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What Is Justice for Susan Smith?

THE BALTIMORE SUN

Chicago. -- The jury that convicted Susan Smith for drowning her two children now must decide how she should be punished: by life in prison or death in South Carolina's electric chair.

Once again, as it has from the beginning of this case, the question lingers: Is Smith herself a victim of lifelong mental torment who finally "snapped" that day at the lake? Or is she a depraved narcissist for whom the children were a burden?

Along with a host of other recent cases, including those of Lorena Bobbitt, the battered Virginia woman who impulsively severed her husband's penis, and Lyle and Eric Menendez, who claimed that intense fear drove them to murder their wealthy parents, the Smith case highlights the law's ambivalence toward emotions. Dispelling the confusion requires clear thinking and carefully structured institutions.

Smith's case presents a heady mixture of the sordid and the tragic. The prosecution noted that she murdered her children after the man known around town as "the catch" because of his wealth and good looks broke up with her, saying that he wasn't interested in a "ready-made family."

Smith's lawyers argued that childhood trauma, including her father's suicide and molestation by her stepfather, unhinged Smith's psyche. A psychiatric expert testified that Smith suffers from an "adjustment disorder" that causes her to experience intense emotions in response to stress.

Suppose Smith had been under the spell of a strong emotion -- love, or greed, or anger -- when she killed her children, but nonetheless realized what she was doing. Should the sheer intensity of her emotion have been treated as an excuse for her behavior? The law in many states is unclear on this point, but the answer should be no.

In ordinary morality, the strength of a wrongdoer's passion does not, all by itself, excuse that person's misdeeds. The content of the emotion also matters. We might have sympathy for a mother who kills in anger provoked by the murder of her child. But imagine a white supremacist who kills out of an equally intense emotion of racial hatred. Far from making us sympathetic, his emotions would be at the core of what we find so reprehensible about his act.

Our considered judgments about emotions reflect two ideas that can be traced back to Aristotle. The first is that emotions are not just alien, unreasoning forces; they involve judgments that reflect a person's core values. The second is that people are appropriately judged for what their emotions tell us. The mother is entitled to be convicted of a lesser degree of homicide (manslaughter in most states) because her anger shows she appropriately valued the well-being of her child. But the white supremacist deserves to be fully condemned as a murderer because his emotions express only a culpable dedication to racism.

In other words, people have a duty not just to make good choices, but also to cultivate good character, which includes having appropriate emotions.

So if Smith indeed killed her children out of a passionate desire to wed the town "catch," that is a reason to condemn her quite strongly, no matter how intense her emotions.

But Smith also was sexually abused; her emotions were warped by by events she didn't control. Shouldn't this make a difference?

Clearly it should. Yet how can we admit that some individuals may be emotionally deformed by their upbringing without concluding that they are after all not responsible for acts they commit under the influence of emotions?

The classical solution to this dilemma -- originating in Aristotle and the Roman Stoics -- is to combine condemnation with mercy. In assessing a person's guilt or innocence, we focus only on the act and the quality of the emotions that inspired it. But in the HTC sentencing phase we consider the offender's history, asking whether any unusual impediment warped the development of character. If so, we mitigate the punishment.

Mercy at that point doesn't take back the original condemnation. It only recognizes the sad reality that some persons' opportunities for emotional development are constrained by inequitable circumstances.

So taking the facts of Smith's case as reported, her emotions properly furnished no defense to first-degree murder. But in the sentencing phase, where the jury is obliged to consider whether to impose the death penalty -- it would be appropriate to consider the effect of her difficult childhood on her emotional development.

Emotions are not mindless forces but parts of character, which the law can and should assess for appropriateness. Getting clear about this can help both society and law make more consistent judgments in areas of controversy, such as insanity and hate crimes. But the law should recognize, too, that individuals do not always have good luck in their emotional development, and that the Aristotelian ideal of a "reasonable person" is frequently not realized -- not only because of deliberate vice, but also because of childhood abuse, racism, poverty and lack of love.

Dan M. Kahan and Martha C. Nussbaum are on the faculty of the University of Chicago Law School.

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