Does the Mandatory in the Death Penalty Smell like a Rat?

August 15, 2010

(To Increase the font size on this essay – hold down the Ctrl key and keep pressing +) This is a continuation of the interview series between Harphoon of the Brotherhood and Missy Dotty.

Q: Missy Dotty could you please explain to us why so many people find the term “mandatory death penalty,” when applied to drug offences so contentious?

A: I think many people consider it a moral aberration. And to be perfectly fair to them, they have a compelling case.

As the term mandatory when applied to offences these days is something considered inane – and the direct opposite of what most people consider to be progressive law – where it could be said the main objective of the law is always to act as a shield and never a sword i.e the law should never be quick to punish the offender or even make him a cause célèbre of deterrence. Instead it should try to rehabilitate the deviant and reintegrate him back into society.

Q: Allow me to cut in Dotty, could you please explain this modern role of the law that is so appealing to progressives. The part where you mentioned, the law is a sheild, not a sword – how might this work?

A: The means to past from the realm of theory to reality is to provision sufficient flexibility for judges to determine the best sentences on a case by case basis, that’s why we have judges and lawyers adjudicating over cases and not computers and clerks making final decisions.

However when the term mandatory features in a context of any offence – what that means is instead of the law progressing; it run the risk of regressing. As not only is discretion severely curtailed by the doctrine of strict liability.

Since the idea of strict liability makes a person legally responsible for his or her acts and omissions regardless of degree of culpability – it is also seen to water down the requirement of mens rea.

Hence there is no way for the judge or for that matter anyone to modulate the outcome of the sentencing due to extenuating circumstances, intervening causes etc – so what invariably happens is the final process of sentencing becomes no better than a clerk filling up a checklist to derive at a binary one or zero, zero or one decision.

Now Harphy Boy that idea of strict liability is fine, if you happen to be talking about someone like Baby Darkness who we all know has criminal tendencies and will park all over the place including your head if you give him half the chance – he deserves to have the book thrown at him. But can the same be said to apply to something as serious as a drug offence where the penalty is death?

Q: If laws had to be mandatory, then it makes sense Missy Dotty to apply them as you mentioned to traffic violations. And not to cases where the penalties involves doling out death – tell me are you saying that when it comes to mandatory death penalty type offences the perception that justice is not seen to be done is more apparent?

A: Yes Harphy Boy, you could say that –as one of the common indictments that has been leveled on the mandatory death penalty is the common perception that the entire process of adjudication has been hijacked (real or imagine) by legislators who typically use the courts as a platform to proscribe their firm stand on a particular offence.

I am not saying that is actually the case. But what cannot be denied is this is often seen to be the case.

Naturally this begs the question – is this the right way to dispense justice? And on whose behalf is the law serving? Who is the beneficiary? Is it the state or the individual? If it is the latter then what is the cost? And if it is the former does the means justify the moral cost? As you can see this is really a hall of mirrors that doesn’t seem to sit very well with ethics and jurisprudential tenets.

That could be one reason why the imperative of justice never ever seems to be fully served when it comes to mandatory type sentences as the accused are often seen to be just victims our laws. Hence the mood of J’accuse.

Q: J’accuse…Emile Zola?

A: Mais Qui…you all speak French right? la verite est en marche et rien ne l’arreter….certainment? Do you see how it is Harphy boy?

Q: I just wish to know Missy Dotty as I am not a lawyer but a layman. Where does this idea of deterrence come from? Is it premised on firm ground? Or is based on an old idea? I have tried to look for information all over the place to justify the idea of the mandatory death penalty and I have really failed. So what is ultimately the justification for it?

A: I think that is a very good question Harphy Boy. As ultimately the question of whether the Mandatory death penalty is justified or not cannot turn solely on endless moral and ethical canting.  

So the real test of whether an action is justified has to turn to the question of where does it derive its legitimacy from? From an academic standpoint where does the pedigree of it’s underpinnings stem from? 

What needs to be emphasized Harphy Boy is this has nothing whatsoever to do with the law.

The whole idea of deterrent sentencing and it’s efficacy has more to do with criminology than the law actually Harphy Boy – and I think it’s fair to say – in the very beginning, it’s hard if not impossible to draw out any real underpinnings concerning deterrent sentencing other that the loose idea – it works.

