Tête-à-Tête-Tête » Justice

Of Railroading

smijer — Tue, 20 Jul 2010 20:20:31 +0000

Worth more than an eye-booger… an upcoming wrongful execution (that’s assuming for the sake of argument that not all executions are wrongful). It isn’t too late yet.

Thirteen years after he was convicted, Keith’s lawyers discovered that one of the state’s “witnesses” never actually existed, and that police at his trial testified about a fictitious person and attributed a statement to her.

And that’s just the tip of the iceberg. Yet Kevin Keith is still on death row.

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ACLU – Hands off Miranda

smijer — Thu, 20 May 2010 11:00:25 +0000

Here.

So these two cases are very similar: both are suspected of terrorist acts, both are caught, questioned, and Mirandized, and most crucially, both cooperate with law enforcement authorities both before and after they were read their Miranda rights.

Which is why it’s completely befuddling that some politicians have used these attempted terrorist attacks to propose that we completely change the way we enforce the rule of law. Some have charged that it was mistake to Mirandize both Abdulmutallab and Shahzad, that they should have been interrogated more—some have even implied tortured—before they were read their rights. The Obama administration has caved to this naked fear-mongering: Last week, Attorney General Eric Holder told the House Judiciary Committee that the administration wants to “modernize” and “clarify” the public safety exception in terrorism cases.

Related… There is a saying about blind squirrels. But yes, credit where credit is due.

I’m filing this under “justice” instead of “politics” to keep from getting dumber. Praise to Glenn B for doing the same, and shame on Holder/Obama for filing under politics.

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Meet the new boss…

smijer — Thu, 08 Apr 2010 22:24:44 +0000

This is my tipping point. Unless and until sanity returns to the American political system, I will not participate in it in any capacity. The only exception is the possibility that a sane third party arises with a credible promise of reform. That is all.

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Retributive Justice Again

smijer — Sat, 02 Jan 2010 19:48:02 +0000

I rail periodically against retribution as a notion of justice here on the blog. I suppose it is an artifact of my interests in religion, human nature, and criminal justice that keeps this topic always relevant to me and makes me want to dwell on it at painful lengths. I spent the last couple of days trying to catch up my blog-reading… where thousands of posts piled up since before Christmas. I had to mark most of them read without even scanning headlines, but I managed to read a few interesting posts. One of them was from John H. Hobbins on Enthusiasm for Retributive Justice. It’s a nice post, covering some interesting angles, and giving me a jumping off spot for a couple of my own.

My first thought goes to the religious angle. John is an Evangelical (and reasonably conservative) Christian. As such, it is worth noting that his attitude toward retribution as justice is – if I read him right (which is often hard for me to do because his communication style is often very… “poetic”, and sometimes I find him hard to pin down) – a negative one. If I do read him right then I would want to keep that in my pocket for later discussions. I would like to show evidence that non-retributivism is not a “secular liberal” viewpoint – and such attitudes and arguments from conservative Christians serve as good evidence for that point.

This is especially important in discussions of doctrines of Hell. Most defenses of traditional notions of Hell rely on the notion that God is Just and that his Justice is a retributive one, though that latter point is normally obscured as much as possible from the defense itself if not from the consciousness of the person presenting it.

As discussed before, one’s theory of what properly constitutes justice should inform one’s view on whether or how retribution can serve the cause of or even be considered as justice. In Hobbins’ case, his objection to retribution doesn’t seem to derive from a theory of justice quite so much as it does from a theory of Scripture, but I’ll take what I can get here. My contention is that upon reflection, no theoretical system of justice that reflective, modern thinkers would find worthy of the name allows for the derivation of an important role for retribution – and certainly none would allow for retribution to be defined as justice.

Hobbins mentions the potential role of retribution in bringing “closure” for family victims of “Capital” crimes in terms suggestive of a Trojan horse. Whether or not that is its intended goal, it is an interesting puzzle. Should we take a family victim’s self-analysis as sufficient reason to consider that retribution has a restorative role in bringing closure? I don’t know – I’m skeptical on this – but more importantly, even if we do acknowledge that role, we are not advocating retribution qua retribution, but rather on the theory that it plays a restitutional role (one that could not possibly apply to arguments on the traditional doctrines of hell, for instance).

I think, whether Hobbins has also considered the question in terms of ethical theories of justice or not, he and I would agree that real justice is essentially preservative, preventative and restorative in nature. In other words, a just effort is one that seeks to preserve what is right, prevent wrong from happening, and to restore the right when a wrong has been done – all while avoiding greater wrongs.

Where I believe we differ a tad is on the political side of the question. I quote:

On the other hand, the fact that redistributive justice – which those same people usually affirm – is a type of retributive justice is almost universally overlooked. You know, progressive taxation, affirmative action, things like that. The feeling seems to be that redistributive justice cannot be a form of retributive justice.

