Rachel Aviv, who wrote a superb New Yorker
article about a woman in New Hampshire who - guided by psychotic delusions - starved to death, has written another
gem, this one in the January 2 New Yorker: "No Remorse:
Should a teen-ager be given a life sentence?"On March 6, 2010, Dakotah Eliason shot and killed his grandfather Jesse Miles while Jesse was asleep. For several hours he contemplated the choice between suicide and murder. Dakotah was unhappy about the breakup with a girlfriend, but had not otherwise seemed depressed. He loved Jesse and had had no conflict with him. He finally settled on murder. Dakotah was fourteen at the time.
Arthur Cotter, country prosecutor in the area of rural Michigan where Dakotah lived, ruled that Dakotah should be tried for first degree murder as an adult. He based the decision on what he interpreted as Dakotah's "utter lack of remorse." In Michigan conviction for first degree murder carries a mandatory life sentence with no possibility of parole. After three hours of deliberation the jury found Dakotah guilty.
The Michigan appellate defender's office, which represents indigent clients who cannot afford private counsel, is appealing Jesse's conviction, arguing that he received ineffective counsel at the original trial. In particular, the appeal argues that Dakotah's counsel failed to draw on "
So Young and So Untender: Remorseless Children and the Expectations of the Law" - an extraordinary study by Emory Professor Martha Grace Duncan of how courts punish juveniles for not showing a stereotypical form of remorse.
Professor Duncan provides seven case studies of juveniles who committed murder but did not display conventional remorse. She argues that courts erroneously interpret lack of remorse as a sign of depravity, warranting the kind of penalty Dakotah received. This isn't simply an "academic" study. Here's how it opens:
The morning after my father’s suicide, I went to my classes at Columbia University as usual, wearing a hot-pink, summery top and a pink and white floral skirt. In the elevator of the International House where I lived, a friend who had been with me when I received the news looked at me curiously. No doubt he wondered why I was still in New York and on my way to school – why I showed no signs of grief.
Actually, I showed no grief because I felt none, and did not for a long time. It was a year before I cried over my father’s death, four years before I began, in therapy, to talk to someone about it. When I did begin to cry, I could not stop...
Fortunately, no legal ramifications flowed from my earlier failure to exhibit sadness, for I stood accused of no crime. But this experience of being unable to show or even feel “appropriate” sorrow over my father’s death has resonated for me with many legal cases. It inspired my interest in, and doubts about, the uses of remorse in juvenile and criminal law.
Professor Duncan's article helped me and my wife understand an experience that had puzzled us since I was in residency and she was in graduate school. We went to dinner at a good friend's apartment. We drank lots of wine and listened to songs by a hot new group - the Rolling Stones. It was only as we were leaving that our friend mentioned that her father had died that morning. During the evening we'd seen no signs of grief.
In the New Yorker article, Rachel Aviv lays out the alternative approaches the law has taken towards juvenile offenders. In states guided by the ethic of rehabilitation, Dakotah would be released when he turned 21. In Michigan, which is guided by the ethic of protecting society and punishing "depravity," Dakotah faces life in prison with no possibility of parole.
Unfortunately there is some wisdom in each of these perspectives, which creates a problem for our preference for moral certainty. For some "Dakotahs," the crime would, in retrospect, be an aberrant event followed by an exemplary life. For other "Dakotahs," the crime would be followed by other violent events - a life of incorrigability.
In my view, automatic release at 21 and automatic life imprisonment with no opportunity for parole, are both wrong policies. Rehabilitation, "going straight," is possible, but in no way inevitable. Likewise with depraved incorrigibility. Automatic release at 21 fails to protect society. Life imprisonment fails to protect the individual who no longer poses a threat.
If we allow for this kind of uncertainty we will inevitably make mistakes. Some "Dakotahs" will be released, ostensibly rehabilitated, and go on to commit further serious crimes, as happened with Jack Abbot, author of
In The Belly of the Beast. Other "Dakotahs" will be kept in prison when they would have otherwise been positive contributors to society.
Rachel Aviv's writing teaches us that we can't avoid uncertainty other than by embracing falsity. The prosecutor argued that Dakotah is a depraved killer. Maybe he is, but there's absolutely no way of knowing it. Psychiatrists argued that Dakotah had bipolar illness, despite what appears to be lack of evidence for the condition.
As I was mulling over how to conclude this post, a couplet by Ogden Nash popped into mind: "Candy is Dandy...But liquor is quicker." Nash was writing about romantic seduction. Without labelling the theme, Aviv is writing about intellectual and moral seduction. Depravity and exoneration are seductive simplicities.
But they're wrong!
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