The Monstrousness of Empathy

Two weeks ago, a colleague’s seventeen-year-old daughter was found murdered in her car in downtown Los Angeles. At first, the police said death occurred from head trauma; that someone or something had caused Lily Burk to slam her head into the inside door panel with such forced that it killed her. People read this within hours of Lily being found, both because bad news travels fast and because Lily’s father is a well-known Los Angeles journalist, and other journalists, myself included, were pushing the story forward. We passed on this information nearly as soon as we heard it, via email, blogging, the web, editorials, Twitter and telephone. The people to whom we transmitted this information could be expected to do something with it.

But transmission was not the first thing I did. The first thing I did was say, no. No, this did not happen, in broad daylight, to the child of someone I know, a child who’d attended school with my daughter; a child I saw walk for six years through the school parking lot with her mother, no. Then I got into the shower and cried. I cried for any fear Lily faced and told her how sorry I was she’d had to, and I cried for her parents, knowing the floor of the world had dropped from under them; that they were now falling through space or doing their best to not fall through space but what was there to hold on to? I imagined them wanting to reel back a day, to when their daughter was safe, or even to the time of their panic of not knowing where she was, the time of action, of phoning (we would learn) the cellular company, the credit card company, the police, trying to draw a bead on Lily, seeing she was moving further east. I imagined they would choose to stay within that panic forever rather than learn what they learned the following morning: that during much of their time of action, their child was dead. Though I don’t imagine you’d want to live in the place of not knowing very long; since becoming a parent I’ve thought it would be worse to not know what was happening to your child, to be suspended in that terror. We’ve all seen the TV news shows where the mother’s voice breaks; the five-year-old was just playing in front of the house, she says; she was just riding her bike and we never saw her again, that was twelve years ago.

I did not, in those first minutes, think of vengeance, and did not think Lily’s parents would be. I thought: there’s no room yet to include others. The wound, for a very short time, was only theirs.

And then it was ours, the wound was spread open and disseminated and, later, torn open by as many people who wanted to be part of it. This was for me where the problem began.

I was part of the problem. I do not well enough know how to sit on my hands, and shortly after reading about Lily, posted a short piece, a few paragraphs, on a well-read media website in Los Angeles. I had qualms not about the writing, but the posting. I felt as though I were barging into the room of a patient who’d suffered third degree burns, moving close to the bed despite knowing my touch might infect him, even one breath. I had not seen Lily or her parents in years; I had not known them well. What was I doing here?

I posted it anyway.

People started to forward what I’d written. I received acknowledgment. I received an email from a writer, a woman extremely friendly with the family who said she was thankful I’d written because she couldn’t express what she was feeling; that what happened to Lily “makes me want to put my own daughters back inside my body.”

I passed along that sentence to three people. I may have used it, later, in a blog post. But I stood back from writing anymore about Lily; I didn’t think it was my place; within a day there were so many people writing about her, classmates, local publications, national, international. Her death was on the TV news.

An excellent local Los Angeles crime reporter within the week gave us hard facts, very hard facts to swallow. Lily had spent several hours with the killer; she had called her parents twice asking how to get cash from an ATM machine with her credit card, and when they asked her why, she said she wanted to buy shoes. They told her the card wasn’t set up that way, and to come home. Videos taken at the ATM machine show her nonetheless trying to get money, the killer beside her, and other customers coming or going. Lily does not shout. She does not grab a bystander’s arm. She does not say, “Help me.” There was speculation online that the reason she did not do these things is because her mother is an attorney who’s done work on behalf of the homeless. That Lily, a National Merit scholar, a thespian, a writer, was herself to work this summer with the homeless, and that she was not scared of the things, the situation, the person many of us would be scared of.

She met this man near the campus of the law school where her mother is a professor; her mother had asked her to pick up some papers she needed. Lily picked them up, and while leaving, was approached by the man, at around two in the afternoon. By five, we learned, he’d driven her car, with her in the passenger seat, to a downtown LA parking lot. By 5:30, the police picked up Charlie Samuel several blocks away, for drinking a beer in public and having on his person a crack pipe. He also had the keys to Lily’s Volvo, and her cell-phone. Lily was found the following morning in the car. Her throat had been slit.

This is when I started to think of vengeance. I lay in bed for two nights, not sleeping very easily, trying to come up with what I would do with Charlie Samuel. I came up with taking him up in a small plane, flying him over the ocean, twenty or thirty miles offshore. And then opening the door and pushing him out; I accounted for his trying to take with him the person doing the pushing by harnessing the person to the inside of the plane. Samuel would not survive the fall, but if by some miracle he did, it would be pleasant to think of his terror in knowing, he had no chance to get back to shore. He was there alone. Maybe he would cry. And shortly, he would drown, or be eaten; in any event, he would eventually be eaten, and I surmised that in this way, Samuel, who’d been arrested ten times and had recently been released from prison, would be doing something beneficial. He would be feeding the fish.

This is a twist on the penal colony in the middle of the ocean fantasies I often have. And these penal colonies, I learn a few days later after mentioning my plane-drop solution to an attorney, exist today. But the attorney disagrees with my slapping culpability on Samuel, not because he, Samuel, might be innocent – the police charged him with the crime within 48 hours – but because he thinks, Samuel could not help himself.

This puts me in an uncomfortable position. I am uncomfortable with the idea of taking the teeth out of what I see as justice. I know about sociopaths; I write about them, I read about them; I’ve interviewed them. I dated one. I know about people who break, whether it’s a psychotic break, or they are beaten down, and then commit horrible acts that, when whole they would not have committed. And I understand what the attorney is saying: that if no one shows you how to live, you don’t know how to live.

But, I tell the attorney, I must believe in free will. That Samuel made a choice, and if this is the choice he makes – to slit the throat of a young girl, and within twenty minutes stand on a street corner drinking a beer – then I have no use for him, and I don’t see that anyone else will, ever. The attorney, who defends misdemeanor cases and lesser felonies, says something along the lines of my needing to believe in free will because it helps me organize the world into good and bad, but that the foundation is faulty. And that, he does not believe Samuel had any experiences to tell him not to do as he did.

 I like the attorney, I like him a lot, but I think he’s wrong.

I come home and look at the story I am writing, about a mother who threw her two children off a bridge in the middle of the night. Her four-year-old drowned. I have not yet met this mother, a woman one might say, today, is the opposite of Lily’s mother. This, though both have been pilloried and pitied in the press. Do you think Lily’s mother was not blamed for her child’s death? Do you imagine there was not, within hours of the story breaking, an anonymous woman online blaming Lily’s mother for asking her daughter to run an errand? When I read this comment, I wanted to find the woman; I wanted to pin her with my eyes and ask, in a menacing way: this is your solution? To smack the parent who has just found out her daughter has been murdered? I wanted the woman to feel shame.

I found myself wanting to shame a woman I had never met, wanting to kill a man, because within days of Lily’s murder, I was one of a great many people who caused themselves to feel impacted by her death. Many of these people felt grief, and impotence; they wanted a place to go. A Facebook page dedicated to Lily’s memory has, today, 2,758 members. The ripples spread exponentially, people feeling personally involved, writing on blogs and such that they did not know Lily or her family, but they have kids; they live in LA; they drive by the law school, and they were just so, so sorry. People needed to move a little closer to the incident, to more feel the impact of her death. As I type this, an email comes through from a mother touched by Lily’s tragedy; can I help her get a message to Lily’s parents? I send her to the Facebook page.

Meanwhile, Lily’s parents say nothing after that first day, after they expressed their love and loss, nothing until yesterday, at a gathering in memory of their child.

“She could see right into our souls without even thinking about it, and she loved us anyway,” said her father.

“Her absence empties the world for me,” said her mother.

