Two Face’s Take on Punishment: Dish it Out By Chance

twofaceA couple of days ago I posted part one of my article examining whether our method of punishing criminals leads to imprisonment based on what are seemingly random events. If you haven’t read that article and you have some time, you can check it out here:  Do We Imprison People Randomly? Without having read that article, what follows may lack context and may make little sense.

Last night I was watching the recent DVD release “The Dark Knight”. If you haven’t seen it, it’s a must see. It’s about as good as it gets if you like action or super hero movies. But if you fall into that category, you’ve probably already seem this film, so the point is moot.

Towards the end of the movie, the rookie villain Two Face holds a gun to a young boys head and prepares to flip a coin to determine the boy’s fate. As he holds the coin in his hand he says:

“The world is cruel. And the only morality in a cruel world is chance. Unbiased. Unprejudiced. Fair.”

Two Face may be onto something. Chaos does not care if you are rich or poor, young or old, educated or uneducated. Chaos has no bias. As uncomfortable as we may be thinking that our fates are at the mercy chaotic events, at least everyone is equally subject to chaos.[1]

In my earlier article I suggested that our society, through our criminal justice system, punishes people based on random events. Do we take some solace in knowing that at least everyone is equally subject to random events? Does this make us more comfortable with the result?

Let us assume for the sake of argument that we accept the following premises:

  1. Random events that are beyond our control can put us in situations where conduct with little or no malice becomes severely criminal. [2]
  2. And if conduct is randomly criminal, people are punished randomly[3].
  3. To the extent that we consider random punishment unjust, people who are punished as a result of randomly criminal conduct are treated unjustly.

These notions are certainly debatable, but let us say that we accept them. Is our discomfort with the resulting unjust punishment mitigated but the thought that at least everyone is equally subject to the same injustice? Two Face would likely say “yes”.

Keen readers who have seen “The Dark Knight” will at this point recall that the Two Face character did not always adhere to the philosophy of the integrity of chance. Two Face started out as Gotham City’s heroic District Attorney, Harvey Dent. As an ideological district attorney, Dent, by self proclamation, left nothing to chance. His aversion to chance was exemplified in his unique way of determining outcomes: by flipping a double headed coin.

The heroic Harvey Dent underwent a massive transformation when his fiancée[4] was murdered in an orchestrated explosion. Physically and emotionally scared, the character emerged as Two Face and began to track down each of the people responsible for his fiancée’s death and determine their fate with a coin toss.[5]

Harvey Dent and Two Face are strikingly contrasting characters. Harvey Dent was a district attorney who believed in the effectiveness of trials in a court of law. Two Face believed that punishment can only be fairly determined by a coin toss. Perhaps Harvey Dent represents the idealist in all of us; the part of us that believes that we can be a perfectly civil society and that our courts can determine guilt and appropriate punishments with a high degree of accuracy. Conversely, perhaps Two Face represents the part of us that lacks faith in legal process and believes that the ultimate adjudicator is chance.

My earlier focus was on the breed of chance that gives rise to criminal conduct. But there are many other elements of chance in the criminal justice system such bias of the judge and jury, character of the prosecutor and quality of the defense attorney. Even events such as the defense attorney catching a mild cold and therefore performing at less than his maximum capability can influence the outcome of the case. All of these elements and infinitely more that are unmentioned give rise to a sense of chance in our criminal justice system. Perhaps Two Face is the extreme personification of this: just eliminate it all and flip a coin.[6] The element of chance is impossible to completely eliminate it from the criminal justice system. But if we simply accept it and do not always strive to do better, do we risk becoming like Two Face?

[1] There is some theological debate over whether any event in our lives is truly random. But I will leave that for another discussion.

[2] In case you haven’t read my previous article, here is an example of unmalicious conduct becoming seriously criminal: A driver speeding at 85 MPH on a 55 MPH highway would be considered reckless, but probably not malicious. His penalty if caught would be enough to sting, but not life altering. If, however, certain events should occur that are outside of the driver’s control and he collides with and kills a child, then he could be prosecuted for vehicular manslaughter and could receive a truly life altering jail sentence. To examine this topic more I recommended you read my article: Do We Imprison People Randomly?

[3] This is an obvious overstatement and over simplification. Criminal conduct does not always occur randomly. Sometimes the criminal absolutely desires and intends to create the criminal result.

[4] She accepted his marriage proposal seconds before her death, so she was only his fiancée momentarily before she met her demise. But nonetheless, she was his fiancée. And the knowledge that his had lost his future wife fueled Two Face’s thirst for vengeance.

[5] Unlike the double headed coin used by Dent, Two Face’s coin did in fact have two different sides.

[6] It is also interesting that Two Face, the character adherent to chance as an adjudicator, was driven by vengeance. It can be argued that punishing based on consequences rather than intent serves no utilitarian goal and is done to avenge the victim. It is punishment according to consequences, rather than intent, that arguably gives rise to random punishment. Therefore, there is at least some correlation between a society’s need for vengeance and its tendency to make conduct randomly criminal. Two Face exemplifies this correlation, he is driven by vengeance and punishes randomly.

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