← Return to search results
Back to Prindle Institute

justice system

Posted on

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.

Posted on

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.

Posted on

Qualified Immunity: An Unqualified Disaster?

photograph of police line with riot shields

Calls to end qualified immunity have been ongoing for years, but have intensified throughout the United States after the murder of George Floyd at the hands of then-officer Derek Chauvin of the Minneapolis Police Department. But what exactly is qualified immunity, and what is the case for eliminating it?
Qualified immunity is a doctrine inferred by the Supreme Court of the United States (SCOTUS) in light of the Third Enforcement Act of 1871. This was part of the bundle of constitutional amendments and federal law passed during the Reconstruction Era to codify and protect the rights of Black people in the southern United States. It allowed citizens to sue individuals acting as officials for any of the States when those officials violated the citizens’ constitutional rights. Prior to the Third Enforcement Act, government officials enjoyed nearly absolute immunity from civil suits for damages.  This meant state government officials acting in their official capacity couldn’t be sued at all for violating constitutional rights. The Third Enforcement Act changed that.
Eventually the SCOTUS invoked the history of government official’s civil immunity to create qualified immunity. In Pierson v. Ray (1967) the court ruled that a common law defense was available to government officials when acting in their official capacity, even when sued under 42 U.S. Code Sec. 1983 (the name under which the Third Enforcement Act now goes). So long as they were acting in good faith and on probable cause, an official was immune from civil liability even if their act did violate a constitutional right.
Numerous court cases have modified this statement of immunity, and provided rules for determining whether it applies in a given case. In Harlow v. Fitzgerald (1982) the SCOTUS reasoned that governmental officials (here, aides to the President) need their official actions to be immunized from liability in order to do their jobs effectively. A subsequent series of cases dealt with the fourth amendment and execution of search warrants by law enforcement officials. In Malley v Briggs (1986) the SCOTUS held that officers were only immune to liability from arrests made on faulty warrants if they had an objectively reasonable belief that there was probable cause for the warrant. The requirement of objective reasonability was upheld for warrantless searches in Anderson v. Creighton (1987). The test for whether an officer has qualified immunity in a given case was articulated in Saucier v. Katz (2001). There was a need for such a judicial test, reasoned the SCOTUS, because qualified immunity had to be determined before a trial could begin. Two facts had to be determined according to the Saucier test: (1) whether a constitutional right was violated and (2) whether the right in question was clearly established at the time of the conduct of the officer in question.
The second criterion has been the cause of much of the public anger concerning qualified immunity. For one it removes any consideration of the reasonability of an officer’s action, objective or subjective. Instead of probing whether that particular officer reasonably believed that their conduct was lawful, the test instead simply asks whether there was any extant, and clearly articulated, constitutional right violated by the officer’s conduct. The issue of whether there was a “clearly established right” has often been interpreted extremely narrowly by courts. Among the starkest manifestations of narrow judicial interpretation comes from Nashville, TN. Police officers sent a dog after Alexander Baxter after he had sat down on the ground and raised his hands in surrender. The dog bit Alexander. However, the officers were granted qualified immunity because the clearest previous judicial ruling on the matter only pertained to suspects who were lying down in surrender. This ruling was made by a Tennessee court and upheld by appeals courts in Tennessee and the federal court presiding in that area.
Should qualified immunity exist in the first place? And if so, how can it be pruned back from its current extent to make it acceptable? Qualified immunity is a form of affirmative defense: that is, a legal way of saying, “I admit I broke the law, but I shouldn’t be (fully) punished for it.” Self-defense is an affirmative defense against criminal prosecution for violent crimes. At trial, the defendant would assert that they did commit an illegal action (e.g., homicide) but that their illegal action was either justified, or should be excused. In general, the possibility of affirmative defenses is desirable. It should be possible to escape punishment, or receive reduced punishment, for illegal actions done under mitigating circumstances.
It is instructive to compare self-defense and qualified immunity. In their current forms, both contend that strictly illegal actions are justified — which is to say morally or pragmatically appropriate despite being illegal. We shouldn’t punish people for their justified actions, because punishing people for doing the right thing is perverse. So if someone killed or injured another person in self-defense, we think it would be wrong to punish them. Does this make sense in the case of government officials violating the rights of citizens? It might, if qualified immunity were a defense that had to be proven at trial. However, the issue of qualified immunity is settled by a summary judgment. It is determined before trial by a judge without the benefit of a full process of evidential discovery and the structured arguments of a trial held before a jury. Being a rule which was created by unelected judges and never tried by a jury of citizens, qualified immunity arguably lacks democratic legitimacy.
The pretrial nature of qualified immunity has been argued for on both practical and moral grounds. These grounds were clearly articulated by the SCOTUS in Harlow v. Fitzgerald. As a practical matter they argue that deciding qualified immunity before trial prevents frivolous litigation, saving massive amounts of time and money. From the moral point of view, they argue that it is unfair to hold government officials to the standards of statutes and judicial decisions which are either unclear or unknown to them. Setting aside the relevance of the practical considerations, the moral considerations are flimsy. After all, as a general rule, normal citizens are not allowed to invoke ignorance of the law to excuse their illegal conduct. Government officials are both better placed to know the relevant laws and have a clearer obligation to be familiar with them. It is their job to enforce, interpret, or enact them.
Numerous other objections assail qualified immunity, coming even from SCOTUS justices of diametrically opposed ideological orientations. It does not seem that the balance of reasons lies in favor of this doctrine. Government officials can invoke the same affirmative defenses as regular citizens at trial and submit them to a jury for consideration. Obliterating qualified immunity from the law will not render them unprotected from baseless lawsuits.

