And So the Pendulum Swings

A few days ago I happened upon this article about how the District Attorney for King County, New York is softening criminal punishment in his county.  I've never read anything by City Journal before, but my reaction was something along the lines of they're just noticing this now? It's not new. For years now the pendulum has been swinging away from enforcing the law through incarceration to protect citizens and into fixing the defendants or de-escalating enforcement. The City Journal calls this a race to the bottom. I think it's a combination of (first and foremost) complacency of the general population, economic factors, and attempts to make things better within practical boundaries. Will it work? We don't know and long term affects of this kind of trend never occur overnight so we are unlikely to know for a couple decades.

Those of us who are old enough remember when the big cities were perceived as crime-ridden urban wastelands (yes I know some few still are). In popular culture this was reflected in the seventies through shoot-'em-all, lone hero dramas like the Dirty Harry and Death Wish movie franchises and the blaxploitation films showing a crime ridden world (strangely, blaxploitation males tended to be more a part of that world while blaxploitation women tended to fight against it: Cleopatra Jones, Foxy Brown, Coffy). In the eighties there was outright despair reflected in Fort Apache, The Bronx and a more day to day bleakness shown in the series Hill Street Blues. All the while news casts were constantly hitting us over the heads with real news about crime and murder rates. The world was not a good place and the general population was upset, scared, and worried to the point that it wanted something done.

Then came proactive policing. Police departments, beginning with the NYPD, started enforcing "broken windows" policies and that became a doorway through which much more robust enforcement entered. And it was effective:

Found here

Found here

Notice the very significant drops in crime rates and murders throughout the 90's after proactive policing began.

Of course, there was a lot of screaming about this from various civil rights and interest groups. The academics also hated it. I can't remember how many times I heard or saw the mantra "correlation does not equal causation" which is true as far as it goes. However, when correlation occurs many, many times in many, many places the mantra starts to ring hollow.

[Side Story] I was at college and a visiting lecturer was giving a lecture "debunking" broken windows He first pointed out the drop in crime rates and then uttered the "correlation does not mean causation" truism. Finally, he offered his explanation for the drop in crime rates which was that young males were the primary offenders and they were aging out so that they weren't violating the law.

I was sitting with a bunch of my (young male) fraternity brothers listening to this lecture and we start looking at each other confused/bemused. We're all thinking the same thing and finally the guy sitting two down from me stage whispers to us all, "Um, I get that males get older, but don't we tend to make new ones every year to replace them?"[/Side Story]

Of course, proactive policing always had the potential to cross over into unconstitutional behavior and it did more than once. After all unconstitutional behavior can be good policy if the aim of the policy is to keep the peace. For instance, it's clearly unconstitutional for officers to stop and frisk a group of young men just because they are a group of young men in an area with a gang presence or a higher crime rate. However, if members of the 8th Street Knife Killers Gang know they are going to get frisked every couple days and go to jail if they carry firearms, they tend to not carry them as much. It might have limited effect at stopping premeditated, well-planned crimes, but it tends to cut down on impulse crimes; it's hard to shoot a guy from another gang who is taking his grandmother to her doctor on disputed turf when you don't have a gun. Nevertheless, no matter how good that policy argument is it doesn't render the frisk constitutional.

Not that it mattered. The voting public wanted. something. done. NOW! They did not care about the niceties of constitutional law. They wanted a safer world and safer lives. And they got it. Police got proactive, legislatures passed tougher laws, and courts sometimes bent themselves into pretzels to find most of it constitutional. Et voilà crime rates dropped.

Things quieted. Despite the best efforts of the 24 hour news channels, it slowly sank into the hindbrains of the voting public that things had gotten safer. The voting class started moving back into cities (remember the squawking about gentrification?). They started feeling comfortable and safe. They started to assume that things have always been and will always be as safe as they currently are. They lost the fear and settled into their lives - assuming the protection of police as normal and losing interest.

Of course, things never actually quiet down. When one segment, albeit a large one, settles down others fill the void with their voices. Remember those civil rights groups, interest groups, and academics mentioned above? They never went away and their voices started to sound a lot louder once the general public settled into satisfied, protected complacency.

