The idea of a criminal as an outsider is a well-established character in modern crime fiction. Ever since Dostoyevsky’s Crime and Punishment published in 1866, we’ve been familiar with the morally superior killer who feels he’s committed no crime. Raskolnikov, the central character, an ex-student from St. Petersburg murders a pawnbroker. His purpose is to end the life of a worthless person and use the money for worthy charitable purposes. The act of using the money to help others cleanses the murder in his eyes. What makes the novel of modern interest is the killer’s belief in that his higher purpose and his personal assessment of the value of another’s life justifies murder.

Raskolnikov’s crime is one that reveals an attitude about the killer’s view of his right to judge, and his calculation that his judgement elevates him above others whose lives are not absolutely secure but conditionally lived according to a moral judgement of value and worth.

This line of reasoning has echoes through modern society. An argument can be made, that drone attacks are a testament to the Raskolnikov’s view of life. Like a pawnbroker, those on the receiving end are thought to have forfeited the right to live by others making a moral judgment. A counter argument is the old pawnbroker in Crime and Punishment wasn’t waging a campaign to contain terrorism or protect the lives of non-combatants. The purpose of drone attacks is to kill people targeted as terrorists or those who are leaders or supporters of terrorism. In the case of drone attacks, a government is carrying out the policy. It isn’t an individual’s morality but a societal higher purpose that comes into play. War is collectivized murder and justified as it is sanctioned by the state. But a state might also sanction the extra-judicial murder of drug dealers, or sending illegal immigrants to sea without supplies knowing they will likely die. The line suddenly blurs very quickly once politics and murder are mixed.

The TV series Dexter features a central character who kills serial killers. Raskolnikov’s game is upped by making the victims morally repugnant, vile, dangerous predators that the criminal justice fails to apprehend, put on trial, convict and sentence. Is Dexter in a higher moral position than Raskolnkov given the difference in the profile of the victim? In other words, do we judge the wrongfulness of murder according to the extra-judicial act of killing by a private individual against the moral worthiness of the victim? This was the dilemma that Dostoyevsky asked us to face.

Richard Stark (A.K.A. Donald Westlake) in his Parker series of novels has a professional thief who kills those who have betrayed him or shown disloyalty. He has no first name. Stark refers to him only as Parker. The novels are brilliant studies of a criminal who plans robberies with military precision, assembles a reliable crew, and inevitably finds something goes sideways along the way.

Parker’s code of criminal conduct is to demand honor among the crews he puts together for a heist. When a member tries a double cross, Parker’s morality is clear. That person must die because he violated Parker’s code.  Parker has no sense of remorse or sentimentality in these circumstances. As crime fiction writers, there comes a point in writing about a character where the author must make a decision. When is it justifiable to take another’s life? What are some of the large implications of Parker’s worldview that betrayal justifies a death sentence? And are they in the same category as Raskolnkov, Dexter, and Parker?

My sense is that it is difficult to wean us off the idea that the state doesn’t have an absolute monopoly on high ground where a decision is made about killing. The current discontent exhibited by Occupy Wall Street showing a growing feeling government does not serve the higher purposes of society, but represent an elite segment who justify repression and killing in a manner oddly similar to Raskolnkov. Self-help fills such a vacuum. Citizens claim a moral high ground above their governments. Not only does moral clarity evaporate, people begin to believe they now are the true carriers of the moral purpose.

Like an expanding stain, though, such ideas have a tendency to grow outward, cover more ground, until everyone has their own ‘higher’ purpose and that makes it right for  them to play judge and executioner. We live in world where the Raskolnkovs, Dexters, and Parkers snuff out lives because it serves a higher purpose. It is a short step to view higher purposes with the passion of true believers, where action heroes act like gods. Rather than feeling appalled at such conduct, we find ourselves satisfied that the Judge Dredd’s of society are removing the parasites, the worthless, the morally bankrupt, and the dangerous.

When someone put a bullet into Colonel Gaddafi, an overwhelming number of people around the world cheered. An evil man. Good riddance, they said. They said a higher purpose was achieved in avoiding a trial. One that might have dragged on and inflamed tribal hatred. The point is that in such circumstances, there is always a higher purpose given for the killing. This is a slippery slope that ends in grief.

