Archive October 2011
|The Higher Purpose of Murder
The idea of a criminal as
an outsider is a well-established character in modern crime fiction. Ever since
Dostoyevsky’s Crime and Punishment published in 1866, we’ve been
familiar with the morally superior killer who feels he’s committed no crime.
Raskolnikov, the central character, an ex-student from St. Petersburg murders a
pawnbroker. His purpose is to end the life of a worthless person and use the
money for worthy charitable purposes. The act of using the money to help others
cleanses the murder in his eyes. What makes the novel of modern interest is the
killer’s belief in that his higher purpose and his personal assessment of the
value of another’s life justifies murder.
Raskolnikov’s crime is one
that reveals an attitude about the killer’s view of his right to judge, and his
calculation that his judgement elevates him above others whose lives are not
absolutely secure but conditionally lived according to a moral judgement of
value and worth.
This line of reasoning has
echoes through modern society. An argument can be made, that drone attacks are a
testament to the Raskolnikov’s view of life. Like a pawnbroker, those on the
receiving end are thought to have forfeited the right to live by others making a
moral judgment. A counter argument is the old pawnbroker in Crime and
Punishment wasn’t waging a campaign to contain terrorism or protect the
lives of non-combatants. The purpose of drone attacks is to kill people targeted
as terrorists or those who are leaders or supporters of terrorism. In the case
of drone attacks, a government is carrying out the policy. It isn’t an
individual’s morality but a societal higher purpose that comes into play. War is
collectivized murder and justified as it is sanctioned by the state. But a state
might also sanction the extra-judicial murder of drug dealers, or sending
illegal immigrants to sea without supplies knowing they will likely die. The
line suddenly blurs very quickly once politics and murder are mixed.
The TV series Dexter
features a central character who kills serial killers. Raskolnikov’s game is
upped by making the victims morally repugnant, vile, dangerous predators that
the criminal justice fails to apprehend, put on trial, convict and sentence. Is
Dexter in a higher moral position than Raskolnkov given the difference in the
profile of the victim? In other words, do we judge the wrongfulness of murder
according to the extra-judicial act of killing by a private individual against
the moral worthiness of the victim? This was the dilemma that Dostoyevsky asked
us to face.
Richard Stark (A.K.A.
Donald Westlake) in his Parker series of novels has a professional thief who
kills those who have betrayed him or shown disloyalty. He has no first name.
Stark refers to him only as Parker. The novels are brilliant studies of a
criminal who plans robberies with military precision, assembles a reliable crew,
and inevitably finds something goes sideways along the way.
Parker’s code of criminal
conduct is to demand honor among the crews he puts together for a heist. When a
member tries a double cross, Parker’s morality is clear. That person must die
because he violated Parker’s code. Parker has no sense of remorse or
sentimentality in these circumstances. As crime fiction writers, there comes a
point in writing about a character where the author must make a decision. When
is it justifiable to take another’s life? What are some of the large
implications of Parker’s worldview that betrayal justifies a death sentence? And
are they in the same category as Raskolnkov, Dexter, and Parker?
My sense is that it is
difficult to wean us off the idea that the state doesn’t have an absolute
monopoly on high ground where a decision is made about killing. The current
discontent exhibited by Occupy Wall Street showing a growing feeling government
does not serve the higher purposes of society, but represent an elite segment
who justify repression and killing in a manner oddly similar to Raskolnkov.
Self-help fills such a vacuum. Citizens claim a moral high ground above their
governments. Not only does moral clarity evaporate, people begin to believe they
now are the true carriers of the moral purpose.
Like an expanding stain,
though, such ideas have a tendency to grow outward, cover more ground, until
everyone has their own ‘higher’ purpose and that makes it right for them
to play judge and executioner. We live in world where the Raskolnkovs, Dexters,
and Parkers snuff out lives because it serves a higher purpose. It is a short
step to view higher purposes with the passion of true believers, where action
heroes act like gods. Rather than feeling appalled at such conduct, we find
ourselves satisfied that the Judge Dredd’s of society are removing the
parasites, the worthless, the morally bankrupt, and the dangerous.
When someone put a bullet
into Colonel Gaddafi, an overwhelming number of people around the world cheered.
An evil man. Good riddance, they said. They said a higher purpose was achieved
in avoiding a trial. One that might have dragged on and inflamed tribal hatred.
The point is that in such circumstances, there is always a higher purpose given
for the killing. This is a slippery slope that ends in grief.