I knew this; knew it upon hearing of Lily’s murder. Knew because, for several years after my daughter’s birth, I would infrequently wake in the night weeping uncontrollably, waking with what seemed to be cobwebby star-stuff still around me, as though I had just been transported from deep space, where the truth had been revealed: the only important thing, the only endless thing, was my love for my child. I’d been imprinted with the information that she had placed me on a continuum, a cable I previously knew nothing about, could know nothing about, but which I now knew was infinite.

The day Lily’s parents found out their child was gone; I knew the cable in their hands had gone slack. They were holding it but it didn’t lead anywhere. I didn’t know how they could go on, or how we were supposed to support them.

I thought I would send coffee. My husband is a coffee roaster and when people are sick or hurting, I sometimes give them coffee beans. I printed a shipping label. I tried to write a postcard expressing my condolences; I tore it in half. I tried again. I asked my daughter to sign it, and to include the year she graduated from the school she and Lily attended. She did, but I saw she didn’t like doing it; she knew it wasn’t meaningful.

The label and postcard sat in the same place for a day, two days. It sat there for a week. I decided I could not send the coffee, because every time her father drank the coffee, he might think, I am drinking this only because my child has been murdered. I couldn’t do that. I couldn’t impose myself.

Last week in Newsweek, James Ellroy wrote about Lily, whom he’d met once. Ellroy is a very good writer; he knows how to memorialize, and because I thought his piece showed some truth, I tweeted it. More than any other piece I’ve linked, others picked this one up; again, Lily’s story was spreading; again, people were moved, if not everyone.

“It’s madness and blather,” emailed a friend, of the Ellroy piece. She thought he had intruded on Lily’s death, for his own reasons. I saw it her way. I have read Ellroy’s books; know of his mother’s murder; know how he ingests other tragedies, other murders, and regurgitates them as narrative. That he might be said to be greedy for grief, and at this point, I don’t think he can help it, or would want to.

I think about tattooing on my arm, “It’s not about you,” because I am afraid I do the same thing; that I’ve done it just now.

Comments

[Anne Thompson]

as usual Nancy you are able to put your finger on the pulse of something and make it tangible. I cried reading this, as I have several times since Lily Burk's death. I have collected Greg's address --I worked with him years ago at the Weekly--but have not been able to write him. I have hugged Nora close, and tried to quench her fear at having to run an errand near where Lily Burk was kidnapped. Nora had to run her errand, as Lily did. But she needs some street smarts and reasonable fear. Because fear can save your life.

[GM]

Well...to expound at greater length on our earlier conversation, the concept of personal responsibility in the practice of criminal law is often incoherent or inconsistent, or based on politics and emotion. It's the same in the private sphere as well.

There is a semblance of sanity in these laws, distasteful though it may be. Some of the most terrible things people do-up to and including the worst kind of homicide-can be excused partially or completely based upon the absence of "criminal intent".

Every state has a defense of infancy-if you are under a certain age, you cannot be held liable for an offense. The age varies state to state. You would almost certainly be uncomfortable with some of the things for which a teenager cannot be prosecuted in some places.

Every state has an exception for "involuntary" acts, or acts that lack sufficient criminal intent (involuntary manslaughter, etc.) or have no criminal intent (simple accidents where someone winds up dead).

And, relevant to the issue at hand, in a very few cases, people lack "criminal intent" based upon a mental disease or disorder, however defined, or due to intoxication, voluntary or not. Still, it's worth noting that even Andrea Yates, who drowned her kids, was found criminally liable for murder, though she obviously had a mental disease or defect....so said five mental health experts, prior history, etc..

It is a slippery slope, this business of lessening responsibility based upon mental disease or defect, and legislators who write the laws, and those who elect them do not want to "let people off", in general, whether the facts justify it to some degree or not. Juries are made up of the same people.

Most states follow variations of the M'Naghten Rule (http://en.wikipedia.org/wiki/M'Naghten_Rules) which is incredibly difficult to satisfy, and often conflicts with people's intuitions about mental illness and responsibility. Many psychiatrists disagree with the rule as well....again, it's legislators who pass laws, with or without considering the current scientific consensus.

You might think that if someone committs an act, and if it was caused by an organic or nonorganic mental disease to the extent that they "could not stop themselves" (however defined), that this should mitigate responsibility. It doesn't.

Some of the most serious mental disorders (or diseases, if you prefer that term) count for nothing in criminal court. A paranoid schizophrenic who commits a crime due to that disease may have a strong "insanity" or "diminished capacity" defense, but not always, and probably less often than you would think....and if the crime is offensive to the public, the defense is even less likely to work. Don't even get into a defendant's wretched upbringing, abuse, and the like-it counts for nothing in determining criminal responsibility.

The general rule, following M'Naghten requires the person to either not know the nature or quality of the act they committed, or not know right from wrong at the time of the act. This is a very high burden, and it is not the kind of thing that an "expert" can testify to....but they do.

A psychiatrist can tell you, many times, if an individual suffered from a disorder found in the DSM, based upon past history (criminal or psychiatric), injury, past diagnoses, or an examination they conducted. They may even have an opinion as to whether the person could conform their behavior to the requirements of the law (although that is often difficult to say with any degree of certainty).

But as to whether a defendant knew right from wrong at the time of the act, or knew the nature or quality of their action....that's a tough call. That is not a psychiatric conclusion. Psychiatrists can give you a diagnosis, explain symptoms, etc...but other questions of responsibility are either practically impossible to answer or not psychiatric questions (they are ethical or philosophical ones).

Which is not to say that you can't find a shrink to testify as to whether someone meets the criminal standard of responsibility-you can. But the "insanity" or "diminished capacity" test is rarely used, because it is seemingly arbitrary and it's hard to convince a jury that an adult was not responsible for a heinous act, regardless of their history or mental state.

I'm getting long winded here....the point is that as a society and as individuals we have a strange way of determining whether someone is "responsible".

You would think that if someone does something due to an impulse created by a disease over which they have no control (or even "brainwashing") it should count for something...but it usually doesn't in court, though paradoxically it often does in society at large.

We have a disease model for alcoholism and drug abuse now, whereby people are "powerless" over their addiction/disease.

Theoretically, you would not hold someone responsible for using insulin to treat the disease of diabetes, but we punish people for using drugs to which they are addicted. Often their punishment is followed by rehab, where, according to the most popular model, they are told that they are powerless over their disease, and must submit to a higher power.

Thirty or forty years ago, being a drunk or an alcoholic was a moral weakness, and you were responsible for your state and it's consequences.You actually could be prosecuted simply for being an addict-the so called "status offense", which was eventually found unconstitutional.

Now you are not responsible, by and large, in the court of public opinion, for your "disease"...but it is a different story if you end up in criminal court due to the consequences of your addiction/disease.

This double standard is maddening if you spend a day in court, and come home and turn on the TV to see an ad for Serenity Lane, explaining that you have a disease (not your fault) that can be treated...if you have the money or good insurance.

What does this have to do with a tragic murder of a child? Well, responsibility is a slippery slope when dealing with disease or mental state. As stated above, we excuse completely or mitigate punishment of heinous, intentional acts if committed by a child (or senile adult, for that matter), if involuntary, due to intoxication, and (rarely) if due to insanity, capriciously defined. In the public realm we are often even more forgiving.

If the killer in this case was a sociopath (the DSM term is "antisocial personality disorder"), should that "disease" not count for something?

What if he actually had an organic defect in his brain that was related to his actions? What if he had a combination of mental disorders (quite likely) or what is often called "dual diagnosis"? Perhaps he suffered trauma as a child (this excuses all sorts of behavior in many people's minds).

At what point does his situation become bad enough so that it factors into the nature and extent of his responsibility/punishment/treatement?

