criminal law – Literature and Law Spring 2020

Justice Served Vs Justice Due

While watching Just Mercy, I found issue with the continuous defense of historical justice in contrast to the justice that was actually due. This movie takes place in the same town of Monroeville, Alabama that the town of Maycomb in To Kill a Mockingbird is based on. In this true story by Bryan Stevenson, this same town that had the unlawful case against Tom Robinson had, not 50 years later, an almost identical case made against Walter McMillian. The issue of justice served and justice due comes when the District Attorney in this movie, Tommy Chapman, states that he knows that Walter is guilty because he was convicted by a jury. The defense of this “justice” is what sets both Tom and Walter into the same boat. They are both going to be convicted just because the jury believes they did it. There is no need for evidence, proof, or legit testimony. All that is needed is a jury that believes they have the right man.

Justice due is what should have happened. It is a battle in a courtroom where things are fair– where the convicted are not “guilty from the moment you born” as Walter McMillian puts it. Justice due would be a town learning from their racist past and not allowing it to repeat again. In this movie it can almost seem like the town feels like they have already found justice and dont need to go looking for more. They have already had their landmark case where the community was wrong and a man was wrongfully convicted, and rather than admit their relapse and reopen the case they defend the justice already served. Yet, there was no such thing as justice when there had yet to have been a man released from death row in the state of Alabama, when one in nine death row cases have been proven innocent and released, and when the word of one white felon outweighed the voices of two dozen law-abiding black witnesses. Justice was not served by the first jury that convicted Walter and a retrial is the only way any justice can be given.

Human life is one of the most valuable things known to us. So why then is our justice system so ready to sentence someone to death rather than defend against a retrial? Even the slimmest chance that someone can be saved from wrongful execution is more valuable than any social, historical, or legal reasoning in opposition of a retrial.

Eichmann Was You But Normal-er

Eichmann in Jerusalem seemed most notable to me for it’s subtitle, A Report on the Banality of Evil. We discussed this in class but I noticed a few passages in the book went undiscussed and so I would like to bring them up here. What was brought up in class was the idea that Banality, as a word, is referring to unoriginality. Some comments being made referenced the fact that while what the Nazi’s did was clearly atrocious and horrible, it is regrettably far from unique in its goals, though it is unprecedented in scope. Certainly this is true and ought to be talked about and dealt with, but something else that was brought up and I think deserves a little more of our time is that this book doesn’t really deal much with the crimes of the Nazi’s as a whole, or as in idea, and deals much more with one man, Eichmann. He is the one who is so unremarkable, so unoriginal.

Eichmann wasn’t crazy. That’s the problem. He likely wasn’t even unusually malicious. Chapter 2 of the book spends a great deal of time painting a picture of the life of this dull-witted unremarkable desk jockey. He was a mostly unsuccessful man his whole life, who only fell into position because of his family connections, and fell into the National Socialist Party (Nazi’s) more or less the same way. He doesn’t seem to have sought it out, it just sort of happened to him and he went with it.

Pages 25 and 26 were, for me, the most interesting part of the entire reading. Arendt says

As for base motives, (Eichmann) was quite sure that he was not what he called a…dirty bastard in the depths of his heart.

Eichmann believes, and in fact believes correctly in some sense, that he committed no criminal act, and did the things he did out of no base motives. And what’s more, he isn’t crazy. Arendt goes on on the same pages to say that,

Half a dozen psychiatrists had certified him as “normal”…his whole psychological outlook, his attitude towards his wife and children, mother and father, brothers, sisters, and friends, was “not only normal, but most desirable.”

Arendt touches on the significance of this in her epilogue. She states that it is an almost axiomatic principle of modern legal systems that, for a crime to be committed (and therefore punished), there must be on some level the intent to commit a crime. She says on page 277

Where this intent is absent, where, for whatever reasons, even reasons of moral insanity, the ability to distinguish between right and wrong is impaired, we feel no crime has been committed.

Eichmann had no such intent. No such conceptualization that he was doing anything either criminal or morally reprehensible. And as established, he was quite sane.

The significance of this cannot be overstated. The worst crimes in history were committed by men and women who truly did not believe they were doing anything wrong. Who did so with no malice. How can we hold guilty before the law someone who did not have the desire to commit a crime or the knowledge that they were doing so because in fact, under their laws, they were not?

And yet we must.

So a completely normal man, an unoriginal, banal man, not at all unlike you or I, perpetrated in, supported, and carried out the Holocaust. And he did so without any base feelings of rage or hate or malice, and technically committed no crime to do so. That’s hard to deal with.

What the Law Really Is

The Furies deals with the complexity of the law in the context of wondering if the law is meant to truly be steadfast, or to be flexible. In theory, the law is an equalizer. Every citizen approaches the law on the same level, and the law treats each person the same. It is a black-and-white part of society that is neutral and firm. This is the role that the Furies are trying to fulfill. When they approach Orestes and Apollo, accusing them of the murders, they say that “blood must pay for blood”. This is a familiar concept and purpose of the law- that an “eye for an eye”- but the play shows that this concept is more of an ideal than a practical application of the law. Orestes is an example of how the law is a dynamic work- how it cannot be rigid like the Furies wish it to be. Orestes is charged with the murder of his mother and her lover. It’s complex because his mother killed his father who killed his sister as a sacrifice to the gods in order to be back in their favor. The play doesn’t ask the question if murder is justified, but it does ask if the law is not supposed to account for the circumstances of each situation- and here, each murder presents a new set of ambiguous circumstances. The play answers the question with Orestes being given a trial which ends in a tie, and is acquitted in the murder. The answer itself is still unclear because of the tie, and I see it as a balance between the two answers. The Furies stand for the what the law strives to be in theory, because in the most basic sense, murder is not justified. However, Orestes and Apollo show through their situation that taking that stance is not always easy. The law is imperfect and cannot be truly steadfast and equalizing. I have been thinking about this concept because I know that it is still relevant today. When speaking to a former attorney at work, she told me that it isn’t always as easy as getting the most possible jail time for a crime and that prosecutors have to take into account the circumstances of the situation. I found it incredibly interesting that an idea presented in the play still applies. I think it is a dynamic of the law that people often criticize or just ignore, but it is a part of it that is worth thinking about and understanding.