Unfair (64 page)

Wint's friends had dragged:
McKinley, “Ex-Brooklyn Judge Seeks Reversal.”

When Kagan pulled his gun:
McKinley, “Ex-Brooklyn Judge Seeks Reversal.”

In the scuffle, the gun:
McKinley, “Ex-Brooklyn Judge Seeks Reversal.”

In December 2013, fourteen years after:
McKinley, “Ex-Brooklyn Judge Seeks Reversal.”

It is almost unheard of:
McKinley, “Ex-Brooklyn Judge Seeks Reversal.”

And it took real courage:
James C. McKinley Jr., “Prosecutor Questions Ex-Judge's Memory,”
New York Times
, February 10, 2014,
http://www.nytimes.com​/2014/02/11/nyregion/​prosecutor-tries-to-​cast-doubt-on-ex-judge-seeking-reversal-of-his-own-verdict.html?module=Search&​mabReward=relbias%​3Ar%2C%7B%221%22%3A%22RI%3A6%22%7D
.

But it seemed to Barbaro that:
“After Sending a Man to Prison.” When asked by an interviewer whether there was room in the legal system for the doubt he was feeling, Barbaro remarked, “I think too many times there is pressure to finish the cases, get the cases done and off the calendar. This pressure dooms people to be convicted unjustly. Now I'm not saying every case, but one is too much.” “After Sending a Man to Prison.”

More than five hundred citizens:
Jan Bondeson,
The Feejee Mermaid and Other Essays in Natural and Unnatural History
(Ithaca: Cornell University Press, 1999), 143.

They assembled around the town:
Bondeson,
The Feejee Mermaid and Other Essays
, 143.

Earlier, the accused had been:
Bondeson,
The Feejee Mermaid and Other Essays
, 143.

And though the child had:
Joseph P. McNamara, “Curiosities of the Law: Animal Prisoner at the Bar,”
Notre Dame Law
3, no. 30 (1927): 32; Bondeson,
The Feejee Mermaid and Other Essays
, 143.

Indeed, the guilty party had not:
Bondeson,
The Feejee Mermaid and Other Essays
, 143.

The crowd watched with eager eyes:
Bondeson,
The Feejee Mermaid and Other Essays
, 143.

She had been dressed in:
McNamara, “Curiosities of the Law,” 32.

It was 1386:
Bondeson,
The Feejee Mermaid and Other Essays
, 143.

But still, the condemned:
Bondeson,
The Feejee Mermaid and Other Essays
, 143.

As the last preparations were made:
Bondeson,
The Feejee Mermaid and Other Essays
, 143.

It was, the Vicomte must:
Bondeson,
The Feejee Mermaid and Other Essays
, 143.

When, some three decades later:
Bondeson,
The Feejee Mermaid and Other Essays
, 143.

Though the fresco has not:
Bondeson,
The Feejee Mermaid and Other Essays
, 143.

She was a pig:
Bondeson,
The Feejee Mermaid and Other Essays
, 143.

Trials and punishments of animals:
Geoffrey P. Goodwin and Adam Benforado, “Judging the Goring Ox: Retribution Directed Toward Animals,”
Cognitive Science
(2014), 3-4, doi: 10.1111/cogs.12175.

Judicial proceedings were brought:
Goodwin and Benforado, “Judging the Goring Ox,” 4; E. P. Evans,
The Criminal Prosecution and Capital Punishment of Animals
(New York: E.P. Dutton and Company, 1906); Bondeson,
The Feejee Mermaid and Other Essays
, 131–60.

Mastiffs were guillotined:
Bondeson,
The Feejee Mermaid and Other Essays
, 151.

Murderous bulls were seized:
Evans,
The Criminal Prosecution
.

Horses were burned by court:
Evans,
The Criminal Prosecution
, 162.

According to Plato:
Plato,
The Laws of Plato
, trans. A. E. Taylor (London: J.M. Dent, 1934), 263–64.

The trial was to take place:
Goodwin and Benforado, “Judging the Goring Ox,” 4; Walter Woodburn Hyde, “The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times,”
The University of Pennsylvania Law Review
64, no. 7 (1916); Jen Girgen, “The Historical and Contemporary Prosecution and Punishment of Animals,”
Animal Law
9 (2003).

Likewise, by the mandate:
Exodus 21:28 (King James). Interestingly, death by stoning was a special type of sentence reserved for the most egregious type of crimes and expressing the particular moral outrage of the offense. Goodwin and Benforado, “Judging the Goring Ox,” 4; J. J. Finkelstein, “The Ox That Gored,”
Transactions of the American Philosophical Society
71, no. 2 (1981).

