Sunshine Recorder

Boston bombing suspect Dzhokhar Tsarnaev has only been in custody a few days, and at least two U.S. senators have already called for him to face the death penalty. It is difficult indeed to imagine a crime more deserving of society’s most severe sanction than the one allegedly committed by Tsarnaev and his brother. The brothers built bombs, targeted a public event packed with spectators, and, as a final cruelty, attacked the finish line of a marathon — guaranteeing that many of their victims would be too exhausted to flee after just completing a 26 mile run. One of their victims will not see his ninth birthday. Another victim, who they allegedly murdered during their failed effort to escape justice, had barely begun his career as a police officer. We still do not know what motivated the Tsarnaevs to such meaningless destruction, but it’s hard to see their actions as anything other than pure evil.

So Dzhokhar Tsarnaev may present one of the strongest possible cases for the death penalty. And yet, even in this case, the argument for pursuing a death sentence against Tsarnaev does not hold up.

The best argument for the death penalty is that it deters people from committing homicides in the first place, an argument that suggests we should execute far more people than just Dzhokhar Tsarnaev. If you think the death penalty is about deterrence, then you need to have it as an available option for all crimes you want to deter with it.

The deterrence argument, however, is doubtful at best. According to Dartmouth University statistician John Lamperti, “an overwhelming majority among America’s leading criminologists [have concluded that] that capital punishment does not contribute to lower rates of homicide.” While some studies do claim a deterrent effect, these studies are based on tiny data samples that yield doubtful results. As Yale Law Professor John Donohue explains, death sentences are “applied so rarely that the number of homicides it can plausibly have caused or deterred cannot reliably be disentangled from the large year-to-year changes in the homicide rate caused by other factors.” Murder rates in states without the death penalty are consistently lower than those in states that do sentence people to die.

Meanwhile, few institutions expose the hazards inherent in government-mandated punishment more nakedly than the death penalty. Capital cases are difficult and incredibly expensive for prosecutors. As a consequence, the wealthy and privileged, who have the resources to hire outstanding legal counsel, are very rarely executed. The people that are convicted, by contrast, tend to be poor and disproportionately non-white. Nor is such arbitrariness limited to the way we distinguish among defendants, as the way we dole out death sentences also gives the lie to any claim that America values all human life equally. According to one study, defendants who kill high-status white people with college degrees are six times more likely to be sentenced to die than defendants who kill black victims closer to the margins of society.

Indeed, there is simply no escaping the role that race plays in determining death sentences. To take one demonstrative statistic from an ocean of them, six percent of murders in Alabama involved black defendants and white victims, but ten times that percentage of black death row inmates were convicted of murdering whites.

The death penalty also kills innocent people. Roughly 139 death row inmates have been exonerated since 1973, 61 percent of whom were people of color. At least ten innocent peoplethat we know of have been executed — and these are only the ones that we know of.

These three realities — the impact of wealth, the disparate treatment based on race, and the risk of killing innocents — are themselves reasons why the death penalty should not exist. But are they arguments against applying it, so long as it does exist, in the most heinous of cases? Though Tsarnaev may well face prejudice on the basis of his religion, the fact that this is such a high profile case means he will likely receive excellent legal counsel, and his guilt is hardly in doubt. Though not quite as “hard” a case for anti-death penalty advocates as, say, Aurora shooter James Holmes — who was white, wealthy, and also almost certainly a mass murderer — Tsarnaev is one of the cases where the death penalty appears most likely to be applied fairly and justly.

The Boston Marathon bombing is as horrible a crime as one can imagine, so Tsarnaev’s case raises the difficult question of whether America can limit executions to only the most heinous crimes — at least under circumstances where the defendant’s guilt isn’t in question and there’s no evidence that his trial will be conducted unfairly in any fashion. Can we limit death sentences only to people as evil as Tsarnaev appears to be?

The simplest answer to this question is that we are a nation of laws, and our most fundamental law says we cannot create a brutal, rarely applied punishment targeting just a handful of crimes. The Constitution forbids “cruel and unusual punishments. So as a punishment becomes more “unusual” — or, in the Supreme Court’s words, as it no longer can be squared with “evolving standards of decency that mark the progress of a maturing society” — it stands on increasingly weaker constitutional ground.

Indeed, it is likely that the death penalty is already unconstitutional under this rule. The number of death sentences has been on the decline in the United States, but not principally because of legal reforms limiting the death penalty to a small number of cases: it’s a combination of full legal abolition in some jurisdictions and the spread of anti-death penalty norms among citizens and prosecutors in others. 60 percent of U.S. counties have stopped seeking the death penalty entirelyas a punishment for any crime. One study of death sentences and executions from 2004-2009 discovered that just 10 percent of counties returned a single death sentence, and only 1 percent of counties produced more than one death sentence. Just four states made up 65 percent of national new death penalty convictions. In 2011, there were an estimated 14,612 murders in the United States, but only 43 executions. These data strongly suggests that executions no longer comport with our “evolving standards of decency.” We are increasingly uncomfortable with death sentences, and unwilling to execute people.

But beyond the cold language of the law, there is a deeply personal reason why we should not preserve the death penalty simply for the most heinous criminals like Tsarnaev. If you think the death penalty is a just response to murder or important to provide victims’ families with closure, then trying to limit it to a small number of multiple murders makes no sense. Why does taking one life not merit death, while taking two, three, or any other arbitrary number does? Why is the pain of one victim’s family any less important to address than the pain of families whose loved one was part of a multiple murder? There are many families that deserve the satisfaction of knowing their loved one’s murderer received society’s stiffest sanction for their crime, and it’s far from clear that the death penalty fills that need better than life without parole — indeed, it may even prolong a families’ grief. Yet the moment we say one victim, or set of victims, must be avenged by death, we lose the ability to consistently limit the death penalty’s application to rare cases — and the uncertainty and arbitrariness that plagues capital sentencing generally comes flooding back. When life without parole is the harshest penalty our courts dole out, such a sentence will stamp everyone who receives it as among the very worst criminals without opening the door to an unjust and unconstitutional policy.

