Undoubtedly you remember the Massachusetts case of Commonwealth v. Woodward -- better known as the "nanny case." You know, the one where a British au pair named Louise Woodward was convicted of murder for shaking a toddler to death and sentenced to spend a minimum of 15 years in prison, only to be released a week later after the trial judge overrode the jury's verdict.

Almost from the beginning, the nanny case hinged on the choice of charges for Louise Woodward. More important that "Did she do it?" was "What did she do?" Was her act done with malice aforethought and special circumstances? If so, a conviction for first-degree murder was in order and life in prison the appropriate sentence (Massachusetts has no death penalty). But perhaps Louise acted with merely a malicious indifference to human life when she shook the toddler, which would justify a second-degree murder conviction. The jury convicted Louise of the latter offense.

Many who followed the case sympathized with Louise -- what parent has not at one time or another come close to what Louise was accused of doing? Bad conduct maybe, but certainly not murder. In fact, another type of crime known as manslaughter (when death results from a reckless act such as causing a fatal traffic accident by driving too fast) seemed a much more appropriate charge. The trial judge agreed and, after the jury came in with its murder verdict, used his judicial authority to reduce the charge to manslaughter and to sentence her to the number of days she had already served in prison pending trial. The judge's actions were upheld on appeal.

Fitting the Crime to the Criminal

To understand the impact of clearly defining criminal conduct, one can look to the days when crimes were not defined so carefully. Back in the days of merry olde England, not too long after the last millennium, it was pretty easy to run afoul of the law, which was vague at best. If you did something that the church, the King or the nobles didn't like, you would usually be made to suffer dreadfully. However, after the Magna Carta was signed in 1215, the concept began to take hold that you should only be punished if you committed a defined crime, as did the concept that trial by a judge or jury was more appropriate than trial by torture. Even then, if you were found guilty of a crime, death was often the punishment as well as forfeiture of your property. For especially heinous crimes, execution was accompanied by especially heinous treatments, such as the fabled drawing and quartering.

As more and more cases found their way into the English courts, the courts began to honor what previous courts had done in similar cases. This development gave rise to what is known as "precedent." One of the hallmarks of precedent was that it need be applied only if the later case involved the same or very similar facts as the earlier case. This fact allowed judges to use the individual facts of the case before them to distinguish that case from the earlier case and therefore do justice on an individual basis. In other words, over time, the law began to stretch. Individual cases cried out for different treatment than previous cases, often because they were in fact different.

For instance, assume that a person accused of stealing was an otherwise honest person driven to his deed by dire family circumstances. If the judge in that case followed the law of the time, death might well have been the mandatory punishment. However, if the judge could somehow redefine the defendant's actions so that the defendant wasn't guilty of stealing after all, he wouldn't have to sentence the poor fellow to the gallows.

Over centuries, the many exceptions carved into originally simple laws by sympathetic judges created a complex body of criminal law that allowed for many differences in outcomes depending on the facts of each unique case. It also often put defendants at the mercy of the perceptions and whims of the trier of fact -- most often a jury.

Lest you think that this is all ancient history, the nanny case should convince you otherwise. When we became a country, we adopted many of the hair-splitting definitions of crimes developed in England. And so, as in the nanny case, much of our criminal justice system involves a hunt for the right crime for the right set of circumstances. Let's face it: All evidence pointed to the fact that the child suffered death at someone's hands, and the evidence pointed to Louise as the culprit. But what was Louise really guilty of? Does shaking a child in frustration amount to murder if the child dies? The parents thought so; so did the prosecutors. And the jury agreed. But the judge, just like his brethren of old, was sympathetic to the defendant in this particular case and chose to split legal hairs -- and took Louise off the hook. Of course, if the judge had personally believed in the jury's verdict, then he could have found enough facts in the case to uphold the second-degree murder conviction. Depending on your viewpoint, the judge's decision is an example of judicious application of carefully defined laws, or of substituting personal judgment for law.

We seem to be coming full circle. Since being tough on crime is a natural position for most politicians, vast numbers of statutes imposing long mandatory sentences for a variety of crimes are pouring forth from our state and federal legislatures. And as once happened in England, many of our judges, defense attorneys and even a few compassionate prosecutors are now busy finding ways around these new laws in situations where the results are simply too harsh to countenance. And, predictably, our criminal justice system grows ever more complex.