C.S. Lewis, I think it was (and I'm too lazy to check right now), said that Jesus was either insane or really was God (or the son of God or some such thing, this isn't about doctrine, not even about Jesus) when he said that he would die to expiate the sins of others. Which leads me to Anders Behring Breivik and Casey Anthony and a couple of deeply troubling columns by Thane Rosenbaum, the John Whelan Distinguished Lecturer in Law and Director of the Forum on Law, Culture & Society which is a mouthful but it's amazing how many law professors are the somebodyorother distinguished professor of somethingor other. Here's Rosenbaum's central thesis: Law sucks and criminal law sucks most of all because it doesn't make Nancy Grace happy. OK, that's not how he puts it. But that's his point. Here he is, from the Huffington Post, on the Casey Anthony trial. The Casey Anthony jurors could have stayed home and watched it all on cable TV, and then phoned in a verdict that would have shown better judgment and matched the opinion of the rest of the nation. See, the point of the trial was for jurors to show good "judgment" which means getting it the way the public thinks it should go. TV is the test. Oh, grudgingly he seems to recognize that the legal system doesn't operate to do that. But it should. What makes complete sense outside of the courtroom has no bearing on the legalistic jury instructions, the narrowed presentation of evidence, the presumptions of innocence and the burdens of proof that guide criminal trials no matter how simple and plain the facts appear or indisputable the outcome. From outside the courtroom, the legal system often looks as if it has no grip on the truth, or even worse, any concern or respect for the truth. But legal trials are, in fact, less interested in what is true than what can be proven. By now legal experts have lectured us on the difference between saying that Casey Anthony was innocent and that the prosecution was unable to prove that she was guilty beyond a reasonable doubt, and that's why the jury voted to acquit. But most reasonable, sensible, decent people are still left morally outraged by this purportedly correct legal outcome, and they won't easily be persuaded to appreciate the difference — nor should they. In a proper system, Rosenbaum says, we'd all work together. [O]ther countries place a higher value on having both the prosecution and the defense work to uncover the truth. And, of course, they do a bang-up job. (See, e.g., Knox, Amanda.) But really, why even bother with prosecution and defense. Television, as Rosenbaum says, is sufficient. OK, maybe I'm not being fair. I mean, celebrity trials and all that. Maybe he got too caught up in the whole thing of her going to parties as an explanation for why she was guilty of murder even if the state couldn't prove the kid was murdered. I mean, Caylee must have been murdered since her mother wasn't as broken up about her being missing as Nancy Grace and her acolytes Rosenbaum would have preferred. No, I am being fair. Here's Rosenbaum in today's Times. Legal systems should punish the guilty commensurate with their crimes and recognize a moral duty to satisfy the needs of victims to feel avenged. See, that's the real problem. Our legal system doesn't allow victims "to feel avenged." Damn. It's so simple when you get that. NORWAY, a nation far removed from the wickedness of the world, is now facing one of its greatest moral challenges: What to do with Anders Behring Breivik, the man who has confessed to massacring 76 people, many of them children. Norway does not allow for capital punishment, and the longest prison sentence a killer can usually receive there is 21 years. A country of such otherwise good fortune and peaceful intention is now unprepared – legally and morally -to deal with such a monstrous atrocity. Sure. And in absolute terms, we were all unprepared to deal with Hitler or Pol Pot or Idi Amin. And Nero fiddled while Rome burned. And the wheel goes round and round. The unthinkable may not be thought, but it happens. We may not imagine the unimaginable, but that doesn't stop it. None of this is news to anyone who pays attention. The question is how we respond. There's the USA PATRIOT Act and Homeland Security and Scope and Grope. And Nancy Grace and Bill O'Reilly. But there's also Jens Stoltenberg, Prime Minister of Norway. Michael Schwirtz, reporting from Oslo, in the Times. "It's absolutely possible to have an open, democratic, inclusive society, and at the same time have security measures and not be naive," Prime Minister Jens Stoltenberg told reporters in Oslo. "I think what we have seen is that there is going to be one Norway before and one Norway after July 22," he said. "But I hope and also believe that the Norway we will see after will be more open, a more tolerant society than what we had before." Rosenbaum would have us execute Breivik (of course, he must be guilty, no need to bother with trial or anything) because we all want revenge and that's what the system ought to provide. It'll make us all feel better when he's dead. Closure or something. But maybe not. Maybe the way we honor the dead is with something less than using them as an excuse for killing. Rosenbaum talks about "settling of scores." Plea bargains invariably shortchange this settling of scores – which is why, practical difficulties aside, they should be used only sparingly (and always with the victim's participation). And allowing the guilty to walk free because of procedural errors – or because of the ambiguities of "reasonable doubt," as in the case of Casey Anthony – invites vigilante justice. Neither justice nor revenge is negotiable. But wait a second. Just who has a score to settle with Casey Anthony? Even if it happened that she did kill her child. After all, everyone in society benefits when the truth is known and injustice is not allowed to prevail — in this case, the memory of Caylee Anthony, especially. So Caylee's memory requires that her mother be convicted of murder and then be sentenced to death or death in prison. And we know that, because that's what Nancy Grace Gallup Rosenbaum tells us. And they he knows. And will feel better. Which brings me to why I started with what maybe C.S. Lewis said. Just who gets to do vengeance? Who has a right to bereavement? If the pictures are to be believed, Caylee Anthony was a beautiful child. Her death is sad. I wish it hadn't happened. I wish those folks in Norway hadn't been killed. I wish the thousands killed by the tsunami that wiped out the Fukushima power plant hadn't lost their lives. I wish all sorts of things. But the loss isn't mine. Rosenbaum teaches courses, according to his faculty page, in "human rights." He has, according to the Times, a book coming out on revenge. [T]he actual difference between vengeance and justice is not as great as people think. It's difficult to have honest conversations about revenge. Seeing someone receive his just deserts often feels righteous and richly deserved, and yet society regards vengeance as primitive and barbaric. Governments warn citizens not to take justice into their own hands, insisting that the state alone has the duty and right to punish wrongdoers – pursuant to the social contract. As a result, most people hesitate to frame their anguish in terms of revenge. Some, however, are more forthright, proclaiming a moral duty to avenge, especially when the law fails and breaches its part of the social contract. If Dr. Petit were to kill one of the men who broke into his home and destroyed his family, I'd understand. I'd willingly defend him from murder charges. But the people of Connecticut? From what vantage point can they claim to seek revenge? If Jesus thought he could take our sins upon him and by his crucifixion expiate them, he was either mad or God. If Rosenbaum needs Casey Anthony to be convicted so that he can have revenge . . . . The law, the legal system, is not a social means of attaining vengeance. It's an alternative. Rosenbaum doesn't like that. He doesn't want that system. Fair enough. He doesn't have to. But he might at least acknowledge that his bitch is with the idea of the American legal system. That it was never designed to do what he thinks is its purpose – to make people feel better by avenging the crimes that televangelists of hate insist occurred whether or not there's evidence in support. Better that 10 guilty men go free than that one innocent man be convicted. You're kidding, right? Gimme a break. I've said before that I'm not religious. But this much seems clear. You have no right to seek vengeance for wrongs done to me. Your redress for the wrongs done to you is in tort, not in criminal law. Getting even is not complicated arithmetic. A just outcome in Norway, however, given the number of young lives taken, will doubtless be unsatisfying. Too bad. But making Rosenbaum feel better really isn't the point.
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