Moral Judgment

150 Pages·11.084 MB·English

HARIN COUNTY FREE LIBRARY
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31111016760173
^AUTHOR OF THE MORAL SENSE
MORAL
!UDGMENT
IfSA $18.00
CA>I^.DA $25.50
his 1993book TheMoralSeni,i,ProfessorJamesQ.
In
Wilsonexploredthewellspringofmorahtyitself^the
capacity, observably innate to the human species, to
distinguish between right and wrong. His compelling
argument,supportedwithexhaustivebehavioraldata,was
hailedbytheNew York Timesasa"provocativemeditation."
Lastyear,ProfessorWilsonwasinvited to deliverthe
Godkin Lectures at Harvard, the text ofwhich serves as
the basis ofthis book. He chose as his subject the inter-
play of moral capacities which occurs in the nation's
courtrooms.
The courts,he reasoned,are ultimatelywhere issues
ofrightandwrongfindresolutioninoursociety.Andyet,
—
as is amply demonstrated in today's headlines and in
—
coundesslesscelebratedinstances ourjudicialsystemis
relendessly subjected to forces Umiting its capacity to
resolve even the gravest moral issues: judging guUt or
innocencein themostgrievous capitalcrimes.
In MoralJudgment^ Professor Wilson demonstrates
how ourjudicial system has compromised its obligation
to discriminate between right and wrong. He explains
—
why lawyers and judges by distinguishing between
personalandjudicialresponsibility,byinvitingthepartic-
ipationof "expertwitnesses,"andbyallowing"mitigating
circumstances" to play a major role in criminal testimo-
—
ny have moved fi"omjudging behavior to explaining it.
Citingthe MenendezandGoetzverdicts,amongoth-
ers, Wilson makes an erudite case for re-examining the
ethical drift ofcontemporaryjurisprudence. He suggests
that courts may encourage individuals to reject personal
responsibilityfortheiractions,insteadblamingsocietyfor
failingthem.
The crux of Wilson's position r > ' his closely
deliberatedcongruence oflawandmor h ubjectthat
,
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MORAL
JUDGMENT
Does the Abuse Excuse
Threaten Our Legal System?
James Q. Wilson
A
BasicBooks
ADivisionofHarperCollins/'«i'/wAer5
Copyright © 1997 byJamesQ. Wilson.
Published by BasicBooks,ADivisionofHarperCollinsPublishers,Inc.
All rights reserved. Printed in theUnited StatesofAmerica. Nopanofthis
bookmaybe usedor reproducedinanymannerwhatsoeverwithoutwritten
permissionexceptinthecaseofbriefquotationsembodied incriticalarticles
and reviews. For information address HarperCollins Publishers, Inc., 10
East 53rdStreet,NewYork,NY 10022.
FIRSTEDITION
DesignedbyElinaD. Nudelman
Librar}-ofCongressCataloging-in-PublicationE>ata
Wilson,JamesQ.
Moral judgment :—does theabuseexcuse threatenourlegalsystem?/
byJamesQ. Wilson. 1sted.
p. cm.
Includes index.
ISBN0-465-03624-4
— —
1. Criminal liabili—ty UnitedStat—es Moralandethicalaspects.
2. Criminal li—ability' Socialaspects United States. 3- Extenuating
circumstances UnitedStates. 4. Responsibility. I. Title
KF9235.W55 199^
340'.112—DC21 96-46661
97 989900 RRD 10 98-654321
CONTENTS
Acknowledgments vii
1. Faulty Experts 1
2. Self-Control 22
3. Self-Defense 44
4. Changing Conceptions ofResponsibility 70
5. Law and Responsibility 89
Notes 113
Index 127

ACKNOWLEDGMENTS
Forsomeyears I have on occasion deliveredpublic lectures about
crime and criminal justice. I quickly learned that the first
three questions that would follow my remarks were, in no
particular order, the following: What do you think ofgun
control? Ofdrug legalization? Ofthe death penalty?
—
In 1995 that all changed. The first and for many peo-
—
ple, the only question was. How could the Menendez
brothers have gotten off? Of course they did not "get off";
the two juries were divided between convicting them for
murder and manslaughter, an—d a retrial was scheduled. But
the point remained the same two rich boys executed their
parents for financial gain, and the criminal justice system
could not convict them ofwhat they surely deserved, first-
degree murder. My audiences were profoundly upset about
— —
what they and I regarded as an indefensible outcome.
At about the same time journalists and one or two law
school professors were making heavy use ofsuch phrases as
the "abuse excuse," implying that what happened in one
celebrated Los Angeles case was in fact the tip ofa very large
and mischievous iceberg. As a consequence, when I was
invited to deliver the GodkinLectures at Harvard, I decided
to use the occasion to investigate what produced an effect so
many people deplored, hoping to discover if it was either
idiosyncratic or reflective of some deeper deformation in
our laws.
On delivering the lectures at Harvard, I learned again
what I have so often forgotten: no matter how the world
changes, the intellectual life ofCambridge follows its own
stern destiny. The first question after my first lecture was
this: What do you think ofgun control?
My
choiceoftopic required thatasocialscientistlearnalot
ofcriminal law and criminal court procedure, an enterprise
that proved so taxing that, had I realized in advance how
much effort would be required, I probably would have
selectedadifferent subject. Lawyers,andespeciallylawschool
professors, have thought long and hard about the issues that
help explain the Menendez outcome. Happily, I had the ben-
efit ofgood advice from four law school professors who read
some drafts and gave me clear and often blunt assessments of
my ideas. I wish to acknowledge their great assistance: Peter
Arenellaofthe University ofCalifornia at Los Angeles, Susan
Estrich of the University of Southern California, George
Fletcher of Columbia University, and Stephen Morse of the
University of Pennsylvania. The final manuscript was care-
fully read by Kent Scheidegger, legal directorofthe Criminal
Justice Legal Foundation, and by Gary Katzman. I also bene-
fited from discussions of these matters with Judge Diane
Wayne, former Los Angeles district attorney Ira Reiner, and
assistant district attorney David Conn.
I am grateful to many people who helped introduce me
to English criminal law, but especially to Anne Rafferty,
Q.C., chairman ofthe Criminal Bar Association ofEngland
and Wales, Professor Martin Wiener ofRice University, and
Loretta Damron at the London office of the Pepperdine
University Law School.
viii ACKNOWLEDGNfENTS
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