Sunday, August 9, 2009

What's that got to do with due process?

"You would feel differently if it was your [mother/sister/daughter]!"

In any online discussion about a headline-grabbing criminal case or the death penalty, someone inevitably resorts to this most irrelevant emotional plea. Those who want to rush to judgment about the latest accused's guilt or execute as many people as possible always break out that line, apparently in an attempt to shame those of us who are fans of due process and the presumption of innocence or who don't care for state-sponsored killing. If we just cared about the victims of crime, or had any feelings at all, we wouldn't give a second thought to those darn technicalities (otherwise known as the procedures through which we make sure we arrest and convict the right guy, not just the convenient guy).

I hate that line. It is so utterly pointless and is certainly not an argument against due process. Of course I would feel differently if my family member were the victim. I would be devestated, angry, and all sorts of other intense feeling words. I would probably want someone's blood. Even I, pacifist-wannabe that I am, wanted to bomb the crap out of somebody, anybody, on September 12. When the awful, terrible crime happens to your family or your friend, of course it affects you personally and emotionally in a way it doesn't affect good-hearted people who only read about it in the paper. That seems so obvious to me, the only real response is, "Duh!"

That is precisely why the family and friends of victims don't get to sit on the jury. A police officer wouldn't (or at least shouldn't) be allowed to take part in the investigation of a crime that affected her family. A prosecutor or judge wouldn't handle the case involving a family member. And a defense attorney should not defend an accused family member. Because when the crime involves your own family, you feel differently about the case. When you're that emotionally close to the case, you lose perspective. You lose the ability to view the evidence coolly and rationally. And when we let the people who have lost perspective, who are too emotionally invested, and who can't view the evidence in a detached, neutral fashion make the decisions in criminal cases, we run a pretty high risk of making the wrong decisions.

So, yeah, if my own mother were the victim of the crime, I would feel differently. But what's that got to do with the rest of you, who aren't emotionally invested in the case, observing due process and respecting the presumption of innocence?


Molly said...

That's my dad's favorite "argument" line to use. How do you argue against that?

Ugh, yeah, I understand your frustration.

Jeff Gamso said...

You point out that it's what the criminal law is designed to restrain and what the civil law is for.

Crimes are offenses against the body politic which is why the cases are captioned things like State v. Smith. The idea is that the law is supposed to be careful and passionless.

The civil law (at least tort law), on the other hand, is about vindicating the harm done to victims. It doesn't do that perfectly, but that's the idea. Lower standards of proof, less process. And both systems can operate.

So OJ skated on the criminal charges but lost big time in the civil case.

That's the idea.

Transplanted Lawyer said...

The same argument is used to justify torturing prisoners to extract time-sensitive information from them. (Often by people who think that Keifer Sutherland stars in a series of television documentaries, not dramatic fiction.) And the same principle applies in rebuttal -- the issue is not what we think of the (suspected) bad guy, or the compassion we have for victims. The issue is whether we govern ourselves according to our own ethical standards or according to perceived expedience.

DBB said...

I'd turn it around and ask them, when they want to jetisson due process, if they would feel the same way if it was their friend/family member/themself who was the one charged with the crime.

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