Outside Counsel

Dahlia Lithwick on the Lee Boyd Malvo case says that there is a plausible argument for a brainwashing defense in mitigation during the penalty phase of the trial. From the way she describes the prosecutor's plan of proof, I'd say that it's about all the defense has to work with, and I wish them luck-- there is no good outcome possible here, but I think it is deplorable that Ashcroft has maneuvered this trial into Virginia so that this 17 year old boy can be death penalty eligible. The crimes were horrible, absolutely, but Ashcroft runs DOJ like an abattoir, and it disgusts me that this is the policy of my government. Lithwick goes on to ask: "If this impressionable young man really was yanked from his family and friends, isolated from outside influences, and inculcated with hatred, greed, and a lust to kill, does that absolve him of the evil he committed? Does it at least mitigate against executing him? Can one be so enthralled by another that one's own true self is lost? And if that is the case, is there any reason to believe that the "real" Malvo could ever be regained? This leaves jurors to make a near-impossible decision about evil and character, about redemption and free will and determinism; about whether a child can be morally ruined to the point that he should be discarded. These are more theological questions than legal ones. But perhaps that is also ultimately fitting for a jury that will be deciding whether a young man will die."

See, and that's where I disagree. I believe in the legal system, I really and truly do, but there are things that it is not suited to, and answering theological questions is at or close to the top of the list. (Actually, as to theological questions, I put it to you that these are incapable of answer; and, further, that the purpose of theology is merely to pose questions to which faith is the only response. But I digress.) Crime is a social problem, and punishment-- whether it is retributive or rehabilitative, or merely intended to protect society from the possibility of further harm from the individual criminal-- has to be focused on the social questions raised-- not on angels dancing on pin questions about the nature of evil. For me there is no question that executing this boy is wrong-- the sorts of places that do that sort of thing are the sorts of places that Americans deplore. Iraq, Iran, Nigeria, China-- if you look at the list of countries that still have capital punishment, what you see is a litany of utter despair. Is putting a 17 year old boy in prison for life any better? As horrible as it sounds, I believe it is. The range of possible outcomes, while limited, is still better than just one more dead person out of all the tragedy. He might become a spiritual person. He might become an example of repentance to others. He might die at the hands of another prisoner, or endure a lifetime of abuse. Perhaps he will simply be a mad dog killer, who should never be allowed out again, but if that is the outcome, then at a minimum we will have prevented him from hurting any more innocent people. You may say, "We shoot mad dogs," and I say, yes, that is true. But this is a 17 year old boy, not a dog, and that has to make a difference. If you believe that our humanity makes us different from every other thing that creeps or crawls or walks or flys, then it should make a difference for Lee Boyd Malvo.

And now, having said all that, I must admit that I'd make exceptions. How Malvo can be distinguished from any other terrorist seems to me to be a fair question, and terrorists are where my list of exceptions start. Torturers-- I'd say the Canadians showed more restraint than I could have in the Paul Bernardo- Karen Homulka matter.

Not easy questions, and the law has to have a response, if not an answer. In the end, this is why the law's greatest strength is its advisarial nature-- we are more about making arguments than we are about making rules.