Cause I Know All None Of You Are Dying To Read My Thoughts
Trying to get right to the point and glide past my longer than normally long absence from blogging:
What I find distressing about all I've read of the pundit-driven* commentary against Roman Polanski's potential extradition is that those few voices that aren't primarily focused on the difficult task of being as morally contemptible as possible (I AM LOOKING AT YOU ANNE APPELBAUM) are gesturing in the direction of a reasonable argument but completely missing the seriousness (and thereby failing to make their point) of what their comment implies.
This is the argument, more or less, that it's been a long time, he's an old man, he hasn't repeated his crime, Samantha Geimer has said she doesn't want him subject to legal action, and there's accordingly no purpose served by bothering to prosecute him. (Might as well note that while it's true that so far as we know, he hasn't raped - in the violent coercive sense of his victim's testimony - anyone else, it's not true that he hasn't committed what in the United States would have been and is statutory rape - the crime he pled to - because he carried on a relationship with a fifteen year old Nastassja Kinski, which may have been consensual on its face but under the precepts of American law could not by legal definition have been consensual.) There are two interesting prongs of legal-philosophical argument here that are, to put it charitably, underdeveloped, and perhaps in conflict.
Taking first the victim's wishes, the fact of the matter is that under American law this doesn't mean a damn thing. In practice we are of course reminded of many cases where at the urging of the victim in a crime like, say, domestic abuse, the state declines to file charges (but in part this is because the victim herself would be an uncooperative witness), and the pleadings of a victim's family have certainly swayed decisions (prosecutorial and judicial) about sentencing. These are instances, though, where our criminal justice system is for better or worse (in my opinion, just to get the cards out, worse) bending away from its stated purpose both in philosophical underpinning and statutory fact. The criminal system doesn't work on behalf of, or for the benefit of, the victim (that's what the civil court system is for). My bullshit half-knowledgeable half-conjectural take on this fact is that it stems, at root, in early Germanic/Anglo-Saxon law, and the weregild concept. That society had a long history of violent retribution leading to endless bloody cycles of revenge which were ultimately detrimental to the health of the society as a collective, so blood revenge was replaced by the progressive (for then!) and repugnant (for now!) concept of the blood-price, or weregild (literally the man-money, or more properly man-payment, man-debt). Your station in society determined your worth; in essence, there was a kind of inverse price on your head at all times, which was the amount your potential killer would owe your family if he in fact killed you. This is in some sense still the system we have in the modern civil proceedings of wrongful death suits, but without the creepy actuarial tables detailing the relative worth of men, women, slaves, etc. It's also, in the criminal legal context, a first step in realizing that allowing the victims to drive punitive action instead of the state was harmful to the state (I mean, a murdered slave might be atoned for with gold, but in practice the family of a murdered man didn't usually want the weregild, they wanted to murder the killer and his family, which is probably also still true for many/most people today). By the time we get to the present, we have a long established Anglo-American legal system which prosecutes criminals not on behalf of the victim but explicitly on behalf of the state, and which does not, in its official capacity, recognize the desires or needs (such as they are) of a victim('s family), because the state is concerned with the offense against society at large and against the state's own authority, which would be equally offended by allowing the victims to pursue common revenge.
