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Presidential Immunity: Must a Leader Be Above the Law?

The Supreme Court’s July 1st decision in Trump v. United States granted the president immunity from criminal prosecution for official acts. The ruling does not explicitly define “official acts,” but suggests a broad reading for which almost every use of presidential power is, at least presumptively, official. Nor, under the ruling, can presidential acts be investigated for unlawful intent.

Some legal commentators see the decision as a disastrous expansion of executive power. For others, removal of checks on presidential power is a feature and not a bug. Yet others see the decision as formalizing protections the president practically, if not by law, already had. For many, the general principles behind the decision are overshadowed by its potential use by Trump. But the ruling extends beyond any single president, so it bears asking: what exactly is immunity and why should the president have it?

Immunity is freedom from legal accountability, either civil (lawsuits) or criminal (prosecution, fines, and jail time). For example, prosecutors enjoy absolute immunity from lawsuits concerning their role as a prosecutor, even if they act in bad faith. Other officials, such as judges, likewise enjoy absolute civil immunity when doing their job (however dishonestly or maliciously). Police enjoy qualified immunity from lawsuits, which has some qualifications for flagrant and obvious rights violations. Many disagree with these strong immunity doctrines and worry they enable abuse of power.

In the United States, almost all immunity doctrines are examples of judge-made law. They cannot be found in the text of the Constitution nor in legislation. Instead, immunity has resulted from judges interpreting the law, especially Supreme Court decisions: qualified immunity for police in 1967 (and greatly expanded in 1982), prosecutorial immunity in 1976, presidential immunity from lawsuits in 1982, and now presidential immunity from criminal proceedings in 2024.

At face value, immunity doctrines run counter to foundational principles of good democratic governance. First, it is an important element of political equality that we are all equal before the law. Second, government officials acting dangerously or maliciously should be able to be held accountable. Third, individuals harmed by the government or government officials should be able to seek legal remedy for this harm. Immunity doctrines appear to undermine these important goals (equality, accountability, and redress). It does not follow that immunity doctrines are never acceptable, but they should be carefully justified and as limited as possible to avoid undermining good democratic governance. Can presidential immunity meet this challenge?

Some claim that the president already enjoys de facto immunity – the president practically enjoys this power even if it hasn’t been formally articulated in the law. One source of support for this view comes from a 1973 memo by the Nixon administration’s Department of Justice (conveniently) asserting that sitting presidents cannot be criminally tried. Departments of Justice since have kept this view.

But even if we accept sitting presidents have immunity from criminal prosecution practically speaking, this does not provide reason to formalize it. In fact, if we accept the principles of good governance listed above, it is perhaps better to dismantle the practical immunity of the president than enshrine it into law. Still this argument – and the history it points to – potentially serves to minimize the stakes. If the president really already enjoys de facto immunity, then codifying the legal practice is but a small change. Besides, there are potentially other ways to hold presidents to account. Election and impeachment both provide means of reigning in leaders who violate norms. Do we even need the law with these safeguards in place?

Assuredly, elections provide some form of accountability. But elections make presidents answer to the electorate, as opposed to, say, the rule of law. There is also a longstanding ethical concern in democracies referred to as “tyranny of the majority.” While we generally want democracies to be representative, there needs to be certain safeguards to prevent the majority from running rampant with popular support and trampling minority rights (a topic I’ve previously discussed). There are also practical problems. First, elections occur only once every few years. But perhaps more importantly, elections can be corrupted. In order for elections to act as a check on presidential actions, there must be robust protections for free and fair elections, otherwise a politician could undermine the very system which holds them to account.

Impeachment, on the other hand, is more immediate and solves some of the practical problems with elections as a form of accountability. However, like a failed election, the result of a successful impeachment is merely removal from office. While this helps to prevent abuse of the office, it does not deliver justice for wrongs done. Impeachment, by itself, still holds the president above the law.

Ultimately, both answers – impeachment and elections – share an obvious problem: Why can’t we have both these mechanisms and civil/criminal responsibility? For example, if you steal from your work, you can be both fired and prosecuted for stealing. The existence of one form of accountability does not speak against having others.

What is needed, then, is an argument decisively in favor of presidential immunity. Perhaps immunity is vital for effective function of the executive, keeping them independent and ensuring they act decisively? The Supreme Court deployed this reasoning both when rendering the president immune from lawsuits in 1982 and in their most recent decision on criminal immunity. The core idea is that if the president is constantly worried about being sued or prosecuted, then they may not act as boldly and unhesitatingly as the situation demands.

It is undoubtedly true that lawsuits and prosecution are checks on behavior. However, in most cases, we take this to be a good thing. Surgeons, for example, are required to take decisive action. Would, would we prefer a world in which they are immune from lawsuits and criminal prosecution? Certainly, there can be excess (many would allege that medicine has gone too far with malpractice lawsuits), but it does not follow that the only solution to excessive lawsuits is immunity.

Still, one might argue that the president is especially visible and their decisions impact many people – they are perhaps uniquely vulnerable to fears of a paralyzing flood of litigation. Perhaps if the Supreme Court made clear the president was not immune to lawsuits, the floodgates would open.

But even if we accept this chain of logic and assert that the president needs to be immune to lawsuits, the reasoning does not apply to criminal (as opposed to civil) immunity. While lawsuits are initiated by individuals, prosecutions are almost always initiated by government officials. Why should a president require that sort of protection? If the fear is possible corruption in the Department of Justice, then that demands either addressing the corruption or, at most, intervening in specific proceedings rather than granting immunity to an office.

Ultimately, presidential immunity is an extravagant solution with enduring consequences. At best it’s an overreaction; at worst, it’s a gross injustice. It undermines equality before the law, political accountability, and the provision of legal remedy, all to grant one of the most powerful people in the world even more power.

The Point of Prisons

Officer Derek Chauvin became infamous for the violence he perpetuated against George Floyd. The Black American’s death, while pinned under the knee of a white cop, launched nation-wide protests in 2020 and led to a 21-year sentence for Chauvin. Despite electing to go to federal prison instead of state prison for safety reasons, Derek Chauvin was stabbed on Friday, November 24th. As of November 26th, his survival seems likely, but the incident nonetheless bookends a story of government failure. First, violence was enacted by Chauvin as an agent of the state, and then violence was enacted against Chauvin while in federal custody. It also fits the arc of a national conversation about prison reform, both in terms of the sheer number of people incarcerated (over 2 million) and the conditions inside.

America must wrestle with questions about for-profit prisons, solitary confinement, prison understaffing, three strikes laws, felony murder, and racial bias in sentencing. But it is also worthwhile to take a step back and ask, not just how can we do prisons better, but what are we trying to do with prisons in the first place? For philosophers, this concerns our theory of punishment – the justification for the state inflicting harm, limiting freedoms, and revoking rights in response to acts it deems pernicious.

Imprisonment asserts the government’s right to exercise extreme and harmful power over people as long as certain conditions hold, especially being guilty of a crime. (The coercive power of the state is, in fact, employed well before incarceration, as the entire preceding legal process is also required.) This does not mean the situation cannot be justified. But given the scale of the harm, it behooves the government, and legal theorists, to have a good answer to the question: “Why are you forcibly detaining 2 million of your own people”?

Broadly speaking, there are two major goals we could have for our prison system. The first is the resolution of a societal problem, namely crime. (Although the more cynical among us might also point to poverty, unemployment, and homelessness as social problems that prisons help to “solve”.) The second is Justice – capital letter and all. The idea here is that imprisonment gives the guilty their due, balancing the scales of Lady Justice or signaling moral condemnation in some more metaphysical sense. These two major goals correspond with consequentialist and retributivist theories of punishment respectively (the author has previously discussed these in the context of environmental crimes).

People can of course hold onto each of these goals simultaneously, and our current system is not a pure reflection of either one, but a chimera of both theories, inherited historical practices, and political convenience. The challenge is that consequentialist and retributivist theories of punishment paint a very different picture of what prisons should be.

Perhaps most significantly is that the consequentialist is not necessarily committed to prisons and punishment at all. Classic consequentialist defenses of imprisonment are that it deters crimes, takes dangerous people off the street, and can help to reform criminals. These are all arguments for the way punishment can prevent crime. The consequentialist, however, can also argue that crime prevention is better served by increased non-punitive resources, such as improving education and investing in anti-poverty programs. Put differently, the consequentialist is interested in whether prison represents the best way to address crime in a particular context and, depending on the answer, adjusts social policy accordingly.

Consequentialists also need not be committed to making the prison experience miserable for the incarcerated. If evidence demonstrated that harsher environments or longer sentences served as a better deterrent or improved rehabilitation, this would provide the bones of a potential consequentialist argument – although current evidence does not support this. If instead the aim is simply to remove dangerous people from positions where they can cause harm, then there is no reason prison should involve additional suffering beyond captivity. In fact, consequentialist reasoning seems to dictate that we should minimize inmates’ suffering as much as possible while pursuing our greater societal ends.

For retributivism, by contrast, suffering is the point. Modern society has placed certain constraints on what is an acceptable punishment, but the core idea of retributivism is often still an eye for an eye – albeit understood in terms of years in prison. Retributivist theories also pay attention to individuals in a way that consequentialist approaches, which are focused on larger social goals, do not. In this way, retributivism can also be responsive to the desires of victims or their families in seeing justice done and scratching an emotional itch for resolution.

