Why do we punish the murder of a member of Congress, or the President, or a police officer (and there are other examples) more harshly than we do the murder of an ordinary person? This seems to be a fundamentally anti-egalitarian way to do things, and yet it is the way that we do them now. What difference should the status of a victim make to the punishment of the offender? The value of every human life is equal to the value of every other human life, isn't it? Why shouldn't it then rub our collective rhubarb that punishment for the intentional taking of a life is not distributed equally?
The most common kind of answer to these questions is consequentialist. We have a greater need to deter the murder of politicians or police officers than we do to deter other murders. Society couldn't function properly (or perhaps even at all) if these kinds of killings occurred without harsh punishment, and we need to drive the point home with a punishment which is harsher than it would otherwise be.
This has never seemed a very compelling answer to me. First, what we are really talking about is not the harsh punishment itself, but the extra quantum of differential harshness imposed for the taking of these lives. As with all arguments from deterrence, I have to think that it is quite difficult to measure whether that extra quantum of punishment serves as any additional deterrent that has not already been generated by the severity of punishment for any other murder. Second, there is something a little question-begging in the consequentialist answer. What is it exactly about these sorts of crimes which hampers our, or "society's," capacity to function properly, and which therefore merits enhanced, and unequal, punishment? What society-preserving quality is really at stake?
I want to suggest a fundamentally non-consequentialist reason to punish the murder of a politician, or a judge, or a police officer, or (more controversially), of a priest, or even of a mother or father, with greater -- and therefore unequal -- severity. Crimes against these kinds of victims are not only individual crimes; they are also crimes against institutions. The consequentialist argument for differential punishment in these kinds of cases, I want to say, depends on the valuation of certain social institutions as intrinsically worthwhile. It is because those institutions are good that we rightly punish more severely those people who not only murder an individual, but in so doing strike a blow against a valued social institution.
This article from Il Corriere Della Sera reports on a speech that the Pope gave to a number of young (under 40...that's young, right?) university professors at El Escorial Monastery near Madrid. In the speech, the Pope spoke against an educational ethic of "utility and pragmatism," saying also (and...perhaps echoing Cardinal Newman) that "the true idea of a university preserves us from a reductive and distorted vision of humanity." Education is not, he continued, "an arid communication of subtance, but instead the formation of young people which you [the professors] must undertake and research ["comprendere e ricercare"]."
In this piece, Where Do Partners Come From?, Professor Theodore Seto traces which law schools do best with respect to producing partners in the National Law Journal's 100 largest law firms. The study has nothing to do with Catholicism, right? Well...if you look at those schools which most grossly outperform their US News ranking (see page 5), with one exception (Miami), they are all Catholic institutions. In order of outperformance: St. John's [tooting horn noise], Villanova, DePaul, Catholic, and Loyola Chicago (and Georgetown, too, seems hugely to outperform its US News position). Explanations? Network effects? Alumni stickiness? Divine intervention in response to the errors of all-too-human US News rankers?
Via Larry Solum, I see that Dan Kahan has posted a draft of the Harvard Law Review Foreword for the fall, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law. Readers here will know that neutrality is a currently favored family of approaches to religious liberty, and Professor Kahan even quotes a tract from the McCreary County case as one of the piece's epigraphs. I say family of approaches because there are all kinds of theories of neutrality, substantive and formal, and I know that there will be new and quite sophisticated theories of neutrality in the offing soon enough. Neutrality of one kind seems to be the position demanded by Employment Division v. Smith; neutrality of another represents the current position of the Court on establishment issues of school funding. Neutrality of yet another kind characterizes the position of the European Court of Human Rights in various cases involving issues of religious liberty (one in which proselytism figures prominently). And neutrality, of course, has its keen critics.
Professor Kahan is critical of neutrality talk. He believes that it is actually counterproductive to the Court's perceived legitimacy (and that perceived legitimacy seems to be a very important concern for Kahan in the piece). He says that neutrality talk exacerbates the sense in which we engage in and perceive others to be engaging in "motivated reasoning" -- "the tendency of people to unconsciously process information -- including logical and empirical arguments, oral advocacy, and even their own sense impressions -- to promote goals or interests extrinsic to the decisionmaking at hand." (6)
I have not read the whole piece yet, but it seems to me that it should be interesting to people who think about the religion clauses. I did read the following statements in the introduction, though:
This is a very interesting and thoughtful piece by Mark Oppenheimer on the great Charles Taylor (h/t Paul H.). Of particular interest to me was the way in which the historians discussed at the end of the piece describe Taylor's uses of history for prescriptively optimistic theoretical motives of his own -- "it is history for argument about modernity, the cause of the modern condition, and its possible cure. It is a history of lament and failure intended to propel readers toward a history of meaning and fulfillment." This particular criticism of the strategic uses of history resonated with me not so much because I agree with the historian cited (I don't know enough to agree or disagree), but because it's something I've been thinking about recently in legal scholarship.
