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Acquitted but Not Forgotten: On the Ethics of Acquitted Conduct Sentencing

black and white photograph of shadow on sidewalk

On March 28th, 2022, the House of Congress was addressed by Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The topic of the address was the legality of a practice called Acquitted Conduct Sentencing. Acquitted Conduct Sentencing is the practice of a judge increasing the penalty for a crime based on facts about the defendant’s past — specifically, facts about crimes the defendant was charged with, but later acquitted of. Perhaps surprisingly, such a practice is not only legal, but relatively common. For example, in 2019 Erick Osby of Virginia was charged with seven counts of criminal activity related to the possession of illegal narcotics and firearms. He was acquitted of all but two of the charges, which should have resulted in a prison sentence of between 24-30 months. The district court trying him, however, estimated a range of 87-108 months due to the five other charges of which he was acquitted. Osby ended up receiving an 84-month (7-year) prison sentence.

In his remarks, Congressman Cohen, along with the co-author of his bill, Kelly Armstrong (Congressional Representative for North Dakota at large), presented arguments to Congress for making Acquitted Conduct Sentencing an illegal practice. The reasoning is fairly straight-forward: if someone is charged with a crime but later acquitted, that acquittal seems to say that they cannot legally be punished for that particular charge. But when sentences are expanded — even, in some cases, tripled — fines are raised, or obligatory service is extended, due to the charges the defendant has been acquitted of, it certainly seems as though the acquittal was meaningless. Cohen’s argument, then, is clear: if we acquit someone of a charge, they should be fully acquitted, meaning those charges should not have any bearing on the sentence handed down to the defendant.

Still, the question of acquitted conduct sentencing is not quite as straightforward as that. Juries and judges need to make their decisions on a host of factors, some of which have to do with facts known about the defendant’s character as well as predictions about how likely they may be to reoffend. These are not easy decisions to make, and it is further complicated by the ambiguity of what counts as legally-admissible evidence. Acquitting someone of a charge does not entail that no facts relevant to the original charge can be used in the trial. In many cases, it is difficult to say how such evidence should be treated. For example, a charge that was acquitted because of police mishandling evidence may be discussed during witness testimony. That testimony, and facts about the defendant’s character and behavior, seems (at least in some cases) hard to ignore when considering fair and effective sentencing for other charges. Acquittal, after all, does not mean that the defendant is not guilty of the crime, only that they cannot be legally charged for it. This could be for a variety of reasons.

Of course, we know that there are many instances of people being charged with a crime that they are innocent of. Mistaken charges happen all the time. Judges and juries may be privy to the original charge, and the later acquittal, but may not know the reason for the acquittal. Acquitted conduct sentencing allows defendants in this position to suffer the consequences of someone else’s error. Because the people making these legal decisions often have limited, or at least imperfect, access to all of the relevant information, allowing for acquitted conduct sentencing is guaranteed to allow cases like this to (in some cases, massively) increase the sentences for these defendants.

So, how should we think about the ethics of acquitted conduct sentencing? Purely consequentialist reasoning may lead us to conclude that we should look at the statistics: what percentage of acquittals are due to innocence, and what percentage are due to bureaucratic missteps? Perhaps the answer to this question will tell us whether allowing or prohibiting acquitted conduct sentencing would be expected to generally maximize good outcomes. This of course would be based on the presumption that, if someone is genuinely guilty of the crime for which they are acquitted, then adjusting their sentence in light of any relevant facts of the acquitted charge would be best for preventing future harm. But this assumption may, of course, itself be mistaken.

Instead, maybe a just outcome depends on more factors than simply maximizing happiness or minimizing harm. The idea of fairness as a desirable outcome of justice, for instance, is a popular one. We might think about the issue of acquitted conduct sentencing as a question of where the locus of justice lies: is a procedure of justice fair in virtue of the procedure itself, or is it fair just in case the outcomes of the procedure are generally fair? John Rawls, one of the most influential political philosophers of the modern era, argued that what he called perfect procedural justice has two characteristics: (1) criteria for what constitutes a just outcome of the particular procedure, and (2) the particular procedure guarantees that a perfect outcome will be achieved. Of course, such perfection is often unattainable in real life, and we might think that the best we can aim for is imperfect procedural justice: where criteria (1) is met, but the procedure cannot guarantee a perfect outcome. Can our current sentencing procedure meet Rawls’ first characteristic? Does it give us an idea of what counts as a just outcome of sentencing? The answer is unclear.

