Does the Law Morally Bind the Poor?: Or What Good's the Constitution When You Can't Buy a Loaf of Bread?

3. Desperation and Necessity: Les Miserables on Trial

Desperation and Necessity : Les Miserable s on Tria l c h a p t e r t h r e e Let u s suppos e tha t th e argumen t o f th e previou s chapte r wa s utterly mistaken . Eve n th e mos t severel y deprive d person s coul d then b e said to typically bear mora l responsibilit y fo r thei r crimi nal acts . O f course , standar d defenses , suc h a s self-defens e an d insanity, might still be relevant. A severely deprived person, though morally responsibl e i n al l relevan t respects , coul d stil l b e legall y excused o r justified i n exertin g reasonabl e an d necessar y forc e t o discourage a stranger's unprovoked , life-threatening attack . And a severely deprived perso n wh o happen s t o meet whatever standar d the law sets for th e defense o f insanity would, presumably, on tha t ground be absolved of legal responsibility. But in general, even th e 102 Desperation an d Necessity : Le s Miserable s on Trial • 10 3 broadest, most chroni c an d profoun d deprivatio n woul d leav e th e offender ope n to legal blame. Defenders of the criminal justice system would emphasize that the law does not completel y ignor e sever e deprivation amon g crimina l defendants. I n som e cases , th e defendant' s sever e deprivatio n i s judged not to completely absolve that defendant o f criminal responsibility , but t o someho w constitut e a "mitigating circumstance " fo r consideration during sentencing. If, on some theory, the deprivatio n is thought legall y relevant, though no t sufficien t t o undermin e th e defendant's responsibility , th e crimina l justic e syste m translate s a somehow mitigatin g deprivatio n int o a les s sever e sentenc e tha n might otherwise be imposed. It is not surprising that the courts would consider severe deprivation in this limited way. Judicially considering such deprivation a s a possible mitigatin g circumstanc e i s usefu l fo r syste m maintenanc e and legitimation . A criminal justice syste m that alway s imposed a n unabated crimina l sentenc e o n thos e whos e chance s o f avoidin g criminality were obviously limited would pa y an unnecessar y pric e in reduced public support an d in the morale of criminal justice system actors . Some jurors, certainly, would ten d t o fee l a potentiall y disruptive sympath y fo r crimina l defendant s whos e circumstance s were both criminogenic and unpleasant in the extreme. Allowing fo r th e possibilit y o f reduce d sentence s i n suc h case s thus reduces any uneasiness felt by those operating the criminal justice system and by the broader public. The legitimacy and stability of the crimina l justic e system i s enhanced , an d tw o majo r cost s ar e avoided. First, the public avoids the cost of alternativel y treating o r possibly even simply releasing obviously dangerous crimina l defen dants , o n ground s o f absenc e o f mora l responsibility . Suc h defen dants ar e instea d simpl y incarcerate d i n traditiona l fashion , thu s protecting th e public , althoug h fo r a perio d o f tim e shortene d i n some proportion to the degree of mitigation found . 104 • Desperatio n an d Necessity : Le s Miserable s on Tria l Second, society avoids the question o f whether i t should pay the public cos t o f reducin g th e numbe r o f person s raise d i n circum stances o f sever e deprivation . Sympath y migh t otherwis e lea d t o a social attac k o n suc h sever e criminogeni c circumstances . Bu t th e promptings o f sympath y ar e themselve s "mitigated " throug h ou r judicially mitigate d respons e t o th e crimina l defendant . Currently , the defendant's sever e deprivation ma y be "factored in " or "credit ed " toward his criminal...