Criminal Justice Through SF by Olander, Joseph D. & Martin H. Greenberg, 1977

Criminal Justice Through SF by Olander, Joseph D. & Martin H. Greenberg

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Over the last year or so I have become very interested in how SF authors treat the law in their fiction. Finding good legal themed SF has not turned out to be as difficult as I thought it would be. This review is of a book of legal themed SF by a variety of authors. Some of the following is absolute crap. Thankfully, not all of it. A few of these stories are spectacular; some of the finest social science fiction out there without even considering the legal angle. I've taken some liberty here in deconstructing these stories. Many of the stories take place on alien planets with different legal systems, and though they all seem to be based on either the English common law or Napoleonic code systems, there are some stark differences in public policy. I figured that it would be too difficult to deconstruct these stories in their native environments, so what critical commentary that you see here came from our own modern perspective.

THE UNDERCITY, by Dean R. Koontz 1973, originally published in Future City: The Undercity is an early Dean Koontz short story about a criminal mafia-type organization that operates in a far future New York City that itself is a virtual double of Asimov's New York City in The Caves of Steel. Society is extremely permissive in this future, which made the Mafiosoís job pretty difficult. Most of the big crimes from our era have been legalized, or at the very least decriminalized. Gambling, prostitution, the transportation, sales and use of drugs, numbers, and all other forms of vice were no longer illegal; in fact murder had been decriminalized as well, but only when forms of conduct were adhered to - essentially people could duel with each other, and if one of the duelers was killed, so be it; the other got a pass.

In the story a senior Mafioso was at home after a busy day, settling down for the night, telling his young child about his day. He was preparing the child to enter into the business one day, and was trying to teach the child how to run scams instead of telling bed-time stories. In a world where every vice is legal the average criminal has to be very inventive or he will soon be out of business.

It is hard to tell if this civilization is halfway between utopia and dystopia, but things are not all right in New York. What The Undercity is not about is how the law works, or even how it fails to work. It is about how someone who operates outside the law can game the system for personal financial advantage. It stands for the proposition that all you need in order to win is some kind of proscribed conduct. In other words, no matter what is disallowed, someone somewhere at some time will want to break that rule, and if you are there at the right time and place, you can facilitate that need and make some illicit profit. For example, in this story the gangster:

  • Sold a map to a couple who wanted to leave the city, in violation of a statute that prohibited anyone from ever leaving;

  • Bribed garbage men to allow him to take valuables from the automated system that cleaned up debris found on the city streets;

  • Sabotaged critical city infrastructure, then stepped in as a Johnny-on-the-spot contractor who could fix the problems at very high cost; and,

  • Married couples that would be prevented by statute from marrying otherwise (such as a brilliant, controlling old man and a dim-witted, subservient young woman who would be prevented from marrying by the Equal Rights Act, which states that people must only "marry their equals."

As interesting as the story was, it really was not revolutionary. Koontz's idea really is that as long as there are rules there will be rule-breakers - it does not get any deeper than that. Where the gangster one day was making profit by putting prostitutes and drugs on the street to fulfill needs, he is now making money fulfilling other needs, and nothing more. I think it would have been much more interesting if Koontz had delivered on the original promise from the hook in the story: How would crime survive in a totally libertarian society where nothing is illegal? As tough as that sounds to depict, I'm pretty confident that human beings would be capable of finding a way to commit crimes in a world without prohibitions. Unfortunately he did not go there, so this day-in-the-life-of-a-gangster story really presents nothing new, save for the fact that with but a few exceptions the laws he was breaking here are not laws now (though as I look back on that list, I see that in fact some of them are illegal now). For this reason I cannot give this one high marks for legal commentary, though it was fun to read and probably the best written Koontz piece I have ever read, save for the highly melodramatic and very entertaining Twilight Eyes. There is an interesting twist at the end, where Koontz reveals that the gangster was talking to his little daughter. Throughout the story Koontz kept quiet about the kid's gender, but I thought he was talking to a boy.

I made the statement earlier that some of the conduct that we criminally proscribe has been "decriminalized" in Koontz's story (though in fact most of it was really legalized). I have noticed that there is a bit of confusion about what this term means. Most understand that when a proscribed conduct is decriminalized that the law actually stays on the book, but the individual can no longer be punished for it. Technically this is true, but there is a bit more to it than that. Let's take a look at an illustration; suppose that a statute in a particular jurisdiction made it a crime punishable by ten years in jail to transport opiates across the jurisdiction in excess of 5 kilograms. If that statute were decriminalized then a person who was caught doing nothing more than transporting 4 kilos of hash could not go to jail for that alone. However, if there is also a statute in the jurisdiction making it an offense punishable by three years in jail for possession of a concealed weapon, and five years if the weapon is concealed in a car used for any other felony, then presumably the defendant could be convicted for the five year term because he has the hash, and that is a felony. In most jurisdictions a felony is defined as a crime punishable by a fine in excess of $10,000 and/or more than a year in jail, though most modern statutes also state whether a particular violation is a felony or a misdemeanor. Moreover, suppose the defendant had been caught only with the hash, and no weapon. If no other crimes were being committed, then even if the defendant could not be incarcerated, his hash can still be seized and destroyed as it is an illegal substance. So conduct that is "decriminalized" does not become legal, unless the statute that criminalizes it is repealed, subsumed by a new statute, or overturned as unconstitutional by a court. It is still criminal activity for purposes of other statutes and mostly for regulations, but the criminal penalty for that conduct alone has been abrogated. Law, Crime, Libertarianism, Cities; 3 Stars

GUILTY AS CHARGED, by Arthur Porges 1955, originally published in The Best Science Fiction Stories and Novels: 1955: Guilty as Charged is a rather boring tale about a group of scientists who invent a device that functions like Lord Dunsany's futuroscope. It allows the scientists to look at, but not hear or reach through to the future. The scientists in question chose to view a random scene from 225 years hence. As it turned out, the 'scope focused on the trial of a woman. The scientists were able to read part of the docket announcement that was hung on the wall, but not all of it. They could tell that the accused was named Frances Wills, and they could see that she was a woman in her mid-sixties, but they could not read any of the charges against her, nor were they able to listen to any of the witnesses. But they could see what was happening, and by watching the silent actors they tried to figure out what was happening. Too bad for them that things quickly became bizarre.

There were several complainants who testified against Ms. Wills, but none of them appeared to be related, and all seemed to have the types of damages that arose from different factual situations. One teary parent held up a picture of a young girl, crying and breaking down several times. Another man, a farmer by appearance, held up a picture of a steer. One showed the jury a withered arm and pointed at Wills and yelled a lot. Through it all Wills appeared dismissive of the witnesses complaints, and scoffed at the attorneys and the judge. After a short amount of testimony the jury was consulted. Without much fanfare and without even a recess the jury pronounced Wills guilty, whereupon she was taken by force to the next room and placed into a large, semi-spherical chamber that turned out to be an oven. A few minutes later the bailiff removed all that was left of Ms. Wills; a pile of ashes. The shocked scientists, who were viewing the trial from contemporary (1950's, actually) Massachusetts, looked at the docket paperwork after the bailiff moved it to a place that they could see and realized that Ms. Wills, of the year 2175, had been convicted and executed by the State for the crime witchcraft.

