Terry wrote:Suppose that while premeditating this heinous crime, Felon realized that he could escape conviction by going to an expert hypnotist afterward and have his conscious memory of the crime, the events leading up to it, and the hypnosis suppressed - to the extent that all medical experts would agree that he had no memory of it.
If he were absolved of the crime, others would follow suit and escape retribution.
I admit that I had not taken into account the possibility that Felon had
intentionally caused his own amnesia. I'm not altogether convinced that this should make any difference, but I understand your point.
Suppose society enacted a rule that stated: a person will not be held responsible for any crime that he commits, as long as his memory of that crime (along with all other contemporaneous or previous events) is permanently erased. I suppose that very few people would take advantage of that rule, not simply because most people are law-abiding, but because there's not much point in committing a crime for certain purposes (e.g. killing one's most hated rival) if one is fated to forget the crime, the purposes, and the rivalry. Nevertheless, as legislators (and we may assume those roles for the purposes of addressing this hypothetical) should be concerned with what
can happen just as much as what
will happen, I concede that it is theoretically possible a person would willingly forfeit his memory for the chance to commit a particular crime.
Nevertheless, I'm not convinced that convicting Felon under the facts of your hypothetical (where he willingly undergoes memory-loss) would necessarily contradict the connection that I am positing between memory and responsibility. As I have mentioned before, a person may be convicted today of a crime that he cannot remember (e.g. a person in a drug-induced haze commits murder) if the jury concludes that he was, in some sense, responsible for his memory-losing state. And that's not because the state concludes that there is no connection between memory and responsibility, but because the state has made a public policy decision that it should not encourage others to engage in the same kind of reckless behavior. Thus, we may convict the willingly amnesiac Felon in your hypothetical, not because we place no importance on the role of memory, but because we place
more importance on the role of public order.
That, however, does not resolve the case where Felon's memory loss was not of his own doing. Certainly, we can convict the willingly amnesiac Felon because we can assert that Felon was, at a certain point,
responsible for his actions, and that those actions had a causative relationship with the crime. But for the unwillingly amnesiac Felon, the causative link is not present. There could, therefore, be no public policy argument to be made for convicting Felon where there is no chance that Felon's case would serve as a bad example for others to follow.
Terry wrote:Executing someone or locking them up for life serves three purposes. Obviously it prevents them from committing future crimes. It deters some other people from committing crimes out of fear of suffering the same punishment, just or otherwise. But more importantly it satisfies our need for retribution.
These are all factors that I have previously noted. I have already dealt briefly with the arguments regarding incapacitation and deterrence, but perhaps these deserve a bit more analysis.
If we lock up Felon in order to prevent him from committing future crimes, then we have made the decision, at least implicitly, that there is something about Felon's
character that would incline him to commit future crimes. After all, if we had no reason to believe that he would ever again commit a crime, there are punishments short of incarceration that would be sufficient to demonstrate society's disapproval of the crime. Yet the determination that Felon poses a continuing danger posits that Felon pre-amnesia will resemble Felon post-amnesia. Given that the two Felons are, in effect, strangers to one another, I'm not sure that this case can be made.
Likewise, the amnesiac Felon seems like a rather poor example of deterrence to be held up to the community of would-be murderers. To be sure, the state could, with justification, say that Felon was undoubtedly guilty and therefore should serve his sentence, but the sorts of things that we
want from convicted felons -- guilt, remorse, contrition, repentence -- would be utterly incomprehensible to Felon, who cannot feel genuine guilt for something that he cannot recall doing (at most, he could feel a sort of empathetic remorse for the actions of his pre-amnesiac self). As such, Felon is similar to someone with a diminished mental capacity, like a person with severe mental retardation, who commits a crime that he is incapable of understanding. Since executing or imprisoning the severely retarded doesn't really accomplish the goal of deterrence, how would the execution or imprisonment of Felon accomplish that goal?
Terry wrote:A legal "right to life" does not protect anyone from wrongful death; it can only guarantee our commitment to avenge killings. It tells every member of society that murder will not be tolerated, and that we will make every effort to hunt down and lawfully punish those who breach the social contract. Trust in the system is lost if the general public perceives that people guilty of murder can evade justice with flimsy defenses such as PMS, police misconduct, bad childhood, legal technicalities, alleged insanity, or amnesia.
Per my hypothetical, Felon's amnesia is not a "flimsy defense." It is a profound, permanent, irreversible medical condition. And this still leaves open the question: if we punish Felon as a means of retribution, are we punishing the
right Felon?
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