Eugene Young’s Judgeship Interview

I remember a scene from The Practice where Eugene Young, a defense attorney, was being interviewed  by the Governor’s Judicial Council for the position of superior court judge. They wanted to know his stand on the death penalty.

Council Member: I can see your firm has handled several capital cases out of state, each time taking a position against the death penalty.

Eugene Young: Uh, we’re a defense firm. Our clients tend to disfavor being executed.

Council Member: Fair enough, but as a judge, would you impose the death penalty, should it ever become law in this state?

Eugene Young: No.

Council Member: Why not?

Eugene Young: One—I consider human life to be intrinsically sacred, and I do not believe the state should engage in the systemized taking of human life. Two—Our judicial system is flawed. We wrongly convict over 10,000 people a year, some of whom are sentenced to die. Now, you can always release an exonerated man from prison, but bringin’ him back from death has proven to be trickier. DNA has already cleared a hundred men, many on death row. Clearly, something isn’t working.

Another Council Member: And what would you say, Mr. Young, to the mother whose five-year-old daughter has been raped and murdered?

Eugene Young (after a long reflective pause): I would say, if it were my daughter, I’d like to kill whoever did it myself. And if I ever came face-to-face with the guy, I couldn’t guarantee any of you that I wouldn’t kill him. But if I did, it would be wrong. And for the State to kill reflectively, absent emotion, on ceremony, it is not right.

It appears that Eugene Young has implicitly differentiated homicidal rage over the rape and murder of one’s own child – from cold-blooded execution; the former being the spontaneous and emotional response of a seriously aggrieved parent, the latter being the considered and systemized, even ceremonial, act of the State after careful reflection, and without emotion. Although he condemns both as wrong, one is definitely a more sinister and graver ill than the other, because while a helpless grieving parent may have little to no control over his or her actions, the State, with all its resources and power to take away liberty and property, is expected to be more circumspect when it comes to taking away life.

And this is expressed best in an oft-repeated motto in The Chronicles of Thomas Covenant, the Unbeliever:

Do not hurt when holding is enough

Do not wound when hurting is enough

Do not maim when wounding is enough

And kill not when maiming is enough

Malum Prohibitum

(First published in April 2009)

One of the hottest topics that made the headlines these past few days is the unsolved summary executions in Davao City. Now I will not waste any time discussing those suspicions that these are state-sponsored killings. It could be some vigilante groups or rival gangs who perpetrated these murders, as our good Mayor had always maintained. What I would like to ponder about is the attitude of the Davaoeños towards these killings.

When an alleged drug user or dealer is gunned down by motorcycle-riding men, I bet that some of us would think, “One less criminal, one less problem for society.“

One less criminal. The fact of the killing of this criminal will somehow remain on the sidelines.

I remember the book Primal Fear because it talked about malum prohibitum and malum in se.

For those too lazy to google those Latin phrases if they don’t already know, Wikipedia defines malum in se as “wrong or evil in itself.” Crimes like murder, rape, theft, robbery, and kidnapping are generally perceived as mala in se regardless of where they are committed, or even if there were no written laws punishing them.

Now for malum prohibitum, it is defined as “wrong because prohibited.” Non-observance of the liquor or smoking ban. Illegal possession of firearms. Illegal possession of prohibited drugs. These are crimes in certain societies because their laws or statutes made them crimes. They differ from mala in se in the sense that they “result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize.”

Anyway, not to bore those already familiar with the law, please google them if you need more information.

Earlier I was talking about the book Primal Fear, and there is a part that says:

“Malum prohibitum is the way society defines the limits of acceptable behavior. So if everybody in the country wants to drink booze and booze is against the law, the law gets changed. But malum in se never changes. If everybody in the country suddenly went kill-crazy, they wouldn’t legalize murder.”

In the first half of the twentieth century there were certain periods in the United States and other countries when alcohol was illegal – not just the consumption in certain places or times, but also the manufacture, transportation, import, export, and sale of it. But the people loved their drink, and through their elected representatives they managed to have the prohibition lifted.

But for murder and other crimes considered mala in se, no civilized society has managed to legalize them. So far.

The people just turn a blind eye, or look beyond the mala in se (murder) to see the justification that the murdered victim had it coming since he was a criminal (drug user or dealer), even if the crime he was alleged of committing was only malum prohibitum.