Further, we might question whether outcomes are relevant at all for justice. As a pluralistic society, we might expect there to be wildly-differing views about what counts as a fair outcome. But what counts as an impartial (if not fair) procedure is likely less controversial. For example, when healthcare resources are very scarce, some institutions use random-lottery (or weighted-lottery) decision procedures to determine who gets the resources and who does not. Even if the outcome seems “unfair” (because not everybody who needs the resource will receive it) it is hard to contest that everyone had a fair shot at the prize. Not everyone agrees that lotteries are just procedures, but they at least appear to be impartial. Perhaps this is enough to secure procedural justice? The view that the procedure alone, and not the outcome, determines the fairness of a procedural process, is what Rawls calls pure procedural justice.

Is the procedure of acquitted conduct sentencing fair? Perhaps an easier question: is it impartial? Likely not. After all, implicit (or explicit) bias can easily result in someone being charged for a crime they did not commit. Those who are members of marginalized groups, then, have a much higher risk of having their sentences expanded due to crimes they did not commit. The procedure is far from impartial, and so the likelihood that it could be a part of a just procedural process appears to be low. While we certainly want judges to have as much relevant information on a case as possible when handing down a sentence, perhaps we can agree with Congressman Cohen that acquitted conduct sentencing is not the way to accomplish this goal.

Automation in the Courtroom: On Algorithms Predicting Crime

photograph of the defense's materials on table in a courtroom

From facial recognition software to the controversial robotic “police dogs,” artificial intelligence is becoming an increasingly prominent aspect of the legal system. AI even allocates which neighborhoods receive police department resources, determining how many officers are needed in certain areas based on crime statistics. But can algorithms determine the likelihood that someone will commit a crime, and if they can, is it ethical to use this technology to sentence individuals to prison?

Algorithms that attempt to predict recidivism (the likelihood that a criminal will commit future offenses) sift through data to produce a recidivism score, which ostensibly indicates the risk a person poses to their community. As Karen Hao explains for the MIT Technology Review,

“The logic for using such algorithmic tools is that if you can accurately predict criminal behavior, you can allocate resources accordingly, whether for rehabilitation or for prison sentences. In theory, it also reduces any bias influencing the process, because judges are making decisions on the basis of data-driven recommendations and not their gut.”

Human error and racial bias contribute to over-incarceration, so reseachers are hoping that color-blind computers can make better choices for us.

But in her book When Machines Can Be Judge, Jury, and Executioner: Justice in the Age of Artificial Intelligence, former judge Katherine B. Forrest explains that Black offenders are far more likely to be labeled high-risk by algorithms than their white counterparts, a fact which further speaks to the well-documented racial bias of algorithms. Hao reminds us that

“populations that have historically been disproportionately targeted by law enforcement—especially low-income and minority communities—are at risk of being slapped with high recidivism scores. As a result, the algorithm could amplify and perpetuate embedded biases and generate even more bias-tainted data to feed a vicious cycle.”

Because this technology is so new and lucrative, companies are extremely protective of their algorithms. The COMPAS system (Correctional Offender Management Profiling for Alternative Sanctions), created by Northpointe Inc., is the most widely used recidivism predictor in the legal system, yet no one knows what data set it draws from or how it’s algorithm generates a final score. We can assume the system looks at factors like age and previous offenses, but beyond that, the entire process is shrouded in mystery. Studies also suggest that recidivism algorithms are alarmingly inaccurate; Forrest notes that systems like COMPAS are incorrect around 30 to 40 percent of the time. This means that for every ten people COMPAS labels low-risk, 3 or 4 will eventually relapse into crime. Even with a high chance for error, recidivism scores are difficult to challenge in court. In a lucid editorial for the American Bar association, Judge Noel L. Hillman explains that

“A predictive recidivism score may emerge oracle-like from an often-proprietary black box. Many, if not most, defendants, particularly those represented by public defenders and counsel appointed under the Criminal Justice Act because of indigency, will lack the resources, time, and technical knowledge to understand, probe, and challenge the AI process.”

