Much ink has been spilled to debate the Lindsay Clancy criminal trial, but little if any, about the criminal law system it is in.
Read more The Council on American Islamic Relations Attacks America Again
There are two immediate problems with that system, that help explain why a jury couldn’t convict a self-confessed murderer: the reasonable doubt standard, and reluctance to punish.
Part of the problem stems from an ingrained legal tradition dating from 18th century England, known as “Blackstone’s Ratio” or the “asymmetry of harm:” It is better for ten guilty people to go free than for one innocent person to be wrongfully convicted. But that has nothing to do with law: it is a vague progressive social belief. It cannot explain why innocent people are convicted, or why the guilty set free (to commit more crimes).
That’s where “presumption of innocence” comes in. Along with the vague “reasonable doubt” standard, they facilitate Blackstone’s ratio — but does his philosophy of social harm actually serve some higher form of justice, or does it simply establish a moral value about innocence as a greater good, and make innocence the “default position” in difficult cases like Clancy (akin to making it the “null hypothesis”), instead of using pragmatic reason to establish what is probably true about an actual criminal act?
But it gets worse in cases like Clancy: innocence and guilt are not even debated: excusable behavior is the standard, which draws even deeper on BARD (beyond a reasonable doubt). Reasonable doubt can become “reasonable compassion” for the accused, even though three dead children are at the center of the crime. That kind of legally irrelevant criminal empathy further supports the misleading legal language of “not guilty,” which doesn’t mean innocent, but which nonetheless gives jurors a way to take a sympathetic position with the accused while hiding behind their duty to deliver a legal formality.
Concerning justice, John Stuart Mill’s famous speech of 1868 in favor of capital punishment, stated the modern criminal law problem perfectly: The penalty for offenses, even of an atrocious kind, he said, are “ludicrously inadequate as to be almost an encouragement to the crime.” Prisons were “too comfortable” and “almost a reward.” Although known as a reformist, Mill stopped at criminal law. Aggravated murder, which is murder that includes some additional component, such as rape, murder of a pregnant woman, or infanticide, was “the greatest crime known to the law.” He observed that many criminals display no remorse, and that there is “no hope” that the culprit may be worthy to “live among mankind.”
As Mill further stated about criminals, sometimes the crime is not an “exception to his general character” but consistent with it. Such criminals must face a justice system that will “solemnly blot him out from the fellowship of mankind and from the catalogue of the living. I defend this penalty, when confined to atrocious cases, on the very ground on which it is commonly attacked — on that of humanity to the criminal; as beyond comparison the least cruel mode in which it is possible adequately to deter from the crime” (italics mine).
Therein is a vital, and forgotten, legal point that must be renewed: death was the least cruel sentence because societies had devised many methods of punishment that were worse than death. Today we have none, so capital punishment is artificially elevated to the highest form of penalty, while still argued as cruel, when it is actually no such thing in the context of alternatives (I will spare the reader of unsavory examples that go back to ancient and primitive law, but which were extraordinarily effective as deterrence).
So what has happened since 1868?
Two things: criminal law has been turned into criminal therapy, and law has been turned into sociology. In service to those ideologies, “reasonable doubt” replaces “reasonable confidence:” doubt will alway exist, but a doubt standard reinforces inherent human weaknesses in self-confidence: the juror is given a legal rule that reinforces an already existing bias to doubt himself. Reasonable doubt creates reasonable crimes because it frames the determination of a criminal verdict on the wrong standard of mental and emotional judgment: doubt versus confidence, and with confidence, a moral conviction of what is right and wrong, rather than an emotional doubt supporting the excusable and rationalized.
So what can “common sense” tell anyone about judging a murder trial, and why was this trial on the front pages of the New York Times? One major reason: ideological solidarity with the accused.
It also reflects a central progressive ideology: babies, infants and the very young have no formal right to life, or if they do, they are subordinated to the mother — women have a right to terminate their infant in utero, and some believe immediately ex-utero, and both fall under “abortion” doctrine. The progressive left has turned abortion into such a broad maternal discretion, that it may become insidiously blurred with technical infanticide. It also reflects a psychological disorder in personal responsibility, as a writer in the New York Times demonstrates by deflecting personal blame to the “system.”
Read more The Church: going too far in going too far
As she put it concerning Clancy:
I finally understood what has attracted so many to her case: The state is a stand-in for the way women — and especially mothers — are judged, dissected and read in the worst possible light. What she did … ignores the sorry state of postpartum health care and the historical lack of investment or desire to understand women’s bodies and minds.
The judge in the case also made matters worse by his jury instructions, but that is preceded by the effect of a judge on lay jury members:
“When a judge dressed in a black robe speaks, juries are struck with such reverence that they fail to notice the lack of content of his or her words. Jurors assume the words spoken by an honorable person in black must make sense. This assumption is false.”
The judge’s instructions, while seeming to follow a generally accepted definition of “reasonable doubt,” were actually incorrect in Clancy, while reinforcing the concept of in dubio reo, or “when in doubt, rule for the accused.” He instructed them incorrectly that:
A charge is proved beyond a reasonable doubt if, after you’ve compared and considered all of the evidence, you have in your minds an abiding conviction to a moral certainty that the charge is true (italics mine).
Not only is this wrong, but ignores that there can be no such certainty. BARD isn’t even defined clearly by the courts, and some federal courts have even said, astoundingly, that it shouldn’t be. Judges will also accommodate lawyers who confuse a jury about what “beyond a reasonable doubt” means. They often leave out the inconvenient qualifier that proof must be beyond a reasonable doubt, but “doubt” has to be relevant to the criminal facts, and justifiable in fact. Any “reasonable doubt” must also be greater than “minor doubts.” A jury can have many insignificant, normal or reasonable doubts, uncertainties and unanswered questions, and still issue a guilty verdict.
Could better jury instructions help? One judge put it this way:
In 1987, a subcommittee of the Committee on the Operation of the Jury System of the United States Judicial Conference proposed a model jury charge that included these words: “Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.
“Convinced” puts the burden where it belongs—on the prosecution’s case — while staying focused on proof standards, and criminal guilt of an act, rather than mental or physiological accountability for an act, where “accountability” as argued in the Clancy case, lets law slip into clinical psychology; a juror’s rational judgment into identity politics; and a jury into an entertained audience from defense stories of human dysfunction, instead of examiners of the facts surrounding violence against innocent victims, and punishers of the perpetrators.
Matthew G. Andersson is the author of the forthcoming book “Legally Blind” concerning ideology in law and politics. He has testified before the US Senate and is a graduate of the University of Chicago.
Read more Equal Opportunity and the American Mindset
Image: Pixabay // Pixabay Content License