Collectively we do have
higher moral purposes. They are written into laws. Not everyone agrees with all
of them (e.g., abortion, gun control, etc). The fabric of society rests on
agreeing that the laws and institutions that administer them. Murder for higher
moral purpose can never be elevated above those laws and institutions. We vest a
criminal justice system with the mission of carrying seeing that these purpose
serve society. The problem is less the moral high ground but who stands on that
high ground. When individuals claim they have the right to murder, that their
murders are morally right, they are taking a page out of Crime and
Punishment. Like Raskolnkovs they have committed no crime but added to the
moral goodness of the world.
In their warped moral
space, the terrorist bomber and the killer of the abortion clinic doctors
converge. They kill for a higher good, and by doing so diminish any notion of
secure, civilized society. We are rarely tested by the good. Our tests comes
when dealing with the most loathsome actors like Gaddafi. The matter of his
death, in the end, showed that for many there was no real line of difference
between him and them.
|THE FINE ART OF SENTENCING
Each society defines what
conduct makes a person a criminal. Therein lies a great power. This power is
projected through an official processing of the criminal who is walked through a
series of decisions, which determines his or her fate. We are still at a
relative early stage in the development of a justice system.
Only a couple of hundred
years Western states sanctioned the use of judicial torture. Torture was both a
means of determining guilt and as well as a means of punishment. In this era,
the distinction between guilt and punished lacked the bright line edge as
officials of the state inflicted upon the accused and guilty alike the wheel to
break their bodies, burnt them at the stake, sawed them in half, and impaled
them. This way of treating those subject to the ‘justice system’ wasn’t carried
out by aliens. These judges were our ancestors. We carry their DNA, our brain
chemistry is the same and effect by the same kind of external and internal
drives and factors. Deep down, I suspect that the core mentality that guided our
ancestors also guides modern day crown counsel, judges, and others who are part
of the criminal justice system.
Our default for handing
out a sentence is not, I suspect, that different. In most modern societies
judges approach the sentencing phase of a prosecution by applying their
experience and training, legal knowledge, modern objective standards of justice
mixed together with their subjective moods, attitudes, values, and cultural
indoctrination. Something as simple as the timing of judge’s last meal can have
a considerable impact on his decision. A recent study 1,000 parole decisions by judges in
Israel, for example, showed that it is better to judged after a snack or lunch
break rather than by a judge on an empty stomach. When considered by hungry
judges the suspect received far less favourable treatment than his counterpart
with a nearly identical record received from a well fed one.
In our century, we pride
ourselves at the great improvements that science and technology have delivered
to the criminal justice process. Anyone who has watched CSI has a glimpse of how
modern crime fighters evaluate evidence by using the scientific method. Rather
than judicial torture to extract a confession, evidence must be scientifically
tested, reviewed, explained and justified by those seeking to use it for a
All of that science to
determine guilt threatens to come undone because a judge’s stomach is churning
from hunger at the sentencing phase. Or the guilt of a criminal becomes
secondary to a larger political objective as in the case of the release of over
a thousand Palestinians prisoners jailed in Israel in exchange for one
Israeli solider. Guilt is a snapshot in time. The meaning, validity and scope of
the original sentencing remains open-ended, subject to periodic review or other
external interventions. The uncertainty of this process creates a space for
debate on how we sentence, who is sentenced, when it is legitimate to pardon or
parole or exchange prisoners, and the distinction between the safeguards that
surrounded guilt and how they are different from the ones around
A trial to determine guilt
now is guided by a scientific hand. Both sides use experts to support their
narrative as to the story the evidence tells. Once the verdict is guilty, a
second phase of the proceedings begins: sentencing. There is no DNA test to
guide the judge who must decide what sentence is appropriate to the crime and
the person who has been found guilty of committing it. We find that great
developments in science and technology have caused a divergence between the
guilt and sentencing phase. That leaves the suspect with one foot in the current
century and the other foot in much earlier time. Sentencing needs to be refined
into two parts: (1) the range of sentences available to be imposed; and (2) the
standards used by judges (or juries) to impose a particular sentence.
As for the first part, in
a recent essay on The
Edge, Professor Steven Pinker of
Harvard University, reminds us that during 18th century England there were 222
capital offenses on the books, including poaching, counterfeiting, robbing a
rabbit warren, being in the company of gypsies, and ‘strong evidence of malice
in a child seven to 14 years of age.’”
What is remarkable is that
a century later the number of capital crimes in England had been reduced down to
During the 17th and 18th
century in the United States the majority of people hanged had committed a
such as “theft, sodomy, bestiality, adultery, witchcraft, concealing birth,
slave revolt, counterfeiting, and horse theft.” The widespread sentiment in
favor of capital punishment for a broad range of crimes seems rooted in the
distant past. Today capital punishment is reserved for capital offenses in the
USA, and has been abolished in England and throughout Europe.
