Philosophy On The Mesa

Should we allow Duncan a moment to express himself? Ordinarily I wouldn’t, but since we have previously talked about evil, it is interesting to see Duncan use the term about himself. In a letter to his mother he speculates about the concept of evil, and evil in him. So while others may have qualms about using the e-word about Duncan, he doesn’t hesitate using it about himself—albeit with qualifications:

There is a huge resevior [sic] of hatred – evil – that drives me to hurt people, even those I love.… I am driven by my hatred for our society  (”the system”) but at the same time tortured by my own compassion. … God has shown me the face of evil, he has also allowed me to see that evil is an illusion that is given life via our ignorance and fear, evil is real only because we make it real, if I could somehow teach people this we could develop many new and effective ways to fight evil which is hatred that manifests itself in any intelligent system… Our society is permiated [sic] with these evil “entities” (if you will)…Evil can live in a person and in a society as well. … I have been inflicted by an evil ‘demon’ that is nurtured by our so-called criminal justice system… I am still fighting my demons and asking God to guide me as he can.

Is there true recognition of moral failure here? No, of course not. He blames “the system,” he blames people’s ignorance, he seems to blame God for not stopping him, and he denounces “evil” as a social construct at the same time as he recognizes his “demons.” This is a narcissistic mind, and at every step of the way he twists his analysis into one of finger pointing. What it does show is that according to Kant’s definition of evil—persisting in doing self-serving acts with the full knowledge of them being morally unacceptable—fits Duncan perfectly.

What is it that is so morally revolting about Joseph Duncan? Of course the man has violated every rule of ethics and decency in every book, so from the knee-jerk visceral reaction to the cool, rational side of judgment, Duncan is a wrongdoer. But I am reminded of a famous analysis by American philosopher Richard Taylor who presents three stories of moral callousness: a young boy puts a pin through a bug and watches it squirm; kids pour gasoline over a cat and set fire to it; and Nazi soldiers bash the head of an infant in, and kill an old defenseless man. Taylor’s point is that if we line up all the familiar philosophical arguments against such behavior, what truly hits home isn’t that such actions have bad consequences, or they go against a universal moral rule, or fail to meet the standard of the Golden Mean, etc., but that they are done without a shred of compassion. Taylor argued, almost all by himself in the philosophical climate of the late 20^th century (now more people are beginning to see things his way) that the true moral quality is compassion, not a rationality-based response. In the case of Duncan we can watch Taylor’s theory come to life: What is so immensely troubling about the story of Duncan’s killings (as is the case with most serial killers and rapists) is the lack of just ordinary human compassion (so much for his notion that he is tortured by his own compassion). His victims were bugs to him, and he liked to watch them squirm. In court it came out that he showed Shasta videotape of torturing her brother Dylan before shooting the boy in front of her, and he had the two kids write letters home to their dad, assuring him they’d be home soon, in-between the torture sessions, and prior to killing Dylan.  But as much as I have taken a shine to Taylor’s emotionalism, I still like to find a satisfying philosophical reason-based foundation for my revulsion, and I think I have to turn to Kant, again. What is so dreadful about Duncan? There are a lot of criminals who don’t have compassion for their victims, but Duncan adds an element to this callousness: He uses others merely as a means to an end, in a highly manipulative and organized manner. This is what he has done throughout all his life of crime—reduced others to simple tools for his own pleasure and needs, thinking and planning his next moves. And now that he apparently wants to die, his manipulative behavior continues: As Shasta had been nothing but an instrument for Duncan’s needs (maybe less for sex than for the feeling of power), I suspect he had plans of making her the tool of his dramatic exit, himself cross-examining the star witness against him, staging his own death sentence as a result of the confrontation. Who did he hope would play him in the movie, I wonder? This, fortunately, was prevented—her testimony was heard on tape, not live, in court yesterday.

I find that Kant and Taylor are not mutually exclusive; one theory is rationality-based, and evaluates the moral failings of a self-centered deliberation process; the other is based on emotions, and spotlights the lack of fellow-feeling in criminal acts. We need both aspects—the expectation of a rational “Golden Rule” understanding, as well as of a fundamental human empathy—to understand the abyss of wrongness/evil that Duncan presents to us. And later, when the jurors reach a decision about the penalty, we may be able to talk about this dual approach as two sides of a judgment: reason-based punishment combined with whatever measure of human empathy that may seem appropriate.

Good news: a deal has been worked out so that Shasta Groene will not be cross-examined by Joseph Duncan after all. Instead her previous taped interviews  will be admissible. It is also becoming clear that Duncan’s motive for “defending” himself is suicide-by-court: He has not planned to introduce any mitigating evidence. The hearing is now underway, and you can follow along here: a link to ongoing online courtroom reports.

