Reason vs. Rules
By Mel Copen January 14, 2001
© Mel Copen, January, 2001

For years I have maintained that one of the primary purposes of “management” is not to enforce the rules but to know when to make exceptions. No matter how thorough the consideration given to the formulation of the rules, there will be exceptions to which the rules do not apply. Perhaps the extreme can be seen in our system of criminal justice.

A number of years ago, in New York State, a young man brutally bludgeoned to death an elderly woman who had been looking after him. He was caught, he confessed and there was enough evidence to prove his guilt beyond a shadow of a doubt. He was tried for 1st degree murder; however, the jury concluded that the act was committed in the heat of an argument over money and since premeditation was a necessary factor for a finding of “murder in the 1st degree” he was found not guilty on that charge. But the district attorney, so confident of the conviction, had not bothered to include any lesser charges.

The Constitution of the United States is a wonderful document. Everyone who is interested in human rights and dignity should read it, not just once, but periodically. Four years after the original document was approved the ten amendments known as the “Bill of Rights” were ratified, largely to safeguard the rights of individuals. The Fifth Amendment contains the clause: “…. nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…” Under the constitutional protection against double jeopardy, the killer walked free.

More recently, here in Georgia, convictions of “felony murder” were overturned because the murderers had killed first and had not carried out the intended theft. The courts ruled that the felony had not taken place and therefor the convictions were put aside.

In both of these cases, the ultimate judicial decision changed no historical facts. The victims were still dead. The acts, the perpetrators and their motivations were the same. Nothing was erased – except the criminal records of those who had committed these heinous crimes.

The protection of individual liberties is a complex issue. Whose liberties need protection? In the cases cited, it was too late for those who had died or for their loved ones. That leaves two possibilities: the perpetrators, and society – which has to deal with people who have committed criminal acts loose on the streets, and further undermining of the system designed to keep things reasonably in check.

There is a third group – the rest of the population who might some day be accused of a crime. The line between protecting the innocent and protecting the guilty is a very tenuous one. The argument that it is necessary to err on freeing the guilty to make sure that innocent people are not punished can be very persuasive. It is the core of the decisions in the situations cited above. The decisions attempted to send a strong message to the law-enforcement and judicial organs of our society that they must follow the rules “to the letter of the law.” But the message is too diffuse and, in any case, life is not that “neat.” “Punishing” the law-enforcement system by letting criminals go seems to lack some degree of rationality.

The Bill of Rights clearly recognizes the need for “reason.” The same Fifth Amendment requires that (with the exception of certain military situations): “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury….” And the Sixth Amendment provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury….” Why juries? Why not just a list of rules and regulations by which the alleged criminal act would be measured? The answer is not just because of the time it would take. It was because the founding fathers recognized the need to rely on human judgement. Life is too complex to be able to define every situation. It is also dynamic, subject to changing concepts and standards. The same Bill of Rights that is often interpreted rigidly specifically includes provisions to assure that flexibility and reason play major roles in decisions affecting individual rights. Reliance is placed on the judgement of living people, rather than the application of ancient rules.

Something is wrong when rules become dominant, despite realities that are contrary. And that is really the point. We constantly see illustrations where the application of rules gives rise to questionable results and life becomes a game. The criminal acts described above present, perhaps, one extreme; at the other end of the spectrum, two airplane passengers who have paid very different fares for their adjacent seats, or two buyers whose costs differ because one of them has a coupon or has learned of a rebate program; and in the middle, perhaps two people in the exact same financial circumstances who are faced with entirely different tax consequences because one has signed a paper drafted by a tax attorney familiar with the esoteric rules.

Computer technology is adding incredible complexity to the situation. For the immediate future computers will continue to be mindless things. They do what they are programmed to do. Programming consists of a series of rules. We get better each day in expanding those rules to consider more and more likely alternatives. But the world is too complex to include everything that is likely to happen, and the net result is that the application of rules without provision for human judgement invariably leads to problems and injustice. The number of these injustices may diminish, as new situations are encountered and new rules are written to cover them. But they may not, since underlying concepts of right and wrong and what is acceptable to society continue to change. Rules look backwards. And as complexity of systems increase, our ability to understand all the interrelationships diminishes, and much of past design – and the reasons for it – may be lost. There is already a real threat that we may be becoming captives of the systems we create – where our own rules may start to dominate the way we live, rather than serve as a means to facilitate what we want to accomplish.

In criminal cases, special review/appeal courts might be created to keep constitutional protections intact but with the power to deviate from the rules to assure that reason is applied. (There is ample precedent. We already have a system of pardons that doesn’t even require the inclusion of reason.) Given new technology, for example, these courts might mandate DNA tests whenever they might prove or disprove the guilt of already convicted people. The intent should be to free those who are innocent or whose guilt is in doubt and to assure that those who are guilty of crimes do not continue to pose a threat to the rest of society. Individuals need to be protected not only from improper criminal prosecution but also from criminal activity. But the real issue goes beyond the legal system and extends into every aspect of our lives. How do we build “reason” into the decisions of a society that is moving, as we seem to be, at such a rapid speed that only computers can keep pace? How do we reaffirm our faith in the value of decisions made by “reasonable” people? This may be one of the most important challenges we face in the coming decades.