In practice, our legal rhetoric is still heavily veined with pleas about getting justice for the victims and their families, but this is contrary to the letter and spirit of our legal system, a common example of the common phenomenon whereby human instinct strains against the civilizing bounds of human intellectual theory. And of course I've been writing about circumstances where the victim desires to see her assailant punished, when the case in front of us is a case where she desires, more or less, to not see that. This is just simple consistency, though; you can't have a fair legal system which accommodates a victim's request for lenience but disregards her request for vengeance. In our system as currently assembled, Samantha Geimer's wishes simply aren't supposed to matter from the state's perspective. There are two ways in which you could argue that they should matter: the less ambitious one is further from the folk-concept of justice under consideration, but can be integrated into the OTHER prong of arguing that Polanski should be let alone; the more ambitious implies a complete reordering of our legal system's precepts which hopefully would not lead us back to the days of blood feuds but which would prize the victim's sense of justice over the state's authority, or at least try and place them into more equal balance. I don't think you can go very far in this direction without leading to the kind of personalization of retribution which modern society would find deeply unnerving and which would also severely degrade the integrity of the state: the foundation of our criminal system is the principle that the state has a monopoly on the just and authorized use of violence (in a broadly construed sense of the word, which incorporates incarceration, asset seizure, etc.), and to hand our legal system over to the desires of victims would be to make state-authorized violence into an instrument of the individual citizen and ultimately corrupt the whole concept.
The other way to go is perhaps less intuitive but more interesting and maybe more feasible. Here we retain the primacy of the state's self-concern for its monopoly on violence, but compromise or reorder the details of how it executes the protection of that right. Right now the system is set up in principle to be, well, defensive of the principle. People break the law and they are punished. What could happen is to reimagine the criminal justice system as one which philosophically and statutorily promotes the kind of compromises prosecutors reach in the everyday application of the statute to real cases; the recognition that there are mitigating circumstances not explicitly provided for in the law and the somewhat crass (to an idealist) recognition that some cases are not worth trying because of the fiscal cost to the state or the possibility of an unwelcome jury verdict, hence plea bargains where the accused stipulates his guilt regarding a lesser crime in exchange for lenient sentencing. This is a pragmatic approach to the judicial system, but inconsistently so (is it really worth going after all those harmless pot smokers? - of course not, but we do it so often anyway). An overall pragmatic overhaul of our legal structure would require rewriting and reinterpreting the penal code and its associated sentencing rules, but would also necessarily empower prosecutors and justices to balance their estimation of how important it is to punish a particular instance of a crime against the overall rule. This would make Kant's head explode (not in and of itself a bad thing!); it would also make relevant the victim's wishes, which would be a good thing - borderline instances of statutory rape which are in fact legitimate "Romeo and Juliet" cases that happen to fall directly outside the arbitrary bright lines of the law would be let go, e.g. Samantha Geimer's desire for Polanski to be left alone doesn't stem from that place, though - it stems from the understandable but self-interested desire to be left alone and allowed to live an anonymous life without reading her name in the paper always connected with a traumatic violation. The agents of the state could weigh her interests against the potential threat Polanski poses to society at large, decide that he poses no such threat, and let be. But to be able to do that inside of a just and coherent legal system would require not simply looking at the somewhat exceptional circumstances of this case and making such a judgment, but would require recreating the state's interpretation of its own self-interest in pragmatic rather than idealistic terms. (I think this would be a bad thing on balance, because it would ultimately enhance the different enforcement of the law in different jurisdictions, such that in one locale a man who avenged his family's death [always back to the blood feud and the blood price!] would be let go and in another he would be guilty of murder; you can't be pragmatic and have hard-and-fast guideline at the same time. But it wouldn't be the kind of catastrophic method of arranging the legal system that I believe prioritizing the needs and desires of the victim would be.)
But needless to say, nobody's saying any of this about Polanski; they're just gesturing at the idea that he ought to be left alone because ... well, because. Of course, even in a pragmatic system the state still needs to be vigilant about protecting the integrity of its authority, and in this case Polanski is once again rightly doomed; he's not merely a criminal for the initial rape but a criminal for being a fugitive from justice. He's committed a crime that comes closer than any other to literally violating the state's authority, because he willfully evaded punishment, and a system that allows people to regularly do that is not a system with longevity. Of course, we could just this once make an exception because Polanski is so old and his crime was so long ago, but...
