Tags: The | Law | Undevalues | the | Lives | Wives

The Law Undevalues the Lives of Wives

Wednesday, 08 December 2004 12:00 AM

You can teach a whole criminal law class, and in the old days they did, based on nothing but killings, and how the law tries to distinguish among them.

In my class, I used to call it the scumbag test. Who's worse, I would ask my students, almost like the eye doctor, testing the different lenses. Better or worse is not a very easy or pleasant question when you're dealing with killers, and life and death consequences.

Of course, courts and legislatures use fancier words and concepts than scumbag, even if that's what it comes down to. They speak of intent and reasonableness as a basis for distinguishing among degrees of murder, even though it goes without saying that, as a matter of law, reasonable men don't kill except in self defense.

The classic instance of a reasonable killing is a man killing his wife in the heat of passion. At common law, a man who caught his wife in bed with another man was actually considered to be justified in killing her. Under the rules, it should have been at least manslaughter, but it wasn't.

Husbands who kill their wives routinely manage to bargain their cases down. Heat of passion, they claim. I went nuts with jealousy, I was in love with another woman, I couldn't help myself - any man could understand. How far down you get it depends on the circumstances.

But in the casebooks, it is always the classic example of reasonable unreasonable behavior, of the excuse the law will recognize in mitigation. It's hit men we're after. Death penalty laws, with their emphasis on lying in wait, on multiple deaths, as well as criminal records, plainly apply to such scumbags.

The death penalty, the United States Supreme Court held in 1972, in its landmark decision throwing out the Georgia law and forcing every state to rewrite theirs, cannot be applied in a routine or automatic fashion.

Death is different. Death penalty statutes must establish a procedure for applying discretion and rules to guide it.

A defendant is allowed to present almost any kind of evidence to establish a mitigating factor that might outweigh one of the aggravating factors presented by the prosecution. In one case, a defendant had his young daughter come before the jury, as part of his appeal as a father.

In this case, note the argument that Scott Peterson would help others in prison. The usual rules of evidence don't apply on either side. This, because of a famous Supreme Court ruling grounded in the argument that with the purpose being rehabilitation, only the broadest rules of evidence will do.

If Scott Peterson had been another shlepper wife-killer, another guy who got in over his head, and got in bed with another woman, and killed his wife (even a pregnant wife), he would've hired a local lawyer and plea-bargained the crime. Made a deal. Saved his parents their life's savings and what they've been through.

He would have admitted that he went crazy, doesn't deserve to breathe the air outside, and hung his head and gone to prison.

But of course Scott Peterson didn't do that, because he isn't that guy.

He went running around town, carrying on with Amber, spending money. And then when the going got tough, he pushed his poor parents out front, his mother with the oxygen, took their money, went out and hired Mark Geragos, cut his hair, and expected the fame machine and the media lawyer and the tabloid culture would take care of him. Who did he think he was, O.J. Simpson in a Ford Explorer?

Guess again, pretty boy.

But is that a reason to give someone the death penalty? That he didn't handle the post-crime phase well? Should the punishment fit the crime, or the criminal?

The answer is that it must fit both, and that the criminal law has long maintained a bias that undervalues the lives of wives. Laci Peterson may be the woman who causes us to rethink that. After all, a hitman kills strangers, not his own pregnant wife. What does it say about a man that he could do that, and then go out and party? It says that he is one rotten scumbag, to say the least.

COPYRIGHT 2004 CREATORS SYNDICATE, INC.

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You can teach a whole criminal law class, and in the old days they did, based on nothing but killings, and how the law tries to distinguish among them. In my class, I used to call it the scumbag test. Who's worse, I would ask my students, almost like the eye doctor,...
The,Law,Undevalues,the,Lives,Wives
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2004-00-08
Wednesday, 08 December 2004 12:00 AM
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