An important distinction
between the past and the present are the number of judge like officials.
Handling down orders and decrees to punish offenders isn’t restricted to the
courts. Administrative agencies and committees and regulatory boards often have
the authority to impose a penalty on wrongdoers that fall within their
jurisdiction. In modern times there has been a rapid proliferation of officials
who have judge like powers.
One of the original
purposes of vesting a centralized state and its officials with a monopoly over
determining guilt and punishment was to reduce the cycle of revenge that tribal
societies used when one of its members was harmed. As Pinker points out, the
evidence is overwhelming that this purpose has been largely achieved by a
50-fold reduction in homicides in places like England. Part of what keeps
revenge at bay is the sense that the state will punish the wrongdoer and that
punishment is mostly less than killing him. Pinker’s point in assessing the way
society controls violence while important needs to be placed in a wider context
of consensus about laws, crimes, and punishment that run through
What I am suggesting is
the state having achieved the goal of creating a largely docile population no
longer bent on killing each other, the mechanism of judging has been fine tuned
to advance the interest of those who comprise the state. While the mission creep
is done in the name of security and stability, which is just another way of
saying the State is carrying out the business of violence deterrence, this is a
subterfuge. As Pinker’s essay shows, we have reached diminishing returns on what
the State can do to deter the small and likely irreducible amount of violence
that continues inside any political system. That hasn’t stopped modern States
from inventing and using external and internal threats of violence to convince
citizens of the need for additional restrictions on their freedoms and rights.
The possibility of violence has always been the best friend of a repressive
State or one that wants to get into the repression game.
Perhaps as science comes
closer to unlocking the mystery of consciousness and determine at a quantum
level the elements that make some people more likely to commit crimes, attitudes
to sentencing will also be transferred to the realm of science. But that day is
some in the future. We live in an age where in parts of the world a thief
may have his hand cut off, a woman convicted of adultery stoned by villagers, or
‘honour killings’ of females who marry without the permission of family and
elders. How we treat a convicted wrongdoer is more of a mirror of the culture
than all of the poetry, paintings, novels and religious texts combined.
Punishment is a graphic illustration of attitudes toward life, power
distribution and arrangements, deterrence, rehabilitation, responsibility,
forgiveness, and security.
At the international level
there are UN conventions defining Human Rights. This is the lofty intellectual
level where principles are objectively applied to all societies. In reality, the
belly of the judge may override a convention. The political agenda of a society
may give priority to laws, which primarily function to maintain long-standing
power structures, social status, and economic cartels. Human rights will almost
always take a backseat to the extent such rights conflict with interest of the
powerful. It’s not just the hunger of the judges that causes a less enlightened,
compassioned view of a ‘suspect,’ it is the hunger of the less powerful for a
fair share of the pie who have been told that they can never have a piece that
exceeds a specific size.
Resistance to this message
combined with modern technology, has allowed them to organize and take to the
streets of streets in cities throughout the world. This is one of the
undercurrents to movements like Occupy Wall Street. People feel they have been
arbitrarily sentenced to a life without parole at the whim of hungry judges,
reinforced by the military and police, who act as the puppets of the
unaccountable and powerful. Judges are seen as a class who automatically rule in
favor of those who own the banquet halls, from which are excluded all but close
friends and family.
The larger concept behind
sentencing has escaped the narrow confines of criminal justice. The implications
of the social and economic aspects that influence the political system raise
legitimacy issues. To be sentenced means those doing the decision-making must
have a consensus they are acting on behalf of the whole society and not a small
privileged segment. Many people around the world are asking hard questions about
benefits, privileges and power of the one-percent who have walled themselves off
behind a shield of laws that no longer break bodies on a wheel, but are designed
to break their spirit through repression and fear.
|THE SCIENCE TO ESTABLISH CRIMINAL GUILT
Most of the time
prosecutors will tell you the suspect voluntarily admit that he/she committed to
the crime alleged by the police. There is no trial to establish guilt. It is
human nature to confess. And sometimes the police help human nature along with
threats, intimidation, torture, and promises. The good cop, bad cop routine has
been done in hundreds of TV shows and films. When the suspect maintains his
innocence, the Crown carries the burden of establishing guilt beyond a
Science has helped
providing tools to assist the Crown in proving guilt. From fingerprints to DNA
evidence, a case can be built that the suspect committed the alleged crime.