Not only do retributivism and consequentialist theories of punishment arrive at vastly different answers as to what imprisonment is for, but the core of each approach can represent a deep moral failing from the other perspective. To the retributivist, who wants to give the guilty their due, the social tinkering of the consequentialist neglects considerations of justice and desert altogether. To the consequentialist, the mysterious moral calculus of retributivism smacks of vindictiveness and Old Testament brutality.

As we have seen, retributivist and consequentialist approaches can sometimes be brought into alignment. For example, the consequentialist may like imprisonment because it isolates dangerous criminals, and the retributivist may like imprisonment because it’s miserable for the guilty party. However, this alignment is very dependent on the facts on the ground. As the evidence shifts, and the consequentialist begins to doubt the effectiveness of long sentences as grounds for rehabilitation or deterrence, so too does their image of what prison should be change. It is optimistic to assume that there is an account of what prison is for that conveniently fits the different goals of both consequentialist and retributivist approaches to punishment.

However, not all aspects of the prison system need to be beholden to the overarching theory of punishment. For example, the retributivist may agree that once the state has taken someone into custody via imprisonment, then they have a responsibility to ensure their safety from other prisoners. There are also features of the criminal justice system that attach to neither theory of punishment. For example, restorative justice (see a previous discussion in The Prindle Post) seeks to make whole both the victim and the perpetrator of crimes and can be paired with either consequentialist approaches or retributivist approaches.

Certainly there is a good deal of shared ground for broad aspects of criminal justice reform, including that cops should not kneel on people for 9½ minutes, that prisons should be adequately staffed, and that inmates should not be getting stabbed. And then there are more contentious questions about which crimes deserve prosecution, when minors should be charged as adults, and what kind of evidence warrants the death penalty. Answering the tough questions and deciding hard cases requires genuine, sustained reflection about what precisely we want our criminal justice system to do and what exactly we hope to accomplish. As it stands, current design remains at odds with stated purpose.

Trump’s Indictment and Equality Before the Law

close-up photograph of Lady Justice statue's blindfolded face

The response to Donald Trump’s indictment has followed an unsurprising formula. Republicans, predictably, have called the indictment an outrage, the weaponization of politics, and (to add some gratuitous antisemitism) the vindictiveness of a Soros-backed District Attorney. Democrats, equally predictably, have pointed to the indictment as proof that “no one is above the law.” Left and center-left pundits have followed suit: here is evidence, they tell us, that our justice system works, and that even the wealthy and powerful cannot escape judgment. And yet, no matter how many times this cliché is repeated, it is hard to shake the reality that repetition conceals. A lingering doubt remains: if no one is above the law, why does it take so much effort to prove it? Maybe the opposite is true, and this indictment is merely the exception that proves the rule.

Writing for The Atlantic, David A. Graham has spelled out the thought succinctly: “An indictment of the former president, followed by orderly due process, would show that no one is immune to following the law simply because he is famous, wealthy, politically powerful, willing to threaten the justice system, or possessed of intemperate and powerful followers.” Clearly, this is the lesson many liberals want us to learn, and if they weren’t busy trying to pretend Trump is just another law-abiding citizen, no doubt Republicans would be happily jumping on this bandwagon as well. After all, “Law and Order” is a mantra they usually like, and it’s a mantra that would hardly have much electoral appeal if it were clear that while no one is entirely above the law, some people are very much more above it than others.

But the sequence of events seems to suggest a very different lesson. During the four years of Trump’s term as president, we routinely witnessed potentially criminal behavior. The first government investigation of one small piece of this behavior — the Muller report — presented stark realities that were largely buried only thanks to an Attorney General openly lying about its findings. Trump was the first president in American history to be impeached twice, once for blackmailing a foreign leader for his own political benefit, and once for attempting a coup. But the impeachments were quashed by Senators cringing in terror of their constituents.

And yet this isn’t the really damning part; this is politics, we might think, which shows us nothing about our justice system. Yet those four years — as well as the run-up to the 2016 election — were also filled with investigative journalists sending us a constant stream of reports of Trump’s past financial crimes; indeed, the Trump Organization has recently faced legal attacks and the threat of dissolution stemming from those past misdeeds. But all this naturally raises a question: if Trump’s presidential ambitions merely capped a lifetime of criminal activity, where was justice then?

The Republican refrain is that this indictment, like the ongoing investigation into Trump’s handling of classified documents, the investigations of his multiple efforts to stage a coup, and the investigations and convictions of the Trump Organization, is politically motivated. That certainly seems right, if what it means is that Trump’s actions have generated intense pressure on public officials from their constituents to take enforcement action instead of looking the other way despite repeated and brazen violations. But if that’s damning, it isn’t damning of the indictment or the investigations, but of the vast legal silence that preceded them. What was justice doing before Trump grew bored of real estate, steaks, and reality television and decided to play politician?

Look at the extraordinary lengths Trump has had to go to for indictment to even become a serious possibility. These lengths are literally historically unprecedented: he had to run for president, win, engage in years of corruption leading, among other things, to the two aforementioned impeachments; he had to attempt a coup, both by trying to intimidate election officials and by sending an armed mob to hang his vice president. He not only removed top secret documents from the White House, but repeatedly refused official requests to return them and, to all appearances, returned some and lied by insisting all had been returned. And yet, after all this, we still faced a steady stream of headlines about the perils of any indictment rather than its necessity, and about resistance to criminal investigations rather than reflections on how overdue they were. As Adam Serwer notes, far from the bizarre picture in some circles of the FBI as overrun by woke Trump-hating communists, in reality many agents in the Bureau were highly resistant to the prospect of raiding Trump’s residence to search for documents. Again, Trump didn’t just have to break the law to face real criminal investigations; he had to break it over and over, in the open, in blatant and unconcealable ways, from what may well be the most visible position of power in the world.

The barriers to Trump’s indictment, then, are obviously great; he had to work hard to overcome them. This is not true of most Americans, who lack protection from investigation, prosecution, and occasionally arbitrary arrest and state violence. And so the picture we walk away with falls far from the cliché that no one is above the law. The system of justice, it may seem, exists to police most of us and keep us in line, but some are above it, perhaps sacrificed on very rare occasions to make the point that justice is fair, but otherwise almost entirely untouched unless their crimes become so absurd and so visible that law enforcement agencies cannot avoid taking action.

When someone uses Trump’s indictment to tell you that no one is above the law, we should ask why they’re using this particular case to make that point. Are there so few cases that anyone wanting to shore up the credibility of our justice system must rely on egregious examples? Or, more charitably, is it an attempt to reinforce failing norms? If the latter, then the lesson is surely that we require a large-scale reform of our justice system: if we genuinely want people to believe not just that Trump’s indictment is well warranted, but also that our justice system is impartial, then we should focus on making it fair and transparent. This may involve closer scrutiny of prosecutors’ decisions not to pursue cases against wealthy criminals carried out by a federal agency (rather than simply investigative journalists, whose reports largely have an effect only if enough voters read them) in order to form a clearer picture of how such decisions are made and look for fixes. At the very least, a focus on ways to remove roadblocks to district attorneys’ will and ability to undertake enforcement actions, even in the absence of political pressure, may help prevent future Trumps from coming our way.

Elizabeth Holmes & the Right to a Trial by Jury

photograph of empty jury box

Elizabeth Holmes’s treatment by the criminal justice system was substantially different from the treatment most criminal defendants receive. Was she the beneficiary of white privilege, or perhaps what anthropologist David Graber called “the communism of the rich”?

Holmes had been widely hailed as the world’s youngest self-made female billionaire, but in November of 2022, the founder and former CEO of Theranos – a medical technology company – was convicted on one count of conspiracy to defraud and three counts of fraud. In total, she was convicted of defrauding investors of over one hundred forty million dollars.

Prosecutors argued that Theranos’s technology, meant to dramatically reduce the amount of blood drawn for tests, did not work – and she knew it. Theranos actually lost more like six hundred million dollars of investor funds, but the jury deadlocked on three of the charges and she was acquitted on four others.

The prosecutors could have retried Holmes on those three charges, but, even before sentencing, they announced they were dropping them. The judge had the option of sentencing her to twenty years on each count, and letting the counts run consecutively, which would have meant an eighty-year sentence. She was sentenced to eleven years.

The trial was delayed to allow Holmes to give birth, though an estimated 58,000 women are sent to prison while pregnant every year. Now that she’s been sentenced, she is still free on bail awaiting an appeal even though she was recently caught booking a one-way plane ticket to Mexico. (Her bail, by the way, is $500,000.)

Some legal commentators argue that her treatment has not been that unusual, at least for “someone like Holmes, who is not a danger to society.” Which might make one wonder who, in general, constitutes a danger to society and who does not.

That question seems especially salient since, in California (where Holmes was tried), the potential punishment for stealing anything over $950 is three years in jail and a $10,000 fine. The bail in felony theft cases is typically between $20,000 and $100,000.

On the other hand, concurrent sentences are not unusual and the maximum sentence is rarely the one applied. Delays and postponements of various types are not atypical. Arguably, the most striking discrepancy is in the amount of bail.

However, even if Holmes’ treatment has been unfairly lenient, nothing mentioned so far touches on the most significant inequity. The fundamental unfairness that now underlies the criminal justice system of the United States is invisible to most of us, most of the time.

What Elizabeth Holmes received, because of her wealth and privilege, that almost no one else in America receives, is a jury trial.