If you go back to April 30, 2008, you’ll find my post on the serial child-killer Joseph Duncan and his wish to represent himself in his federal sentence hearing. I have an update for you, but I’ll forego a repetition of who he is and what he has done—the April 30 post was fairly specific. Suffice it to say that he has, faced with overwhelming evidence and his own statements, confessed to the 2005 killings of 9-year old Dylan and his older brother, as well as their mother and her fiancé, and the kidnapping of Dylan and 8-year old Shasta. Shasta was the victim of weeks of sexual abuse by Duncan, and in addition she was forced to watch him murder Dylan. Shasta survived, and her taped testimony against Duncan is on file, but because of legal squabbles it is now inadmissible. Duncan petitioned earlier this year to be his own defense attorney in his federal death penalty hearing, where his sentence will be determined by a jury: Life without the possibility of parole, or death. The court, obviously reluctant to grant him this constitutional right, ordered a new psychiatric evaluation of him.

A short while ago the results were made public: Duncan is legally sane, and can thus proceed with the preparation of his own defense. Voir Dire (the jury selection) which had been underway, will be restarted this week so he can question the jurors himself. And, in addition, it is expected that he will indeed do what everyone feared might be his entire purpose for this charade: call Shasta as a witness. There is now nothing to prevent him from doing this—nothing that will protect Shasta from having to face this man who ruined her life, at his pleasure.

            Legal commentators point to the fact that now his death sentence seems more likely than ever—because the jurors will turn on him in an instant, knowing that the question isn’t a matter of guilt, but of whether there are mitigating circumstances. And a man who chooses to continue the torture of his victim, in public, with the help of the Constitution, hardly seems to deserve leniency. Unless, of course, he intends to use the podium to fall on his sword, have the little girl stand up and point to him, Hollywood-style, and accuse him, upon which he will demand the death penalty for himself. Anything is possible. But either way, this will be Duncan playing the court according to his own fantasy, and the victim of all this will, again, be Shasta.

            So I appreciate having this opportunity to vent—because this is nauseating to me, as a private person. But as a blogging philosopher (which I hope doesn’t make me less of a person) I’d also like to use this infuriating story to launch a further discussion. We’ve already talked about whether Duncan is evil. But there are at least two other subjects that are tied to this story: (1) the nature and definition of sanity, and (2) the question of victims’ rights vs. defendants’ rights. What to most people would qualify as insanity is outrageous and harmful behavior they wouldn’t engage in themselves and find repugnant, but since this is a very subjective issue, the court has a narrower definition. Legally, Duncan is sane because he has an understanding of the consequences of his actions, and of the moral rules of society, and he doesn’t have a severe mental illness. That’s all it takes, folks. It is known as the McNaughton Rule, with modern modifications. When the hearing gets underway this fall, I hope to give you another update, and perhaps we can get into the rights question at that time.

Earlier in the week 14-year old Heather D’Aoust, Scripps Ranch (north of San Diego), grabbed a claw hammer, attacked her mother, and succeeding in bludgeoning her so severely that she died the next day. If you go back a few days to a previous article, you’ll find that neighbors described the mother as devoted to her daughter, and that the daughter was a shy girl. Her father argued in court Thursday that his daughter is sick and needs help. However, the court decided to try her as an adult, with the possible sentence of 30 years in prison. The legal part of this story is a web of rules about charging juveniles as adults, and about criminal adults who are deemed to be mentally incompetent, but apparently there is some doubt about what might happen to a juvenile charged as an adult who is found to be mentally incompetent. In the article (link above) we hear from her father and her lawyer why she should be considered a child with a mental issue, but we hear very little about why the court made their decision, other than it was “closely examined,” and that 48 juveniles have been charged as adults by the court since 2001. The greater picture is that we have seen an increase over the last 15-20 years in the tendency to charge older children who commit serious crimes as adults, under the assumption that at that age they know “right from wrong,” and they should be held accountable (a deontological argument), and in addition, they are a danger to society (a utilitarian argument). Coincidentally, I read in a European newspaper that one of the large political parties is proposing a lowering of the age where kids can be charged as adults to 12-14, so as not to give young violent gang members a free pass. But I doubt that they intend to cast the net so wide that it covers family disputes with tragic endings.

So there really are two issues here: The general tendency of charging juveniles as adults, and Heather’s specific situation. Throw into the mix that some people suspect there is a political motive (“tough on crime”) behind the court’s decision. I’d hurry to say that what we, as readers, can glean from this can only be generalities, since we don’t know everything the court knows about Heather and the family dynamics (and whatever is irrelevant to the court is none of our business, anyway), and we may not know more until the preliminary hearing, supposedly in September.