In related news, this forthcoming book by Taylor and Jocelyn Maclure, Secularism and Freedom of Conscience (examining in specific the situation of the Quebecois, which the piece in The Nation talks about as well) looks well worth reading.
I am greatly enjoying the book, Snow, by Orhan Pamuk. He writes beautifully and the descriptions of life in a bleak Turkish outpost are superb, as are the internal meditations of the flawed but admirable protagonist, Ka. At one point, Ka witnesses the murder of a school administrator by a radical for the administrator's decision to bar women from attending school with their headscarves. The transcript of the extended exchange (the administrator had been wearing a tape recorder) between killer and victim is memorable -- beginning very politely but gradually and inexorably becoming absolutely terrifying. My colleague and friend, Mark Movsesian, has a nice review of the book here. I highly recommend the book.
Punishment theory has become a dizzyingly complex and increasingly systematized affair. The name of the game seems to be to continue skimming away and refining, excluding this or that reason to punish as not central, or core, or truly important -- pouring all sorts of energy into discerning what is a sufficient reason and what a necessary reason, and so on. I talk about some of these developments in this paper and I ask whether, if judges, lawyers, and legislators are at least in some small measure the target of these theories (something which might well be contested), what use these efforts could possibly be to them.
But I had a thought yesterday that I wanted to throw out for reaction. We have reached a kind of rough equilibrium in federal sentencing. After the Apprendi/Blakely/Booker cycle, the federal sentencing guidelines are merely advisory, and there is rather deferential appellate review accorded to the decisions of sentencing judges. I take it that part of the aim of the sentencing guidelines was to engage in a very thoroughgoing systematization of the reasons to punish as well as the amount to punish. We're now back to a much looser and less regularized approach, where judicial discretion is far greater and the range of reasons that a sentencing judge might offer for selecting a particular sentence is quite broad and granted significant deference.
We have gotten to this place in federal sentencing for constitutional reasons, because of the Sixth Amendment requirement that fact-finding which results in sentencing consequences either be admitted by the defendant or be proved beyond a reasonable doubt by juries. And yet...those constitutional reasons have resulted in a sentencing approach highly reminiscent of a kind of common law of punishment, in which individual judges are free to call upon many different kinds of highly context-specific reasons to punish. That is, the constitutional framework has led us policy-wise to a comparatively unruly and unsystematic approach to punishment.
So here is my question: is this linkage happenstance or structural? Is it sometimes, or even usually, the case that constitutionalism leads in a non-systematic direction? To put it a slightly different way, is there something about constitutionalism which makes it more probable that the law will admit of multiple and perhaps even clashing justifications for any particular legal and/or policy judgment? Or is the case of the constitutional common law of punishment serendipitous and sui generis?
That's the by-line to this New Yorker piece by James Wood, discussing the book, The Joy of Secularism: 11 Essays For How We Live Nowedited by George Levine (the checkerboard cover evokes for me "The Joy of Cooking"). The book contains essays by people who in various ways address issues of enchantment and disenchantment (see also Steve Smith's excellent book) in the modern age, including pieces by Philip Kitcher and Charles Taylor. The piece by Wood is an interesting read, with much to agree and disagree with.
My friend, Paul Horwitz (Alabama), has an op-ed in today's New York Times on "The Response," an all-day prayer event in Texas promoted by Governor Rick Perry ostensibly to address various current social and political crises. Paul notes that the suit filed by the Freedom From Religion Foundation seeking to enjoin Governor Perry from promoting the event was dismissed, and (at least in the op-ed) he agrees with the dismissal. The suit was dismissed for lack of standing. But Paul is more uncertain-sounding on the merits here.
On that front, I thought I'd raise one little thought stimulated by Paul's excellent piece: it may be that our present Establishment Clause jurisprudence stifles the kind of social engagement that Paul advocates.
I am late to this story but (thanks to the illumination of our incomparable librarian, Arundhati Satkalmi) there is a major controversy in southern India dealing with the discovery of huge sums of money inside a Hindu temple (totaling $22 billion), the product of individual donations to the temple over the course of history. A Reuters story is here, and this story also gives additional information. The government wants the money to serve India's population; many Hindus are agitated by the possibility that the government will simply seize it; and there seems to be some feature of this dispute which involves the property on which this and other Hindu temples are situated, but I am not certain. Does anyone have more information about this dispute?
