Wednesday, March 30, 2005

Law, the Bible, and Death by Jury

This schrift originated as a comment on LPS's "laurafedora" livejournal post on the recent Colorado decision overturning a death penalty sentence when it was learned that jurors consulted Bible verses during deliberations before sentencing. One thing led to another, and before I knew it, I had a thousand words going. But here's my take on the matter, such as it is.

Sometimes it's helpful to think of our legal system as a mongrelization of multiple forms of authority. Being a total Max Weber geek, I'll identify the big three as legal/rational, traditional, and personal/charismatic.

Lawyers make arguments to convince judges on the one hand and juries on the other, and appeal to very different kinds of evidence. Judges interpret both statutory law and binding precedent, i.e., a combination of traditional and legal/rational authority. The role of a judge is formal -- to make sure the trial is procedurally correct and that the rights of the accused and the letter/intent of the law are upheld.

Juries, on the other hand, are supposed to make factual judgements -- is his alibi plausible? did she kill in self-defense? did they know the drug was dangerous? could he have worn those gloves? -- which in turn lead to judgements relating to guilt or liability. The problem, of course, is that courtrooms aren't laboratories: the evidence isn't clear-cut or entirely factual, and in most cases boils down in one form or another to issues of trust, motivation, and plausibility. In other words, it's a matter of charismatic authority, a trust or lack of trust in a person rather than a formal procedure. You could also argue, and I believe, that there's something primal and almost magical about the way guilt or innocence is decided, and that jury trials have as much to do with ritual guilt and absolution and public legitimation of the law as they do with finding of fact. But I digress.

If judges interpret the law, and juries decide guilt or innocence, then on whose authority should a guilty criminal be sentenced? In many cases, sentences are determined by statute. Hence it seems to be part of the judges' mandate. But in other cases, a specific sentence hinges on a point of fact or special circumstances: hate crimes, especially egregious acts of violence, etc. Lawyers are allowed to present new evidence between the conclusion of a trial and sentencing for this purpose. Of course, the evidence presented rarely if ever has anything to do with new facts, but rather involves a personal or emotional appeal, whether for or against a harsher sentence.

I guess this is a roundabout way of saying that, especially in death penalty cases, and even more often when deciding sentencing in a death penalty case, juries rarely if ever consult the facts or the law when making their decision -- and to a certaine extent, this failure is structural. Not only are juries not directly responsible for the interpretation of the law, but in most cases there are no clear statutory guidance, or guidance of any kind, as to what facts or circumstances warrant the death penalty and what do not. Therefore, jurors are compelled to deliberate based on extralegal and often extrarational authority -- which usually includes (when it isn't entirely limited to) subjective speculation on the viciousness of the crime, possibility of rehabilitation, and whether or in what circumstances the death penalty is warranted at all. The jurors' role is to convince one another and to generate a consensus -- whatever its basis may be. I don't think anyone believed that the Bible constituted a legal authority that compelled the jurors to make up their minds one way or the other, in the same sense as a judges' instructions would (although jurors usually ignore those as well). I certainly don't think anyone would argue that the Bible introduced new factual evidence into their deliberations. So what are the grounds here? It just doesn't make sense.

There are good reasons why judges rather than juries should determine sentencing. I especially think this is true in civil cases -- I just don't think juries are qualified enough to determine or award damages. It introduces an element of instability and unpredictability into the system precisely where you need it. (I don't care what you say about "activist judges" -- any one judge is more predictable than twelve random people in a jury.) Wouldn't it make sense, then, for judges rather than juries to decide whether or not to apply the death penalty?

There are two problems here. (Well, really, three, but two of them go together.) In 2002, the Supreme Court in Ring v. Arizona struck down laws allowing judges alone to decide death penalty cases, based on the constitutional right to a trial by jury. The other problem -- and again, this is more anthropological than sociological -- is that when we decide to kill people, it's better if it's done by a collective, a group of anonymous members of the populace. It's Pilate, giving Christ to the crowd and washing his hands: it keeps the blood dispersed and the institution clean by making all of us -- any one of us -- guilty. I'd like to see someone jot down those verses of the Bible before going into the jury room.