I am not really sure why this story was written. The SF hook in it is precognition, or direct knowledge of the future, but about how the device worked Porges had nothing to say. The twist at the end of the story was that Wills was executed for a crime that went out of fashion 500 years before her trial, which we look upon as barbaric today, and which to our minds should be seen as even more barbaric to those in the future. Porges' failure here is in failing to supply any kind of explanation as to how Americans of the future could have come full circle like that. Do they have a reason that makes any sense? Do they know something that we missed, but jurists from the eighteenth century saw? Who knows? Who cares? Certainly not Porges! Law, Time Travel, Witches, Death Penalty; 1.5 Stars

SHOCK TREATMENT, by J. Frances McComas 1954, originally published in Nine Tales of Space and Time: It's been three years since the S&G Liner Tonia crashed on a remote planet. The castaways who survived - passengers and crew alike - have resolved to become a colony, and have set up a system of laws and a court system to administer justice. One of most hotly debated tenets of that new system was over capital punishment, but in the end the colony took a progressive step towards the future and decided to outlaw the practice. Almost one year after a colonist from the engine room - a social misfit named Tasker Ė was charged with the murder of the ship's pharmacist and the theft of controlled drugs. There are no lawyers in the group of castaways, so the colonists have appointed a judge, counsel and a jury to decide on Tasker's guilt or innocence. They are all rookies and are struggling to adhere to the procedures that they put into place not one year prior at the legislative session where they enacted the colony's laws.

The defendant has not cooperated with his appointed counsel. As the story opened the case was closing. After the hearing of the case the judge charged the jury with deciding on his guilt or innocence, then gave them instructions to help them do so. The USN law as it existed at the time of the crash, just three years prior, required that anyone who was convicted of a capital crime must be evaluated by a psychologist and a penologist as part of their sentencing phase. That principle made it into the colony's laws too. The jury returned a guilty verdict in the time it took them to smoke a cigarette, so the court next considered punishment.

Malory, the only doctor on the ship, and a passenger at that, testified before the court as the psychologist. He said that even if the defendant, named Tasker, was sober at the time of the robbery/murder he immediately thereafter consumed massive quantities of the drug that he stole called dakarine. That drug was originally marketed to treat psychic shock: For example, those who suffered from shock or were in a coma could be revived with that drug. But when it was taken in massive quantities it had the effect of making the individual think that nothing that they try to do thereafter is wrong. The trial occurred only a few days after the crime, and Tasker was still under the influence of the drug that he took. Dr. Malory submitted that Tasker's failure to offer a defense should be considered, because he was not of his right mind, and implied that they could not execute a man who was not in possession of his faculties. The prosecutor, Blair, tried to argue with Malory but the court silenced him; they were past the cross-examination phase and only wanted the doctor's professional opinion.

Next they heard from Cardozo, who actually was a penologist on Pluto before the crash. Cardozo admitted that Tasker would not cooperate with him either, so his recommendation was that Tasker be hospitalized until the dakarine wore off so it could be better determined if he could be rehabilitated or not. Cardozo was of the mind that occasionally men came along that could not be rehabilitated, but the proper method of disposition of those men was lifetime incarceration, not execution. As it turned out both Cardozo and Hrdlicka, the Judge, were both proponents of doing away with the death penalty, and had successfully lobbied for that before the legislature when the criminal code was enacted. The court followed Cardozo's recommendation and patted themselves on the back that the new society that they were trying to build really took the time to do the right thing and did not just kill the killer and take the easy way out. All except for Blair that is; he railed at the idiocy of letting a killer walk around and the impracticality of building a detention system just for him. Blair inflamed the fear and passions of the jury and the gallery. Some of them stood up and advocated for banishment, but Blair didn't think that was good enough; Blair wanted Tasker to be executed so that the colony would never have to worry about him again. Just before pandemonium broke out Blair and Hrdlicka agreed that a session of the legislative council should convene. At that session Hrdlicka and Cardozo were defeated soundly and Tasker was sentenced to death with the passage of an ex post facto law. Later that night Cardozo confided in Hrdlicka that he was going to kidnap Tasker and row him down the river, away from the fools.

Brandt Cardozo half turned and gazed steadily at the old man.

"There's no use arguing," he said coldly.

"I'm not going to argue. I assume you know what you're doing."

"I do. I know that these people," he jerked a hand back toward the sleeping village, "took a look at their future and made one of the best codes man has ever dreamed up in his nine-thousand-year history. Today, these same people got scared - and the ape scampered back up the tree."

"You know," Hrdlicka grunted, "sometimes I think you make too many speeches."

Hrdlicka and Malory both tried to convince Cardozo to stay: They reminded him that if he kidnapped Tasker then those favoring the abolition of the death penalty would be relegated to the trash heap and would never be listened to again. They also told Cardozo that the problem was really not with Blair. He was just a symptom of a bigger problem. The problem was fear, and the patient was the entire colony. The only way that the colony would ever get over this was by the shock of participating in the murder of a man by execution.

This story is about the personal and social costs in a small society of having the death penalty. It is the best story on that issue that I have ever read. I'm going to have to find out if McComas was an attorney, because he did not miss a thing. Everything in the story - from the discussion of the death penalty itself to the way the decision to enact it in this particular case - was cast as a social injustice, and despite my own personal reservations about totally abolishing the death penalty, the way that this society got to a place where it could justify the execution of Tasker was one social injustice after another. The society had already decided that it wanted to follow an enlightened path, so they abolished the death penalty at the outset. Then when one really frightening thing happened the colonists all regressed; they passed and ex post facto law that condemned Tasker to death, even though on the day he committed his crime he could never have been punished with the death penalty.

The idea here was probably for everything to add up to an illegal public lynching, and the story does come off that way somewhat, but by introducing the ex post facto issue McComas kind of deflected some of the intensity he had built up over the execution issue. An ex post facto law is basically a law passed after the fact that makes certain acts punishable as crimes, and acts retroactively to apply the punishment to one who acted in the proscribed way before the law was passed. Civilly this kind of thing is called a Bill or Law of Attainder. The notion of this kind of legislative action is reprehensible because the system does not work properly at all unless it is totally predictable. We live in a society (and presumably the colonists did too) where we encourage risky acts because risky acts usually lead to increased rewards and profits. Granted, the colonists were dealing with the applicability of the death penalty to a convicted murderer, not a financial transaction that in hindsight might have been below boards. But the principle is the same - without predictability you will be left with tyrannical rule: A government that may do what it wishes, whenever it wishes, just to do the "right" thing in each individual case. The sad fact is that non-lawyers often have trouble making this distinction. In the heat of passion they seek to do the right thing in an individual case to an individual wrongdoer, even if it has drastic effects on the effectiveness and integrity of the system. In this story Hrdlicka, Malory and later on Cardozo realized that great damage had already been done to the system, and in an effort to correct it, they decided that it would be best to let Tasker die - to become a sacrifice. They could have secreted Tasker away (which would have been illegal), or they could have appealed the decision (which may have gotten Tasker off on a technicality, but that would have been wrong as nobody doubted that he was the murderer), or they could have gone back to legislative session to debate the propriety of the ex post facto law (which may have reached the right result, but would have weakened the effectiveness of the legislature in everyone's eyes, which could eventually have been fatal to the system). So they did the best that they could: They let the system work the way people wanted it to work, and hoped that they would all eventually see the wrongness of their actions. Tough luck for Tasker, but the integrity of the system, such as it was, would not be degraded further. So not only did they do no further violence to the predictability of the law, but they left an indelible mark on the psyches of the colonists: They all had twisted the law to kill a man. Granted it was a man nobody wanted anyway, but the impact of realization was no less violent or shocking in the end.

