59. Comparative flash points

When should people kill other people?  It sounds at first like an outrageous question, but it's not.  Our President recently guessed we've killed about 30,000 Iraqis, and I don't doubt he believes most of the killings were justified.  Michael Reagan said he thought Howard Dean should be "hung" (presumably he meant "hanged," but maybe he was thinking of Mussolini's end).  Two days ago Ann Coulter said: "We need somebody to put rat poisoning in Justice Stevens' creme brulee."

Coulter immediately added: "That's just a joke, for you in the media."  But she was mistaken: the distinguishing feature of jokes is that they're funny.   Here's a description of the death she claimed to think would be amusing if suffered by a 85-year-old man who (for all that I sometimes disagree with him) has served his nation with integrity for thirty years.

We've recently had news stories about the Florida man who punched a teacher's aide and was immediately lauded as "Father of the Year" by a radio station.  The radio station, in the time-honored tradition of leaders of lynch mobs, skipped the interim step of trying to determine if the aide had actually done what he was accused of doing.  (It seems pretty clear he hadn't.)  The punch wasn't lethal, but the radio station's impulse to approve of its infliction can't be easily limited to violence that falls on this side of that line.

Every society accepts as a basic governing principle that some violence is justified.  That means not only violence by the government - wars, arrests, imprisonments, the death penalty - but private violence, one citizen against another.  One important difference between societies is the way they decide when it's okay to kill.  

Attempts to explain America's homicide rate in terms of childhood abuse, poverty, the prevalence of guns and so on always founder on the unarguable fact that most people who were abused as children, live in poverty or own guns don't kill.  Each of these factors doubtless contributes to the overall rate - it's a safe assumption that most violent criminals (like most comedians, another hostile group) had wretched childhoods, and the ready access to weapons obviously promotes impulsive killings - but they aren't by themselves reasons for lethal violence.

With most homicides, I think, the decisive factor is the killer's conclusion that the victim deserves to die. 

Most murders are, from the killer's perspective of the moment, not merely rational but just.  A gangster disrespected by a member of a rival gang has no doubt about what the rival deserves.  Many men, and a few women, confronted with a partner who wants to leave likewise have no doubt about what the partner deserves. 

Texas notoriously long had on its books a statute that read: "Homicide is justifiable when committed by the husband upon the person of any one taken in the act of adultery with the wife, provided the killing take place before the parties to the act of adultery have separated."  (In 1885 this was codified as Penal Code, art. 567.)  But "in the act" was loosely construed. 

In State v. Price, 18 Texas App. 474, 5 Am. Crim. Reports 385 (1885), for instance, the husband went out to the corn crib one night to investigate his wife's absence from the house.  It was dark and he called out, "Who's there?"  His wife answered, identifying herself.  From rustling noises he gathered she had been lying down.  He asked who was with her and she said no one.  But then the lover, a man named Chandler, jumped out of the darkness and grabbed the husband's gun.  They tussled until the husband said, "Let go the gun, and let me go about my business."   Chandler let go and the husband shot him.  (It's  hard to blame the wife for preferring Chandler, isn't it?)  The husband didn't pretend he had actually caught the couple in the act:

"I do not know what they (Chandler and my wife) were doing. I did not take time to investigate that. I knew they were there for no good. ... I can't say that I thought they were having connection with each other at the time I called to them at the door of the crib; but by finding them together I supposed that their object was to have connection with each other[.]"

That, the Texas court determined, entitled the husband to a jury instruction on the issue.  Under Texas law, the jury was justified in concluding that Chandler deserved to die.

The Texas court noted that while the Texas statute was unique in America, every other state reduced homicide committed by the outraged husband to manslaughter.  As far as the other states were concerned, the homicide wasn't excused, as it was in Texas, but it was less culpable than other killings.  Blackstone, the font of 19th century American law, considered that killing the lover was manslaughter, but only "the lowest degree of it: and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation."  (pp. 191-192)  There's nothing quite like a gently-inflicted brand.

The American Heritage Dictionary, on-line at the wonderful Bartleby site, gives these two definitions for "flash point":

1. The lowest temperature at which the vapor of a combustible liquid can be made to ignite momentarily in air. 2. The point at which eruption into significant action, creation, or violence occurs.

Just as the flash points of combustible liquids fall along a spectrum, with gasoline's flash point at -40 F and kerosene's at +110, so do the figurative flash points of different societies.   That's one reason why homicide rates vary so enormously between different states.  (Compare Maine and Maryland in this FBI table.)   Blackstone and most Americans of the 19th century believed the husband's killing of his wife's lover was understandable but still not such a great idea; but Texans thought the back-door man deserved his fate.  Texas's flash point was lower than that of the other states.

The idea of comparative flash points also helps to explain why America's homicide rate is so much higher than those of the countries closest to us culturally, such as Canada, Australia and Western Europe.   (See page 29 of this British Parliament report.)  Americans are inclined to think homicide is justified at a lower level of provocation than are other peoples.

 The implications of this idea for the death penalty debate will be discussed in later posts.