Judges may assume a score generated by AI is infallible, and change their ruling accordingly.

In his article, Hillman makes a reference to Loomis v. Wisconsin, a landmark case for recidivism algorithms. In 2016, Eric Loomis of Wisconsin was arrested for driving a car that had been involved in a drive-by shooting, and the judge tacked an additional six years onto his sentence solely because of his high COMPAS score. Loomis attempted to challenge the validity of the score, but the courts ultimately upheld Northpointe’s right to protect trade secrets and not reveal how the number had been reached. Though COMPAS scores aren’t currently admissible in court as evidence against a defendant, the judge in the Loomis case did take it into account during sentencing, which sets a dangerous precedent.

Even if we could predict a person’s future behavior with complete accuracy, replacing a judge with a computer would make an already dehumanizing process dystopian. Hillman asserts that

“When done correctly, the sentencing process is more art than science. Sentencing requires the application of soft skills and intuitive insights that are not easily defined or even described. Sentencing judges are informed by experience and the adversarial process. Judges also are commanded to adjust sentences to avoid unwarranted sentencing disparity on a micro or case-specific basis that may differ from national trends.”

In other words, attention to nuance is lost completely when defendants become data sets. The solution to racial bias isn’t to bring in artificial intelligence, but to strengthen our own empathy and sense of shared humanity, which will always produce more equitable rulings than AI can.

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.

Justice and Rodney Reed: Evidence, Sentencing, and Appeal

photograph of Rodney Reed from prison

On the morning of April 23rd, 1996, the body of 19-year-old Stacey Stites was found in a wooded area just off of a road in rural Texas. Stacey had been raped and strangled to death with her own belt. Seven months later, Rodney Reed was arrested for her murder. Reed was convicted of the crime in 1998 and was sentenced to death by lethal injection. The execution was scheduled to take place on November 20th, 2019. On November 15th, 2019, the Texas Court of Criminal Appeals issued Reed an indefinite stay of execution. The stay was issued in a climate of tremendous support for Reed. Celebrities such as Beyoncé, Kim Kardashian West, Oprah, and Dr. Phil all spoke openly and actively about their support for a potential stay in Reed’s case. Politicians who have voiced similar support include presidential hopefuls Kamala Harris and Pete Buttigieg.

When Stites was recovered, DNA was found both in and on her body. All of the prominent men in her life, including her fiancé Jimmy Finnell, were tested and ruled out. Months later, there was another attack. 19-year-old Linda Schlueter was using a drive-up payphone when she was approached by Reed for a ride. She initially declined, but eventually agreed. During the drive, Schlueter reported that Reed directed her down a dark dirt road. When she refused to take that route, Reed attacked her, repeatedly bashing her head against the steering wheel. She reported an exchange with her attacker, “And I asked him, ‘What do you want? What the hell do you want from me?’ And he said, ‘I want a blowjob. And I said, ‘You’ll have to kill me before you get anything from me.’ And he said, ‘I guess I have to kill you then.’” Schlueter saw the lights of a car approaching and was able to exit the vehicle and flee in the direction of the approaching car. Reed drove off in her car, but police were notified and Reed was quickly apprehended.