Collectively we do have higher moral purposes. They are written into laws. Not everyone agrees with all of them (e.g., abortion, gun control, etc). The fabric of society rests on agreeing that the laws and institutions that administer them. Murder for higher moral purpose can never be elevated above those laws and institutions. We vest a criminal justice system with the mission of carrying seeing that these purpose serve society. The problem is less the moral high ground but who stands on that high ground. When individuals claim they have the right to murder, that their murders are morally right, they are taking a page out of Crime and Punishment. Like Raskolnkovs they have committed no crime but added to the moral goodness of the world.

In their warped moral space, the terrorist bomber and the killer of the abortion clinic doctors converge. They kill for a higher good, and by doing so diminish any notion of secure, civilized society. We are rarely tested by the good. Our tests comes when dealing with the most loathsome actors like Gaddafi. The matter of his death, in the end, showed that for many there was no real line of difference between him and them.

Each society defines what conduct makes a person a criminal. Therein lies a great power. This power is projected through an official processing of the criminal who is walked through a series of decisions, which determines his or her fate. We are still at a relative early stage in the development of a justice system.

Only a couple of hundred years Western states sanctioned the use of judicial torture. Torture was both a means of determining guilt and as well as a means of punishment. In this era, the distinction between guilt and punished lacked the bright line edge as officials of the state inflicted upon the accused and guilty alike the wheel to break their bodies, burnt them at the stake, sawed them in half, and impaled them. This way of treating those subject to the ‘justice system’ wasn’t carried out by aliens. These judges were our ancestors. We carry their DNA, our brain chemistry is the same and effect by the same kind of external and internal drives and factors. Deep down, I suspect that the core mentality that guided our ancestors also guides modern day crown counsel, judges, and others who are part of the criminal justice system.

Our default for handing out a sentence is not, I suspect, that different. In most modern societies judges approach the sentencing phase of a prosecution by applying their experience and training, legal knowledge, modern objective standards of justice mixed together with their subjective moods, attitudes, values, and cultural indoctrination. Something as simple as the timing of judge’s last meal can have a considerable impact on his decision. A recent study 1,000 parole decisions by judges in Israel, for example, showed that it is better to judged after a snack or lunch break rather than by a judge on an empty stomach. When considered by hungry judges the suspect received far less favourable treatment than his counterpart with a nearly identical record received from a well fed one.

In our century, we pride ourselves at the great improvements that science and technology have delivered to the criminal justice process. Anyone who has watched CSI has a glimpse of how modern crime fighters evaluate evidence by using the scientific method. Rather than judicial torture to extract a confession, evidence must be scientifically tested, reviewed, explained and justified by those seeking to use it for a conviction.

All of that science to determine guilt threatens to come undone because a judge’s stomach is churning from hunger at the sentencing phase. Or the guilt of a criminal becomes secondary to a larger political objective as in the case of the release of over a thousand Palestinians prisoners jailed in Israel in exchange for one Israeli solider. Guilt is a snapshot in time. The meaning, validity and scope of the original sentencing remains open-ended, subject to periodic review or other external interventions. The uncertainty of this process creates a space for debate on how we sentence, who is sentenced, when it is legitimate to pardon or parole or exchange prisoners, and the distinction between the safeguards that surrounded guilt and how they are different from the ones around sentencing.

A trial to determine guilt now is guided by a scientific hand. Both sides use experts to support their narrative as to the story the evidence tells. Once the verdict is guilty, a second phase of the proceedings begins: sentencing. There is no DNA test to guide the judge who must decide what sentence is appropriate to the crime and the person who has been found guilty of committing it. We find that great developments in science and technology have caused a divergence between the guilt and sentencing phase. That leaves the suspect with one foot in the current century and the other foot in much earlier time. Sentencing needs to be refined into two parts: (1) the range of sentences available to be imposed; and (2) the standards used by judges (or juries) to impose a particular sentence.

As for the first part, in a recent essay on The Edge,  Professor Steven Pinker of Harvard University, reminds us that during 18th century England there were 222 capital offenses on the books, including poaching, counterfeiting, robbing a rabbit warren, being in the company of gypsies, and ‘strong evidence of malice in a child seven to 14 years of age.’”

What is remarkable is that a century later the number of capital crimes in England had been reduced down to four.

During the 17th and 18th century in the United States the majority of people hanged had committed a non-homicide offense such as “theft, sodomy, bestiality, adultery, witchcraft, concealing birth, slave revolt, counterfeiting, and horse theft.” The widespread sentiment in favor of capital punishment for a broad range of crimes seems rooted in the distant past. Today capital punishment is reserved for capital offenses in the USA, and has been abolished in England and throughout Europe.

