Category: Morality and Legality

The New Jim Crow Again

Daniel M. writes:

Coincidentally, I'm currently a TA for a class in which significant portions of this book have been assigned (a philosophy of law class, focusing on legal punishment).  Alexander's main focus in the book is not incarceration (and related phenomena) in general, but the War on Drugs in particular.  An important part of her case for the racially discriminatory nature of "mass incarceration" (a phrase by which she means (a) the entire system of state-control over offenders, whether prison, parole, probation, etc., as well as (b) the post-punishment effects on offenders such as barriers to voting, employment, public housing) in the U.S. is the claim that black Americans are no more likely to use/deal illegal drugs than are white Americans, and yet law enforcement have disproportionally targeted black Americans.  She thinks that this discrimination largely results from the great procedural discretion which law enforcement have in prosecuting this War (both at the level of police forces and individual officers in deciding where/whom to search, and at the level of prosecutors in deciding what kind of sentences to seek).  This discretion, along with the need to be proactive in order to bust people for drug offenses, creates the opportunity for racial biases, whether conscious or unconscious, to shape how the War is prosecuted.

When I read the bit you did, my first thought was that it was ridiculous to compare Cotton's political "disenfranchisement" to his KKK-killed great-grandfather's political disenfranchisement.  I still think that about this case (homicide/robbery…), but I did become more sympathetic to the idea that there were interesting connections between Jim Crow and "mass incarceration."  The main difference is that the "New Jim Crow" is officially "colorblind," not a result of overt racism (at least by and large).  The official aim is to maintain "law and order," not to sweep black Americans into the state's control.  The alleged parallel is that you have a class of people largely characterized along racial lines who are shut out of mainstream society in various ways (voting, public housing,employment).  The new reason, having a felony on your record, is very different – and, one might think, much more justified than the old reasons.  But I was struck by (a) the claim that black Americans are not more likely to be guilty of drug crimes and yet are more likely to be targeted by law enforcement for them, and (b.) the severity of punitive measures attached to drug offences (including the felony label for many such offences, with all the ensuing ramifications).

Thank you for that, Dan. A few brief remarks:

1.  Are black Americans no more likely to use/deal illegal drugs than are white Americans?  I rather doubt that.  We know that blacks commit proportionately more crimes than whites in general, so one would expect that to be true for drug dealing in particular.  This is of course an empirical question, but it is exceedingly difficult to get to the truth of the matter because of the 'hot button' nature of the question and because fields such as sociology and criminology are heavily infected with ideology.  For example, how many conservative sociologists are there in universities as compared to leftists?  A very small number.  What does that say about universities and about sociology?  Given the leftist bias of most sociologists, it is reasonable to be skeptical about anything they claim is a result of 'research.'

2. Leftists conflate the world with the world as they wish it to be.  And they wish to believe that we are all equal.  And so they cannot accept the notion that blacks have a greater natural propensity to commit crimes than whites. This leads them to think that blacks are disproportionately 'targeted' and 'labeled' felons.  The truth, I suspect, is that blacks commit more crimes proportionately, which is why their rates of incarceration are proportionately  higher. 

3. This is consistent with a frank admission that there is plenty of injustice in the criminal justice  system.  There are corrupt judges, vicious cops, and ambitious prosecutors willing to sacrifice human lives to their careers. Needless to say, I am against all that.

4.  Why would anyone want to single out blacks for especially harsh treatment?  This is a question that needs answering, and 'racism' is no answer to it.  That word is well-nigh meaningless: it is is used by leftists as an all-purpose  semantic bludgeon to beat down conservatives.  It means anything leftists  want it to mean.  What is racism?  If I argue against ObamaCare, leftists call me a racist.  But ObamaCare is a policy, and policies, last time I checked, have no race.  So for leftists 'racism' and cognates mean everything and nothing.  Do people dislike blacks because of their skin color?  Perhaps a few do. But dislike of blacks is not for most people based on skin color but on black behavior. This brings us back to the empirical question whether blacks as a group behave worse than whites as a group.  If they do, then this would explain why they are incarcerated in greater numbers.

5. Should felons have the right to vote?  First of all, how many criminals want to vote?  The typical criminal is someone whose only concern is himself and the immediate gratification of his basest desires.  Such people have contempt for civil society.  They are not interested in participating in it.  For them it's a joke.  These are not people who think about the common good.  If you mentioned civic duties to them they would laugh their heads off.

So we need to ask: who is it that wants felons to vote?  Not felons for the most part.  But leftists!  Leftists want felons to vote to expand their base.  Leftists have a an exceedingly casual attitude toward criminal behavior.  They are by nature lenient and forgiving.  So if criminals are allowed to vote, they will of course vote for leftists, in the USA, for the Democrats.

That is why leftists want to extend the franchise to felons.

Whether or not they want to vote, should criminals have the right to vote?  Of course not.  Criminals can't even order their own lives, why should have a say in how society is ordered?   Furthermore, removal of the right to vote is part of the punishment that they deserve for raping and drunk driving and drug dealing and murdering and for being the generally worthless individuals that they are.

6. Finally, I am open to the idea that drug laws need to be carefully examined.  I am opposed to draconian 'zero tolerance' laws that make a felon of some harmless hippy who grows marijuana for his own use.  But if he drives while stoned, or sells the stuff to school kids, then I want the law to come down on his shggy head like a ton of bricks.

Beckwith, Hitch, and the Foundations of Morality

Here.  Excerpt:

. . . [Christopher] Hitchens writes that he and other atheists “believe with certainty that an ethical life can be lived without religion,” thus implying that he and others have direct and incorrigible acquaintance with a natural moral law that informs their judgments about what counts as an ethical life.

But to speak of a natural moral law – a set of abstract, immaterial, unchanging principles of human conduct that apply to all persons in all times and in all places – seems oddly out of place in the universe that Hitchens claimed we occupy, a universe that is at bottom a purposeless vortex of matter, energy, and scientific laws that eventually spit out human beings.

Right.  It is easy to confuse two very different questions, and Sam Harris, one of the Four Horsemen of the New Atheism, does confuse them as I argue here. 

