Today is my Mom's birthday. I like this 1947 photograph of her and my Dad, maybe partly because the baby is me.

Today Kelley and I checked out what had happened last night in Germantown here in Philadelphia, along Germantown Avenue from around Wister Street to Chestnut Hill, and along Chelten Avenue. All the places we saw broken into were small local pharmacies, small jewelry and cash-for-gold stores, and liquor stores. My sense is that this looting is by rootless criminals who aren't even from here, with no political cause at all, just being opportunistic, taking the chance to break into places where they can steal stuff easy to make money from, because they see that police aren't able to protect these local stores.

My sense is that the people doing the looting in Philadelphia and the rest of the the country are not the people demonstrating in memory of George Floyd gone wild, but are just opportunists with no political consciousness. And I think the people doing the arson are anarchists with an insane political consciousness, if they have any political consciousness at all.

I admire the people demonstrating peacefully in memory of George Floyd and others who have been wrongly killed and hurt, but I think people planning peaceful demonstrations should take into account that there are people who are hijacking your cause and using you to distract the police while they loot and burn.

And if you think "Fuck the Police" is a legitimate message, you should be more aware that people with weak minds may translate that into throwing cinder blocks off overpasses into the windshields of police cars, and mobbing police when the police are trying to protect your local stores from being looted and trying to protect people's homes and your local businesses from being burned.

A Turning Point In The Fight Against The Coronavirus?

Tuesday, April 28, it seems to me, will turn out to have been a turning point in the fight against the coronavirus. I don’t mean it will turn out to be where the battle was won. I mean it seems to me the point from which we will see a surge in new cases and deaths here in Philadelphia.

Kelley and I walk out most days in Fairmount Park here in Philadelphia along the Wissahickon, along Forbidden Drive and elsewhere. For these past few months we have been seeing people walking together in family groups, giving other people space. One day, a week or two ago, we walked past a bunch of college-aged kids who were hanging close with each other with no masks as if there were no need for social distancing, but they stood out as unusual in acting like that, and I could speak to them about it.

Tuesday for the first time, walking down near Rittenhouse Town to Forbidden Drive, the unusual suddenly had become common. College-age kids hung close in groups with no masks and no sense of social distancing. A pick-up drove by on Lincoln Drive with yahoos yelling, sounding to me like “Whoo-ee! We’re all going to die!” Last night the news showed a big crowd of people, many without masks, way too close to each other on the Art Museum steps watching the flyover by the Blue Angels. I’m seeing some of the workers at the Acme and Home Depot wearing their masks around their chins.

I think as the weather gets good and Trump and Pence and their idiot followers keep sending the message that we should all ignore the danger, some young people (and some stupid people of all ages) are saying to themselves: “The scientists probably don’t know any more than Trump! Nobody knows anything! We probably won’t die! It’s just the old people who will die!”

And it’s true that most of them as individuals won’t ever have devastating symptoms from the virus. But many of them even without symptoms are transmitting the disease when they congregate without masks, and the elderly in nursing homes are the ones who will be dying in increasing numbers.

Apparently it is just too difficult a concept to grasp for some folks, no matter how often it is explained, that by breathing or sneezing or coughing close to people, with no mask to protect them from you, you can be transmitting the virus even when you yourself have no symptoms.

The New York Times on Sunday published “Most Americans Who Carry the Coronavirus Don’t Know It” (https://www.nytimes.com/2020/04/26/opinion/coronavirus-test-asymptomatic.html), by Shan Soe-Lin, managing director of Pharos Global Health Advisors and a lecturer at the Jackson Institute for Global Affairs at Yale University; and Robert Hecht, professor of clinical epidemiology at Yale and the president of Pharos. They say:

“A small set of blood tests for antibodies indicated that as many as 2.7 million New Yorkers may have been infected without realizing it, Gov. Andrew Cuomo said on Thursday. That’s in line with other findings. A recent study showed that up to one-third of residents in Chelsea, a hot spot in Massachusetts, may have been infected, and only half of them could recall having a single symptom over the past four weeks. Another small study, of pregnant women in New York City, found that 15 percent tested positive for the virus, and 80 percent of them had no symptoms. Of the 840 cases on the aircraft carrier Theodore Roosevelt, 60 percent were asymptomatic.”