People of good will differ on this question, although in general the more offensive the crime, the less likely it is that any mitigating factors are considered.

So to sum up, our "person on the street" understanding of "mental disorder" or "disease" often affects our judgement of personal responsibility.

The concept of mental disorder or disease is much more narrowly circumscribed in criminal law. I would argue that it is too narrowly circumscribed, and out of step with our ordinary understanding as well as the current state of psychiatric knowledge and emerging understandings of the biological and neurological underpinnings of mental disorder.

This brings to mind an anecdote from my childhood. A friend of my sister was strangled to death in "cold blood" by her enraged boyfriend. He got a relatively lenient sentence, due to his "extreme emotional disturbance" (what some called "temporary insanity" at the time). The hue and cry from my mother was deafening-he deserved no mercy, and throwing him out of a plane would be fair enough.

Some years later, a family friend turned a gun on his girlfriend, leaving her paralyzed for life. Of course, my mother rallied behind him and his parents, arguing that depression and intoxication were factors that drove him to this act, and he was not "really" responsible. His team of high priced lawyers tried roughly the same tactic, and failed.

When it comes to criminal responsibility, I guess it all depends on what you consider, and what you don't consider.

[Jackie]

GM, I'd just like to clarify something regarding your comments on addicts, responsibility, and the 12-step model of rehabilitation. (You didn't name it by name, but the talk of powerlessness, etc made it pretty clear you were talking about 12-step programs.)

A huge part of the 12-step program is taking a moral inventory, part of which is making a list of one's misdeeds, and making amends to all those one has harmed. This is not shirking responsibility - far from it.

"We thought that we could find an easier, softer way. But we could not. With all earnestness at our command, we beg of you to be fearless and thorough from the very start. Some of us have tried to hold on to our old ideas and the result was nil until we let go absolutely."

The result was nil - not 50%, not 70%, not 99%. Nil. This is the crux of 12-step programs: owning up and doing anything possible to make things as right as possible.

The "powerlessness" is merely an admission of the obvious - that, left to our own devices, our self-will is no match for the substance to which we are addicted. Admission of this fact is not a handing over of responsibility to the addiction or the substance; it's an addict facing reality. The rest of the steps address the "So what are you going to do about it?" question of responsibility.

Sorry for going on, but it really chaps my hide when I see outsiders (and even those in the middle of the program) look at the admission of powerlessness as an excuse to do nothing or take no responsibility. That is the complete anti-thesis of the 12-step program, as anyone who has spent any time whatsoever familiarizing oneself with it can attest.

[Uncle L.]

Consider this: "If I had beat him like they said, I should have killed him."
--Charles Samuel, 1987.
http://www.latimes.com/news/local/la-me-burk5-2009aug05,0,5031176.story

[Nancy Rommelmann]

As the clips from the LAT article, below, show, Samuel is quite able to blame others and to claim he is the one getting a rotten deal. He seems to have all sorts of reasoning powers and rationale when seeking to protect himself.

"As in the Burk case, Samuel was accused of kidnapping someone -- this time an elderly man -- and driving in the man's car to an ATM, where he demanded that the man withdraw cash.

When no money appeared, Samuel struck the man using the victim's wooden cane, punched him in the stomach and threatened to kill him if he reported the crime to police, court records show.

Samuel pleaded guilty in June 1987 to robbery, residential burglary and car theft in connection with the attack, which took place in San Bernardino.

During an interview with a probation officer before his sentencing, Samuel gave what appeared to be conflicting accounts about that night, according to a probation report that a judge unsealed Tuesday in response to a request from The Times.

Samuel said he was intoxicated and didn't recall the events of that night but also complained that he "had not gotten justice," alleging that the incident involved a dispute over a mutual girlfriend.

At one point Samuel tried to cast doubt on the allegations.

"If I had beat him like they said, I should have killed him," he told the probation officer.

In his report to a San Bernardino County judge, the probation officer noted that the December 1986 robbery showed "a high degree of callousness" and that Samuel showed no remorse.

[GM]

Jackie-

While I've never been in a twelve step program, I've a fair amount of experience with them professionally, and have been in many meetings. While these programs work for some people (hard to know how many, since statistics aren't kept, and self reports are notoriously unreliable), it's a program that rests on a muddled and ambiguous intellectual foundation that is dogmatic and opposed to any alternative views...much like many religions. I'm not a huge fan of them, either.

In any event, you said:

The "powerlessness" is merely an admission of the obvious - that, left to our own devices, our self-will is no match for the substance to which we are addicted.

If self will cannot overcome addiction to a substance, I fail to see how this is anything other than "handing over responsibility to the addiction or the substance".

Moreover, many people DO actually overcome addictions through self will or "willpower". It happens every day. Do you think people never overcame addictions before 12 step programs? Somehow, they did.

Additionally, the idea that substance abuse is a "disease"-not an idea of the founders of AA, but a recent creation that is fairly common in twelve step groups- also implies a lack of responsibility.

I don't completely accept the disease model-it's vague and problematic for a host of reasons- a disease is, on most readings, something that you do not choose to have, and is usually not a behavior in itself (e.g. overeating, although many consider that a disease), but an underlying pathology. The disease model of addiction became popular with the advent of treatment centers. Insurance carriers would (and do) typically only pay for treatment cognizable as medical in nature.

I don't really need to argue about the 12 step model.....it works for some people, for whatever reason.

I brought up addiction treatment and common attitudes towards addiction to indicate how many embrace a partial to complete abdication of individual responsibility, and I'm actually sympathetic to that conclusion.

Increasingly science is showing that there is a genetic basis for addiction, and. more importantly, that orgainc changes in the brain caused by various substances of abuse can render individuals unable to control their behavior or use of addictive substances.

There are other examples of how "free will" and responsibility can be compromised-physical and sexual abuse, emotional abuse, deprivations of all sorts, and mental illness in particular are examples of phenomena that so cripple people that many do not hold individuals completely responsible for their actions or decisions.

However, with a particularly unsympathetic person, and a particularly heinous crime, responsibility is never questioned, mitigating or exculpatory factors (such as severe mental illness/disease) are rarely considered by the public at large, and are rarely applicable as criminal defenses in court, due to the way criminal statutes are written.

I don't know enough about this particular case to really speak to the nature of the defendant's upbringing, life experience, substance abuse, history of mental illness (whether diagnosed, treated, or untreated). Nor is there any justification, in any sense of the word, for his actions, but that isn't the issue.

As I tried to explain to Nancy in our conversation, criminal responsibility is a complicated question, if you are willing to get past your (justifiable) initial shock and disgust.

Empathy isn't really "monstrous".....it involves looking at all the facts, that's all. Potentially this allows you to learn things that may help avoiding future calamities, and create rational public policy.

[Eric Longabardi]

In case you're looking for more "hard facts" on how accused killer of Lily Burk Charlie Samuel was walking the streets of LA that day:

http://theenterprisereport.typepad.com/news/2009/08/exclusive-accused-killer-of-lily-burk-had-parole-warrant-issued-after-disappearing-for-2-weeks-in-ap.html

[Rebecca]

I hated that woman in the Times comments too, saying Lily's mother should never have sent her 17-year-old daughter to run an errand for her. I hope she doesn't have any children she's raising like indoor cats.

[Rebecca]

In fact, I hope she doesn't have any CATS she's raising as indoor cats.

[Will Campbell]

Given the enmity engendered from our brief history those years ago, I have some of the same hesitation in intruding upon your blog and posting this comment that you had in posting your first reaction to the news of Lily Burk's murder. But it's powerful and incisive what you've written and I hope you don't mind me coming here and saying so.

