Academic

Disability And Moral Culpability, Paralysis And Child Porn

By Dan Filler

Doug Berman highlights a couple of cases where individuals with severe paralysis were involved in the possession (and in one case, production) of child pornography.  In an Alabama case, the defendant apparently secretly videotaped young girls using his bathroom.  He has no movement from the middle of his back down, and limited use of his hands and arms.  His defense counsel is asking that he receive only the statutory minimum because any more would be a death sentence.  In a Buffalo, NY case, the porn consumer - Wayne Schifelbine - had become a quadrapalegic as a result of a construction accident.  The prosecutor declined to prosecute saying "we came to the conclusion that no punishment in federal prison could compare to the punishment that has already been inflicted on this man. You could say that he?s already in prison for life."

Doug asks (archly?) whether we need a jurisprudence of paralysis and porn.  He raises the punishment theory question here: even if the defendant is not himself a danger to others, is there a general deterrence value to prosecuting one of these defendants?  And one could certainly ask the retributive question as well: if the defendant is morally culpable, isn't his punishment just? 

I suspect that the Buffalo prosecutor wasn't even thinking in purely utilitarian terms.  In fact, based on his characterization of the Schifelbine's injury - "prison for the rest of his life" - I imagine the DA felt like he wasn't morally culpable to the same degree as others.  "The poor, poor man",  he was suggesting.  But  many people with disabilities would find this perspective deeply patronizing and infantilizing.  If the DA's decision is indeed grounded in utilitarian specific deterrence principles - that punishment wouldn't have any effect on his future conduct - fair enough.  But if it was grounded on the idea that he is somehow less capable to making moral judgments and decisions - and this assessment was, in turn, grounded in the defendant's limited use of his limbs - that's a pretty controversial view.

To be sure, if I were either of their attorneys, and they were comfortable with a "pity defense", I would be willing to put it forward.  Criminal defense lawyers can and should represent the individual - irrespective of "movement" politics.  But the broader political implications of these cases are discomforting.  Some disability advocates were unhappy with the implications of  Atkins v. Virginia - where the Supreme Court banned execution of people with mental retardation.  They felt that the decision diminished the agency and humanity of these individuals.  If Atkins was a close call, this one is easy.

Full post as published by The Faculty Lounge on February 13, 2009 (boomark / email).