In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

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Some thoughts on Andrea Yates as she awaits her sentencing:

I do not mind saying that I am gratified that the jury came a guilty verdict easily in this case. (I also don't mind saying that I hope they do not apply the death penalty; I'm not a huge fan of the death penalty to begin with.) The case has afforded some opportunity to think about the nature and purpose of criminal justice. And, this being a blog, I thought I'd share my own thoughts on the subject.

There are, broadly speaking, four justifications for having a criminal justice system in the first place: (1) to deter criminal activity; (2) to protect the citizenry from specific individuals known to be dangerous; (3) to rehabilitate the criminal; (4) to effect retribution. All but the last could be satisfied in Andrea Yates' case without a guilty verdict. But the last is the only element strictly necessary to justify a criminal-justice system as such.

Andrea Yates could not be deterred. At the time of her crime, she was in a psychotic state. If deterrence is to be our standard, then Andrea Yates could well get off scott-free, and the law should focus on her husband, her physician, and on anyone else who should have acted to prevent her from becoming a murderess.

The citizenry could be protected from Andrea Yates by various means short of incarceration, much less execution. For example, she could be sterilized. This may sound cruel, but imposes a lot less suffering than locking her up for the rest of her life.

Andrea Yates will not be rehabilitated by prison. Arguably, since her condition is caused by pregnancy, she could be rehabilitated simply by sterilization and by psychotherapy. If this is insufficient, she could be institutionalized for a time, or put under some kind of outpatient psychiatric care.

If these were the only things we cared about, then we would not need to proclaim Andrea Yates guilty. Indeed, one would like to think that the necessary authorities would have intervened - even against her will - to impose some sanction before she killed her children, on the basis not of her guilt but of the potential danger she represented.

But these are not the only things we care about. All three of the goals cited - deterrence, direct protection, rehabilitation - are future-looking; they are utilitarian goals. But justice is not just a funny word for doing the most good for the greatest number; it is not fundamentally a utilitarian concept. At the heart of our notion - any notion - of criminal justice is the idea that actions require a response in and of themselves, and not because such a response would directly promote some other good. This is the notion of retribution. And to satisfy this notion, which I believe is at the heart of the idea of criminal justice, we need to know whether Andrea Yates is guilty.

There are two arguments about where the idea of retribution comes from, and both of them are true. On the one hand, it is argued that retribution is a substitute for vengeance. In the absence of a state, people will seek private justice, i.e. they will exact vengeance. If you kill my brother, I will kill you, or your brother, or both of you, to avenge the honor of my dead brother. For me to forgo this option of private vengeance, the state must promise me something superior: just retribution. The state does not promise to exact vengeance for me; indeed it requires me to give up my private sense of honor and accept the state's judgement. But it does promise that it will, in general, impose penalties that satisfy my sense of the gravity of the offense.

On the other hand, it is argued that retribution is the state acting as an agent or substitute for the divinity. When Cain kills Abel, Abel's blood cries out from the earth. The crime itself demands punishment, irrespective of whether there is someone calling for revenge. God underwrites a moral order for all human activity, and God punishes those who deviate from that order. When the state undertakes to punish malefactors, it is either acting in God's name or in imitation of God's authority in underwriting a moral order. In a non-theocratic society such as ours, the emphasis must be on the latter rather than the former.

As I say, both of these ideas of where retribution comes from are true, I believe, both theoretically and historically. And because it is the only basis for criminal justice that is backward-looking, it is one indispensable element in criminal justice. Because a muder - a deliberate, unjustified killing - has been committed, to uphold the moral order Andrea Yates must be tried for murder. And if she is guilty - meaning, if she did it knowingly - then she must be convicted, as she was.

It may be objected that Andrea Yates is not-guilty by reason of insanity. The legal definition of insanity is the inability to tell that one's actions are wrong. This is a peculiar standard, and it is possible that it could never be met. That does not bother me. For our theory of insanity, as a medical matter, is a slippery one. At some point, one can argue, anyone who commits certain crimes suffers from a medical condition. To take an obvious example, sex-offenders are generally acknowledged to be deeply sick. Does that mean they do not deserve to be punished? In his summation of Dan White's defense, his attorney said, apropos of murdering Mayor George Moscone and Councilman Harvey Milk (and I paraphrase, not having the quote handy), people like Dan White just don't do things like that. And that is the danger of the insanity defense: what it amounts to is an excuse to acquit people who, for whatever reason - race, gender, community stature; whatever - we do not want to convict, even though we know they have committed the crime.

Andrea Yates, we are told, was mad at the time she committed her murders. Well, how did she become mad? We are told that she suffers from post-partum psychosis. But we are also told that she had so suffered before, but was nonetheless pressured by her husband into having more children. Granted that he should be faulted for this, granted that her physician should be faulted as well, and either or both of these might legitimately come under legal sanction. But it is false to say that Andrea Yates had no power in her situation, that she had no choice but to have another child, no choice but to let herself go mad, and then no choice but to murder all her children. That she did not see a way out is precisely her fault, for which she will be held guilty, and to excuse her on these grounds is to say that those who suffer and are afraid have no moral agency. And the reason why we are tempted to say this of Andrea Yates is that she is a woman and a mother, and we do not want such a person to be guilty.

Where insanity can legitimately be taken into account is in the sentencing phase. Once guilt is pronounced, some part of justice has been done. Now the question is what is a just punishment. All four of the aspects of criminal justice - deterrence, direct protection, rehabilitation and retribution - must be taken into account. As noted, deterrence should not be a factor in the Yates trial or any trial of the medically insane. The mad cannot be deterred. Direct protection should absolutely be a factor, but as noted this could be satisfied by means other than incarceration. Retribution requires that she be punished severely. But rehabilitation requires that she comprehend her punishment, that it have some bearing on bringing her to repentance. This is another way in which criminal justice supplants both private justice - in primitive societies, an important function of freelance "judges" is to reconcile the parties and so heal the social organism - and imitates divine justice - God's ultimate desire is for reconciliation between Himself and all sinners, by means of repentance.

For this reason, it makes the most sense to talk about sentencing Andrea Yates to a psychiatric prison, at least initially. I have no doubt that, if she is ever cured of her condition, she will then have the lamentable task of repentance to face. Some part of her now takes comfort from the notion that she had no choice but to do what she did. That comfort, should she achieve sanity, will be stripped from her, and she will be naked before the horror that she committed.

As an aside, the argument against executing her is, from my perspective, very simple. First, as a general rule, if the criminal law is an imitation of divine retribution, then capital punishment may be a bridge too far in such imitation. Some punishments should be reserved for the divine. This is an argument against the death penalty in general, one that I have much sympathy for. But more specifically, it is somewhat absurd to impose the death penalty in situations where (a) the guilty party poses no further risk to society, and (b) where the guilty party arguably cannot comprehend the punishment imposed. For part of the reason that those who support the death penalty consider it just is precisely because it tells the guilty just how evil their actions were, and forces them to confront this, and this is only possible if the executed are in their right minds. (Recall, in this context, the convict in Measure for Measure who escapes conviction because he is too wild to contemplate his own demise; the state will not kill him until he has been reconciled to God through the offices of the Church.) The best cases for the death penalty are those where the individual involved poses too great a threat to be allowed to live, even in prison. This is not the case with Andrea Yates.
posted by Noah at 2:11 PM