Shades Of Reality

Chapter Eight

The American legal system is generally acknowledged (at least by Americans) as being one of the best in the world. All of the "bad guys" go to jail, and all of the "good guys" go free, right? In a court of law everybody is always treated equally, right? There is no possible way the system could be made better, right?

Imagine that you have just been appointed to become the king (or the queen) of a brand new country and that you, as the supreme authority, are to define the legal system that will henceforth become the "Laws of the Land." What would you do? (No, you're not allowed to abdicate!) Would you become a dictator? Would you establish an aristocracy that granted special privileges and favors to certain members of society? Would you implement an American-type of legal system?

Let's suppose that you are noble and altruistic enough to resist selfish temptations of greed, and that your newly aquired absolute power and supreme authority don't simply go to your head. Let's suppose that you sincerely want to try to create the best possible legal system that you can imagine -- one that was both just and fair for everybody in the kingdom. What would you do?

If I were king, I would solve the problem by appointing a Royal Legislation Committee to make and enforce the laws for me! This may sound like a "cop-out" (no pun intended), but it's really not. Before I would turn my committee loose, I would demand that each person on the committee adhere to a simple Prime Directive of Equality. At first, I wouldn't care what specific laws they would legislate or how they would choose to enforce them. But I would make it abundantly clear that every law and its enforcement must be implemented in accordance with my Prime Directive:

Prime Directive of Equality

Of course in real life no two separate actions are ever exactly identical, nor do they ever occur under exactly the same circumstances. But the Prime Directive of Equality says that I would not allow grossly different legal consequences to result from two nearly identical cases. The more similar any two cases would be to each other, the more similar I would require the legal outcomes of those cases to be.

Any law or courtroom verdict that did not conform to the Prime Directive of Equality would be immediately rejected. Every law that survived would therefore be fair and just for everybody. The Prime Directive of Equality would be the foundation of the entire legal system in my kingdom.

I wish that the Prime Directive of Equality could have been the foundation of the legal system in the United States, but unfortunately it's not! Furthermore, the laws in the United States don't even pretend to conform to this concept, even in principle! In fact -

The entire legal system of the United States openly
and publicly rejects the Prime Directive of Equality!

I would suspect that this fact comes as a bit of a surprise you. Perhaps you're thinking to yourself: "What kind of a nonsense statement is that to make? How dare you say that the United States rejects the idea of equality! Why, this country was founded on the principles of freedom and equality for everyone. It says so right in The Declaration of Independence: 'We hold these truth to be self-evident that all men are created equal.' So how dare you make such an absurd statement about our legal system not believing in equality!"

And yet, my statement remains true. (But before I explain what I mean, you might want to close the book for a few minutes and think about it. See if you can figure out for yourself just what it is that I'm getting at.)

Of course corruption can exist in any government, even in America. Some members of the police force and certain public officials might be "paid off" in exchange for favors. The results could certainly lead to violations of the Prime Directive of Equality. But that's not what I'm referring to in my previous statement.

Surely being able to afford a good attorney can help get a person acquitted, as we all saw in the O. J. Simpson criminal trial. Without access to such lawyers a similar defendant under exactly the same circumstances might have been convicted. But that's not what I'm referring to either.

Perhaps you think I'm referring to racial issues in which a white person on trial for a crime might get treated differently than a non-white. Nope, even that is not what I'm getting at.

How about witnesses who lie on the witness stand? Or how about cases in which it simply comes down to your word vs. somebody else's word? Or how about when a witness simply makes a mistake when testifying? Is that what you think I'm referring to? The answers to each of those questions are: no, no, and no, respectively.

What I'm referring to are not contrived, covert, or "once in a blue moon" types of examples. Nor are they the result of human frailties such as greed, prejudice, dishonesty, or even simple judgement errors. The kinds of things I'm talking about happen literally millions of times each day and in thousands of different ways. And they all happen with your complete cognizence and full approval!