Q1. Given some agreed-upon moral code, are people who profess some version of theism more 'moral,' i.e., more likely to live in accordance with the agreed-upon code, than those who profess some version of atheism?

However it be answered, (Q1) is not philosophically interesting, except as part of the run-up to a genuine philosophical question, though it is of interest sociologically.   Suppose we grant, arguendo, that the answer to (Q1) is in the negative.  Now contrast (Q1) with

Q2. Given some agreed-upon moral code, are atheists justified in adhering to the code?

The agreed-upon code is one that most or many atheists and theists would accept. Thus don't we all object to child molestation, wanton killing of human beings, rape, theft, lying, and swindling in the manner of Madoff? Even swindlers object to being swindled!  And in objecting to these actions, we mean our objections to be more than merely subjectively valid. When our property is stolen or a neighbor murdered, we consider that an objective wrong has been done. And when the murderer is apprehended, tried, and convicted we judge that something objectively right has been done. Let's not worry about the details or the special cases: killing in self-defense, abortion, etc. Just imagine some minimal objectively binding code that all or most of us, theists and atheists alike, accept.

What (Q2) asks about is the foundation or basis of the agreed-upon objectively binding moral code. This is not a sociological or any kind of empirical question. Nor is it a question in normative ethics. The question is not what we ought to do and leave undone, for we are assuming that we already have a rough answer to that. The question is meta-ethical: what does morality rest on, if on anything?

Beckwith is quite right that the naturalist/physicalist/materialist is going to have a hard time justifying his adherence to the moral prescriptions and proscriptions that most of us, theist and atheist alike, accept.  I would argue that a naturalist/physicalist/materialist ought to be a moral nihilist, and that when these types fight shy of moral nihilism that merely shows an inability or unwillingness on their part to appreciate the logical consequences of their own doctrine, or else some sort of psychological compartmentalization. 

I once knew a hard-assed logical positivist who during the work week practiced his positivism, but on Sundays attended Eastern Orthodox religious services.  He avoided cognitive dissonance by compartmentalizing.

The compartmentalized life is the suboptimal life.  Seek existential unity and consistency.

Alan Dershowitz on the Casey Anthony Trial

Here it is in toto with my comments in blue.

"This case [is] about seeking justice for Caylee . . . ." So argued the prosecutor in the Casey Anthony murder case. He was wrong, and the jury understood that.

A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That's because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.

Dershowitz is making an important point, but I wonder if his formulation isn't untenably extreme.  The important point is that a criminal trial can issue in the correct result whether or not justice is achieved for the victim.  If the correct result is an acquittal, then of course there is no justice for the victim in that trial.  But if the correct result is a conviction, then there is justice for the victim in that trial.  So why does D. say that a criminal trial is NEVER about seeking justice for the victim?  It seems to me that what he should say is that a criminal trial is not first and foremost about seeking justice for the victim, but about making sure that the defendant is not wrongly convicted.  Surely D. does  not want to suggest that criminal proceedings have nothing to do with justice.

The glory of our system of justice is the (defeasible) presumption of innocence:  the accused is presumed innocent until proven guilty.  This puts the burden of proof in a criminal trial where it belongs, on the state.  The prosecution must prove that the defendant is guilty; the defense is under no obligation to prove that the defendant is innocent.  In a criminal proceeding all the defense has to do is raise a reasonable doubt as to the guilt of the accused.

This is not well- or widely-understood.  Did you see The O'Reilly Factor last night?  The sweet Laura Ingram, who has been to law school, couldn't get through to the pugnacious and pig-headed O'Reilly.  He seemed not to understand the bit about presumption of innocence and burden of proof, nor did he seem to appreciate that the probative bar in a criminal trial is set very high:  the accused must be shown to be guilty beyond a reasonable doubt and not merely by a preponderance of the evidence.

A criminal trial is neither a whodunit nor a multiple choice test. It is not even a criminal investigation to determine who among various possible suspects might be responsible for a terrible tragedy. In a murder trial, the state, with all of its power, accuses an individual of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence and beyond a reasonable doubt.

Yes indeed.

Even if it is "likely" or "probable" that a defendant committed the murder, he must be acquitted, because neither likely nor probable satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result—acquittal in such a case—may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.

This is basically right, but it should be pointed out that 'reasonable doubt' is a vague phrase. It would seem that at some point the probability that the defendant committed the murder would be so great that it becomes unreasonable to doubt that the defendant did it. Or is Dershowitz claiming that certainty is required for a legally proper conviction?

Ask yourself whether the following scenario would raise a reasonable doubt.  Jones is charged with murder.  His defense is that he has an identical twin brother who was kidnapped at birth but has recently surfaced in order to pin the murder on Jones.  No one is able to cast doubt on Jones' story: the defendant's parents are dead, the birth records were lost or stolen, etc.  There are credible eye witnesses that testify under oath that they saw Jones do the dastardly deed. But what they saw, of course, is consistent with the identical twin's having committed the crime. (Example adapted from James Cargile, "On the Burden of Proof," Philosophy, January 1997, p. 77)

 This scenario shows, I think, that it is not certain that Jones did the foul deed.  But ought this defense raise a reasonable doubt?  I would say no.  It is just too far-fetched and improbable.  So certainty cannot be required for a conviction.  If so, then probability would seem to be relevant, contrary to what Dershowitz claims.

For thousands of years, Western society has insisted that it is better for 10 guilty defendants to go free than for one innocent defendant to be wrongly convicted. This daunting standard finds its roots in the biblical story of Abraham's argument with God about the sinners of Sodom.

Abraham admonishes God for planning to sweep away the innocent along with the guilty and asks Him whether it would be right to condemn the sinners of Sodom if there were 10 or more righteous people among them. God agrees and reassures Abraham that he would spare the city if there were 10 righteous. From this compelling account, the legal standard has emerged.

That is an important point that those who wish to suppress every vestige of our Judeo-Christian heritage ought to think about.

That is why a criminal trial is not a search for truth. Scientists search for truth. Philosophers search for morality. A criminal trial searches for only one result: proof beyond a reasonable doubt.