So the death penalty is arbitrary. It discriminates on the basis of race and income. It kills the innocent. It is unconstitutional. And it may even deepen the wounds of families already grieving from the most terrible tragedy imaginable.

In May 1993, Jason Baldwin was a skinny redheaded teenager whose favorite activities were listening to Metallica records and fishing behind the trailer where he lived with his mother. His cat, Charlie, would sit beside him; whenever he caught a fish, he fed it to Charlie. Baldwin was sixteen that year, but he looked no older than twelve. In an interview filmed at the time he appears shy and quiet, with an awkward, insecure smile that reveals a snaggletooth. A baggy orange prison jumper hangs like a blouse over his matchstick frame. On the table in front of him are a half-eaten Snickers bar and a plastic bottle of Mello Yello. He turns to the camera.

“I didn’t kill those three little boys,” says the little boy.

This interview appears near the beginning of Paradise Lost: The Child Murders at Robin Hood Hills, the first of three documentary films produced by HBO about the West Memphis Three saga [you can watch them for free here: Paradise Lost: The Child Murders at Robin Hood Hills / Paradise Lost 2: Revelations / Paradise Lost 3: Purgatory]—a twenty-year nightmare that has been the subject of a fourth documentary film, West of Memphis; half a dozen books; and tens of thousands of magazine, newspaper, and television features. When watched consecutively, the Paradise Lost films have an effect similar to that of Michael Apted’s Up films, which revisit the same group of Britons every seven years. In both series, we see the principal characters age, shed their youthful naiveté, and pass through stages of cynicism and grief, before ultimately accepting their fate.

While Apted’s films are remarkable for the way they make visible the passage of time, however, the Paradise Lost films record an artificially imposed stasis. The lives of Baldwin and his two friends, Damien Echols and Jessie Misskelley Jr., froze the moment they were arrested for the murder of three eight-year-old boys in West Memphis, Arkansas. When at last they were set free in 2011 they were like children again; the world was entirely new to them.

In one of the final scenes in West of Memphis, Baldwin, who has grown tall and gaunt, is taken on the afternoon of his release to a Memphis hotel room. He stares in wonder at a room-service salad. “There’s cheese in there,” he says, baffled; he’s never had a salad with cheese in it. He fidgets with the handle of a new rolling suitcase; he’s never owned a suitcase before. His mother appears at the door; “Mom!” he screams, and he’s again the little boy with the Mello Yello and the half-eaten Snickers bar.

That little boy, despite his obvious terror, had been able to empathize with his accusers. “I can see where they might think I was in a cult,” he said, in that 1993 interview, “because I wear Metallica T-shirts.” The belief that the murders must have been committed by members of a cult was the foundation on which the prosecution built its case. It was, at the time, the most conceivable explanation for the extraordinarily grotesque details of the crime scene, where the bodies of the three boys, Steven Branch, Michael Moore, and Christopher Byers were found naked, bound, mutilated, and submerged in a shallow gulley.¹

The gulley ran through Robin Hood Hills, a four-acre patch of forest that lay between Interstate Highway 55 and Holiday Garden, the working-class subdivision where the victims lived. Each of the four documentary films begins with the same ghoulish crime scene footage: the corpses, as white and rigid as child mannequins, lifted delicately by investigators from the water and laid on the muddy bank. The three boys had last been seen before sunset on the previous night, May 5, riding bikes near the entrance to Robin Hood Hills. At 8 PM, John Mark Byers, Christopher’s stepfather, called the police to report his son missing. The next afternoon a boy’s sneaker was spotted floating in the gulley. An officer waded into the muddy water to retrieve it and his shoe became wedged beneath what he thought was a log. When he stumbled backward, his foot dislodged a corpse, which floated to the surface.

The fact that the victims had been stripped naked, with their ankles tied to their wrists behind their backs, suggested a sexual aspect to the crime. This interpretation seemed to be confirmed by the most horrific detail of all: Christopher’s scrotum, and the skin of his penis, had been removed.

What kind of maniac would commit an act so diabolical? As early as May 6, rumors began to circulate in West Memphis that the culprit was, in fact, the devil himself, operating through a band of his worshipers. In one of the first public comments about the case, Chief Inspector Gary W. Gitchell of the West Memphis Police Department suggested that the murders were caused by “cult activity.” The department assigned the investigation a case number that ended with “666”—a coincidence, claimed Gitchell, though later reports suggested it was not.

As several weeks passed and no suspect was apprehended, rumors of Satanic involvement assumed greater urgency. These rumors were taken to be true by the victims’ parents, particularly John Mark Byers, a buffoonish, boorish, and ultimately pathetic figure who plays a starring role in the Paradise Lost films, often addressing the camera in the histrionic cadence of a Baptist preacher. In the first film he paces the crime scene while frothing about “Satanic worship services” and “wild homosexual orgies”; in the second film he returns to give the West Memphis Three a symbolic burial, after which he lights their graves on fire. Todd Moore, Michael’s father, expresses the same sentiment, albeit in a less histrionic fashion. “I’m all for burning them at the stake, just like they did in Salem,” he says, perhaps unaware that the women executed at Salem did not, in fact, turn out to be witches.

Investigators asked Jerry Driver, a local juvenile officer and self-described “guru” of the occult, to compile a list of local kids involved in cult-related activities. At the top of Driver’s list was Damien Echols, an eighteen-year-old high school dropout who had been hospitalized for depression. Police interviewed boys who were known to be friends with Echols. One of these, a young man named Jessie Misskelley Jr., confessed to the crime, naming Echols the ringleader and Baldwin an accomplice. Investigators were relieved. When Jason Baldwin’s mother protested that he was innocent, an officer told her, “We’ve got a story that is very, very believable. It is so close to perfect that we have to believe it.” Belief always trumped logic in the prosecution of the case.