At first these voices weren't treated much better than they were before, but they persisted and eventually the general population - satisfied from its perception of continued safety - began to take note and agree. The civil rights groups gained purchase first as they always had the most cogent argument; as noted above proactive policing tends to move into techniques which are effective, but not always constitutional. More important to the politicians writing and enforcing laws, the interest groups started to push for things to be done to decrease enforcement because enforcement impacted their kith and kin. Of course, the academics provided rationales for most all of this. As always when this sort of thing occurs the messages which came out are mixed: "Leave us alone", "Leave them alone", "Work with the community", "Fix them don't just throw them away", etc. 

These were the desired (and somewhat contradictory) results. However, agitation for them wouldn't carry the day alone. What finally carried the day were the magical words that every person running a county, city, town, or State loves to hear: "We can save you money."

Scratch the surface of a rehabilitation program and you will find underneath a claim that it will cost less money than incarceration. Will it? That's often hard to actually prove one way or the other. Still, the combination of "We can save you money" combined with the moral grounding of "We can fix" greased the pivot and the pendulum, having been pushed as high as it could on the "protect the citizens" & "punish the offender" side started sliding back down toward "fix them" and nonactive policing.

As the pendulum picked up momentum the "We can save you money" argument became less and less a factor and less incarceration, less supervision, less police enforcement became considered good unto themselves. And so follow those who rely on votes to keep their jobs. After all, that's why we set up our democratic republic. Those people who hold office, but don't follow the will of the people are supposed to lose their offices eventually. And so, it's not surprising that even prosecutors start sounding like public defenders after a while.

How long will this trend last? Unknown. These things tend to go in cycles that are decades long. On the other hand, in the modern interconnected world people gain knowledge of problems much quicker than they did when they were relying on things to catch the eye of national news monopolies all based in NYC. Want to see the downtowns of cities on the West Coast be taken over by mobs while the police stand by and do nothing? Want to see stories about how San Francisco's homeless population has grown so huge and undisturbed that its waste is making the city unliveable? Want to see the urban wasteland that is Detroit? How about stories that Chicago is headed down the same hole? You can easily find all of them on the Internet. How much weight or truth you choose to assign them may be a different matter, but they are easily found.  

Nevertheless, the momentum of the moment remains firmly in the direction away from "protect the citizens" and "punish the offender." It is likely to remain so for some time.

Restitution for Traffic Crimes in Virginia

Virginia's § 15.2-1716: Reimbursement of expenses incurred in responding to DUI and related incidents is broader than its title states in that it applies to more traffic violations than DUI, but the title does give a general sense as to its purpose. It allows localities to be reimbursed when there is an emergency or when a summons or warrant is given pursuant to certain listed statutes.

To understand all this this, you must first understand that Virginia is a strong Dillon Rule state. In other words, a locality (town, city, or county) cannot pass an ordinance unless it is specifically authorized to do so by the Virginia General Assembly. § 15.2-1716 is a statute authorizing localities to pass a specific ordinance with two potential parts. It started as authorizing only the first part. In 1994, the General Assembly passed into being the predecessor of the current statute, § 15.1-132.1. This statute was clearly meant to limit restitution to when a DUI (or watercraft equivalent) was "the proximate cause of any accident or incident resulting in an appropriate emergency response."

Since its enactment, this statute has been the subject of many minor adjustments, two major changes, and one attorney general opinion. In 2003, the first major change came in the form of a reorganization of the statute as well as the addition of a number of new convictions which were subject to it. However, it clearly remained only an authorization of the first part: "when providing an appropriate emergency response to any accident or incident."

Apparently, some localities started using this as a way to get restitution for normal incidents such as traffic stops for the listed offenses when they resulted in convictions. This was contrary to to, or at the very least a strained reading of, the requirement of an "emergency response." This led to Attorney General Opinion 04-054. Despite a problematic inability of whoever wrote this for the attorney general to know the difference between the stand alone noun "incident" (occurrence/happening) and "incident to" / "incident of" (accompanying concomitant event - most commonly seen as incidental), the opinion is correct when it states that (a) the statute as it then existed required an emergency not just a routine traffic stop/arrest, and (b) not all parts of it allowed restitution to law enforcement (as opposed to EMTs, fire, and rescue).