Again, this strikes me as an extreme way of putting an otherwise excellent point.  Does the good professor mean to suggest that there is no search for truth in a criminal trial?  And does he really want to suggest that proof and truth have no relation one to the other?  Does he think that proof beyond a reasonable doubt does not make it more likely than not that truth has been reached?

A civil trial, on the other hand, seeks justice for the victim. In such a case, the victim sues the alleged perpetrator and need only prove liability by a preponderance of the evidence. In other words, if it is more likely than not that a defendant was the killer, he is found liable, though he cannot be found guilty on that lesser standard.

dershowitz

AP

That is why it was perfectly rational, though difficult for many to understand, for a civil jury to have found O.J. Simpson liable to his alleged victim, after a criminal jury had found him not guilty of his murder. It is certainly possible that if the estate of Caylee Anthony were to sue Casey Anthony civilly, a Florida jury might find liability.

Exactly right.

Casey Anthony was not found innocent of her daughter's murder, as many commentators seem to believe. She was found "not guilty." And therein lies much of the misunderstanding about the Anthony verdict.

True, she was found 'not guilty.'  That is the correct terminology.  And to be found not guilty is not the same as to be innocent.  The misunderstanding of some commentators is to think that being found not guilty is an affirmation of the defendant's innocence.  The finding of 'not guilty,' however, is nothing more than the judgment that the evidence for conviction was insufficient, that the defendant was not proven guilty beyond a reasonable doubt.  That is of course consistent with the defendant having committed the crime with which she is charged.

This misunderstanding is exacerbated by the pervasiveness of TV shows about criminal cases. On television and in the movies, crimes are always solved. Nothing is left uncertain. By the end, the viewer knows whodunit. In real life, on the other hand, many murders remain unsolved, and even some that are "solved" to the satisfaction of the police and prosecutors lack sufficient evidence to result in a conviction. The Scottish verdict "not proven" reflects this reality more accurately than its American counterpart, "not guilty."

'Not proven' is actually a better and more accurate phrase. 

Because many American murder cases, such as the Casey Anthony trial, are shown on television, they sometimes appear to the public as if they were reality television shows. There is great disappointment, therefore, when the result is a verdict of not guilty. On the old Perry Mason show, the fictional defense lawyer would not only get his client acquitted but he would prove who actually committed the murder. Not so in real life.

The verdict in the Casey Anthony case reflected the lack of forensic evidence and heavy reliance on circumstantial inferences. There was no evidence of a cause of death, the time of death, or the circumstances surrounding the actual death of this young girl. There was sufficient circumstantial evidence from which the jury could have inferred homicide. But a reasonable jury could also have rejected that conclusion, as this jury apparently did. There are hundreds of defendants now in prison, some even on death row, based on less persuasive evidence than was presented in this case.

Juries are not computers. They are composed of human beings who evaluate evidence differently. The prosecutors in this case did the best they could with the evidence they had, though I believe they made a serious mistake in charging Casey Anthony with capital murder and introducing questionable evidence, such as that relating to the "smell of death" inside the trunk of Casey Anthony's car.

The defense also made mistakes, particularly by accusing Ms. Anthony's father of sexually abusing her. Although they leveled this unfounded accusation in an effort to explain why Casey had lied, it sounded like the kind of abuse excuse offered to justify a crime of violence. But a criminal trial is not about who is the better lawyer. It is about the evidence, and the evidence in this case left a reasonable doubt in the mind of all of the jurors. The system worked.

Farrell, “Tookie,” Hannity and Colmes, and Bad Arguments

My last post ended with a reference to "Tookie" Williams.  Here is a post from the old Powerblogs site dated 29 November 2005:

I just viewed the Stanley "Tookie" Williams segment on Hannity and Colmes. Williams, co-founder of the L.A. Crips gang, and convicted of four brutal murders, faces execution on December 13th in   California.  Here is a description of one of his crimes. 

What struck me was the low level of the debate. Actor Mike Farrell, as part of his defense of Williams, and in opposition to the death  penalty in general, remarked that "we shouldn't lower ourselves to the level of the perpetrators of violent crime." The implied argument, endlessly repeated by death penalty opponents, is something like this: Since killing people is wrong, the state's killing of people is also wrong; so when the state executes people, it lowers itself to the level of the perpetrators of violent crime.

Now this argument is quite worthless. If it were any good, then, since incarcerating people is also wrong, the state's incarceration of people is wrong. And so on for any penalty the state inflicts as
punishment for crime.

The trouble with the argument is that it proves too much.  If the argument were sound, it would show that every type of punishment is impermissible, since every type of punishment involves doing to a person what otherwise would be deemed morally wrong. For example, if I, an ordinary citizen, demand money from you under threat of dire consequences if you fail to pay, then I am committing extortion; but  there are situations in which the state can do this legitimately as when a state agency such as the Internal Revenue Service assesses a fine for late payment of taxes. (Of course, I am assuming the moral  legitimacy of the state, something anarchists deny; but the people who give the sort of argument I am criticizing are typically liberals who believe in a much larger state than I do.)

So the 'argument' Farrell gave is quite worthless. But Hannity let him escape, apparently not discerning the fallacy involved. Farrell and Hannity reminded me of a couple of chess patzers. One guy blunders, and the other fails to exploit it.

But that's not all. Alan Colmes jumped in with the canard that people who are pro-life should also be opposed to the death penalty, as if there is some logical inconsistency in being pro-life (on the abortion issue)  and in favor of capital punishment for some crimes. I refute this silly 'argument' here.

Even more surprising, however, is that Sean Hannity then committed the same mistake in reverse, in effect charging Farrell with being inconsistent for being pro-choice (which he grudgingly admitted to being after some initial prevarication) and anti-capital punishment.

What people need to understand is that the two issues are logically independent. There is nothing inconsistent in Farrell's position. He could argue that the fetus simply lacks the right to life while   "Tookie" and his ilk possess the right to life regardless of what they have done. Nor is there anything inconsistent in Hannity's position. He could argue that the fetus has the right to life while a miscreant like "Tookie" has forfeited his right to life by his commission of heinous crimes.