Police enlist young offenders as confidential informants. But the work is high-risk, largely unregulated, and sometimes fatal.

On the evening of May 7, 2008, a twenty-three-year-old woman named Rachel Hoffman got into her silver Volvo sedan, put on calming jam-band music, and headed north to a public park in Tallahassee, Florida. A recent graduate of Florida State, she was dressed to blend into a crowd—bluejeans, green-and-white patterned T-shirt, black Reef flip-flops. On the passenger seat beside her was a handbag that contained thirteen thousand dollars in marked bills.

Before she reached the Georgia-peach stands and Tupelo-honey venders on North Meridian Road, she texted her boyfriend. “I just got wired up,” she wrote at 6:34 P.M. “Wish me luck I’m on my way.”

“Good luck babe!” he replied. “Call me and let me know what’s up.”

“It’s about to go down,” she texted back.

Behind the park’s oaks and blooming crape myrtles, the sun was beginning to set. Young mothers were pushing strollers near the baseball diamonds; kids were running amok on the playground. As Hoffman spoke on her iPhone to the man she was on her way to meet, her voice was filtered through a wire that was hidden in her purse. “I’m pulling into the park with the tennis courts now,” she said, sounding casual.

Perhaps what put her at ease was the knowledge that nineteen law-enforcement agents were tracking her every move, and that a Drug Enforcement Administration surveillance plane was circling overhead. In any case, Rachel Hoffman, a tall, wide-eyed redhead, was by nature laid-back and trusting. She was not a trained narcotics operative. On her Facebook page you could see her dancing at music festivals with a big, goofy smile, and the faux profile she’d made for her cat (“Favorite music: cat stevens, straycat blues, pussycat dolls”).

A few weeks earlier, police officers had arrived at her apartment after someone complained about the smell of marijuana and voiced suspicion that she was selling drugs. When they asked if she had any illegal substances inside, Hoffman said yes and allowed them in to search. The cops seized slightly more than five ounces of pot and several Ecstasy and Valium pills, tucked beneath the cushions of her couch. Hoffman could face serious prison time for felony charges, including “possession of cannabis with intent to sell” and “maintaining a drug house.” The officer in charge, a sandy-haired vice cop named Ryan Pender, told her that she might be able to help herself if she provided “substantial assistance” to the city’s narcotics team. She believed that any charges against her could be reduced, or even dropped.

Hoffman’s legal worries were augmented by the fact that this wasn’t her first drug offense. A year earlier, while she was a senior, police pulled her over for speeding and found almost an ounce of marijuana in her car. She was ordered into a substance-abuse program, which required regular drug testing. Later, after failing to report for a test, she spent three days in jail.

Hoffman chose to coöperate. She had never fired a gun or handled a significant stash of hard drugs. Now she was on her way to conduct a major undercover deal for the Tallahassee Police Department, meeting two convicted felons alone in her car to buy two and a half ounces of cocaine, fifteen hundred Ecstasy pills, and a semi-automatic handgun.

The operation did not go as intended. By the end of the hour, police lost track of her and her car. Late that night, they arrived at her boyfriend’s town house and asked him if Hoffman was inside. They wanted to know if she might have run off with the money. Her boyfriend didn’t know where she was.

“She was with us,” he recalled an officer saying. “Until shit got crazy.”

Two days after Hoffman disappeared, her body was found in Perry, Florida, a small town some fifty miles southeast of Tallahassee, in a ravine overgrown with tangled vines. Draped in an improvised shroud made from her Grateful Dead sweatshirt and an orange-and-purple sleeping bag, Hoffman had been shot five times in the chest and head with the gun that the police had sent her to buy.

By the evening of her death, Rachel Hoffman had been working for the police department for almost three weeks. In bureaucratic terms, she was Confidential Informant No. 1129, or C.I. Hoffman. In legal parlance, she was a “coöperator,” one of thousands of people who, each year, help the police build cases against others, often in exchange for a promise of leniency in the criminal-justice system.

Informants are the foot soldiers in the government’s war on drugs. By some estimates, up to eighty per cent of all drug cases in America involve them, often in active roles like Hoffman’s. For police departments facing budget woes, untrained C.I.s provide an inexpensive way to outsource the work of undercover officers. “The system makes it cheap and easy to use informants, as opposed to other, less risky but more cumbersome approaches,” says Alexandra Natapoff, a professor at Loyola Law School in Los Angeles and a leading expert on informants. “There are fewer procedures in place and fewer institutional checks on their use.” Often, deploying informants involves no paperwork and no institutional oversight, let alone lawyers, judges, or public scrutiny; their use is necessarily shrouded in secrecy.

“They can get us into the places we can’t go,” says Brian Sallee, a police officer who is the president of B.B.S. Narcotics Enforcement Training and Consulting, a firm that instructs officers around the country in drug-bust procedures. “Without them, narcotics operations would practically cease to function.”

Every day, offenders are sent out to perform high-risk police operations with few legal protections. Some are juveniles, occasionally as young as fourteen or fifteen. Some operate through the haze of addiction; others, like Hoffman, are enrolled in state-mandated treatment programs that prohibit their association with illegal drugs of any kind. Many have been given false assurances by the police, used without regard for their safety, and treated as disposable pawns of the criminal-justice system.

The recruitment of young informants often involves risks that are incommensurate with the charges that they are facing. And the costs of coöperating can be high. A case that has dragged on for years in the courts involved LeBron Gaither, a sixteen-year-old student at a public high school in Lebanon, Kentucky. One afternoon, Gaither, who, according to his family, was generally mild-mannered, had an outburst in which he punched the school’s assistant principal in the jaw. He was taken into custody for juvenile assault. An officer from the Kentucky State Police came to see him, and told him that he could face a prison term or he could agree to become a local drug informant.