This doesn’t for one moment mean the idea of deterrent sentences doesn’t come with it’s own body of knowledge – only much of it gathered paced some 30 years ago and more or less formed a covalent bond with the whole idea that we now call zero tolerance.

So Harphy boy when we talk about Mandatory sentencing – it’s really the idea of zero tolerance that we are talking about.

The idea was first proposed in a article entitled broken windows first introduced by social scientists J. Wilson and G. Kelling, in an article which appeared in the March 1982 edition of The Atlantic Monthly.

The key quotes there are as follows:

“Consider a building with a few broken windows. If the windows are not repaired, the tendency is for vandals to break a few more windows. Eventually, they may even break into the building, and if it’s unoccupied, perhaps become squatters or light fires inside. Or consider a sidewalk. Some litter accumulates. Soon, more litter accumulates. Eventually, people even start leaving bags of trash from take-out restaurants there or breaking into cars.”

Though the authors discussed the theory in relation to crime and strategies to contain or eliminate crime from urban neighborhoods. As you can see there is clearly a strong logic that supports the idea of coming down hard on criminals – hence for a successful strategy for preventing crime, is to fix the problems when they are small. Repair the broken windows within a short time, say, less than 24 hours, and the tendency is that vandals are much less likely to break more windows or do further damage. As you can see Harphy Boy when we talk about deterrent sentencing these days the same theory holds true.

Q: How much do you think the average netizen knows about the whole idea of Mandatory Death Sentences? And what is the best way to educate them?

A: Harphy Boy I don’t think it is really our role to educate anyone here – I share all this only for the benefit of our little community here and in private forums such as Ekunaba and Phi Beta Kappa. If others elsewhere wish to read it. They are most welcome. And fine by it.

But if you are talking about proactively engaging broader blogosphere then I say, it will always be a challenge – since sites like The Online Citizen has alienated almost all the educated people who can sensibly speak about this subject in any intelligent way. In Ekunaba and PBK if I spend 15 or 30 minutes writing a comment about a point of law – no one is going to delete my post for no good reason – but the same cannot be said about those other sites.

They certainly have hits. But of what use is that if all it amounts too is just a cascade of noise? Do you see my point? They seek freedom of choice. But can there really be real freedom to choose what is right and wrong in a state of abject ignorance?

I hate to say this, but Baby Bambi Darkness is right – he once told me, once the head is cut, all that the body can do is walk around aimlessly.

What many people do not realize is this is precisely what we are witnessing right now with the Vui Kong case in blogosphere. There is activity. Energy even. But all these things can never amount to very much without brain power.

Q: I am just curious Missy Dotty, what happened to all the windows in the buildings when they weren’t fixed within less than the 24 hour period?

A: Didn’t you know Harphy Boy? Every single one of them was broken…now tell me Harphy Boy. This new toy that Darkness has found recently. Do you have any idea where he got it from? You know the one where he films himself along with other strangers? You know what we all think he looks like don’t you? Yes, a two bit used car salesman – it’s time for us to speak directly to the Liaison officer of the brotherhood – I have been speaking to Montburan and the Lady of the Lake, we don’t like what we have been seeing lately Harphy Boy!

Q: Dotty, perhaps, we should take this matter off line.  I am sure it’s just a passing phase Dotty. Darkness is fascinated by it. And so are most of us> But I am sure it will past Dotty.

A: Yes, I am sure it will Harphy Boy.

The Brotherhood Press 2010


“Yes, what they tell you is true, I am Darkness, the invader of your lands. I cannot undo what has been done in your planet. Many wrongs have been done in the name of the brotherhood. Those things lie strewn in the past.  

What we can do is build a new future. And we have the power to do this right now! Not tomorrow or the day after. 

You are my prisoner. I realize you are not happy. But I will visit you everyday here in this garden that I have created specially for you. And we will play a bit of chess and talk about life.

I know you hate me. I even know you want to kill me. Take it! It’s a milk knife. Only this can kill me, not that fork you have undernearth your skirt. All I ask in return is you give me one month. And if after that time, you still want to kill me. Then neither I nor anyone shall stop you. I give you my solemn word…my name is Darkness. Darkness of the brotherhood.

Now please sit down Princess Arullian and can we just play chess.”  

Arullian Annexation in the Planet D’ni – The Age of Reason – The Book of Ages – The Brotherhood Press 2010

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