Judging Evil: Rethinking the Law of Murder and Manslaughter

By Samuel H. Pillsbury | Go to book overview

5
Moralizing the Passions
of Punishment

Issues of criminal responsibility inspire powerful emotions. The outcome of a single case can set a city on fire or change the nation's law. In recent years the rage and fear generated by criminal offenses has strongly influenced American politics, from city council and judicial elections to campaigns for the presidency1 Sometimes we see these passions as a positive force, galvanizing the public and government to action in defense of individual value. At other times the passions seem ugly, revealing a bigoted, fearful, and mean-spirited side to American society.

I remember a capital murder trial I covered as a reporter in Florida. A teenager was charged with stabbing a woman to death in an effort to rob her of the cash she had on hand as she opened her restaurant in the morning. I remember the trial because of the victim's husband, an older man who came to court every day and stared with unrelenting venom at the defendant. His eyes were dark holes of rage and despair.

The man's life had been destroyed by his wife's murder and now he directed all his remaining energies to the defendant's destruction. Whenever someone is about to be executed in this country, we see the same look and hear the same voice on the news. Reporters seek out relatives of the deceased, knowing they will make a good story. Most of those willing to speak to the press have been consumed by the victim's killing. Their hurt has no limit and neither does their need to see the killer suffer.2

What should we do with all this passion? We must hear these survivors, for they remind us of those murdered, but their vitriol is disturbing. We know justice should not be this personal, this primitive, this bloodthirsty, for just punishment is not revenge.

The justice of criminal responsibility depends in large part on our ability to moralize the passions of punishment. Some have argued that this is impossible under a theory of deserved punishment, that emphasizing what the

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Judging Evil: Rethinking the Law of Murder and Manslaughter
Table of contents

Table of contents

  • Judging Evil - Rethinking the Law of Murder and Manslaughter iii
  • Contents v
  • Preface the Challenge of Criminal Responsibility vii
  • Acknowledgments xiii
  • Part I - Deserved Punishment 1
  • 1: A Question of Value 3
  • 2: The Value of Choice 18
  • 3: Punishment as Defense of Value 32
  • 4: Just Punishment in an Unjust Society 47
  • 5: Moralizing the Passions of Punishment 62
  • Part II - Defining Murder and Manslaughter 77
  • 6: From Principles to Rules - An Introduction to Mens Rea 79
  • 7: The Worst Crime of All 98
  • 8: Crimes of Passion 125
  • 9: Crimes of Indifference 161
  • Appendix - Proposed Jury Instructions 189
  • Notes 197
  • Index 261
  • About the Author 264
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