“China has a serial killer problem.”

Yang Shubin looked the part: fat and rich. At nightclubs, he would say he ran a power station and buy expensive drinks. Women quickly swarmed around the flashy businessman who offered double the regular price for an evening’s company and would sometimes even bring gifts. When the long nights drew to an end, Yang had no trouble persuading a girl to leave with him.

They probably thought themselves fortunate to land such a generous customer. After all, becoming mistress to a wealthy businessman is the ultimate career move for a karaoke girl in China. On returning to his apartment, therefore, they would have been surprised to find a woman already at the home: 20-year old Ji Hongzhie, Yang’s girlfriend — and partner-in-crime.

With the help of a pair of childhood friends from Heilongjiang, Wu Hongye and Zhang Yulian, they would tie the woman to a chair, then beat her with sticks and iron bars, demanding bank details. Yang liked to slap their bare flesh with a spatula while his girlfriend needled their breasts, arms and legs. Later, after withdrawing the cash — the amounts ranging from 60,000 to 500,000 yuan — they would force some victims to call their colleagues to persuade them to come over to the trap.

The bodies would later be chopped up, boiled and fed through a meat-mincing machine. Large bones would be crushed up with clamps, and added to the meaty paste which the gang would dump in drains or trash cans outside hotels and restaurants. Between 1998 and 2004, they made about 2 million yuan this way but, despite staying on the move, decamping from Shenzhen to Zhejiang, there were worries about getting caught.

In Guangzhou in 2001, one pair of sisters, kept captive for 13 days, spotted axes, saws, tape and garbage bags through a doorway. Realizing the TV had been on the same channel for hours — suggesting the apartment was empty — the two struggled loose and escaped. One had been so brutally tortured she needed breast implants.

After barely evading capture on that occasion, the gang’s luck was running out. The following year, in the northern city of Jilin, a resident of an apartment complex investigating a blocked pipe found mangled body parts. Arrest warrants were issued but all four of the gang members escaped on September 11, 2002 — then vanished. For nearly a decade, it seemed as if they had gotten away with murder, slipping into China’s migrant population without even a trail of public outrage or scrutiny.

But Harbin policeman Xu Jianguo did not forget. Having grown up in the same neighborhood as both the head gang members, Yang and Wu, Xu had a personal interest in seeing the case through to the end. And in 2007, the Harbin Public Security Bureau learned it had gotten hot again: Yang’s family was reported to have moved abruptly, en masse, whereabouts unknown. An intensive investigation eventually led Xu, now with his own dedicated task force, to Baotou in Inner Mongolia, and the busy family home of one Wang Xuekai. Wang shared his quarters with 11 others, including brother Wang Xueli, Xueli’s girlfriend Ma Haiyan and Wangxue Guo — all, it was to emerge, expertly forged identities. On November 3, 2011, an armed team raided the property and arrested the gang of four; a month later, with the world focused on a peasant uprising in Wukan, their capture was publicly announced.

Almost ten years after their last victims — two prostitutes robbed of 160,000 yuan — were found stuffed down a drain, Yang Shubin’s kill team were discovered playing happy families, running a successful foot massage parlour and billiard room. The Harbin police view the case as both a major success — and an unprecedented case in recent history.

But the case is not unprecedented.

“China has a serial killer problem,” Beijing criminologist Professor Peng Weimin (a pseudonym at his request) told me over a two-hour dinner of dumplings in Beijing. Sipping from his beer, small flecks of grey in his donnish black hair, Peng reeled off a series of anecdotes concerning various killers from the past. He knew the details of some cases, but often he was able to offer just outlines: prostitutes that washed up on a river bank in Shenzhen, tales from a north-eastern city where dozens of schoolchildren never came home.

Some of the serial killers whose crimes have been documented in the Chinese media and academic journals include the below (note that some of these are taken from yeshi (野史- unverified popular histories).

Tu Guiwu, a loan shark who stabbed and dismembered eight in Chengdu;
Chen Yongfeng, sentenced to death at the age of just 20 for murdering 10 people and throwing their body parts in a river over three months in 2003;
Li Zhanguo, a multiple sodomist who killed at least 11 between 1991 and 1995, exclusively targeting male villagers with severe learning difficulties;
Wu Jianchen, another serial rapist from Hebei responsible for 15 murders in 1993;
Huang Yong, a pederast who killed either 17 or 25 teenage boys between 2001 and 2003;
Chen Zhengping, arrested in Henan in 2002 for the deaths of at least 42, including children, after lacing rice balls at a rival snack bar with rat poison;
Peng Maiji, who used a meat cleaver to murder 77 in Shanxi, Jiangsu, Anhui and Henan, executed in 2000;
Wang Qiang, executed in 2003 for the murders of 45;
Li Shangxi, Yang Mingjin and Li Shangkuan, a Guanxi trio who committed 26 murders together between 1981 and 1989;
Yang Xinhai, the “Monster Killer” perhaps the most famous Chinese serial killer and mass murderer.

Locking up offenders does little to prevent crime or make us safer. The history behind our impulse to punish.

… In the ’70s, Ted Bundy raped and murdered at least thirty women, sometimes defiling their corpses. A decade later, Jeffrey Dahmer raped, murdered, and, in some instances, cannibalized seventeen young men and boys, many of whom he lured back to his Milwaukee, Wisconsin, apartment from gay bars. Around the same time, Paul Bernardo committed countless rapes and sexual assaults in southern Ontario, and then, with his wife, Karla Homolka, kidnapped, raped, tortured, and murdered three women, including Homolka’s younger sister. In 2009 and 2010, Russell Williams, the commander of the Canadian Forces Base in Trenton, Ontario, sexually assaulted and murdered two women. And in the summer of 2011, Anders Breivik bombed a government building in Oslo, killing eight people, and later gunned down sixty-nine others at a Labour Party youth camp.

