Tuesday, November 30, 2010

Professor Melissa Tatum on Anita Blake's Vampire Hunter Series

Melissa L. Tatum is a Research Professor and the Associate Director of the Indigenous Peoples Law and Policy Program at the University of Arizona’s James E. Rogers College of Law. Much of her teaching and scholarship focuses on the intersection of minority groups, individual rights, and the criminal justice system. She is also the author of several short stories published by Yard Dog Press.

Professor Tatum has recently reviewed  Laurell K. Hamilton's Anita Blake: Vampire Hunter series, appearing for a short while publicly on the Internet at Melissa L. Tatum, Trying the System, in Ardeur:  14 Writers on the Anita Blake: Vampire Hunter Series (ed. Hamilton)(SmartPop 2010). The vampire is a particularly potent construct rich in symbolic value.    Her essay is worth a careful read, a version of which follows.

Trying the System
Melissa Tatum 
(Reviewing Laurell K. Hamilton's Anita Blake: Vampire Hunter Series)
In Anita Blake’s world, the monster lurking in the dark has emerged from the closet and become the monster who lives next door.  College students earn degrees in preternatural biology, cops must determine whether the corpse at their murder scene will come back to bite them (literally!), and EMTs must treat everything from humans to vampires to shifters to all sorts of other formerly mythical creatures.  And the criminal justice system struggles with how to handle beings with superhuman strength and abilities.  How do you incarcerate a vampire who can bend the bars of the cell and escape?  How do you impose pretrial detention on a vampire who can exert mind control powers on his jailer, compelling the jailer to open the cell and forget ever doing so?
Over the first dozen books in the Anita Blake series, the U.S. government wrestles with these issues, and while it laudably decided to make vampires legal citizens of the United States, it unfortunately decides to flagrantly violate approximately one-half of their constitutional rights by imbuing federal marshals with the legal authority to be vampire executioners.  No search warrants or arrest warrants for vampires; instead, courts issue warrants of execution, essentially creating a system where the sniper and the cop combine to create an assassin with a badge and give a whole new meaning to the phrase “execute the warrant.”
To fully understand what is happening in Anita’s universe, we must take a brief detour through the somewhat convoluted thicket of the criminal justice system. The American criminal justice system prides itself on being a model of fairness, a system founded on the bedrock principle that it is better for ten guilty men to go free than for one innocent person to be convicted.  The system achieves this goal by creating an elaborate set of procedural protections, and the most important of those procedures are articulated in the U.S. Constitution.  Twenty-five clauses in the first ten constitutional amendments address individual rights and create boundaries to prevent the government from overreaching.  Over half of these clauses, fourteen of the twenty-five to be exact, deal with the criminal justice system.  Clearly, the Founding Fathers thought it important to spend a significant portion of our primary governing document outlining the key working principles of the criminal justice system.
These principles govern everything from police investigations and interrogations and arrests to the trial and sentencing process.  They also provide endless fodder for books, movies, and television shows.  Americans are addicted to legal thrillers in every form, from John Grisham’s The Firm to the Law & Order franchise to Legally Blonde.  The legal process also provides a microcosm for books and movies and television shows to explore how society interacts with those who challenge its norms—think To Kill a Mockingbird, Minority Report, or X-Men.
In addition, these principles provide endless fodder for politicians and the media who seek to manipulate public reaction.  Every time the specter of Willie Horton is dragged into the spotlight, every time some media pundit pontificates about the killer who went free on a legal technicality, the public condemns the legal system for placing the rights of murderers above the rights of their victims. What the politicians and the media gloss over is that these principles are not legal technicalities; rather, they are rights. When our Founding Fathers wrote the U.S. Constitution, their purpose was to design a system that protected each person’s liberty by ensuring that the government must justify any decision to deprive a citizen of that most cherished right—freedom. The Declaration of Independence speaks of life, liberty, and the pursuit of happiness as the inalienable rights of all men; the Constitution proclaims that it intends “to secure the Blessings of Liberty to ourselves and our Posterity.”
