July|August 2003



APOLOGIES EXCEPTED
At a May pretrial hearing for the accused teenage sniper Lee Malvo, a judge in Fairfax, Va., refused to exclude a tape of the young suspect laughing during a police interrogation as he described his role in last fall's killing spree. His victims included FBI analyst Linda Franklin and James Buchanan, whom he gunned down while Buchanan was mowing the lawn.

Malvo's crimes are among the most heinous in recent memory, but his apparent lack of remorse, while chilling, is something he shares with many youthful offenders. In "So Young and So Untender: Remorseless Children and the Expectations of the Law," Martha Grace Duncan explores the fate of children who kill playmates, parents, or strangers, and then laugh, joke, or even write songs about their crimes.

Officially (through expert psychological testimony) and unofficially (through judges' and juries' observations of a defendant's demeanor), courts weighing the crimes both of adults and of
children use remorse as a way of gauging how successful rehabilitation might be.

But by evaluating a child's contrition the same way they do an adult's, courts frequently fail to consider the complexities of child development, Duncan suggests. She points to evidence showing that children display a "short sadness span" and, more so than adults, tend to suppress painful emotions as a way of coping with grief.

Duncan isn't a child development expert—she's a law professor with a Ph.D. in political science—but she marshals the work of the experts in the field to back up her criticism. She's also not the only member of the legal academy making this argument. Jeffrey A. Fagan, a professor of law and public health at Columbia, told The New York Times last fall that "kids probably don't have the expressive tools to adequately convey remorse even when they feel it, and yet it's held against them in sentencing."

Fourteen-year-old Sherard Martin, for instance, shot a fellow teen, who died a month later from his injuries. During a hearing to decide whether Martin should be tried as an adult, expert witnesses for the defense claimed that Martin was a good candidate to be rehabilitated and posed little risk to the community—both reasons, under state law, to try him as a juvenile. But the judge ordered that Martin be tried as an adult, stating that the boy's face looked "impassive" and "amoral." Thanks in part to his lack of expression, Duncan argues, Martin received the 25-year sentence of an adult. Columbia Law Review, Volume 102, Number 6

NO PLACE LIKE HOME
"A man's house is his castle" is an adage that carries the weight of the law. Most states allow a broad right of self-defense in the home; rather than imposing a "rule of retreat"—which requires exhausting all reasonable means of escaping danger before using deadly force against an aggressor—these states allow you to stand your ground in your house. But what if the aggressor is your husband?

In "Of the Enemy Within, the Castle Doctrine, and Self-Defense," Catherine Carpenter questions the exclusion of fights between cohabitants from the "castle doctrine" by states like New Hampshire and Florida. She points to the case of Kathleen Weiand, a Florida woman who shot her serially abusive husband through a door after breaking free from his chokehold. Had her attacker been a burglar or even an invited guest, Weiand would have been free to use violence to protect herself. But because she was attacked by her husband, a resident of her house, the law worked differently, and the jury was instructed that Weiand could not plead self-defense unless she had first attempted to escape. Weiand, whose lawyer argued that she feared her husband would kill her if she fled the house, was convicted of second-degree murder and sentenced to 18 years in prison.

Not every shooting victim is as unsympathetic as Weiand's husband, and courts are understandably uncomfortable with the idea of giving housemates carte blanche to settle disputes with violence. Faced with a case involving similar circumstances to Weiand's, the Connecticut Supreme Court opined that castle doctrines weren't intended to allow "the reenactment of the climactic scene from High Noon in the familial kitchens of this state." What Carpenter argues, by contrast, is that Kathleen Weiand is no Gary Cooper—she wasn't too proud to run, just too scared. Marquette Law Review, Volume 86, Number 5

THE IMMORAL INTELLIGENTSIA
To his list of titles, Robert Bork recently added Professor of Law at Ave Maria School of Law, the new Catholic institution in Ann Arbor, Mich., that graduated its first class this spring. The school's motto, Fides et Ratio ("Faith and Reason"), is taken from a 1998 encyclical letter by Pope John Paul II, in which he describes those capacities as being "like two wings on which the human spirit rises to the contemplation of truth." One place you can see those wings beating is in the pages of the inaugural issue of the school's law review, to which Bork is a contributor.

The former federal judge and Supreme Court nominee picks up a theme he has been developing for decades. American law, he argues, is marked by a disorder that "lies in our failure to respect the crucial difference between elected representatives and unelected judges."

Bork believes that judges should respect the moral preferences of the majority as expressed by duly elected legislators through, for instance, statutes banning partial-birth abortions. He attacks those who hold that judges have the authority to strike down such laws and base legal rulings on their own moral predilections.

But while his article is ostensibly about the corruption of constitutional law, Bork seems more concerned about the corruption of our culture's "moral tone" at the hands of the "intelligentsia," which he says is made up of "law schools, the print and electronic media, Hollywood, foundation staffs, and many of the clergy and staffs of churches." Perhaps for this reason, his 11-page article reads more like a polemical lecture than a scholarly essay. And while the piece does straightforwardly present the syllogisms of Bork's constitutional faith, it also takes no account of the forces of law and culture embodied in the conservative shift of the current Supreme Court majority, which Bork would have been part of had he been confirmed in 1987. Ave Maria Law Review, Volume 1, Number 1.