Oh, but in a pragmatic legal system the axe swings the other way. Letting Polanski go breeds cynicism that the law does not apply to the wealthy and famous (whether or not that's why he's hypothetically let go), which ultimately corrodes the state's authority. Making an example of him (justly or not) promotes the impression that the state applies the law equally to all, no matter their station, which strengthens the state's authority. Pragmatically, it's worth it to be less than normally lenient in certain circumstances in order to prove that no one is allowed to evade justice forever. So you've got that to ponder.
Or you could just say that Polanski is a fugitive who justly needs to face his crimes in the legal system that initially set out to try him, because as it turns out our theoretically inflexible, practically flexible (for good and bad) system is actually pretty good when weighed against the alternatives set out above (do you really want to live in a system that incentivizes the state to make an example of people?) and that being inflexible about its principles is generally the right way to go. ESPECIALLY WHEN THE GUY IN QUESTION IS A FUCKING CHILD RAPIST.
Ahem.
* The other anti-extradition commentary is what I'd call Hollywood-driven, in which all right-thinking people swallow a little uncomfortably as their favorite SoCal creative types seem to reveal themselves as, well, the sort of people I described in the prior paragraph. This isn't really so surprising, though. If a good friend of mine were accused of a crime like Polanski's, I'm not sure how I'd react, and if a good friend of mine were in the position I believe Polanski is in - guilty (of more than he pled to), a long-time fugitive from justice, very old and far removed from the time of his crime - I can't promise that I wouldn't say something unfortunate myself (or at least keep my mouth shut and not say what I probably should). Now, not everybody in Hollywood is a friend of Polanski's, of course. But he's widely (and, for his work, deservedly) admired to a considerable degree, and not at the kind of remove that I admire Chinatown and Rosemary's Baby, but with the special intensity reserved for the heroes of your own craft, profession, and love. Plus not everyone in Hollywood is personally associated with Polanski, but I'd be surprised if, taking the set of "people I've heard of in Hollywood" you could get more than three or four degrees of separation from someone who was professionally or personally friendly with Polanski. So basically they're acting like ignorant members of the same social circle, which is unfortunate but totally predictable in any given social circle; these just happen to be famous people.
What I find distressing about all I've read of the pundit-driven* commentary against Roman Polanski's potential extradition is that those few voices that aren't primarily focused on the difficult task of being as morally contemptible as possible (I AM LOOKING AT YOU ANNE APPELBAUM) are gesturing in the direction of a reasonable argument but completely missing the seriousness (and thereby failing to make their point) of what their comment implies.
This is the argument, more or less, that it's been a long time, he's an old man, he hasn't repeated his crime, Samantha Geimer has said she doesn't want him subject to legal action, and there's accordingly no purpose served by bothering to prosecute him. (Might as well note that while it's true that so far as we know, he hasn't raped - in the violent coercive sense of his victim's testimony - anyone else, it's not true that he hasn't committed what in the United States would have been and is statutory rape - the crime he pled to - because he carried on a relationship with a fifteen year old Nastassja Kinski, which may have been consensual on its face but under the precepts of American law could not by legal definition have been consensual.) There are two interesting prongs of legal-philosophical argument here that are, to put it charitably, underdeveloped, and perhaps in conflict.
