A few months ago, Attorney General, John Ashcroft, imposed mandatory sentencing for many Federal crimes, thus removing any concept of judicial discretionary sentencing. Under this order, any consideration of mercy or individual circumstances is forbidden. Several years ago, Susan Smith sent her car into a river with her two children inside. Although this was a terrible crime, it was clear to me at the time the woman was ill. Many commentators argued that the woman should be executed. This was my response to them.
“Susan Smith deserved to die.” These words by Mona Charen in the Hartford Courant of August 2, 1995 caught my attention. Susan Smith, she says, “deserved the death penalty for the horror of her crime-a crime that is made all the more horrible by the fact that these were her babies.”
The Susan Smith story and Charen’s column reminded me of the ancient Greek myth of Orestes. Although the story of Orestes concerns itself with matricide rather than infanticide, to the ancient Greeks the crime was just as horrible. Aeschylus tells the story.
Agamemnon, returning home from his successful victory over Troy, was murdered by his wife, Clytemnestra. She murdered Agamemnon because of her ongoing affair with Agamemnon’s cousin and because Agamemnon returned with a mistress, Cassandra. Agamemnon’s murder climaxed a long history of the crimes of Agamemnon’s ancestors, crimes that included infanticide, cannibalism, adultery, and murder.
Orestes, Agamemnon’s son, was away. When he heard of his Father’s murder, he was in a bind. Under Greek tradition, a son was duty-bound to avenge his father’s murder. Equally strong was the tradition that matricide was the worst crime one could commit. Both the gods and society condemned it equally.
He approached Apollo for advice. Apollo ordered him to avenge his Father’s murder. Orestes after much soul-searching did so.
Immediately after the murder Orestes saw the “hounds of hell” known as the Furies. Ugly old creatures with long black hair like snakes, they chased him, haunted him, and tortured him. For many years Orestes wandered, his sleep haunted by these visions of grabbing and clawing creatures.
In desperation he traveled to Athens to plead before the court of Athena, the goddess of wisdom, reason, and justice. During this trial the god, Apollo, pleaded for Orestes. Apollo was the god of light. He was the god of truth and could never lie. “It is I who am answerable for what he did. He killed at my command,” said Apollo.
Opposing Apollo were the Furies, their accusations hammering in Orestes ears. They denounced his crime; they demanded vengeance. “The gods themselves have decreed the most horrible punishments for matricide,” they claimed. “Justice must be served.” They argued that without justice social order would fall.
Athena said even she didn’t have the wisdom to make a decision. She deferred the decision to a jury of twelve of Orestes’ peers, the first recorded trial by jury in western literature. Athena presided as judge.
Orestes admitted his guilt; the jury agreed with Orestes, but at the same time expanded the law of just retribution to include mercy. The jury decided Orestes had suffered enough. It was time to end the ancient crimes of the family of Orestes.
I think the parallels are clear. Just as Orestes murdered his Mother, Susan Smith murdered her two babies; Just as Orestes had to bear the long history of family guilt and crimes, she had to suffer years of family abuse and neglect. These years of abuse and neglect, perhaps generational, climaxed with this tragedy. Susan Smith will have to live with furies of her own.
Charen would have us return to the days of absolute justice, to the days when the furies of society would extract an eye for an eye.
Yet as Aeschylus shows us, the mark of a civilized society is one that extracts justice. The punishment should fit the crime. However, justice also needs to be tempered with mercy, not only mercy for Susan Smith, but mercy for her family.
Interestingly, the Furies were given new duties. They were no longer the punishers of wrongdoers, but rather the keepers of one's conscience (mercy). They were presented a temple on the Acropolis opposite Athena's temple, the Parthenon (justice).
In my judgment the death, even the legal death, of Susan Smith would only continue the years-old path of pain, abuse, sorrow, and tragedy that this family like the family of Orestes has endured.