Criminal Rights On The Moon And Beyond

In the ephemeral annals of legal-related SF, Larry Niven’s short novel The Patchwork Girl is a rare find indeed. Not only does it provide a Sherlock Holmes style murder mystery and police investigation/procedural, but it also deals with legislative approaches to the death penalty, and provides extended court-room trial scenes with cross examination of the defendant, witnesses and experts. It is everything that a legal themed piece of fiction should be and it is also SF. I have written a book review of the SF elements here. You should read that first to get the gist of the story, then come back here for the legal analysis. The legal issues are not of paramount importance here, but coupled with the criminal investigation they are the main vehicle by which Niven pushes the story along. The legal issues have to deal with fundamental fairness in the judicial system, particularly the processes by which society guarantees the rights of those accused of crimes, and the social utility of the death penalty. Niven does this through a three-pronged approach. One of those prongs is a legislative process, and another is a criminal trial. The third is detailed in the literary review that is linked above.

The main character in The Patchwork Girl was Niven’s recurring government agent, Gil “The ARM” Hamilton. Gil was sent to the moon for a vigintennial conference of administrators from the three main Sol system governments; the Moon, Earth and the Asteroid Belt Colonies. Because of horrible overpopulation problems, Earth had reworked its criminal justice system so that even minor criminals were at risk of being “broken up” (read: “parted out” or executed) if they were convicted of the crimes they were accused of. This harsh-sounding system of justice developed because Earth did not have the space to care for the long term needs of inmates, and quite frankly because they did not need all the people that they had. Before it developed auto-doc technology (a highly advanced form of robotic medical care) in the twenty-third century or so, it needed replacement parts so that it’s law-abiding citizens could live long, healthy and productive lives. Since the Moon was under the administrative control of Earth, their legal policies were set by a committee that was made up of Earthlings (called “flatlanders”) and Lunies (lunar citizens). Twenty years prior the first conference established a lunar policy that required the Moon to serve as the execution grounds for condemned prisoners from the Belt, to construct and maintain a center for the preservation of those criminals unbroken for a six month, mandatory appeal period, and after that to house their dismembered bodies until a medical need arose for their tissue somewhere in the Earth/Moon/Belt system. Belters participated in the conference too, because they wanted a voice at the table where the rights of Belt convicts would be determined. The Lunies, even though they were making a mint administering the organ bank program, complained of huge expenses storing criminals and organs. The prior committee had found a need to prevent the accidental breaking up of the innocent; thus the six month rule. During that time if some exculpatory evidence came to light the convict could be revived and freed, or at least retried. But the morality of the system created some problems. The Belters were a libertarian bunch, and objected to a system that ordered the death penalty for “crimes” as menial as income tax evasion, while the flatlanders knew that they had an enormous supply pipe to keep filled, and had pretty much given up entirely on rehabilitation anyway. The Moon was in the middle as they did not have Earth’s dire need, somewhat resented Earth’s control, and had grown dependent upon the massive income from running the program.

Before the conference could start one of the delegates, Penzler, was assaulted and Naomi (Gil’s ex-girlfriend who was there for other illegal purposes) was charged with the crime. The committee was too distracted to continue with their work, so they adjourned to watch the trial. After seeing the trial – both days of it – and the speed with which Naomi was convicted, they decided that the system needed some work.

(T)his is at the heart of what’s been blocking us all along! Mayor, there’s some question as to whether your law gives adequate protection to the defendant. Trials are over almost before they begin, and in twenty years not one sentence has been reversed. Naomi Mitchison’s trial is the first to be investigated by outsiders. We now have evidence that someone else wanted Chris Penzler dead all along. Your son has filed to obtain Mrs. Mitchison’s release. But when a Committee member, me, checks with the mayor of Hovestraydt City, it turns out the conviction isn’t even under review.

The entire point of the story was to demonstrate how the legal system on the Moon worked. A more thorough review of the plot can be found here.