Posted on

Implications of Exonerations

black-and-white photograph of empty jail cell

I expect that in the near future we will know, for certain, that at least one innocent person has been executed in the United States. This should not come as a surprise. There have been many cases where those on death row are found to be innocent; indeed by some estimates more than 4% of death row inmates may be innocent. One major reason we have not previously proven someone’s innocence is that there is rarely the political will to continue investigating post execution.

What I want to investigate in this piece is what this should mean for the use of the death penalty. The BBC, in its Ethics Guides, notes that the “most common and most cogent argument against capital punishment is that sooner or later, innocent people will get killed, because of mistakes or flaws in the justice system.” But just how cogent an argument is this?

Let me lay my own cards on the table; I am emphatically anti-death penalty. I think the unnecessary killing of any human being is monstrous, and that the state may only use lethal force when combating an active threat, not as punishment for a past threat. However, I would hold this view even if there was no chance of an innocent person ever being executed; my objection is grounded in an invariant pro-life commitment. Thus, I think I am particularly well placed to assess the ethics of this question. I’m not in favor of capital punishment, and so am not looking for any rationalization to dismiss the argument from innocent execution; but nor do I feel a rationalizing compulsion to think the argument works — my own commitments would persist regardless. Of course, this all may just be a second-order rationalization about my own objectivity, but I’ll put aside worries about meta-level rationalizations for another post.

So here is a simple argument from the possibility of executing the innocent to the wrongness of the death penalty:

  1. If we use the death penalty, eventually an innocent person will be killed. (innocence premise)
  2. Executing the innocent is always morally wrong, no matter how good the consequences. (absolutism premise)
  3. Therefore, if we use the death penalty, we will eventually do something wrong that cannot be justified by the goods of executing the guilty.

Now, there is a certain intuitive plausibility to this argument. Suppose I thought that the death penalty has a strong deterrent effect, and so executing the guilty would save many lives (see this article for a defense of this argument; note there have been, as far as I can tell, several persuasive replies); I still would not think it is permissible to frame an innocent person and execute them to get that same deterrent effect. Thus, it is wrong to kill the innocent, even to bring about the valuable execution of the guilty.

The problem with this argument, is that, by parity, it seems to suggest we should never punish anyone:

  1. If we imprison people, eventually an innocent person will be imprisoned. (innocence premise)
  2. Imprisoning the innocent is always morally wrong, no matter how good the consequences. (absolutism premise)
  3. Therefore, if we imprison people, we will eventually do something wrong that cannot be justified by the goods of imprisoning the guilty.

This argument, as far as I can tell, has the same surface level plausibility as the previous one. If I knew the only way to capture a murderer was to, for some reason, imprison an innocent person for life, it would not be permissible to imprison that person.

So what has gone wrong with these two arguments? I think it is that there is a difference between killing or imprisoning the innocent as an intended means to punishing others, and foreseeing that the innocent may be killed or imprisoned as a consequence of a broader policy of punishment. While there may be an absolute prohibition on killing or imprisoning the innocent, that does not mean there is a prohibition on anything that could lead to that as a result.

To articulate the innocence argument against the death penalty, one needs to show that a) the fact an innocent person will be killed means we cannot use the death penalty, and b) the fact an innocent person will be punished does not mean we cannot use any schema of punishment (since I assume few people would accept that the inevitable punishment of the innocent means all punishment is unjust).

In fact, the problem for the innocent argument is even more profound. Remember that study I cited at the beginning, saying that as many as 4% of death row inmates are innocent? The way that study worked is that they compared the exoneration rate of those who stayed on death row (about 4%) to those who were shifted to life in prison. Because more scrutiny is given to death penalty cases (especially as the guilty approach execution), those who are actually to be executed (and not just on death row) are more likely to be exonerated. So, the study most commonly cited to support the claim that some innocent will be executed, actually shows that likely more innocent people would be punished if we switched from the death penalty to life in prison (since we are less likely to identify the innocent without the scrutiny provided to death penalty cases).

