| | I thought I would get some discussion of Dudley and Stephens going, because I feel a little conflicted about certain issues that the case and Simpson piece bring up and would like to hear what other people think. The major issue for me is that I feel torn between feeling that the act of killing Parker is absolutely not morally justifiable (and let’s assume that the men did not draw straws) and also feeling that I would have done the same thing, and thinking that the defendants should absolutely not be punished for the death. Are these two feelings irreconcilable? I’m not really sure. I suppose (and this is suggested in Simpson’s writing) that there could be some middle ground in which they are found guilty, and thus stamped with moral disapproval (and rightly so), but are not punished. If they are punished, what exactly would be the purpose? They behaved in a not absolutely morally justifiable way, I don’t think, because they (“they” being Dudley and Stephens, who it seems by most accounts were the two who were party to the murder, even though only Dudley did the physical act) chose to end an innocent person’s life for the sake of their own (which, I believe, as a general proposition, is immoral behavior). They did not draw straws and the victim did not consent to giving up his life for theirs. I do not think that there is any way that this behavior can be deemed morally justifiable. That said, I also feel that I can’t blame them for what they did either- they killed someone who was likely going to die anyway, to save three people. I can’t say that I wouldn’t have done the same, and I find it to be, if not innocent, at least excusable and sympathetic. I remember reading this case in the beginning of crim, and the court, in convicting the defendants, noted that there are circumstances in which a crime is committed in which we cannot say that we would not have acted the same way, but conviction was necessary anyway. This strikes me as illogical and hypocritical on the one hand (how can we hold someone culpable when he behaved “reasonably” and in a way we ourselves would have acted?) but it also makes sense on the other (regardless of if we would have acted similarly wrongly, their actions are still, in a moral sense, wrong). I suppose this makes me wonder if their actions were really wrong at all? I don’t think it’s right to take a life to save your own, so I suppose I’m in the camp that it was a wrongful act- yet an understandable one. The court, in finding Dudley and Stephens guilty, sentenced them to a death (which, luckily, they never met)- but is even sending them to this sentence (without absolute certainty that it would not occur) undue punishment? Are they truly morally reprehensible figures to the extent that they owe some kind of retributive desert? I don’t think so. Are they going to be violent people who need to be locked up (or killed)? Again, I don’t think so. I think the only justification that could support a conviction and punishment is that it upholds some kind of moral underpinning or generally accepted societal/cultural belief in what is right and wrong and somehow legitimizes the law itself. But even if this is so, and if this justifies some kind of judicial stamp of disapproval, how can it justify punishment? While ultimately they weren’t sentenced to death, I think this raises an interesting issue- how can we punish people for doing things when we believe that we would have acted the same way, or forgive the wrongdoing as excusable?
This is really a rough start to get the ball rolling- I'd like to hear what others think, and think some discussion around this topic might help me (and maybe others) figure out my own thoughts or organize/clarify the issues and help me think about some important criminal law questions. | | | In mapping out just how this case turned out the way it did, consider the different treatment of retroactive prosecution under English and American law. Under the doctrine of parliamentary sovereignty, English government is unencumbered from making retroactive law, while the U.S. Constitution proscribes retroactive law through the ex post facto clause. In Dudley, the English government seems to have leveraged an authoritative freedom to criminalize what was, at the time committed, accepted practice among sailors on the high seas. But, I think that under an ex post facto provision, the pointed conflict between English common law and a common maritime practice raises vagueness challenges to the charge of murder. If the case had been tried in the U.S. under similar circumstances, options for the government might have been limited to judicial decree (maybe through a civil claim brought by the decedent's family) or legislative response. I imagine Dudley and Stephens would have been insulated from a murder charge through the Art. I §9 check on retroactive criminality. | |
>
> | Imagination has many
uses, but substituting for legal research is not one of them. You
should have checked. You would have discovered that your intuition
was entirely wrong, for many reasons, not the least of which is the
absence of any legislative action. | | | The upshot: could the English government achieve the same goal (condemnation of cannibalism) through alternate legal outcomes? Or was criminal conviction necessary or even the best way to implement the force and effect of a new and unfamiliar law? | |
<
< | There seems to be an "it can happen to you too" message behind criminal convictions that resonate with the populace more than statute or decree. Once a crime has been personified by a well-known defendant (think of what Michael Milken did to reinforce the criminality of tax evasion or Dennis Kozlowski to corporate malfeasance), the reprehensibility of the act quickly lodges into the collective consciousness of the nation. That said, even if we assume efficacy and longevity to judicial precedent, the retroactive nature of the charge and the incalculable burden to the defendants represent due process violations too great for a government of the people to undertake as cavalierly as the Dudley court did. | >
> | There seems to be an "it can happen to you too" message behind criminal convictions that resonate with the populace more than statute or decree. Once a crime has been personified by a well-known defendant (think of what Michael Milken did to reinforce the criminality of tax evasion
Odd, that, because
Michael Milkin wasn't charged with tax evasion. The government
charged 98 counts descending from a RICO conspiracy predicated on
securities fraud offenses committed through insider trading
activities, and he pled guilty to six felony securities violations.
No tax charges were ever filed, let alone litigated to judgment. Two
lessons follow from this. The first one—that you should check
what you say because you have a penchant for unprofessional
inaccuracy—you should have learned by now. The second is that
if "it can happen to you" is supposed to represent a vernacular
expression of general deterrence, there is every reason to believe
that it fails, because even a more or less educated person with some
knowledge of legal machinery is likely to have no idea whatever which
supposedly deterred conduct resulted in even the most notorious of
criminal convictions.
or Dennis Kozlowski to corporate malfeasance), the reprehensibility of the act quickly lodges into the collective consciousness of the nation. That said, even if we assume efficacy and longevity to judicial precedent, the retroactive nature of the charge and the incalculable burden to the defendants represent due process violations too great for a government of the people to undertake as cavalierly as the Dudley court did.
As there is no
retroactivity problem under anybody's actual legal principles
(outside, of course, the infinitely flexible domain of your
imagination), and there isn't any scrupulousness anywhere against
burdening a man who admits killing with the trouble of being tried,
this statement amounts to the opposite of a successful conclusion.
| | | -- MichaelDuignan - 30 Mar 2010 |
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