What we have here is a penal system that is government managed, but by a government that is operating as a business. The situation is not inherently wrong, but it does create a potential conflict of interest that requires oversight, lest things degrade the way that they did. The value of the organ transplant industry that has built up on the Moon in the prior twenty years was not stated explicitly in the text, but the economic impact was obviously huge. Lunar transplant hospitals did brisk business because the execution grounds were located there. The Belt, which preferred to let the Lunies execute their criminals, bought back organs for their own transplant industry. The Moon was able to make tidy profits from what was going on. The problems that this create should be pretty obvious, especially since we have a similar situation here. Arizona, for example, makes millions of dollars annually from California alone to house it’s prisoners. The system of prisoner transfer that is an economically driven beast that allows one state to charge what it wants in order to eliminate a nuisance from another, richer state. Consider that the economic disparity and relative poverty of the moon created an incentive for Lunies to abdicate their moral imperative in exchange for remuneration. Considering that the pressure from Earth was probably enormous, it was the rights of the convicted – such as they were – that we used to pay the piper. In this story the lack of protection worked out very well for Earth. They had an enormous need for transplant tissue, and faced mob rule if they could not provide it. Earth only reluctantly agreed to the six month “appeal” period, and as we find out later in the book, they pressured the Lunies to ignore that rule wherever they could.

Niven’s tale is by no means a morality tale, though morals, ethics and legal precepts did color much of what happened in it. the author created a fictitious setting where not only were the reader’s moral senses offended, but the customs of the society in the story were too. By resolving the dilemmas within the ethical framework of the world he had created, Niven poignantly served up a lesson about fairness in any system of justice, and the attitude of nigh-inviolability that we readers have about our bodies. What’s more, he did it all without melodrama by creating a state actor that operated with unsoiled hands. That last point, I think, is why this legal SF piece is so interesting: because like in the real world the actors were not good or bad. They just were what they were.

Specific legal issues that are presented:

Witness testimony, and the elements of a crime: Niven did a very admirable job with testimony about motive and opportunity, but when it came to the elements of the crime of assault and attempted murder, he dropped the ball entirely. Motive and opportunity evidence is persuasive, but neither make up the elements of either crime. In this case the Lunies had a pretty expansive definition of manslaughter, and although it was not a charge in this case, the definition of murder probably only added the element of intent. Manslaughter included “sabotage, criminal carelessness, arson – ‘any act which, by damaging a local life support system,’ said Marion Shaeffer, could have caused death or injuries’.” When the delegates heard this during the legislative system they balked, and ultimately reached a definition where defendants would only be broken up if someone actually died, or in the situation where they only caused property damage, could not afford to repair it. I guess that system makes insurance coverage pretty important, huh?

I think it’s pretty easy to see what Niven was trying to do here. Because of Earth’s terrible overcrowding society needed a way to get some people out of the system. The organ banks and the criminal justice system (with the help of the birthright lotteries, which all but nixed reproduction) became a kind of pressure valve that kept the planet from completely imploding. To follow up on the conclusion in the last section, this adds legitimacy to a distasteful public policy and creates a very real need for its existence. From a legal standpoint (at least a coldly logical one), this is all that may be asked.

Jury constitution: Lunar law allowed for three jurors only. When the Belters and flatlanders expressed shock that there were only three, the Lunies countered that “Three (are) enough. A larger jury would only get tangled in a dozen different viewpoints, like any committee. Like our own.” I am not aware of any real-world jurisdiction that has found that three jurors are enough to guarantee justice (six is the lowest number that I know of, in district court in Massachusetts), but the debate that the Lunies obviously had was one that we have all the time. Most systems allow between 8 and 12 jurors. Our own Federal Rules of Civil Procedure state that the parties may stipulate to any number of jurors between six and twelve, while the Federal Rules of Criminal Procedure state that the parties may stipulate to any number of jurors less than twelve if they wish. F.R.C.P 48; Fed. R. Crim. P. 23). Regardless, I don’t think that in our system any appellate court would find that three jurors are adequate, especially in a capital crime. The debate over how many to have comes from the belief that there must be enough to guarantee that the jury adequately represents a cross section of society (peers), but not so many that debate becomes endless. I am also aware of psychological studies that show that in three person groups it is much easier for a strong personality to dominate the weaker two, especially in the context of a jury, and I am pretty sure that there are federal cases that have held that three jurors is too few. One thing that should be noted is that the Lunies also decided that “the accused’s agony of anticipation should be as brief as possible.” This suggests that the Lunies know how these things are going to turn out, so it’s best to just engineer the system to take as little time as possible. Our system is engineered to prevent that from happening – innocent until proven guilty, such as it is – and since the flatlanders were a big part of the committee, that little fact pushed them closer to making wholesale changed to Lunar law. To Niven’s discredit, this wasn’t one of the laws that changed, but it was at least a catalyst for change.

