What’s Wrong with the World

Beautiful theme for your first post, Tony.

In earthly matters, nothing shows that a person’s heart has been changed by divine grace more definitively than that this person forgives his enemies even when those enemies are unrepentant – indeed, while they are still in the midst of their offenses.

Amen to that.

Is there any analogous satisfaction of the debt to society when the judge applies a lenient punishment of 2 years instead of 10? How is the state able to use mercy in dealing with criminals without damaging justice, which is one of the essential purposes of the state?

That's a very Catholic question, as over against the confessional Lutherans who deny the state should be an instrument of mercy in any sense.

Off the top of my head, I would say that not even the state is in the business of absolute temporal justice. Many sins go unpunished by the state altogether, and rightly so. How any particular state chooses to handle crime and punishment is dependent upon a host of hard-to-quantify variables, just as is discipline within a family.

Jeff, I would agree that the human community cannot hope to fulfill absolute justice in the temporal realm. But it should aim for justice in the temporal order insofar as that is within reach of its capacities. Some efforts toward that justice should be informal, or non-governmental: custom takes care of some, and promotion of the virtues (including the virtue of justice) takes place in families and schools and businesses. Not all injustices are criminal, not all of the things that could be crimes need to be formal crimes, and not all of the incident's that violate written law need to be punished. But by and large, the state should not say about justice in the temporal order that "this is something within our reach, but we have no concern about it".

It seems to me that it's a very dangerous thing for the state to take it upon itself to offer mercy to a criminal. We have seen the disastrous consequences when, for example, Gov. Huckabee released heinous criminals to kill again. There might perhaps be some space for state-sanctioned mercy in cases where there were strongly mitigating circumstances. But for the state to mete out justice is for the state to defend the innocent. And this defense has several forms: There is the deterrence of future acts by others. There is making sure that this criminal himself commits no further acts. But retributivism also teaches that there is a deeper sense in which the state _defends_ the innocent by showing the value of the innocent's life in the meting out of a just punishment to the innocent's killer, rapist, etc. It is important not to confuse this aspect of the defense of the innocent with the other aspects.

Perhaps the state could exercise more mercy in relatively trivial cases, cases where the punishment allowed for is somewhat draconian. I say "allowed for" because, if the judge is simply _setting aside_ a sentencing law in being lenient, then his action is itself lawless which is problematic in itself.

Let us remember too that we show a kind of honor to the one who commits a crime by holding him responsible and punishing him. It is the sickly, somewhat sickening demotion of men to "products of their culture" and such demeaning phrases that we see in most lenience in our criminal justice system.

As for affirmative action, there I must object strenuously against any notion that it is Christian mercy to give a person a place he is not qualified for. Not only does it almost always displace someone else, more importantly, it harms the recipient. It curses him that takes and him that gives. Moreover, if the enterprise for which the hiring or the admission is taking place is a good and valuable enterprise, the enterprise is harmed. And this, I think, is a most solemn consideration. Such so-called "mercy" has gravely harmed our institutions of learning and the students who learn in them, both by dumbing down the education they are given for their poorly prepared peers and by giving them professors who are not the best qualified to teach them. We should love the good professions and keep up their quality, to the greater glory of God and to the benefit of those they serve. For this reason alone, affirmative action should not be done.

It seems to me that it's a very dangerous thing for the state to take it upon itself to offer mercy to a criminal. We have seen the disastrous consequences when, for example, Gov. Huckabee released heinous criminals to kill again.

Agreed. The offer of mercy should never be made to someone who still poses a grave risk to society. The point of state-sanctioned force is for the sake of the preservation of the goods (private and common) of society. Foregoing the use of enforced incarceration and as a result having more violence is just plain stupid. I have never understood how a governor could look the victims' families in the eye after that.

But in principle there must be cases where a criminal no longer poses any threat, and yet still has a significant sentence to complete. Mercy in such a case should not constitute an unwarranted danger to society - except, as you say, in undermining the coherence of the whole system of just retribution.

Let us remember too that we show a kind of honor to the one who commits a crime by holding him responsible and punishing him. It is the sickly, somewhat sickening demotion of men to "products of their culture" and such demeaning phrases that we see in most lenience in our criminal justice system.