An important distinction between the past and the present are the number of judge like officials. Handling down orders and decrees to punish offenders isn’t restricted to the courts. Administrative agencies and committees and regulatory boards often have the authority to impose a penalty on wrongdoers that fall within their jurisdiction. In modern times there has been a rapid proliferation of officials who have judge like powers.

One of the original purposes of vesting a centralized state and its officials with a monopoly over determining guilt and punishment was to reduce the cycle of revenge that tribal societies used when one of its members was harmed. As Pinker points out, the evidence is overwhelming that this purpose has been largely achieved by a 50-fold reduction in homicides in places like England. Part of what keeps revenge at bay is the sense that the state will punish the wrongdoer and that punishment is mostly less than killing him. Pinker’s point in assessing the way society controls violence while important needs to be placed in a wider context of consensus about laws, crimes, and punishment that run through society.

What I am suggesting is the state having achieved the goal of creating a largely docile population no longer bent on killing each other, the mechanism of judging has been fine tuned to advance the interest of those who comprise the state. While the mission creep is done in the name of security and stability, which is just another way of saying the State is carrying out the business of violence deterrence, this is a subterfuge. As Pinker’s essay shows, we have reached diminishing returns on what the State can do to deter the small and likely irreducible amount of violence that continues inside any political system. That hasn’t stopped modern States from inventing and using external and internal threats of violence to convince citizens of the need for additional restrictions on their freedoms and rights. The possibility of violence has always been the best friend of a repressive State or one that wants to get into the repression game.

Perhaps as science comes closer to unlocking the mystery of consciousness and determine at a quantum level the elements that make some people more likely to commit crimes, attitudes to sentencing will also be transferred to the realm of science. But that day is some in the future.  We live in an age where in parts of the world a thief may have his hand cut off, a woman convicted of adultery stoned by villagers, or ‘honour killings’ of females who marry without the permission of family and elders. How we treat a convicted wrongdoer is more of a mirror of the culture than all of the poetry, paintings, novels and religious texts combined. Punishment is a graphic illustration of attitudes toward life, power distribution and arrangements, deterrence, rehabilitation, responsibility, forgiveness, and security.

At the international level there are UN conventions defining Human Rights. This is the lofty intellectual level where principles are objectively applied to all societies. In reality, the belly of the judge may override a convention. The political agenda of a society may give priority to laws, which primarily function to maintain long-standing power structures, social status, and economic cartels. Human rights will almost always take a backseat to the extent such rights conflict with interest of the powerful. It’s not just the hunger of the judges that causes a less enlightened, compassioned view of a ‘suspect,’ it is the hunger of the less powerful for a fair share of the pie who have been told that they can never have a piece that exceeds a specific size.

Resistance to this message combined with modern technology, has allowed them to organize and take to the streets of streets in cities throughout the world. This is one of the undercurrents to movements like Occupy Wall Street. People feel they have been arbitrarily sentenced to a life without parole at the whim of hungry judges, reinforced by the military and police, who act as the puppets of the unaccountable and powerful. Judges are seen as a class who automatically rule in favor of those who own the banquet halls, from which are excluded all but close friends and family.

The larger concept behind sentencing has escaped the narrow confines of criminal justice. The implications of the social and economic aspects that influence the political system raise legitimacy issues. To be sentenced means those doing the decision-making must have a consensus they are acting on behalf of the whole society and not a small privileged segment. Many people around the world are asking hard questions about benefits, privileges and power of the one-percent who have walled themselves off behind a shield of laws that no longer break bodies on a wheel, but are designed to break their spirit through repression and fear.

Most of the time prosecutors will tell you the suspect voluntarily admit that he/she committed to the crime alleged by the police. There is no trial to establish guilt. It is human nature to confess. And sometimes the police help human nature along with threats, intimidation, torture, and promises. The good cop, bad cop routine has been done in hundreds of TV shows and films. When the suspect maintains his innocence, the Crown carries the burden of establishing guilt beyond a reasonable doubt.

Science has helped providing tools to assist the Crown in proving guilt. From fingerprints to DNA evidence, a case can be built that the suspect committed the alleged crime. Often a jury will convict based on such evidence. By attaching the word ‘scientific’ to an assessment of crime evidence, is to markedly increase the credibility of the link of such evidence to the accused.