There is one other major issue in this story, but the author did not write much about it. That is the propriety of the execution of a man who is not of his right mind. The laws generally provide that a person who commits an intentional crime cannot be convicted of it if his state of mind at the time of the commission did not allow him to form the requisite intent. So for example if you get really drunk and get into a fight, even if you want to kill your opponent, as long as you are under the effects of alcohol such that you are considered intoxicated you cannot legally form the intent to kill. If the other guy just happens to die during the fight, the most you can be charged with, in most ordinary circumstances, is manslaughter, or possibly second or third degree murder. The analysis gets a bit tricky here because the crime that Tasker was probably convicted of was felony/murder: He killed the pharmacist while trying to rob him of his supply of dakarine. That rule says that if a human life is taken during the commission of a felony then the charge will be raised to first degree murder, even if the intent to kill (or the reckless disregard for human life) was not present in the mind of the accused. Intent really does not figure into the felony/murder rule, but right after Tasker stole the dakarine he consumed it all. Six days later during his trial he was still high on it, suffering from the same ill effects. When the ex post facto bill was passed Tasker's defender could have made a motion in the court to put off his execution until his mental condition stabilized and he stopped experiencing the effects of the drug. Although the punishment would have only been postponed she likely would have won that motion, as the state is generally prohibited from executing the incompetent. That law has been worn away in the last few decades as certain states have executed the mentally incompetent and children, who generally cannot legally form intent either. The public policy behind those laws is because without them executions could be viewed solely as methods of retribution, which is considered a valid penal goal, but generally not only on its own. Most people just do not think that the state should be involved in getting revenge for a wronged citizen. So if there is a chance that the criminal will not understand what is being done to him or her and why, then the law favors at the very least putting execution off until that message is understood. I think that the principle there is that once the convict gets it others will too, and since one of the major purposes of having the death penalty is to make the convict serve as an example to others, it would not be seemly to kill him or her until they know why. Most of the debate around this issue actually is pretty ineffective. I have never heard anybody come up with a reason for it that is solid and convincing, though morally I believe it to be the right thing to do. In any event, the effects of the dakarine prevented Tasker from really knowing what was happening to him, so I think that the author should have worked this issue up more in the story. As it was Tasker came down just as they were going to execute him and freaked out so they sedated him before shooting him dead. That should have raised the issue all over again, but instead of exploring it the story ended.

Finally, this story also illustrates really, really well one of those concepts that permeates every area of legal thought: Balance. In order for the system to work there must be balance to the way that it accomplishes its goals. Lay persons typically believe that the system is harsh and has no balance at all, but that is often because the balancing is done at the legislative level. To be sure, the judiciary does its fair share of balancing, but here the cold harsh result that was achieved was the result of fear and hatred, not careful consideration of how the society wanted to define itself. The way that I see this, the characters sought to tip the scales by adding in the colonists feelings after executing Tasker. That, as far as I am concerned, was very well done.

I try to make a point of identifying the one story that makes any anthology worth its price. This one has several really good stories in it - and several horrible stinkers too (the price one often pays with themed anthologies) - but this one is probably the best. I'm really glad that I found this one. I can tell already that itís going to release more for me to think about the next time I read it. Law, Castaways, Murder, Crime, Psychology, Death Penalty; 5 Stars

A JURY NOT OF PEERS, by Pg Wyal 1976, originally published in Amazing Stories: Written is a pushy and immediate style reminiscent of the hack producers of Gernsbeck's day, with a low and sometimes scatological focus, Pg Wyal's A Jury Not of Peers is a story of the criminal sentencing of a murderer. The murderer, referred to only as "the man," or "the man who fled," was a semi-literate, semi-skilled laborer who worked in a company town on an alien planet. He pled nolo contendere to a charge of the murder of a company manager, during a night of drunken revelry over some slight involving a company prostitute. This story is a new one to me so I read it a few times before sitting down to write this essay. The society in it is either the most enlightened or the most cowardly out there, and I am still scratching my head about the conclusion.

As an aside, "nolo contendere" means "no contest," and its a formal method of answering charges in most, if not all jurisdictions. "Guilty," "not guilty" and "innocent" are the traditional methods of answering charges, and should be self-explanatory. No contest means that the defendant has no way of arguing innocence, and does not wish to contest the charges made against him or her. To criminal defendants it is the legal equivalent of a grudging acceptance. It is a way of going directly to sentencing without pleading guilty. It is a common law concept in English law, though most scholars believe that it predates the Roman system of law. Many prosecutors and members of the public view it as a cop-out at the pleading phase, and do what they can to get judges to treat it as a guilty plea.

The story is about an artificially intelligent judge that has been built, it seems, to replace people entirely in the criminal justice system. Wyal postulated that in this future Earth clone-world, society had become so complex that humans have given up trying to figure out the mess that is human interaction, and have devised an AI judge to try the accused and sentence the guilty. This is my first Wyal story, and while I cannot comment from a wide experience about his writing style, I can say that I was not impressed too much by this story, and I can say with confidence that he is not one of the greats. I think what Wyal was trying to say here was not that the complexity of human interactions had become unmanageable with time and an increase in the number of people. That's kind of absurd, actually. I think what he meant to say was that people had reached a point where they threw their hands up as if to say, "you know, if after all these thousands of years we still cannot figure out what is in someone else's minds, then we probably never will." What made my reading of this story difficult is that the way that Wyal wrote it, he was putting forth the former idea, not the latter.

The issue was responsibility: The world had reached a state of nearly infinite complexity, which no single person, or group of persons, could hope to comprehend. Nothing had ever happened to sweep away this monster of complexity, so the difficulty of understanding piled up, as the society had piled up. Within this endless maze, men made their daily lives. Sometimes they erred; sometimes, whether meaning to or not, they hurt themselves or other people, or broke one of the endless rules necessary to sustain such utter civilized complexity...The problem was intelligence, sensitivity: Nobody was smart or wise enough to settle the disputes or solve the problems. No human being was good enough to judge another. To weigh a human life in the scales of collective justice and individual compassion.

See what I mean about his style? Even if you ignore the run on sentences and fragments, he's still quite confusing. Unfortunately this is just the beginning of the confusion. Returning to my original point, this was one of the motifs that the story turned upon: The inability to truly know the mind of The Other, and the way that Wyal explores that is by examining the propriety of judging someone else.

To solve this problem of reluctance, which looks like apathy but apparently is an enlightened response, they invented an artificial brain. In describing the brain Wyal again lost me. "It could not lie. It could not feel. It had no selfish interests against which to balance its decisions." So it was a cold calculator designed to render logical justice, right? Nope. It was essentially a human being, with all a human's foibles, faults and diversionary thinking. The machine considered morality, law, religion, and even the way that the defendant was dressed and sounded. It even sounded shocked that the man ran after killing his victim, instead of coldly citing to precedent justifying an increased sentence. It was actually amazing the way that Wyal contracted himself within just a few short paragraphs. Its almost like he had to put effort into messing up so badly.

The man was brought before the judge after pleading no contest. He was placed in a room alone with the machine's squawk box and an electronic eye, and nothing or nobody else. The man was basically a corporate slave. He was educated as far as the corporation required, which was not much, then trained to do a menial job until he died. All of his money went to the corporate store, which sold booze, drugs and women, and was otherwise told what to do, when and where: He was a slave, or at least some sort of lifelong indenture, if there is a difference. When questioned the man told the machine that he killed the man over a relatively minor slight, which was amplified in his mind because of the years of abuse he had been subjected to. He was tired of being treated like property, or a throw-away person, and the victim, who was his superior and wont to treat him that way, just was in the wrong place at the wrong time. The man had had enough.

The AI spent some time with the man and tried to draw mitigating facts from him, but he was either too stupid or too angry to cooperate. I was a bit shocked when the machine set him free, telling him that no man may judge another, so no machine based on man could judge him. The only thing it did was chastise him for "judging" the victim and categorizing him among his tormentors.

The voice of the machine went on, distant and severe. "Now I am called upon to judge. Society judges harshly those who break its most sacred trust. Yet no man is all the world. That is why I am judging you, and not a human being: no single man is responsible for another man's life. Or death. The responsibility is up to the collective Whole; herewith I represent the whole.