Many of the recorded examples:
Goodwin and Benforado, “Judging the Goring Ox, 4.”

And should the tribe fail:
Sir James George Frazer, “The Ox That Gored,” in
Folk-Lore in the Old Testament
, vol. 3 (London: Macmillan, 1919), 415–16; John Macrae, “Account of the Kookies of Lunctas,”
Asiatic Researches
7 (1803): 189. I've added italics to emphasize a particularly interesting facet of the quotation: if the actual perpetrator is not caught, a stand-in perpetrator must be found and killed.

It is tempting to write off:
Esther Cohen, “Law, Folklore, and Animal Lore,”
Past and Present
110 (1986); Evans,
The Criminal Prosecution
; Hans Kelsen,
General Theory of Law and State
, trans. A. Wedberg (New York: Russell & Russell, 1945), 91.

An ox lacks many:
Goodwin and Benforado, “Judging the Goring Ox, 3, 5, 22-23.”

To suppose otherwise is:
Parker-Harris Co. v. Tate, 188 S.W. 54, 55 (Tenn. 1916). The court provided the ox cart example in the context of a discussion of “deodand,” which historically was any personal property “whatever, animate or inanimate, which, becoming the immediate instrument by which the death of a human creature was caused, was forfeited to the king, for sale and a distribution of the proceeds in alms to the poor by his high almoner, ‘for the appeasing of God's wrath'….”
Parker-Harris Co
., 188 S.W. at 55.

At the same time that:
“Kentucky Dog Murder Trials Held Repealed,”
Washington Post
, January 25, 1929.

In 1918, Kentucky had passed:
“Kentucky Dog Murder Trials Held Repealed.”

But the courts were slow:
“Kentucky Jury Convicts Dog: Death Sentence Carried Out,”
New York Times
, January 11, 1926.

When Bill, a collie, was:
“Kentucky Jury Convicts Dog”; “Condemned Dog Faces Kentucky Court Today,”
New York Times
, January 16, 1928.

Which helps explain why:
“Condemned Dog Faces Kentucky Court Today.”

Thanks—perhaps—to his royal:
“Condemned Dog Faces Kentucky Court Today.”

And although convicted three:
“Animals: Kaiser Bill,”
Time
, November 18, 1929,
http://content.time.com/​time/magazine​/article/0,9171,738059,00.html
.

Interestingly, it was not:
“Condemned Dog Faces Kentucky Court Today.”

It was, she explained:
“Condemned Dog Faces Kentucky Court Today.”

A surfer is dragged underwater:
Oliver Milman, “Shark Attacks Prompt Calls to Review the Great White's Protected Status,”
Guardian
, July 16, 2012,
http://​www.guardian.co.uk/​environment/2012/jul​/16/marine-life-wildlife
.

A grizzly bear attacks:
Jessica Grose, “A Death in Yellowstone,”
Slate
, April 2, 2012,
http://www.slate.com/​articles/health_and_science/death_in_yellowstone/2012​/04/grizzly_bear_attacks_how_wildlife_investigators_found_a_killer_grizzly_in_yellowstone_​.single.html
; Scott Streater, “Yellowstone Bear Euthanized After DNA Evidence Links Two Fatal Attacks,”
New York Times
, October 7, 2011,
http://www.nytimes.com/​gwire/​2011/10/07/07greenwire-yellowstone​-bear-euthanized-after-​dna-evidence-52234.html?pagewanted=all
.

When it comes to morality:
Eyal Aharoni and Alan J. Fridlund, “Punishment Without Reason: Isolating Retribution in Lay Punishment of Criminal Offenders,”
Psychology, Public Policy, and Law
18, no. 4 (2012): 4.

And when I press you:
Aharoni and Fridlund, “Punishment Without Reason,” 5.

But did those reasons lead you:
Aharoni and Fridlund, “Punishment Without Reason,” 5; Peter H. Ditto, David A. Pizarro, and David Tannenbaum, “Motivated Moral Reasoning,” in
Moral Judgment and Decision Making
, ed. Daniel M. Bartels et al. (Burlington, VT: Academic Press, 2009).

The best available evidence suggests:
Kevin M. Carlsmith and John M. Darley, “Psychological Aspects of Retributive Justice,”
Advances in Experimental Psychology
40 (2008): 213. For an interesting overview, see Jonathan Haidt,
The Righteous Mind: Why Good People Are Divided by Politics and Religion
(New York: Pantheon, 2012).

