Law, Morals and Salvatore Vitale

Salvatore Vitale cried in court the other day, The New York Times reports. The former hitman for the Bonanno crime family was being sentenced by United States District Judge Nicholas Garaufis.  Call it pay day for Mr. Vitale. He was sentenced to time served, seven years, despite his self-confessed hands-on role in the murder of 11 people. He walked out the courthouse door and into the arms of the United States marshals, who whisked him away to a new life, under a new identity, in the federal witness protection program. A life you will pay for with your tax dollars.

Serial killers usually fare far worse in the criminal justice system. Angry and aggrieved members of the victims' family see to it. But on the day that Mr. Vitale was given a pass, there were no such family members present in court. I suspect that's because they knew what was likely to happen, and it sickened them. A federal prosecutor, Greg D. Andres, was reduced to reading letters from family members into the record.

In the case of Salvatore Vitale, the divide separating law and morals was unbridgeable.

Vitale became a Government witness, and was instrumental in the Government's war on the Bonanno crime family. Prosecutors say his cooperation led to the arrest and conviction of 51 organized crime figures. "[W]ithout the benefit of cooperating witnesses like the defendant, the government's ability to prosecute the secretive and rule-bound world of organized crime would be greatly impaired," Judge Garaufis said.

I get it. I know that federal prosecutions are often built upon the shifting sands of a cooperator's testimony. Typically these cooperation agreements are struck in private and kept secret for as long as possible. I've been present in secret hearings in federal judges' chambers where cooperators were told it was all right not to refer to their agreements when they were marched into open court to answer questions about the guilty pleas they will enter in public. Typically, a cooperator, such as Vitale, pleads guilty to a crime and then his sentencing is postponed until he has been milked of all he can offer. The gift he gets in exchange for sentencing comes at the very end of the game, after others have been safely convicted and sentenced themselves. The bones Mr. Vitale rolled were once covered with flesh and muscle.

What troubles me about the Vitale case is the uneasy boundary between the rhetoric of law and morals that prosecutors rely upon in making their cases. It is not unusual to hear a prosecutor suggest to a jury during closing argument that a defendant must be held accountable for his actions. A verdict of "guilty", a term with moral, legal and psychological resonances that are not necessarily consistent with one another, is said to make the defendant accountable. But accountable to whom?

Mr. Vitale waltzed away from a three-decade career as a hitman and enforcer, involved in more crimes, many of them violent, than he can remember. Yet the Government decided that it would cut him a pass. It decided not to hold him accountable for the harm he had done to others because the Government made a cost-benefit analysis: It would forgive him his trespasses because he could offer things the Government valued more than accountability. The Government, in a word, walked away from a strict view of moral duty, which holds that an act's moral quality needs to be evaluated in terms of the act's intrinsic characteristics. The Government adopted instead a contrary view, the consequentialist view in which nothing is really good or bad when judged apart from the benefits, or utility, it produces.

This is far from a mere academic distinction. The Government does such things all the time. It applies a consequentialist standard to its conduct, but holds the very people it is supposed to serve to a higher standard. Thus, in an interview with federal law enforcement agents, agents are free to lie to a person being interviewed if it serves the Government's interests. However, a person lying to the agents for any reason whatsoever is subject to a criminal prosecution. Put another way: it is all right for the Government to lie to you, but you go to prison if you lie to the Government. There is something askew about a legal regime which tolerates this moral asymmetry.

In Mr. Vitale's case, this imbalance is on dramatic display. The man is a self-confessed serial killer. He murdered not out of complusion or due to mental disease or defect. No, the bullets he pumped into the heads of his victims were "just business." His was cold and amoral work.

Mr. Vitale met his match when he sat down to come to terms with the Government. Two amoral beasts without conscience or real accountability to anything other than a bold and naked self-interest sat down and horse traded. Neither cared a whit for accountability so long as both got what they wanted. The Government, a legal fiction with interests of its own, sat down with a mobster and the two reasoned together. Somehow, it does not surprise me that the two came to such easy terms.

Mr. Vitale's story is worth telling as it reminds us that the law is not rooted in a strict moral philosophy requiring that all acts must be judged by their intrinsic worth or harm. The law is much more complex than mere moral theory. The law is about governing strangers in often violent confict with one another. That the Government sometimes sides with the violent and adopts patently immoral means is one of the prices we pay for civilization. We ought at least to recognize this sense of world-weary pragmatism for what it is and call it something other than justice.


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