[Topazer]

What grieves me is the parallels between our lives. I worked with Greg at the Weekly a few years back; we only spoke a few times, but whoever walks through those doors is part of a tribe for life. He always struck me as a highly responsible, doting parent doing everything possible to enrich his child's life -- like me. As it stands now, I feel like I'm walking through a blackened, vile hellhole. Everywhere I look I see sociopaths -- sitting across from me on the red line, standing on the corner at the crosswalk, pushing their cart down the shampoo aisle. My greatest joy is exploring the world with my daughter and watch her entire face light up when she's made a life discovery, and now all I want to do is lock her up in her room where nothing can harm her.

[Nancy]

You are always welcome here, Will, and most esp. for this forum. Let the past stay in the past.

[Zev]

"That Samuel made a choice, and if this is the choice he makes – to slit the throat of a young girl, and within twenty minutes stand on a street corner drinking a beer – then I have no use for him, and I don’t see that anyone else will, ever."

That's exactly how I feel, and how I feel about Stott-Smith as well. I don't care to know the whys and wherefores; I don't want to hear about her sad life; tie her up too and throw her overboard.

Am I right to be puzzled that you are so vehement in Samuel's case but not in Stott-Smith's?

[Zev]

I think Ellroy wrote a fine, moral piece. Nothing about it strikes me as ghoulish or exploitative. He sorrows and traces a very faint path toward some hope.

[Alice Bachini-Smith]

This idea that people who commit grave crimes cannot help themselves is evil.

There may well be people in churches, 12-step programmes, therapy groups of various kinds, who honestly believe that humans don't have the free will required to avoid murderous or other evil acts. It's incredibly sad that these people's attempts to do good in the world are hampered by such a fundamentally evil belief.

Bad choices lead to more bad choices, and we often lose consciousness on the way. But treating human beings like mindless sub-animals, we're on the path to fascism. Disallowing them moral responsibility ie. choice over- power in! their own lives, is certainly utterly wrong.

It may or may not be right to kill people who commit murder. But it's definitely stupid to commit murder and expect no retribution for that. We don't live in some Star Trek pacifist future yet (thank God).

[Mike LaRoche]

I have no sympathy at all for monsters like Samuel and I support the death penalty in such cases for two reasons:

1.) The punishment should fit the crime

2.) Once dead, a monster like Samuel can harm no one else.

[GM]

"This idea that people who commit grave crimes cannot help themselves is evil."

Alice- that is naive and simplistic. But it keeps the world ordered in a black and white way, and that is what people need.

But you should spend a few years dealing with mentally ill, addicted, and/or abused people who commit crimes, from the mundane to the serious. I'm guessing you haven't.

You should expose yourself to developmental studies- psychiatric, psychological, economic and even nutritional studies of people who end up accused of crimes. The idea that they "choose" their lot in life becomes a lot less tenable in most cases.

You might come to the conclusion that human "choice" exists on a continuum whereby some people, due to organic defect, mental illness, neglect, physical or mental abuse, drug use, etc. never really developed psychologicially or, as recent neurobiology shows, neurologically such that they could conform their behavior to to the dictates of the law.

Have you ever spent any time with a paranoid schizophrenic who is not medicated, or not properly so? Or someone diagnosed as bipolar 2? Or someone severely mentally retarted who has sexual desires but cannot control them? I'm guessing not.

Have you even ever had a friend or relative who was mentally ill, or addicted to something?Perhaps you have dealt with an older relative with dementia.

On a more mundane, but more personal level, maybe you have been so drunk that you "didn't know what you were doing" or didn't remember what you did. Imagine if that was what all your waking hours were like, despite your efforts.

Notwithstanding hardliners such as yourself, we still sometimes forgive children (and, increasingly, the elderly), the brainwashed, the traumatized or the abused certain transgressions because "they didn't know what they were doing", or couldn't help themselves.

And we do have (limited) allowances for the mentally ill, often called the "criminally insane". It's a difficult burden to meet in court, juries don't buy it, and the "insanity defense" is rarely used...but sometimes it's justified. To say that is never the case is to simply ignore facts.

Perhaps you really think we should not have such statutory defenses based on mental capacity at all-hold everyone responsible for everything, no matter how damaged their brains are. That applies to the paranoid schizophrenic, the retarded 19 year old in a group home who was accused and convicted of attempted rape (an actual case of mine), those with Alzheimer's....the whole lot of them.

It's a tough argument to make when you actually look at the other side. But few people look at the other side-that is, those who are often victims of abuse, addiction, mental illness, etc..

I can't tell you where to draw the line for criminal responsibility. In truth, it's not a line, but a series of gradations from completely responsible to less responsible to not responsible at all. Our criminal justice system is not set up to take this into account, formally. And the public at large is still in denial about certain obvious facts.

"There may well be people in churches, 12-step programmes, therapy groups of various kinds, who honestly believe that humans don't have the free will required to avoid murderous or other evil acts. It's incredibly sad that these people's attempts to do good in the world are hampered by such a fundamentally evil belief"

It's not just people in 12 step programs. It's doctors, judges, lawyers, psychiatrists, social workers, etc..People with much greater knowledge and experience about the issues than I am guessing you have.

And it's not just "evil" acts, although those are hardest to mitigate..since "an eye for an eye" still has currency. You would be surprised at the amount of people in jail or prison for acts that are not so evil who are seriously mentally ill or drug dependent/affected.

The reasons why people become criminals are multifaceted and not always matters of "choice" or within their control. Spend some time in the system with actual criminals for a few years and then tell me what you think. You may not like the people, but you may understand how they got to be where they are.

Right now, you have no idea.

[Brett]

GM ~ All those words are meaningless. Your going on and on reminds me of a quote from Albert Einstein. "If you can't explain it simply, you don't understand it well enough."

Your attempts to excuse evil with any number of irrational rationalizations is pathetic. Truly insane people do not lie, excuse or try to hide their behavior as they have no understanding it is wrong and therefor have nothing to hide. That level of insanity is rare. The others are accountable for their actions in spite of enablers like you who would protect them and excuse evil acts instead of protecting the innocent victims of such horrific people.

I think it is you, GM, who really has no idea.

[Nancy Rommelmann]

My friend Tom Christie -- who works at the Weekly; who worked with Lily's father Greg for years and years; all three of us with daughters around the same age -- has written a beautiful short piece about Lily; it includes a poem my Lewis McAdams:
http://www.laweekly.com/2009-08-13/columns/something-about-lily/

As for the arguing going on here: it's made me realize that, while most people want to and do stand on one side or the other in terms of capital punishment, many of us do not. I probably 98% of the time am against it, but the exception makes the rule. And I stand by what I said regarding Samuel. That said, I don't like the state being in charge of it, and I don't think they should be. If we lived in Rommeland, it would be up to the family to decide: do you want to kill this person who killed your family member? If yes, then do it. If not, off he goes to jail for life. Simple? Sure. But it's my country.

[Zev]

"some people, due to organic defect, mental illness, neglect, physical or mental abuse, drug use, etc. never really developed psychologicially or, as recent neurobiology shows, neurologically such that they could conform their behavior to to the dictates of the law."

If that is truly so, such people should be locked up before they ever commit a crime. You can't have it both ways. If they're so crazy that they cannot conform their behavior to the dictates of the law, and so pose a danger to others, they should not be allowed to roam freely. And if they are sane enough to be given freedom, they must be held accountable.

[Alice Bachini-Smith]

I'm against capital punishment, as it happens, mostly due to mistrust of the system. Partly because 300 yrs in prison seems to me a vastly worse punishment than a few weeks of fear. Partly because capital punishment also punishes innocent members of the offender's family.

DM- Couldn't see any point in reading beyond your first sentence. Sorry.