In one famous experiment:
Jonathan Haidt, Frederick Björklund, and Scott Murphy, “Moral Dumbfounding: When Intuition Finds No Reason” (unpublished manuscript, August 10, 2000); Jonathan Haidt, “The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment,”
Psychological Review
108, no. 4 (2001): 814, doi: 10.1037/0033-295X.108.4.814; Aharoni and Fridlund, “Punishment Without Reason,” 5–6.

The trick was that:
Haid, Björklund, and Murphy, “Moral Dumbfounding,” 18; Haidt, “The Emotional Dog and Its Rational Tail,” 814; Aharoni and Fridlund, “Punishment Without Reason,” 5–6.

In the incest scenario:
Haid, Björklund, and Murphy, “Moral Dumbfounding,” 18; Haidt, “The Emotional Dog and Its Rational Tail,” 814; Aharoni and Fridlund, “Punishment Without Reason,” 5–6.

In addition, the incest never:
Haid, Björklund, and Murphy, “Moral Dumbfounding,” 18; Haidt, “The Emotional Dog and Its Rational Tail,” 814; Aharoni and Fridlund, “Punishment Without Reason,” 5–6.

Study participants were quick to:
Haid, Björklund, and Murphy, “Moral Dumbfounding,” 3, 9; Haidt, “The Emotional Dog and Its Rational Tail,” 814; Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 212.

Even when they ran out:
Aharoni and Fridlund, “Punishment Without Reason,” 5–6; Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 212.

Even our moral decision-making:
Aharoni and Fridlund, “Punishment Without Reason,” 5–6; Haidt, “The Emotional Dog and Its Rational Tail,” 814. For interesting fMRI evidence supporting the role of emotional processes in moral judgment, see Joshua D. Greene et al., “The Neural Bases of Cognitive Conflict and Control in Moral Judgment,”
Neuron
44, no. 2 (2004): 389–400, doi: 10.1016/j.neuron.2004.09.027; Joshua D. Greene et al., “An fMRI Investigation of Emotional Engagement in Moral Judgment,”
Science
293, no. 5537 (2001): 2105–08, doi: 10.1126/science.1062872.

It is worth noting that my coauthor Geoff believes that models of moral judgment that emphasize the powerful influence of emotion and intuition are substantially overstated. He would argue for a greater role for reflection and reasoning in moral judgment than I would, although we agree that both are important components. My own position is that intuition is likely primary and almost certainly underestimated by those outside of psychology departments. For readers interested in research focused on reasoning in moral judgment, see Monica Bucciarelli, Sangeet Khemlani, and Philip N. Johnson-Laird, “The Psychology of Moral Reasoning,”
Judgment and Decision Making
3, no. 2, (2008): 121–39; Joseph M. Paxton and Joshua D. Greene, “Moral Reasoning: Hints and Allegations,”
Topics in Cognitive Science
2, no. 3 (2010): 511–27; Bertram F. Malle, Steve Guglielmo, and Andrew E. Monroe, “A Theory of Blame,”
Psychological Inquiry: An International Journal for the Advancement of Psychological Theory
25, no. 2 (2014): 147–86, doi: 10.1080/1047840X.2014.877340; David A. Pizarro and Paul Bloom, “The Intelligence of the Moral Intuitions: Comment on Haidt (2001),”
Psychological Review
110 (2003): 193–96; Paul Bloom,
Just Babies: The Origins of Good and Evil
(New York: Crown, 2013).

In these moments:
Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 212; Haidt, “The Emotional Dog and Its Rational Tail.”

We arrive at a destination:
Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 212–13; Haidt, “The Emotional Dog and Its Rational Tail,” 817; Haidt,
The Righteous Mind
.

There are several potential:
Aharoni and Fridlund, “Punishment Without Reason,” 2. For an overview of various theories of punishment, see Joshua Dressler,
Understanding Criminal Law
, 6th ed. (LexisNexis, 2012), 14–23.

When asked, people tend to:
Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 211.

But these self-reports don't:
Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 213.

Regrettably, that question is hard:
Goodwin and Benforado, “Judging the Goring Ox,” 2–3, 5-7.

But people should also feel:
Goodwin and Benforado, “Judging the Goring Ox,” 2–3, 5-7.

So varying the gravity:
Goodwin and Benforado, “Judging the Goring Ox,” 2–3, 5-7.

That was exactly the dilemma:
Goodwin and Benforado, “Judging the Goring Ox, 2–3, 5-7.”

When we hunt down:
Goodwin and Benforado, “Judging the Goring Ox, 3, 8.”

So we can effectively:
Goodwin and Benforado, “Judging the Goring Ox,” 3.

Eliminating the possibility that:
Goodwin and Benforado, “Judging the Goring Ox,” 15, 20.

In one, a shark attacks:
Goodwin and Benforado, “Judging the Goring Ox,” 17.