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Tuesday, Sep. 25, 2001

When tragedy strikes, the natural human response is to look for someone to blame. It makes it easier to understand the tragedy and, in turn, easier to cope with its consequences.

Someone hurt in a car accident may sue to show that the other driver was at fault. Or an adult may go to therapy to find out what events from his childhood may have influenced problems he has today. Or, as happened last week, two famous televangelists may use their pulpit to blame a variety of groups for their role in bringing about the horrific recent attacks on the World Trade Center and the Pentagon.

In the wake of these attacks, many have felt an overwhelming need to lay blame. Accordingly, individuals representing religious interests, political factions, cultural groups, or just themselves, have made many assignments of blame–some of them seemingly appropriate, but others misplaced and dangerous.

We can learn some cautionary lessons about blame from our own legal system, which is in the business of determining fault and assigning responsibility.

Finding Fault as a Legal Matter: Different Standards of Proof

Finding fault and determining what consequences should follow from that finding are core concerns of our legal system. The process for measuring fault varies with the severity of the consequences that might follow: the more severe the possible consequences, the more careful the process that must be followed before those consequences are imposed.

For example, an individual may be found to be at fault for causing a car accident based on a relatively lenient standard of proof: preponderance of the evidence, which, roughly translated, means it is more likely than not that the driver was truly at fault. The consequences for this finding of fault will probably be the payment of money damages–a loss of property, not life or even liberty. Thus, we worry comparatively little about making the occasional mistake, and apply a relatively low standard of proof.

But where something more important is at stake, the standard of proof is higher. Thus a criminal defendant cannot be blamed for a crime without proof beyond a reasonable doubt that he committed it.

Finally, when the stakes are even higher, with life itself at stake, the precautions taken against erroneous blame are even greater. A murder defendant convicted of committing a "capital crime" — meaning that he might be given the death penalty — is entitled to an entirely separate proceeding to determine if he is blameworthy enough to justify that sentence.

The idea that the standard of proof should be commensurate with the gravity of the consequences is one that should make us pause before lightly assigning blame in the wake of the recent terrorist attacks — the response to which is likely to be grave indeed.

The Legal Consequences of Fault

When the legal system assigns fault to someone, it permits the imposition of sanctions upon that person. In civil cases, the sanctions are roughly designed to accomplish two objectives: that of compensating the wronged party, and that of preventing the wrong from recurring.

The first objective is usually achieved through an award of compensatory damages to cover the plaintiff's losses. The second might be achieved directly through a court order preventing the defendant from engaging in the harmful activity, or indirectly through an award of punitive damages designed to make it prohibitively costly to misbehave again.

In criminal cases, the assignment of fault serves similar functions. Again, ideas of compensation and of deterrence come into play.

Criminal sentences, like fines or jail time, are designed first and foremost to punish the defendant for his wrongful acts–to compensate the state, in some sense, for having its rules broken. But they are also calculated toward deterrence: to prevent the criminal from repeating his offense.

Conditions of probation sometimes accomplish the goal of deterring future crime by making freedom depend on adherence to certain precautions. Prison time accomplishes a type of simple deterrence by depriving the defendant of the opportunity to commit another offense. And in some cases a court may predicate a death sentence on a finding of future dangerousness–a nod to the deterrence goal as well.

Our response to the terrorist acts is likely to have similar goals — of punishment, deterrence, and conceivably compensation as well. But we should keep in mind, as we respond, what our goals are and whether they make sense. Does the response we choose appropriately deter, or is it mostly geared to punish? Does our reaction actually encourage more terrorism, rather than deterring it?

The Role of Fault and Consequences Outside the Legal System

There are some additional lessons in these legal principles that might guide our individual and collective response to the terrorism crisis prompted by the mass killing and destruction at the World Trade Center and Pentagon on September 11.

First, we should remember that an assignment of fault has the effect of justifying the imposition of consequences. Thus, assertions of blame are not costless.

Just as a legal finding of fault justifies the imposition of sanctions, societal and political assessments of fault engender consequences as well. A societal assessment of fault may trigger private discrimination and violence, while a political assessment of fault may put someone on the receiving end of a declaration of war.