Taking first the victim's wishes, the fact of the matter is that under American law this doesn't mean a damn thing. In practice we are of course reminded of many cases where at the urging of the victim in a crime like, say, domestic abuse, the state declines to file charges (but in part this is because the victim herself would be an uncooperative witness), and the pleadings of a victim's family have certainly swayed decisions (prosecutorial and judicial) about sentencing. These are instances, though, where our criminal justice system is for better or worse (in my opinion, just to get the cards out, worse) bending away from its stated purpose both in philosophical underpinning and statutory fact. The criminal system doesn't work on behalf of, or for the benefit of, the victim (that's what the civil court system is for). My bullshit half-knowledgeable half-conjectural take on this fact is that it stems, at root, in early Germanic/Anglo-Saxon law, and the weregild concept. That society had a long history of violent retribution leading to endless bloody cycles of revenge which were ultimately detrimental to the health of the society as a collective, so blood revenge was replaced by the progressive (for then!) and repugnant (for now!) concept of the blood-price, or weregild (literally the man-money, or more properly man-payment, man-debt). Your station in society determined your worth; in essence, there was a kind of inverse price on your head at all times, which was the amount your potential killer would owe your family if he in fact killed you. This is in some sense still the system we have in the modern civil proceedings of wrongful death suits, but without the creepy actuarial tables detailing the relative worth of men, women, slaves, etc. It's also, in the criminal legal context, a first step in realizing that allowing the victims to drive punitive action instead of the state was harmful to the state (I mean, a murdered slave might be atoned for with gold, but in practice the family of a murdered man didn't usually want the weregild, they wanted to murder the killer and his family, which is probably also still true for many/most people today). By the time we get to the present, we have a long established Anglo-American legal system which prosecutes criminals not on behalf of the victim but explicitly on behalf of the state, and which does not, in its official capacity, recognize the desires or needs (such as they are) of a victim('s family), because the state is concerned with the offense against society at large and against the state's own authority, which would be equally offended by allowing the victims to pursue common revenge.
In practice, our legal rhetoric is still heavily veined with pleas about getting justice for the victims and their families, but this is contrary to the letter and spirit of our legal system, a common example of the common phenomenon whereby human instinct strains against the civilizing bounds of human intellectual theory. And of course I've been writing about circumstances where the victim desires to see her assailant punished, when the case in front of us is a case where she desires, more or less, to not see that. This is just simple consistency, though; you can't have a fair legal system which accommodates a victim's request for lenience but disregards her request for vengeance. In our system as currently assembled, Samantha Geimer's wishes simply aren't supposed to matter from the state's perspective. There are two ways in which you could argue that they should matter: the less ambitious one is further from the folk-concept of justice under consideration, but can be integrated into the OTHER prong of arguing that Polanski should be let alone; the more ambitious implies a complete reordering of our legal system's precepts which hopefully would not lead us back to the days of blood feuds but which would prize the victim's sense of justice over the state's authority, or at least try and place them into more equal balance. I don't think you can go very far in this direction without leading to the kind of personalization of retribution which modern society would find deeply unnerving and which would also severely degrade the integrity of the state: the foundation of our criminal system is the principle that the state has a monopoly on the just and authorized use of violence (in a broadly construed sense of the word, which incorporates incarceration, asset seizure, etc.), and to hand our legal system over to the desires of victims would be to make state-authorized violence into an instrument of the individual citizen and ultimately corrupt the whole concept.
The other way to go is perhaps less intuitive but more interesting and maybe more feasible. Here we retain the primacy of the state's self-concern for its monopoly on violence, but compromise or reorder the details of how it executes the protection of that right. Right now the system is set up in principle to be, well, defensive of the principle. People break the law and they are punished. What could happen is to reimagine the criminal justice system as one which philosophically and statutorily promotes the kind of compromises prosecutors reach in the everyday application of the statute to real cases; the recognition that there are mitigating circumstances not explicitly provided for in the law and the somewhat crass (to an idealist) recognition that some cases are not worth trying because of the fiscal cost to the state or the possibility of an unwelcome jury verdict, hence plea bargains where the accused stipulates his guilt regarding a lesser crime in exchange for lenient sentencing. This is a pragmatic approach to the judicial system, but inconsistently so (is it really worth going after all those harmless pot smokers? - of course not, but we do it so often anyway). An overall pragmatic overhaul of our legal structure would require rewriting and reinterpreting the penal code and its associated sentencing rules, but would also necessarily empower prosecutors and justices to balance their estimation of how important it is to punish a particular instance of a crime against the overall rule. This would make Kant's head explode (not in and of itself a bad thing!); it would also make relevant the victim's wishes, which would be a good thing - borderline instances of statutory rape which are in fact legitimate "Romeo and Juliet" cases that happen to fall directly outside the arbitrary bright lines of the law would be let go, e.g. Samantha Geimer's desire for Polanski to be left alone doesn't stem from that place, though - it stems from the understandable but self-interested desire to be left alone and allowed to live an anonymous life without reading her name in the paper always connected with a traumatic violation. The agents of the state could weigh her interests against the potential threat Polanski poses to society at large, decide that he poses no such threat, and let be. But to be able to do that inside of a just and coherent legal system would require not simply looking at the somewhat exceptional circumstances of this case and making such a judgment, but would require recreating the state's interpretation of its own self-interest in pragmatic rather than idealistic terms. (I think this would be a bad thing on balance, because it would ultimately enhance the different enforcement of the law in different jurisdictions, such that in one locale a man who avenged his family's death [always back to the blood feud and the blood price!] would be let go and in another he would be guilty of murder; you can't be pragmatic and have hard-and-fast guideline at the same time. But it wouldn't be the kind of catastrophic method of arranging the legal system that I believe prioritizing the needs and desires of the victim would be.)