Arguably, the right to trial by jury is the oldest and most essential right. The Magna Carta declared, “No man (sic) shall be taken, outlawed, banished, in any way destroyed, nor will we proceed against or prosecute him (sic), except by the lawful judgments of his peers…” The importance of jury trials to liberty was one of the few things on which Thomas Jefferson and James Madison agreed. Jefferson regarded trial by jury “as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution,” while Madison, the author of the Constitution wrote, that it “is as essential to secure the liberty of the people as any one of the pre-existent rights of nature,” including freedom of religion and speech.

Yet, only 2% of the 80,00 people charged in federal courts in 2018 received a jury trial. The states do a little better, but consistently less than 5% of defendants in state courts get a jury trial.

We often speak very abstractly about rights and freedoms. But it is in the application of criminal and civil law that the power of the state – to take your money, your freedom, even your life – becomes terrifyingly concrete. Yet, modern political philosophers have had very little to say about the moral and democratic significance of juries. They have focused almost exclusively on the epistemic value of juries; that is, on how well juries succeed at getting at the truth.

The most influential epistemic argument, Marquis de Condorcet’s “jury theorem,” shows, in a rigorous way, that (i) on an issue with two alternatives, (ii) where a decision is made independently by each participant, (iii) and there exists an objectively right decision, (iv) assuming each decision-maker has even slightly greater than 50% chance of making the right call, a group of 5 or more people have a high likelihood of making the correct decision – and a group of 12 even higher.

The trouble is that not all these conditions hold. For example, jurors do not make their calls independently. They deliberate. Nor is it clear that the typical juror has a better than 50% chance of getting the verdict right. The empirical evidence on the epistemic value of juries is mixed, although some studies suggest that juries seem to do not too bad (to put it scientifically).

Accuracy, however, is not the issue. Juries are a requirement of democracy.

“Rule by the people” requires that a representative sample of your fellow citizens stand between you and the state as a buffer on the application of state power in its most literal form: the power to use violence to arrest and/or detain you or deprive you of property.

Without juries, the state becomes the sole arbitrator, not just of the law, but of the facts. Even if juries don’t succeed at getting the facts right, at least in a jury trial the facts are not controlled solely, and entirely, by the state.

Why so few jury trials then? Well, 97% of federal cases and 94% of state trials are settled instead by plea bargaining. Among the tools deployed to obtain a plea while avoiding a jury trial are holding people in indefinite detention with an unaffordable level of bail, charging the accused with more, and more serious, charges than their actual conduct would merit (“overcharging”), and onerous mandatory-minimum sentences.

Why is it this way? Cost is undeniably a factor. A trial in federal court costs over half a million dollars. If every felony charged in 2021 resulted in a jury trial, the cost to the state would exceed twenty-eight billion dollars. On the other hand, twenty-eight billion dollars is only one third of one percent of the federal budget in 2021. If we don’t want to pay that much for jury trials, maybe, we should look for ways to deal with social problems that don’t involve imprisoning people.

In any case, whether Elizabeth Holmes “bought,” or received, special treatment is debatable, but that she is better off than most of us because she could afford a jury trial is not.

Juvenile Justice: Charging Minors as Adults

close-up photograph of youth in handcuffs

Children should be treated differently from adults by the criminal justice system. They should be treated more leniently, and this includes how they are treated by the police, judged by the courts, and – most obviously – the punishments they are given.

I take it that most people believe this, at least to some extent. Nobody thinks that a five-year-old who steals a Mars bar deserves the same punishment as an adult. But when a child commits a heinous crime, we are often far too quick to abandon our commitment to treating kids fairly.

Just last week, another school shooting saw four children die in Michigan. The shooter, a fifteen-year-old boy, has been charged as an adult. Even though rates of children being charged as adults are falling, estimates say that 50,000 children a year are still charged as adults. Recently, in upstate New York, Eric Smith was released after 27 years in prison. Smith was charged in the juvenile courts, yet while headlines mentioned that he was a child killer, they failed to mention that he, too, was a child. If kids should be treated more leniently, then the reactions in these cases by the prosecutor and press are flawed.

One might think that sometimes crimes are so heinous that kids deserve to be tried as adults. Perhaps some crimes are so egregious that they deserve the strictest possible punishment, and perhaps the state needs to communicate that some crimes are hideous, or perhaps some crimes suggest someone is beyond rehabilitation. But I also suspect that, often, calls to punish kids as adults are based on a mistake: that because the act is heinous, it deserves the severest punishment. And I think we should push back against this. Let me try to explain, by exploring why we should be lenient to kids in the first place.

The obvious starting point is that the criminal justice system is part of the state, and the state treats kids differently from adults all the time. Thirteen-year-olds can’t drive, seventeen-year-olds can’t smoke, twenty-year-olds can’t drink (though, absurdly, they can give their lives for their country). And why are kids treated differently by the state in all these other domains? The obvious answer is: kids are less mature; they can’t be trusted to make informed decisions about the risks involved in smoking, drinking, and driving. They aren’t quite as able to see why what they are doing is wrong and they possess less self-control.

If kids are less mature – as they so often are – then shouldn’t they be treated more leniently for their crimes? If we think that, roughly, how much you should be blamed should match how responsible you were for the bad thing that you did, and if we think that kids are less mature and thus less responsible, the answer seems to be obvious: yes, of course kids should be treated more leniently.

We can nuance this argument further. One point worth discussing is that our brains do not mature until we are 25, so this might even suggest we should be lenient to people who are traditionally classed as adults. But we might want to allow for a cut-off, here: we might think that, although they are not fully mature, 23-year-olds have a suitable enough knowledge to be treated like adults. When is a kid mature enough to be punished as an adult? That’s a point for debate, and it might also be true that some kids should be punished more like adults than like kids. But I take it for granted here that if we have a distinction between punishing as a juvenile and punishing as an adult, we can roughly sort offenders into one of two camps.

It’s also worth noting that this argument does not – as is briefly discussed here – claim that kids do not know right from wrong. That would be absurd: kids clearly do sometimes know they are doing wrong. Yet kids might know something is wrong but not fully appreciate the wrongness, they might not quite grasp why it is wrong. And kids might know something is wrong but be less able to resist it than adults.

But what about if a kid is as mature as an adult? Gideon Yaffe thinks that we should start from the supposition that kids should be treated more leniently, yet the above argument fails since it allows for some kids not to be treated more leniently. For instance, if a kid is morally mature, according to this argument they should be punished just the same. (Yaffe’s answer is interesting: kids can’t vote, and he thinks criminal responsibility tracks how much say we have over the law. But that is too much to go into here.)

I don’t think I buy Yaffe’s argument. It seems plausible to me that if a particular kid is fully mature, then perhaps they should be punished like an adult. Though there is an argument that it might be too hard to discern if a kid is mature enough, and we should just always treat kids as though they are not mature enough for full criminal punishment. (And it is also worth noting that such a consideration does not apply to the cases we are discussing. The Michigan shooter was plausibly suffering from mental disorders, as was Eric Smith – so his lawyer argued. So charging either of those as adults seems flawed, especially when mental disorders also tend to require more lenient punishments.)

Yet even if there is an exception so that mature kids are punished like adults, there is no principled exception to say that kids who do awful things should be punished like adults.

But, the retort goes, what they did was so heinous they must be punished as strongly as possible. This rests on a mistake. Our argument does not turn around what was done but who did it. In one of the greatest pieces of modern moral philosophy, P.F. Strawson made this point. If you tread on my toe, the pain is the same, but the level of blame I give you will differ depending on whether you accidentally trod on me or whether you did it maliciously.

We can grant that a murder is heinous, whilst still holding that children who perpetrate these acts are owed separate consideration. The thing they did was heinous, but their doing it was less heinous than if an adult had done it. To charge kids as adults requires more than just pointing to the fact that what they have done is awful. It requires showing that they deserve to be punished like adults, despite the prevailing assumption that they are less mature, and so a lesser punishment is appropriate.

Niti, Nyaya, and Kyle Rittenhouse: One Kind of Justice Is in the Details, but the Other Isn’t

photograph of courthouse columns and sky

On November 19th, roughly two-and-a-half weeks after his trial began, Kyle Rittenhouse was acquitted of all charges levied against him for killing two people; after twenty-seven hours of deliberation across four days, the jury decided that Rittenhouse’s claims to self-defense were justified and thereby legally absolved him of his responsibility for the deaths. While some might have been surprised by the verdict, legal experts generally were not; as The Prindle Post’s own Benjamin Rossi explains, the facts of the case — when set apart from the many, many partisan performances flashing around this trial — led to a relatively plain judgment, given the relevant laws in question: “…certainly in a procedural sense, and at least partially in a substantive sense, the verdict itself was not a miscarriage of justice.”

But, if I can briefly evoke Socrates before Thrasymachus here, what is ‘justice,’ anyway?

To listen to much of the commentary following the wake of the Rittenhouse verdict, ‘justice’ is a matter of careful adherence to the regulations of the justice system, with the understanding that said institution has been carefully crafted in a way that produces just results. This is, I take it, what we mean when we refer to justice in a “procedural sense” — it indicates that the processes and procedures undertaken to render the verdict were proper, so we can therefore be confident that the defendant’s rights and interests were protected throughout the trial. Insofar as those defendant-protecting processes constitute the “due process” owed and doled out fairly to all accused people in the system, then, this view of justice focuses on the arrangement of the institution and the technical application of its mechanisms to determine whether or not justice has been done.

