INTRODUCTION :: Thank you for the opportunity to deliver the Dunwody Distinguished Lecture in Law. It is an honor and a privilege to join the extraordinary list of those who have participated in this series of Lectures. Like Elliot and Atwood Dunwody, I am a graduate of this law school, and I am pleased to have this additional connection to an institution for which I have a great affection.
Because everyone pays more attention to story-telling than to lectures, let me begin with a story. It is called The Brothel Boy, a short story by Norval Morris, who is a law professor and former dean of the University of Chicago Law School. The protagonist of the story, Eric Blair, is a British Officer with the Imperial Police and is responsible for keeping order in a colonial Burmese village shortly after the first World War.
Blair finds himself forced to be “judge, prosecutor, and defense counsel” in the case of an orphan boy whose mother, a prostitute in a brothel, died during childbirth, leaving him to be raised there. The “brothel boy,” as he is known, is severely mentally retarded, and his only understanding of sex comes from the brothel in which he works, fanning the girls and their clients and doing all the odd jobs he is given. He observes life in the brothel and how the women have sex with men after the exchange of money. Mimicking what he sees every day, the brothel boy gives money to a young village girl, with the expectation that she will have sex with him. She refuses, but he forces her to do so, accidentally killing her in the process. The boy is apprehended without trying to get away. When confronted, he explains his actions by simply saying, “Please Sir, I paid.” Blair can see that the boy doesn’t realize that he has committed a crime, but the laws of both the Burmese and the European communities require the death penalty for one who has caused the death of another.
Wrestling with the relationship between culpability and punishment and noting the boy’s retardation and lack of comprehension, Blair anguishes over the case in conversations with his friend, an Indian psychiatrist named Veraswami. Blair struggles with many of the major philosophical issues raised through the ages: the need to segregate dangerous people, to deter crime, to make justice uniform while still accounting for degrees of culpability, and to satisfy (or not satisfy) a lust for vengeance.
In the end, the law requires the boy’s execution. As Dr. Veraswami reminds Blair, “If there were a choice of punishments for what he hass done, perhaps you could be merciful, because he hass been much abused and iss of weak mind. But there issn’t, there issn’t.” Dr. Veraswami points out society’s failure to provide viable alternatives by saying: Isn’t it better to execute him than to leave him in prison to be abused further or in a home for the mentally ill where conditions will be even more horrible?
Professor Morris wrote this story years ago, but the questions he asks still resonate. Does justice lend itself to an application of absolute principles? Is equal application of the laws in this context the equality that we seek? If so, is it obtained at the expense of justice? What should take precedence, a uniform application of the law or its application based on individual circumstances? What role should the intent of the perpetrator play in sentencing? What role is played by the society that administers the sentence?
These and other questions raised by The Brothel Boy have yet to be satisfactorily answered. So this lecture gives me-us-the opportunity to think again about them in some measure today. I want to ask whether the application of mandatory sentencing laws intended by their uniformity to ensure equality and thus achieve justice, does in fact do so. I want to ask whether the alternative of judicial discretion that permits distinctions to be made among individual defendants is, as sometimes alleged, a more arbitrary system of justice or, rather, one that leads to greater fairness and equality.
My thesis today is that judicial discretion does, in fact, lead to greater fairness and equality. But it can do so, and be perceived as doing so, only when judges adequately explain the reasons that support their decisions. More discussion and better explanations for judicial decisions and for the legislative mandates upon which they are based can, hopefully, generate a discussion of whether the reason for a particular decision or piece of legislation is logically and rationally related to the goal it is intended to serve. Although, as you can guess from my opening story, I intend to focus primarily on criminal sentencing, my thoughts regarding the need to better explain legislative and judicial decisionmaking, including discretionary decisions, are intended to apply broadly, not just in the criminal arena
November 2015, Vol. 67, No. 6
Liesa L. Richter, Posnerian Hearsay: Slaying the Discretion Dragon
Sapna Kumar, Regulating Digital Trade
W. Keith Robinson, Economic Theory, Divided Infringement, and Enforcing Interactive Patents
Sandra F. Sperino, Retaliation and the Reasonable Person