When I first read the story I kind of glossed over the preceding language. I was not really sure here if Wyal was saying that no man could ever walk in another's shoes and thus could not judge him, or if he was saying that in fact you can walk in another's shoes, and in this case the powerless slave was justified in his ill-thought crime because he is dense, uneducated and uncouth and could not be expected to do anything differently. I suppose either could fit the conclusion of the story (mainly because Wyal is all over the place here), but the problem is that the approach was just a bit too "enlightened," especially for the gritty, unfair and harsh world that these people lived in. I mean, who on a planet of company slaves would ever think to come up with a compassionate computer which would forgo passing judgment and ignore traditional penal theories? I just didn't see it coming at all. But I think that the language above really says that the whole of society is responsible for producing this one man, with all of his faults, so society alone should pay the price. Apparently that meant having to put up with this impulsive killer walking around. I'm not sure how "enlightened" a result that really is, but I do think that the better answer from above is the latter: The man was freed because his response was what you should expect from him, and since society made him, it can't punish him now. Think about it though. It's not like this theory is illogical. But it is stupid. If this is Wyal's point, then the whole story could be a cautionary tale about the risks of foisting social responsibility onto the other shoulders.

Society traditionally takes one of two approaches to the punishment of criminals: Rehabilitative or retributive. Each involve some sort of punishment, but the difference between the two approaches generally play out in the length and/or severity of the punishment. These important theories are in this story tossed out the window in favor of a system that takes people as they are and decides if they have acted in accord with their potential.

The other factor that criminal sentencers generally take into consideration is victim rights, or victim's family desires, although if this is an enlightened society then it would make sense that the victim's family may be forgiving too. There has been some controversy in the past over the impact of victim's family statements. Some feel that they unduly influence judges in the sentencing of criminal and result in unconstitutionally long sentences. Others argue that the purpose of the criminal justice system is to shift the revenge burden off of the individual victim and over to the state, so that revenge is not enacted in the streets. They demand that the victims be heard so that the judge can be aware of the damage that the defendant has really done. The problem with this story is that the AI judge here has been programmed to ignore every bit of this. There is no punishment here at all. There really is not even a growth opportunity, as the defendant is a meat-head who will probably drink and whore to celebrate. Itís certainly not like the AI judge took the time to explain its sentence. Hell, Iím a specialist here and I canít really figure this out. I think what we have here is a hack writer who stumbled upon a socially relevant concept, then butchered a story that explored it. Then again, maybe he's brilliant. You be the judge (no pun intended). Law, Murder, Colonies, AI; 2.5 Stars

10:01 A.M., by Alexander B. Malec 1966, originally published in Analog Science Fiction - Science Fact: A couple of punks, Poxie and Slick, were on their way to Albuquerque from Chicago in a run of the mill flying car. Safety regulations prohibited anyone from operating a flying car below four meters and every flying car in the sky had multiple, redundant and undefeatable systems built in to prevent them from descending below that altitude, except when landing on special pads. At least, that's the theory. Because they have figured out how to jimmy the safety devices, Poxie is flying the car at two meters so that he can speed. In a suburban neighborhood Poxie struck an eight year old girl, killing her immediately. The two left the scene as nonchalantly as they could, then stepped on it to escape. However by 10:15 am their flying car had been enveloped by a special police interceptor, the police had begun their interrogation and the detective technicians has begun reviewing data on the flying car's "accumulator," or black-box data recorder.

As it turned out the police only had circumstantial evidence of the impact, though there was an overwhelming amount of it, including an obstructed view video, the victim's blood and tissue on the dented hood, black box data showing not only that the vehicle was at an illegal elevation at the time of the impact, but that the vehicle was habitually operated at illegal elevations, and more. Once they had gathered their evidence, which took less than thirty minutes, a police officer began the trial. But right before that he asked the defendants if they hit the girl, and told them also that if they answered "no" they would be polygraphed. Both answered yes, the trial was held, and sentence was pronounced. Poxie, the driver, was vaporized on the spot, but Slick, the mechanic who altered the "unalterable" vehicle was sentenced to a year on the Moon working in the government's mechanics labs up there. Apparently they saw some mechanical potential in him and wanted his expertise in their shops. All of this happened within fifty-eight minutes.

This is a very short little story that raises a ton of questions. The broad issue here is a concept called judicial economy. Though I have heard mention of it once or twice in practice, the concept is literally drilled into the heads of all first and second year law students. Coming out of law school I was prepared to argue it at every turn. In actuality the only people who ever talk about it outside the law school classroom are those who decide on policy for the courts. The term speaks to the necessity that courts must balance the time it takes to resolve litigation issues with everyone else's rights to judicial access: It means that sometimes the court is going to take shortcuts to save time and money. Sometimes thought the courts and parties go too far, and the quality of justice that the court is capable of rendering is compromised. It seems that this is what has happened here, though as part of time-saving the court has removed itself entirely from the process - that is strike one against this policy.

I think the best way to discuss this story is to go through it and point out the broad legal violations (in this case the violations by the state of the criminal's rights, such as they are) as we would recognize them. This can be difficult some times because often with SF a reader must be willing to suspend disbelief. Unfortunately there really is no better way to dissect these types of stories from a legal perspective.

The first was stated above; a criminal defendant should have access to a qualified finder of fact to judge him. This is not the same as a guarantee of a trial by jury. In our system that right is guaranteed by the U.S. Constitution. Instead this is about whether or not a criminal defendant has a right to a trial by a judge. In fact, neither the Constitution nor any state I am aware of guarantees this right (and in fact I have been involved in a few cases where the judge was not really a judge, but was actually a paralegal or an ex-police officer - all of them were on Native American Indian reservations that happened to have independent court systems set up), but a defendant does have the right to be tried at the very least by an independent finder of fact. In 10:01 A.M. Poxie and Slick were tried by a police officer - brethren to their accusers and to the investigators who uncovered all the evidence that helped convict them. I would argue that even if that officer behaves independently and exercises his own judgment, he is actually charged with upholding the laws, not interpreting them, and therefore cannot be a fair finder of fact.

I would also have thought that in a capital crime, which this apparently was, a jury would have been required in the interests of fairness. Our system requires the right to a jury trial (or a bench trial, at the defendant's option) in all criminal prosecutions, as guaranteed by the 7th Amendment to the Constitution. That Amendment also guarantees a defendant the right to confront his accusers, for the court to have in place a process for getting witnesses in his favor, if any there are, and to have the assistance of counsel. None of that happened here.

There are also some potential evidentiary issues, though an appellate court would probably not bother getting to them unless they found that the admissions that the defendants gave were coerced or otherwise obtained incorrectly. To do that the court would inquire into exactly what was said. Here the officer said:

"After I ask the question and the answer is in the negative, I must inform you that you will then be subjected to a polygraph test. Is that understood?"

"Yeah," said Slick.

"Here is the question," said the officer with the clipboard. "Did you, Rodney Cooper, knowingly tamper with the controls of your Mark Nine Phaeton null-vehicle so as to enable that same vehicle to traverse below the legal minimum allowable height on the alpha-type roadway when crossing a pedestrian mall?"

"Yes," said Slick. Then he yelled to the hidden pickup, "Yes!"

That certainly sounds like a question that goes directly to the point of the inquiry, and the answer is damning. The problem there is two-fold: First, neither defendant was Mirandized, though with the state of criminal procedure in this story, I doubt that was a problem. The Supreme Court in Miranda, a criminal case from Arizona, articulated the rule that in custodial interrogations an accused be advised of his rights to counsel, trial and to remain silent. The effect of that rule now requires police to read a script to defendants. The rule was put into place because the courts thought in many cases that the investigating police were running roughshod over the rights of the accused in conducting their investigations. They believed that existing rights as guaranteed by the 5th Amendment were being abused by coercive police, so the police are now required to warn the accused of these rights whenever they are spoken to while in custody. In this story the Poxie and Slick were obviously in custody, as the police had apprehended them and forced them to sit in a room while the evidence was gathered.