And yet, it appears that the problem remained. Localities kept trying to get restitution thru ordinances permitted by this statute and the claim that all law enforcement stops pursuant to the listed statutes are emergencies unto themselves without the additional requirement of a wreck or injuries. After all, an attorney general's opinion is just that - an opinion. He's neither an appellate judge nor a legislator and those are the people who are charged with making and defining law. People tend to assign great weight to AG opinions they agree with and discount the one's they disfavor. And it is at least arguable that every DUI is an emergency situation, because of the danger an incapacitated person behind the wheel of a two ton vehicle poses to us all.

In 2009, Delegate Iaquinto (now Judge Iaquinto, GDC Va. Beach) introduced a bill (HB2532) in an attempt to resolve this issue once and for all time. His specific purpose for introducing this bill was

Specifies that a locality that has passed an enabling ordinance is entitled to restitution from a person convicted of certain DUI offenses as compensation for law-enforcement response regardless of whether an accident occurs.

His amendments would have allowed law enforcement restitution through an entirely separate ordinance, but limited it to only violations of the statutes in the first enumerated provision of § 15.2-1716 (the various DUI statutes). His amendment was separated out to be easily understood, would have led to a separate easy to understand ordinance, and had commonsense constraints on its application. Then it went into the sausage mill that is the General Assembly.

By the time the sausage had been made (the bill passed), the amendment had been moved from its separate section to become the second sentence of subsection A where it was bound to cause confusion. The language was also changed so that it didn't authorize a separate ordinance but only allowed a new provision to be added to the same ordinance leaving room for more confusion. As well, it now no longer applied to only the DUI convictions of the first enumerated provision; it applied to all the enumerated provisions (1: DUI / 2: Reckless Driving / 3: Driving Unlicensed / 4: Hit and Run). Finally, in subsection B it added "arrest" as a third condition triggering no more than $1,000 in restitution (between accident and incident).

So now § 15.2-1716 looks like this. The first sentence in subsection A is still limited to emergencies. The only thing tying it to the second sentence is that they both relate to the enumerated provisions, both relate to subsection B, and the second sentence's requirement that although different provisions both must be included in the same ordinance: "The ordinance may further provide . . ."

What the ordinance may provide (as applicable to law enforcement) is that

a person convicted of violating any of the following provisions shall . . . be liable to the locality . . . for restitution of reasonable expenses incurred by the locality when issuing any related arrest warrant or summons

So, the plain language of the second sentence has it allowing restitution for issuing any warrants or summons related to the conviction (assuming the conviction is one in the enumerated section). When subsection B limits restitution to arrests, please remember that a summons is an arrest and release by the officer. So, the statute as it stands generally accomplishes what Judge né Delegate Iaquinto intended, except it's not as clear as his version and it doesn't have the limitations he proposed. 

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A brief moment on "incident." I tried to leave it alone. I really did. I generally think the AG opinion was correct as it stood in relation to the statute at that time. I also know that in writing things down it's almost impossible to get everything right (I might have made a couple errors in the 16 years this blawg has been going - maybe even three if you look hard enough). However, this one just got under my skin.

An incident is a happening or occurrence. A happening or occurrence is an incident. A=B. B=A. It's about the broadest term a statute could use to indicate activity. Claiming the word "incident denotes a subordinate occurrence" is incorrect without further modification added to "incident." For instance, if the statute said "accident or incident thereof" or "incidents or the accident they proceed from", or "accident and its incidents" we would all know that the incidents referred to were subsets of the set of the accident. This is not how the the statute is written. "Accident or incident" denotes two different things that are not subsets of the other and are not the same. We are not writing in the old legal language of England where the use of doublets was necessary because of the possibility that the reader might not understand either Anglo-Saxon or French.

In fact, we are told over and over again by our appellate courts that each and every word the General Assembly writes has a meaning. 

A court will not interpret a statute in such a way that it renders other statutory language superfluous. Rather, we must assume the legislature chose, with care, the words it used when it enacted the relevant statute. Because we assume the legislature carefully chose the words used in the statute, it is our duty to give reasonable effect to every word.   Coffman v. Commonwealth, 67 Va. App. 163 (2017).

When the General Assembly uses two different terms in the same act, those terms are presumed to have distinct and different meanings. I.D.A. v. Montgomery County, 263 Va. 349 (2002). 

 And, of course, I'm sure we've all had drilled into our heads that the only people who can add language to a statute are the members of the General Assembly.  See Holsapple v. Commonwealth, 266 Va. 593 (2003) (The appellant asks "this Court to add language to the statute the General Assembly has not seen fit to include, an exercise in which the Court is not free to engage.") & Burlile v. Commonwealth, 261 Va. 501 (2001) ("Courts are not permitted to add language to a statute nor are they permitted to accomplish the same result by judicial interpretation").