Police discovered that Reed’s DNA was already in the system because of his connection to the sexual assault of an intellectually disabled woman in 1995, a crime for which he was never tried. Reed denied knowing Stacey Stites, but when his DNA was tested against the material recovered from her body, it was a match. Reed then claimed that he had been having an affair with Stites, but that they were keeping it a secret because Stites was engaged. Once Reed became a compelling suspect in the rape and murder, his genetic profile was tested against other unsolved rapes. It was matched to two unresolved cases—the beating and rape of a 19-year-old woman, and the beating and rape of a 12-year-old girl. When confronted with the evidence in the case against the former, Reed told a similar story of a clandestine relationship. He was never tried in either of these cases. An all-white jury convicted Reed, who is black, for the murder of Stites, who was white. The evidence against Reed has stood up to the scrutiny of nine appeals.

Many people, however, believe that compelling evidence exists that supports the conclusion that Reed is innocent of Stites’ murder. First, if the semen had been deposited as early as the prosecution alleged, one would expect to find more of it. The sample had already degraded somewhat at the time at which it was recovered. The experts at the trial testified that Reed’s semen would not have been present at all if consensual intercourse had taken place more than 24 hours earlier, as Reed had alleged. Those same experts now acknowledge that sperm can actually be present many days longer than they suggested in their original testimony.

In addition, new witnesses have come forward claiming to have knowledge that Reed and Stites were, indeed, having an affair. But many are skeptical of this evidence, since these witnesses did not come forward at any point in the last two decades and did not do so at the crucial stage at which the state was building its initial case, despite the existence of reward money for information that might lead to the arrest of a suspect.

One significant piece of evidence in support of Reed’s innocence concerns Jimmy Fennell, a police officer and Stites’ fiancé at the time of her murder. A new witness claims that Fennell confessed to the murder in private conversation, offering as his motive his rage over the fact that his fiancé had been having an affair with a black man. The witness also claims knowledge that Fennell was an abusive partner to Stites. In the years following Stites’ death, Fennell was convicted of the kidnapping and rape of a different woman, a crime that he committed while on duty as a police officer. He was sentenced to ten years in prison for that crime.

This case raises challenging ethical questions. The first concerns the role that the public plays in high-profile cases. The observation that the public can significantly impact the course of a criminal proceeding is not a new one. In one noteworthy case that inspired the film The Fugitive, Dr. Sam Sheppard was convicted of the murder of his wife. After Dr. Sheppard had spent ten years in prison, the United States Supreme Court overturned his conviction because of the role the untethered media presence and public obsession with the case had played.

Public involvement in notorious criminal cases is not new, but what is new is the scope of its reach. Celebrity commentary, though profoundly lacking in any privileged insight or expertise, can be tremendously influential. If Dr. Sheppard was treated unfairly by the power of public opinion, at least the Internet didn’t exist to make his troubles exponentially worse.

One might argue that the public outcry over this case demonstrates that the speech of celebrities, politicians, and their supporters can be a force for justice. Loud voices outside of the legal system can bring about changes that perhaps never could have happened from within. One of the reasons that free speech is so valuable is that it allows citizens to speak truth to power, and as a result, it may play an important role in rectifying injustices.

In opposition to that consideration, it is important to note that our system is supposed to ensure procedural fairness. Any convicted offender, regardless of their notoriety, can expect to enjoy access to the same procedures to redress injustice in the form of the appeals process. But when the public gets involved, some cases get treated differently from others.

An additional concern has to do with the fact that the celebrities and politicians involved may not always have pure motives for speaking publicly about a particular case. A politician may, in certain cases, want to appear “tough on crime.” In others, they may want to come across as advocates of social and racial justice. A celebrity might speak out about a particular case as a publicity stunt to increase their following. These motivations are likely to be inconsistent with justice for the victims or those convicted of crimes.

This case also raises questions about what type of evidence should serve to exonerate a convicted individual on death row. Some believe that if major aspects of the prosecution’s case begin to unravel, that should be sufficient for exoneration, or it should at least mandate a new trial for the defendant. Others maintain that to justify abandoning the verdict of a judge or jury, there should be evidence of actual innocence. This is a much higher threshold to reach. Criminal trials are costly both financially and in terms of hard work and emotional cost. We simply can’t afford to bring death row cases to trial over and over again. At some point, the decisions of the jury and the courts of appeals must stand. If we are worried that this procedure isn’t reliable enough to ensure that innocent people aren’t put to death, perhaps we should not have the death penalty at all.