[Jackie]

The human brain is incredibly plastic, and can be changed with a rigorous program of new behavior. This is why 12-step programs work; they take a person out of self-pity and blaming the world, and make it a daily practice to focus on one's own part in any conflict or resentment, to help others to overcome their trouble with addiction, and to practice humility. Practice, practice, practice - it changes the human brain. I won't even get into what it does for one's spirit.

Sure, lots of people stay dry or clean without 12-step programs. But those I know who have done so aren't people I'd choose to spend much time with. You can fix the symptom or you can fix the problem - addiction isn't the problem.

For more on this, I highly suggest Dr. Norman Doidge's excellent book "The Brain That Changes Itself".

[GM]

If you can't explain it simply, you don't understand it well enough."
Albert Einstein

Yes...all of our public policy should be as simplistic as possible...because the issues aren't really very complicated. Quantam physics, too....you should be able to explain that simply as well.

If only the world were really like that. Then we could have an idiot president who believes in simple solutions to complex problems, and the world would be a better place. Wait..tried that for eight years...didn't work out so well.

"Your attempts to excuse evil with any number of irrational rationalizations is pathetic. Truly insane people do not lie, excuse or try to hide their behavior as they have no understanding it is wrong and therefor have nothing to hide. That level of insanity is rare. The others are accountable for their actions in spite of enablers like you who would protect them and excuse evil acts instead of protecting the innocent victims of such horrific people."

I'm not trying to "excuse" anyone, but to consider the reasons why people do things, whether they can be prevented, and what should be done with them after the fact..

I'm not sure what you mean by "truly insane" people....have you ever spent a day in a prison or psych ward? "Insanity" isn't a yes or no type of thing...it exists in degrees, and often varies in the same person day to day.

"Insanity" isn't in the DSM- mental illnesses are. Insanity isn't a medical diagnosis.....it's something else entirely, and perhaps it's a concept that should be abandoned. But maybe that is too complicated for you to understand.

Whether someone does something horrific or not, and whether they are "insane", whatever you mean by that, are completely independent of one another, and they should be. The fact is that people are less forgiving of horrific acts, regardless of how "insane" the person is who did it. It's alot easier to "forgive" someone who pisses in public than someone who kills a child, regardless of their mental state.

But really, Brett, I don't know what you mean by "insane". While you say "Truly insane people do not lie, excuse or try to hide their behavior as they have no understanding it is wrong and therefor have nothing to hide", does that mean that some people are really not responsible for their actions? Just checking.

Also, I've been around people I consider to be "insane" who lie, after the fact, and may have some sense of right or wrong, but were so impaired that they could not conform their behavior to the dictates of the law. Severely retarded or intoxicated people are often like this. So are people operating under temporary but extreme emotional disturbance...often due to mental illness. Same with some addicts. It's not so simple.

The current criminal laws generally do not account for these types of scenarios. "Insanity" and "responsibility" exist on a continuum. It's not an either/or phenomenon...but it's convenient to beleive it is, just as it is convenient to believe that nobody is "insane", and everyone is responsible. That's simple...Brett should appreciate that.

But I've said it already several times: before you dismiss these people as not "truly insane", spend some time in their company. Hang out with the schizophrenic guy on Burnside for a day, and see what that's like. Really. Then get back to me. It's complicated.

And Zev, who said "If that is truly so, such people should be locked up before they ever commit a crime. If they're so crazy that they cannot conform their behavior to the dictates of the law, and so pose a danger to others, they should not be allowed to roam freely. And if they are sane enough to be given freedom, they must be held accountable."

At least you recognize that some people may not be responsible for their acgtions. And you argue that some "crazy" people should be locked up before they offend.

It's difficult to identify future offenders with certainty, and problematic, legally, to imprison someone for something they have not done.

But if someone has already been convicted, and is, after serving their time, a persistent threat, should we just warehouse them to protect society? Most states do this, to some extent, via civil commitment, preventitive detention, or other programs.

I'm not against this in principle-the idea of preventing future crimes should be one of the main goals of the criminal justice system. Practically speaking, it isn't. Retribution does not deter future crimes....look at the recidivism rate.

It's sad when you read of a horrible crime and realize that it was practically inevitable and completely avoidable, given the person's history of mental illness, addiction, prior crimes and what not....the so called "ticking time bomb".

But our public mental health system is in shambles. People who need treatement don't get it, and often end up in jail or prison. Addicts don't get treatment, so they steal, rob and kill to feed their addiction. Head start programs (that's really early intervention) are underfunded.

So if you are serious about identifying future offenders and preventing their future crimes, I'd say you should look at all the risk factors before someone does something.....poverty, lack of education, abuse, addiction, mental illness, etc... all are obvious risk factors. Are you serious about preventing future criminal acts, or do you just want to severely punish people once they have offended? For most people, it's the latter.

Spend a few days in criminal court, or tour a prison (where the vast majority of inmates are mentally ill and/or drug affected) and talk to the inmates, whose problems are not dealt with, and then get back to me. I'm no bleeding heart, but the fact is, their problems are your problems....because even if you aren't a crime victim, you are paying for crime, one way or another.

And, finally, Jackie "Sure, lots of people stay dry or clean without 12-step programs. But those I know who have done so aren't people I'd choose to spend much time with. You can fix the symptom or you can fix the problem."

Wow. Maybe you should expand your circle beyond those in 12 step programs (the ones who don't leave the program, who you don't associate with).

There are actually a lot of insufferable people in 12 step programs.....some who are still addicts. I mean smoking cigarettes...come on. I've never understood how it is okay for 12 steppers to forbid some addictive drugs (alcohol, cocaine) but not others (nicotine, caffiene, some scheduled prescription meds).

I'm glad for anyone who doesn't don't drink or do drugs if it was a problem for them. But to insist that there is only one way to get there seems dogmatic and clearly wrong. But that's a different subject....don't get me started.

Anyway...it's been nice chatting with you all. I didn't anticipate that a coversation I had with Nancy would evolve (or devolve) into a flame-y kind of war. I think I've spent enough time presenting my point of view. Feel free to agree or disagree. I certainly don't have all the answers (some of you seem to think that you do).

I'm not trying to justify what Samuel or Stott-Smith did-obviously there is no justification. I know next to nothing about them and their histories (of mental illness and treatment or lack of treatment, most importantly) to speak to their particular cases.

But their cases raise complicated questions about punishment and responsibility and creating a system that perhaps avoids future similar tragedies, instead of actually creating an environment where future tragedies are inevitable.

[Jackie]

GM, it would be awesome if you could read what people write and respond to that, not to imaginary words. Also, not making assumptions about others' social circles and how narrow or wide they are. Because, dude, way to make yourself look like a tool (even if you aren't one in real life).

"I've never understood how it is okay for 12 steppers to forbid some addictive drugs (alcohol, cocaine) but not others (nicotine, caffiene, some scheduled prescription meds)."

Then you clearly have never done the most cursory research into 12-step programs (I thought you said you were very familiar with them?). It's all there in the AA Big Book, the inspiration for all 12-step programs. Here, I'll do your basic research for you: "Seeing is believing to most families who have lived with a drinker. Here is a case in point: One of our friends is a heavy smoker and coffee drinker. There was no doubt he over-indulged. Seeing this, and meaning to be helpful, his wife commenced to admonish him about it. He admitted he was overdosing these things, but frankly said that he was not ready to stop. His wife is one of those persons who really feels there is something rather sinful about these commodities, so she nagged, and her intolerance finally threw him into a fit of anger. He got drunk.

Of course our friend was wrong -- dead wrong. He had to painfully admit that and mend his spiritual fences. Though he is now a most effective member of Alcoholics Anonymous, he still smokes and drinks coffee, but neither his wife nor anyone else stands in judgment. She sees she was wrong to make a burning issue out of such a matter when his more serious ailments were being rapidly cured. "

As for your comment that:
"I'm glad for anyone who doesn't don't drink or do drugs if it was a problem for them. But to insist that there is only one way to get there seems dogmatic and clearly wrong."