So the logical level is low out there in the Land of Talk and I repeat my call for logico-philosophical umpires for the shout shows. But I  suspect I am fated to remain a vox clamantis in deserto.

Capital Punishment Again

Philoponus e-mails:
  
On this issue, we are on the same page–I think we should celebrate our agreements! In fact, I probably support a broader use of CP than you do. I think CP a condign punishment for things like aggravated sexual assault on a minor, aggravated assault with torture, etc.
 
I know people who are Amnesty International members. When they start on this stuff about wrongful executions, I stop them and demand a list of the people whom they think wrongfully executed in the U.S. in the last 20 years. Some facts please! They come up with NO credible cases. They talk about a somewhat mentally impaired killer executed in Texas and another in Florida, but these people admitted their killings and juries considered their impairment at trial. It is clear that  in the cases they point to what they disagree with is law which allows CP rather than a flawed trial process. The verdicts were good verdicts. I personally see absolutely no reason to consider lower than normal IQ an excuse or mitigation for egregious crimes.
  
Some people are just opposed to CP whatever the facts and arguments. Fortunately they are minority in most US states. The argument that CP in the US is killing the wrongfully convicted is getting very hard to sustain. 30 years ago when I took my first course in criminalistics, it was a much more persuasive argument, but the advances in the last 30 years have been huge. The scientific evidence that can be extracted from a crime scene is amazing. O. J. Simpson was very lucky!
  
The average U.S. Death Row innate gets 14 years to appeal his sentence. Project Innocence helps prisoners with any sort of reasonable appeal, and appellate courts even in TX, VA and FL are very generous in considering credible appeals. The standard in these courts is really "above and beyond a resonable doubt" if there is any grounds for doubt. No human institution can be perfect. Nothing can guarantee that a wrongfully convicted person won't be executed, but I think this result is VERY unlikely in the US these days. When someone tells me no one deserves to be executed, I feel obliged to treat them to a graphic murder-by-murder tour of the careers of Bundy, Gacy, and Mike Ross. People need to know exactly what these murderers did to women and boys. This inevitably ends the debate–they have no stomach for the facts.
 
Clarity will be served if we distinguish two claims that the CP-opponent could be making:
 
1. Even if there were no actual or possible cases of a wrongfully convicted person being executed, CP would still be an unjust penalty and should be banned.
 
2. Because there is the possibility of wrongful convictions, CP should be banned.
 
Like you, I cannot fathom how any rational and morally percipient person could embrace (1).  But I find (2) less objectionable, though I reject it as well.  I think the conservative must simply accept the possibility of wrongful executions and then argue that this possibility does not by a long shot outweigh the gross injustice of allowing the most vicious murderers to live on in comfort at tax payer expense for years. 
 
But I now want to point out that you seem to be contradicting something implied by what you were maintaining earlier.  Earlier, you denied that there is a difference between being found guilty and being guilty, even when all the procedural rules in a trial have been scrupulously followed.  That implies, however, that there cannot be a wrongful conviction.  But above you speak as if there can be wrongful convictions for capital crimes, adding that this is very unlikely. 
 
If you maintain against the CP-opponents that wrongful convictions are nowadays extremely rare, then by maintaining that you concede that wrongful convictions are possible (and not just in an anemic logical sense) and that therefore the property of being found guilty in a properly conducted trial of such-and-such charge is not identical to the property of being guilty of said charge. 
 
As for the broadened use of CP mentioned in your opening paragraph, consider arson.  A  man deliberately and maliciously sets a forest ablaze.  In the course of combating it, several firefighters lose their lives.  In addition, countless animals are either killed or deprived of habitat.  And there is property damage in the millions.  Doesn't CP at some point become a condign punishment?  I say yes.  What rational objection could one have to that?
 
It is indeed a strange world.  We in the West coddle the most vicious criminals.  In the Islamic lands hands are cut off for theft.  Both sides have lost their collective minds, though they are far, far worse.   They stone to death the woman caught in adultery and we wring our hands over the execution of a scumbag like 'Tookie' Williams.

Three Arguments Against Capital Punishment Rebuilt?

A  reader e-mails:

I wondered whether I could rebuild the three arguments against capital punishment that you claimed to have demolished in your post:

In 1), you say:

If the wrong person has been executed, that person cannot be restored to life. Quite true. It is equally true, however, that if a person has been wrongly imprisoned for ten years, then those years cannot be restored to him. So the cases are exactly parallel.

I want to examine the nature of this idea that in both cases above the punishment cannot be reversed or restored in some sense. Some punishments can be reversed or restored in a reasonable sense: if the state wrongly fines me for a parking infringement, that fine can be refunded to me (plus interest/compensation as appropriate) in the event that I prove there was no parking infringement. The cases above are not like that: in the case of imprisonment, the punishment cannot be reversed because there is no sense in which someone can have ten years of their life restored; in the case of execution, the punishment cannot be reversed because there is no way in which the executed can be restored to life. But here's the crucial difference between these two cases and why you are wrong to say that the cases are 'exactly parallel'. In the case of imprisonment, reversal/restoration is impossible because of the nature of the punishment. In the case of execution, reversal/restoration is impossible in principle (because there is no longer any person and therefore no way in which their punishment can be reversed). Us liberals take issue with this a priori rejection of punishment reversal.

I don't think you are making your point as clearly as you might.  What you want to say is that, in the case of the unjust imprisonment, some compensation is possible whereas in the case of an unjust execution, no compensation is possible.  That is a good point, and I accept it.  The parallel is that in both cases something is taken away from the unjustly punished individual, something that cannot be restored: ten years of freedom in the one case, life itself in the other.  So there is an exact parallel with respect to what was taken from the individual by the punishment.  For in both cases what was taken away cannot be restored.  So if you say that the capital penalty is irreversible, and that that is your reason for opposing capital punishment, then I will say that, by parity of reasoning, imprisonment should also be opposed since it too is irreversible.  And then you have 'proven too much.'

