James M. Redwine

Respect

Of Motes And Logs

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Last week the National Basketball Association deferred its 2020 playoff games out of respect for the Black Lives Matter movement. The incident that was the catalyst for the Milwaukee Bucks professional team to decide to boycott game five of the playoffs against the Orlando Magic team was the shooting of 20-year-old Jacob Blake, a Black man, on August 23, 2020 during an encounter with the police in Kenosha, Wisconsin. Blake informed the arresting officers he possessed a knife but he did not wield it. Blake’s shooting struck many as part of a continuum that began May 25, 2020 in Minneapolis, Minnesota when 46-year-old George Floyd, an unarmed Black man, died as a result of an encounter with police. In between Floyd and Blake several other incidents of police/Black person violence have made national news. History records numerous such incidents and a great many more have not been recorded but exist in the psyches of both minority and majority populations. Until cell phone cameras became ubiquitous such incidents tended to get lost in the vagaries of competing memories. Today the incidents are often still in dispute but there may be video and audio evidence to analyze in search of the facts as opposed to mere opinions.

In my experience the truth as believed to be proved by whatever evidence may exist tends to depend to a large extent upon the ability of the observers to set their personal prejudices aside and apply a degree of objectivity to the situation in question. Although such matters as the Blake and Floyd cases are qualitatively light years from sporting events, perhaps an analogy may still be apt when it comes to determining the actual facts as opposed to opinions about the perceived facts or, more likely, the projected ones.

When a sports fan endures the indignity of an umpire’s or referee’s close call against the fan’s team, it is the rare fan who congratulates the official for his/her judgment. What may look like interference to the referee may look more like “no harm, no foul” to the fan. Of course, when it comes to issues of race the emotions are much more complicated and visceral and deadly force or resistance may be involved. If in war the first casualty is truth, when it comes to matters of race and ethnicity truth often depends more on the culture of the observers than observation alone. That is why the wise people who founded this country fashioned a government of laws. Without law the scales of justice tend to dip in favor of whoever has the power to put their thumbs on the scales even when they would swear, and probably believe, they are fair to a fault.

About the best we can hope for, even in ourselves, is that we recognize our judgments on matters as fundamental as human rights are often influenced by our particular frailties and that our frailties come from our particular culture. Then we can bring up the logs that are in our own eyes and try to account for them in determining what the evidence truly proves in any particular case. People whose duty it is to make judgments on the behaviors of other people often learn, sometimes the hard way, that their conclusions about what certain evidence proves have been subconsciously affected by personal factors related more to the person doing the judging than the actual behavior of the ones they judge. This phenomenon has been recognized by trial lawyers and judges since we homo sapiens first began to settle our disputes in court instead of with clubs. That is one of the main reasons attorneys prefer to settle cases by compromise as opposed to seeking the full measure the attorneys believe their clients may be entitled to from a decision by a judge or jury after a trial. Over 95% of all court cases settle without a trial. The attorneys know that it is rare for a court decision to be intentionally biased but it is often subconsciously so. And if this is true with trained judges it is good to keep inherent biases in mind with such organizations as political parties and the media.

There are remedies to unjust treatment that has resulted from unrecognized prejudices. However, such things as money damages are usually insufficient compensation, especially if permanent disability or death to either an offender and/or officer occurs. Prevention is a better treatment. And prevention requires that we look deep within ourselves, hopefully well before, but at least at the time of a racially or culturally charged incident. Such introspection should be demanded of all whose job it is to control the behavior of others; police officers and judges come to mind.

But all of us would do well to recognize our potentional to unfairly discriminate based on factors we rarely acknowledge to ourselves. Of course, one of the best remedies for eliminating prejudicial behavior is an atmosphere where all points of view are allowed to be considered and evaluated. That is why Frederick Douglass (1818-1895) stated that the right of free speech is … “the dread of tyrants”. Perhaps Douglass recognized that tyranny can also come from within each of us and that the atmosphere of our current Cancel Culture that is festering hate on college campuses, in the news media, in politics and even among friends may be the place to start addressing systemic prejudices.

Spare The Rod …

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When our early immigrants from Great Britain set up their legal system in New England they did not have prisons and, often, not even jails. What passed for justice included such corporal punishments as standing in the stocks or being bound to the whipping post, usually in the village square and always in public view. That shaming was part of the punishment. Also, it was erroneously believed to reduce recidivism. The great French legal philosopher Paul-Michael Foucault (1926-1984) posited that the “public” part of public punishments was essential to helping eliminate cruel and unusual sentences for crimes.

If a petty thief could have their hands hacked off on the public square, society would more likely be averse to such disproportionate penalties. According to Foucault, modern governments began to remove punishments such as beheadings from public view not out of a concern for general sensibilities but out of a desire to prevent the people from rising up against the government. If the public, through its governmental officials, see fit to physically punish a miscreant, especially a political prisoner, then the public should be witness to the gory spectacle.