Incident is an extremely broad word indicating just about any action. Thus, contrary to the AG's opinion, YES a traffic stop pursuant reasonable articulable suspicion, which develops into probable cause, which leads to an arrest on a warrant or an arrest and release with a summons IS AN INCIDENT. The limiting part of the statute prior to the Iaquinto amendments was the language requiring an "appropriate emergency response", not the word incident.

Furthermore, this is the most commonsense reading of the word incident as it pertains to the statute. We know what an accident is. What else similar could happen on the road that qualifies as an incident? Presenting reasonable articulable suspicion leading to a traffic stop and interaction with an officer, leading to probable cause, and concluding with a warrant or a summons is the most likely thing other than an accident that would occur on a road involving the listed violations, the defendant, and a police officer. This is what you get when you actually do a noscitur a sociis analysis rather than merely quoting the phrase and saying it supports your conclusion.

~~~ fini ~~~~

Sentencing the Virginia Way

Green v. Commonwealth, 69 Va.App. 99 (2018) is causing a bit of a stir around where I practice, so I thought I'd try to explain the actual nuts and bolts of a judicial sentence in Virginia.

Definitions:

Suspended Execution: This is the amount of time that a judge hangs over a defendant's head, but does not make her serve immediately. For example: "I sentence you to five years in prison, but I suspend two of those years." Only three years are actually set to be immediately served. The other two are suspended.

Period of Suspension: This is the amount of time during which the suspended time is held in abeyance and can be imposed. Typically, you would hear this said in a manner such as "I sentence you to five years in prison, but I suspend two of those years. Your suspended time is suspended for five years."

Probation: Supervision by the probation office of a person during some portion of her length of suspension. So, a complete sentence could be "I sentence you to five years in prison, but I suspend two of those years. Your suspended time is suspended for five years and I place you on probation for three years."

[NOTE]  It is unfortunate and confusing that Virginia law and courts use "suspend" to mean two different things. It would be far better if it was "suspended execution" and "period of abeyance." Unfortunately, it's not and this leads to an almost constant state of confusion for defendants and a lot of attorneys.

 

In Green, the primary ruling is that the period of suspension runs from the moment of sentencing and is not and cannot be tolled while the defendant is incarcerated (all interpreting Va Code 19.2-306). Thus, a situation like the one in the chart above occurred.

Per the example in the chart you can see the actual sentence in the top left corner. The judge sentenced the defendant to five years and suspended execution of two years. Then, on the right, the judge stated that the period of suspension was five years (yellow). This starts on the day of sentencing. 

The bar on the far right shows what actually happened to the defendant. The black part of the bar is the three year period in prison. What's above the black bar happened after the defendant got out of prison. For two years, the defendant has valid probation; you'll note that the yellow bar to the left goes to the same height as the orange part of the bar on the right. 

THEN, the yellow bar stops and the bar on the right is red. This is because probation cannot exist (at least not legally) after period of suspension has run out. The supervision itself is not allowed per the Green case and if a defendant does something which would trigger a probation violation there is no longer any time from the suspended execution in existence.

IMPORTANT LESSON OF THE CASE: If the judge has not stated there is a period of suspension and he states there is a period of probation then the probation does not legally exist. 

Everybody Gets Killed in Oxford

Lately, I've been watching British crime dramas. I started watching Inspector Lewis. Then I watched Endeavor. Lately, I've been watching the series that gave birth to both of these spin-offs: Inspector Morse. In the watching, I've started to develop strange habits of speech and writing which leave 'Muricans bewildered at times. However, more importantly I have learned several interesting and potentially important things.

1) Most importantly, never, ever, ever, not on a bet, neither for money nor fortune, ever go to Oxford. As best I can extrapolate from the data provided by these shows, Oxford has a murder rate that would shock residents of Chicago. Professors kill professors, students kill students, professors kill students, students kill professors, and on the odd occasion a professor or student kills someone from the town because the guy was bringing down the local cricket side. It's a bloodbath. And the school must do an amazing job of covering it up, because every time the people involved act like they're shocked that a thing like this would ever happen in their academic community. So, if you go there you will get kilt and no one will ever find out about it.