It really shouldn’t be hard to grasp. But I have no faith that everyone will follow the obvious precautions we should be taking to at least slow down the transmission rate so that hospitals will be able to take care of everybody as the cases explode. Until testing is more available and more reliable, nursing homes especially are going to be overwhelmed.

Testing is the key to being able to screen large numbers of people (like nursing home workers as they come to work every day). But Dr. Deborah Birx, the White House coronavirus response coordinator, says the United States will need a "breakthrough" in testing to screen large numbers of people (https://www.cnn.com/2020/04/27/health/antigen-tests-coronavirus-breakthrough/index.html).

She is saying the technology does not yet exist to do large-scale testing, which is of course in direct contradiction to Trump’s petulant false assurance that “Anybody that wants a test can get a test.” And people understand, I think – despite Trump’s false claims - that a vaccine may be a year to 18 months away. So social distancing and masks and hygiene are pretty much all we’ve got to slow this down for a year so that medicine can develop testing and treatments and vaccines before the death rate decimates the older half of our population.

The authority I have found most straightforward on the future of this public health crisis is Dr. Michael Osterholm, Director of the Center for Infectious Disease Research and Policy at the University of Minnesota. He has been giving a consistent message on the national networks that, until a vaccine is available, we should expect the virus to move at some rate (more slowly if we protect ourselves through masks and distancing and hygiene) towards the point where sixty to seventy percent of the population has been infected and we have thus reached the level of “herd immunity,” which would itself slow down the rate of infections as fewer people are vulnerable. We should expect to have to exercise protective measures of rigorous distancing and masks and hygiene for 16-18 months, as the work to develop a vaccine races against the virus’s progress towards the full “herd immunity” level of infection. See https://www.nbcnews.com/meet-the-press/video/full-dr-osterholm-we-re-missing-the-mark-in-a-big-way-right-now-on-testing-82581573553.  

Osterholm says existing testing is unreliable, but that more reliable testing can be developed, and is key to protecting vulnerable populations like nursing home residents by screening health care workers. Testing is key because younger populations will, over the next 16 to 18 months, have to be allowed to return to school and work. Those populations are on the average less likely to develop life-threatening complications when infected, but their return to work and school will mean higher levels of infection in the population, which will present a higher likelihood of life-threatening contagion to older and sicker populations until reliable large-scale testing is employed to screen caregivers. See https://youtu.be/0Zixm-bB7e4?t=59&fbclid=IwAR014crCZwSabLtUb2hdhx8N-YSUennZV_o47f8ycNwF-fLSy3kDCNQNo3o.

My sense is that the primary factors in handling this pandemic are the development of reliable large-scale testing, the development of treatments, and, longer term, the development of a vaccine, which hopefully will happen before 70% of the population is infected and herd immunity is reached, because if it goes that far we will likely have a very large number of deaths.

But there is going to be a significant delay in achieving testing and treatment and vaccines, and until we have those tools, we are going to be dependent on social distancing, masks, and hygiene. The trend I am seeing of people abandoning these practices gives me the sense that in the next few weeks in the Philadelphia area there will be a spike in reported cases as many of the new people getting infected start to show symptoms.

Update: I have just seen an announcement by Dr. Anthony Fauci of some good news in the development of a treatment. See https://www.youtube.com/watch?v=yvBiU3rD6uc. He discussed the positive results for a drug trial on the drug remdesivir, saying the results were "opening the door" to possible coronavirus treatments. He seemed quite positive about the development. That treatment would probably be too late to prevent the surge of cases I anticipate in the next few weeks, but it is good news for the longer-term future.

Attributing Providence to Evolution

Check out the NPR story Our Feet Are Fallible, But They Beat A Chimp's for another example of people casually attributing Providence to evolution (that is, seeing evolution as a source of goodness) and attributing intelligent design to evolution.

The story says, "evolution gave us the one-of-a-kind human foot we have" and "human feet remain one of evolution's finest designs."

I'm not opposed to attributing providence to Evolution, but it's good to be aware that this is a expression of religious belief, even if casually expressed, just as it is to say, casually, "Thank God I have good feet." Being aware of ourselves using such casual religious expressions will make us less surprised when people accuse us of promoting "secular humanism" as a religious view appropriate for schools and trying to force out the traditional religions which overtly attribute Providence to God.

Here's the whole text of the NPR blurb.