Often a jury will convict based on such evidence. By attaching the word
‘scientific’ to an assessment of crime evidence, is to markedly increase the
credibility of the link of such evidence to the accused.
Recently the Houston
police department was in the news concerning its crime lab results between the
years 1987 to 2002. Three death penalty cases were thrown into doubt as a result
of the review. The independent review concluded that reviewing “about 2,700
cases originally analyzed by the lab’s six forensic departments. So far, 1,100
cases have been reviewed. Nearly 40 percent of DNA cases and 23 percent of blood
evidence cases had major problems, the report found.” Link: http://smithforensic.blogspot.com/2011/10/houston-crime-lab-disturbing-findings.html
The Report concluded, “Our
work to date in reviewing cases analyzed by these sections reflects a level of
performance completely unacceptable in a forensic science laboratory providing
critical support to the criminal justice system.”
The questions raised by
the Report are more basic in Asia. Would the Thai police department authorize
such an independent analysis of crime lab results? Police forces have their own
cultures and turfs to protect. Outsiders are rarely welcome to walk in and look
over the operation, study the process and techniques, and produce a critical
analysis from the research. The transition from a policing culture that is
self-contained and largely beyond the process of periodic outsider review is a
difficult one. It takes political will to foster such change. And it takes
pressure from the public to demand political action to begin with.
Crimes don’t come in a
single size that fits all. Most of the time we think of crime as the thief, the
robber, rapist, burglar, killer or mugger. The popular press in Thailand
regularly reports on the latest crime in this category.
A recent example reported
People documents a
refrigerator theft in Sriracha. The thief was heisting the fridge from the home
of Mr. Chit who happened to be 84-year-old, well armed and caught the thief in
the act. Mr. Chit set after the burglar with his gun, firing it in the air.
The thief took flight, dumping Mr. Chit’s fridge in a nearby bushy area. The
84-year-old didn’t get a good look at the thief but suspected it was the same
guy who a couple of days earlier had run off with his water pump and gas cooker.
After that theft, Mr. Chit decided to arm himself. The police are conducting an
Mr. Chit’s fridge
inspected by authorities
In the second category of
crimes, the ‘suspects’, ‘victims’, and ‘state authorities’ clash as part of in a
political crisis that has spun out of control. You don’t have to look far around
the world to find one of those in the Middle East, North Africa, Asia, or
America. Most of us remember the recent riots and looting in London. And much
the same happened in Vancouver after the Stanley Cup match ended in defeat for
the Canadian team.
On the photo above you can
zoom in to identify the individual faces in the crowd. An example of how
technology makes it very difficult to hide in a crowd.
What role does forensics
play when the scale of violence ramps up into the hundreds or thousands of
people who are committing ‘criminal acts’ in full public view? Cultural,
political and social factors guarantee that there will be no one answer as one
reviews the reaction of authorities from country to country.
professionalism of a police force is linked to its ability to adapt to the
modern scientific methods used to solve crimes. When crimes may have a political
component, the science part of the equation is under threat. Thailand had gone
through a difficult period since 2010 when the line between politics and crime
blurred, overlapped, leaving many unanswered questions as to culpability and
responsibility for deaths and injuries.
Science offers a
methodology for assessing evidence and linking it to suspected wrongdoers, but
such methods run political consequences. So long as the fear of such
consequences outweigh the results of scientific evaluation by independent
assessors, science will take a backseat to politically forces divided over the
fundamental issue over government reach and action where agents of the state may
have committed the crime.
We can smile when
84-year-old Mr. Chit sets after a local thief, fridge in his arms, with his gun
in hand in hot pursuit. But the smile fades quickly when the state authorities
are the ones doing the shooting and they are not necessarily firing in the
|BAYES THEOREM AND A MYSTERIOUS BAG OF BANGKOK BAGELS
There was a recent court
case in England involving a murder conviction based on expert witness testimony
premised on Bayes’ Theorem. That theory, of course you will recall, comes from
an 18th century English mathematician whose name coincidentally was
named Bayes. Actually the theory is intended to give a mathematical probability
that given one event has happened suggests the relationship with a related
event. Often it has been suggested that Bayes’ Theorem supplies the math to
demonstrate what our common sense, logical mind tells us is the connection
between things related in time.
For example, the cop pulls
over someone who has run a red light and the driver has alcohol on his breath.
The cop asked, “Sir, have you been drinking?” The driver slurs his words, “Not a
drop, officer.” The driver smells of beer and there is an open bottle of beer on
the passengers seat that is half empty. You don’t need to be a mathematician to
draw a conclusion that the probability is high that the driver is lying and that
indeed he has been drinking.
