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March|April 2006
Finders Keepers? Christopher Heaney
Shanghaied Sasha Issenberg
Bigger Is Better Paul Wachter
Jack of All Plants Daniel Kurtz-Phelan
The Vigilante in the Kitchen Josh Rosenblum
Cases & Controversies
The Prudent Jurist William H. Simon
Roma v. Romania Doug Merlino
Off the Res Ellen Thompson

The Prudent Jurist

Ohio Judge Michael A. Cicconetti, known for devising unusual punishments, sentenced Michelle Murray to a night in the woods for abandoning her kittens. Extending its advocacy to humans, the Humane Society argued that Cicconetti's punishment of Murray was as inhumane as her crime. Did the judge go too far?

William H. Simon

A COLD NIGHT IN THE WOODS is not exactly Abu Ghraib. Still, this punishment does sound like a modest form of torture, especially since the judge announced his intention to induce "humiliation and embarrassment."

The night in the woods won't help the aggrieved kittens, so we can't justify the punishment as a form of restitution (as, for example, when a vandal is ordered to clean up his mess). It's possible that the judge thought of the sentence as a form of rehabilitation, like ordering a drug offender into treatment. Maybe he thought Ms. Murray would become more sympathetic to the kittens if she experienced their plight herself. But it appears that she does not think kittens have the same kind of feelings that she does, so this approach seems ineffective. That leaves retribution and deterrence—the infliction of pain to express our disdain and to deter others. For these purposes, the traditional forms of punishment—fines and incarceration—are fully adequate. The Humane Society got it right.

Thomas Esposito ran for the West Virginia Legislature when he was facing federal corruption charges. He dropped out before the election but helped snare several local officials on charges of bribery and election fraud. It came out that the FBI had pushed him to run and that his candidacy had been a ruse. Did the FBI act unethically in using an election as an undercover sting?

I'VE ARGUED BEFORE ON THESE PAGES against an excessively high-minded attitude about deception in law enforcement. (See "The Prudent Jurist," January|February 2005, p. 15.) Some crimes are hard to police without deception. Undercover drug buys, for example, are time-honored, potentially valuable practices.

But such tactics are defensible only when they don't impose substantial costs on innocent people. An undercover drug buy seems justified: Only someone disposed to break the law will sell the contraband product. The election sting is more troubling. If volunteer campaign workers devoted large amounts of time to the phony candidate, they would feel wronged by the FBI. There's also a concern about the integrity of the electoral process: Democracy requires citizens to devote time and attention to voting. The suspicion that some candidates could be frauds might reduce people's commitment to the process. And there's a fear that a fake candidacy might alter the competition's dynamics, for example, by discouraging a worthy candidate with a similar platform from running. If the FBI needs electoral candidates for public corruption stings, it should enlist real ones.

In a California murder case, the defense lawyer planned to argue that the victim was mentally unstable, and that the defendant had killed him in self-defense. The judge appointed a lawyer to represent the dead man's interests and protect his psychiatric records. The defense lawyer responded that the victim's history was essential to his client's case, and that, because he was dead, the victim had no right to confidentiality. Was the judge or the defense lawyer right?

THE JUDGE PROBABLY MADE A BAD MOVE. A key difference between the dead and the living is that the dead can't make decisions about their interests. Confidentiality rights can be waived, and living people waive them all the time. The ingrained bias of lawyers, though, is to assert confidentialit; after his appointment in this case, the victim's lawyer said, "Because I can't consult with my client, I suppose I claim a privilege." But without knowing what the victim wanted, it was a fiction that the judge was acting in the dead man's interests when he appointed a lawyer for him, or that the lawyer was actually representing those interests.

Another fact about dead people is that they do not suffer humiliation, shame, and embarrassment—the reactions that confidentiality is designed to prevent. Even if we knew that the victim wanted his records kept private, it might be a poor use of resources to try to fulfill his wishes.

This doesn't mean that there's no argument for confidentiality after death. Some courts have held that privileges protecting communications between patients and doctors, for example, survive the patient's death, because people should be assured that their confidences won't be divulged posthumously. (The purpose of the rule is to encourage people to be honest with a doctor so they can get the best care.) Under this theory, we protect confidentiality not to serve the individual interests of the dead person, but to encourage people generally to communicate. If confidentiality is in the interest of society as a whole, there is no need for a personal representative of the deceased to argue for it. The prosecutor could be expected to speak for society's interests in opposing the defendant's efforts to secure the records.

William H. Simon teaches professional responsibility at Columbia Law School and is a contributing editor of Legal Affairs.

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