If you've ever had reason to curse your feet — say, after a day at the mall, an evening in high heels or a lengthy jog — you might keep in mind that they are a whole lot better at doing what we need them to do than a chimp's feet.

Our ancestors had something like a chimp's foot. It was flat and flexible, made for grasping tree limbs. But it didn't take them very far.

How evolution gave us the one-of-a-kind human foot we have — taut and more efficient for walking than any other primate's foot — is the subject of the next story in our “Human Edge” series on human evolution.

You'll find out that the tendons in your foot give you an arch that acts like a spring, returning energy to your body with every step you take. You'll learn to appreciate that big toe, warts and all, because it means you can run.

True, evolution hasn't taken us beyond athlete's foot or hangnails or bunions.

But human feet remain one of evolution's finest designs. Without them, we'd just be bootless.

For another example, see Evolution Again Credited with Creation.

Magistrate Court Mediation

For the last sixteen months or so, I have been acting as a mediator twice a month in local West Virginia magistrate-court “small-claims” cases, which the magistrates schedule for mediation in the hope the parties will settle and the cases will not have to be heard in court. These are the kind of disputes that, many years ago, would have been settled in local neighborhood or church or family or clan forums, where the disputants are not primarily focused on the enforcement of legal rights, but are seeking a genuine resolution of a dispute that is creating disharmony in the private sphere.

The fragmentation of families, social mobility, and the loss of idiosyncratic cultural forms, especially in the United States, have meant a loss of traditional dispute-resolution forums. People often are not able to turn, as many could years ago, to an extended family or clan, to the church, to their ward leader, to the cop on the beat, or to their neighborhood leaders to resolve disputes.

Added to the loss of these forums is the criminalization of some traditional “dispute resolution” methods. “Fighting it out” physically is considered to be against the law, even where honor and self-respect and wrongs done to innocent family members or friends traditionally called for it, and even when all parties involved agree to it.

So the courts have become the place to go to resolve disputes. (As The Peoples’ Court used to say, “Don’t take the law into your own hands. You take ’em to court!”). But the courts have become overloaded, not only by this assumption of dispute resolution responsibilities, but also by the government’s assumption over the last hundred years of the role of protector in areas where government never entered before. From Social Security to spanking your kids, the government has enacted laws that enter deeply into areas that formerly were considered to be the private business of individuals and families and small companies and other private institutions. All those laws have to be enforced, and they have to be enforced under much more stringent constitutional protections afforded to defendants than those in force a hundred years ago. This takes resources, and the money is not being appropriated to enable the courts to handle the load.

So the understaffed courts are desperately seeking to unload some of their case load, and one of the obvious kinds of cases to try to unload is the kind of case that would have been formerly settled in local neighborhood or church or family or clan forums before they ever got to the court system (and ideally before people even started fighting over them).

In these disputes the disputants are often not seeking enforcement of legal rights at all. Judges are driven crazy by people coming into court seemingly just to be able to tell their long complicated stories about how they were wronged (or even about how someone else was wronged), citing traditional notions of right and wrong which are often not enforceable by contemporary law. The complainants often want something it is not in the judge’s power to give in our contemporary courts, though in ancient times (still preserved in disputants’ minds through the Bible and other sources) a judge’s role might have been to do precisely what they expect of him now: that is, to discern the moral right and wrong in both the pleader’s and the other’s actions or in their attitudes, to order the parties to do penance and thereby heal the psychological rift between them, and, often, to give them what they didn’t even know they wanted.

This (perhaps unconscious) expectation of disputing parties that a judge (as in mythic ancient times) will help them unravel what the problem is, to help them understand what they actually need, is perhaps most maddening to a contemporary judge, who may be forbidden to give relief that is not specifically asked for, or to give relief to a third party when it is asked for by someone else. And disputants who bring those disputes to court are themselves extremely unsatisfied with the courts’ high costs, bewildering arcane rituals, incomprehensible language, disregard for their value as human beings, and blindness to their true interests.

There are other types of cases being handled by alternatives to adjudication. Disputes between unions and management have long been handled through arbitration, disputes between merchants have been arbitrated by mercantile courts since before the United States was formed, and many other kinds of dispute-resolution alternatives exist. But these disputes that would have been formerly settled in local neighborhood or church or family or clan forums, where the disputants are not primarily focused on the enforcement of legal rights, but are seeking a genuine resolution of a dispute that is creating disharmony in the private sphere, are good candidates for mediation of the sort I have been doing.

