If O.J. Did It, Lock Him Up Forever

Americans have a lamentable tendency to be overly punitive toward relatively minor criminals, like small-time drug couriers, and overly indulgent toward moneyed murderers with psychobabble sob stories, like the parricidal Menendez brothers.

Will O.J. Simpson be a beneficiary of the latter tendency, opening a new celebrity chapter in the how-to-get-away-with-murder’book? Or might his case mark a salutary turn toward taking death seriously, by locking killers up for the rest of their natural lives?

It must be stipulated that not quite enough evidence has so far been disclosed (or tested by the rigors of trial) to be certain that Simpson wielded the knife that so savagely tore into his ex-wife and the male friend whose body fell next to hers. The presumption of innocence has its claims-even though I have trouble imagining why a man who thought that someone else had just killed the woman he loved would be acting the way Simpson has been acting. (Example: His self-regarding "suicide" note, which says that "if we had a problem, it’s because I loved her so much" and that "[a]t times I have felt like a battered husband or boyfriend.")

But if the evidence does prove that Simpson killed Nicole Brown Simpson and Ronald Goldman, he should spend the rest of his life’ behind bars. The law needs to teach people a lesson that it has not been teaching in recent decades: If you murder another human being, you will be put away forever. No excuses. No parole. Period.

(I’m against the death penalty, but that’s another column.)

Anything like a 10-years-for-manslaughter outcome in Simpson’s case would further entrench our law’s longstanding bad habit of trivializing the battery and murder of women by their husbands and lovers. It would also advance the pernicious new trend toward letting killers avoid serious punishment by combining appeals for sympathy with deterministic explanations of their criminal behavior.

It would be an especially egregious travesty for Simpson to get off with a short stint in the loony bin, after having paid a bunch of lawyers and psychiatrists to beguile a starstruck jury into going easy on good old O.J. by finding him to have been temporarily insane.

Fortunately, this seems most unlikely, both because a Simpson insanity defense would probably not succeed and because, even if it did, he could end up spending the rest of his life locked up in a mental institution. California has narrowed the insanity defense over the past 15 years or so, doing away with jury instructions about "irresistible impulses" and other squishy verbal formulas that once stood as an invitation for murderers with money to pay top-notch legal and psychiatric talent to manufacture excuses.

If Simpson were to mount an insanity defense under current law, he would have to prove that (in the words of the standard jury instruction) "by reason of mental disease or defect, he was incapable of understanding the nature and quality of his act or incapable of distinguishing right from wrong at the time of the commission of the crime." Although hardly a model of clarity, this hoary common-law language could not easily accommodate the O. J. Simpson of the Hertz ads, no matter how much evidence might be produced about his obsession with his ex-wife, about recent depression, about old head injuries from his football days, and how that evidence might be spun into theories about diminished impulse control.

It’s not hard to imagine a chronic wife-beater who has the effrontery to call himself a "battered husband" claiming that he had lost his grip on reality and not known what he was doing that night: "I was home alone, watching a ballgame on TV, and the next thing I remember, I was in the limo on my way to the airport to catch the red-eye to Chicago for the Hertz meeting, and everything in between is a blank." But it is hard to imagine any jury-even a California jury-buying it. Especially from a man who broke down the door of his ex-wife’s home nine months ago and threatened her as she pleaded with a police dispatcher to send help, a man whose first line of defense has been that "I have nothing to do with Nicole’s murder." And unlike John Hinkley Jr.-who was found not guilty by reason of insanity of shooting President Ronald Reagan in large part because Hinckley’s prosecutors were saddled with the impossible burden of proving him sane beyond a reasonable doubt-Simpson would have the burden of proving himself insane. Here’s betting that his lawyers decide not to try.

It would be a lesser travesty for Simpson to get off with a conviction on, say, two counts of voluntary manslaughter, which would probably bring a sentence of 10 to 15 years in prison-even less if Simpson had a softheaded judge. Such an outcome is, unfortunately, far more likely than an insanity acquittal. Here’s how it would work:

The prosecution has charged Simpson with double murder in the first degree with "special circumstances," which make the crime a capital offense and give prosecutors the option of seeking the death penalty. (The fact that there were two victims is one such "special circumstance" under California law.) If convicted as charged, Simpson would get a mandatory sentence of life in prison without possibility of parole even if the prosecution decided not to ask the jury to impose a death sentence.

If the prosecution’s evidence is so strong as to preclude an "I didn’t do it" defense, and if Simpson decides against pleading insanity, the only viable defense strategy will be to claim that the killings were not planned or premeditated, but rather were committed on a sudden impulse in the heat of passion. Such passion might have been provoked by, for example, jealous rage on discovering his ex-wife with this other man, and perhaps aggravated by cocaine intoxication.

This might be a reasonably plausible line of attack on the first-degree murder charges, which (unlike second-degree murder) require the prosecution to prove premeditation and deliberation, in the sense of some degree of planning about whether and how to kill the victim. (If the prosecution finds the murder weapon, it will, of course, make the most of any evidence that Simpson brought it with him that night.)

A well-crafted defense might even convince jurors-especially any who were on those freeway overpasses the night of June 17, cheering on the world’s most famous fugitive-that Simpson’s heat of passion was so intense as to negate the element of malice aforethought that is required for a second-degree murder conviction. That would get him down to two voluntary manslaughters, for which the judge could send him to prison for as little as four years, although something closer to 15 years would be more likely.

In either event, O.J. Simpson would be a free man by his early 60s. And the message would go forth that if you brutally butcher two fellow human beings, it will cost you-not what it cost them, not even the rest of your life-but a few short years. At least, that’s all it will cost you if you’re a popular celebrity.

Such a manslaughter verdict would also perpetuate the long and sorry history of undue indulgence, by every society on this planet, of the battering, the brutalizing, and the killing of women by the men in their lives.

Why is it that our law has for centuries characterized such heat-of-passion killings as deserving of less punishment than those involving premeditation? To some extent this distinction reflects the assumption that planned killings are more culpable-and more subject to deterrence by the threat of maximum punishment-than are unplanned killings. I have my doubts about that. Is a man who goes into a rage and butchers the mother of his children really less culpable than, say, a robber who deliberately shoots his victim to avoid leaving a witness?

On this issue, some insight might be provided by the perspective of feminist legal theory. Maybe wife-killers are not just incidental beneficiaries of-but to some extent the unworthy inspiration for-the focus on premeditation as the key element of first-degree murder.

In the final analysis, the line between "premeditation" (which need only take an instant) and "heat of passion" (which can smolder for months before bursting into action) is drawn not by judges in their vaguely worded instructions, but by juries in their verdicts.

Here’s hoping that O.J. Simpson’s jury weighs any heat-of-passion defense in light of the evidence that Simpson (who in this scenario would necessarily be his own key witness) is a self-serving liar whose initial tactic was to describe himself as a wronged and innocent "battered husband." Here’s hoping the jury focuses less on what Simpson and his hired guns say about his state of mind than on what he allegedly did, as described by New York Times columnist Bob Herbert:

"Imagine a crazed and physically powerful man springing upon your mother, slashing and hacking away with a large knife until the main arteries in her neck are gone and her head is nearly severed and the blood is spurting and gushing in all directions.

"That’s what happened to Nicole Brown Simpson."