Second, there was a veiled threat in the question - a threat of a polygraph test. Ordinarily polygraph tests are not admissible, as they do not pass the Daubert test*, (or any other test, including the Frye test, which asked only if the scientific information sought to be admitted as evidence was of the type generally accepted by the scientific community) for admissibility in a legal hearing. They essentially are untrustworthy in the eyes of the law. Although your employer is generally free to fire you for failing a test, you cannot be convicted of a crime for the same; the State must have other, more competent and more reliable evidence against you. Now, there is federal case law out there that says that police do not have to be honest with defendants. They can lie to them, though not about things that affect protected rights, and if that lie leads to admissible evidence, too bad for the defendant. That is why criminal lawyers are forever telling their clients on TV to just shut up until they get there. I imagine the same thing happens in real life. In this case though, they were threatened with a test that for us would not be admissible, though I doubt that would be enough to overturn a conviction, and I'm not just saying that because these guys were in fact guilty. In criminal constitutional cases you are not permitted to consider the defendant's culpability. You can only examine whether or not their rights were violated. In this case, absent a Miranda issue, I just don't think that they were. They were fooled, and they were fools, but that's all.

What we have here essentially is a capital crime that is treated like a strict liability crime. A strict liability crime is one that a defendant is liable for as long as he performed the proscribed act, regardless of what was in his mind at the time. Running a red light is a strict liability crime: If you run one it does not matter if you were not paying attention or trying to squeeze between crossing cars. If you did it, you pay the same fine. Statutory rape is another example. If you have sex with a minor, even if you don't know he or she is a minor, you will be convicted. This case is a capital case, so I assume that Slick and Poxie were convicted of something similar to first degree murder, and not manslaughter. Capital crimes are serious offenses, where it is generally required that the state prove either malice aforethought, intent to kill, or felony/murder (depending on the statutory structure). It was in this that the "court" took its largest jump, as the intentional act element of the crime was essentially ignored. Getting any deeper into this is going to bring up the capital punishment debate, which I just covered recently in the legal review of Steve Allen's The Public Hating (Note: That review will be up shortly). Go over there if you want to have that debate, please.

One last word on licensing. In this story Poxie was accused of a further crime; that of driving on a suspended license. It seems that Poxie's uncle carelessly caused a different traffic fatality, and as a result the state abrogated the right of any of his close blood relatives to drive because they were genetically predetermined to cause mayhem or murder themselves. That sounds pretty silly to me, and in our reality it would be attackable on the grounds that a license to drive is too valuable a thing to take away arbitrarily. In the Unites States all jurisdictions recognize that their job in policing the highways is to protect the public health and safety, but when they make the decision to revoke a user's permission to drive, they have to do so only if doing so is a narrowly tailored way to achieve that goal. That approach protects the safety and health rights of the public, and the rights of the accused or convicted to resume ordinary economic activity as soon as possible. That is also why you see drunks back behind the wheel so often. Itís because society believes that without the ability to drive, economic interests will be greatly affected: In other words, the drunk will not be able to work enough to support himself and his family. Personally I can see that, though in the case of constant DUI drivers I also think its good to have a way to control them. Tossing away their right to drive whole cloth also tosses away the only real control mechanism you have over them, other than incarceration.

Anyway, about this story, as a cynical attempt to show the damage that can be caused when a defendant is only granted a right to a hearing, and not a full blown trial with all the constitutional protections, it succeeds pretty well. The problem is that the setting that the author chose is all too recognizable. It is basically our world with flying cars. Because of that it is very difficult to see how this kind of system could have developed, or how it is sustained. I just don't buy it, and that makes it, in my opinion, bad SF.

* The Daubert test requires that evidence be relevant and reliable in order to be admitted at trial, and requires that evidence be based on the scientific method. For example, was it subjected to peer review, is it empirically testable, is it generally accepted by the scientific community, are the margins of testable error known, etc. Law, Manslaughter, Forensics, Death Penalty, Criminal Procedure; 3 Stars,

BOUNTY, by T. L. Sherred 1972, originally published in Again, Dangerous Visions: Bounty by T.L. Sherred is a micro-story about vigilantism, and the right to bear arms as granted under the United States Constitution. In a full page advertisement printed in a mid-west newspaper an anonymous donor offered a $10,000 reward for the corpse of every person who tried to rob another while armed, and a $100,000 annuity to the family of any person killed while trying to foil an armed robbery. The reaction was slow, but in the city where the advertisement was placed average citizens started staking out banks and stores to foil robbers; and they were successful! Once the money started to flow - because the donor followed up on his promises - citizens began seeking out anyone who carried a gun. Police, secret service agents, and ordinary civilians who owned weapons were sought, and when they were found, they were killed by people hoping to collect on the reward. A mad rush for the money began that could not be stopped, and only became more pervasive after the donor started advertising in newspapers in other cities. Eventually the police stopped carrying guns because they would be killed by cash hungry mobs. Of course, crime rates went way down all save for murder, though when everyone gave up guns that dropped too. The author obviously tried to shine a light on the hypocracy of a system that tries to punish violence, yet rewards those who carry weapons of murder. I think Sherrod also tried to support the idea that armed police only worsens the carnage, as law breakers arm themselves to deal with the police. Here the legal system failed to protect the innocent, but the story asks if the result is worth that price. The SF elements here all point to a possible utopia, but the manner in which it will be realized seems untenable to me. The American mindset is just not wired for practicality. If this were to happen everyone would be too concerned about how a bunch of wrongs could lead to a right, and the whole system would collapse in scandal. Although,

In New York City proper, children began to be seen playing in Central Park at dusk and even after

sounds kind of nice. Law, Vigilantism, Murder; 2.5 Stars

HAWKSBILL STATION, by Robert Silverberg 1967, originally published in Galaxy Magazine: Silverberg has written a short story and a novel length version of this story. This is a review of the short story. Itís a very interesting look at the group dynamics of a prison population. The inmates were all political dissidents who were incarcerated for advocating for one form or another of communism. The government, despite being lethargic politically, was very innovative scientifically and developed a one-way time travel device called the Hammer & Anvil. Rather than go to the trouble of putting political prisoners to death, it banished the males to the Cambrian era, slightly over one billion years ago. Women, of course, were banished to a period a few million years away. The prison had been extant for over thirty years. Everyone there was a lifer because the Hammer only worked one-way; there was no going back to present day. At least one-third of the inmates had gone insane. Their nominal leader, a crippled, aging giant named Jim Barnett had managed, barely, to hang onto his sanity for the length of his twenty-year incarceration. He was the oldest surviving inmate, and cared for the others the best he could.

Conditions at Hawksbill Station were not deplorable. The government from our time, longingly called "Up Front," sent back supplies, construction materials, literature and perishables infrequently, but never any women. The lack of women, the loss of purpose, the complete cessation of contact with family, and the monotonous diet of trilobites was just too much for most men. All of them knew that their times were coming; eventually they would all have some kind of break with reality.

One day out of the blue a new inmate was sent from Up Front. Lew Hahn said that he was a political prisoner and an economist, but he was very reluctant to talk about his revolutionary activities, his economic theories, or what was going on Up Front. Most of the inmates questioned Hahn and thought he was a spy, but Barnett wondered who he would ever report to, and thought he was just in a state of shock over his change in fortunes. But after Hahn was caught making notes about the Station and messing around with the Hammer, Barnett confronted him and asked him what he was doing. Hahn tried to evade the questions, but then gave in and admitted that he was a cop from the future...and he brought with him some hope. The government that had built the Hammer had fallen, but before it did it perfected a way to travel both ways through time. The new liberal and maternalistic government was in the process of undertaking a survey of all of the former government's prisons, Hawksbill Station included.