Recently, perhaps as a concomitant of the Black Lives Matter phenomenon, such vestiges as public whipping posts are being removed from public lands and moved to museums. The state of Delaware allowed public floggings as criminal punishments until 1972. Now the places where the public could watch as a person was beaten with a cat-o-nine tails are being removed from such places as jail yards and courthouse lawns. Even the memory may be lost.

In 1817 Posey County, Indiana did not yet have a jail but in one of the county’s first criminal jury trials the defendant, one Mr. Green, was found guilty of hog stealing and sentenced to 49 lashes at a post just outside Posey County’s first courthouse which was the living room of Absalom Duckworth’s home.

Under the procedure of 1817 the defendant’s lawyer, Richard Daniels, had the right to immediately petition for a new trial. He did so and Judge Isaac Blackford took a lunch break to consider the motion. During the lunch hour Sheriff John Carson, who either did not know or did not care about the petition for new trial, tied Mr. Green to the whipping post and flogged him without the Judge’s or the attorneys’ knowledge.

When Judge Blackford reconvened court, Attorney Daniels stood and requested a new trial. The Defendant grabbed his attorney by his coattails and said, “For God’s sake, Dick, do stop. I’ve had enough already!” I suppose no one could accuse the legal system of delay in 1817.

I do not condone or recommend corporal punishment as a sanction for criminal behavior. However, I do agree with Foucault; excluding the public from the imposition of Draconian sanctions makes such unfair outcomes more likely. For example, the spectacle of public whippings was legal in Delaware until 1972, but there had not been such a horrific punishment in that state since 1952 when a husband was lashed 20 times for beating his wife. There is no evidence such a sanction affected spousal abuse. But it surely caused citizens to lose respect for their legal system.

Thou Shalt Not Steal

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It is easy to have sympathy for thieves if they steal from victims we do not know. Should the victims include acquaintances, friends, family or ourselves, our magnanimity wanes. And while our heart strings are plucked by someone who steals bread to feed their family, if Jean Val Jean had stolen to feed a personal drug habit Victor Hugo might not have portrayed him as a tragic hero. When it comes to our attitude about punishing thieves it is pretty much, “Whose ox is getting gored?”

And over the last few thousands of years we Homo sapiens have applied sanctions on thieves that have ranged from, “go and sin no more”, to the death penalty. Those of us with Anglo Saxon DNA can search back just about one thousand years ago and find death for theft to be de rigueur in the areas that became Great Britain. Of course, when a society does not have jails what can you do with someone who has no respect for the property of others?

Also, in today’s world we still have countries where thieves are sometimes flogged or who have their hands amputated on occasion. The Book of Matthew (Chapter 5, verse 30) advises offending thieves to cut off their own hands whereas the Old Testament decrees if one steals food because they are hungry we should not hate them (Proverbs 6:30-31). But Exodus 22: 3-4 declares that a thief who cannot pay restitution should be sold into slavery.

In other words, we humans have tried about every possible penalty from turning the other cheek to execution when it comes to thieves. Usually a first time offender in all legal systems is treated more leniently than a repeat villain. A thief of tender years normally calls for more sympathy than an experienced adult. And a thief who can pay restitution or who appears to be genuinely remorseful fares better than one who is more callous.

Now, Gentle Reader, you may be curious as to why you and I are considering whether it is better to kiss thieves on the top of their heads or to lop their heads off. Well, I confess my own approach to these issues during my ten years as either a prosecuting attorney or a defense attorney has fluctuated greatly, usually based on which side I represented in court. But it has been my forty years as a trial judge that has seen the greatest variation in my attitude toward dealing with thieves. I have tried practically every approach from rehabilitation to retribution. Suffice it to say I have not found a solution to theft; people are still doing it and on a fairly regular basis. My most recent encounter with the phenomenon of someone who has no respect for the property of others involved a friend of mine who had his tractor stolen right out of our pasture next to the cabin where Peg and I live.

Rape and armed robbery are much worse crimes than theft but the sense of being violated and feeling vulnerable is similar with all three. One immediately feels more generally fearful and angry. The one-time sanctity of our home and the confidence our friend had in the security of his property while on our property has been greatly diminished.

I do not ascribe to Dante Alighieri’s punishment for thieves as he set it forth in Circle 8 of his Divine Comedy. However,  it does graphically show how mankind may sometimes feel about thieves. Dante portrayed thieves as having their offending hands bound with flying reptiles that also pierce the thieves’ jugular veins causing the thieves to turn to ashes. The thieves are constantly being turned back to their human form then re-subjected to the flying reptiles. Such a vision for punishing thieves is interesting but hardly in keeping with modern penology. However, Dante’s hypothesized punishments for thieves he personally despised do call upon one’s darkest urge for revenge. Of course, revenge may be understandable but it is not justice.

When it comes to justice, if it ever does, for whoever stole our friend’s tractor, we can probably best hope for something less Draconian than Circle 8, say Circle 3, where thieves would spend eternity lying in filthy slush while being constantly pelted with icy rain. However, such a penalty probably should not make it into modern law.