As a mediator I am often able to help parties resolve their disputes, or at least understand each other better and treat each other with more respect as they move towards resolution. Often these are neighbors or family members in disputes with each other, or other parties in continuing relationships with each other, so that respect is important in itself. And usually the parties feel a mutual obligation to help heal the rift (even the plaintiffs often feel this obligation), but have not known how to go about it, and I can sometimes help them work out a way to do that.

Very often the agreement comes about through symbolic acts rather than through significant monetary relief. There can be a pastoral dimension to mediating as well as a hammering-out of legal monetary obligations.

Of course many cases don’t settle. More would settle if I had more skill.

And the power imbalances between parties can sometimes have even more unfair consequences in mediation than those same power imbalances would in court, where the magistrate has more control over the process and perhaps more knowledge of how to structure an enforceable agreement. So it’s not always a better alternative. But I’m glad the forum is there for the good it does.

The Execution of an Innocent Man

In the 2006 case Kansas v. Marsh, U.S. Supreme Court Justice Anton Scalia affirmed that, in the modern American judicial system, there has not been “a single case—not one—in which it is clear that a person was executed for a crime he did not commit.”

In the past year, a nominee for this tragic distinction has again been put forward. Strong evidence suggests that Cameron Todd Willingham, who was executed by the state of Texas in February of 2004 at the age of 36, was wrongfully convicted of burning his three small children to death. The prosecution’s primary witness, state fire marshal Manuel Vasquez, who testified at trial that the deadly fire was arson, has been thoroughly discredited in his science and his methods by several experts in the field of arson forensics, including Craig Beyler, who was hired by a Texas state commission to investigate errors and misconduct in the handling of the forensic evidence in that and another case. Beyler concluded: “A finding of arson could not be sustained.” Beyler not only found the methods used by Vasquez to fail to conform to standard methods of fire investigation, but said that Vasquez seemed to be “wholly without any realistic understanding of fires.” He said the fire marshal’s approach seemed to lack “rational reasoning” and he likened it to the practices “of mystics or psychics.”

Nationally respected fire investigator Dr. Gerald Hurst had also reported his conclusion that there was no evidence of arson. Four days before Willingham’s execution in 2004, his attorney attached Hurst’s report to a petition seeking relief from the Texas Court of Criminal Appeals, and from the governor. The courts and Texas governor Rick Perry did not act to halt the execution, which was carried out on February 17 of that year. Journalist David Grann, in “Trial by Fire,” in the September 7, 2009, New Yorker magazine, interviewed members of the Texas Board of Pardons and Paroles, which reviews applications for clemency. His interviews leave one with the sickening impression that Hurst’s report was not even looked at:

LaFayette Collins, a member of the board at the time, told me of the process, “You don’t vote guilt or innocence. You don’t retry the trial. You just make sure everything is in order and there are no glaring errors.” He noted that although the rules allowed for a hearing to consider important new evidence, “in my time there had never been one called.” When I asked him why Hurst’s report didn’t constitute evidence of “glaring errors,” he said, “We get all kinds of reports, but we don’t have the mechanisms to vet them.” [emphasis added]

Hurst, along with three other fire investigators—private consultants John Lentini and John DeHaan, and Louisiana fire chief Kendall Ryland—was asked by the Chicago Tribune later that year, after Willingham’s execution, to review additional documents, trial testimony and an hour-long videotape of the aftermath of the fire scene. The Tribune reported:

“There’s nothing to suggest to any reasonable arson investigator that this was an arson fire,” said Hurst, a Cambridge University-educated chemist who has investigated scores of fires in his career. “It was just a fire.”

Ryland, chief of the Effie Fire Department and a former fire instructor at Louisiana State University, said that, in his workshop, he tried to re-create the conditions the original fire investigators described. When he could not, he said, it “made me sick to think this guy was executed based on this investigation. ... They executed this guy and they’ve just got no idea—at least not scientifically—if he set the fire, or if the fire was even intentionally set.”

Fire expert John Lentini told the Tribune, “There was no evidence to support a conclusion that the fire was intentionally set. Just an unsupported opinion."