At the same time, the Founding Fathers understood that it is part of human nature for the group to join together against those individuals who do not conform to group norms.  Humans naturally clump together in everything from high school cliques to the Kiwanis club.  And they have words, often negative, to describe those who don’t—nonconformist, loner, someone who marches to the beat of a different drum.  In recognition of these tendencies, the Founding Fathers created a criminal justice system that is a study in contrasts, a balance between group and individual rights. 
On the one hand, the entire purpose of the system is to protect society as a collective from the aberrant behavior of certain individuals: a criminal case is always the State v. or the People v. the individual defendant.  Every society establishes behavioral norms—rules that define what conduct is acceptable and what is not.  Not all “unacceptable” behavior is criminal; rather, each society must define for itself what behavior it will treat as “criminal,” as so unacceptable that individuals who violate those norms must be singled out for punitive sanctions.  It’s the difference between littering and wearing white shoes after Labor Day; they are both aesthetically displeasing, but only one is a crime.
On the other hand, the whole purpose of the criminal trial is to protect the individual from society.  Society can protect itself from aberrant behavior by imposing criminal sanctions on individuals, but only if it follows the proper procedures.  The United States is a system of checks and balances—three branches of government balancing each other and ensuring the Constitution is obeyed.  In the criminal justice system, the executive branch, through the police and the prosecutor’s office, investigates crime and instigates the process of seeking criminal sanctions.  Indeed, this division of labor is at the heart of the successful Law & Order television show, now in its record twentieth season.  Roughly the first half of each episode follows the police investigation, while the second half focuses on the prosecution. 
The police and prosecutors, however, are just two aspects of the system.  Presiding over both of them is the judicial branch, which, through the trial and appellate process, ensures that the police and prosecutors do not overstep their boundaries.  Much of the dramatic tension in the second half of Law & Order arises from the rulings of the judges.  Will the confession be suppressed?  Will the plea bargain be accepted?  Will the surprise witness be allowed?  In answering these questions, the judicial branch refers to and relies upon the Constitution, thereby administering a fair process that protects the individual rights of defendants. 
In Anita Blake’s world, the process has become skewed, at least with respect to vampires.  The role of the judicial branch is minimal; it exists only to review and issue warrants of execution.  Issuing a warrant is usually the beginning of the court’s involvement in a criminal case, not the beginning and the end.  With no trial and no jury, the role of the judicial branch is all but eliminated, leaving the mission of protecting the public from criminal vampires squarely and heavily on the shoulders of the executive branch.  Indeed, in Incubus Dreams, one cop challenges Anita’s actions, asking, “who made you judge, jury, and [executioner]?”  To which Anita replies, “the federal and state government.”
The decision to essentially eliminate the role of the judicial branch is deeply troubling, because in the American system, “guilty” and “deserving of punishment” are not necessarily the same thing.  A defendant may have “done the deed” but offers an acceptable excuse, such as self-defense.  While we don’t condone killing another human being, we also don’t believe you have to sacrifice yourself—it is okay to defend yourself, even if the result is that you kill your attacker.  Sorting out these types of claims is part of the judicial branch’s job.
 The American system also believes in tempering justice with mercy tailored to each defendant’s personal circumstances.   We may not accept a proffered excuse—like acting in the “heat of passion” or “temporary insanity”—as a reason to acquit, but it may be used to mitigate the punishment. While we don’t want to encourage people to kill adulterous spouses, we do understand that unexpectedly finding your husband in bed with your sister can cause a person to lose control in a manner that is not likely to happen again—especially if said husband is now six feet under.