Give up? Then let me give you just a very few examples. After you see the first one or two, you will surely be able to come up with hundreds of examples of your own.

The United States divides its citizens into two groups (or pseudocategories): those who are 18 years of age or older, and those who are less than 18 years of age. Members of the former group are allowed full and complete voting privileges. Members of the latter group are not allowed to vote at all.

Now consider two typical teenagers, virtually identical in every respect -- they each have similar levels of intelligence, similar attitudes and social values, and similar ages. However, one of the teenagers just celebrated his eighteenth birthday yesterday, while the other teenager will be celebrating his eighteenth birthday tomorrow. Today is election day. Each of the boys walks into the polling place. The two boys are virtually identical in age. In fact you would be hard pressed to determine which boy is older simply by looking at them or by talking to them. But as each one tries to step into a voting booth, one is allowed to proceed while the other one is denied access -- a clear violation of the Prime Directive of Equality!

In my kingdom no such arbitrary discrimination would be tolerated. If one of two virtually identical teenagers is granted a right to vote, then the other teenager would also have to be granted a similar voting right. But not so in America! (In the next chapter I will present the Realistic solution to the voting issue, a solution that doesn't violate the Prime Directive of Equality and, at the same time, still limits the voting rights of "minors.")

Imagine two virtually identical automobiles being driven by two virtually identical drivers on a road where the speed limit is 65 mph. One driver is traveling at 65 mph and the other driver is traveling at 67 mph. A policeman observes both drivers moving along the highway. The latter driver receives a speeding ticket, while the former driver proceeds unhindered -- another flagrent violation of the Prime Directive of Equality. (If 65 mph is to be considered as a "safe and acceptable" speed, then 67 mph cannot be regarded as being substantially less "safe and acceptable." Conversely, if 67 mph is "unsafe and unacceptable," then so too must 65 mph be just about as "unsafe and unacceptable" -- because the two speeds are virtually the same.)

In California it is illegal for any person with a blood alcohol content of 0.08 or higher to operate a motor vehicle.

Consider two virtually identical automobiles being operated by two virtually identical drivers under virtually identical levels of intoxication. Policemen stop each vehicle and test the drivers for sobriety. One of the drivers is found to have an intoxication level of 0.079 while the other driver is measured at 0.081. One of the drivers is arrested for driving while intoxicated, while the other driver is set free -- another violation of the Prime Directive of Equality. (If 0.081 represents "intoxicated" then 0.079 is just as "intoxicated" for all practical purposes. By the same token, if 0.079 is to be considered as not being intoxicated, then how can 0.081 be regarded as representing a substantially different level of sobriety?)

It is illegal for any person under 18 years of age to purchase tobacco products, such as cigarettes.

Again, consider two teenagers of virtually identical age -- except that one celebrated his 18th birthday yesterday, while the other will be celebrating his 18th birthday tomorrow. The former is allowed to purchase cigarettes, while the latter is prohibited.

I could continue on and discuss the minimum legal drinking age, and the laws that prohibit parking too close to a fire hydrant, and the laws that establish the minimum size fish that fishermen are allowed to catch, etc., etc., but I think you've gotten the idea by now. All of these laws involve partitioning a continuum into two parts by drawing some completely arbitrary boundary line, and then equifying one of the two parts to "legal" and equifying the other part to "illegal." (If your only response to this is: "Well, we gotta draw the line somewhere," then you had better go back and carefully reread Part One of this book!)

Legislators and other members of the legal profession view reality as little more than a game of make believe. The game is played on a playing field consisting of only black and white areas separated by perfectly straight horizontal and vertical boundary lines. The white areas represent "legal" and the black areas represent "illegal." The shades of reality don't exist for legal professionals. Their minds see only black or white -- legal or illegal -- guilty or not guilty.