Be that as it may, I’m interested in the principles involved: Should a juvenile be considered an adult by the sheer force of principle, due to the severity of her crime? Or should it be her underlying mindset that determines her court status? Her action shows a clear intent to harm—but is it the intent of a child, or an adult? Which leads to the general question what purpose punishment is supposed to serve; Heather’s father and her lawyer seem to think the main purpose is to rehabilitate her, but most people these days view punishment as a matter of (1) deterrence, (2) protection of the public, or (3) a simple matter of retribution. On the personal level, this is a tragic family situation. On the social level, it looks as if  it may become a case study that allows us to examine some of our basic assumptions about justice.

A 13-year old girl thinks she is having an online relationship with an attractive boy, Josh, on MySpace; after several weeks he breaks off the relationship, suggesting that the world would be better off without her. Within an hour she has hanged herself in the closet. This is, of course, a tragedy. We all remember how vulnerable we were at 13, and some young souls are just more fragile than others. It is a rare case when the law steps in and accuses the person who ended the relationship with wrongdoing, but this is what has happened in the case of Megan Meier in Missouri, now getting national media attention. Because there are some twists to the story: For one thing, there is no “Josh”; that was a false identity created by an adult neighbor, Lori Drew, her daughter who used to be a friend of Megan’s, and an 18-tear old computer-savvy woman, reportedly so that they could find out what Megan was saying about the daughter who used to be her friend. And now the mother has been charged, in a Los Angeles court, with the federal crime of “cyber-bullying,” despite the fact that Missouri had decided not to prosecute. Why Los Angeles? Because that’s where MySpace is being managed, and she is charged with the crime of establishing a fraudulent identity on MySpace, used to cause emotional distress. Drew is looking at a maximum of 20 years behind bars, and now Missouri is approving a bill against cyber-harassment. We’ll probably see more legislation along those lines. This is one of those examples where legislation is struggling to catch up with technology, but as for the moral aspect of the story, that is interesting in itself: Do we need to develop a new set of moral standards for the Internet, or can we make do with the ones we already have, for communication as well as for self-protection? Many of you have avatars on a variety of websites, and it is generally considered a fun option, or even a safe way to communicate without exposing oneself to cyberstalking, not as a means of cyberstalking. It usually doesn’t involve creating a complete fraudulent identity for the purpose of stalking, or harassing, or misleading others for nefarious purposes. Lori Drew knew that she was playing with a vulnerable person’s mind, out of spite. Maybe she thought she was protecting her daughter—but even in the real world, self-defense can’t dramatically exceed the level of perceived threat. Increasingly, cyber communities don’t allow false identities. So what say you: Is it always morally wrong to create false web identities? Does it depend on the intention, or is it somehow wrong in itself?

Our esteemed colleague and my good friend Professor Larry Hinman  from University of San Diego was interviewed in the San Diego U-T yesterday about the arrest of former drug dealer, now Carmel Valley wife-of-executive Marie Walsh. Walsh, then Susan Marie LeFevre,  ran away from a Michigan prison and a 10-20 year sentence for selling heroin in 1974, and vanished into thin air. Now it turns out that for 32 years she’s been living a decent and productive life on the right side of the law. So what does this mean? Should she have to go back and serve the rest of her time, plus the added charges for being a fugitive, or should her obviously rehabilitated 32 years make a difference?

USD’s Hinman said it’s easy for people to feel so much empathy for LeFevre.

“It sounds like she’s led a good life, maybe even an exemplary life since then, and we feel that should count for something,” he said. “And she was young when she committed these crimes . . . and what she did is not the same thing as shooting someone or stabbing someone.

“On some level, we want to believe our judgments are accurate because we can all imagine her as one of our neighbors. And if this is true, what does that say about our judgments about our neighbors? Could we be mistaken about them, too?”

I’ll bet Hinman said a lot more, which SDUT didn’t print—such as how well this case illustrates the fundamental difference between a consequentialist and a deontological world view: If you are a utilitarian/consequentialist, you will of course want her time behind bars minimized, maybe to a few years of probation, or perhaps simply reduced to “time served” (which was one year), because no good consequences will come of dragging her back to prison, away from her family and her community, since she is no threat to anybody, and she has so thoroughly redeemed herself. On the other hand, the deontologists among us will point out that (1) she committed a crime and was sentenced for it, and all the good behavior in the world isn’t going to nullify that, so her punishment should fit her crime; and (2) she has not been rehabilitated inasmuch as she has lied about her past to everybody, which shows fundamental disrespect for other people (treating them as merely a means to an end); and (3) we can’t universalize letting her off the hook—especially since others caught after escaping, who aren’t living in nice neighborhoods with wealthy spouses, will indeed be held accountable.  Not that our opinion will have any great impact—she is headed back to Michigan to serve at least 6 ½ years, maybe with an additional 5 ½ years, according to the SDUT, and nobody is asking us.  But it makes for a good philosophical discussion of justice, redemption and clemency—and it fuels the ongoing discussion about the relevance of rational vs. emotional arguments…