Recently the Houston police department was in the news concerning its crime lab results between the years 1987 to 2002. Three death penalty cases were thrown into doubt as a result of the review. The independent review concluded that reviewing “about 2,700 cases originally analyzed by the lab’s six forensic departments. So far, 1,100 cases have been reviewed. Nearly 40 percent of DNA cases and 23 percent of blood evidence cases had major problems, the report found.”  Link: http://smithforensic.blogspot.com/2011/10/houston-crime-lab-disturbing-findings.html

The Report concluded, “Our work to date in reviewing cases analyzed by these sections reflects a level of performance completely unacceptable in a forensic science laboratory providing critical support to the criminal justice system.”

The questions raised by the Report are more basic in Asia. Would the Thai police department authorize such an independent analysis of crime lab results? Police forces have their own cultures and turfs to protect. Outsiders are rarely welcome to walk in and look over the operation, study the process and techniques, and produce a critical analysis from the research. The transition from a policing culture that is self-contained and largely beyond the process of periodic outsider review is a difficult one. It takes political will to foster such change. And it takes pressure from the public to demand political action to begin with.

Crimes don’t come in a single size that fits all. Most of the time we think of crime as the thief, the robber, rapist, burglar, killer or mugger. The popular press in Thailand regularly reports on the latest crime in this category.

A recent example reported in Pattaya People documents a refrigerator theft in Sriracha. The thief was heisting the fridge from the home of Mr. Chit who happened to be 84-year-old, well armed and caught the thief in the act. Mr. Chit set after the burglar with his gun, firing it in the air. The thief took flight, dumping Mr. Chit’s fridge in a nearby bushy area. The 84-year-old didn’t get a good look at the thief but suspected it was the same guy who a couple of days earlier had run off with his water pump and gas cooker. After that theft, Mr. Chit decided to arm himself. The police are conducting an investigation.

Mr. Chit’s fridge inspected by authorities

In the second category of crimes, the ‘suspects’, ‘victims’, and ‘state authorities’ clash as part of in a political crisis that has spun out of control. You don’t have to look far around the world to find one of those in the Middle East, North Africa, Asia, or America. Most of us remember the recent riots and looting in London. And much the same happened in Vancouver after the Stanley Cup match ended in defeat for the Canadian team.

On the photo above you can zoom in to identify the individual faces in the crowd. An example of how technology makes it very difficult to hide in a crowd.

What role does forensics play when the scale of violence ramps up into the hundreds or thousands of people who are committing ‘criminal acts’ in full public view? Cultural, political and social factors guarantee that there will be no one answer as one reviews the reaction of authorities from country to country.

Ultimately the professionalism of a police force is linked to its ability to adapt to the modern scientific methods used to solve crimes. When crimes may have a political component, the science part of the equation is under threat. Thailand had gone through a difficult period since 2010 when the line between politics and crime blurred, overlapped, leaving many unanswered questions as to culpability and responsibility for deaths and injuries.

Science offers a methodology for assessing evidence and linking it to suspected wrongdoers, but such methods run political consequences. So long as the fear of such consequences outweigh the results of scientific evaluation by independent assessors, science will take a backseat to politically forces divided over the fundamental issue over government reach and action where agents of the state may have committed the crime.

We can smile when 84-year-old Mr. Chit sets after a local thief, fridge in his arms, with his gun in hand in hot pursuit. But the smile fades quickly when the state authorities are the ones doing the shooting and they are not necessarily firing in the air.

There was a recent court case in England involving a murder conviction based on expert witness testimony premised on Bayes’ Theorem. That theory, of course you will recall, comes from an 18^th century English mathematician whose name coincidentally was named Bayes. Actually the theory is intended to give a mathematical probability that given one event has happened suggests the relationship with a related event. Often it has been suggested that Bayes’ Theorem supplies the math to demonstrate what our common sense, logical mind tells us is the connection between things related in time.

For example, the cop pulls over someone who has run a red light and the driver has alcohol on his breath. The cop asked, “Sir, have you been drinking?” The driver slurs his words, “Not a drop, officer.” The driver smells of beer and there is an open bottle of beer on the passengers seat that is half empty. You don’t need to be a mathematician to draw a conclusion that the probability is high that the driver is lying and that indeed he has been drinking.