There are no gently rolling hills and valleys on the landscape of law. There are only sheer cliffs and flat lands in this fantasy world. A "mountain" is nothing more than a cube (with perfectly vertical sides and a flat top) resting on a perfectly flat plane.

There is no twilight in this Aristotelian land -- at any point in time it's either bright daylight outside, or else it's pitch dark.

Like a bit inside of a computer, legal professionals can interpret only ones and zeros. If such "bit-brained" individuals were to look at the picture

(Figure 8.1)

shown in Figure 8.1 they would not see any regions of smooth transition between black and white. They would not notice the areas containing delicate fine structure and subtle shades of gray. Instead, they would see only Figure 8.2. This, to them, is reality:

(Figure 8.2)

I can hear them complaining: "Objection, Your Honor! The party of the first part (yours truly) is completely wrong! The law does allow for grayness. A judge has the right to take into account 'extenuating circumstances,' and, in so doing, he may reduce the sentence to any level that he deems appropriate."

"Objection overruled!" is my reply. Because "penalty" and "verdict" are two completely separate issues. Even if the penalty is reduced, the verdict still remains at 100 percent guilty. The only way to reduce the verdict would be to either change it all the way down to 0 percent guilty (i.e., not guilty), or else declare the defendant guilty of a lesser crime (but still 100 percent guilty of that lesser crime).

Our legal system acknowledges only all-or-nothing guilt. This means that if you perform some action (for example, speeding), and if that action is just barely "bad enough," then you are declared to be guilty of that action -- totally and completely 100 percent guilty. However, if somebody performs almost the same action, but just misses being "bad enough," then they are declared to be not guilty -- totally and completely 100 percent not guilty.

"I rest my case!"

In some countries, a person accused of a crime is presumed to be totally guilty of that crime until proven otherwise. It then becomes the burden of the accused person to clear himself. In our country, a person accused of a crime is presumed to be totally not guilty. It then becomes the burden of the victim(s) of the crime to prove otherwise.

Our legal system seems to bend over backwards to protect the rights of criminals. Even when they are convicted of a crime, criminals are often back out on the streets again after a short time, either on parole or because of reduced sentences. And when they commit a crime that has not yet come to trial, we, in effect, congratulate them for not yet having done anything wrong!

Of course the reason for our presumption of non-guilt stems from the possibility that the accused person might, in actuality, be totally not guilty (even though total non-guilt seldom exists in the real world), and therefore they should not have to wrongfully suffer because of the crime. But what about the victim(s) of the crime? What is the "possibility" that they "might" have wrongfully suffered because of the crime? Should we "presume" that a person who has been murdered isn't really dead until his murderer is actually convicted? Our laws protect the rights of criminals, but nothing retroactively protects the "rights" of those criminals' victims.

A totally fair legal system would not make any extreme presumptions of guilt either one way or the other. Instead, it would adopt a "wait and see" attitude -- a person accused of a crime would simply be "suspect" of the crime. But if for some reason a presumption regarding their guilt were to be needed, they would be presumed to be only 1/2 guilty. (As much as they hate to admit it, such a state of partial guilt already does exist in our present legal system. When a person accused of a major crime is awaiting trial, that person is kept in jail -- hardly the way to treat someone who is allegedly being presumed not guilty of the crime!)

It's a cool autumn afternoon in busy downtown Chicago. An elderly gentleman with gray hair and glasses sits quietly on a nearby park bench reading a newspaper while passersby walk to and fro tending to other matters, important and mundane. Suddenly, from out of the bushes steps a dark figure holding a dagger. "Look out!" screams a nearby woman. "He's got a knife!" The dark figure glares silently at the woman for a moment. "He can't hear you, bitch! He's deaf." Before the elderly gentleman can even look up from his newspaper, the knife plunges into his back, and he slumps to the ground. The assailant runs off through the crowded streets and disappears. The elderly gentleman is rushed to a nearby hospital where he later dies. A suspect is eventually found who matches the discription of the killer, and the suspect is brought to trial.