This is markedly different, though, from the broader, perhaps more philosophical (or at least less-technical), sense of ‘justice’ as the realization of a just society or world filled with people who behave and are treated well, all things considered. To be concerned about ‘justice’ as a matter of promoting a flourishing community filled with well-respected individuals is far more complicated than merely maintaining a focus on the operations of particular social institutions (like the legal system), but it is, arguably, what we actually care about at the end of the day.

This distinction between an “arrangement-focused” and a “realization-focused” view of justice plays a key role in the work of philosopher, economist, and Nobel-prize winner Amartya Sen; calling the former niti and the latter nyaya, Sen points out that both of these are key concepts for socio-political theorists to consider, but that the latter should hold a priority. Both niti and nyaya are classical Sanskrit terms for ‘justice,’ but niti focuses primarily on technical applications of “organizational propriety” while nyaya is the more comprehensive concept upon which a “just society” can be recognized; so, in The Idea of Justice, Sen argues that “the roles of institutions, rules and organization, important as they are, have to be assessed in the broader and more inclusive perspective of nyaya, which is inescapably linked with the world that actually emerges, not just the institutions or rules we happen to have.”

Consider, for example, another imaginary case of Brian the 17-year-old who has been forced to regularly steal from his local grocery store to provide food for himself and his younger sister after his parents were hospitalized in a car accident. Knowing that thievery is illegal, we might simply conclude that Brian is a criminal and charge him accordingly; the hunger felt by Brian and his sister is regrettable, but it is well outside the scope of what niti is designed to care about. If you would hesitate to charge Brian with a crime, or even harbor a desire to see that the court system treat him with leniency, given the mitigating circumstances, then this likely stems from your desire to see nyaya (rather than just niti) upheld: we moral agents can recognize the difference between malicious or self-centered embezzlement (of the sort that anti-theft laws are typically designed to prevent) and Brian’s desperate attempt to care for his sister, even though Brian’s actions still violate the letter of the law. In a similar fashion, Sen illustrates the niti-nyaya distinction with a reference to the Holy Roman emperor Ferdinand I who (in)famously declared “Let justice be done, though the world perish”; says Sen, “if indeed the world does perish, there would be nothing much to celebrate in that accomplishment,” no matter how much niti might have been respected along the way.

What, then, of the Rittenhouse verdict?

It seems clear that, in terms of niti, justice might well have been upheld regarding the specific question of the killings for which Rittenhouse was charged. The morality of killing in self-defense is a wrought notion, but the legal precedents regarding its allowability are well-established and, by most accounts, the actual proceedings of the Rittenhouse trial centered almost entirely on these concerns.

But it is not at all clear that the Rittenhouse verdict protects justice in the sense of nyaya — indeed, the problem for many is that it can’t.

According to Rittenhouse, he drove to Kenosha, Wisconsin (from his home about 20 minutes away in Illinois) to serve as a “medic” for people trying to “protect businesses” from protestors after police officer Rusten Sheskey repeatedly shot Jacob Blake in the back a few days earlier. Although misrepresentations of the details have abounded, as Rossi points out, those details matter: although Rittenhouse did cross state lines to get to Kenosha, his rifle was already in Wisconsin waiting for him. Although the relevant regulations are complicated, if the gun was purchased illegally (as it apparently was), the blame falls on the purchaser, not on Rittenhouse; moreover (despite the intention of the law in question probably pertaining to hunting contexts) Rittenhouse was, technically, apparently acting legally by wielding it in public as he did.

Or rather, those details matter for procedural reasons. Although questions of the gun’s legality might not pertain directly to the charges Rittenhouse faced regarding the deaths he caused, we might still wonder why he chose to arm himself heavily and insert himself into the situation in Kenosha in the first place. We could, for example, doubt that the protestors in Kenosha ever posed an actual threat to businesses or anything else (indeed, with the exception of Rittenhouse’s shootings, the Kenosha protests — like most protests — were quite peaceful); it’s not clear why anyone on the streets of Kenosha would have actually needed either rifles or medics in August 2020. That is to say, it seems perfectly reasonable to think that Rittenhouse was breaking no laws by being in Kenosha on August 25th, 2020, and yet he still had no good reason to be in Kenosha.

And, of course, if he hadn’t chosen to go to Kenosha, then Rittenhouse wouldn’t have been in the situation where he feared for his life and was forced to act, according to the jury, in justifiable self-defense. But this focus extends far beyond the niti-based concerns of the legal system to broader questions about how we want society to operate, how we hope people will freely behave, and how we desire for virtuous individuals to flourish and help those around them to flourish likewise. On its own, “traveling to Kenosha” seems morally neutral, but “traveling to Kenosha because I should protect it — possibly even with violence — from the rioters threatening it” is a perspective loaded with serious moral assumptions and judgments that are not clearly virtuous. To criticize Rittenhouse’s actions in this broader sense (beyond simply asking “was he legally allowed to pull the trigger at the moment he chose to do so”) depends on one’s much richer perspective about what constitutes nyaya, or justice fully realized, altogether.

Consider this from a different perspective: the marches over the shooting of Jacob Blake were not protesting niti-related procedural infelicities that merely treated Blake inappropriately: they were outcries about the nyaya-based injustice of yet another black man (Blake) being attacked by a white police officer (Sheskey) and, in this case, left paralyzed (Sheskey faced no charges for shooting Blake). As many have pointed out, if Rittenhouse himself were not white, his trial — to say nothing of his arrest — would likely not have proceeded exactly as it did (nevermind the multiple literal job offers Rittenhouse has received since). So, although the niti-based details of the Rittenhouse trial might not have substantively included race, the nyaya-based context of the broader conversation certainly does: Rittenhouse’s experience is just one more example of the deference shown institutionally to specifically white bodies: a clear violation of nyaya, no matter how much it comports with niti.

In short, it seems clear and uncontroversial that people can commit injustices without technically breaking laws (consider how folks might escape just punishment on some “legal technicality” or other). Sen’s distinction between niti and nyaya can help us to speak more clearly about the dissatisfaction we feel at those times, even if technical procedures are perfectly honored. The problem might well lie in the broader, unjust context altogether.

The Ethics of Pardoning

photograph of Trump pardoning Thanksgiving turkey

Back in October, I read the single greatest news article that I have ever read. It had everything you could want in a story: courage, a murderer turned hero, a thwarted terrorist attack, the London Bridge, a narwhal tusk, and a royal pardon. If you have not already read the article, you absolutely should; each paragraph is better than the one before.

But the story is not only a thrilling and satisfying narrative, it also provides us an excuse to talk about the ethics of pardons. This is a good thing, because I expect that, as happened in previous presidential administrations, we will see a flurry of presidential pardons before president-elect Biden is sworn in. It is always a good idea to think carefully through your principles before there is some controversy where you need to apply them. Otherwise it is far too easy to shift into principles that end up siding with your political tribe after a controversy arises.

Black’s Law Dictionary defines a pardon as “the act or an instance of officially nullifying punishment or other legal consequences of a crime.” In the United States, the power to pardon is possessed by the executive. The president can pardon federal crimes, while governors can pardon state crimes.

When we look at the ethics of pardoning, there are two types of questions we might ask. We might wonder about how extensive the power to pardon should be. These are questions framers ask when structuring a constitutional system. An example question is whether the president should be empowered to pardon him or herself? We might also wonder whether any given pardon is a good idea. These are questions that the executive branch asks before issuing a pardon. An example question is whether President Ford should have pardoned President Nixon. Note that these two questions come apart. Just as I can simultaneously think it is a really bad idea to own a gun and also think people have extensive rights to own guns if they choose to, so I can think that most pardons are a bad idea and yet also think the president should have broad power to pardon.

There are fascinating questions about how extensive the presidential power to pardon should be. But here I want to look at the second set of questions. Suppose that the president is empowered to pardon someone, when is it appropriate to exercise that power?

One context where pardoning might make sense is when the president believes a criminal trial was unjust, either in process or outcome. A recent example of this is President Trump’s posthumous pardoning of the Boxer Jack Johnson. While there are many checks internal to the judiciary, the presidential pardon is probably the largest external check on incorrect judicial decisions.

Another context where pardoning seems justified is where the judicial branch properly applies the law, but where peculiar circumstances make the application of the law unjust. This is the justification for the presidential pardon given by Alexander Hamilton in the Federalist Paper No. 74. Alexander Hamilton explains the power to pardon is important because criminal codes have a “necessary severity” and so “without an easy access to exceptions in favor of unfortunate guilt” justice would often end up too “cruel.”

Of course, neither of those two justifications are operative in this narwhal story. According to the NYTimes, in the U.K. “pardons for early release are generally recommended by officials in exceptional situations, such as if a prisoner risks his safety to prevent death or serious injury to another.” Here, the idea is that pardons might be a way to recognize something particularly remarkable about an individual.

And indeed, many pardons do seem to track something about the individual. For example, it is not uncommon that famous people are much more likely to receive pardons for crimes. This may in part be in recognition of their accomplishments, but it is also simply a consequence of being much more likely to be brought to executive attention.

This brings us to one of the biggest worries about the use of pardons, namely that they are idiosyncratic and thus seem in tension with a commitment to equal treatment under the law. Suppose I am also in jail in the U.K. for murder. It could be that I, like Steven Gallant, turned my life around, am close with my child, and act as a role model and mentor. However, none of that will be enough to secure a pardon, I also need to have the opportunity to do something heroic. Opportunities for heroism, however, are not evenly distributed throughout society. And thus some people will have access to pardons that others do not, merely as a matter of luck.

