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Article

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The Death Penalty and the Society We Want, 6 FRANKLIN PIERCE LAW REVIEW 369 (2008)

Abstract

Winston Churchill once observed: “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of any country. . . . [They] mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue within it.” It is worth a moment to examine how our society measures up by this standard and to look at the role that lawyers play in shaping the kind of society we have.

At the local level, we can tell a lot about a community by how it treats a homeless person suffering from schizophrenia who is begging on the street. One possibility is to look upon that person with the thought that there but for grace go I, that this person is desperately in need of help, and that we—individually and as a community—must respond by giving a helping hand and making sure that the person receives food, shelter, clothing, and care for such a debilitating mental illness. Another possibility is to simply ignore the person, to step around him or her on the way to buying a five-dollar cup of coffee, asking one’s self only: “Why should I help this person? Why should I give any money? Why should I do anything at all?” Another approach—the predominant view in many communities today—is to ask, why isn’t that person in jail? Why hasn’t the person been arrested for violating one of the “quality of life crimes” which many communities have adopted to protect the quality of life of those better off at the expense of those who are worse off? They have accomplished this by criminalizing behavior such as jaywalking, loitering, panhandling, and other conduct that makes it possible for the police to arrest almost anyone to clear the street of people we do not want to see. This is the “broken windows” approach to policing that Rudolph Guiliani used in New York. It uses the criminal law to clear the streets of the homeless, the mentally ill, and other “undesirables.” So there are three possible approaches: compassion, indifference, and hostility. The one adopted by a community tells us a lot about it.

Date of Authorship for this Version

2008

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