To be found guilty is not to be guilty. So a reasonable justice system must have built into it mechanisms by which miscarriages of justice (which might be established in the light of new evidence, for example) can be compensated. Capital punishment removes such mechanisms which is partly why I reject it.

An interesting argument.  Perhaps it could put as follows:

a. Every just punishment allows for the possibility of rectification in the case of a false conviction.
b. No instance of capital punishment allows for the possibility of rectification in the case of a false conviction.
Ergo
c. No instance of capital punishment is just.

The argument is valid, and we both accept (b).  But this is equally valid:

b. No instance of capital punishment allows for the possibility of rectification in the case of a false conviction.
~c. Some instances of capital punishment are just .
Ergo
~a. Some just punishments do not allow for the possibility of  rectification in the case of a false conviction.

I support (~c) by invoking the principle that the punishment must fit the crime and that therefore some crimes deserve capital punishment.  If this doesn't convince you then I say that that the two arguments just given neutralize each other, in which case we have a stand-off.

Argument 2) I think probably boils down to an impasse. There are clearly punishments which, though they involve the state acting in a way that in other circumstances would be impermissible, society feels are acceptable: imprisonment (which under other circumstances would be kidnap), fines (which under other circumstances would be extortion). But there are other possible punishments which, though (because?) they would involve the state acting in a way that in other circumstances would be impermissible, society feels are unacceptable: the rapist is not raped, the arsonist does not have his house burnt down, the drunk-driver who kills a child does not have his own child killed by state-sanctioned drunk driver. You say capital punishment fits with the first class of punishments. I say the second.

That too is an interesting point.  We don't subscribe to the principle of 'an eye for an eye.'  Thus we don't gouge out the eye of the eye-gouger; we don't sodomize the sodomizer; set afire the bum-igniter, etc.  Your point, I take it, is that if we don't do these things, then we ought not kill the killer. But 'killing' is a generic term that covers a multitude of ways of killing:  one can kill by stabbing, poisoning, drowning, choking, dismembering, burying alive, detonating, etc.  So, while agreeing that we ought not stab the stabber, dismember the dismemberer, etc., it does not follow that we ought not kill the killer if the killing is done in a humane way.

I've heard it said that lethal injection is "cruel and unusual punishment," but that's risible.  Say that, and you've drained the phrase (which occurs in the U. S. Constitution) of all definite meaning.

I'd like to pick up on the deterrence point in argument 3). In order for capital punishment to be an effective deterrent I would argue that would-be criminals must a) fear death and b) be cognizant of the fact that some crimes are capital crimes. I don't mean that they must 'know' that some crimes are capital crimes in some vague, non-immediate sense, like the sense in which I know that three of Wittgenstein's brothers committed suicide – a fact I had not recalled for some time until a moment ago. No, I mean that would-be criminals must be aware of the fact that some crimes are capital crimes in strong sense: a sense in which a fact affects your actions. I would wager that a) is at least contestable: drug lords live under the distinct possiblity of execution, without due process or lethal injection, by rival drug lords but it doesn't seem to affect their actions. And b) is debatable in the sense that some crimes are crimes of passion, crimes committed whilst drunk or high or otherwise in a mentally-altered state ('So we should let them off?!' you say. No, of course not. But capital punishment is unlikely to deter them).

When I said that swift and sure execution  would have a deterrent effect I didn't mean for all. The examples you give are plausible.  How much deterrent effect?  Who knows.  But it would be a substantial one.

I love the blog.

Thank you for reading and for the response!

Three Arguments Against Capital Punishment Demolished

1. One could be called the 'epistemological' argument: it can't be known that one accused of a capital crime is guilty.  The argument sometimes takes this enthymematic form:

P2. Capital punishment is sometimes inflicted on the innocent.
Therefore
C. Capital punishment ought to be banned.

But this argument is invalid without the auxiliary premise:

P1. Any type of punishment that is sometimes inflicted on the innocent ought to be banned.

In the presence of (P1) the conclusion now follows, but  (P1) cannot be accepted. For if we accept it, then every punishment ought to be banned. For every type of punishment  has been at some time meted out to the innocent.  Obviously, to be found guilty is not to be guilty. Our first argument, then, suffers from probative overkill: it proves too much. I reject the argument for that reason, and you ought to too.

If the wrong person has been executed, that person cannot be restored to life.  Quite true. It is equally true, however, that if a person has been wrongly imprisoned for ten years, then those years cannot be restored to him.  So the cases are exactly parallel.  At this point liberals will often say things that imply that their real objection to capital punishment is that it is capital.  Well, yes, of course: it has to be.  For the punishment must fit the crime, and anything less than capital punishment for certain crimes violates the self-evident moral principle that I put in italics.  Justice demands capital punishment in certain cases.  If you don't agree, then I say you are morally obtuse.  On this issue which divides Right and Left either you see that justice demands capital punishment in certain cases or you are morally blind. End of discussion.  To argue with the morally blind is as pointless as arguing with the color-blind and the tone-deaf.

2. Another argument repeatedly given against capital punishment is that it involves doing to a person what in other circumstances would be deemed morally wrong. We could call it the 'consistency argument.'  The argument is that, since killing people is  wrong, then the state's killing of people is also wrong. The trouble with this argument, however, is that it, like the preceding argument, 'proves too much.'  

For if the argument were sound, it would show that every type of  punishment is impermissible, since every type of punishment  involves doing to a person what otherwise would be deemed morally wrong. For example, if I, an ordinary citizen, demand money from you under threat of dire consequences if you fail to pay, then I am committing extortion; but there are situations in which the state can do this legitimately as when a state agency such as the Internal Revenue Service assesses a fine for late payment of taxes.  (Of course, I am assuming the moral legitimacy of the state,     something anarchists deny; but the people who give the sort of argument I am criticizing are typically liberals who believe in a much larger state than I do.)

The state is a coercive entity that limits the liberties of individuals in all sorts of ways.  It has to be coercive to do its job.  If you hold that the state is practically necessary and morally justifiable, then you cannot reasonably balk at the state's killing of certain of its citizens.

If justice demands the execution of certain miscreants — and it does — then this justice must be administered by some agency.  It had better be an agency dispassionate and impartial hedged round by all sorts of rules and safeguards. Otherwise vigilantism.  The job falls to the state.