Indeed, this worry about the idiosyncratic nature of pardons applies even to pardons designed to act as a check on the judiciary. This issue is examined in detail in The West Wing episode “Take This Sabbath Day.” President Bartlet faces the question of whether to commute the sentence of a man soon to be executed. President Bartlet, who is Catholic, believes the use of the death penalty is unjust. However, he also worries about punishment for a crime changing based on the beliefs of whoever happens to be president. Toward the end of the episode he expresses his frustration:

“I commute this guy, for no particular reason other than I don’t like the death penalty . . . And the next president sees it in a different way. . . .  We cannot execute some people and not execute others depending on the mood of the Oval Office. It’s cruel and unusual.”

So what should we think about this worry concerning equal justice?

It is actually a tricky legal principle. Is it unjust to give a good thing to one person, if you cannot also give the same good thing to others who are equally deserving? Obviously, certain motivations for giving the good thing only to some people are unjust. For example, if you pardon one person and not the other because the one person is famous, then you are doing something wrong. But what if you would be willing to pardon anyone in that situation, you just know you will only hear about famous people. Then is it still unjust to pardon the famous? This question has important parallels. It would be unjust if I chose to only give money to white beggars and not to black beggars. But would it be unjust if I gave money to every beggar I see, I just also happen to live in a part of town where almost all the beggars I see are white?

It seems plausible that in the interpersonal case, one does not need to be too concerned about the unequal application of personal charity. However, it also seems plausible that in cases of criminal law, we have special reason to maintain not just justice before the law, but also the equality of all persons. It matters, if for no other reason that it not look as though the rich and famous get access to extra opportunities to avoid punishment.

If you think that it is important that everyone have an equal chance before the law, then the use of the power to pardon should be extraordinarily rare. If, instead, giving a good thing to someone is still good, even if you can’t also give it to another, then probably the presidential pardon is an underutilized tool.

Under Discussion: Law and Order as Suppression and Oppression

photograph of police in riot gear in Portland

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Law and Order.

In the last four months, there have been protests every day in support of the Black Lives Matter movement. Despite an estimated 93% of these protests being peaceful, there have been continual calls for “law and order.” Trump tweeted as much and emphasized the need for it during his speech in response to recent protests in Kenosha, and now both he and presidential candidate Joe Biden have campaign ads promoting law and order.

When leaders focus on public safety during nationwide protests, this shifts the attention from the cause, motivation, and aim of the protests. For instance, consider a case in Kenosha, WI. Protests began after police shot Jacob Blake seven times in the back. Blake was an unarmed Black man returning to his family in his car. 17-year-old Kyle Rittenhouse travelled to Kenosha, allegedly to protect local businesses from the protesters and ended up killing two men.

But the Kenosha Sheriff, who was called to apologize for a racist rant in 2018, emphasized that the shootings would not have happened if Kenosha’s 7pm curfew had been respected. His words shifted attention from the shooter to the policies in place to ensure public safety. This spreads the blame for the murder of the protestors to include the victims as well as Rittenhouse, who had arrived from out of state with an AR-15-style rifle. (The ACLU is calling for the sheriff to be fired.)

When “law and order” is the story, the fact that “law” has never been meted out in any sort of even-handed fashion isn’t the story. When there have been months of Black Lives Matter protests, and the response is to call for “law and order,” this should give pause. The structure of law is saturated with practices that guarantee that its protections and penalties will not ensure the safety or dignity of Black members of our country. At every stage of its production and execution, “law and order” is something worth working to change.

Representatives making the law in Congress are disproportionately white. (Though the 116th congress is the most racially and ethnically diverse congress ever, it is only 22% non-white; 39.9% of people in the US are non-white according to the last census.) Further, voting for the representatives who make the law is easier, and designed to be easier, for white people. (After a 2013 Supreme Court decision struck down the Voting Rights Act, over half of the states have added policies that make it more difficult to vote, disproportionately affecting non-white voters. In the end, the system of law-making is bent towards white interests and white voices. And the justice system reflects this as well, both in the first contact it can make with individuals (the police), and the disparate consequences of this contact. Over-policing leads to the disproportionate arrests of Black and Latinx people living in the US. The use of forensic evidence that isn’t scientifically valid and biased for the prosecution, added to the practice of peremptory exemptions stack the deck against defendants in trials. When previously incarcerated people can’t vote, and incarcerated people are disproportionately Black due to these and other systemic problems, there are deep issues with the structure order of law.

But this summer, what are the protests around the country protesting? Not necessarily these legal institutions directly. Rather, the pattern of violence and brutality aimed at Black men and women by the police that has gone unchecked, that has only grown more and more blatantly obvious. The policies and practices of the police force have meant that the patterns of violence have continued. Ahmaud Arbery, George Floyd, Breonna Taylor, Elijah McClain, Jacob Blake, Daniel Prude, Mychael Johnson, Tony McDade and Wilbon Woodard are just some of the Black people murdered by police officers in 2020.

Appealing to “order” in the face of institutionalized oppression and a lack of indication that law or order will address the violence and lack of accountability is disingenuous, negligent, or hateful. The “order” that the leaders call for characterizes the protests as problematically “disorderly” instead of focusing on the cause for the protests disrupting the order. When paired with the value of “law,” these appeals ignore the failure of the legal system to serve rather than suppress members of our community.

This context might be different if the calls to law and order were redirected to law enforcement. The human rights violations during the protests brought the racism in the United states to the attention of the UN Human Rights Convention. Laws protecting the rights of journalists and medics were blatantly ignored, as police targeted them with the same tear gas and rubber bullets they assaulted other peaceful protesters with. Just in the time between May 26th and June 5th, Amnesty International documented 125 examples of police violence against protesters. The organization also found that the protesters’ human rights were repeatedly violated and documented acts of excessive force by police and law enforcement.

Ultimately, calls for “law and order” fail to acknowledge the grave injustices that got us here in the first place: the enforcers of law and order acting as tools of racism and violence. The response to the protests only highlights the need for the protests in the first place.

The Pardon of Alice Marie Johnson

photograph of Alice Johnson being granted clemency at State of the Union in 2018

The 2020 Republican Convention featured dozens of predictable guest speakers, many of whom have been President Trump’s closest allies and defenders. However, a speaker that came as a shock to many was criminal justice advocate Alice Marie Johnson. Johnson, who had her sentence commuted by Trump in 2018, spoke about how President Trump had impacted her life through his compassion. Politico, reporting on her speech, referred to Johnson as being “propped up” by the Trump administration. Many on Twitter criticized Politico’s characterization of Johnson as racist and demeaning toward Johnson as a Black woman.

What should we make of Alice Johnson’s show of support for Trump at the RNC?  And how should we interpret President Trump’s pardoning of Johnson immediately following the convention?

In 1996, Alice Johnson was convicted and sentenced to life in prison for attempted possession of drugs and money laundering. Johnson was a first-time non-violent offender, and many considered her sentencing to be not only harsh, but fundamentally unjust. Under all three of the most common theories of punishment: deterrence, retribution, and restorative, Johnson’s sentencing is clearly immoral. A fundamental principle of retributive justice is that punishment be proportional to the crime. While deterrence seeks to use punishment to discourage recidivism, the charges brought against Johnson and the sentencing that followed were so harsh that there was no true due notice by which she could have been deterred and since she was sentenced to life in prison, she had no opportunity for which to be deterred. Lastly, Johnson’s sentencing is clearly unethical under a restorative justice model since it gave Johnson no opportunity for rehabilitation, to restore the harm that had been caused, or to change her impact on society after release.

While criminal justice reform non-profit CAN-DO had been advocating for Johnson since 2014, the case caught national attention when celebrity Kim Kardashian West became involved in the project to grant Johnson clemency in 2018. In a widely reported meeting at the White House, Kardashian West urged Donald Trump to commute Johnson’s sentence. Merely one week after this meeting, Trump announced he would be commuting Johnson’s sentence effective immediately. On June 6 2018, Johnson was released from prison and reunited with her family. Johnson’s case has been cited as an example of the racial inequity of the criminal justice system toward Black people. Since her release, Johnson has become an outspoken advocate for criminal justice relief and touts a host of academic and cultural accolades.

Johnson’s appearance at the RNC is not her first time publicly associating with conservatives. On March 1, 2020 she appeared as a guest speaker at the American Conservative Union. During her talk, she endorsed “Right on Crime” an organization which calls itself “The Conservative Approach to Criminal Justice.” Right on Crime’s mission argues that “For too long…American conservatives have ceded the intellectual ground on criminal justice.” Right on Crime proposes reforms highlighting values such as public safety, right-size government, fiscal discipline, victim support, personal responsibility, government accountability, family preservation, and free enterprise. Despite her endorsement of the conservative approach to criminal justice, Johnson has also expressed support for more liberal approaches to criminal justice reform, such as ending mandatory sentencing, promoting prisoner education, and abolishing cash bail.

