Three weeks ago, the Explainer released the annual list of questions we were either unable or unwilling to answer in 2009 and asked readers to vote for the one that most deserved a response. By the time the polls had closed, more than 27,000 votes had been cast. (See the full results.) Before we get to the winner, let's review the runners-up:
In fourth place, with 1,627 votes, an inquiry into the tenuous nature of U.S.-Arab relations: Why do people in Arab countries insist on touching my beard, then taking the same hand and kissing their fingers in a sort of "Italian, it's delicious!" gesture?
In third place, with 2,107 votes, a question worth asking in the aftermath of the Christmas Day bombing: Are there really badass muthas like 24's Jack Bauer working for the U.S. government?
In second place, with 3,240 votes, a query that doesn't have much to do with anything: Why do auctioneers talk like that?
And finally, with 6,028 votes, the winner by a landslide and our official Explainer Question of the Year for 2009:
How would the law punish Siamese twins if one of the twins committed murder without the other being involved?
The answer: No one knows.
There isn't much case law to work with on this question, since in the United States, at least, conjoined twins represent something like 0.0005 percent of all live births—with an even smaller number surviving into adulthood. The conjoined twins who aren't separated at birth and do manage to grow up have so far tended to be more or less exemplary citizens.
That said, there have been a few recorded instances of conjoined criminality. By one account, the original Siamese twins, Chang and Eng Bunker, were arrested over a scuffle with a doctor who tried to examine them, but never prosecuted. Nor were they ever charged with bigamy, despite having taken two wives.
Then there's the case of the 17th-century Italian gentleman Lazarus Colloredo, who wore a cloak to conceal the protruding upper body of his brother Joannes Baptista. The historian Henri Sauval claims to have played the twins in a game of handball in Paris and that Lazarus afterwards boasted of having killed a man without repercussions, since his brother was innocent.
A more recent case concerned the Filipino twins Lucio and Simplicio Godina, who as children were rescued from a Brooklyn, N.Y., sideshow, and later toured the United States as the "only pair of male Siamese twins on Earth." In March 1925, newspapers claimed that Lucio had learned how to drive a car and been arrested after his vehicle grazed a carabao cart on a street in Manila. Simplicio supposedly appealed the case on the grounds that as an innocent man, he could not legally be incarcerated—and the judge let both twins go free. A similar story was reported in the New York Times in 1929: This time, Lucio was able to escape punishment for making an improper left turn in downtown Los Angeles.
These stories—true or not—reveal how difficult it would be to punish a conjoined criminal with an innocent twin. Let's say you wanted to throw the evil sibling in jail. There's no way to do that without incarcerating the good one as well (unless you convinced him to take a job as a prison guard). Is there any way around this problem?
The best analogy might be a pregnant convict, who, like our conjoined criminal, is physically attached to an otherwise innocent member of her immediate family. When you throw a pregnant woman in jail, you're locking up her fetus, too. (Indeed, something like 10,000 pregnant women are now in federal or state prisons.) At first glance, incarceration means little to a developing fetus, though, whereas an innocent, adult twin would suffer for it. On the other hand, there's some evidence that expectant mothers often receive inadequate prenatal care in prison. When an inmate finally gives birth, the baby is either taken away from her—which could be seen as its own form of punishment for the newborn—or it remains with the mother for up to a year in a prison nursery. Either way, the baby might be harmed by the incarceration of the mom.
It's not unusual for the courts to take such collateral damage into account when sentencing a defendant. A new book by the legal scholars Dan Markel, Jennifer M. Collins, and Ethan J. Leib looks at how "family ties" are (and should be) handled in the criminal-justice system. One part of their analysis concerns the practice of offering lesser punishments to those defendants who serve as caregivers for their families. Let's say you throw a criminal in jail and as a result, his innocent and sickly grandmother suffers without anyone to provide for her. In that case, you might be tempted to shorten the prison term or substitute home detention or supervised release. In fact, some state legislatures have expressly permitted these sorts of arrangements. (A recent study of criminal cases in Pennsylvania found that judges make a habit of going easy on caregivers.)