Lydia, I agree. I have regularly pointed out that true rehabilitation is a secondary effect of retributive punishment, and therefore is directly tied to the retributive aspect itself. If we want men to be reformed and become people who use their free will responsibly, we have to treat them as if free will and responsibility mean something. On the other hand, I have seen occasions in family life where justice and mercy has more successful effect toward reform and deterrence than justice alone would have been. It is possible that some of the same spiritual dynamic obtains in the state.

I have regularly pointed out that true rehabilitation is a secondary effect of retributive punishment, and therefore is directly tied to the retributive aspect itself.

I think that's well-put. And it's true of children as well. If a child doesn't realize that he has done wrong and deserves punishment, he's unlikely to change. If he is simply "let off," especially repeatedly, he is unlikely to realize that. The entire set of social signals will be to tell him that he just needs to try to beat the rap.

I'm afraid that in truth our criminal justice system has fallen sufficiently far from having the intrinsic dignity and gravitas to make a lot of this meaningful. I doubt that any criminals nowadays who receive lessened sentences really think of this in terms of mercy at all.

. . . true rehabilitation is a secondary effect of retributive punishment.

+1

What a prophetic post! I'm printing this one tomorrow. Partly because I have to read it again after tonight's post sinks in - but it's also that god.

Kamilla

A fine post, Tony. I also associate myself with Lydia's excellent comment at 5:33pm yesterday.

How is the state able to use mercy in dealing with criminals without damaging justice, which is one of the essential purposes of the state?

The state frequently injures justice in its own right through the creation and application of a legal code that often applies penalties without regard for actual damage done to the common good. For example, consider that in some jurisdictions, the state might actually punish a young man more harshly for selling cocaine than murdering a man in cold blood.

Perhaps the state could exercise more mercy in relatively trivial cases, cases where the punishment allowed for is somewhat draconian. I say "allowed for" because, if the judge is simply _setting aside_ a sentencing law in being lenient, then his action is itself lawless which is problematic in itself.

I think you should also include "unreasonable cases" in that list as well. For example, in DC not too long ago, a man could face felony charges for using a firearm in self-defense. This is ironic since DC, being a creature entirely of the federal government, has no state sovereignty claim to in any way regulate the 2nd amendment. Suppose a judge finds this behavior, this wholesale violation of the constitution, to be unlawful and simply refuses to hear charges on any DC gun law in his court. Is that not justified?

It's a good question, Mike. In general I prefer for judges to recuse themselves or find another job rather than to remain in their position and use that position to block the application of laws, even when those laws really are immoral or unconstitutional.

We had an interesting knock-down, drag-out on a subject somewhat related to this a long time ago at Zippy Catholic's blog. This was when Crimson Catholic--Jonathan Prejean--was still commenting there. At that time Crimson and I agreed as against Zippy that for a judge to continue to occupy the position of a judge while using that position to undermine or block enforcement of existing laws could be justified only as a kind of deliberate act, almost an act of sabotage, against an entire regime which the judge had concluded was illicit--rather like continuing to be a mechanic for Hitler as an allied spy so that you can have the opportunity cut his brake line. Otherwise, no. The judge's authority comes from the legal system and is given to him by that system, so he either has to use the authority according to the laws or else step aside so that someone else can take his place and do so.

I'm still inclined toward that position.

The judge's authority comes from the legal system and is given to him by that system, so he either has to use the authority according to the laws or else step aside so that someone else can take his place and do so.

The judge's authority actually comes from the Constitution, as the judiciary is a constitutionally-created body. That distinction is important because it means a judge must not undermine the Constitution by usurping Congress' authority. However, the judiciary is not a slave to the whims of Congress.

The judge's authority actually comes from the Constitution, as the judiciary is a constitutionally-created body. That distinction is important because it means a judge must not undermine the Constitution by usurping Congress' authority. However, the judiciary is not a slave to the whims of Congress.