But a recent UK court
decision threw out a murder conviction on the basis the footwear expert’s faulty
calculations and poor explanations concerning footprints left behind by the
murderer. The evidence came down to whether the accused had worn the Nike
running shoes that had left tracks at the murder scene. If the judgment had been
left that the expert had got it all wrong, then Bayes’ Theorem would remain in
an expert’s arsenal and effective weapon at that. But court attacked the
As the Guardian
reported, “In the shoeprint murder
case, for example, it meant figuring out the chance that the print at the crime
scene came from the same pair of Nike trainers as those found at the suspect’s
house, given how common those kinds of shoes are, the size of the shoe, how the
sole had been worn down and any damage to it. Between 1996 and 2006, for
example, Nike distributed 786,000 pairs of trainers. This might suggest a match
doesn’t mean very much. But if you take into account that there are 1,200
different sole patterns of Nike trainers and around 42 million pairs of sports
shoes sold every year, a matching pair becomes more significant.”
The problem was the expert
couldn’t testify as to the precise number of the type of Nike trainers had been
sold in England. He relied on what the Guardian called “rough national
estimates.” The judge decided that unless the underlying statistics were “firm”
the Nike shoeprint evidence wasn’t reliable enough to justify a murder
The analysis of the court
has led others to conclude that there is a misunderstanding between judges,
prosecutors and lawyers on the one hand, and mathematicians on the other. Many
criminal cases are based on circumstantial evidence. The question is how to
assess such evidence, and place it in a context that ranks the odds of the
evidence pointing to the guilt of the accused. Bayes’ Theorem can never provide
a certain, fixed connection. It can only give the odds of such a
Something like Bayes’
Theorem is a likely companion for law enforcement agencies. Profiling has a
Bayes’ Theorem backbone, suggesting that the odds of catching a bomber increases
in the presence of certain age, gender, racial and other personal
characteristics. This is why at airports you are told the searches are ‘random’
because many people are uncomfortable with the idea of being profiled. Though
from a Bayes’ Theorem point of view, calculating the odds by taking into account
such factors may increase the odds of catching a bomber before he/she has set
off the bomb.
On Tuesday, I was riding
the BTS from Chidlom Station to Asoke Station. I had been to meet a friend for
lunch, and afterwards, I stopped to buy 18 bagels for a friend who lives in
Chiang Mai. The bagels were put in a brown bag and the brown bag slipped into a
clear plastic bag, which I carried. On the train, I noticed two police officers
had cornered a black man on the Nana Station platform. One of the cops flipping
through what looked like a passport. I figured the cops had profiled him: black,
T-shirt, jeans, young and in the Nana area of Sukhumvit Road.
When I got off the train
at Asoke, I walked toward the MRT (the underground train in Bangkok) only to be
immediately joined by a uniformed Thai cop. He saddled up beside me. “What’s in
your bag?” he said. “Bagels.” He looked at me. I asked him, “Do you know what a
bagel is?” Apparently not wanting to admit he didn’t, he said, “Bagels.” I said,
“Bagels.” Then he reached toward my bag and started squeezing the bagels. Not
once, but two or three times. The top, the middle and close to the bottom of the
bag. It was bagels all the way down.
In Thai cop school there
must be a class where the resident Bayesian expert teaches street cops that
bagels have a certain squeeze identification factor that increases the odds that
indeed they are bagels as opposed to drugs, a bomb, pirated CDs, body parts, or
any number of things that cops think that foreigners traveling between the BTS
and MRT might be transporting.
Then he asked (in English)
where I was from. “Canada,” I said. And I asked where he was from. “The South,”
he said. He asked where I was going. I told him my soi number. Then I asked
where he was going. He shrugged. The policeman didn’t seem to have any place in
mind as to where he was going next.
Having had a good squeeze
of bagels, he looked slightly disappointed. He said that he was from the South
of Thailand. If there was one place, where a good theory based on Bayes’ Theorem
ought be used, it was in the South, where daily bombing and assassination is an
odds on certainty. I left him watching as I walked through the scanner frame to
the MRT and the security were waiting. I took off my backpack, which has
multiple zipper pockets, unzipped one of the smaller ones, the security guard,
glanced, turned away and I walked through. He had no interest in my bagels.
Didn’t ask to look. Didn’t request a squeeze. Come to think of it, the cop never
asked me to open my backpack.
When you come to Bangkok,
you need to understand that Bayes’ Theorum is colored by local culture and what
might seem odds on a bag of bagels to you, is something quite sinister to a Thai
cop who by the way didn’t seem to know where I could buy lox and cream