These defenses are some of the ways the judicial branch keeps a careful watch on the rights of the defendant and reins in potentially overzealous prosecutors.  Our society has decided that why a person commits a crime is relevant to whether and how they will be punished.  But these defenses are not available to vampires accused of crimes in Anita Blake’s world.  The criminal justice system for vampires consists of a stake through the heart and maybe a separation of head from shoulders. (As Anita puts it in Incubus Dreams, “dead is at least half their brains spilled, and daylight through their chests.”)  The why behind their actions is irrelevant.
Examining motivation is only one purpose of the criminal trial. Another purpose, perhaps the primary purpose, is to put the prosecution’s evidence to the test—to put witnesses under oath when they provide testimony and to allow the defense to cross-examine witnesses and present its own evidence.  Anita recognizes and wrestles with her conscience on this issue in Incubus Dreams; to get a death warrant, “All we needed was proof, or, depending on the judge, strong suspicion.  Once I’d been okay with that.  Now, it bothered me.”  In fact, in Incubus Dreams Anita actually takes the time to investigate whether the warrant was issued for the correct vampire and, upon discovering it was not, locates and executes the guilty one instead.
In another scene from the same book, Anita explains to the reader why the law was changed to require more than one count of using vampire wiles to have sex before a death warrant could be issued: “Those of us in the middle just didn’t like the idea of a death warrant being issued on the say-so of one date who woke up the next morning with a bad case of buyer’s remorse.”  If warrants are being issued for the wrong vampire and other warrants rest solely on one person’s say-so, particularly a person with a motive to lie, the process is certainly flawed.
In short, most of the normal procedural protections have been tossed out the window for vampires. The process is clearly skewed.
However, a skewed process is not necessarily also an unconstitutional process.  Because vampires are citizens in Anita Blake’s world, they are entitled to the same due process and equal protection as all other citizens.  For a country founded on the rights of the individual, the United States’ history is full of instances where people were categorized by and punished for what they looked like, where they were from, or who they worshipped.  We enslaved African Americans, confined American Indians to reservations, incarcerated Japanese Americans, discriminated against Mexicans, and demonized Muslims.  In recognition of this basic human impulse, the Founding Fathers inscribed restrictions in the Constitution designed to limit the government’s ability to make and enforce laws based on group identity.  The government is allowed to make such laws—after all, the September 11 hijackers were all Middle Eastern—but those laws will be strictly scrutinized by the courts, who will require that the government present a compelling case to justify the legal discrimination. 
Thus, “due process” and “equal protection” do not mean that everyone must be treated the same.  At their most fundamental level, they mean the defendant must receive a fair hearing and any differences in treatment must be justified.  What constitutes a fair trial for the average defendant would not be a fair trial for a defendant that possesses superhuman strength and the psychic ability to influence witnesses and jurors.  What, then, constitutes a fair trial for a vampire?  How do we deal with the “different,” the “strange,” and the “uncontrollable”?
Although the rights enunciated in the Constitution can be a bit amorphous, they still serve as the touchstone or starting point for answering those questions.   In Anita Blake’s world, vampires are the “other,” the group that challenges the majority’s view of itself.  They are different and therefore feared and sometimes hated; vampires are almost literally the embodiment of the boogeyman, our childhood fear come to life.
And as with all minority groups, while one segment of the general populace argues for greater understanding, another segment argues that society must enact a slew of laws to protect itself.  We saw this in the aftermath of September 11 with the PATRIOT Act and with the cyclical tightening and loosening of immigration and border control laws.  Above all, the U.S. Constitution and its individual rights protections exist to control and moderate these impulses.  So did Anita’s federal government violate the Constitution in authorizing warrants of execution and deputizing vampire executioners?  Or do the differences between humans and vampires justify such radically different procedures for handling vampires accused of crimes?
In his Handbook of Federal Indian Law, Felix Cohen, a specialist in American Indian law, gives his opinion that:
Like the miner’s canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.