People who research this case at home have access to a lot of information about Reed’s past. Crucially, they have access to the fact that Reed’s DNA matched the evidence associated with two additional rapes. When viewed as a complete picture in this way, it is easy to conclude that Reed is not only a violent rapist, but a serial violent rapist. It is important to note, however, that Reed was not convicted or even tried for those crimes. What difference should that make to our assessment of the case against Reed for the murder of Stacey Stites?

Is Death Forever?: The Case of Benjamin Schreiber

photograph of defibrillator practice on a CPR dummy

On Wednesday, November 6th, an appeals court confirmed a lower court’s ruling that a death row inmate had not fulfilled his sentence when his heart stopped in a medical procedure in 2015. The inmate, Benjamin Schreiber, was convicted of murder in 1996 and sentenced to life without parole. Shreiber had argued that his sentence ended when his heart stopped during a medical emergency four years ago, even though he was later revived.

There are cases that blur the line between life and death, either because it is difficult to determine death or define it. In 2018, a woman in South Africa woke up in a morgue after mistakenly being declared dead. Paramedics at the scene found no heartbeat and detected no signs of life, but were later flummoxed when they spotted the patient breathing.

Cases like this are obviously uncommon, but they do happen. At least 38 times since 1982, patients have been recorded as experiencing “Lazarus Syndrome,” or autoresuscitation, after failed cardiopulmonary resuscitation. In such cases, medical intervention failed to restart a patient’s heart but nevertheless the patient’s heart restarted.

Definitions of medical death have changed with advances in possible medical interventions. Globally and historically, people have looked to circulation and breathing as standards for life and death. Schreiber’s standard here, therefore, the lack of a pulse, or circulation of blood throughout the body, is not without precedent. These standards became complicated the more we learned about the brain and its connection to our lives as individuals.

In 1968 the medical community came together to try to address definitions of death as organ transplants became more successful. Removing organs from patients who still had circulating and oxygenating blood increased the probability of successful transplant, but insured the death of the donor patient. According to our legal and moral standards of wrongful harm, there are reasons to only perform such procedures on patients formally pronounced dead. New understandings of the importance of brain functioning for identity and personhood provided useful distinctions to inform this pronouncement.

We know now that blood can continue to circulate without there being any hope of meaningful interaction with the world again on the patient’s part. Neuroscience, meanwhile, shows that certain brain function is necessary for personhood and when particular lacks of brain function occur, doctors can determine that death in the sense of loss of personhood has also occurred. Thus patients can be pronounced dead while their organs are still viable for transplant.

When deciding whether or not to harvest organs, the permanence or irreversibility of the state of the patient is a crucial consideration. As philosophers, we can wonder whether the finality of death is a crucial aspect of the concept for other applications, and potential applications in the future.

Using this ambiguity behind our evolving definition of “death,” Schrieber claimed to have served his time. He accepted his initial sentence of life without parole, but would not accept “life plus one day” (Schreiber claims to have been revived from septic shock against his wishes). The court found Schreiber’s claim original, but refused to side with him on the grounds that he was “unlikely” to be dead, having represented himself legally and signed his own documents.

While definitions of death today include some criterion of finality (such as the cessation of life or the permanent loss of a human’s personhood), the discussion in this case leaves open an interesting possibility: If Schreiber is present to represent his interests in court, then could he nevertheless have been dead, thus fulfilling his sentence? In other words, is a death penalty meant to shorten someone’s life or ensure they experience death?

If we can imagine a future where someone exists after a period of cessation of life that we currently understand as death under some medical criteria, then Schreiber’s case may be a relic of our stage in medical technology (just as pronouncements of life while brains lacked functioning were relics of previous centuries’ understandings of life and death). Say technology advances to the point where we can map the complicated and dynamic connections that make you who you are. If we have the ability to produce such an intelligent mapping, then your physical body could cease to live according to our current medical definitions, but there is the possibility that we could recreate a physical foundation for the map to run so as to support your conscious existence in the world once more.