These extreme cases constitute a vanishing fraction of even the worst violent crimes, but they form a model of absolute, uncomplicated evil against which lesser infractions are measured: this is crime in its pure state. We naturally view these stories through the lens of the victims, identifying with their suffering and the grief of their families and friends; we look upon the perpetrators as incomprehensible aliens. The only satisfying outcome is swift, decisive punishment. In such instances, punishment is an attempt to erase the blight of evil, to heal a grievous social wound, and for that to happen the punishment must fit the crime.

At its most basic, punishment is hard to distinguish from revenge, and the impulse for retaliation is no doubt hard-wired. Studies have shown that card players will give up benefits to themselves, such as a winning hand, to expose and penalize cheaters: punishment, in the short run, trumps even self-interest. Psychologists who use game theory to study the evolution of co-operation have found that the threat of swift retaliation against those who engage in uncooperative behaviour is crucial to establishing stable, productive communities; we have a collective stake in the assurance that those who profit at our expense will pay a steep price. The idea of community, it seems—one of Homo sapiens’ chief advantages in the competition for scarce resources—emerged under the dark shadow of punishment.

Nonetheless, retaliation has no intrinsic moral legitimacy, and since it involves hurting another person, the victim might well perceive him- or herself as harmed and retaliate in kind, creating an open-ended cycle of tit-for-tat blood feuds, waged throughout history and still common in such places as rural Albania. For punishment to be something greater than mere retaliation, it must have a deeper grounding, and that is just what early Babylonian law and the Hebrew Bible endeavoured to teach.

A well-known passage in Leviticus reads, “And he that killeth any man shall surely be put to death. And he that killeth a beast shall make it good; beast for beast. And if a man cause a blemish in his neighbour; as he hath done, so shall it be done to him. Breach for breach, eye for eye, tooth for tooth.” It ends with the refrain “Ye shall have one manner of law, as well for the stranger, as for one of your own country; for I am the Lord your God.” This passage (and others like it) is remarkable in a number of ways. First, it implies the existence of a specific punishment that mirrors the crime; and, more important, it insists that everyone, everywhere, be subject to the same standard. The Hebrew Bible rejects personal or tribal justice, instead asserting retributive justice and the supremacy of the rule of law in its strictest form.

The trouble with retributive justice is that a literal reading of the “eye for an eye” passage leads to morbidly comical conclusions and boundless forms of cruelty. In many situations, it is not even clear what an appropriate equivalent means: one rabbi noted that if a blind man puts out someone’s eyes, it is impossible to blind him in return. In the case of extreme crimes, such as Bernardo’s or Breivik’s, or horrors as immense as the Holocaust, no punishment could compensate for the victims’ suffering. Jesus’ direction “Ye have heard that it hath been said, an eye for an eye, and a tooth for a tooth: But I say unto you, that ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also” is not so much a criticism of the rabbinical courts of the Second Temple period, which were notably humane (crucifixion was a Roman practice, and capital punishment was used sparingly under the Pharisees). Rather, it was a way of pointing out that retributive justice can devolve into vengefulness as destructive as the crime itself.

The story of punishment from the Middle Ages through the eighteenth century is one of shocking brutality and bewildering arbitrariness. Regicides, parricides, ordinary murderers, homosexuals, heretics, and witches were broken on the wheel, disembowelled, ripped open with red-hot pincers, burned, and drawn and quartered; even teenage pickpockets were put to death. By the late eighteenth century, however, what French historian and philosopher Michel Foucault describes in his seminal 1975 book, Discipline and Punish: The Birth of the Prison, as “the gloomy festival of punishment” was ceding to a model oriented toward determining the impact of crime on society and the need for deterrence. This shift was due in large measure to a little book by an otherwise obscure Italian jurist and philosopher named Cesare Beccaria.

“Observe that by justice I understand nothing more than that bond which is necessary to keep the interest of individuals united, without which men would return to their original state of barbarity,” Beccaria wrote in 1764, in On Crimes and Punishments. “All punishments which exceed the necessity of preserving this bond are in their nature unjust.” He shifts the question from the criminal act to its effect on the community where it was carried out. Therefore, the purpose and justification of punishment is not to satisfy the victim or eradicate evil, but to repair the damage caused to society and prevent future crimes—and to do so without causing further harm. “There should be a proportion of punishment to crimes based on the degree to which the crimes affect society,” he writes. “Crimes are only to be measured by the injury done to society.”

Alas, it is difficult to quantify this, and even if one could, the punishment might well fall shy of the weight assigned to the crime by the victim. Think of the virulent outcry that accompanies the release from prison of convicted rapists and pedophiles. Beccaria’s notion of punishment ends up facing the same conundrum that both Jesus and the rabbis of the Talmud identified: how does one assign a value to a crime? A rape, for instance, may well affect the victim for the rest of her life, and such traumas end up being transmitted across generations. Furthermore, it is near-impossible to assess the real deterrent value of a punishment; criminals are not in the habit of maximizing the marginal utility of their actions. In any case, the sources of crime are complicated and myriad: childhood trauma, chronic poverty, addiction, and psychiatric conditions among them. The two major theories of punishment—retributive, and the one proposed by Beccaria and refined over the past 250 years—suffer from similar faults: vagueness and arbitrariness. And that is before we attempt to translate a theory of punishment into a criminal justice system for a twenty-first-century Western democracy.

The concept of punishment that operates in the criminal justice systems in Canada and the US is a hodgepodge of the retributive and the deterrent. The death penalty and multiple life sentences without the possibility of parole are clearly retributive; custodial sentences for the possession of drugs are seemingly meant to be deterrent. This is why the punishments meted out can seem random: people who are no risk to anyone end up in prison, where the deterrent effect is negligible, and where the punishment appears out of proportion with the crime. Why should anyone do jail time for growing marijuana? Odder still, in Canada judges issue longer sentences to people who grow pot in rented apartments than to those who do so in their own homes—an apparent incentive for home ownership.