The above scenario represents the kind of incident for which a fairly "crisp" all-or-nothing guilt can probably be assigned. The murder was committed by a single assailant. Therefore, the suspect in custody either is the killer, or else he isn't. And it now becomes the task of the court to try and determine which of these two alternatives is the truth. The case is therefore an easy, "Perry Mason" type of case. By "easy," I mean that if all of the facts in the case were known, the Court would be able to say with a high degree of accuracy that the suspect is either 100 percent guilty, or 100 percent not guilty -- the kind of crisp verdict that conforms well with the American public's stereotype of criminal guilt.

But what if an accomplice had been involved? Should the woman who screamed be considered an accomplice simply because she saw the murder about to happen and had several seconds in which she might have tried to intervene, but chose not to risk her own life by doing anything more to stop the murder than merely screaming? How about all of the other bystanders? Might one of them have been able to prevent the murder from happening?

Try to imagine an infinite continuum of slightly different murder scenarios, each filled with different bystanders. Imagine that, in each scenario, the bystanders have different degrees of advance knowledge of the murder (ranging continuously from no knowledge at all ... to a slight hunch ... to complete knowledge). Further imagine that each bystander has a different degree of hatred for the old man ranging continuously from 0 percent (total indifference) ... to 100 percent (wanting to see him dead). And finally, imagine that each of the bystanders has a different degree of either direct or potential involvement in the incident, ranging continuously from 0 percent (didn't even see the murder happen) ... to 100 percent (standing right next to the assailant, ready to hand the knife back to him if he should accidentally drop it!)

Now the matter is not so easy and clear-cut. Even if all of the facts in the case were to become known -- even if God were able to come down and testify as to what each person's exact thoughts were -- how would you decide where (in the 3-dimensional continuum of knowledge, hatred, and involvement) to arbitrarily draw the "line" (or, more properly, the "surface") separating "accomplice" from "non-accomplice?" Where in this "twilight" area, which separates guilt from non-guilt, would you draw the line between "day" and "night?" Which of the infinite continuum of bystanders should be required to go to prison, and which ones shouldn't?

To some degree, all of the infinite number of hypothetical bystanders would be guilty of being accomplices. But the degrees of guilt would range anywhere from 0 percent (totally not an accomplice) all the way up to 100 percent (a full accomplice). And so each person would not simply either "be" an accomplice or "not" be one. Instead each bystander would be partially guilty of being an accomplice to whatever extent that he or she actually was an accomplice.

As another example of the concept of partial guilt, consider the crime of battery. How hard must a person hit someone in order for the hitter to be "guilty" of battery?

Let's suppose you are walking down the sidewalk and another person passing by accidently brushes lightly against the sleeve of your shirt. Is that person guilty of battery? Of course not. Let's suppose the next person who passes by also brushes lightly against your sleeve, only this time the contact is ever so slightly greater than in the previous brush. Is this second person guilty of battery? Of course not.

But now let's suppose that you go through the whole day experiencing thousands of such encounters, with each new "brush" occurring with just a tiny bit more contact and enthusiasm than the one just before it. By the end of the day the encounters will have gotten to be so violent that the persons hitting you will clearly be "guilty" of battery. But there would have been no specific point at which the guilts suddenly "switched on." Just as in the sorites paradox of trying to find the point at which a "heap" of sand becomes a "non-heap," you would not be able to point to any two consecutive encounters, one of which was clearly not a case of battery, while the second of which clearly was a case of battery. Instead, each subsequent person who bumped you would have simply been a little bit "more guilty" of battery than was his predecessor.

However, the reality of partial guilt (or equivalently, the partial existence of guilt) doesn't fit into the American legal system's "fantasy" of a black and white world -- an Aristotelian game of total guilt vs. total non-guilt. And whenever reality conflicts with fantasy, something's got to give. And so it's reality that gets rejected!