3. And then there is the 'cost' argument.   The idea is that capial punishment is not cost-effective. It is claimed that the benefit to society does not outweigh the cost. A utilitarian might be able to rig up such an argument, but I am not a utilitarian. The issue is one of justice. Justice demands capital punishment in certain cases, and it doesn't matter what it costs, or whether there is any benefit to society, or even whether there is any society to benefit. (Recall Kant's last man example.)

In any case, there is nothing necessary about high costs. They could easily be reduced. A limit could be set to appeals — and ought to be set to them. Endless appeals make a mockery of justice. And if   malefactors were executed in a timely fashion, the deterrent effect would be considerable. Thus the 'no deterrence' argument is also worthless in my opinion.  Apart from the suicidal, people love life — criminals included.  Swift and sure execution for capital crimes could not fail to have a deterrent effect.

I will add that if it could be shown that in some jurisdiction the capital penalty was not being applied fairly and justly (due to prejudice against people of Middle Eastern descent, let us say), then I would support a moratorium on the penalty in that jurisdiction. But this question is distinct from the question of principle.  That alone is what I have been discussing.

Proceduralism: Lotteries, Elections, Trials

What is the essence of proceduralism?  I suggest: the criteria by which we judge that such-and-such is the case are constitutive of what it is for such-and-such to be the case.  Or perhaps: the norms governing the validity of the 'output' of a procedure are identical to the procedural rules whereby fair are distinguished from unfair procedures.  But I had better give an example, and pronto.

1. Lotteries.  About (fair) lotteries we ought to be (pure) proceduralists.  That is, we ought to hold that the procedure by which it is determined that a certain number is the winning number constitutes what it is to be the winning number.  Of course I am assuming that the lottery procedure is fair: the selection process is random, and so on.  So assume we have a fair lottery and that Wealthy Willy wins a pile of loot.  Surely the following questions are senseless:  Did Willy really win?  Or was he merely judged to have won by the lottery officials?  Isn't it possible that the lottery procedure, though fair and unbiased, selected the wrong winner? Isn't it possible that Impecunious Ike, or some other guy, is the real winner?

The point could be put as follows. With respect to lotteries, it is broadly-logically impossible that a person instantiate the property being judged to be a winner of lottery L and not instantiate the property being a winner of lottery L.

When it comes to lotteries, proceduralism is the only game in town.

2.  Elections.  The same, I think, goes for elections.  If Snerdly gets more votes than the other candidates, he becomes president of the chess club. Surely it would be senseless to question whether Snerdly has really been elected, as if he could have an 'elective status' independently of the (fair) procedure by means of which he either wins the office or not. 

In both the lottery and election cases one could of course maintain that there is something unfair, though not procedurally unfair, about the result.  If Wealthy Willy, who needs no money, wins a million then that will be perceived as an unfair outcomes by the other players, all of them poor schmucks.  But this is irrelevant to the point.  It is also irrelevant to Snerdly's 'legitimacy' that he is not competent to be president if you assume that he was fairly elected.

3. Trials.  Suppose a man is found guilty of a crime in a court of law in which all the proper procedures have been followed.  Assume that the prosecution, the defense, the judge, and the jury are all highly competent and morally above reproach.  The man has been found guilty of committing some crime; can one nevertheless reasonably ask whether he in fact committed the crime?  In the case of Wealthy Willy, one cannot reasonably ask whether he in fact won:  his having won just is his being-judged-to-have-won by the lottery officials. 

If a sharp thinker insists that even in the Willy case  there is a distinction between the two properties, I will cheerfully concede the point and congratulate the thinker on his intellectual acuity; but I will go on to insist that the distinction obtains only on the 'intensional plane' and not on the 'extensional plane.'  For surely it is impossible that Willy or anyone instantiate the first property without instantiating the second.

So, extensionally, there is no distinction in the case of Willy between the property of having won and the property of having-been-judged-to-have-won.  My question is whether, extensionally, there is a distinction between being guilty and being found guilty in a properly conducted court of law.

My answer is in the affirmative.  This implies that there is at least a serious question as to whether proceduralism holds with respect to legal trials.  A rational person must be a proceduralist when it comes to lotteries, but he needn't be when it comes to the law.

But I am prepared to make a stronger claim.  Not only is there a serious question as to whether proceduralism holds with respect to legal trials, proceduralism does not and cannot hold with respect to them.  For it is not perfectly obvious that people have been tried, convicted, and executed for crimes they did not commit?  They were found guilty but they were not guilty in fact.  All the procedures were properly followed and they were found guilty beyond a reasonable doubt. But they were not guilty in fact.

4. One might object to the foregoing as follows:

Look, we are agents, not transcendental spectators,  and we have to come to intersubjectively binding and enforceable decisions in a timely fashion about matters of moment in conditions in which certain knowledge is rarely available.  Sure, Jones is conceivably innocent despite having been found guilty in the eyes of the law.  His guilt or innocence is not constituted by his being found guilty or innocent.  But that is a merely theoretical consideration.  For all practical purposes to be found guilty is to be guilty. After all, there is no other way  we have of reliably determining guilt and innocence apart from the court sytem.  We cannot call God on the phone.  He is incommunicado, the hot line to the divine having been down for some millenia now.  Given that there is no other equally efficacious procedure available, for practical purposes the 'ouput' of the legal procedure is identical to the objectively correct 'output.'

This objection concedes the main point I wanted to make, namely, that one cannot be a (pure) proceduralist when it comes to legal trials.  This objection is the  best I can do by way of a charitable interpretation  of certain recent animadversions of commenter Philoponus  in the comment thread to this post.  But perhaps I haven't understood him. 

On Being Guilty and Being Found Guilty

Blogging has been good to me.  I have met a number of very interesting and intellectually stimulating characters via the blogosphere.  I had breakfast with four of them last Sunday morning: Peter L., Mike V., Carolyn M. and Seldom Seen Slim.  Topics included logic and existence, the concept of sin, the question why be moral, and the distinction between being guilty and being found guilty in a court of law.