The mandatory sentences popular in the US and their increasing prevalence in Canada further widens the gulf between crime and punishment. Meanwhile, more families are broken up and more neighbourhoods ravaged, and more inmates are released after substantial sentences without the necessary skills or resources to reintegrate into society. This undermines whatever deterrent value the punishment was intended to have in the first place. The accepted wisdom is that criminals deserve punishment, but what does that mean, and does it solve anything? Indeed, at this point, it is not even obvious what punishment is supposed to be.

…. In the past couple of months, there’s been reporting on a pair of crimes in the business world so flagrant as to literally take the breath away. The first of these wasn’t actually that widely reported on — in fact, I only know about it because a friend in the healthcare industry sent along an article on it. It’s a long read, but it’s worth taking the time to do so. It details how a medical device company decided to bypass FDA clinical trials and use bone cement in the spines of humans. Given that the cement wasn’t properly tested, it should come as no big surprise that a number of people died as a result. In sentencing the executives responsible for what happened, the judge described how “what has occurred in this case, in terms of wrongfulness — it’s 11 on a scale of 10.” In fact, the judge, for “the first time in his 25-year career… sentenced someone above the federal guidelines.”

That executive, for his role in what happened, received nine months in jail. (The federal guidelines actually suggested six months for this type of offence, which was not even a felony, but a misdemeanor). One of his fellow executives received a lesser sentence of five months.

And then there’s a case that was much harder to miss: that of HSBC, and their foray into the world of money laundering for drug cartels:

Despite the fact that HSBC admitted to laundering billions of dollars for Colombian and Mexican drug cartels (among others) and violating a host of important banking laws (from the Bank Secrecy Act to the Trading With the Enemy Act), Breuer and his Justice Department elected not to pursue criminal prosecutions of the bank, opting instead for a “record” financial settlement of $1.9 billion, which as one analyst noted is about five weeks of income for the bank.

Lay those two cases down beside that of a 26-year old kid who did the online equivalent of checking out too many books out of the library. For doing that, Aaron Swartz was initially charged with four felonies. The prosecutors in the Synthes case agreed to charge the executives only with one misdemeanor each. In the instance of HSBC, they used their discretion to avoid pursuing criminal charges altogether. In Swartz’s case, the government decided to use that same discretion to bolster its initial four felony charges with a further nine — hence the possibility of over three decades of jail time and a $1M fine. Now, Aaron had only been charged — if justice had prevailed, it could have all been thrown out in court — but even in that circumstance, he would have still been roughly $1.5 million out of pocket just defending himself. Those HSBC executives never even got to that point.

I actually had the opportunity to talk with Aaron online a few weeks ago; partly as a result of an article that I wrote for HBR about corruption and its effect on innovation. Looking at the three cases above, I can’t help but see similar symptoms seeping into the justice system. I simply don’t know how else to explain the huge disparity in how justice was sought in these very different cases — other than regulatory capture. It seems you can get away with laundering money for the drug cartels, so long as you’ve been generous with the those responsible for appointing district attorneys; or better yet, if your industry has paid to undo all the regulation that prevents you from getting too big to fail. Similarly, when your lobby has been helping Congress draft the laws that govern food, drugs, and cosmetics, you can make sure that the federal sentencing guidelines are only six months should you breach the responsible corporate officer doctrine. This in turn means you can inject unsafe cement into people’s spines with relative impunity (apparently, those in the healthcare industry were actually surprised when the officers were sentenced to jail, even if it was for only a few months. One of the convicted executives went so far as to ask the judge to delay the beginning of his sentence until after the holidays). But woe betide you if, in the name of openness and sharing human knowledge, you decide to download academic journals. Because that sounds a lot like piracy — and we all know how much has been spent to stamp that scourge out.

It is late in the afternoon in Montgomery. The banks of the Alabama River are largely deserted. Bryan Stevenson and I walk slowly up the cobblestones from the expanse of the river into the city. We pass through a small, gloomy tunnel beneath some railway tracks, climb a slight incline and stand at the head of Commerce Street, which runs into the heart of Alabama’s capital. The walk was one of the most notorious in the antebellum South.

“This street was the most active slave-trading space in America for almost a decade,” Stevenson says. Four slave depots stood nearby. “They would bring people off the boat. They would parade them up the street in chains. White plantation owners and local slave traders would get on the sidewalks. They’d watch them as they went up the street. Then they would follow behind up to the circle. And that is when they would have their slave auctions.

“Anybody they didn’t sell that day they would keep in these slave depots,” he continues.

We walk past a monument to the Confederate flag as we retrace the steps taken by tens of thousands of slaves who were chained together in coffles. The coffles could include 100 or more men, women and children, all herded by traders who carried guns and whips. Once they reached Court Square, the slaves were sold. We stand in the square. A bronze fountain with a statue of the Goddess of Liberty spews jets of water in the plaza.

“Montgomery was notorious for not having rules that required slave traders to prove that the person had been formally enslaved,” Stevenson says. “You could kidnap free black people, bring them to Montgomery and sell them. They also did not have rules that restricted the purchasing of partial families.”

We fall silent. It was here in this square—a square adorned with a historical marker celebrating the presence in Montgomery of Jefferson Davis, the president of the Confederacy—that men and women fell to their knees weeping and beseeched slave-holders not to separate them from their husbands, wives or children. It was here that girls and boys screamed as their fathers or mothers were taken from them.

“This whole street is rich with this history,” he says. “But nobody wants to talk about this slavery stuff. Nobody.” He wants to start a campaign to erect monuments to that history, on the sites of lynchings, slave auctions and slave depots. “When we start talking about it, people will be outraged. They will be provoked. They will be angry.”