There were a number of potential criminal defenses that Niven discussed, at least in theory. They included:

4th Amendment: There was a bit on the lunar state’s right to search for and seize information from Naomi. The chief investigator noted that Naomi had the right to remain silent when they were interrogating her, and she had the right to refuse a trip out to the surface of the Moon to show them where she was on the day in question, and thus establish an alibi (or more likely, do damage to the one that she was maintaining). These are basic protections that we give our criminals in our own system. Niven used them well, in a way that virtually any reader would recognize.

6th Amendment: This amendment guarantees the right to a “speedy” and “public” trial, and to an “impartial” jury. We use this amendment to keep the prosecution on the ball, and so that the accused do not whither away in jail awaiting a trial date that may never come. It was added to the bill of rights to prevent a de facto conviction. Here the spirit of the amendment may be taken to the extreme, as Naomi was tried the day after she was arrested, and convicted about 36 hours later. Although she was up to a “crime” on the Moon – though not the assault or murder – and would never have mentioned her friends to the police, her alibi left on a six week cruise to the Belt. Regardless, one day is not enough time for most accused to prepare and present a defense that has a ghost of a chance of convincing jurors that a reasonable doubt exists. However, the doctrine is generally not proven unless the prosecution has unclean hands. In other words, ordinary delays do not give rise to a constitutional violation, unless some state actor was trying to intentionally manipulate the accused’s right to a timely trial. Here the docket was obviously clear, and all the evidence that the defendant wished to put on, was put on. This is a difficult call to make, but I don’t really see a violation here.

8th Amendment: This amendment protects convicts from cruel and unusual punishment. Many societies have already decided that the death penalty is not inherently “cruel” or “unusual,” so I think we can skip by that threshold question here. The remainder of the cases generally fall around one of two issues; whether the punishment is like torture, or “cruel,” or whether the punishment is excessive, or unpracticed in other jurisdictions, and thus – “unusual” – under the circumstances. By our standards the punishment of being executed for any crime where the victim did not die would not pass muster under any set of circumstances. However, Niven did a very convincing job of explaining that this society was well past that debate, and that they all found this punishment acceptable. He did it so well, in fact, that this really is a non-issue in this reality.

5th & 14th Amendment: These amendments both have due process clauses. They state that an accused may not suffer the deprivation of life, liberty or property without due process of law. The legislative committee found that there was a problem with the quality of justice; basically that accused persons were not getting a chance to properly mount their defense, and that some crimes on the Moon were ill-defined. To remedy this the legislative committed changed the law so that the accused would get proper due process. There is, however, likely no equal protection violation here (as required by the Fourteenth Amendment), because everyone was probably getting the same quality of justice.

Dying declaration: This issue is a red-herring. Before he died in the second attack, Penzler wrote a series of letters in his own blood that presumably identified the killer. To be honest the rationale that Gil applied to that fact was pretty confusing, and went nowhere. However, a dying declaration is an exception to the hearsay rule, which generally holds that out of court statements may not be offered in court to prove the truth of the matter asserted. This is because people generally find the last words that people utter to have an element of truth in them that one does not ordinarily find in everyday conversation. In this case the prosecution would have offered the writing to convict the real killer, not Naomi. If only the real killer had been brought to justice, and if only the writing made some sense.

Most other authors, especially when tackling a controversial issue such as the death penalty, cannot help but engage in finger-wagging. To his credit Niven never descended to that level of recrimination, and as a result the reader is able to evaluate and balance the merits and costs of this system. That, in my opinion, is what social commentary in SF should do; present the reader with a realistic system and go through the social goods and social ills that are inherent in every system. As a novel The Patchwork Girl is only fair to midlin. But as a speculative legal text it has much to offer.