I wonder where you saw anyone here say such a thing? Don't you have your hands full arguing against things people have actually written?

Too many straw men here. I'm out. Nancy, thanks for a beautiful, revealing, brave post.

[Brett]

Yes, GM you ARE trying to excuse some people. Don't do it while saying you are not!

GM, you sarcastically ask "does that mean that some people are really not responsible for their actions?"

Yes, GM. That is exzactly what I said here in the post you read than copied to your post here.

"Truly insane people do not lie, excuse or try to hide their behavior as they have no understanding it is wrong and therefor have nothing to hide. That level of insanity is rare. The others are accountable for their actions in spite of enablers like you..."

Since you fail to understand the simplest points I will spell it out for you. When I write of "truly insane" people most readers understand the idea that I am speaking of those whose sense of reality is so far gone they have no idea what they are doing. When I say that level of "insanity" is rare (and here is the key point) and that "The others are accountable for their actions" I am clearly saying that since the others ARE responsible for their actions that "truly insane" people are NOT responsible for thier actions and that is rare (although commonly used in court as a defense). Did you get it this time, GM?

For those reading this post who did understand what I clearly wrote I am sorry to have to go through the minutiae of my words point by point. But it appears that GM has been educated in the the social sciences to a point where he can't understand a simple sentence he paid enough attention to to copy and paste but could not understand. It really isn't that complicated.

GM, I recommend you read Neoneocon's blog (google it) for some insight from someone who has survived graduate studies in the social sciences with her ability to reason still intact. Her story about her path from former staunch liberal to conservative is fascinating.

[GM]

Since I was sarcastic, I assumed it would not be taken literally....my bad.

"I am clearly saying that since the others ARE responsible for their actions that "truly insane" people are NOT responsible for thier actions and that is rare (although commonly used in court as a defense). "

Actually the insanity defense is not often used in court-I'm curious as to why you think it is "commonly" used. Who told you that-Sean Hannity? It's simply incorrect and ignorant.

I've practiced criminal law for over fifteen years, and follow developments in the field pretty closely. It's a defense that is available in many cases (not just homicide) by statute, though sometimes a judge won't allow it.

But it's hardly ever used, as a simple matter of fact. A statistic I heard years ago was less than one per cent of cases tried were defended based upon an insanity defense. And that's a percentage of cases that go to trial....which is about ten per cent of cases charged, depending on jurisdiction. So it's used once in a thousand charged cases, perhaps. It gets a lot of press when it's used-maybe that's why you think it's commonly used. But what you see on the news (especially Fox News) is not representative of the real world

I really don't know what you mean by "truly insane" (in contrast with those who are insane, but not truly so?)....perhaps simply "people who have no idea of what they are doing", as you said...which sort of mimics part of the Oregon statutory language (cf. ORS 161,295: https://www.oregonlaws.org/ors/161.295.html)

I think if you spent some time around mentally ill inmates, or even seriously retarded inmates, it might stretch your definition of "true" insanity and it's relationship to responsibility.

Some people sort of know what they are doing at the time, some do to a degree, some drift back and forth as they remember, if they remember-some people have no recollection of things at all, for a variety of reasons.

Some people hide what they do, or lie about it later, yet may have had no idea of what they were doing at the time, only becoming aware of it after the fact. Read Hamlet.

None of this qualifies as "insane" under your definition (and under Oregon law, arguably).

I'll say it again. Spend some time in a prison, which will be filled with mentally ill people. Or visit a psychiatric hospital. Or visit drug court. See if you can sit in on a civil commitment hearing. Or just follow a homeless schizophrenic around Burnside for a few hours.

You might come to the conclusion that this whole insanity thing admits of degrees, and is not as clear cut as you might like to think. People can be more responsible, less responsible, or not responsible at all.

It's like with kids....at what age are they fully responsible for their actions? Kind of depends on the kid, and even then their level of responsibility grows as they age. There is no cut off point at which a child can be held responsible in reality, although there is in the statutes.

:aws are clunky and change slowly, are based on political considerations and the demands of an uninformed and easily inflamed public. and you would be surprised how out of step they are with the real world, not to mention the current state of neuoscience or psychiatry.

But you don't have to get too technical. You don't need to be a lawyer or a psychiatrist. Spend some time around mentally ill (though not legally insane) people, or the profoundly retarded. Lots of them are in prison, but you can find them in the places I have mentioned. Then tell me if your perspective is the same. Until then....stop listening to Sean Hannity, or whoever it was who told you that the insanity defense is commonly used.

[Tim McGarry]

Jackie put it well, Nancy -- this is a brave post. I'm glad I had the chance to read it. Thanks.

[Nancy Rommelmann]

Thank you, everyone. As I wrote to my friend Tom Christie, I wish to hell there was no reason to have written in.

[Zev]

"Then we could have an idiot president who believes in simple solutions to complex problems, and the world would be a better place. Wait..tried that for eight years...didn't work out so well."

Are you kidding? That's what we've got now. Just borrow more money; that'll fix the economy. Upend the entire health care system; that's make it more efficient. Talk about simple-minded solutions.

"Are you serious about preventing future criminal acts, or do you just want to severely punish people once they have offended?"

I'd like both, actually. But my point was that if they're to be excused for insanity post facto, then they cannot be allowed free beforehand.

[GM]

Borrowing money (i.e. the stimulus package) seems to have staved off a depression. Maybe you forget how precarious the economy was last September....but that's another topic.

Severely punishing people and preventing future acts...the problem is, severely punishing people doesn't prevent future acts-it actually encourages future criminal acts and costs a lot of money. A vast majority of convicts ultimately get out of prison.

This, from today's NYT:

http://www.nytimes.com/2009/08/15/opinion/15blow.html?_r=1&th&emc=th

You can discount the piece, I guess, but it's based on solid empirical evidence and it's an old story. The fact that, e.g. tough mandatory sentences don't deter future crime and cost an arm and a leg is pretty much an open secret that lawyers, judges and prosecutors know about.

Want to make society safer? Focus on preventing future criminal acts via (early) intervention and programs that deal with treating crime as a social problem, not a purely punitive exercise.

As it is we don't make much of an effort to identify and treat likely offenders, nor do we act in a way that discourages past offenders from re-offending, so we are left with deciding what to do with them after the fact.

I'm all for identifying and treating potential offenders....but that is not a politically popular position. People would rather build prisons at great cost, and not focus on avoiding the need for prisons.

How does this relate to insanity and responsibility?

Well, simply killing or warehousing serious offenders who are or may be mentally ill doesn't prevent future crimes by other "ticking time bombs", or prevent recidivisim for those who do get out. Nor does it engender an understanding of mental illness and criminal behavior so that it can be treated.

Early intervention and treatment are the only thing that actually prevent future crimes. Recognizing that many offenders who may not meet the unrealistically high standard required for an insanity defense nonetheless suffer from mental defects that affect their ability to control their behavior, and incorporating this into sentencing and treatment seems like the only way to protect society.

Or we can keep on going down the road we are on. Some people, like Stott-Smith, perhaps, or Andrea Yates (certainly) may not have killed their children had there been better mental health controls in place.

Who knows-it may even have been theoretically possible to intervene with someone like Samuel. I don't know the facts of the case well enough to say. But you know...if you don't learn from history, history repeats itself, and all that.

A criminal justice system that fails to protect it's citizens, when it is possible to do so is a failure.

[Nancy Rommelmann]

One note: the insanity defense is used in fewer than 1% of all cases. I think the number is close to one-half of one percent.

