criminal Archives - The Prindle Institute for Ethics

July 15, 2024July 17, 2024

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.

September 27, 2019December 14, 2022

Does the Fair Chance Act Live Up to Its Name?

close-up photograph of 'Help Wanted' sign in storefront window

With the US having one of the highest incarceration rates in the world, it is estimated that over 70 million Americans have some type of criminal record – that’s approximately one in three Americans. Regardless of how minor or major an individual’s offense is, having any kind of criminal record presents a series of obstacles to successfully reintegrating oneself back into society. The most pronounced of these is finding employment and housing – almost nine in ten employers perform background checks during the hiring process and four in five landlords do the same on prospective occupants. Research shows that employers are biased against citizens with criminal records even though they assert that this is not the case. While employers ostensibly indicate an inclination to hiring ex-convicts, evidence establishes that employer callback rates decrease by 50% for those with a criminal record.

Crusading against such employment disparities are movements like Ban the Box, an American campaign that began in Hawaii in the late 1990s led by civil rights activists and advocates for ex-offenders, working towards removing the check box that inquires whether a job seeker has a criminal record. This campaign aims at allowing ex-convicts a better chance at employment by spotlighting their skills and qualifications in the recruitment process before being questioned about their criminal record, thereby preventing the stigma of an arrest record or a conviction ruling out their employment immediately. The basis of this campaign is that ex-convicts who struggle to find employment upon being released from prison are more likely to reoffend, which is, of course, damaging to society.

The campaign gained momentum after the 2007-2009 recession, with activists for the campaign stating that it is necessary to remove the check box because an increasing number of Americans have criminal records as a result of harsh sentencing laws, especially for drug-related offenses and citizens are struggling to find work due to the compounded effect of high unemployment rates for ex-felons and background checks becoming more common since the 9/11 terror attacks. Moreover, marginalized communities like communities of color, sexual minorities and people with mental illnesses are disproportionately affected, with black men being six times more likely to be imprisoned than a white man and LGB (lesbian, gay and bisexual) people being three times more likely to be incarcerated than the general population.

As of 2019, 35 states and more than 150 counties and cities have implemented Ban the Box, also known as fair chance act in their hiring policies, all of which prohibit employers from asking applicants about their criminal history on a preliminary job application. Some Ban the Box laws are more elaborate, compelling employers to refrain from asking about the applicants’ criminal history until a job offer has been made or an interview has been conducted.

Even though Ban the Box laws seem to be beneficial on the surface, some industry groups such as the National Retail Federation have openly criticized these policies for possibly exposing companies, employees, and customers to crime. The New Jersey Chamber of Commerce also condemned Ban the Box for putting employers at risk of being slapped with lawsuits from rejected applicants. Fair Chance laws put businesses in a vulnerable state, leaving them open to facing lawsuits for rejecting an ex-convict, while also having to deal with the possibility of facing negligent hiring lawsuits if an ex-convict employee reoffends at work. Moreover, businesses have found fault with Fair Chance laws for wasting the time and resources of both employers and applicants. Ban the Box laws could cause ex-convicts to waste their time applying for jobs that they will probably not get, when they could have spent their time working on applications and interviews for jobs that are known to recruit ex-offenders. Additionally, these laws would also be wasting employers’ time because if an ex-con is rejected towards the end of a hiring process after their criminal record is made known, applicants who didn’t have a criminal record but were turned away could have already found another job or could now be interested in other employment opportunities.

Corporate concerns aside, recent research shows that Ban the Box laws have cultivated an unforeseen impediment to the very objective of the campaign. Researchers have suggested that implementing Fair Chance policies may ultimately be disadvantageous to society as a whole by decreasing chances of employment for low-skilled racial minorities. If prevented from looking into an applicant’s criminal history, employers could recourse to stereotypical assumptions based on the individual’s race or gender to extrapolate on whether or not an individual has a criminal record, which would exacerbate gender and racial disparities in the application pool.

Ban the Box does better ex-offenders’ chances of finding employment, but on the flip side, minorities seeking employment have to bear the brunt of enhanced racial discrimination both in spite of, and because of, the Fair Chance Act. Activism like Ban the Box can and should be used to make positive social changes and challenge the status quo but at the same time, in light of recent research, must be re-evaluated.

February 25, 2019December 14, 2022

Death by State? The Country Discusses Abolition of Capital Punishment

Many Netflix viewers in recent weeks have familiarized themselves with the details of a set of notorious crimes committed by a criminal executed by the state of Florida in the 1980’s. The Ted Bundy Tapes tells the story of the life and crimes of Theodore Robert Bundy, a depraved serial killer who raped, tortured, and killed women and engaged in necrophilic acts with their bodies. A case like Bundy’s is just the kind of case that motivates supporters of the death penalty in their arguments for the claim that capital punishment is a moral necessity.

The series includes footage of the day Bundy was executed. Thousands of people celebrated outside of Florida State Prison. Street vendors sold electric chair lapel pins and t-shirts that read “Burn Bundy burn!”—a phrase that the crowds chanted at fever pitch while setting off fireworks nearby. Spectators held signs scrawled upon with phrases like “Toast Ted!” and “Crank up Old Sparky!” When asked about the spectacle, Bundy replied, “They’re crazy! They think I’m crazy, listen to all of them!” The scene was not unlike the one that Charles Dickens described witnessing at the execution of François Courvoisier in 1840: “No sorrow, no salutary terror, no abhorrence, no seriousness; nothing but ribaldry, debauchery, drunkenness, and flaunting vice in fifty other shapes … It was so loathsome, pitiful and vile a sight, that the law appeared to be as bad as he, or worse.”