Slim and I found ourselves in that dialectical situation known as a disputation or dispute.  Douglas N. Walton, a noted writer on informal logic, defines the term as follows. "A dispute is a dialogue in which one side affirms a certain proposition and the other side affirms the opposite (negation) of that proposition." (Informal Logic: A Handbook for Critical Argumentation, Cambridge UP, 2007, p. 60.)  I affirmed the proposition that to be found guilty/not guilty in a court of law is not the same as to be guilty/not guilty.  Slim affirmed the negation, namely, that to be found guilty/not guilty  is the same as to be guilty/not guilty.  The distinction strikes me a self-evident; but Slim denied it and I could not budge him from his position. 

While thinking further about the matter yesterday, the following argument occurred to me which strikes me as decisive.

Here are two questions we can ask with respect to burden-of-proof (BOP) considerations as they figure in our legal system.  First, why is a BOP assigned at all?  (One can imagine courtroom proceedings in which no BOP is assigned.) Second, why is it assigned to the prosecutor/plaintiff?  Part of the answer to the first question is because a decision must be made, a question resolved, a dispute adjudicated — and in a timely manner.  If there is no presumption on one side or the other, or, correlatively, no BOP assigned to the other side or the one, then in cases where the evidence is evenly balanced or unclear a decision might be not be achievable in a reasonable time.  But why lay the BOP on the state or the plaintiff or their respective representatives?  At least part of the answer to this second question is that we collectively judge it to be better that a guilty person go free than that an innocent person be wrongly convicted.

Now if Slim grants me this obvious point, then I have all I need to refute his assertion.  To prefer that a guilty man go free than that an innocent man be penalized and in some cases executed  is precisely to presuppose my distinction between being guilty/not guilty  and being found guilty/not guilty in a court of law.  He who denies this distinction removes the main reason for the presumption of innocence, a central pillar of our legal system.

Apparently, Slim thinks there is no objective fact of the matter as to whether or not a person accused of a crime is guilty of it or not.  He seems to think that a guilty verdict or an acquittal is what makes one either guilty or not guilty.  To my mind this is utterly preposterous.  It elides the obvious distinction between a fallible judgment about the way things are and the way things are.

My point goes through even if there is no distinction betweem morality and legality.  Suppose there is no distinction between a morally wrong killing of a human being  and a legally wrong killing of a human being, that the former collapses into the latter.  (Someone who holds this could argue that abortion is legal and so ipso facto moral.)  Even so, either Jones killed Smith in a legally proscribed manner or he did not — regardless of a court's verdict.  There are hard facts about what the law proscribes, and there are hard facts about Jones' behavior in relation to Smith.  Those two sets of fact taken together determine whether he is guilty or not guilty.

There is only one way I can imagine my distinction collapsing.  In the divine court, if such there be, there cannot be any discrepancy between being found guilty and being guilty, nor between being found innocent and being innocent.  The distinction would hold only on the intensional plane; extensionally there would be no possibility of a person beng found guilty/not guilty and being guilty/not guilty.  Here below, however, we are stuck with fallible courts.  And it is a curious form of idolatry to suppose that our fallible courts can do what only the divine court can do.

Libertarians and Drug Legalization

Libertarians often argue that drug legalization would not lead to increased drug use.  I find that preposterous, and you should too.  There are at least three groups of people who are dissuaded from drug use by its being illegal.

1. There are those who respect the law because it is the law.  'It's against the law' carries weight with them; it has 'dissuasive force.'  For these people the mere fact that X is illegal suffices for them to refrain from doing X.  It doesn't matter for the purposes of my argument how many of these people there are or whether they are justified in respecting the law just because it is the law.  The point is that there are such people and that the mere illegality of doing X supplies a motive for their not doing X. 

Now suppose the legal prohibition on doing X is removed.  Will every one in this first class begin doing X?  Of course not.  The point is that some will.  So it should already be clear to anyone with common sense and no ideological axe to grind that drug legalization will lead to increased use.

2. There are those who may or may not respect the law because it is the law, but fear the consequences of getting caught breaking it.  These people don't like rude encounters with cops, jail time, fines, loss of reputation, etc.  Among these people are libertarians who favor legalization and have no respect for current drug laws but obey the current laws out of fear of the consequences of breaking them.

3. There are also those who are quite confident that they can avoid the consequences of breaking the drug laws, but fear the consequences of contact with drug dealers. They fear being cheated out of their money, being given diluted or poisoned product, etc.

Now take the logical sum, or union, of the three classes just menioned.  The membership of that union is significant. Legalize drugs and some of those people will begin using drugs.  And of those who begin, some will end up abusing them, becoming addicted, etc.

Therefore, it is utterly preposterous to claim as libertarians typically do that drug legalization will not lead to increased use.  So why do people like Ron Paul  make this claim?  It is hard to figure.  Why say something stupid that makes your case weaker than it is?  Is it just knee-jerk oppositionalism? (I can't find my  old post on knee-jerk oppositionalism, but I'll keep looking.) 

Why did Paul say, "How many people here would use heroin if it were legal? I bet nobody would."?  That's just a dumbass thing to say.  Paul is assuming that whether one does X or not has nothing to do with whether X is legally permissible or legally impermissible.  He is assuming that people who use drugs will use them no matter the law says, and that people who do not use drugs will refrain from using them no matter what the law says.  That is a bit of silliness which lies beneath refutation.  So again I ask:  why do libertarians maintain extremist stupidities when there are intelligent  things they can say?

After all, libertarians do have a case.  So my advice to them would be to concede the obvious — that legalization will result in greater use — and then argue that the benefits of legalization outweigh the costs.  They will then come across, not as fanatical deniers of the obvious, but as reasonable people who understand the complexity of the issue.

As for Ron Paul, I'm afraid he has already blown his 2012 chances with his remarks on heroin.  It's too bad.  The country needs to move in the libertarian direction after decades and decades of socialist drift.  But the American people do not cotton to fanatics and the doctrinaire. 