In a lethal irony, Earnest Willis, convicted on the same kind of invalid evidence, was freed October 6 from the same facility where Mr. Willingham had been executed February 17. Willis had been convicted of setting a fire that killed two women, and after 17 years on Death Row, had been granted a new trial on unrelated legal issues. Pecos County District Attorney Ori White had to decide whether to retry Willis. White asked Hurst and Kendall Ryland to review the fire evidence.

Hurst told David Grann, “It was like I was looking at the same case.” Hurst concluded there was no evidence of arson, and Ryland concurred. White then dropped the case against Willis. After seventeen years on death row, Willis was set free. White told the Tribune, "I don't turn killers loose. If Willis was guilty, I'd be retrying him right now.” White noted to Grann how close the system had come to murdering an innocent man. “He did not get executed, and I thank God for that,” he said.

In 2006, the Innocence Project commissioned Lentini and three other independent fire investigators—Daniel L. Churchward, David M. Smith, and Douglas J. Carpenter—to conduct an independent review of the arson evidence in the Willingham and Willis cases. The panel concluded that, counter to what the prosecution had alleged in convicting Todd Willingham, the fire that killed the Willingham children was not an incendiary fire. They concluded, in fact, that neither fire was arson. The panel also concluded that “each and every one” of the indicators of arson relied on by the state’s expert witness in both cases had been “scientifically proven to be invalid.” (See http://www.innocenceproject.org/docs/-ArsonReviewReport.pdf.)

The Texas Forensic Science Commission which commissioned Craig Beyler to investigate the Willingham forensic evidence also asked Beyler to look at the evidence in the Willis case. Beyler found that in both cases, “The investigators had poor understandings of fire science and failed to acknowledge or apply the contemporaneous understanding of the limitations of fire indicators. Their methodologies did not comport with the scientific method.” He found that in both cases “A finding of arson could not be sustained.”

However, as Beyler noted, “On October 6, 2004 Mr. Willis was released from prison and on February 17, 2004 Cameron Todd Willingham was executed by lethal injection.” (See http://www.docstoc.com/docs/¬document-preview.aspx?doc_id=10401390.)

In Kansas v. Marsh, Justice Scalia said:

Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to….

Could Justice Scalia still affirm that, in the modern American judicial system, there has not been “a single case—not one—in which it is clear that a person was executed for a crime he did not commit”? And if one could hang onto some thread of belief that Scalia’s assertion is still true, what would it prove? Would it prove “the system works”?

According to the Innocence Project, a non-profit legal clinic affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University, seventeen people in the United States have been exonerated by DNA testing after serving time on death row. Does anyone believe that those seventeen were exonerated by “the system”? Or is it more likely that the system would have put them to death if not for the volunteer efforts of students and lawyers? And does anyone really believe that these seventeen are the only cases in which someone has been wrongfully sentenced to death?

Perhaps we must accept the possibility that someone will be punished mistakenly in any large-scale system of criminal justice. But Scalia’s assertion that “in the current American system, that possibility has been reduced to an insignificant minimum,” would be a callous attitude today in the face of the decidedly significant execution of an innocent man.

Blame and the Purpose of Judgment

Job's Evil Dreams: William Blake's 1805 illustration to the Book of Job reveals Job's God as Satan, the Accuser, inhuman with cloven hoof, accusing Job from the Book of the Law. The serpent entwining Job’s God is that same serpent who tempted us, in the garden, to eat of the tree of the knowledge of good and evil; to see evil in the world, in others, and in ourselves, and to ourselves become accusers.

I have been troubled by the seemingly unquestioned assumption, even here at the College of Law, that a proper purpose of the judicial system is to punish people for their sins. In a discussion of Truman Capote’s In Cold Blood, for instance (which we read as part of a “perspectives” course), a central focus of the discussion was whether the two convicted killers “deserved” to be executed for their crimes.

