture. If so, you and I and the world should be made known of these laws and serious thought given to amending them.
Torture of course has not always been a criminal act; in fact, it has often been a juridical one — a central form of punishment meted out by the justice system.
WHAT IS THE RIGHT PUNISHMENT?
Roth describes the horrific forms of torture and execution that man has perpetrated since the beginning of humankind — in every nation state and people of our world. Before becoming a photographer, I was in the Los Angeles County District Attorney’s office for 32 years. In those 32 years I spoke with and interviewed hundreds of police officers, victims and witnesses of brutal crimes, lawyers, and medical examiners. Even with this experience, I was shocked by the descriptions of torture and executions Roth describes. And for what purpose were these means employed worldwide? Was it to gain information or a confession? Was it community retribution? Was it to deter similar acts by others? Most likely the answer to each question is a qualified “yes,” but Roth doesn’t address the effectiveness and reliability of those means for the ends sought.
We do know that most nation states were moving away from torture by the mid-18th century. We learn that torture was declared illegal first in Scotland and Prussia in 1740. Other nation states followed over the ensuing decades. When some of the nation states that had made torture illegal founded colonies in Africa, South and North America, the illegality of torture was overlooked or ignored.
The larger question for me is: what purpose does any punishment serve? Law school students learn in their criminal law class that the purposes of punishment for violating criminal laws are: Deterrence, Incapacitation, Retribution, Restitution, and Rehabilitation. Not all apply in every case. This is a subject that could take a separate essay on its own to properly discuss. Later in this essay I will address the ultimate criminal punishment a nation state could impose, the most extreme case of incapacitation, execution, and the purpose it is meant to serve.
Roth documents the change in both crime and punishment on a worldwide basis. In California we have substantially changed the so-called “Three Strikes” law that kept some felons in state prison on a life sentence. Through the recently passed Proposition 47, Californians have reduced some crimes from felonies to misdemeanors with the consequence of much more lenient punishments. We have also de-criminalized the possession of marijuana.
But there will be many more issues to address in years to come — issues that are both difficult and complex. For example, why are the vast majority of our citizens who are facing criminal charges people of color? We learn from Roth’s book that laws were often formed by communities or written into law in order to protect the elite or at least to favor them. Hundreds of years later there are many segments of our communities who would argue that the law and justice system still greatly favor the rich or powerful and that people of color and poor people are treated more harshly and with less fairness. The book also does not try to address issues that will be coming to the front, like the fairness of an ex-convict forever having to bear the consequences of being a felon. When you cannot get a job or an apartment simply because you are a felon, what are the consequences to the felon and the community? Will punishment for his or her crime continue for a lifetime? Is that fair? Is society loading the dice against a convicted felon and greatly increasing the chances that this person will be forced to return to a life of crime because carrying the label of a “felon” makes it much more challenging to find a decent job and apartment or home?
An Eye for an Eye is not written to address these questions. But the book does us all a great service in forcing these and other questions to the front — questions and issues that deserve serious thought, consideration, and action. And it spurred me to think and write about two subjects that weigh heavily for me: about the acts of on-duty police officers that result in the death of a citizen and, secondly, the death penalty.
WHEN IS AN ACT OF A POLICE OFFICER A CRIME?
The killing of Michael Brown by Ferguson city police officer Darren Wilson and the killing of Eric Garner by New York City police officer Daniel Pantaleo are the latest examples of the killing of an unarmed black man or woman in the United States.
The St. Louis County District Attorney chose to present the case to the Grand Jury rather than make the decision himself as to whether to prosecute Officer Wilson for the killing of Mr. Brown. In St. Louis County it takes the votes of at least nine of 12 grand jurors to return an indictment. We do not know how many, if any, grand jurors voted to indict Office Wilson and which charges they considered. But we do know the St. Louis Grand Jury declined to return an indictment.
The killing of Mr. Eric Garner, apparently due in part, if not in whole, to the use of a chokehold by NYPD officer Daniel Pantaleo, was also heard by a Grand Jury, this one in Staten Island. As in the Brown case the Grand Jury declined to initiate criminal charges against officer Pantaleo or any of the other officers involved in subduing and arresting Garner. In New York, at least 12 of a minimum of 16 grand jurors hearing all of the evidence presented to the Grand Jury must vote to indict. The vote of this grand jury has not been made public. In New York a Grand Jury is comprised of up to 23 grand jurors.