Stevenson expects anger because he wants to discuss the explosive rise in inmate populations, the disproportionate use of the death penalty against people of color and the use of life sentences against minors as part of a continuum running through the South’s ugly history of racial inequality, from slavery to Jim Crow to lynching.

Equating the enslavement of innocents with the imprisonment of convicted criminals is apt to be widely resisted, but he sees it as a natural progression of his work. Over the past quarter-century, Stevenson has become perhaps the most important advocate for death-row inmates in the United States. But this year, his work on behalf of incarcerated minors thrust him into the spotlight. Marshaling scientific and criminological data, he has argued for a new understanding of adolescents and culpability. His efforts culminated this past June in a Supreme Court ruling effectively barring mandatory life sentences without parole for minors. As a result, approximately 2,000 such cases in the United States may be reviewed.

Stevenson’s effort began with detailed research: Among more than 2,000 juveniles (age 17 or younger) who had been sentenced to life in prison without parole, he and staff members at the Equal Justice Initiative (EJI), the nonprofit law firm he established in 1989, documented 73 involving defendants as young as 13 and 14. Children of color, he found, tended to be sentenced more harshly.

“The data made clear that the criminal justice system was not protecting children, as is done in every other area of the law,” he says. So he began developing legal arguments “that these condemned children were still children.”

Stevenson first made those arguments before the Supreme Court in 2009, in a case involving a 13-year-old who had been convicted in Florida of sexual battery and sentenced to life in prison without parole. The court declined to rule in that case—but upheld Stevenson’s reasoning in a similar case it had heard the same day, Graham v. Florida, ruling that sentencing a juvenile to life without parole for crimes other than murder violated the Eighth Amendment’s ban on cruel and unusual punishment.

Last June, in two cases brought by Stevenson, the court erased the exception for murder. Miller v. Alabama and Jackson v. Hobbs centered on defendants who were 14 when they were arrested. Evan Miller, from Alabama, used drugs and alcohol late into the night with his 52-year-old neighbor before beating him with a baseball bat in 2003 and setting his residence on fire. Kuntrell Jackson, from Arkansas, took part in a 1999 video-store robbery with two older boys, one of whom shot the clerk to death.

The states argued that children and adults are not so different that a mandatory sentence of life imprisonment without parole is inappropriate.

Stevenson’s approach was to argue that other areas of the law already recognized significant differences, noting that children’s brains and adults’ are physiologically distinct. This, he said, is why children are barred from buying alcohol, serving on juries or voting. He argued that the horrific abuse and neglect that drove many of these children to commit crimes were beyond their control. He said science, precedent and consensus among the majority of states confirmed that condemning a child to die in prison, without ever having a chance to prove that he or she had been rehabilitated, constituted cruel and unusual punishment. “It could be argued that every person is more than the worst thing they’ve ever done,” he told the court. “But what this court has said is that children are uniquely more than their worst act.”

The court agreed, 5 to 4, in a landmark decision.

“If ever a pathological background might have contributed to a 14-year-old’s commission of a crime, it is here,” wrote Justice Elena Kagan, author of the court’s opinion in Miller. “Miller’s stepfather abused him; his alcoholic and drug-addicted mother neglected him; he had been in and out of foster care as a result; and he had tried to kill himself four times, the first when he should have been in kindergarten.” Children “are constitutionally different from adults for purposes of sentencing,” she added, because “juveniles have diminished culpability and greater prospects for reform.”

Thomas Sweatt torched Washington for decades. He killed more people than we thought.

…About a year and a half ago, I sent a letter to Sweatt at the federal prison in Terre Haute, Ind. I told him that I was a reporter who had written about his fires in early 2004, when he was still at large, and that I wanted to learn about his life as a firesetter. A few days later I received a brief, cordial note, in careful handwriting, that began, I was pleased to get your letter and hope this could be the beginning of something good. Apparently adjusted to his new confines, he signed it, Inmate “Tom,” #38792037.

Sweatt and I went on to trade letters for more than a year, often on a daily basis. He wrote thoughtfully about his large, supportive family and his faith in God, each note filled with the same soft-spoken kindness he’d shown to co-workers as well as to the agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) who’d captured him. Still, as much as he loved small talk, nothing brought out Sweatt’s storytelling skills quite like the tale of an old fire.

I kept up with all the news reports about my fires + others that they did not know about; I have a “diary of fires” that I put away elsewhere, for; I knew someday the ATF would ask for it. I still believe in my mind that the Lord God Almighty brought them (the ATF) people to me because it was time for all this to stop. 30 years of fires—it was like Come get me, I’m tired. Jail cant be any worst than the life I had then and believe it or not life is pretty much the same, it just I’m not free to go wherever I want to.

The investigators who debriefed Sweatt after his arrest were floored by his recall of years-old blazes, which almost invariably squared with official reports and witness accounts. Indeed, the fire accounts in Sweatt’s letters could run on for pages in detail, until they ended abruptly with something like, OK, my thoughts are running wild again so I’ll stop here. Each fire had been important to him, and telling its story was one way for him to relive its excitement.

As he wrote more, he started to discuss his motives and share with me, as he put it, the mind of an arsonist. In his letters, Sweatt confessed to a number of fires for which he has never been held accountable, including the one that killed Duncan. (Under Sweatt’s proffer with the government, investigators have been gagged from publicly discussing Sweatt’s motives or certain fires he may have admitted to during questioning. Anything dealing with motive in this story comes directly from Sweatt’s letters.)

For Sweatt, different fires grew out of different feelings—many out of a sense of powerlessness, others out of spite, some even out of love—but more than anything else, his decades-long rampage was about sexual fantasy:

Why did I set the fires when I set them? That’s an all too familiar question that can not be understood if you don’t know the story. There were different reasons for most of the fires. It could be because of one feeling the need to have power about something or someone….I don’t want you driving that car so the fire becomes a weapon to destroy it. Or in case of some house fires—I might like a particular style of a house and wish one day to own it (but it’s only a dream). Fire is a tool to destroy and some house fires also becomes my phantasy of people scrambling to exit windows and sort-of feel like they need my help so I stay and watch. Then I’d masterbate over the fire while driving away from the schene.