So, what can we point to in order to say that executing the innocent is uniquely bad — bad in a way that imprisoning the innocent is not?

Barbarity. Perhaps the thought is that the death penalty is, in some way, so much worse than life in person, that we cannot take any risk with the innocent being killed, even if we can take risks on an innocent person going to jail for life. But I’m not sure this is quite right. In other parts of life, we don’t treat risks of death as categorically worse than other risks. Anytime you drive a car there is a disturbingly high chance an innocent person might die (far more innocent people die in car accidents than are executed); but I don’t think we treat such risks as categorically distinct from other types of risks. You might, for instance, choose a small risk of death to avoid a much larger risk of having to spend the rest of your life locked in prison.

Irreversibility. The first thing we might suggest is that the death penalty is irreversible. If you kill someone you cannot bring them back to life, but if you imprison someone you can always let them go later. But it is not quite that simple. For one thing, you really cannot reverse a prison sentence. Even if you are eventually released, you do not get back those twenty years spent in prison. The punishment cannot be reversed, all we can really do is shorten it if we discover you are innocent.

Permanency. Is that the solution then? Is the reason the death penalty is so bad because it is permanent? Perhaps the thought is that if we cannot be certain someone is guilty, no permanent punishment is justified. But here, again, this does not seem quite right. After all, I still permanently lose my twenties and thirties to prison, even if I get released on my fortieth birthday.

And note too, the risk of permanence is not the same thing as permanence. Just because someone could be released does not mean they will. And we know that, since executions receive greater scrutiny, an innocent person is more likely to be sentenced to life in prison than sentenced to death.

Reparability. Perhaps it is not that the death penalty is permanent, but that it cannot be repaired. Sure, someone imprisoned till they are forty permanently, loses out on their thirties, but at least the state can do something to make it up to the person falsely imprisoned. For example, often those falsely imprisoned are given financial compensation from the state.

I actually find this argument somewhat convincing, but we have already seen that as a society we don’t accept the broader implication. After all, it is death, not execution, that is irreparable. But we have already seen that we don’t treat risks of death as categorically different from other types of serious risks. If car accidents just resulted in serious bodily injury, we could imagine making some reparation for such injury. Since they sometimes result in death, sometimes no such reparation is possible. But, again, it seems we don’t see that fact as particularly dispositive when assessing the ethics of driving.

It is a terrible and tragic thing to execute the innocent. But, I think, that is just a subset of the terrible and tragic thing that it is to punish the innocent. Perhaps we should strengthen our criminal standards for conviction (I’m quite sympathetic to that line of thought) so that fewer innocent people are punished. But I’m not sure. At the very least, if we accept as inevitable that the innocent will be punished it gives us a categorical reason to select some punishments over others.

Posted on

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.

Posted on

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?

Posted on

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.

Posted on

Rape by Deception And the (Im)morality of Law

From “It’s On Us” to the MeToo campaign, sexual assault on college campuses and the world at large has garnered a great deal of attention in the past 10 years. Many universities have begun focalizing their commitment to Title IX and their no tolerance policy for sexual assault. Title IX enables the majority of sexual assaults that occur on these campuses to stay within the campus community and university judicial process, and this avoidance of the public criminal justice system is not immune to criticism. However, surrounding communities, whether it be through alienation or gentrification, are not always quick to get involved in campus crimes. Indiana colleges are no different, but an incident that occurred on Purdue University’s campus in February 2017 has many in the surrounding community, and the nation, upset. In an article titled “Bangert: Sex, lies and … wait, that wasn’t rape in a Purdue dorm?” Journal and Courier columnist Dave Bangert reacts to the acquittal of ex-Purdue student Donald Grant Ward, who admitted that in 2017 he knowingly had sex with a student under the false pretences that he was her boyfriend. Ward’s trial and subsequent comments by his lawyer have sparked a debate around the large question: Is rape by deception rape? And possibly more importantly, should rape by deception be considered a criminal offense?

To give some context, Purdue University saw 37 reports of rape during its 2016 school year, and though the 2017 statistic have not yet been released, it is likely that Ward’s case will be considered in these statistics, in light of the university’s reaction. Though 12 Indiana jurors found Ward not guilty of rape in February 2018, Purdue University barred Ward from campus immediately following the incident in February 2017. In other circumstances, such a discrepancy between Purdue’s campus policies and the Indiana criminal justice system could have Indiana citizens frustrated, considering the fact that Purdue is a state-funded University. However, members of the local community — and even prosecutors — seem to take the University’s side over the courts.