I was a member of the Los Angeles County District Attorney office from 1968 to 2000. I was the elected District Attorney for eight years, the second ranking deputy district attorney for four years, and in charge of a division of prosecutors and investigators whose exclusive responsibility was the review, investigation, and where appropriate, the prosecution of every police shooting resulting in the death or injury of a citizen by a police officer. I held that position for approximately six years. Many controversial police shooting cases, including for example the Euila Love case, were cases that this division handled (i.e., this division made the decision whether to seek criminal prosecution or decline criminal prosecution).
In Los Angeles County, criminal cases are rarely taken to the county Grand Jury for possible indictment. The usual practice is for the district attorney’s office to either charge a criminal suspect with a crime or to formally decline to charge that person. If charges are brought, the case goes through what is called a preliminary hearing. The purpose of this hearing is for a judge to determine whether there is a strong suspicion that a crime has been committed and that the charged person is the one responsible for the crime. If the judge finds the requisite probable cause, the case is then set for trial. (If a Grand Jury returns an indictment, the case skips the preliminary hearing and the case is set for trial.)
However, we have left out one key piece of the charging decision. At least in California, and I think most states, before charges can ethically be brought by either the prosecuting attorney’s office or the Grand Jury, there must be an independent finding: 1. That there is sufficient evidence to prove that a crime has been committed; 2. That there is sufficient evidence that the accused is the person responsible for the crime; 3. That the admissible evidence is of such convincing force that it would warrant conviction of the crime(s) charged by a reasonable and objective fact finder after hearing all the evidence available at the time of charging and after considering the most plausible, reasonably foreseeable defense(s) inherent in the prosecution’s evidence. If the prosecuting attorney or Grand Jury concludes that any of the three is lacking, then, ethically, the prosecution must be declined.
When it comes to decisions to prosecute, the usual response from the community is “THAT is the job of a jury. It is not the D.A.’s job to make that decision.” But, at least in California, it is the legal and ethical responsibility of the District Attorney. Indeed the vast majority of police shootings in Los Angeles as well as in the country result in no criminal action against an officer who shoots and kills a citizen. Our system of justice, right or wrong, makes it exceedingly difficult to successfully prosecute a police officer in a shooting case, most of which involve split-second judgment calls occurring in heated encounters. Even when officers are charged in such cases, it is the exceedingly rare case that 12 jurors will vote to convict the police officer of the charged crime.
Some object to the District Attorney’s office handling such cases because of what is seen as a conflict of interest. Prosecutors are seen as working hand in hand with police officers every day. The feeling of many community members is that the prosecutor really can’t be fair and impartial. Whether that is true or not, we don’t have time or space to explore. It is enough perhaps that such a perception is very strong, especially in the minority communities most affected by police shootings.
Is there an answer that would give the community and police a better sense or feeling of fairness that the current system might not be able to provide today? A recent editorial in The New York Times endorses the New York State Attorney General’s position that all police shooting cases in the state should be the responsibility of the state Attorney General’s office. I support this position.
Some District Attorneys would howl that their office properly, professionally, and ethically handles such cases. But we are dealing with a public perception by significant parts of our constituencies that because of their daily working relationship with the police, local district attorneys simply cannot be the fair, impartial, and professional prosecutors that these cases require and demand.
Even if this were to happen, it still leaves a question that I have never seen addressed, the ability of the local judge to sit as a totally fair and impartial jurist in a police officer shooting case that involves a split second decision by the accused officer.
While I endorse the idea of taking all cases involving alleged police misconduct from the local District Attorney’s office, I surely wouldn’t want to be the Attorney General who, by law, would now be charged to handle these cases. He or she might rue the day he or she argued for exclusive jurisdiction over police officer shooting cases. Still, I would prefer an elected official having the responsibility of making these decisions rather than a special prosecutor appointed by the Governor, Attorney General, or Court.
WHAT USEFUL SOCIETAL PURPOSE DOES THE DEATH PENALTY SERVE?
Perhaps Roth’s book gives us the best historical treatise on a governing body’s ultimate power in cases where an individual is charged with a crime: the possibility that the accused could receive a sentence of death.