[Zev]

Actually, prison does prevent lots of crimes, at least for the term the offenders remain inside, even if it is too short. So that's something. And let's face it, executing these lowlifes is cheaper than jailing them, and they deserve it, so that's an argument in favor of capital punishment. As for identifying future criminals, I'm all for it, if it could really be done accurately, which I doubt. But let's not allow the perfect to become the enemy of the good. B/c we can't identify and lock up future offenders is no reason not to lock up and/or execute proven murderers.

[Zev]

Re. the NYT article, I agree that prison should be reserved for violent offenders. That would save lots of money, and allow us to keep the really bad guys off the street for so much longer. I have no doubt that with creative thinking we could find means other than prison of punishing non-violent or white-collar crimes. How about a fifteen-year term working behind the counter in a post office?

[Nancy Rommelmann]

"Let's not allow the perfect to become the enemy of the good."
I love that phrase. Never heard it before.

As far as executions costing less than putting someone in jail for life: yes, if done speedily. But as we know, they never are in the US. I was recently at a post-conviction relief trial of someone who was sentenced to death in 1993. At this one-day affair were 8 people from the DA's office; two attorneys for the defense; four expert witnesses, and the judge. It was easily, in terms of preparation and execution, a six-figure day. I have also been spending a good deal of time with a capital defense attorney, who told me that, on average, it costs $22,000 a year to house a prisoner (obviously, this fluctuates by state and level of security), whereas death penalty cases over their lifetime always cost a million dollars or more.

[Zev]

Thanks, Nancy.

That's a good point regarding the costs. I guess I'd favor execution only if we could streamline the process. But to be honest, I'm not that picky. Kill them, imprison them, whichever costs less. Just so long as you make them suffer and keep them the hell away from the rest of us.

[Nancy Rommelmann]

I believe Zev and I see eye to eye. I have, also, since beginning this discussion, thought a lot about whether I were the one to say yea or nay to someone's execution. Emotionally, I do crave that sort of revenge, and see the symmetry. But thinking more about it, morally and intellectually, it's tough. You let your blood settle a little, and think, killing in hand-to-hand combat; sure. Home invasion, yes. Saving my kid, without a doubt. But letting the state do it after 60,000 types of rigamarole? It's queasy-making. So, yeah; throw him in jail, let him suffer for life, end of story.

We had this discussion last night, about Squeaky Fromme. None of us thinks she should get out; she made phenomenally stupid and savage decisions; she's a nice gal now? Too effing bad. Similarly, no compassionate early release for the Lockerie bomber. He had no compassion for the hundreds he killed; sorry, he gets to die in jail.

[GM]

Execution is hard to defend on economic grounds...that's been the case in this country for some time. Speeding up the process is a favored choice of conservatives, in which case more factually innocent people get executed.

I won't even bother linking to all the demonstrable cases of innocent people on death row-dozens have been exonerated in the past twenty years, based on DNA evidence, perjured or mistaken testimony, racism, etc...

If you don't understand how an innocent person could be found guilty of a capital crime, or plead guilty to a capital offense, rent "The Exonerated"-an examination of a dozen or so people convicted of capital crimes for which they were innocent. Some of them were executed. It will likely change your view.

Sorry, but I don't trust the government to get the mail to me on time, and I certainly don't trust them to fairly and accurately kill the right people. They have demonstrably failed at that. Next time you rally for capital punishment, think about how you would feel if you or a family member was wrongly accused or even executed. Think that hasn't happened? You are completely wrong.

Zev, imprisoning someone doesn't stop them from violent crimes-these are common in prison. I'm sure you don't give a shit about that, and think that it is deserved.

The thing is, again, their problem is your problem. They will often reoffend (violently) when released (as most are), after becoming more violent in prison. I won't even get into a cost/benefit argument about sticking people in jail for long terms. That is money that could be better spent at avoiding future crimes by focusing on and dealing with known risk factors (be they addiction, mental illness or whatever).

Ignoring a problem (via long prison stretches) doesn't make the problem go away. It makes it worse. That should be obvious if yo actually think about it instead of react in a knee jerk way.

I'm glad that we don't let crime victims or those affected by crime dictate the terms of punishment. That is a primitive, tribal way of dispensing justice.

It's demonstrably arbitrary (who will demand justice for the homeless scumbag killed over a dispute over a bottle of booze...will you, Nancy?).

Such capriciousness has no place in a civilized society or evolved system of criiminal justice. Obviously such ideas, when put into practice are blatantly unconstitutional....if you care about that kind of thing.

I can understand being outraged at certain crimes....but the underlying issues of punishment and responsibility demand a much more measured approach than those articulated here.

[Zev]

Zev, imprisoning someone doesn't stop them from violent crimes-these are common in prison. I'm sure you don't give a shit about that, and think that it is deserved.

In the case of murderers, you're right, I couldn't care less what happens to them in prison. And if we executed them, or kept them imprisoned forever, their problem would never become ours. What does bother me, though, a lot, is the violence to which non-murderers are subjected in prison. I think it's utterly wrong for us to be sending, say, a thief, to a prison in which he will be terrorized, beaten, raped etc. In effect, we are knowingly consigning these people to extra punishment to which they are not liable by law. And that's wrong. (And yes, you'll point out that it's technically wrong in the case of murderers too, and you're right, but in their case, I don't care.)

With regard to wrongful executions, I agree it's a sticky question. But if the alternative is to leave the savages unpunished, I think that's the price we have to pay. We must do something, and we can only do the best we can do. It's all very well to talk about identifying future criminals and rehab, but it's a red herring, b/c such programs are unlikely to ever take place, or to be successful if they do. What we're left with, practically speaking, is long-term imprisonment or execution for violent offenders. I'm fine with either.

[GM]

You should care what happens to murderers in prison, Zev, because many of them get out. But it's not just the murderers in prison-it's those their for lesser violent offenses, or non-violent offenses. They will get out in greater numbers and often graduate to more desperate acts.

How many times have you read about a terrible crime, and heard about the criminal's past history and thought that it was inevitable that he ended up killling or raping again, or robbing again? Hindsight is 20/20 with people like Samuel. But foresight is a hell of a lot better than hindsight. Unfortunately, our system is really short on foresight.

Sure...I guess you could give them longer sentences, at great expense. But that really doesn't help public safety that much, since we still have a relatively high rate of violent crime, the causes of which are unadressed through incarceration.

It's really not a "red herring" at all to talk about identifying future criminals. Spend some time in the system and you will see that it is painfully easy to identify future offenders. Start with past offenders...they often re-offend. Look at the mentally ill, the abused (sexually, physically, emotionally), the addicted, those living in grinding poverty, those without education, those who are drug affected, and those who grow up surrounded by crime.

It's actually incredibly easy to identify future offenders as a class, and to deal with crime on the level of prevention. But it's a lot easier to just build prisons, and believe that incarcerating more people will lower the crime rate. To the extent that it does (and incarceration rates often have no link to crime rates...there are too many other factors at work), it's the most economically wasteful way possible of lowering the crime rate.

I'm glad you see that wrongful executions are a "sticky question". I'm guessing that you are white, educated, and at least middle class. So wrongful executions are a complete abstraction to you. They are not abstractions to those affected by them, and if you were in an affected group, your perspective would be different.

Executions are arbitrary, don't deter crime, and are incredibly costly-it's cheaper to keep them alive. Throw into the mix the fact (and it is a fact) that innocent people will be executed, and it's kind of a no-brainer.

When I taught criminal law at college, I would ask my students if they were for or against capital punishment. Usually about 80 per cent of the kids (white, affluent) were in favor. Then I would show them this film. http://en.wikipedia.org/wiki/The_Exonerated

I encourage you to watch that movie with an open mind. It might change your perspective. As it is, it is very easy for you to say that we should execute or imprison for life what you consider to be the most offensive criminals.

