Last Friday, two California parole board commissioners recommended release for Sirhan Sirhan, convicted a half-century ago of the assassination of Robert F. Kennedy—then a senator and presidential candidate. Two of Kennedy’s eight living children—one of whom, Robert F. Kennedy, Jr., is a conspiracy theorist who maintains that someone else shot his father—supported the ruling. It also received the tacit endorsement of Los Angeles District Attorney George Gascón, the “progressive prosecutor” whose policy is never to send one of his attorneys to parole hearings.
Sirhan may yet remain behind bars. The two commissioners’ ruling is subject to review by the full board and to the veto of Governor Gavin Newsom, who could choose to deny parole. Six of Kennedy’s children, including former U.S. Representative Joseph P. Kennedy II, have called on both authorities to act against Sirhan’s release.
But even if Sirhan is not ultimately set free, his case will highlight a double absurdity of the criminal-justice-reform movement: that of ignoring the particulars of any case in staking out a universal opposition to tough punishment. It is this absurdity that led the state of California to fail to execute Sirhan 50 years ago and, in turn, to the possibility that he could be set free today.
Explaining his vote, parole commissioner Robert Barton cited new requirements to consider Sirhan’s age at the time of the crime (24) and his current health (deteriorating at age 77). He also weighed Sirhan’s prison education. This is a familiar logic of reformists: the offender was too young then to be culpable; now he is too old to be a threat; and anyway, he has reformed himself. It relies on a utilitarian theory of punishment: we punish to reduce the risk of crime, and when someone is no longer a risk, there is no reason to punish.
Such analysis can be useful as a policy matter, but Sirhan’s case demonstrates how it can slide into moral vacuity. By considering only general characteristics such as age and education, this logic obfuscates the particularity of the crime. Assassination of a political leader is a uniquely grievous offense. RFK’s death deprived not only a person of his life and a family of its father, but America of a leader. In punishing the assassin, the state takes retribution on behalf of both the individual killed and of itself, as the assassin by his action challenges the legitimacy of the state.
This obfuscation is Gascón’s fault. At Sirhan’s last hearing, in 2016, the D.A.’s office clearly stated its view that “the seriousness and the gravamen of the crimes committed by this prisoner are too abhorrent to justify his release.” This is a claim not about utility, but about the talionic consideration of justice—asking, before we weigh utilitarian factors, what an offender actually deserves for his crime.
To this retributive argument, some might retort that a 50-year sentence is more than enough punishment. But in the American tradition, the customary consequence for assassination has been either life without parole or death. The people of California apparently agreed when they sentenced Sirhan to the gas chamber in 1969. Had he been executed as promised, there would now be no debate about the legitimacy of his sentence.
But he was not executed, thanks to 1972’s People v. Anderson, the California Supreme Court case that invalidated the state’s death penalty as “cruel or unusual,” in contravention of the state constitution. In Anderson, the court similarly put aside the specific question of whether certain people deserve death, instead insisting on a general rejection of capital punishment. As a result, both Sirhan and Charles Manson escaped execution.
It’s in the most extreme situations that unsteady logic collapses. If your account of justice leads you to the conclusion that it is unfair to put Charles Manson to death, then the proper response is not to reaffirm your principles but to reevaluate them. Similarly, if your commitment to criminal justice “reform” leads you to conclude that it’s not even worth sending prosecutors to oppose the release of an infamous assassin, then your commitment needs reconsideration.
Sirhan Sirhan deserved a harsher punishment. But total commitment to a general theory of our justice system’s brokenness blinds California officials to the particulars of his case—and therefore to those of all cases. Justice, in the sense of giving each his desert, is first and foremost about particulars. It is impossible to achieve through generalities alone.
Editor’s note: This article first appeared at City Journal.