2)  Caution: Of course, the British don't talk about "Miranda warnings." However, they have developed their own version which is somewhat like looking through a window to see how it could have turned out in these United States. The British call it "questioning under caution" and the statement given is: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." They also seem to have to inform the person they can have an attorney during questioning, but there doesn't seem to be a set format for that.

3) At the Station / taping: In the U.S. there is a strong preference under the case law to not bring a person to the police station because it is coercive. The British take the opposite approach. Questioning must take place at the station outside of extraordinary circumstances and the officer must put a tape in the recording machine which is present and start it all in the presence of the suspect. While they may have switched over to digital by now, I'd bet good money that institutional inertia probably made British police departments the last major customer for cassette tape manufacturers in the world.

4) Stopping the Interview: In the US, the interview stops with the magic words "I want an attorney" or if the attorney is already present with the attorney shutting down the questioning. Apparently, the presence of a lawyer doesn't give the attorney the right to shut down the interrogation - instead only giving him the power to advise. At least two shows I watched had the suspects sitting in the chair with their attorney at the table being recorded as the officer asked question father question while the hardened criminal types being questioned say time after time after time "no comment."

5) And finally (at least for today), ranks. In the U.S. while you might see wildly varying insignia and uniforms (every police and sheriff's department wants to be unique), but the ranks are almost always modeled on the military: officer, corporal, sergeant, lieutenant, captain, etc. The British have gone their own way.  They have constables, sergeants, inspectors, chief inspectors, superintendent, chief superintendent, assistant chief constable, and chief constable. Yes, before anyone points it out, I know there are variants depending on locality (there always are). Also, at least according to the Inspector Morse series, if you are a Detective Inspector you get assigned a sergeant whose main job appears to be relegation to peonage (or perhaps drudgery since debt does not seem to be involved or, as Webster is happy to tell me the British say "being a dogsbody"). Sergeant Lewis spends most of the series getting yelled at and abused by DI Morse and mainly just rolls his eyes and keeps doing what he's doing. Going back to the ranks - I actually wish we had adopted something more like the British system. I know we've professionalized police forces et al., but it would be nice to have more separating the guys out there patrolling our streets from the trappings of militarism.

Anyway, these are the biggest differences I've noticed. And since we all know that television shows are extremely accurate in their portrayal of policing I'm sure they're 100% correct. Just remember, DON'T EVER GO TO OXFORD.

Succubustic? The Harrowing Affects of BigWorditis

"The ruling’s succubustic adoption of the defense position, and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners."

Per the ABA, that's a direct quote from a petition for appeal. The ABA article, and apparently the California appellate court, concentrate on this as gender bias. I'm not so sure. That looks a lot like someone who was angry and suffering from BigWorditis.

BigWorditis is a terrible disease that inflicts one in five attorneys, one in three politicians, one in one doctors, and three in one professors in                 Studies. It is the use of large words to make one's self and one's writing look more impressive. Symptoms include using the word "one" instead of "you" in a sentence such as "It is the use of large words to make one's self and one's writing look more impressive", using large aggregate words which do not make any sense in context, and using words you seem to not understand the meaning of because they sound good and approximately correct.

As I look at the sentence above, the author clearly has two of the three symptoms. "Pseudohermaphroditic misconduct" translates misconduct of a type that is related to a person apparently, but not really, possessing both male and female genitalia. Unless the author read a study I missed (always possible), I'm not sure there is a scientifically noted or even a biased stereotypical behavior particularly associated with hermaphrodites or their pseudos - much less a particularized misconduct. This sentence fragment probably falls under both of the last two symptoms.

"Succubistic adoption" leaves one to wonder if perhaps the term aimed for was "sycophantic adoption." The two words have the same amount of syllables and hit many of the same consonant notes above the vowel downbeats. And sycophantic makes sense in context. It ain't gonna make any judge happier with you, but it does make linguistic sense. I diagnose this sentence fragment as falling into symptom three.

What's the cure for BigWorditis? First of all, instead of the sensitivity training the Bar is likely to require this attorney to sleep through er . . . I mean attend, make the attorney complete one year of eighth grade English. This is should allow his language to progress to the level of simple clarity. If you are writing anything that an eighth grader couldn't comprehend then there should be some very specific reason for it. Driving that lesson home is the only known cure for this disease. Unfortunately, this outbreak has spread so far that I fear that we shan't find medicaments correspondent to the necessity.