But from where you sit, you don't see the costs, economic and otherwise of doing so. Spend some time in a blighted community, with mentally ill people, or in a prison, or realize what a huge amount of money is spent on incarceration and public safety and you might see things differently. I doubt you will do any of these things. So, as a second best option, I'd encourage you (and Nancy) to watch the film.

[Zev]

When I said talk of identifying future criminals is a red herring, I didn't mean it's not a good idea; I actually think it is, if it can be done accurately, and if it proves to be effective. What I meant was that it's unlikely ever to really happen, what with the outcry that will surely ensue about the unfairness of targeting people who have not yet committed a crime, and the probable ineffectiveness of intervention. Realize too that whatever error currently occurs in sentencing can as easily occur in early prevention, resulting in the persecution of people who are not actually crime risks, but who fit whatever criteria are decided upon. Given that I don't see it as likely that any change will come about, the two choices remaining for the truly violent are imprisonment or execution.

As for the education in crime that lesser criminals receive in prison, I already stated above that I agree that non-violent criminals should perhaps receive some other form of punishment. Certainly, they should not be housed with the violent.

[GM]

If you want to intervene in an accurate way that produces results, as I've stated, you would be wise to focus your efforts on the precursors to crime-addiction, poverty, physical and sexual abuse, mental illness, lack of education and, most importantly, a prior history of criminal offense.

Crime will always be with us, but some programs that work quite well (demonstrably) at preventing future crime are drug courts and mental health courts, whereby offenders are diverted into programs that focus on the issues that led to the criminal acts (drug use and mental health issues). Sadly, these programs are underfunded. But they work. So does Head Start.

It seems kind of obvious when you think about it-focus on the causes of crime, in the hopes of preventing future criminal acts, rather than simply punish the actors after they have done their damage. Then again, this is considered being "soft on crime", isn't it?

What doesn't work? Building more prisons. Increasing sentences, incarcerating more people, and, especially, executing people-it costs about a million bucks to execute someone, believe it or not, once everything is said and done.

These measures are incredibly costly and fail to protect society (except to the extent that an offender is removed from society). They do nothing to deter future offenders, and they do nothing to stop convicts from re-offending once released.

And if you still think it's okay to execute innocent people, or are willing to live with a system that does so, even at great cost and with no deterrent effect...I guess I have to wonder how many innocent people being executed is acceptable to serve whatever goals execution accomplishes.

While you think about that, watch The Exonerated.

[Zev]

I'd guess that the reason these interventions are viewed as being "soft on crime" is that they require is to understand the criminal's reasons and motivations and are thus a short step away from the point of view that "understands" and excuses criminal behavior on the basis of background. And I do believe that's a danger. Once we start getting all touchy-feely with criminals, we begin to blur what should be a sharp line dividing acceptable and unacceptable behavior.

[Brett]

Nancy & GM ~ You are correct in that the insanity defense is not commonly used. Thanks for correcting me on that. In spite of GM's improper assumption that I must have gotten that information from Shawn Hannity the truth is is that I got that idea from media sources such as ABC,CBS,and NBC who often sensationalize high profile cases where the insanity defense is sometimes used. Many people have this erroneous idea. Although I realize it was more common and only possibly effective in severely violent crimes where the criminal is caught and basically has few other options I misspoke when I said it was "commonly used".

Obviously you can't use the insanity defense to excuse your mugging of someone for $20 and roughing them up a little.

GM, maybe its ABC, NBC, and CBS news that should be avoided according to your reasoning.

[Brett]

Actuall I believe he spells it Sean Hannity. I don't watch or listen to him much although I see nothing wrong with him.

[GM]

"GM, maybe its ABC, NBC, and CBS news that should be avoided according to your reasoning."

I don't know that they should be avoided....at their best, any news outlet is only going to give you a fraction of the facts of a story they choose to cover....and a little information is a dangerous thing. That the media often "sensationalize" high profile cases is a given.

Any media source can try to be balanced, but unless it is a very simple news item, things will be left out. This is the case whether there is bias in the reporting, or not, and, depending on how you define bias, there often is.

The issues surrounding the death penalty are massive, and I would not base any conclusions on mainstream media coverage.

That being said, I find a discernible pro-death penalty bias in most news coverage, especially local news coverage, because you will lose viewers if you merely present certain views to balance others.

"Obviously you can't use the insanity defense to excuse your mugging of someone for $20 and roughing them up a little."

Brett-This is not only NOT "obvious", it is factually wrong as well.

The insanity defense (ORS 161.295) is available in any criminal trial as a an alibi defense...at least here in Oregon, but I would guess that the same is true in many, if not most, states.

It requires notice to the district attorney as an alibi (non-alibi defenses don't require notice), so that the DA can get a psych eval for the defendant, etc..

It's expensive and time consuming to mount an insanity defense. As a practical matter, a judge probably would not allow it, especially in a non measure 11 case (those mandatory minimum Oregon cases that usually involve serious physical injury or sex abuse).

So it's certainly available. I've had clients over the years who, due to mental illness, drug abuse/intoxication, or retardation should not have been held to the same standard of responsibility as other defendants.

But the insanity defense requirements are unrealistic and outmoded. Moreover, juries will not return a GBI (guilty but insane) or other verdict based on such a defense simply because people want to see "evildoers" punished, regardless of their capacity. It's no secret that prisons are the de facto mental institutions in this country.

Anyhow....you can use the insanity defense for mugging someone and roughing them up. "Crazy" people- addicts, people operating under "extreme emotional disturbance" of various sorts are charged with assault all the time. But the defense of extreme emotional disturbance (a lesser standard than the insanity defense: ORS 163.135) isn't available for non-homicide crimes, and the insanity defense usually doesn't apply.

So as a consequence you have a lot of exremely disturbed, mentally ill, retarded, or organically brain damaged folks in prison.

That seems to be a situation most people are okay with.

I don't mean to pick on your lack of knowledge in this area-the fact is that most people are misinformed or underinformed about the criminal justice system, unless they have spent a fair amount of time within it. And once you have actual experience, it changes your preconceptions. That is true for most things in life.

[Mike LaRoche]

The tragedy through which Lily Burk's parents have been put through has been a preconception-changing experience, no doubt.

[Mike LaRoche]

Damn, I repeated myself in that comment. Such is the trouble with commenting from a BlackBerry.

[Nancy Rommelmann]

Thank you, Mike, for that comment. For me, certainly.

[Zev]

Mike, which preconceptions do you mean?

[Mike LaRoche]

You're welcome, Nancy. My pleasure.

Zev, my comment was in response to this statement at end of GM's last comment:

"And once you have actual experience, it changes your preconceptions. That is true for most things in life."

He didn't seem to consider that what Lily Burk's parents and friends are going through in the aftermath of her brutal murder would qualify as just such a preconception-changing experience.

[GM]

I don't know the Burk family or their preconceptions about anything. I'm sure such a horrific experience changes how you look at yourself and the world for good, and some people never get over it.

I was talking about the preconceptions that people have shown in this thread. They are wrong, and based on a lack of actual experience. Such real world, actual experience would change these preconceptions. Spending two hours watching a documentary would change your preconceptions.

[GM]

Don't take my word for it...

http://www.nytimes.com/2009/08/20/opinion/lweb20juvenile.html?_r=1&ref=opinion

[GM]

And, then, of course, there was this...which I think you can actually watch online now. So take an hour, watch the doc, and then consider whether sending mentally ill offenders to prison, with or without treatment and follow up (usually without) is good public policy, enhances public safety, and is a smart use of tax dollars.

http://www.pbs.org/wgbh/pages/frontline/released/

There you go...makes the argument much better than I can