Bernhard Schlink’s The Reader, dealing with post-war Germany, most saliently presents this assumption. The Reader depicts post-war trials of low-level Nazi prison guards, which became trials for moral crimes rather than for acts which were “criminal” under the German legal system as it existed when the acts were committed. Michael Berg, the fictional narrator of The Reader, as a young post-war law student, joins a seminar devoted to following a trial of female former prison guards, one of whom freely confesses her actions but is bewildered by accusations of criminality . The students and their professor wrestle with the problem of what we would call ex-post-facto laws which criminalize acts after their commission (a practice which in the United States, of course, is explicitly prohibited by the U.S. Constitution):

I do remember that we argued the prohibition of retroactive justice in the seminar. Was it sufficient that the ordinances under which the camp guards and enforcers were convicted were already on the statute books at the time they committed their crimes? Or was it a question of how the laws were actually interpreted and enforced at the time they committed their crimes, and that they were not applied to them? What is law? Is it what is on the books, or what is actually enacted and obeyed in a society? Or is law what must be enacted and obeyed, whether or not it is on the books, if things are to go right? (The Reader, pp. 90-91)

In any case, “It was evident to us,” Berg says, “that there had to be convictions.” If law is “what must be enacted and obeyed, whether or not it is on the books,” then there “had to be convictions” for moral crimes. But if a law not on the books must be obeyed, where does one go to discover the law?

The prophet Jeremiah (31:33-34) records a revelation from God that there will come a time when it will no longer be necessary for even the least of men to be instructed in the law, because, God says, "I will put my law in their minds and write it on their hearts.”

"This is the covenant I will make with the house of Israel
after that time," declares the LORD.
"I will put my law in their minds
and write it on their hearts.
I will be their God,
and they will be my people.

"No longer will a man teach his neighbor,
or a man his brother, saying, 'Know the LORD,'
because they will all know me,
from the least of them to the greatest."

But has that time come? Can we decide that the least of men and women (like Hanna, the pitiful illiterate woman on whom judgment falls in The Reader) is obliged, under pain of imprisonment, to know what law must be obeyed, whether or not it is “on the books”? Is punishing people for their sins a legitimate function of the judicial system? I think it is not, and I think we damage the judicial system and our culture and ourselves when we use it that way.

There is no doubt that our judicial system retains vestiges of its ancient origins, in which moral judgment was a prominent feature. Despite the historic evolution of law which has moved away from this tendency, we still see it. For instance, jurors are required to pronounce, in our criminal trials, not just whether the facts alleged by the prosecution are proved beyond a reasonable doubt, but whether the accused, beyond a reasonable doubt, is “guilty.” In the concept of guilt is rooted moral judgment. As recently as 1994, Victor v. Nebraska, 511 U.S. 1, examining the constitutionality in two criminal cases of the jury instructions on reasonable doubt, found it necessary to object to a common instruction to jurors that, to convict, they must have “an abiding conviction, to a moral certainty, of the guilt of the accused.” (511 U.S. 1 at 4.)

Sentencing is commonly based on what a defendant “deserves.” See, for example, Bible v. State, 162 S.W.3d 234, (Tex. Crim. App., 2005), in which the Texas appeals court refused to find error in a prosecutor’s statement to a jury that “you are on this jury because you believe that there are crimes that have been committed and defendants who exist that deserve the death penalty. Because you appreciate the fact that there is [sic] some people born you just can't do anything else with.”

So the endorsement of the use of the judicial system to pass moral judgment is not merely an outsider view; it is embedded in prevailing judicial practice. Nevertheless, I think it is a mistake.

Jesus said, “Judge not, lest ye be judged.” This is true not merely because Jesus said it. Rather, Jesus said it because it is true. When we authorize and legitimize blame, blame becomes a demonic force. People who nurse a grudge and nourish blame, by telling themselves they are entitled to engage in it, send forth into the world that demonic force, which can come back and harm them just as it harms others. It can harm them more easily because they have given blame authority. Since they have affirmed that it is right to blame, they cannot defend themselves when the blame turns on them. Or, as we say, when they begin to blame themselves, which they do as they learn that they cannot claim to be any less of a sinner than those others they condemn, as we all learn eventually. Endorsing the use of the judicial system for the purpose of moral condemnation gives a big impetus to this demonic force I describe.

The Purpose of Judgment

I am not suggesting that the judicial system abandon its responsibility to protect us from harm. I am suggesting that judgment be oriented to the future rather than to the past. We should not shut our eyes to spiritual depravity displayed by criminals. Disposition and sentencing should take it into account for the danger it bodes for the future. To the extent that criminals show no sign of rehabilitation, we must guard ourselves against them, perhaps to the extent of executing them.