Actually, all proper authority comes from God. The Constitution is a mediative document attempting to apply prudence to governance in the light of the higher laws of a God. I see no problem in a judge choosing to ignore and even subvert a law that is immoral. He took an oath to defend the Constitution, but he took no oath to defend an improper interpretation of its permissions and he made the oath, in any case, to God and defending a human law against the Law of God would make him a blasphemer.

In fact, if he cannot act as the law requires, he need only step aside if the application of the law were binding on him to begin with. No one must defend an unjust law.

I am thinking about this in the context of pro-life legislation. Just because some idiots passed a law allowing a mother to kill her baby does not mean that I have to grant an injunction allowing the hospital to do it. The judge in the Terri Schiavo case had no authority to allow her to be starved, even if human law permitted it.

The Chicken

In fact, if he cannot act as the law requires, he need only step aside if the application of the law were binding on him to begin with. No one must defend an unjust law.

That's what I said. About stepping aside if the law is immoral.

The judge in the Terri Schiavo case had no authority to allow her to be starved, even if human law permitted it.

The judge ordered the killing and was himself a judge of both fact and law in the case. His judgment of fact was lousy and was a result of his bias against her life. There was nothing in the law that required him to order her killed. I've written about this at some length in The Christendom Review, actually.

The judge's authority actually comes from the Constitution, as the judiciary is a constitutionally-created body. That distinction is important because it means a judge must not undermine the Constitution by usurping Congress' authority. However, the judiciary is not a slave to the whims of Congress.

That's a good point, Mike. Part of the problem with our judiciary is a lack of humility in understanding their role as judging the law as established by Congress. Too often, they cannot get the result they want out of the law as written, so they manufacture some dreamed-up "interpretation" that plays havoc with the law that was actually passed.

That being said, the judges also have the obligation to determine if a given law really does contradict the meaning of the Constitution, because Congress's own capacity to pass law extends only to so far as they have power under the Constitution. Just as the judiciary is a body created by the Constitution, so are the houses of Congress. As an independent arm, the judicial function includes making sure that laws passed by Congress are within the limits established by the Constitution. The current problem with this, though, is that many judges want the Constitution to be a "living document" in the sense that it means whatever they say it means, instead of meaning (as all written law is supposed to mean) exactly what the legislator intended when he made the law. The fact that the "legislator" who wrote the Constitution consisted of the entire body of the people and the states who ratified the Constitution doesn't seem to matter to these judges.

Actually, all proper authority comes from God. The Constitution is a mediative document attempting to apply prudence to governance in the light of the higher laws of a God. I see no problem in a judge choosing to ignore and even subvert a law that is immoral.

Lydia, I agree completely - with qualification: when a law prescribes that the thing to be done is an act which happens to be inherently immoral, then the person(s) whom it imposes that act upon ought to disobey the law. The judge who hears such a case ought to defy the law and uphold the rectitude of the person who defied the law. If the judge is then ousted from his seat, for example, them's the breaks. But he does not need to simple recuse himself from the case and walk away...incidentally letting some other judge hear the case and convict the guy. Such a "law" is no law, and the judge is not required to give it effect. (I would accept that the judge has a prudential decision in this regard: if by defying the law he will not succeed even in this matter before him (because the state will appeal, for example), then he could step away from the case by recusal because by such a recusal he may be able to save his position and fight again on another case or issue.)

When the law permits something that is intrinsically immoral, by erecting no legal sanction against the act, the judge cannot impose his own "law" against the act and punish with criminal penalties an ostensibly legal act.

When the law prescribes a sort of action which is NOT inherently immoral but happens to be wrong in a given case because of the circumstances, that's when it gets complicated for the judge. In the ideal world, and for a judge whose jurisdiction extends to both law and equity, the judge has the authority to say: "the legislator made a valid law about this matter, and you did in fact break the law, but morally and prudentially the law was not geared for this set of circumstances, and if the legislator had been consulted he would have granted an exception. Therefore, I give you a bye on this affair." The first part is a judgment of law, the second part is a judgment of equity. Not all judges have authority to judge equity, they can only try on the law itself. It seems to me that in such a case they are obligated by the structure of the system to judge strictly on the law itself, and then they ought to be able to propose, recommend, bring the matter to the attention of the higher judge who DOES have authority to adjudicate on the equity.