Kierkegaard on the Impotence of Earthly Power

Kierkegaard stamp  The following passage from Concluding Unscientific Postscript embodies a penetrating insight:

. . . the legal authority shows its impotence precisely when it shows its power: its power by giving permission, its impotence by not being able to make it permissible. (p. 460, tr. Swenson & Lowrie)

My permitting you to do X does not make X permissible.  My forbidding you to do X does not make X impermissible.  My permitting (forbidding) is justifed only if what I permit (forbid) is in itself permissible (impermissible).  And the same goes for any finite agent or collection of finite agents. A finite agent may have the power to permit and forbid, but it cannot have the power to make permissible or impermissible.  Finite agency, then, betrays its impotence in exercising its power.

For example, the moral permissibility of killing in self-defense is what it is independently of the State's power to permit or forbid via its laws.  The State cannot make morally permissible what is morally permissible by passing and enforcing laws that permit it.  Nor can the State make morally impermissible what is morally permissible by passing and enforcing laws that proscribe it.

Here below Might and Right fall asunder: the powerful are not always just, and the just are not always powerful.  But it would be a mistake to think that the mighty cannot be right, or that the right cannot be mighty.  The falling asunder is consistent with a certain amount of overlap.

Power does not confer moral justification, but neither does impotence.  (For example,the relative weakness of the Palestinians relative to the Israelis does not confer justification on the Paestinian cause or its methods.)  See The Converse Callicles Principle: Weakness Does Not Justify.

The State is practically necessary and morally justifiable.  Or so I would argue against the anarchists.  But fear of the State is rational: its power is awesome and sometimes misused.  This is why the State's power must be hedged round with limits.

We don't know whether or not God exists.  But we do know that nothing is worthy of being called God unless it is the perfect harmonization and colaescence of Might and Right, of Power and Justice, of Will and Reason. 

Tough questions:  Could such a transcendental Ideal (in Kant's sense) be merely a transcendental Ideal impossible of existence in reality?  And could anything impossible count as an ideal?  But if God is possible would he not have to be actual?

Too Many Laws

You've heard me say it before.  Laws should be few in number, rational in content, enforceable, and enforced.  As it is, we have too many laws, indeed, too many 'Ls':  too many laws, lawyers, legislators (most of whom are lawyers), and liberals.  How can a government claim to be representative of the people when it is top-heavy with lawyers?  That is a question that ought to be asked.  While you're at it, ask whether it might not be a good idea to have some de-legislators in among the legislators.

America is Drowning in Law.

Supererogation and Suberogation

It would be neat if all actions could be sorted into three jointly exhaustive classes: the permissible, the impermissible, and the obligatory. These deontic modes would then be analogous to the alethic modes of possibility, impossibility, and necessity. Intuitively, the permissible is the morally possible, that which we may do; the impermissible is the morally impossible, that which we may not do; and the obligatory is the morally necessary, that which we must do.

Pursuing the analogy, we note that the following two alethic modal principles each has a deontic analog, where 'p' ranges over propositions and 'A' over actions:

Mel Gibson, Misplaced Moral Enthusiasm, and Real Threats

Mel Gibson is in the news again.  What I said about him on 1 August 2006 bears repeating:

What's worse: Driving while legally drunk at 87 miles per hour in a 45 mph zone, or making stupid anti-Semitic remarks? The former, obviously. And yet a big stink is being made about  Gibson's drunken rant. I call this misplaced moral enthusiasm.

Calling a Jew a bad name won't kill him, but running him over in your speeding 2006 Lexus LS 430 will. On the one hand, offensive words that no reasonable person could take seriously; on the other hand, a deed that could get people killed.

Here is what Gibson said: "The Jews are responsible for all the wars in the world," and, addressing the arresting officer, "Are you a Jew?" Now compare Gibson with Iran's Mahmoud Ahmadinejad who repeatedly has called for the destruction of the State of Israel. Ahmadinejad's is speech that incites unspeakable violence, unlike Gibson's drunken rant which is no threat to anyone. So let's forget about Gibson, and concentrate on real threats.

Church, State, and Arizona SB 1070

E. J. Montini of the Arizona Republic reports that ". . . one of the lawsuits challenging SB 1070 is based on the notion that the law inhibits First Amendment freedom to worship."  As Montini correctly states, "Among other things, SB 1070 makes it a crime to knowingly transport, harbor, conceal or shield an illegal immigrant if you do so while committing a separate criminal offense."

This provision of the law will of course cause trouble for those pastors and other church members who transport illegals to and from church functions.  Suppose Pastor X is pulled over for a traffic violation while shuttling a group of illegals.  Said pastor is liable to prosecution under the 1070 law.  That is as it should be since the pastor is aiding and abetting the flouting of U. S. law.

But by what stretch of logic does one conclude that violators of U. S. immigration law are having their First Amendment rights violated?  They have no such rights!  Those are rights of U. S. citizens, not rights of anyone, citizen or not.  But even if you think that illegal aliens do have First Amendment rights, or some analogous universal human right, there is nothing in 1070 that prohibits the free exercise of religion on any reasonable construal of 'prohibit.'    The right to the free exercise of religion does not give one the right to do anything in the free exercise thereof.

Take a simple example.  Catholic priests cannot be prohibited by the state from saying mass.  To do so they need wine.  But there are laws against theft, so they need to come by their wine by some legal means.  Now suppose some benighted liberal argues that the laws against theft inhibit the First Amendment freedom to practice one's religion by prohibiting the stealing of wine and other supplies needed at mass.  Anyone can see that to argue in such a way would be a joke.  To take a more drastic case, suppose there is a Satanic ritual that requires the killing of cats.  No sane person could argue that the laws against cruelty to animals interfere with the First Amendment rights of satanists.

Similarly with 1070.  No rational person could argue that it inhibits First Amendment rights.  The right to practice one's religion does not give one the right to break laws in its practice.

Churchmen need to reflect carefully on their relation to the State.  If they flout its laws, and in so doing undermine the rule of law, then who will protect them when they need it?  Will the good pastors who aid and abet illegal aliens forego calling up the police when they need protection?  Will they try to have it both ways, deriving the benefits from the rule of law while undermining it?