Johnson’s decision to deliver a speech at the RNC and vocalize her support for Donald Trump is especially interesting given the increase in activism spurred by the murder of George Floyd earlier this year. Trump himself has refused to support the Black Lives Matter movement and has actively undermined and demonized many demonstrations over the past few months. He has consistently voiced his support for law enforcement officials during the ongoing protests and calls to defund the police in recent months. Back in July, he ordered National Guard troops to tear-gas protestors outside of the White House for a photo-op. Considering the fact that police reform is a large component of many criminal justice reform doctrines, it is strange that Alice Johnson is choosing to vocalize support for a president who has threatened that if reelected he will “restore law and order to our country.” Johnson’s decision to align herself with Trump might strike some as hypocritical and even dangerous — especially if her continued support is interpreted as proof that President Trump is not racist or is morally righteous in his approach to criminal justice. In an article in The Nation, Elie Mystal argued that “The Republican National Convention has been all about using Black people to convince white people it’s OK to vote for a bigot.” Johnson was one of several black speakers at the RNC, many of whom at least partially undermined the characterization of Donald Trump as racist. In addition to Black speakers, the convention featured a naturalization ceremony for five new American citizens, none of whom knew that footage of them would appear during the convention. This ceremony has also been heralded as ironic considering Trump’s vast record on anti-immigration stances and policies.

On the other hand, Johnson’s decision to speak at the RNC could be either out of a perceived personal obligation to the president or in an attempt to ‘reach across the aisle’ and generate more support for criminal justice reform. President Trump quite literally changed Johnson’s life when he commuted her life sentence. Even consistent critics of Trump, heralded his decision as compassionate and progressive. But some have suggested that Johnson might feel a personal obligation toward Trump, influencing her decision to accept an invitation to speak at the RNC. Others might argue that commuting her sentence was not an act of kindness, but rather morally obligatory, considering how the stark injustice of her sentencing, discussed above. Therefore, Johnson does not owe anything to Trump and is under no obligation to support him.

Johnson has also been very vocal about her desire to make criminal justice an apolitical issue. Perhaps her decision to support President Trump is to appeal to Republicans and potentially inspire them to advocate for social justice reform. During her speech, Johnson declared, “there are thousands of people just like me, who deserve the opportunity to just come home.” She also referenced the First Step Act, signed into law by Trump in 2018. Johnson indicated that this was important, but that is only a stepping stone. If Johnson’s speech at the RNC encouraged even a few Republicans to reconsider their views on the criminal justice system, it is arguably ethically justified. Additionally, some criticisms of Johnson’s speech are clearly unethical. Politico’s aforementioned characterization of Johnson as a “prop” disacknowledges her as an individual with political and moral agency. It might also imply that she is only speaking in support of Trump’s administration for selfish or opportunistic reasons. This type of objectification and suspicion of Black women has a very long history and is unfortunately still quite common in American culture and politics.

While Trump’s pardon of Johnson seems morally justified from multiple viewpoints, his timing raises troubling questions about his motive. Why not officially pardon Johnson when he commuted her sentence? Considering the fact that Trump was recently impeached for attempting to partake in “quid pro quo” behavior, it would not be irrational to interpret his pardoning of Johnson as a way of rewarding her for supporting him at the convention. The case for this interpretation becomes stronger when one considers Trump’s history of pardoning his political allies. Though some might argue that there is nothing inherently wrong with quid pro quo politics, the president’s record of such behavior is not of making deals with peers, but rather, bullying those who he holds power over into submission. It’s arguable that this type of strong-arming is more characteristic of a tyrant than of a democratic leader.

Despite speaking in support of Trump during the RNC, Johnson refused to use the word “endorse” when speaking about her support for him as president. The day after she was pardoned, Johnson refused to officially endorse Donald Trump, while admitting that she supports Donald Trump as a president and hopes to work with him more in the future on criminal justice reform. What we should make of Johnson’s support is not an easy question to answer, but Donald Trump’s decision to pardon Johnson immediately after her show of support adds to a troubling pattern of opportunistic exertion of presidential powers.

Wildfires and Prison Labor: Crisis Continues to Expose Systemic Inequity

photograph of lone firefighter before a wildfire

As around a dozen wildfires continue to grow in California, the smoke has reached Nebraska. The two major wildfires that are occurring in Northern California are the second- and fourth-largest fires in state history. The status of Big Basin Redwoods State Park, California’s oldest, is changing daily. The oldest trees have seen many fires, but the current threat has been particularly devastating. California Governor Newsom has asked for help from as far away as the east coast of Australia in order to gather more firefighters.

Reaching out so broadly is a result of how central the issue of sufficient firefighters has become. State prison officials shared at a press briefing that due to COVID-19 quarantining and early release measures, California was unable to use its usual contingent of incarcerated firefighters during this year’s wildfire season.

The failure to address land management issues and the increasingly dire effects of climate change have led to the disastrous fire seasons both this year and in the recent past. However, the reliance on dangerous work being done by underpaid and under-protected incarcerated people in order to ensure the safety of others and conserve precious resources is a part of a systemic trend.

The US has more people in prison — in absolute numbers as well as by percentage of the population — than any other country on earth. This statistic alone should give us pause and encourage us to reflect on the purpose of isolating such a large amount of our population. But this year, our handling of the pandemic and, now, these wildfires highlights further issues with mass incarceration, beginning with the justification for imprisoning so many members of your population in the first place.

Society could be aiming at a few different goals when it takes people from society and places them in prison for violating the law. One goal might be sanctioning citizens that have “harmed” society based on a somewhat loose notion of “just deserts”: the individual has done wrong so they deserve punishment, and isolation is seen as the appropriate form of that punishment. Other justifications of incarceration as punishment are based on deterrence: by isolating someone who violates the law, we hope to make it less likely that this person or others — who are aware of the incarcerating policy — will do so again in the future. Incarceration could also be construed as means to rehabilitate someone who has not performed to the standards that the law suggests society deems necessary. In this case, the isolation is supposedly meant to be a constructive time to become able and willing to conform to societal standards more adequately in the future. Finally, incarceration could be a way of isolating someone from society to prevent further harm. (A version of justice that doesn’t fit this model is “restoration,” which focuses on the effects of violating a statute and allows those harmed by the violation to initiate a process where there is opportunity to share concerns, make amends and future plans, and potentially forgiveness, in hopes of healing the part of society that was in fact impacted by the violation).

Most regard the standards for our penal system to be a mix of these goals. A prison sentence might make sense as a mix of deterrence and rehabilitation in a particular case of sentencing, or in the mind of a particular legislator. When considering the labor that those who are serving sentences in prison perform, however, the justification for their punishment plays a crucial role in determining what conditions are appropriate.

Those in favor of the starkly different working conditions for non-incarcerated employees and prison labor use a variety of explanations. Appeals to the need to maintain facilities and rationale of providing job training for people who eventually will “reenter society” are the strongest justifications for employing incarcerated people. However, from these considerations, the working conditions and pay structure that exist today in US prisons do not follow. From the justifications for incarceration as a form of punishment, it is unclear why the human rights protections that guarantee safe working conditions and fair wages would be forfeited along with the freedom of movement that the punishment itself constitutes. For rehabilitation purposes, working while in prison can aid the transition once released, but differentiated pay scales and lax safety protocols appear punitive and demand human rights attention. For the retributive (“desert”) model, the presumption that someone deserves worse or inadequate working conditions on the basis of being incarcerated would need to be considered along with their original sentencing.

Further, the working conditions and wages that make up the structure of prison labor create a market designed to exploit the incarcerated. People in government-run correctional facilities perform jobs that are necessary for the prison to function, but do so without labor protection or the possibility of unionizing. And they do so for a fraction of what those performing the same tasks outside of prisons would earn. As a prison laborer, often the guarantee of safe working conditions simply does not apply.

The disparities in pay and working conditions for incarcerated employees creates an exploitative market, where prisons are incentivized to keep costs low and private businesses can reap great benefit. This economic structure does not simply exploit a marginalized incarcerated population, but, given the structural racism in the US justice system, further imbalances racial inequalities in a society already saturated by racist institutions.

Further, there are a variety of incarcerated employees who perform manufacturing jobs outside the prison, manufacturing products that are sold to government agencies and corporations. This work can include answering calls in a phone bank, constructing furniture, warehouse work, farm work, and, in California, front-line firefighting. The fire season and the pandemic have laid bare the living and working conditions in our prisons.

Throughout the pandemic, the cramped living conditions and poor quality of healthcare have put prisons at particular risk of experiencing a COVID-19 outbreak. Calls to attend this heightened danger have been neglected throughout the national emergency. In California, the nature of the pandemic has led to shutdowns across many of the prisons, making the incarcerated firefighters unable to respond to fires.

What this has meant for this record-breaking year in California is that they cannot rely on the state’s “primary firefighting ‘hand crews.’” According to the Sacramento Bee, “Inmate crews are among the first on the scene at fires large and small across the state… Identified by their orange fire uniforms, inmates typically do the critically important and dangerous job of using chainsaws and hand tools to cut firelines around properties and neighborhoods during wildfires.”

The owners of the prisons actively market their workers to private businesses, emphasizing the low wages their employers would be able to pay, how many have “Spanish language skills,” and how this labor pool is one of the “best kept secrets.”

In 2018, there was a three-week nationwide strike over the work conditions in prisons. Prisons are paying incarcerated people less today than they were in 2001. Prison jobs are unpaid in Alabama, Arkansas, Florida, Georgia, and Texas, and maximum wages have been lowered in at least as many states. Further, in many states the wages that incarcerated employees earn do not accurately reflect “take-home” pay; prisons deduct fees (like garnished wages) for what prison laborers have cost them during their stay. Because it costs money to incarcerate people, the claim goes, their wages should contribute to the running of the prison. As Vox reports, “Most prisons also deduct a percentage of earnings to help cover a prisoner’s child support payments, alimony, and restitution to victims. But at 40 cents an hour, that seems impractical.”