Substitute “vampire” for “Indian,” and you encapsulate the issue.  Granting legal citizenship to vampires means the rules apply to vampires the same as to all Americans.  It also means that the same restrictions apply to the government; the government may not violate the rights of vampires any more than it may violate the rights of any citizen.  To do otherwise, to create a second and distinct set of rules for vampires, demonstrates a lack of faith in the system and a lack of trust in the system’s ability to handle minority groups.
            While many people would likely argue that vampires are not “disadvantaged” in the traditional sense (in addition to being powerful and immortal, all but the youngest vampires inhabiting Anita’s universe possess some ability that might allow them to thwart or skew the criminal justice process), there is no doubt that vampires are a “disfavored” group.  One has only to look at Dolph’s reactions to his human son’s romantic relationship with a vampire to recognize that prejudice is alive and well in Anita’s world.  Dolph’s hatred is extreme, but his feelings are mirrored in varying degrees by other characters in the series—including, at least in the earlier books, Anita herself.
Anita Blake’s world is reeling from the revelation that vampires exist and is struggling to come to grips with what that means.  It is precisely in such times of crisis that the Constitution’s protections are the most valuable and the most necessary.  It is precisely in such situations that the Constitution’s protections ensure that our system remains fair and even-handed and does not become twisted by public fear and hysteria.  We can’t sacrifice the Constitution for expediency.  Only if there are no other ways of containing rogue vampires can we justify summary execution.
The critical question is whether the superhuman abilities possessed by vampires justify the government’s decision to eliminate the trial process for vampires.  While it is true that Anita Blake’s world still requires individualized warrants of execution for vampires, so some proof of wrongdoing must be presented, the government has sacrificed the defendant’s other rights on the altar of protecting society.  Vampire defendants have no ability to respond to the charges, to present witnesses in their own defense, to question the government’s witnesses, or to have a jury decide their guilt or innocence.        
Even a cursory review reveals a variety of other possible methods of handling vampires suspected of crimes, and while those alternate methods may ultimately prove unsuccessful, the government is morally and legally required to at least give them a try.  The police could create and recruit a special squad of vampire officers to handle cases involving vampires, or at least to capture those vampires accused of crimes.  The courts could recruit persons with special abilities to sense whether vampires are using their psychic abilities to unduly influence witnesses, jurors, the judge, or anyone else in the courtroom.  Perhaps some form of technology could be developed to disrupt the use of those abilities in the courtroom.  And those are just a start—clearly, many other options exist. 
Society certainly has the right to protect itself, but the federal licensure of vampire executioners is a stunning departure from the checks and balances that form the cornerstone of the American government.  And it is a stunning concentration of power in the hands of one individual, something history has taught us is a recipe for disaster.  Too much depends on the ethics and integrity of that one person, or at the very least the public’s perception of that person’s ethics and integrity.  It is not enough for a person to do right; they must be perceived as doing right. 
When Anita’s government created the special federal marshal position, it gave badges to all vampire executioners with sufficient years of experience and firearm skills.  That’s a problem. “For some of us it was more like giving a badge to a bunch of bounty hunters with license to kill,” explains Anita in Blood Noir.  Anita also discloses in Incubus Dreams that some of those newly minted federal marshals use their badge and the carte blanche provided by the death warrants to justify torture. 
Our democratic system ultimately rests on the public’s trust of those in power, a trust that the Constitution purchased by setting up a system premised on the idea that although individual segments of the government may be untrustworthy, the three branches possess sufficient checks and balances on each other to keep each separate branch on the straight and narrow.  In Anita’s words in The Harlequin, “When the police go bad, they aren’t the police anymore. . . . [They are] criminals”—and the Constitution expects them to be arrested and treated as such.   The Constitution’s regulations governing the criminal justice system are designed to keep the general public from losing faith in the police and the prosecutors.  Individual officers may go bad, but the police department and the district attorney’s office as collective entities will remain worthy of the public’s trust.
In The Harlequin, Malcolm confronts Anita about her decision in Incubus Dreams to carry out a warrant by invading his church and executing one of his parishioners. He makes the point that there are no warrants of execution for humans:          
             “The death penalty still exists, Malcolm.”
             “After a trial, and years of appeals, if you are human.”