Accuracy in placing blame is thus of paramount importance, particularly where the likely consequences are severe.

Falwell's Wrongful Laying of Blame

That lesson has not thus far been heeded well. During an appearance on Pat Robertson's television show, "The 700 Club," Jerry Falwell took the opportunity to say to the "pagans and the abortionists and the feminists and the gays and lesbians . . . , the ACLU, [and] People for the American Way," with respect to the violent terrorist attacks on the World Trade Center and the Pentagon, "you helped this happen." Robertson, the host, chimed in with "I totally concur."

Falwell later apologized for his remarks, which he termed "harsh and ill-timed." At the same time, he insisted that he was making a nuanced theological point that was being missed. (That point turned out to be that destruction of this magnitude had to be the work of an angry god, and those that have made that god angry are to blame for it.) Robertson, for his part, repudiated Falwell's comments altogether, despite his unequivocal agreement with them at the time.

Putting aside the questionable sincerity of Falwell's apology, and his "nuanced theological point," we can see the danger in such careless assertions of blame.

The blameworthy, according to Falwell, are the groups of Americans long condemned by the Moral Majority, and subject to hostility by a much broader range of Americans. Exploiting public fear to further oppress these groups is shameful.

It is also, of course, ironic, given the significant parallels between Falwell's intolerance and that of the terrorists themselves, who also lash out at those who have ostensibly angered their god.

Wrongly Blaming All Those of Arab Descent

Outside of televangelism, blame is being irrationally assigned as well. Within our own country, individuals of Arab descent–and anyone who looks like he might be of Arab descent–are being wantonly blamed, regardless of whether they bear any tie to those that perpetrated these attacks, or even share the same religious beliefs.

As was widely reported, Congressman Cooksey from Louisiana egregiously commented that anyone with a "diaper on his head" ought justifiably be "pulled over and checked." He apologized later for his extremely offensive comment — but one must wonder, as with Falwell's apology, how sincere he really is.

With Cooksey the blatant exception, our politician's assessments of blame by our politicians have generally been rational — or, at least, not clearly irrational. But they also have been dangerously imprecise. It is important to be clear about a number of points that sometimes are elided.

Certainly the average Afghani citizen is not at fault for the terrorism apparently engineered by Saudi exile Osama Bin Laden and his associates just because he lives in their presence. Nor are the Afghan women who have, under the rule of the Taliban, been stripped of all basic human rights — including the rights to work, attend school, or even leave their homes. Yet these people are clearly implicated in the American response to terrorism.

The Problem of Misplaced Blame

A second lesson from the legal system is that unleashing consequences on the wrong party is both unfair and — perhaps even more importantly today when so many Americans live in fear of further attacks — ineffective.

The unfairness is being immediately felt by many. There are the Middle Eastern storeowners who have been fatally shot by crazed Americans because they "look like terrorists." There are the Arab-Americans who have been and will be, with the overwhelming support of their fellow Americans, singled out for investigation, inspection, and questioning because of their appearance. And there are the Sikhs who now have to make the hard choice between religious dress and personal safety. That unfairness will continue to affect millions here and abroad, as our "new war" begins.

Meanwhile, the ineffectiveness of acting on misplaced blame could have dangerous long-term consequences. Actions taken against those not at fault will of course do nothing to prevent future attacks. But there is a subtler risk to these actions.

One result of careless scapegoating is that there is little or no time spent asking and answering the hard questions. The lead-ins to President Bush's address before Congress last week promised that he would try to explain why these attacks occurred. But his explanation was little more than simplistic rhetoric about how evildoers had wronged us and they would now be forced to pay. Where is the deeper answer to the question President Bush himself posed — the question of why?

Visiting consequences on nations and individuals without a careful assessment of fault will do little to ensure our national safety. While we are at war, I, for one, will still be wondering, what would make nineteen men hate America so much that they would give their own lives just to make it suffer? Until that question is asked and answered, there is good reason to continue to feel unsafe.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University.

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