Stopping the Withdrawal of a Guilty Plea

Over the last several years the Virginia Courts Appellate have been dealing with a phenomenon under Virginia law wherein the defendant can plead guilty and then later attempt to withdraw her plea. This is all possible because of Virginia Code § 19.2-296:

A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of a sentence is suspended; but to correct manifest injustice, the court within twenty-one days after entry of a final order may set aside the judgment of conviction and permit the defendant to withdraw his plea.

The problem is that the first sentence sets no standard for the withdrawal of a guilty plea before a sentence is imposed. As you might suppose, this has led to all sorts of gamesmanship. The day of trial arrives and the defendant sees that the two witnesses from Tucson have flown in and are ready to testify against him. Therefore, he pleads guilty. A month later, well before his sentencing hearing he files a motion to withdraw his guilty plea knowing that it will be nearly impossible for the witnesses to be able to make that trip again. Or he learns that a witness moved to Tampa Bay and files the motion. or . . . or . . . or . . . 

Actually, the thing that tends to trigger most of the motions to withdraw a guilty plea seems to be when they get their presentence report and realize how stiff a sentence they are facing. No matter how brutally honest their defense attorney was with them the defendants seem to have unrealistic hopes until they see the numbers actually printed on an official piece of paper. Then they want to go back and try their luck with a jury all of the sudden.

Lacking a standard from the statute, the appellate courts have had to develop their own and it looks a little something like this (portion of a brief I wrote recently):

The Virginian appellate courts have given extensive treatment to the withdrawal of guilty pleas in the last several years. Bottoms v. Commonwealth, 281 Va. 23 (2011), Williams v. Commonwealth, 59 Va.App. 238 (2011), Booker v. Commonwealth, 61 Va.App. 323 (2012), Pritchett v. Commonwealth, 61 Va. App. 777 (2013), Ramsey v. Commonwealth, 65 Va. App. 593 (2015), Small v. Commonwealth, 292 Va. 292 (2016), & Spencer v. Commonwealth, 68 Va. App. 183 (2017). From these cases, the appellate courts have given us thorough guidance regarding the withdrawal of guilty pleas:

(A) The probability of a greater sentence than the defendant anticipated is not an appropriate ground for a guilty plea to be withdrawn. Williams, Pritchett, & Ramsey.

(B) Prejudice to the Commonwealth must be considered in determining whether to grant a motion to withdraw a guilty plea. Small, Spencer, & Booker.

(C) The defendant must offer a defense that if presented to a jury would be substantive and reasonable not dilatory or formal or he must show duress, coercion, or undue influence. Williams.

(1) This defense must be shown by testimony or affidavit; a mere assertion is not adequate. Id. & Spencer.

(2) Any duress alleged must be greater than that in a normal criminal prosecution. Booker.

(3) Defenses which are not merely dilatory or formal include (a) self-defense, (b) alibi, (c) insanity, or a (d) defense based on a proffer of specific evidence that, if accepted by the fact finder, would defeat the prosecution’s case. Booker.

(4) Defenses which have been rejected:

(a) Challenge to victim or witness’ credibility. Williams & Ramsey.

(b) Claim that prosecution must prove its case. Booker.

(c) Evidence is circumstantial. Id.

(d) Duress normal to a criminal trial. Id.

(e) Fact that a juror might find for the defendant. Id.

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Most defendants want to argue the rejected defense in (C)(4) and I think the majority I have faced fall under (a) thru (c). I've only seen one of these motions succeed and that was because the prosecution was agreeable to the withdrawal ("Sure we'll let you withdraw your guilty plea on felony snipe hunting for which we have video of you in the act and a confession in your own handwriting. When do you want your jury trial and jury sentencing?").  Still, they continue to roll in.

Capital Punishment Led to Ethics?

It's always interesting to read non-theistic attempts to explain the presence of pervasive moral traits (natural law). They're always based on multiple assumptions and guesswork; after all, until we develop tardis level tech we can't personally observe any of this and the observation of higher order primates leads to different observable behavior leading to more assumptions and guesswork. The theories they develop are all over the board and can be quite interesting even when they are pretty clearly wrong. That leads us to this article in the New Yorker: Did Capital Punishment Create Morality?

Assumptions: Beta males married. Alpha males took whichever female they wanted.

Buried in an intriguing argument that despite the fact that there is no "domesticator" we humans self domesticated, is this gem:

Civilization is founded on capital punishment—or, to give it its anthropological name, “coalitionary proactive aggression.”