A judge in Bellefonte, Pennsylvania sentenced Jerry Sandusky to 30 to 60 years behind bars today. “The crime is not only what you did to their bodies,” Judge John Cleland said of the ten boys who the 68-year-old former Penn State assistant football coach sexually molested, “but to their psyches and their souls, and the assault to the wellbeing of the larger community in which we all live.”

Truly, the Sandusky case has exposed just how fixated, morally disgusted, and yet befuddled we are by pedophilia as a society. Horace Mann, the Catholic Church, the Boy Scouts, now Sandusky… it keeps coming up. But what’s behind it? For cultural and political reasons, pedophilia remains a poorly understood phenomenon. Few have decided to study it in earnest.

Fred Berlin, a psychiatrist who runs a clinic out of Johns Hopkins University, is one of them.  

Berlin has counseled pedophilic men for over 30 years. In that time, he has come to view pedophilia as a kind of innate sexual orientation, not unlike homosexuality or heterosexuality, but fundamentally different in that it must never be acted upon. I met with Berlin in his Baltimore office, where we talked about the problem of men who love boys, and how society doesn’t get it.

Do we do ourselves a disservice when we call people like Jerry Sandusky monsters? Are they monsters, or just sick? Should they be taken to a mental hospital, or to prison?

I’d look at this as being similar to alcoholism. We have to have a criminal justice component; we have to have laws against drunk driving. But nobody would think we could solve the problems associated with alcoholism simply by putting every drunk driver on a registry or handing out stiffer sentences. We need research. We need a criminal justice and a public health approach. Having said this, I don’t think society gets it. I think society has the sense that we can legislate or punish this problem away. And to the extent that we’re not concentrating on the public health side of it—that we’re not helping people deal with these urges before they act—I believe as a physician that we’re doing ourselves a tremendous disservice, not only to the children who are abused, but to the men who have these conditions.

You consider pedophilia to be a sexual orientation. Could you explain that? 

What we know is that we don’t decide who it is that we’re going to be attracted to. When we were little kids we didn’t sit down and say, “Look, we’ve got choices.” We discover who we’re attracted to, and people who discover they’re attracted to prepubescent children have that attraction through no fault of their own. If you didn’t make a value judgment—and I think we should—but if you’re just looking at it in terms of the fact that people differ from one another sexually, it’s just a difference. Now having said that, I think that we do have a right and should be making value judgments. As a psychiatrist, I don’t want my profession or the government involved in the bedrooms of consenting adults, but I do believe that we have an obligation as a society and as a medical profession to protect children.

So where does that leave the people with pedophilia?

I feel sad for the people with pedophilia because what we’re saying to them is that, unlike the rest of us, you can’t express your sexual attractions. But we need to help these people understand why they can’t. Children are not miniature adults. They don’t vote, they can’t buy alcohol, they don’t drive cars, and they don’t have the degree of maturation that would enable them to be in a situation where they can meaningfully consent or not consent.

What kind of feelings do they have for children?

There’s a tremendous spectrum. There are people who are attracted to children who are not simply lusting for them. They have feelings of affection, even of romance. I mean, intellectually they know they shouldn’t be feeling this way about a child, but the fact of the matter is that they do. And then there are others who may just be wanting sex for sex’s sake.

What are they like as people? 

It’s important to understand that knowing something about a person’s sexual attractions tells you nothing about their personality. You don’t know if they’re kind or caring, conscientious or not conscientious. I think most people when we use the term pedophilia assume that the person must be characterologically flawed. That they don’t have any redeeming qualities. That’s absolutely not true. They may be fundamentally decent people. The problem is that most of society has a very hard time wrapping their minds around the idea that someone who experiences these attractions or gives into them could be a human being deserving of assistance. I think that’s one of the biggest reasons why we don’t reach out and try to help these people before they’ve acted, because we don’t think they’re deserving.

Leonardo Notarbartolo strolls into the prison visiting room trailing a guard as if the guy were his personal assistant. The other convicts in this eastern Belgian prison turn to look. Notarbartolo nods and smiles faintly, the laugh lines crinkling around his blue eyes. Though he’s an inmate and wears the requisite white prisoner jacket, Notarbartolo radiates a sunny Italian charm. A silver Rolex peeks out from under his cuff, and a vertical strip of white soul patch drops down from his lower lip like an exclamation mark.

In February 2003, Notarbartolo was arrested for heading a ring of Italian thieves. They were accused of breaking into a vault two floors beneath the Antwerp Diamond Center and making off with at least $100 million worth of loose diamonds, gold, jewelry, and other spoils. The vault was thought to be impenetrable. It was protected by 10 layers of security, including infrared heat detectors, Doppler radar, a magnetic field, a seismic sensor, and a lock with 100 million possible combinations. The robbery was called the heist of the century, and even now the police can’t explain exactly how it was done.

The loot was never found, but based on circumstantial evidence, Notarbartolo was sentenced to 10 years. He has always denied having anything to do with the crime and has refused to discuss his case with journalists, preferring to remain silent for the past six years.

Until now.

Notarbartolo sits down across from me at one of the visiting room’s two dozen small rectangular tables. He has an intimidating reputation. The Italian anti-Mafia police contend he is tied to the Sicilian mob, that his cousin was tapped to be the next capo dei capi—the head of the entire organization. Notarbartolo intends to set the record straight. He puts his hands on the table. He has had six years to think about what he is about to say.

“I may be a thief and a liar,” he says in beguiling Italian-accented French. “But I am going to tell you a true story.”