There is no getting around the fact that hiring incarcerated employees is a cost-saving measure. It’s estimated that the “Conservation Camp Program, which includes the inmate firefighters, saves California taxpayers tens of millions of dollars a year. Hiring firefighters to replace them, especially given the difficult work involved, would challenge a state already strapped for cash.” As the Managing Editor at Prison Legal News told Newsweek, “Prisons cannot operate without prison labor. They would simply be unaffordable.” So, incarceration in its current state requires exploitation and unethical labor practices that we wouldn’t accept outside of prisons, and are inflicting disproportionately based on systemically racist institutions.

There is also the option that doesn’t seem to get enough attention: If incarceration costs so much, wouldn’t it be cheaper to have less incarceration?

The Insufficiency of Black Box AI

image of black box spotlighted and on pedestal

Google and Imperial College London have collaborated in a trial of an AI system for diagnosing breast cancer. Their most recent results have shown that the AI system can outperform the uncorroborated diagnosis of a single trained doctor and perform on par with pairs of trained diagnosticians. The AI system was a deep learning model, meaning that it works by discovering patterns on its own by being trained on a huge database. In this case the database was thousands of mammogram images. Similar systems are used in the context of law enforcement and the justice system. In these cases the learning database is past police records. Despite the promise of this kind of system, there is a problem: there is not a readily available explanation of what pattern the systems are relying on to reach their conclusions. That is, the AI doesn’t provide reasons for its conclusions and so the experts relying on these systems can’t either.

AI systems that do not provide reasons in support of their conclusions are known as “black box” AI. In contrast to these are so-called “explainable AI.” This kind of AI system is under development and likely to be rapidly adopted within the healthcare field. Why is this so? Imagine visiting the doctor and receiving a cancer diagnosis. When you ask the doctor, “Why do you think I have cancer?” they reply only with a blank stare or reply, “I just know.” Would you find this satisfying or reassuring? Probably not, because you have been provided neither reason nor explanation. A diagnosis is not just a conclusion about a patient’s health but also the facts that lead up to that conclusion. There are certain reasons that the doctor might give you that you would reject as reasons that can support a cancer diagnosis.

For example an AI designed at Stanford University system being trained to help diagnosis tuberculosis used non-medical evidence to generate its conclusions. Rather than just taking into account the images of patients’ lungs, the system used information about the type of X-ray scanning device when generating diagnoses. But why is this a problem? If the information about what type of X-ray machine was used has a strong correlation with whether a patient  has tuberculosis shouldn’t that information be put to use? That is, don’t doctors and patients want to maximize the number of correct diagnoses they make? Imagine your doctor telling you, “I am diagnosing you with tuberculosis because I scanned you with Machine X, and people who are scanned by Machine X are more likely to have tuberculosis.” You would not likely find this a satisfying reason for a diagnosis. So if an AI is making diagnoses based on such facts this is a cause for concern.

A similar problem is discussed in philosophy of law when considering whether it is acceptable to convict people on the basis of statistical evidence. The thought experiment used to probe this problem involves a prison yard riot. There are 100 prisoners in the yard, and 99 of them riot by attacking the guard. One of the prisoners did not attack the guard, and was not involved in planning the riot. However there is no way of knowing specifically of each prisoner whether they did, or did not, participate in the riot. All that is known that 99 of the 100 prisoners participated. The question is whether it is acceptable to convict each prisoner based only on the fact that it is 99% likely that they participated in the riot.

Many who have addressed this problem answer in the negative — it is not appropriate to convict an inmate merely on the basis of statistical evidence. (However, David Papineau has recently argued that it is appropriate to convict on the basis of such strong statistical evidence.) One way to understand why it may be inappropriate to convict on the basis of statistical evidence alone, no matter how strong, is to consider the difference between circumstantial and direct evidence. Direct evidence is any evidence which immediately shows that someone committed a crime. For example, if you see Robert punch Willem in the face you have direct evidence that Robert committed battery (i.e., causing harm through touch that was not consented to). If you had instead walked into the room to see Willem holding his face in pain and Robert angrily rubbing his knuckles, you would only have circumstantial evidence that Robert committed battery. You must infer that battery occurred from what you actually witnessed.

Here’s the same point put another way. Given that you saw Robert punch Willem in the face, there is a 100% chance that Robert battered Willem — hence it is direct evidence. On the other hand, given that you saw Willem holding his face in pain and Robert angrily rubbing his knuckles, there is a 0- 99% chance that Robert battered Willem. The same applies to any prisoner in the yard during the riot: given that they were in the yard during the riot, there is at best a 99% chance that the prisoner attacked the guard. The fact that a prisoner was in the yard at the time of the riot is a single piece of circumstantial evidence in favor of the conclusion that that prisoner attacked the guard. A single piece of circumstantial evidence is not usually taken to be sufficient to convict someone — further corroborating evidence is required.

The same point could be made about diagnoses. Even if 99% of people examined by Machine X have tuberculosis, simply being examined by Machine X is not a sufficient reason to conclude that someone has tuberculosis. Not reasonable doctor would make a diagnosis on such a flimsy basis, and no reasonable court would convict someone on the flimsy basis in the prison yard riot case above. Black box AI algorithms might not be basing diagnoses or decisions about law enforcement on such a flimsy basis. But because this sort of AI system doesn’t provide its reasons, there is no way to tell what makes its accurate conclusions correct, or its inaccurate conclusions incorrect. Any domain like law or medicine where the reasons that underlie a conclusion are crucially important is a domain in which explainable AI is a necessity, and in which black box AI must not be used.

The Murder of Botham Jean and the Ethics of Forgiveness

photograph of one hand in another

On Tuesday October 1, 2019, Amber Guyger was sentenced to ten years in prison for the murder of Botham Jean. Guyger, a former Dallas, TX police officer was off-duty and shot Botham in his own home. She claims to have mistaken his apartment for hers and, believing him to be an intruder, shot Botham. At her sentencing Botham’s brother, Brandt, announced that he forgave Guyger for her crime, and proceeded to hug her in court

Brandt Jean forgiving his brother’s killer occasioned critical remarks. People argue that Brandt Jean, and other black victims forgiving white attackers, are systemically coerced into forgiveness because public anger from black people and communities is not acceptable to white society. Likewise people argued that Brandt Jean’s forgiveness does nothing, and signifies nothing, about the large-scale problem of violence and discrimination against black people in the justice system of the United States.

What exactly is forgiveness and under what conditions is it appropriate to give it? To answer this it is helpful to look at three separate answers: that forgiveness can be obligatory, that forgiveness can be forbidden, and that forgiveness is always optional. What would it mean for the Jean case for any one of these answers to be true? If forgiveness can be obligatory under some conditions, then what needs to be determined is whether those conditions obtained in the Jean case. If forgiveness is forbidden then Jean’s forgiveness might be inappropriate. Of course, if forgiveness is optional then it is entirely up to Jean whether he decides to forgive Guyger or not.

One prominent tradition committed to an obligation (under certain circumstances) to forgive is the Talmudic scholarship of the philosopher Maimonedes. In the Mishneh Torah he argues that forgiveness is required when the person who has done wrong is sincere in their contrition, has made amends, and has asked for forgiveness. In the Jean case, Guyger expressed regret in court for killing Botham and will begin serving her sentence soon. These two facts make at least a provisional case that she qualifies under Maimonides’ criteria: that is, that those who Guyger has wrong are obligated to forgive here. Botham’s brother himself expressed a sentiment similar to the criteria in the Misneh Torah saying, “If you are truly sorry—I know I can speak for myself, I forgive you.” Moreover he expressed the wish that Guyger not serve any jail time at all. This is an act of what Maimonides calls mechilah, which is forgiveness is the sense of removing a debt. 

Importantly, Brandt Jean’s statement implies that there are more people from whom Guyger needs to seek forgiveness. He speaks only for himself, and he was not the only one wronged. The Talmudic tradition is clear that a wrongdoer must seek forgiveness from each and every person that they have wronged. Moreover most views of forgiveness agree that only those who were wronged are in a place to forgive in the first place, meaning that forgiveness is a fundamentally interpersonal thing. This touches on an aspect of many critical remarks surrounding Jean’s forgiveness of Guyger. It should not be mistaken as general absolution for the pattern of police violence against black people, nor put forward as a model of how all victims of police violence should behave. Forgiveness, even if it can be obligatory, is a case-by-case thing. 

An alternative to the sort of response found in Maimonides comes from the Roman Stoic philosopher, Seneca. He argues that if a person’s deeds are genuinely worthy of punishment or incurring a debt then to forgo that punishment or debt is unjust. As such Seneca would vehemently object to Brandt Jean’s expressed wish that Guyger not face any jail time at all. Guyger’s action is clearly one that is genuinely worthy of punishment: she killed Botham in his own home. Seneca would view as more apt the reaction of Botham Jean’s father, Bertrum Jean, who said that though he forgave Guyger he wanted to see her receive a longer sentence. This expresses a different form of forgiveness, what Maimonides refers to as selichah. This is, rather than removing a debt, expressing an understanding of the wretchedness of a wrongdoer and their situation. However, this is not the form of forgiveness that is obligatory in Maimonides’ view—only mechilah can be obligatory. Selichah remains optional but represents a significant moral achievement on the part of the forgiver. 