If this possibility existed, there are two important questions related to Schreiber’s case. First, would we continue to use “death” in a sufficiently close enough way so as to say that if he experienced this process, he would qualify as “dead” at one time? If so, then the legal system could declare his sentence fulfilled if they understand it in a particular way (until death), or not if they understand it differently (for all of Schreiber’s life).

Second, if we had the technology described above, would the person brought into existence with the dynamic mapping of Schreiber be Schreiber? If the original person in the original body ceased to exist, then creating a supporting body for the dynamic mapping may bring in as exact a copy as possible, but this may not count as the original Schreiber. If this is the case, then it would be wrong to apply the legal punishment to the created Schreiber.

We can have a definition of death that does not include finality. With this caveat, Schreiber’s appeal becomes more compelling if the penalty applied to him is understood as “until death.” Regardless, the case brings out how we mean punishment to apply, and raises theoretical questions about how we may apply them in the future.

Felicity Huffman Sentencing: Justice and Fairness in Punishment

photograph of Felicity Huffman and William H Macy

The college admissions scandal has come into prominence once more this week with the conviction and sentencing of “Desperate Housewives” star Felicity Huffman. In attempting to get her daughter into college, she paid $15,000 to a “charity” controlled by William Singer, a now notoriously corrupt admissions consultant, to have him bribe an SAT proctor to correct her daughter’s answers before submitting the test. For committing “honest services fraud,” Huffman was fined $30,000 and sentenced to 2 weeks in prison, 1 year of probation, and 250 community service hours.

The Washington Post quoted Daniel Richman, a professor at Columbia Law School, as saying “Both those who think the conduct here shouldn’t have been prosecuted and those concerned about special treatment for the privileged are bound to be dissatisfied.” And how could they not? On the one hand, the American criminal justice system is already overfull and overworked. The jails and prisons, too, are near their capacity. Essentially, some say, we are wasting resources prosecuting a first time nonviolent offender who has confessed her guilt and shown remorse.

Indeed, this is the attitude people have toward a variety of “white collar” and “victimless” crimes. However, they are only labeled as such due to the invisibility of the consequences, not due to the consequences actually being nonexistent. Every spot taken by a rich person who arrives there unmeritocratically is potentially a spot that could have been given to someone whose life could be changed by the chance. Those people, though, do not even realize a crime has been committed against them, blaming instead their own supposed insufficiency rather than a corrupt system.

Others dismiss these sorts of crimes because they seem inevitable. If they do not illegally bribe their kids into elite colleges, some say, they will do so through legal donations. But, this is a case of whataboutism. “What about kids getting into college because their parents are donors? Isn’t that unmeritocratic too? We’re not prosecuting those people so why are we prosecuting this woman?” However, we need not choose one or the other. They can be separate discussions, considered consecutively, not simultaneously.

Perhaps those parents getting their kids in via legal donations are doing something immoral too (for discussion see A.G. Holdier’s “The Ethics of Legacy Admissions”). The fact that there are multiple problems to consider does not entail that we may only try to solve all of them or none of them. Each can be considered in its own time. Thus, let us consider the fact that, for her crime, Huffman received what amounts to not even a slap on the wrist due to her wealth. Indeed, the punishment Huffman was given by Judge Indira Talwani sheds light on the disparity of punishment between the extremely wealthy and the rest of us.

The median American’s wealth (not average because that value is skewed by billionaires), according to the Federal Reserve’s Survey of Consumer Finances, is $97,300. Even among those above 75, who have accumulated wealth for the longest, that value is only $264,800. In comparison, estimates for the wealth of Huffman and her husband, William H. Macy, each fall in the range of $20-50 million. Even assuming that minimum value, a $30,000 fine only amounts to 0.15% of their wealth. For that median American, the same fine would encompass 30% of all the money they ever made.