But a recent UK court decision threw out a murder conviction on the basis the footwear expert’s faulty calculations and poor explanations concerning footprints left behind by the murderer. The evidence came down to whether the accused had worn the Nike running shoes that had left tracks at the murder scene. If the judgment had been left that the expert had got it all wrong, then Bayes’ Theorem would remain in an expert’s arsenal and effective weapon at that. But court attacked the theory!

As the Guardian reported,  “In the shoeprint murder case, for example, it meant figuring out the chance that the print at the crime scene came from the same pair of Nike trainers as those found at the suspect’s house, given how common those kinds of shoes are, the size of the shoe, how the sole had been worn down and any damage to it. Between 1996 and 2006, for example, Nike distributed 786,000 pairs of trainers. This might suggest a match doesn’t mean very much. But if you take into account that there are 1,200 different sole patterns of Nike trainers and around 42 million pairs of sports shoes sold every year, a matching pair becomes more significant.”

The problem was the expert couldn’t testify as to the precise number of the type of Nike trainers had been sold in England. He relied on what the Guardian called “rough national estimates.” The judge decided that unless the underlying statistics were “firm” the Nike shoeprint evidence wasn’t reliable enough to justify a murder conviction.

The analysis of the court has led others to conclude that there is a misunderstanding between judges, prosecutors and lawyers on the one hand, and mathematicians on the other. Many criminal cases are based on circumstantial evidence. The question is how to assess such evidence, and place it in a context that ranks the odds of the evidence pointing to the guilt of the accused. Bayes’ Theorem can never provide a certain, fixed connection. It can only give the odds of such a connection.

Something like Bayes’ Theorem is a likely companion for law enforcement agencies. Profiling has a Bayes’ Theorem backbone, suggesting that the odds of catching a bomber increases in the presence of certain age, gender, racial and other personal characteristics. This is why at airports you are told the searches are ‘random’ because many people are uncomfortable with the idea of being profiled. Though from a Bayes’ Theorem point of view, calculating the odds by taking into account such factors may increase the odds of catching a bomber before he/she has set off the bomb.

On Tuesday, I was riding the BTS from Chidlom Station to Asoke Station. I had been to meet a friend for lunch, and afterwards, I stopped to buy 18 bagels for a friend who lives in Chiang Mai. The bagels were put in a brown bag and the brown bag slipped into a clear plastic bag, which I carried. On the train, I noticed two police officers had cornered a black man on the Nana Station platform. One of the cops flipping through what looked like a passport. I figured the cops had profiled him: black, T-shirt, jeans, young and in the Nana area of Sukhumvit Road.

When I got off the train at Asoke, I walked toward the MRT (the underground train in Bangkok) only to be immediately joined by a uniformed Thai cop. He saddled up beside me. “What’s in your bag?” he said. “Bagels.” He looked at me. I asked him, “Do you know what a bagel is?” Apparently not wanting to admit he didn’t, he said, “Bagels.” I said, “Bagels.” Then he reached toward my bag and started squeezing the bagels. Not once, but two or three times. The top, the middle and close to the bottom of the bag. It was bagels all the way down.

In Thai cop school there must be a class where the resident Bayesian expert teaches street cops that bagels have a certain squeeze identification factor that increases the odds that indeed they are bagels as opposed to drugs, a bomb, pirated CDs, body parts, or any number of things that cops think that foreigners traveling between the BTS and MRT might be transporting.

Then he asked (in English) where I was from. “Canada,” I said. And I asked where he was from. “The South,” he said. He asked where I was going. I told him my soi number. Then I asked where he was going. He shrugged. The policeman didn’t seem to have any place in mind as to where he was going next.

Having had a good squeeze of bagels, he looked slightly disappointed. He said that he was from the South of Thailand. If there was one place, where a good theory based on Bayes’ Theorem ought be used, it was in the South, where daily bombing and assassination is an odds on certainty. I left him watching as I walked through the scanner frame to the MRT and the security were waiting. I took off my backpack, which has multiple zipper pockets, unzipped one of the smaller ones, the security guard, glanced, turned away and I walked through. He had no interest in my bagels. Didn’t ask to look. Didn’t request a squeeze. Come to think of it, the cop never asked me to open my backpack.

When you come to Bangkok, you need to understand that Bayes’ Theorum is colored by local culture and what might seem odds on a bag of bagels to you, is something quite sinister to a Thai cop who by the way didn’t seem to know where I could buy lox and cream cheese.