Viewing forgiveness as an optional, but laudable, achievement is to say that forgiveness is a supererogatory act: that is, an act which is morally good but not morally required. The paradigmatic supererogatory act is something heroic—jumping in front of a bullet, for example. When someone does something supererogatory they have “gone beyond the call of duty.” The concept of selichah Maimonides puts forward fits the bill, and generally it’s clear why forgiveness might be treated as supererogatory. Just as it would be overly demanding to require people to risk their lives to save strangers, it would be overly demanding to require a person to forgive someone who caused them tremendous harm or trauma. If a victim can bring themselves to forgive a person who has ever wronged them—as is the case with the Jean family—this could be seen as a sign of a honed moral sensibility and significant effort. 

If there are any grounds for thinking Brandt Jean’s forgiveness of Amber Guyer is inappropriate, it could only be that it is unjust to let deserving offenders go unpunished. While Bertrum Jean’s statements are unexceptionable on any of the views of forgiveness presented here, the critical remarks concerning the whole episode also ring true. In the end, as forgiveness is an interpersonal phenomena, no general lessons or absolution are in the offing.

Faulty Forensics: Justice, Knowledge, and Bias

image of police tape with police lights in background

In June, Netflix began releasing a series called “Exhibit A,” which debunks one form of crime investigative science per episode. Dubious forensic techniques have been exposed for decades, yet still have been successful in incarcerating countless people. There are a number of reasons that this should be troubling to all of us and motivate real change. One issue that highlights the severity of continuing to rely on debunked forensic techniques is what psychologists call the “CSI effect” – jurors place an over-valued amount of credulity on evidence based on forensic methods. Thus, in a trial scenario, it is not just that some evidence is not as reliable as it seems, but it is just this sort of evidence that jurors seem to cling to in making their decisions.

It is well-documented that, even in some circumstances that we believe ourselves to be working with logical facts, we can be swayed by socialized prejudices and biases about historically disenfranchised, stigmatized, and marginalized groups. This is obviously unfortunate because it can lead to the continued unjust circumstances and treatment of such groups. A great deal of policies in a criminal justice system are put in place in order to create a more objective and just system than would be attained were the suspicions and individual reasoning of particular people with a great deal of power given full reign over crime and punishment. Practices in trials, standards for evidence, protections of citizen’s rights, and other features in the criminal justice system are in place to correct for the ways that injustices are socialized into individual reasoning, and improvements have been attempted to combat implicit biases in individual policing in many districts as well.

Because humans are socialized with these heuristics in our reasoning that are influenced by stigma and prejudices, people in the criminal justice system rely on the science of forensics to be more objective than hunches, suspicions, and our sometimes unreliable reasoning. These tools are one method of separating the functioning of our justice system from the injustice of our society. However, doubt has been cast on a number of common methods of forensics and the reliability of these tools.

Ten years ago, a report by the National Academy of Sciences stated, “[w]ith the exception of nuclear DNA analysis, . . . no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” Blood splatter analysis, bite mark analysis, fingerprint analysis, and, perhaps most well-known to be unreliable, lie detector tests, all have had scientists’ doubt cast on them. The continued use of these methods in the court of law stacks the deck against defendants. Practitioners of the forensic methods “often believed their methods were reliable and their conclusions were accurate with little or no scientific foundation for their beliefs. As a consequence, judges and jurors were misled about the efficacy of forensic evidence, which too often resulted in wrongful convictions.”

Years ago, a study found that drug-sniffing dogs reacted to clues from the beliefs of their handlers. In the last two years there have been some efforts to develop training to minimize this bias. This is crucial for the system, for the drug-sniffing dogs are meant to be an objective way of detecting substances for further investigation, and, in most states, an alert form such a dog warrants police forces to further investigate citizens. If the canines are influenced by their perception of what their handlers think, then they are not a distinct source of information regarding whether potential illegal activity is taking place. If this is the case, the dogs’ actions should not be providing legal permission to search citizens beyond the officer’s suspicion: if the suspicion alone does not warrant search, then the dog’s behavior does not warrant search.

The problem with these methods isn’t that they aren’t completely objective or reliable, it is that they are currently playing a role in our criminal justice system that outstrips how objective or reliable they, in fact, are. When they are playing such a role in a system that so significantly alters lives, and does so at a disproportionate rate for groups that are marginalized already, it is crucial to critically engage with them as tools for legitimate investigation and trail.

Mental Health, Information Literacy and the Slenderman Stabbing Case

A sidewalk chalk drawing of Slenderman.

On May 31, 2014, two 12-year-old girls lured a friend, also 12, into the woods with the promise of a game of hide-and-seek.  Once there, one of the girls pinned their friend down, while the other stabbed her 19 times with a long-bladed kitchen knife, causing serious injuries to major organs and arteries.  The young perpetrators then fled the scene, leaving their young friend to die of her injuries.  Miraculously, the victim survived.  She was able to crawl to a road where a cyclist found her and went for help.  

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The Complexities of Reforming Indiana’s Bail System

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Every year, thousands of bills are written and proposed during Indiana’s legislative session. The Indiana General Assembly takes place during the first few months of the year, and is a chance for state representatives to advance their agenda. Many Americans pay more attention to what happens at the federal level, but state and local government also has a large influence on the lives of citizens. The 2017 session, Jan 3 through April 29, is taking place during a budget year, and in the wake of an extremely contentious and important state and national election. Legislation authored this session ranges from bills that deregulate environmental protection to resolutions aimed at honoring professional athletes. One bill that has not gained much attention, however, raises numerous ethical concerns in regards to criminal justice and the prison system.

Senate Bill 228, authored by Senator Michael Young, aims to reform Indiana’s approach to bail and release after arrest. This bill involves the rules regarding pretrial risk assessment system which assist courts in assessing an arrestee’s likelihood of: (1) committing a new criminal offense; or (2) failing to appear.

At first glance this bill doesn’t seem particularly unusual. After all, using risk assessment in the criminal justice system doesn’t sound particularly radical or unethical. However, a closer examination of the bill reveals a large ethical dilemma. According to S.B. 228, the Indiana Supreme Court will revolutionize the standards for bail and release. Instead of basing bail and release off of a standard punishment for crime, it will rely upon risk assessment “based on empirical data derived through validated criminal justice scientific research” regarding individuals and the groups to which they might belong.

Proponents of the bill would argue that this not only humanizes those arrested on bail but also saves taxpayers money. Ideally, fewer people would be stuck waiting for their bail to be posted or for their trial, and therefore less taxpayer money would be dedicated to detaining those arrested. It is estimated that at any given time, there are nearly half a million Americans detained in local jails awaiting their trial, which costs approximately $17 billion every year. Many also argue that the notion of bail is outdated, and inherently favors wealthy individuals over poorer ones, further reinforcing societal inequalities surrounding income. Evidence-based risk assessment has been implemented in Kentucky, and supporters point to the fact that the average arrest rate for released defendants has declined. Additionally, many legislators are aiming to improve the reputation of the United States, which has one of the highest prison populations in the world, based on the fact that this bill would most likely result in less pretrial prisoners.

But will abolishing bail and relying upon risk assessment truly improve the stark inequalities present in the criminal justice system? Risk assessment aims to allow those who are detained for non-violent crimes and are not repeat offenders out of jail before their trial. But what are the complications of individualizing criminal offenses? Though fewer people would ideally be sitting in jail awaiting pretrial, those who are detained may be treated differently than those who committed the same crimes, or even more serious ones. If two people are arrested for the same crime, shouldn’t they be treated the same regardless of differences in criminal record and history?  

Factors such as race, criminal arrest record, or even gender could influence how risk assessment is measured and change how two people who commit the same crime are treated. A report on bail and pretrial risk assessment admits that “researchers have documented that racial bias can influence how juvenile offenses are described in post-arrest narrative reports, which could influence pretrial release decisions.” Though one could argue that educating law enforcement officials about implicit bias could eliminate this problem, S.B. 228 does not encourage or mandate doing so. Additionally, there has been increased debate about whether or not crime statistics can stand alone if they do not take into account racial and socioeconomic inequalities.

Though controversial, S.B. 228 passed its Senate Committee vote 8-1, passing an amendment on February 19. Though it is too early to tell if S.B. 228 will make it through the legislative process and become law, it should be considered seriously. The ethical implications of transforming pretrial requirements to individual considerations as opposed to a standard should not be taken lightly.

Student Loan Debt’s Enforcement Problem

The prospect of student loan debt is often enough to scare any college graduate. For many, such fear is all too common; according to the Wall Street Journal, 71% of the Class of 2015 graduated with student loan debt. For many of these graduates, the amount owed is scary enough, in itself. What happens, then, when heavily-armed members of law enforcement are thrown into the mix?

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The Prindle Institute Hosts Piper Kerman

Orange is the New Black came to life last night as Piper Kerman joined students and faculty in Kresge Auditorium for the first Ubben Lecture of the semester. Kerman got personal quickly, discussing not only her journey through the prison system, but also the specific ethical dilemmas she encountered and witnessed throughout her sentence.  Kerman served thirteen months in prison (from 2004-2005) for money laundering- a crime that she committed once in 1993 while romantically involved with a woman who dealt narcotics internationally.  Shortly after carrying drug money across international borders, Kerman realized she had crossed a line and ended the relationship. She returned to the states, got a stable job, and dissociated herself from the life she had been living with her former partner. Five years later, she was indicted and sentenced to fifteen months in federal prison at Danbury Correctional Facility. The title of her memoir is not only catchy but also meaningful. Orange is the New Black is a reference to fashion trends, but the underlining message is true and sincere. Her title highlights the fact that women make up the largest rising prison population. In the past 30 years, the number of women in prison has increased by 800%.
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