These cases motivate reflection on the role that emotion plays in this most severe of punishments. Emotions spike in response to acts of senseless violence and depravity. If this happens at the level of community spectators, might there also be intense emotion in place at other stages of the criminal proceedings? What level of emotion is appropriate? What kind of emotion is appropriate, and directed toward whom? It may be that moral judgments always involve a certain amount of sentiment. Indeed, some moral philosophers have argued that moral judgments are nothing more than expressions of sentiment. On the other hand, it is uncontroversial that emotions sometimes cloud our better judgment. What’s more, not all emotions are created equal, and empathy may well count for much more than anger.

Public support for the death penalty has diminished significantly over the years, with rates of approval dropping from 80 percent in the 90’s to 56 percent as reported by Gallup in 2018. In the past year, several states have considered repeal of the death penalty. In 2018, abolition was considered by Washington, Utah, New Hampshire, and Louisiana. In 2014, the governor of Washington, Jay Inslee, imposed a moratorium on the death penalty in the state, claiming that its inconsistent and unequal application made retaining the form of punishment morally and legally indefensible. In October of 2018, the Washington Supreme Court ruled that the death penalty, as applied in the state of Washington is arbitrary and capricious and racially biased, and that as such it is inconsistent with Article I, section 14 of the Washington State Constitution. The court made use of a study produced by researchers at The University of Washington titled “The Role of Race in Washington State Capital Sentencing 1981-2014”. The study concluded that “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.” Earlier this month, the Washington State Senate reinforced the reasoning of the court when they passed a measure to repeal the death penalty. The bill now advances to the House. On February 14 of this year, the proposed repeal of the death penalty in Wyoming failed in the Senate.

The United States has been engaged in a conversation about issues related to state-sanctioned killing as punishment for as long as the nation has existed. Recently, arguments for repeal have focused on racial bias, cost, the proper relationship between the government and its citizens, and the possibility of executing innocent people. Since the reinstatement of the death penalty after a national moratorium in 1973, 165 death row inmates have been exonerated.

One of the central arguments in support of the death penalty has to do with retributive justice—a moral commitment to make sure that a criminal “gets what they deserve.” According to this argument, some crimes—like those that Bundy committed—are so heinous that the perpetrators deserve to lose their lives as punishment. On this view, the death penalty is a basic requirement of justice. One of the primary moral obligations of a state’s criminal justice system is to achieve justice for victims and their loved ones. If this is the case, the state is not merely permitted to execute perpetrators of the most heinous crimes, they are morally obligated to do so. Those that hold this view would likely argue, for example, that if the state of Florida failed to execute Ted Bundy, that failure would count as a serious miscarriage of justice and dereliction of duty.

This argument raises a series of questions, many of which focus on the idea that imposition of the death penalty is not merely permitted, but is actually required. This claim seems to rest on the idea that the obligation that the state owes to victims of crimes is unique and morally privileged. There are considerations that speak in favor of this idea. Many philosophers argue that the feature that makes persons distinct from non-persons is their capacity to make autonomous decisions. When people commit crimes, those crimes almost always involve violations of autonomy. In the most heinous cases—like cases of murder—the crimes involve the annihilation of the person and the autonomy that makes them one. If autonomy is highly valued by our society, as it should be, then perhaps it makes sense to place justice for victims and their families high on the list of moral priorities. Add to this the pain and suffering experienced by the loved ones that the victims left behind, and we are left with a powerful argument for giving special moral consideration to victims. These considerations are paired with a perceived (and possibly real) obligation arising from intuitions both common and strong—it is unfair when bad things happen to good people, and when those bad things are freely caused by a bad person, bad things should happen to that person. One might think that this is an issue of fairness.

Even if the state’s obligations to victims and their families is important, it is worth asking whether those obligations override the State’s other important obligations. Death penalty cases are exceptionally expensive. In earlier discussions of repealing the death penalty, Washington legislators considered the fact that capital cases cost the state at least $1 million dollars more than non-capital cases. Presumably, these funds could be used for other crucial state expenses. Even if we concede that the death penalty achieves justice for the families of victims, does the state’s obligation to achieve that justice really supersede other state obligations? Given that the offender has already been apprehended and faces life in prison, would the money be better spent on schools, roads, or health care?

Another crucial question to resolve is exactly what should count as evidence against the permissibility of the death penalty. Washington made use of research indicating racial bias within the state. Should other states with similar or identical policies and practices take that same study as evidence that their policy is susceptible to racial bias? Or is any policy potentially subject to racial bias and does the moral permissibility of the policy turn on the demographics and attitudes of the particular area in question? Are all states morally obligated to be proactive in conducting research about their own communities?
Should evidence that a single person on death row is innocent count as evidence of the inevitably error-prone nature of the system, and should that evidence suggest that we should abolish the death penalty? How many errors are we willing to let slide?
Lack of agreement on these initial framing questions may explain why the national conversations about this issue have been prolonged and frequently unproductive.