Judgments of execution bring the most heightened focus to the use of the judicial system to pass moral judgment. I believe one reason many people are against the death penalty is that it is inextricably tied up for them with moral condemnation. They know intuitively they shouldn’t base execution on moral condemnation, and so they believe there should be no executions at all.

I want to describe a scenario which helps me feel clearer on this question: Imagine a small nomadic tribal group, basically an extended family, which relies for its very survival on all its members being sane enough to not jeopardize dangerous necessary tasks like taking herds of animals across fast-moving, swollen spring rivers. A member of the group who couldn’t or wouldn’t stop acting in an anti-social, reckless way could endanger the survival of the whole extended family. I imagine that the family might have to kill such a person to survive, even though they might not want to, even though they continued to love him, and even though they might not condemn him morally. This illustrates for me how “sentencing” and even execution can function without moral condemnation. I think this is how judgment should function.

Jesus’s admonition – “Judge not lest ye be judged” – and the truth it expresses, which I urge should guide the way we look at this question, echoes the Biblical story (Genesis, Chapters 2 and 3) of our expulsion from the garden of Eden as a result of “eating of the tree of the knowledge of good and evil”:

And the LORD God commanded the man, saying: 'Of every tree of the garden thou mayest freely eat; but of the tree of the knowledge of good and evil, thou shalt not eat of it; for in the day that thou eatest thereof thou shalt surely die.'

And they were both naked, the man and his wife, and were not ashamed.

Now the serpent was more subtle than any beast of the field which the LORD God had made. And he said unto the woman: 'Yea, hath God said: Ye shall not eat of any tree of the garden?'

And the woman said unto the serpent: 'Of the fruit of the trees of the garden we may eat; but of the fruit of the tree which is in the midst of the garden, God hath said: Ye shall not eat of it, neither shall ye touch it, lest ye die.'

And the serpent said unto the woman: 'Ye shall not surely die; for God doth know that in the day ye eat thereof, then your eyes shall be opened, and ye shall be as God, knowing good and evil.'

And when the woman saw that the tree was good for food, and that it was a delight to the eyes, and that the tree was to be desired to make one wise, she took of the fruit thereof, and did eat; and she gave also unto her husband with her, and he did eat.

And the eyes of them both were opened, and they knew that they were naked; and they sewed fig-leaves together, and made themselves girdles. And they heard the voice of the LORD God walking in the garden toward the cool of the day; and the man and his wife hid themselves from the presence of the LORD God amongst the trees of the garden.

And the LORD God called unto the man, and said unto him: 'Where art thou?'

And he said: 'I heard Thy voice in the garden, and I was afraid, because I was naked; and I hid myself.'

And He said: 'Who told thee that thou wast naked? Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat?'

When we “eat of the tree of the knowledge of good and evil,” when we see evil in the world, when we pronounce moral judgment, when we authorize the Accuser (Hebrew הַשָׂטָן - Satan) within ourselves, we become afraid, because we intuitively understand that the Accuser we have unleashed is not subject to our control, but is truly a demonic force, and we sense that we too are naked to accusation.

Eating of the fruit of the tree of the knowledge of good and evil, i.e., passing moral judgment, is a compelling idea for us because we think that to pass moral judgment is to be like God. The image of the judge issuing moral condemnation doesn’t seem wrong to us because we are still seduced by the serpent. (“Ye shall be as God, knowing good and evil.”)

William Blake suggests, in his illustration to the Book of Job above, that the God many of us believe in, who rewards and punishes - the judge-god who approves or condemns - is actually the Accuser, Satan. In the Book of Job, Satan convinces God to let him test Job - to see if Job will continue to praise God when Job believes God is punishing him, as he had praised God when he believed God was rewarding him for his virtue. In punishing Job, Satan is able to make Job feel accused of sin, because Job, like many of us, believes the physical conditions of his life are rewards for virtue or punishments for sin. Blake reveals the God that appears to Job, the judge-God in which many of us believe, accusing us from the Book of the Law, to be in fact Satan, the Accuser, the inhuman demonic force that humankind unleashes by eating of the tree of the knowledge of god and evil, by legitimizing blame.

If we believe in a God who issues moral condemnation, it is difficult to wean ourselves from a belief that our judicial system, too, should do so. But we must extricate ourselves from this belief. We have to look deep into ourselves, confess that we are become the Accuser, and repent.