Sunday, March 27, 2005

How Green Is My Metropolis, Pt. 2

From City Journal, via Arts & Letters Daily: "Why the U.S. Needs More Nuclear Power." The authors (Peter W. Huber and Mark P. Mills) make some strong points in favor of nuclear power, albeit nothing new: it's cheap, it's efficient, it's clean, safety concerns are legitimate but overstated, etc.

The real merit of the article is its analysis of existing energy consumption, peppered with smart statistics and sharp phrases. "Think of our solitary New Yorker on the Upper West Side as a 1,400-watt bulb that never sleeps." "Stick an extra 90 pounds—$800 worth—of nickel-metal-hydride batteries in a hybrid, recharge in garages and parking lots, and you can shift roughly 25 percent of a typical driver’s fuel-hungriest miles to the grid." And so on.

As the last quote suggests, the article is also notable for its praise of both hybrid cars and electricity in general: the conjunction of the two, the authors argue, could shift our electricity consumption from 60 percent of overall energy to 80 or even 100. This would have the handy "geo-green" consequence of reducing our dependence on oil, slashing our overall energy costs, and reducing the amount of coal or oil we have to burn -- assuming, of course, that our electricity isn't generated by burning coil or oil. (See Thomas Friedman in today's op-ed.)

In fact, although Huber and Mills's article doesn't make this point directly, electric or hybrid cars wind up defeating much of their environmental purpose (setting aside for the moment their relative end-user or overall economy) so long as we continue to generate most of our electricity through conventional fuels. Half of our electricity, the authors tell us, comes from burning coal; another 30 percent comes from a combination of natural gas and hydroelectric power. "Your typical city dweller doesn’t know just how much coal and uranium he burns each year," the article begins -- and this is especially true for self-congratulating hybrid owners. Dreams of windmills, dams and solar cells aside, that's a coal-burning engine you're driving.

Here, nuclear power represents the endgame of a certain logic: given that we're shifting so much of our energy assumption away from oil and natural gas and towards electricity, we need to continue to find ways to make our electricity generation cleaner, safer, and cheaper. Hence -- as the best, most proven, ready-to-go alternative -- nuclear power.

It may be worthwhile to read this article together with David Owen's excellent "Green Manhattan," originally published in The New Yorker last October. (Owen's article is now available as a pdf via You can read my summary and comments in "How Green is my Metropolis".) Both Owen and the authors of the City Journal article place the important stress on energy consumption, but they also compliment one another well. Owen focuses on end-user consumption and more than ably corrects the anti-urban prejudice when it comes to things green (even Huber and Mills focus on if not villify "the city dweller"), while H. and M., in their focus on energy production, supply an equally needed corrective.

The virtue of cities, Owen argues, is in their condensation: more people living in less space consume less energy per capita, especially for heating and transportation. But population density is exactly the problem for cities run on nuclear power: you can't build a Three Mile Island in Queens, since it would be impossible to evacuate the city in the event of a meltdown or accident. Nuclear hysteria in this compounds the real danger. New Yorkers might be better energy consumers than they're given credit for, but New York is a terrible place to generate energy. Which has always been the grand critique of the metropolis: consumers to the end, happily unaware of the always remote forces of production.

I hate to end on such a wishy-washy, David Brooks-ian, "both sides have good points" note (I mean, what the hell has happened to that guy?) -- mostly because I don't entirely feel that way. I think what I like about both articles is that they challenge certain sacred cows within the Green movement while remaining within a Green orientation or paradigm. They also demand both an intellectual revision and a certain kind of action, while reeling back the utopian, savior-from-nowhere vision most of this kind of talk engenders. The point of both articles is that we already possess the untapped technologies -- in H. and M.'s article, nuclear power, in Owen's, the city -- that can make our use of energy sustainable. And right now, that seems to be the most important message any environmentalist can offer.

Sunday, March 20, 2005

The United States of America: Tone-Deaf since 1776

I pulled a few paragraphs from an AP article by Anne Gearan on Condoleeza Rice's trip to Seoul this morning. The first half of the article is about Europe selling arms to China, and the second half is about openness and democracy. The sly juxtaposition of her speech with an account of a protestor just happened to tickle me the right way. I don't really think that the United States is a horribly repressive place, on par with North Korea, but my dark sense of humor perks up whenever the illusion emerges that we just might be.