Silverberg painted a pretty convincing picture of a prison inmate population here. This crew was made up mostly of like minded men, communists and economic revolutionaries the lot of them, all of whom were middle aged. There was none (or rather, very little) of the usual violence, rape and black market activity that prison stories deal with. Barnett was not running a boot camp either, and treated the inmates like men. The population had developed their own ways of communicating with each other, and their own rituals. The inmates were all friendly, and they had very few rules. Actually the only rule of any consequence was that when someone started to go crazy, others refrained from contradicting what them. Basically you did not remind anyone of what it was they had left back Up Front, including their sanity. Other than that, people were free to do whatever they wanted. It was amusing to see a libertarian society constructed by a bunch of old communists.

The final conflict in the story had to do with Barnett's feelings about the opportunity to return home. He had become institutionalized over the course of his sentence, and feared the reintegration process. The novel picked up on this element a bit more than the short story (actually the short story really gives it the short-shrift). I suppose Silverberg had to save something interesting for the book though. I love this short story, but the novel version is much better, and in my opinion is just shy of masterpiece level. Thematically the story is, like most good prison tales, about cruel and unusual punishment. It asks, even if you have decent motives (and here those motives were a reluctance to kill political prisoners) do you still do evil by putting them in a remote location and forgetting about them? The answer to that question does depend somewhat on the facts of the situation. With an advanced enough technology you could put the prisoners in a paradise or a utopia. Hawksbill Station provided everything that the inmates there needed to survive, but it failed to provide what they needed to thrive, or to be happy. Of course, that generally is not the purpose of prison. Still, the State did not put the inmates into the typical kind of hell-hole that men in their situations usually get left in. This is a gray area question for me. Putting aside the debates about political prisoners and whether they should have been incarcerated in the first place, can anyone say that the Station was any worse than a gulag? Or a North Vietnamese prison camp? Or Guantanamo Bay? I really do not think that it was. Iíd certainly hate to be in that place, but it also could be much worse.

There is a new edition out now with both editions of the tale, so if you see that one, pick it up. Law, Crime, Penal Theory, Time Travel, Politics, Libertarianism; 4 Stars

THE CAGE, by Bertram Chandler 1957, originally published in MoF&SF: Another forgettable story that had absolutely nothing to do with criminal justice. A ship was marooned on a planet. Many of the crew and passengers survived, though there were many more men then women. The survivors set up a society when it became clear that they would never be rescued. They all for some reason found the ideas of group marriages and/or multiple partners abhorrent, so they set up cage matches to winnow down the numbers of men. Sounds sensible, no? No. During one of the cage matches some aliens swung by in their ship and beamed a few of the combatants and referees up. They put them into cages in rooms full of other cages, full of other alien animals. The humans tried to communicate, but nobody would listen. One day a mouse like creature wandered in and the men fashioned a cage out of sticks to keep it captive. Why, we are not told. And at this point we don't care. But when the aliens see this they free the humans, suddenly becoming communicative and saying "only rational beings put other beings in cages." This may be the stupidest story that I have had the displeasure of reading. The introductory notes say that its about humans having to prove that they are rational to escape prison. I have no idea how a zoo cage can be made to equate to a prison cell, and apparently neither does Bertram Chandler. Avoid. Family, Shipwrecked, First Contact, Psychology, Communes; .5 Stars

DECEMBER 28th, by Theodore L. Thomas 1966, originally published in Playboy Book of Science Fiction & Fantasy: Short story about a man who is, cruelly, executed on a date that was important to him because of a connection to his family and his wife, then was resurrected, healed and re-executed the next year. It was suggested that the convict could get out if he would just admit that he was wrong, but apparently he was too tough to do that. Pulp-style crappola that really does not belong in a book about the law. There is some legal content, but it's inane and not worth our time. Death Penalty; 1 Star

TWO-HANDED ENGINE, by Henry Kuttner (and C.L. Moore), 1955, originally published in The Magazine of Fantasy Science Fiction: Kuttner & Moore's Two Handed Engine is one of the biggest draws in Greenberg and Olander's Criminal Justice Through Science Fiction, for sure. If this book were a shopping center, then this story would be Macy's or Bloomingdale's - that is to say, the big anchor store. Two Handed Engine is a post golden-age story with pulp leanings about a post apocalyptic society that had forgotten where it came from, and knew even less than we do about where it was going. Owing a debt of rough genesis to Milton:

But that two-handed engine at the door,

stands ready to smite once, and smite no more . . .

as well as Francis Thompson

Those strong feet that followed, followed after

with unhurrying chase, and unperpurbed pace,

deliberate speed, majestic instancy . . .


I shook the pillaring hours

And pulled my life upon me; grimed with smears,

I stand amid the dust of the mounded years -

My mangled youth lies dead beneath the heap.

This story is one of the best known tales by the couple that wrote it, which says quite a bit about its popularity. Kuttner and Moore, a married couple that produced reams of stories under a host of pseudonyms, contributed greatly to the body of quality SF work before Kuttner's rather early death and by Moore's retirement.

All of that is not to say that Two-Handed Engine was perfect. Parts of it were close to perfection, but others were pretty rough and could have used some work. One of the most problematic aspects of the story was the world's back story. In the past mankind had achieved a utopia through the use of robots. Robots did all the manual labor, and man did all the thinking. The robots were dedicated servants, and were probably constrained by some set of Asimovian laws. The only thing that they cared about was making sure that human beings lived well, and that all of our wishes were fulfilled as quickly as possible. About what happened to that society Kuttner & Moore said very little, though what they did say inevitably draws comparison with our own world:

Before the really big wars began, technology advanced to the point where machines bred upon machines like living things, and there might have been an Eden on Earth, with everybody's wants fully supplied, except that the social sciences fell too far behind the physical sciences. When the decimating wars came on, machines and people fought side by side, steel against steel and man against man, but man was the more perishable. The wars ended when there were no longer two societies left to fight against each other. Societies splintered apart into smaller and smaller groups until a state very close to anarchy set in.

Although the pay-off in the end is immense, readers must understand that the set-up here is rough or they are unlikely to get through it. Kuttner & Moore have basically posited a world that just kind of fell apart, without really explaining why. Probably because of the time limitations of the short story format the authors plopped the reader into this world of strange values, giving only the barest sketch as to how it all happened. The story suffered for those omissions, but the authors deliver so well on their premise that by the time the story is over all the roughness of the early pages is pretty much forgotten, and to the author's credit, dismissed.

After the wars the robots had again built up a utopia which provided for the needs of all men, but that society too was destined for the scrap heap. The robot survivors of the war probably realized that one of the reasons that the war came about was because men lived too closely to each other. They decided that if mankind was spread out they would be unlikely to kill one another. It was not just occasional proximity that drove men to kill each other like in a city; it was the difficulties that arose when men were packed tightly together. So they spread the survivors out and eventually were left with solitary hermits. Ask me not how they handled reproduction; the authors did not go there. Over the generations though mankind developed a trait that the robots called "archaic individualism," which meant basically that mankind had forgotten all the lessons of society that they had learned over the prior millenia. The result could have been catastrophic.

The central problem of the story was this: Humans are resource collecting beasts. We go out and collect assets and tools for actual or perceived needs, and even if we don't use them immediately we are wise enough to know that we had better save them for a rainy day. But society places prohibitions on how we go about collecting these things. We are conditioned to resist the temptation to take tools and assets of others - the normative of our population knows not to kill or steal unless the preservation of oneself is at serious risk. The human population in this story had spent so much time apart from one another that they had "forgotten" that lesson, and when one human being encountered another a fight to the death ensued. People murdered other people every time an outsider was encountered, either for some sort of material benefit, or out of paranoia.

