259. Moral neutrality

Judith Herman's Trauma and Recovery: The Aftermath of Violence - from Domestic Abuse to Political Terror is a powerful book about the core concerns of this blog.  I'll have more to say about it in subsequent posts.  (The list of planned follow-ups seems to be expanding faster than the time to follow-up in, but I'm banking on soon discovering an anomaly in the space-time continuum.  They always show up when most needed, after all.)

The basic idea of the book is to synthesize research into the specific forms of trauma, and the specific paths to recovery, experienced by Holocaust survivors, combat veterans and victims of criminal violence.  In one way it's hardly a surprise to discover there are many parallels.  But in another way it's deeply disturbing to realize that we, in our phenomenally-violent country, are every day creating more Holocaust survivors.  It's just that we, with our American individualism as opposed to German industrial efficiency, create them one by one rather than en masse.

In an afterword to her book, discussing some of the critical response it generated, Herman writes: "[M]oral neutrality in the conflict between victim and perpetrator is not an option." 

This fragment of a sentence will be the motto of this blog, because it captures what is most objectionable about our criminal justice system.  It was devised to be society's response to the perpetration of violence, but it's in the hands of a professional elite that prides itself on maintaining a pose of moral neutrality. 

Probably most judges who are articulate enough to put the thought in words would say that they seek procedural fairness, a neutrality within the courtroom only.  But events inside the courtroom have consequences outside the courtroom.  (See post 224.)  The very conception of procedure as something distinct from the proceeding, and the related concept that the result of a proceeding is distinct from the proceeding itself, are two of the purest examples of the mechanical mental process that law students are trained to engage in as a substitute for thinking.  (See post 137.) 

Moreover, "fairness" is a word with many meanings, and one of them is making sure that the contest isn't wholly one-sided.  (See post 115.)  And, of course, it's entirely natural for judges to identify with fellow lawyers, and to be reluctant to see a likeable colleague getting pummelled.  So a great deal of what is packaged as "fairness" really boils down to giving defense counsel an appreciable chance of winning the case - or, in abstract terms, to dividing the question of conviction/acquittal from the prior question of guilt/innocence. 

I don't think anyone in the business would dispute that even a guilty defendant is sometimes entitled to acquittal.  Sometimes the proof of his guilt just isn't there.  The great trend of the past half-century has been to expand the pool of guilty people entitled to acquittal.  Which is to say: every day our criminal justice system comes closer to achieving a stance of moral neutrality as between perpetrators and victims of violence.