In Seoul, Rice conducted an unusual press conference with Korean Internet reporters. The event, meant to highlight the freewheeling nature of computer communication in an open democracy, got off to a bad start when American security guards tackled a peace activist as he shouted to get Rice's attention.

"Miss Rice, the North Korean people are dying and they are crying for your help," yelled the activist, German physician and former aid worker Norbert Vollertsen. He held up a poster that read "Freedom for North Korea: 50 Years Overdue," until a State Department employee ripped the poster in half.

As Rice took her seat for the news conference, security officers literally muffled Vollertsen while wrestling him to the carpeted floor. He had talked his way into the event before Rice arrived, but a U.S. Embassy public affairs officer recognized him at the last moment and demanded he be removed.

In replies to the Korean journalists, Rice described true democracy as the ability to "say what you wish, worship as you please and educate your children, boys and girls."

In contrast to the closed society of North Korea, Rice said, "you can come here and think what you want and ask me anything — the United States secretary of state — and what a wonderful thing that is."

Tuesday, March 08, 2005

The Malcolm Gladwell of the 1930s

I went up the Delaware to New Hope, PA this weekend with some friends I hadn't seen in a while, and managed re-make my acquaintance with another old friend in a used bookstore: the writer, poet, critic, sociologist, philosopher, literary theorist, and general smartie Kenneth Burke. I picked up a copy of his Permanence and Change (which in the current edition has the much more descriptive subtitle An Anatomy of Purpose) and immediately remembered upon turning its pages both why I like Burke so much and why it's necessary to sing his praises.

More than thirty years prior to the emergence of Deconstruction, Hermeneutics, and the Nouvelle Critique, Burke argues for a fundamentally linguistic and interpretive theory of human psychology and human action. But Burke's theory of language is rooted in a thick version of pragmatism -- grounded in the practical experience, psychology, and symbol-making of a range of ordinary activities -- rather than the towering necessity of codes, laws, and structures. His targets in this book are behaviorism, psychoanalysis, and Marxism -- all of which, he tries to show, ontologize human motivation when are they're really doing is creating a hierarchy of different kinds of explanations for motivation. In this book, Burke's dismissals seem a little pat, but the underlying argument is brilliant nonetheless.

More than just smart, Burke is fun. I love the way he borrows -- Thorstein Veblen's concept of "trained incapacity" turns into a kind of meditation on how our ability or inability to create adequate symbols to new experiences (when those symbols have always proved adequate before) can in turn keep us from recognizing those experiences at all. I don't know if it pops up in this book, but the phrase he coined for this is "terministic screen." If I were to try to reconcile Burke with Marxism or Psychoanalysis (a reconciliation to which he leaves himself open), I would argue that the problem with naive Marxism or Freudianism is that they leave out this linguistic dimension: ideological or neurotic blindness is caused less by some problem in the brain than the paucity of terms available to us for debate. But to a certain degree, some kind of terministic blindness is inevitable: every technical or non-technical language you adopt privileges some ways of talking about a phenomena and closes off others. Paul de Man wrote a book called "Blindness and Insight" forty years later milking just this idea and became the most famous former secret Nazi in academe. But that's another story.

One remarkable aspect of Burke's account is that motivation is dug out from the deep interiors of the subconscious and exteriorized, but that exteriority in many ways makes it more obscure. "Any explanation is an attempt at socialization," Burke writes, "and socialization is a strategy; hence, in science as in introspection, the assigning of motives is a matter of appeal." (24-25) And later: "A motive is not a fixed thing, like a table, which one can go and look at. It is a term of interpretation, and being such it will naturally take its place within the framework of our Weltanschauung as a whole." Motives, properly speaking, do not motivate at all, at least in any causal sense; they are the terms with which we justify our actions post hoc, or teleologically at best. Motives are more interesting than causes, since they reflect our understanding and legitimizing of our own activity, which can scarcely be reduced or atomized. This helps to account for the complexity of human behavior; as both homo sapiens and homo significans, the symbol-making animals demand complex accounts precisely because they are able to give such complex accounts of themselves. Or, as Burke says,

(t)hough all organisms are critics in the sense that they interpret the signs about them, the experimental, speculative technique made available by speech would seem to single out the human species as the only one possessing an equipment for going beyond the criticism of experience to a criticism of criticism. We not only interpret the character of events... we may also interpret our interpretations. (6)