Word is out that California, with the nation’s largest death row, is now going to have an initiative on the ballot this November to abolish the death penalty in that state. And some clever abolitionists came up with this snazzy title for the bill: “Savings, Accountability, and Full Enforcement for California Act,” i.e., the “SAFE California Act.” This is a brilliant example of lawyers moving the frame so that people can see an argument in a larger, different context that suddenly makes a thesis more accessible. Instead of the debate being “the death penalty is evil v. the death penalty is a worthy option,” the California approach redescribes it in terms that are not so morally loaded and hopelessly abstract. No one armed with the facts could fail to see that implementing the death penalty costs a state a ton of money, which raises the specter of all the other things a state has to give up to cling to that measure. And that in turn requires thinking about criminal justice in more nuanced fashion in these times when folks are obsessed with government debt and deficits.
So now I am really, really convinced that we need to drill down into Measure for Measure for answers about the complex nature of dispensing true justice. But since the three of you who may be reading this blawg may not have that particular play rattling around in your head, here’s some background:
In Measure for Measure, the leader of a particular community, Duke Vincentio, decides that he may be better suited for the monastic life than for politics. To test this hunch, the Duke arranges to deputize a loyal compatriot, Angelo. The play begins as the Duke asks Angelo to take charge, to embody the law itself by being “morality and mercy,” while the Duke takes a leave of absence. Angelo is the Duke’s choice because he is known far and wide as a super-buttoned-up man of piety. Once in charge, Angelo, unlike the Duke, is not reluctant to enforce the laws that are already on the books:
We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror.
Soon, the prisons are full to bursting. Among those who are promptly rounded up for breaking the law is a young fellow named Claudio. Claudio has been indicted and swiftly convicted for “fornication.” He can hardly put on much of a defense since the rather obviously pregnant girlfriend at his side is walking proof of his transgression. The law says that the proper punishment for this offense—knocking someone up outside the confines of marriage—is death. And so Angelo sentences Claudio to death per the sentencing guidelines.
The plot gets really interesting when Claudio’s lovely, younger sister enters the picture. Claudio’s friends convince her to take a hiatus from the convent (where she is about to take a vow of eternal chastity) to pursue an appeal on her brother’s behalf. Who could imagine a more effective advocate?—a pious, virginal beauty who is ready to concede that her brother has indeed committed a crime, but who can also speak with some authority about how God may think executing the guy for this particular sin is a bit much.
Things get even more interesting when we see how Angelo responds to Isabella’s petition. He does not grant it outright. Instead, he makes her an ex parte proposition: If she will sleep with him, he’ll grant her brother a full pardon.
Shocking, huh? If she will submit to a real sex crime, then he, the perpetrator, promises to use his power to spare her brother. Angelo can offer this plea bargain only because his reputation for virtue led to his being put in charge of dispensing justice. Meanwhile, the man Angelo has sentenced to death has merely engaged in consensual, extramarital sex with a woman Claudio would happily marry if the state would simply refrain from killing him. Understandably, Isabella finds Angelo’s offer distasteful. To make matters worse, when she goes to the prison to tell her brother the bad news, he tries to convince her to go through with this icky sacrifice because, well, he thinks a little rape is not so bad when a life (i.e., his) hangs in the balance.
Because this play is supposed to be a “comedy,” justice has to prevail in the end. And it sort of does. The justice that is ultimately meted out, though, captures the moral complexity of the situation in a way that applying the law strictly could not do.