The oldest of what we today call “governments” have used execution as the ultimate form of punishment. To today’s sensibilities, many early crimes punishable by death are shocking. Trespassing onto a farm and stealing a chicken or eggs has resulted in the thief being executed in more than one country. It didn’t make any difference in the law that the thief was a youngster. Virtually every country in the world today outlaws such reprehensible punishments. If a woman committed adultery in the 18th century in the United States she could be executed (I have not seen any historical reference to a male adulterer being executed). Today 21 states still have anti-adultery laws but no convicted adulterer can be sentenced to death — well, at least not by a court of law! In fact, what we see today is a world that continues to move away from using the death penalty — though women convicted of adultery in some countries can still be executed, even today.
While the United States is slowly moving away from using the death penalty, we should be aware that our country was just behind China, Iran, Saudi Arabia, and Iraq in the number of persons executed between 2007–’12. Like countries in the rest of the world, our states continue to replace the death penalty with life imprisonment without the possibility of parole. Eighteen states no longer have the death penalty. In Colorado, Washington, and California, there are executive or legally mandated moratoria on the death penalty.
My basic question about the death penalty is simple. Is there any useful societal purpose for it? As District Attorney I implemented and supported the death penalty. While I was the District Attorney we ultimately sought the death penalty in about 22 percent of all cases where someone was eligible for the death penalty. While these were clearly “the worst of the worst,” I wanted to believe that the death penalty had a higher purpose than revenge or retribution. I wanted to believe that the death penalty was a deterrent. I wanted to believe that the best way of protecting our citizens was to execute the convicted murderer. I felt no sympathy for the killer regardless of his circumstances. The horrors he or she had brought to his victims and their loved ones were always on my mind.
I was wrong about deterrence. Virtually all experts agree that there is no proof that the death penalty deters. I also now realize that the most reasonable and least expensive way to protect our citizens from these killers is to keep them in prison for the rest of their lives.
As of January 5, 2015, there are 749 condemned prisoners on California’s Death Row. It is estimated that this incarceration alone costs taxpayers $137 million every year. As more convicted murderers are sentenced to death, the costs to taxpayers rise. If those 749 prisoners were sentenced to life in prison without any chance of parole, the costs to taxpayers would be an annual cost of approximately $11.5 million. That means that every year taxpayers would have $125.5 million to be used for productive purposes such as keeping teachers on their jobs, police officers working to solve crime, or providing restitution to victims of crime.
Today we can expect that the vast majority of the 749 condemned prisoners will live, by prison standards, a luxury life until they die of natural causes. I do not believe we will see another state execution in California.
Why should we want this result even if it saves the taxpayer tens of millions of dollars every year? Our system of justice is built on the belief that it is better that one guilty man go free than to convict an innocent man. How many innocent men have been executed in our country? We do not know the answer, but each of us know that this has happened even if we can’t name a case. We are talking about human nature, human mistake, and, yes, about people in power abusing the criminal justice system for their own purposes. We are reminded of this terrible history too often. Just weeks ago we learned that a 14-year-old boy, George Stinney, was executed for the murder of two girls — murders he did not commit.
Since 1973 there have been 150 people in the United States freed from death row. Virtually every month we read about the freeing of a person imprisoned for decades and who a judge now determines was wrongfully convicted. At least that person is alive to walk out of prison.
The witnesses, police, prosecutors, judges, or juries who fail to meet the ethical and moral obligations of our society are few. But even those who meet every expected norm and responsibility of our criminal justice system make mistakes. When I see 749 prisoners on California’s death row, I know that there must be some who do not belong there. Understand me, the vast, overwhelming majority of prisoners sentenced to death in this state and by the state, never deserve to be released from prison. But I also know that humans make mistakes. Execute a wrongfully convicted citizen and we all lose.
I have answered the question I posed at the top of this section and now challenge you, the reader, to respond if you disagree with me. Perhaps you can teach me something I do not know or persuade me with your argument. If you think retribution in itself is sufficient in terms of a useful societal purpose, I ask but can we afford it? What do we gain from it? Having been intimately involved in the debate about the death penalty and having had firsthand experience with it, I must conclude that the death penalty has no useful societal purpose and that it should be replaced with a sentence of life in prison without the possibility of parole. As Roth’s An Eye for an Eye shows us, history has brought us here.