Kuttner & Moore said a mouthful here about human nature; primarily that we are not inherently social, but instead that we are psychologically conditioned with social responses. Without that set of conditions we behave as if we were animals, and are incapable of collaboration. I personally don't buy that in the least, but it is a debate that has been raging for much longer than I have been around, and its really not new to SF. Just take a look as Clifford Simak's City, and keep your eyes peeled for a review of B.F. Skinner's own utopia novel, Walden Two, coming soon to this site.

Needless to say, this disturbed the robots, which, don't forget, were dedicated to our health and welfare. Somewhere along the line the robots took control of things, and made the decision that mankind must be reintegrated and taught to function within a society, so they rebuilt a city, moved the people into it, and set up a very odd police force. In this new city there was just one rule: Thou shalt not kill. All other prohibitions were lifted. Mankind was free to do as it wished, save for that one thing. To enforce this one rule the robots built a new kind of robot, called a "Fury." The Furies were close copies of humans, but there were indestructible, unstoppable, patient, swift, silent and vengeful. This city of the future was heavily monitored: People in the Fury Control Center viewed the entire city through tiny, movable cameras that were mounted everywhere. When one person killed another one of the Furies was notified and dispatched. That Fury's job was to seek out the murderer, and follow him or her around like an unshakable shadow for a random period of time, sometimes months or even years, then as messily as possible kill that person in front of as many witnesses as possible. The ultimate deterrent to murder, if you will.

Two Handed Engine is the story of murder plot and a double cross. Hartz, a high ranking bureaucrat in the Fury Control Center hired Danner to murder O'Reilly, who was Hartz's superior. Hartz wanted O'Reilly's job but was afraid that if he did not have an air-tight alibi he would be the first suspect. Danner was a down on his luck welfare recipient who was paid a life-altering amount of cash to commit the murder. Danner was no idiot though; he knew that if he killed O'Reilly he would likely be assigned a Fury to follow him around, then kill him.

The Furies were designed and built by the robotic controllers of the past to be beyond human intervention. They were autonomous and could not be reprogrammed at all. But Hartz showed Danner something that shocked him. Hartz plugged into the video surveillance network and found a place in the city where a condemned murderer was being stalked by a Fury. To Danner's shock the Fury abandoned its target when Hartz hit a button in his desk drawer. Hartz had figured out how to control the uncontrollable! Danner agreed to kill O'Reilly and did so, but a day or so later a Fury found him in a restaurant and became his shadow. For years that Fury followed Danner around while Hartz promised that he was only a day or so away from figuring out how to "fix" the problem.

But Hartz had double-crossed Danner. Hartz had figured out a way to control the Furies, but was not going to waste that on Danner. Danner figured this out when he was in the library one day, trying to educate himself about the Furies. He found the film that Hartz had showed him that day of the Fury giving up on its condemned: It was a scene from a movie from years past, not a transmission from one of the Control Center's cameras. Danner, mad with rage, went to Hartz's office intent on killing him. He ran ahead of his Fury, which otherwise would have killed him to stop him, but was instead killed by Danner who heard him coming. The Fury saw Hartz kill Danner, but Hartz reprogrammed it, and blamed Hartz's death on suicide. Everyone accepted that because the Fury was in the room when the death occurred, and had it seen Hartz do it, it would have started stalking him. So Hartz got off, but he paid a psychological price for what he did. After he diverted the Fury he realized that he had corrupted the incorruptible: That he had destroyed the only thing that his society had to keep order. And because of that he came to know sin, and thus by the destroying the Furies, he achieved the robot goal of making mankind understand sin. In other words, now that a human has killed and felt guilt, it might be time for the Fury program to end.

At its heart Two Handed Engine is a reversal of the fall from grace of the book of Genesis. In this world those who do not know sin are the helpless ones. Sin is a concept that binds men together and prevents them from violating the basic laws of society. Those who felt the burden of sin may have felt helpless because their morals had returned, because the actions that brought them to know it left some marks on their psyche. Still, it can be surmised that they were the enlightened ones and would be able to live with others without the need for omnipotent, omniscient engines of death hanging over their shoulders. And thus, the world was transformed. Again.

This story is an excellent, noirish masterpiece with unexpected twists of plot and unflinching prose. It is a mature treatment of a few absurd concepts that have vast social relevance. The characters and settings were a bit hard to visualize and the authors' syntax choices were sometimes unexpected, but fresh.

Legally there is not too much to talk about here save for the homicide issue, and perhaps penal theory. The Furies were the equivalent of a force of nature. Until Hartz came along they were uncontrollable, and they gave no quarter.

The robot stood there impassive, a streak of Danner's blood slanting across its metal chest like a robotic ribbon of honor.

The Fury and the Controller of the Furies stood staring at each other. And the Fury could not, of course, speak, but in Hartz's mind it seemed to.

"Self-defense is no excuse," the Fury seemed to be saying. "We never punish intent, but we always punish action. Any act of murder. Any act of murder."

Society allowed no defenses and no mitigation. If you killed another person, you were to be stalked and driven mad, then killed in front of as many people as possible, in as horrible a way as the Furies could imagine. At some point fairness may have been considered, but the policy of the state was purely deterrence, and they had a perfectly acceptable reason for that. People would not tolerate society, and society had to survive. Without it mankind would be doomed to dismal lives of solitude and loneliness, because they would care nothing for the life of their fellow man. The robots determined that fear would be the best way to recondition men to live in society. Right or wrong about the morality of such a decision, they adapted an accepted theory of punishment to reach the stated social purpose. Given what was at stake - the failure of the human race - I don't think that it can be said that they went too far, even though a punishment scheme that fails to take into consideration any mitigation is repugnant to us. Law, Murder, Death Penalty, Cruel & Unusual Punishment, Robots, AI, Penal Theory, Psychology, Hermits, Libertarianism, Asimovian Laws; 5 Stars

AND KEEP US FROM OUR CASTLES, by Cynthia Bunn 1974, originally published in Analog Science Fiction - Science Fact: A convict, Raymond Hendrick, has been sentenced to the uninhabited wilds of the U.S. Great Plains. The people who used to live there moved out over 100 years ago, leaving tumbledown houses for the few convicts and the various others who were trying to escape the rigidity of city-life (things like population control) and wander the plains as "free" men and women. As a convict Hendrick was pursued by an electronic field called the "halo" which, if he were to let his guard down or remain in the open, would encapsulate him inside of three electronic walls, then a fourth "deathbringing" wall and floor. Generally he can remain outside in one place for about an hour-and-a-half before the halo comes, but sometimes he can remain inside all night and not be threatened. Although Hendrick was free to roam, this was his prison. The punishment here: Ostracism from the enormous archology structures that humanity had moved into and the constant fear that you would stop moving long enough for a plastic prison to form around you and trap you forever. Hendrick wandered through the wilderness, starving, freezing and hallucinating, until one day he met a woman, Lind, who wanted to interview him. Lind was a freelance psychologist, associated neither with the government nor the illegal charities that occasionally smuggled food and camping supplies into the wilderness for the convicts. She was preparing a paper on the experiences of the condemned and wanted him to contribute. So, he told her his life story: He told her about how he murdered the man who he thought murdered his wife - a child molester whom his wife had caught with their son a few months before, and reported him for it - then was convicted of both killings and denied the common psychological therapy that could have "cured" him. At the end he asked Lind to stay with him until his death, and convinced her to do so to make her paper all the better. She agreed and traveled with him for months. She fell in love with him, but never slept with him: It would be like sleeping with a corpse, she thought. Eventually she had to return to Denver to do some work, but she caught up with him a week later. He was on death's doorstep, and she had brought the barbiturates he had asked for. Lind sat with Hendrick as he overdosed on the pills, then as he rambled about everything in the world that had angered him. As he died she stepped up to move away, and it was revealed that she had been condemned and exiled of sympathizing with convicts.