             “What do you want from me, Malcolm?”
             “I want justice.”
             “The law isn’t about justice, Malcolm.  It’s about the law.”

An insightful, if disturbing, statement.  The foundation of the law, the Constitution, declares that the best method of achieving justice is to follow the procedures established in that document.  No law enacted in violation of those foundation principles, even one purporting to do justice, can truly be law.  No law enacted in violation of those foundation principles should be respected or followed.  Officials have a duty to ask whether the laws they are charged with enforcing are in compliance with the Constitution.  Even the military, the ultimate bastion of unquestioning obedience, requires its soldiers to recognize and refuse to follow an illegal order.  Ask Lieutenant William Calley about My Lai or Adolf Eichmann about the Holocaust; both learned that “just following orders” was not an acceptable defense.
Just following orders is also not an acceptable argument for Anita Blake, federally-licensed vampire executioner.  Every time Anita executes a warrant (and a thus a vampire), she violates the Constitution.  Without legal sanction, an execution is nothing more than murder.  The public’s faith in the government depends on the government complying with the Constitution and its individual rights protections.  The Constitution itself allows the government to tweak the rules, to adapt the contours of the Constitutional guarantees, but the government is not entitled to disregard them all together.  And that’s what Anita’s government did when it licensed vampire executioners.
Anita herself has a fundamental sense of right and wrong.  Indeed, much of the conflict in the series derives from Anita’s struggles with her own moral code, with the recognition not only that shades of gray exist, but that there may be many more of them than she is comfortable admitting.  But while Anita does rely on her own internal sense of justice, she also relies on the guiding hand of the law, and she takes refuge in the protections of the legal system.
Anita recognizes the dilemma licensed vampire executioners pose, even if she shies away from examining it too closely.  In The Harlequin, Anita gives us some insight into her discomfort:
I’d been grandfathered in like most of the vampire executioners. . . .  The idea was making us federal marshals was the quickest way to grant us the ability to cross state lines and to control us more.  Crossing state lines and having a badge was great; I wasn’t sure how controlled we were.

Anita is also clearly uncomfortable with the power placed in her hands:
             “I cleared Avery.  Legally, I didn’t have to.”

         “No, you could have shot him dead, found out your mistake later and suffered nothing under the law.

            “I did not write this law, Malcolm, I just carry it out.”. . . .

         “And that justifies slaughtering us?”

Anita doesn’t respond, but does reveal her internal struggle to the reader:
I was going to leave this argument alone because I’d begun to not like that part of my job. I didn’t think vampires were monsters anymore; it made killing them harder.  And it made executing them when they couldn’t fight back monstrous, with me as the monster.
            In a sense, a parallel exists between law enforcement efforts to capture and contain a serial killer and efforts to capture and contain vampires.  As with a serial killer, the consequences of failing to capture and contain a criminal vampire are extremely serious; indeed, people will die.  But the consequences of violating the Constitution are worse.  The system must remain intact.  To repeat Anita’s words, “The law isn’t about justice . . . it’s about the law.”  The U.S. Constitution is the supreme law of the land.  Tossing out the entire trial process for vampires accused of crimes is an effort to “do justice” at the expense of the law.  And that is exactly the type of “justice” the Constitution seeks to curtail. The Founding Fathers firmly believed that true justice is achieved only when the law prevails. They inscribed procedures in the Constitution as part of a deliberate attempt to check those who would act in the name of justice; the procedures reflect a deliberate lack of trust in the judgment of any one person.  Before a citizen can be deprived of his or her liberty, several people must pass judgment, and the defendant has a right to be heard and to refute the charges.  Vampires are legal citizens in Anita’s world, and killing one is the ultimate deprivation of liberty.  Summary executions, in the name of protecting society, are the ultimate violation of the Constitution, the bulwark standing between an accused and a mob of vigilantes.
The job of vampire executioner turns the entire U.S. criminal justice system on its head.  It tosses out law in an effort to replace it with justice and restricts the number of people who have a say in defining what constitutes justice.  It tries the system, finds it wanting, and abandons it altogether for vampires.  And the thought of a United States without its criminal justice system scares me.  Even more than vampires.

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