The difficulty for a judge is to be able to separate himself from an inordinate love of his own preferred political wisdom over that of the legislator. If a judge thinks that the legislature erred in passing a given law, he cannot use that opinion to overturn its effect by regularly, normally deciding to make "exceptions" to the law as a matter of "equity": he is supposed to limit the use of such judgments for dealing with truly exceptional matters that the legislature did not have in mind when they wrote the law. He should be able to distinguish the exception on some objective basis from the intention of the legislature. A judge who insists on finding either an "exception" where none exists, or finding a law to be "unconstitutional" because the law prescribes something that offends his political theory, is a judge who is usurping the legislative function. The judge doesn't get to prescribe his political wisdom, he must submit himself to the authority of the legislature to make that prescription. It takes humility to be a good judge.

The state frequently injures justice in its own right through the creation and application of a legal code that often applies penalties without regard for actual damage done to the common good. For example, consider that in some jurisdictions, the state might actually punish a young man more harshly for selling cocaine than murdering a man in cold blood.

Mike, in a good system the penal law gives the judge the authority to give lighter or graver sentences based on the individual facts of the case. This is not a matter of mercy, but simply of justice. While I agree with you that the example of a harsher sentence for dealing cocaine is really strange and almost certainly a bad way to write law, I don't think a judge has the right to overturn such a stupid law, because (probably) neither set of sentences is, in itself, immoral as being inherently unjust. There can be legitimate political circumstances, outside of the scope of the judge's authority, for a legislature to decide that something like cocaine dealing is a greater scourge on society at the moment than murder, even though murder generally is itself a worse evil. (What about the fact, for example, that dealing cocaine and getting a new client addicted means destroying that new addict's soul as well as his body?) As long as the law does not require the judge to impose a sentence that objectively must by its very nature exceed due proportion of the evil of the crime, the judge cannot choose to set aside the legislature's intent.

That's a good point, Mike. Part of the problem with our judiciary is a lack of humility in understanding their role as judging the law as established by Congress. Too often, they cannot get the result they want out of the law as written, so they manufacture some dreamed-up "interpretation" that plays havoc with the law that was actually passed.

It's Congress' failing for not impeaching them in such cases.

However, in the judiciary's defense, Congress often passes laws which are ambiguous, incomplete and/or riddled with unintended consequences. The tax code, for example, is quite literally so convoluted and kludgy that the IRS has at times admitted that they literally "don't yet understand" how to enforce certain regulations.

The only solution is a radical reform of the legislative process which forces Congress to work on one thing at a time per bill.

Mike, I would love to see such a change, but I cannot for the life of me figure out a way of actually writing either a law or a Constitutional amendment that effectively forces Congress to write bills on one issue at a time. Anything that looks like a violation would have to be taken up with the judiciary, and the judiciary normally says "that's their department, not ours."

Something like this, perhaps:

Congress shall pass no bill of appropriation which spans the jurisdiction of more than one agency of the United States. Congress shall be permitted to appropriate all non-agency administrative funds for a department of the United States in an equivalent fashion. All appropriations made for purposes other than the funding of an agency or department of the United States shall be ratified in both houses and sent to the President for confirmation as a single subject item of appropriation. No bill shall modify the legal code, civilian or military, of the United States and the appropriation of funds. No bill that modifies the laws of the United States shall cover more than a single department of the United States and its constituent agencies. Any agency of the United States that is organized outside of the structure of a department of the United States shall be regulated individually.

So: we would need separate bills that accomplish any inter-agency efforts, one for each agency. And, separate bills, one to legally erect a new sub-component of an agency, and then a second one to actually FUND that new entity. And budget compromise bills that work by pushing more money toward X new activity by reducing money spent on Y activity in another department cannot be done as a single bill, so you cannot succeed in generating the votes needed to accomplish the combined change.

I work with pensions some: three different agencies have to coordinate on a lot of the work, under 2 different parts of the US Code, Titles 26 (tax) and 29 (labor). The standard approach is to have a single bill have coordinating or "conforming" language for each title of the Code, so that you cannot end up with conflicting requirements. Once you separate them into distinct bills, who knows whether one or the other will be passed in coordination?