The executioners were adult males, usually married. (One of alpha males’ most salient offenses was commandeering other men’s wives.) Over time, as alpha individuals were regularly killed and the gene for reactive aggression became less frequent in a population, the coalition of executioners became more stable. 

Once the beta-males were triumphant the remaining humans were supposed to have started looking to them for other rules that would keep the beta-males from killing them too. Thus developed morality.

The book may tell us what the various transgressions of the alpha-males are other than the click-baity "commandeering" of wives but the article doesn't. The use of the word commandeering seems to make it a property issue rather than any assignment of damage to the female herself except as the male is damaged by the alpha-male imposing on his property rights.

There are a few flaws here. To begin with it puts the cart before the horse. Where did the concept of property rights as a good come from? For the beta-males to combine to exterminate the alpha-male there must have been some pre-existent, normative drive stating that the quiet enjoyment of property is a good. That pre-existent drive stands in direct opposition to the claim that morality developed as a reaction to the behavior of the beta-males.

I'm also not sold on the concept of marriage as a male institution. Way back in the stone age (when I was in college) I remember arguments that pair-bonding (marriage) is a female institution. The argument went as follows. In muscle driven societies without governments that provided social safety nets and police, a mate/husband provided an advantage in the provision of food and in the protection of the female and her children; rationally, a woman would seek to bond with and keep the best mate she could. To be fair, I never completely bought into the female impetus argument either. If we assume away some sort of pre-existent normative drive toward pair bonding and the protection of offspring, why do males in general do it? In a male dominated muscle driven society, why didn't humans organize as a herd with the alpha-male controlling all females, whether for personal congress or to allow favored betas congress, and the herd protecting all children? If your answer is because that's not how humans or other high level primates organize then you have a pre-existent norm. If your answer is because pair bonding gave a greater number of males access to sex then you're back at the quiet enjoyment of property argument supra. Under either theory, there's a pre-existent norm.

Finally, I think the assumption that the beta-males won fails. It's more likely that the beta-males settled into an uneasy truce with the alpha-males. At any given moment a particular alpha-male can be pulled down. However, it's a difficult prospect and therefore the alpha-male's behavior must fall below a certain threshold before a large enough group of betas reacts to bring him down. As time progressed alphas also became less easily identified because aggressive behavior might develop into becoming a politician, a senior bureaucrat, producing movies, or becoming a college professor. And, as part of the truce, their behavior became less open. Things like prima nocta may not exist anymore, but we've all seen recent evidence of aggressive, powerful men using that power against women they perceived as either vulnerable or at least willing to partake in congress to advance their careers. Mind you, I'm not stating that I think the truce exists only as to congress with a woman. In our non-muscle driven society alphas can be male or female and there are layers upon layers of behavioral norms which an alpha might transgress against leading to failure in business, politics, or their job.

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While I'm not sure there is a truly workable non-theistic theory of morality, this one seems to fail on several levels. A more workable theory of this sort might better proceed from the need to survive and near equality.

By this I mean that when living organisms are of such near levels of force that even if one of the two "wins" it will be seriously harmed and less likely to survive subsequent confrontations, those organisms which engage in such conflict are steadily weeded out of the equation leaving behind those organisms which evaluate comparative force and act in a manner that shies away from overly destructive conflict. This would seem to be a basic principal applicable to all life from protozoa all the way up to advanced societies such as the United States and the Soviet Union during the Cold War era. This shying away from overly destructive conflict is the core of what we call morality.

Under this theory morality would be well baked in far earlier than muscle driven tribal societies of humans developed. Beta-males wouldn't often have to combine to kill an alpha that kept taking their women because the alpha already knows that taking the betas' women is immoral (a contra-indicated survival strategy). That's not to say it never happened. It's just a statement that when it did everyone would already know the alpha was using his raw power to cross a line. If the alpha went too far across that line the betas combined their lesser powers to overcome the alpha and then beta-01 becomes alpha (after all, "All animals are equal, but some are more equal than others"). Thus we have now and have always had the uneasy truce between alphas and betas that I described above.