But needless to say, nobody's saying any of this about Polanski; they're just gesturing at the idea that he ought to be left alone because ... well, because. Of course, even in a pragmatic system the state still needs to be vigilant about protecting the integrity of its authority, and in this case Polanski is once again rightly doomed; he's not merely a criminal for the initial rape but a criminal for being a fugitive from justice. He's committed a crime that comes closer than any other to literally violating the state's authority, because he willfully evaded punishment, and a system that allows people to regularly do that is not a system with longevity. Of course, we could just this once make an exception because Polanski is so old and his crime was so long ago, but...
Oh, but in a pragmatic legal system the axe swings the other way. Letting Polanski go breeds cynicism that the law does not apply to the wealthy and famous (whether or not that's why he's hypothetically let go), which ultimately corrodes the state's authority. Making an example of him (justly or not) promotes the impression that the state applies the law equally to all, no matter their station, which strengthens the state's authority. Pragmatically, it's worth it to be less than normally lenient in certain circumstances in order to prove that no one is allowed to evade justice forever. So you've got that to ponder.
Or you could just say that Polanski is a fugitive who justly needs to face his crimes in the legal system that initially set out to try him, because as it turns out our theoretically inflexible, practically flexible (for good and bad) system is actually pretty good when weighed against the alternatives set out above (do you really want to live in a system that incentivizes the state to make an example of people?) and that being inflexible about its principles is generally the right way to go. ESPECIALLY WHEN THE GUY IN QUESTION IS A FUCKING CHILD RAPIST.
Ahem.
* The other anti-extradition commentary is what I'd call Hollywood-driven, in which all right-thinking people swallow a little uncomfortably as their favorite SoCal creative types seem to reveal themselves as, well, the sort of people I described in the prior paragraph. This isn't really so surprising, though. If a good friend of mine were accused of a crime like Polanski's, I'm not sure how I'd react, and if a good friend of mine were in the position I believe Polanski is in - guilty (of more than he pled to), a long-time fugitive from justice, very old and far removed from the time of his crime - I can't promise that I wouldn't say something unfortunate myself (or at least keep my mouth shut and not say what I probably should). Now, not everybody in Hollywood is a friend of Polanski's, of course. But he's widely (and, for his work, deservedly) admired to a considerable degree, and not at the kind of remove that I admire Chinatown and Rosemary's Baby, but with the special intensity reserved for the heroes of your own craft, profession, and love. Plus not everyone in Hollywood is personally associated with Polanski, but I'd be surprised if, taking the set of "people I've heard of in Hollywood" you could get more than three or four degrees of separation from someone who was professionally or personally friendly with Polanski. So basically they're acting like ignorant members of the same social circle, which is unfortunate but totally predictable in any given social circle; these just happen to be famous people.
Labels: Culture, Film, Vaguely Legal
posted by medrawt at
18:50
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