But what exactly is rape by deception? And how is what Ward did not considered a criminal offense? In a 2017 article in the Yale Law Review, Luis E. Chiesa explains the legal riddle of what many call “rape by deception.” Chiesa explains, “When people lie to obtain money, we call it theft. When they lie to enter private property, we call it trespass. When they lie to obtain sex… we have no idea what to call it.” Though there is no broad legal consensus about rape by deception, countries like Israel have successfully tried those convicted of it. However, detractors could use these very cases to point out why a rape-by-deception law could have unintended consequences. In 2010, Israeli Arab Sabbar Kashur was convicted of rape after having sex with a woman that was under the impression he was Jewish.  Some argue that this case was racist and in part fuelled by tensions between Jewish Israelis and Muslim Israelis. Increasing the penalty for any crime could fuel and contribute to existing inequalities in the criminal justice system, with the potential for uneven and unjust enforcement.

But supporters of a rape-by-deception law see it as no different from laws that protect property. In New Jersey, one legislator proposed a rape-by-deception law in 2014, after a grand jury found a William Allen Jordan, who lied about his professional status, nationality, and marital status to have sex with Mischele Lewis, not guilty of sexual assault by coercion. Though Jordan actually admitted to defrauding Lewis, the jury still decided he had not broken any law. Singleton aimed to remedy this by introducing a bill that recognized “sexual assault by fraud” and defined it as “an act of sexual penetration to which a person has given consent because the actor has misrepresented the purpose of the act or has represented he is someone he is not.”

Assemblyman Singleton supported this measure, telling those who opposed the bill to ask themselves: should the law “afford less legal protection to a person’s body than it does to that person’s property?” After all, he asked, “if it is a crime to deceive individuals out of their property, how can it be lawful to deceive them out of their bodies?

When Singleton’s bill was introduced, it did not even make it out of the Assembly Judiciary Committee. This could be in part due to the attention it garnered in the media, with fervent anti-rape-by-deception articles being written in the months leading up to the 2014-2015 legislative session. Many who opposed this bill, and the concept of rape by deception in general, ranged from defence attorneys to actually defence sexual assault survivors. Lafayette Attorney Kirk Freeman, the Defence Attorney who represented Donald Grant Ward in 2017, was vocal about his opposition to a rape-by-deception law in an interview with local news station WLFI. Freeman argued that what Ward did — sneaking into his peer’s bedroom and pretending to be someone else — is “not rape just in the fact that lots of women this weekend are going to have sex with Navy Seals, going to have sex with football heroes, going to have sex with guys that rescue kittens from the middle of the interstate, and are going to have sex with men who tell them I love you and I’m ready for a commitment. Just because they are lying or being deceptive doesn’t make it rape.” Some might argue that Freeman’s statements are insensitive, facetious, and even sexist. However, does Freeman have a point? Would expanding the law to include rape by deception really open the door to legally prosecute anybody who lies for sex?

Some legal scholars, such as Jed Rubenfeld, would argue no. Rubenfeld believes that the problem with defining sex by deception as rape is the fact that modern American rape laws fail to correctly define or uphold the concept of consent. In his essay “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy,” Rubenfeld uses the example of rape defined as sex with an unconscious person. The idea behind this statute is that somebody without consciousness is unable to consent, but if one takes a closer look at many of these laws, one notices that “rape will be found only if the intoxication was not self-induced.” In effect, modern American law still puts the burden of not getting raped on the victim, and Rubenfeld argues it is exactly this legal problem that influences legal attitudes toward rape by deception. Rubenfeld, in the end, contends that “courts have held for a hundred years in virtually every area of the law outside of rape, a consent procured through deception is no consent at all.” This idea could in part explain why Jordan was found guilty of fraud, but was not found guilty of sexual assault by coercion in 2014, and by Ward was acquitted in 2018.

From speeding on the highway to jay-walking in the city, many would agree that just because something is a crime, doesn’t make it morally wrong. However, Defence Attorney Kirk Freeman also asserted that “Just because something is not right doesn’t make it a crime.” Though many critical of rape culture might applaud the very idea that rape by deception is even considered unethical, Freeman’s statement unveils a deeper problem. What is the line between what is considered unethical and what we think should be illegal? This question, and the cases of both Jordan and Ward, demands we decide who and what the law is designed to protect, and how much value our ethical conscious holds in the laws that govern us.

Posted on

The Nuances of the Death Penalty

In the wake of a violent crime and loss of a family member, complicated decisions often must be made in an attempt to find a suitable resolution. In 2013, Darlene Farah’s 20 year-old daughter, Shelby, was murdered in Jacksonville, Florida by 24 year-old James Rhodes.  After security camera footage and Rhodes’s confession made the case clear-cut, Rhodes and his attorneys came up with a plea deal for him to get two consecutive life sentences plus 20 years in state prison with no trial or chance of his appeal. Despite Darlene Farah’s desire to accept the plea deal and allow her family to begin healing, the Florida State Attorney’s Office has decided instead to seek the death penalty for Rhodes.

Continue reading “The Nuances of the Death Penalty”