Certainly, this is an “equal” punishment, if “equal” is taken to mean the same numerical value, regardless of place or station. However, the impact on Huffman’s life as compared to some ordinary person is drastically different. A fine of 0.15% of that ordinary person’s wealth would amount to only about $150. That is the impact Huffman feels from the fine she was given. The same goes for her prison sentence and community service requirement. Most Americans have to work for a living and need a clean record to get a job. Huffman and her husband have enough money to live the rest of their lives without acting again. A prison sentence like that and so many community service hours are just annoying for the very wealthy, not life-ruining as they can be for many people of ordinary stature.

“So what?” says the cynic, “College admissions are already corrupt and have little to do with real ability. Huffman did not do anything particularly wrong. The only difference between her and the rest of the upper class is that her bribe happened to be illegal. Donors’ kids get into prestigious universities without the requisite ability all the time. There’s no good reason to waste the government’s time prosecuting cases like these.” The cynic may very well be correct, and, in fact, the judge in the case seemed to agree, saying that the college admissions system “has cracks in it with or without what these defendants have done.”

Regardless of how bad the action was, however, a fair justice system demands that justice be proportional to the crime committed. In Huffman’s case there are two possibilities: either her actions were not of any significance, in which case she need not be prosecuted, or her actions were of significance, in which case she need be punished proportionally. What actually occurred was that Huffman was prosecuted, but given what amounts to no punishment for a minor, but significant, crime. At the very least, a fair punishment for a minor, but significant, crime is a minor, but significant, punishment. However, the nature of sentencing guidelines is such that it does not allow for fines to enact any significant punishment and the alternative, time in prison, seems excessive.

Indeed, it seems inappropriate to put a person such as Huffman behind bars for years for trying to help her daughter get into college with bribes, an action for which she has shown remorse. But, there really is no punishment besides time in prison which can create the same impact of punishment regardless of class. In the case of the crime she admitted to, “honest services fraud,” the maximum fine is $250,000, only 1.25% of her wealth. Now, that percentage of the median wealth actually seems substantial, about $1,200. However, this judgment does not account for another difference between the upper class and the rest.

When a person has millions of dollars, her living expenses are a minuscule portion of her wealth. For most others, living expenses (rent, car payment, gas, food, etc.) take up a much larger portion. In essence, most people cannot pay such a fine without sacrificing some of their basic needs. A proportionally-sized fine for the ultra-wealthy, though, has no impact on their lives. Either fines must be able to cause a proportional impact on the very rich, not simply a flat percentage, or something else valuable must be taken away. For this class of people, the only truly valuable thing they cannot get more of is time. A long prison sentence, regardless of class, has a truly significant impact on one’s life.

As Oren Nimni puts it in Current Affairs, this sort of disparity in punishment,

“fundamentally delegitimizes the entire legal system, by severing the relationship between punishments and their purpose. It makes a joke out of the ideas of both the punishment fitting the crime and equality under the law, two bedrock principles necessary for  “law” to command any respect at all.”

There is plenty of room for discussion about what sorts of crimes ought to be prosecuted, about whether crimes deserve more fines or more prison time, and about the purpose punishment is supposed to serve. However, it seems clear that, regardless of what comes of these discussions, it can be agreed that the impact of a just punishment cannot vary based on class.

A Requiem of Retribution at a Black Mass: Whitey Bulger and Prisoner Welfare

"554T9816" by Cliff licensed under CC BY 2.0 (Via Flickr).

On October 31, 2018, crime boss Whitey Bulger was found beaten to death in a West Virginia prison. Bulger was infamous for racketeering, committing murder, and evading capture for 16 years. His place on the FBI’s most wanted list was second only to Osama Bin Laden. He was finally captured in 2011 at the age of 81. He was convicted for his crimes and sentenced to two consecutive life sentences, but served only six years before more than one fellow inmate beat him to death with a padlock stuffed inside a sock. Bulger was infamous for his crimes and was reasonably well known among the population at large.  He was the motivation for Jack Nicholson’s character in Martin Scorsese’s The Departed and his life story was told in the 2015 film Black Mass starring Johnny Depp as Bulger.

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