This story was well written, but really had nothing to say about the law. The punishment scheme here may have a viable one in a national system of archologies, but the author was pretty vague on why neither of these two convicts were given the "curing" psychotherapy. Because the therapy was randomly withheld from them the story is less about punishment schemes and more about tyrannical politics. I found it ironic and confusing that all the emphasis was on the former, and none on the latter. Penal Theory, Death Penalty, Cruel & Unusual Punishment, Hermits; 2 Stars

THE PUBLIC HATING, by Steve Allen 1956, originally published in SF: The Year's Greatest Science Fiction and Fantasy: Before you ask I want to tell you that yes, this story is by that Steve Allen. This is the story of criminal punishment in the near future. In it psi ability has been discovered and everyone has them. Individually people cannot do too much, but when they get together and focus on the same task, they can maybe move mountains. In the story thousands of people come together at Yankee Stadium in New York to punish a convicted felon. Professor Ketteridge, the felon, has been pronounced guilty of treason. The United States District Court in New York sentenced him to a "public hating," and in a fast-track looking challenge, the United States Supreme Court affirmed. Ketteridge has been brought to the stadium, which on his day was filled to capacity. Yankee Stadium apparently is used frequently for these kinds of sentences, but common rapists and muggers bring out only 30,000 or so. Not today.

Ketteridge's crimes are obviously known to the general public. Everyone seems to know what he has done, though in this story his actual crimes were never revealed. When he was brought out onto the diamond a speaker stood up and whipped the public into a frenzy of hate. For the most part the crowd complied and allowed themselves to be driven to a hateful rage, but for many it took some work.

"I ask you," said Weltmer, "to rise. That's it, everybody stand up. Now I want every one of you...I understand we have upwards of seventy thousand people here today...I want every single one of you to stare directly at this fiend in human form, Ketteridge. I want you to let him know by the wondrous power that lies in the strengths of your emotional reservoirs, I want you to let him know that he is a criminal, that he is worse than a murderer, that he has committed treason, that he is not loved by anyone, anywhere in the universe, and that he is, rather, despised with a vigor equal in heat to the power of the sun itself!"

I swear that sounds like a late night religious sermon, doesn't it? It continues:

People around Traub were shaking their fists now. Their eyes were narrowed, their mouths turned down at the corners. A woman fainted.

"Come on," shouted Weltmer. "Let's feel it!"

Under the spell of the speaker Traub was suddenly horrified to find that his blood was racing, his heart pounding. He felt anger surging up in him. He could not believe he hated Ketteridge. But he could not deny that he hated something.

Weltmer was whipping the crowd up and asking them to direct their hatred towards Ketteridge. The power of the hate, channeled through psi abilities, killed Ketteridge slowly and painfully.

Traub stared unblinking through the binoculars at Ketteridge's right arm as the prisoner leaped to his feet and ripped off his jacket, howling. With his left hand he gripped his right forearm and then Traub saw the flesh turning dark. First a deep red, and then a livid purple. The fingers contracted and Ketteridge whiled on a small platform like a dervish, slapping his arm against his side.

"That's it," Weltmer called. "You're doing it. You're doing it. Mind over matter! That's it. Burn this offending flesh. Be as the avenging angels of the Lord. Smite this devil! That's it!"

Definitely an anti-death penalty piece of literature, it works on several levels. It is definitely a critical look at the motivations and social utility of capital punishment. The crowd must be whipped up into a frenzy of hate first, so the obvious question is "is this punishment warranted?" Judges and juries that punish offenders may be charged in court with heeding the letter of the law, but what they are really doing is directing the will of the people onto the offender. Allen has given us a story here where the intermediary has been removed and the people are given a chance to enact their own punishment. Only in this case some people can't really be bothered to hate someone for a reason that really does not affect them. Granted, others in the stadium - perhaps even most of them - seemed to feel the required rage right away, without much prodding. But remember, this is not only a festival atmosphere that is obviously likened in the minds of the viewers to a chaotic sporting event (British soccer hooliganism, anyone?), but Weltmer was invoking religious retribution, and I have a feeling that this had happened so many times in the past with other criminals that the crowd was probably conditioned to slip into rage, even if they couldn't conjure it on their own.

Another question I was struck with is this: If you have to get into that emotional a state to kill in the first place, how can you be sure that you are doing the right thing? Rage is a strange thing. When we feel it we make choices in the heat of the moment that we probably would not ordinarily make. Personally I've never killed anyone, though I have had to fight to keep my hands off of other people's windpipes in moments of anger. Not to say that action in the heat of the moment that results in the death of a convicted wrong-doer is all that bad. We have discussed the purposes of criminal punishments in the past - recall that one of them is retribution. In some cases the purpose that a judicially enacted punishment is enacting is pay-back, and in cases of treason, we sometimes kill the offenders. But I still think that a cold, sterile and clinical execution at least looks better than a frenzied mob pouring fatal amounts of hate (psychic or otherwise) on the head of a frightened, lonely man. Consider here that psychic powers are a metaphor for the will of the people. No matter what a court said, the will of the people is confused by rage and hatred. The viewers may still be able to say that they executed a punishment as ordered by a court with the proper jurisdiction to do so, but they will never be able to say that they did the right thing. Not that capital punishment is any less subject to attacks of the enlightened when it is carried out in a brightly lit room with a preacher standing nearby, or somebody's hand on a hot line to the governor's manison, but I think you get my drift here. In the end what we have here is probably nothing more then detached blood-lust, and for that reason that it is an excellent attack on the propriety of the death penalty. This is how legal-themed SF should play out. Law, Penal Theory, Psi-Powers, Revenge, Death Penalty, Criminal Procedure, Religion; 4.5 Stars

THE MODERN PENITENTIARY, by Hayden Howard 1966, originally published in Galaxy Magazine: Dr. Joe West, a convicted murderer, is serving his sentence for the accidental murder of 22 Eskimo women. All of them died unexpectedly during experiments that West was performing to aid the Eskimos in reducing their horrible population pressure problem. During his incarceration the bubble had burst, and Eskimos were starving to death. He contemplated an escape to go and try to help them.

The prison that West was in though was different than any other before it. He was happy there, and was free to continue his education and do his work. The inmates were taken care of; each was given a maid, they were given presents, they were called "students," and when they left they were given "graduation" ceremonies. West had already attempted escape once before, by taking a pill that would mimic the effects of acute appendicitis. Instead of being transported somewhere outside of the penitentiary he was rushed to the hospital infirmary where his appendix was quickly and efficiently removed. When the hospital doctors realized what he was up to, they put his appendix into a gin bottle and gave it to him as a Christmas present with the following note:

Mr. West, our pathologist reports that a foreign substance, probably ingested, raised your white blood counts and induced other symptoms typical of peritonitis. As a former medical man, you may have a more specific explanation?

Why not feign a brain tumor next time? We would welcome the exercise. Merry Christmas from the Staff, New Ottawa Reformation Center.

P.S. Looking forward to your continued presence during the New Year.

This story dragged and was a little inane. Who would go to the trouble of bolstering the feelings of convicted mass murderers? I did not see the point, and in fact, I could not be bothered to finish the story. Penal Theory; 1.5 Stars

Copyright © 2009, Gregory Tidwell

Reviewed by GTT · Rating Rating of 3.5 star(s)

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