I find this statement extremely revealing of a difference in perspective between advocates and detractors of what Hobbins calls “redistributive” justice.

In fairness to his view, there is a contingent among advocates of progressive taxation or affirmative action that do hold and argue for a retributive role for both – especially for affirmative action, when you consider the “reparations” movement and ’60′s radicalism.

In fairness to the rest of us and myself, it is neither necessary nor particularly common to advocate progressivism with the motive of retribution. In fact, I view progressive taxation exclusively in terms of preservative justice – maintaining a right economic system by avoiding the systematic or institutional transfer of un-earned riches into the hands of the wealthy and out of the reach of the nation that helped produce them and needs them to continue to live and function.

That isn’t to say that none of my political or economic opinions have room for punitive measures against wealthy abusers, or that my temperament doesn’t sometimes allow me retributive feelings against the same. But I don’t feel that wealth is itself an abuse and I am capitalist enough that I salute the industry of those who have achieved it. It is admiration that figures into my view of those wealthy, not retribution. And it is preservation that wholly informs my support for progressivism.

That this conservative sees progressivism as a form of retribution explains why he would take a dim view of progressivism. And it shows that there is a real communication breakdown between the progressive and conservative sides.

In any case – I’m glad to share with Hobbins a skepticism about enthusiasm for retribution. Human nature is such that the desire for it is – as Jesus said of the poor – always going to be with us. Research shows that the desire to punish wrong-doers is a strong psychological pre-disposition in humans, and suggests an evolutionary explanation for why this is so. Experience teaches us that most of us will justify those desires and the expressions of them by looking at them as elements of a worthwhile cause, such as justice.

We won’t rid ourselves of the desire to return ill for ill. But, we can reason better about that desire. We can recognize it as an emotion – even as a legitimate emotion. At the same time, we can recognize that it does not fit a properly understood theory of justice. We can recognize that indulging that emotion, in many cases, can be contrary to justice and contrary to a well-ordered society.

So, if any progressives out there advocate “redistributive” justice (for lack of a better word) out of a visceral desire for retribution as Hobbins perceives, it’s worth taking a second look at your goals and priorities. If advocates of the death penalty have retaliation mixed in amongst your justifications for it, it’s worth revisiting the role emotion plays in your theory of justice. And, if you are defending a traditional notion of Hell on the basis that God is “Just”, it’s worth spending some time figuring out what “justice” is, and whether the quintessentially human desire for revenge is really properly called by that name.

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Posted in: Justice, People, Philosophy, Religion
Post tags: retribution

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“Rape-Rape”

smijer — Wed, 30 Sep 2009 17:00:11 +0000

I wasn’t going to say anything about Roman Polanski. I figured no one needed my help to figure out that what he did to his victim was the utmost of deplorable. But apparently some people do need some help. Whoopi Goldberg, who up until today had as much respect from me as any Hollywood celebrity, makes that clear:

Whoopi Goldberg wants the media to refrain from accusing Roman Polanski of rape and to recognize that other cultures may view 13-year-old girls as sex objects.

At U.S. request, Swiss authorities arrested Polanski, an Oscar-winning movie director, when he arrived in Switzerland to receive an award at the Zurich Film Festival. He had originally fled the U.S. to escape sentencing after agreeing to plead guilty to having sex with a 13-year-old girl in 1977 and has remained a fugitive ever since.

Victim Samantha Jane Gailey testified at the time that Polanski persuaded her to go with him to actor Jack Nicholson’s vacated home to take photos. Polanski asked Miss Gailey to undress, drink champagne and take a dose of Quaalude. After he made advances toward her in a Jacuzzi, she asked him to take her home. He refused and then performed sexual acts on her, although she asked him to “stop it.” She testified that she did not resist because “I was afraid.”

The arrest has sparked a firestorm over whether the director should have been detained, which was debated on ABC’s “The View” on Monday.

“I know it wasn’t rape-rape,” Ms. Goldberg said on the program. “It was something else, but I don’t believe it was rape-rape … when we are talking about what someone did and what they are charged with, we have to say what it actually was, not what we think it was.” She argued that it would be more accurate to say that Polanski was charged with rape and pleaded guilty to having sex with a minor.

“I don’t like it when we are passionate about something, and we don’t have all the facts,” Ms. Goldberg lectured.

Ms. Goldberg also said it was important for commentators to take into account of other foreign cultures that think it’s permissible to have sexual relations with 13-year-olds. “We are a different kind of society,” she said. “We see things differently.”

This is willful ignorance, and it’s detestable. I loved the Pianist… never watched Rosemary’s Baby. But I can’t pretend that Polanski didn’t commit a crime of the greatest severity imaginable. He does not deserve special considerations because of his talent or fame.

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A few words on ACORN

smijer — Fri, 18 Sep 2009 21:23:45 +0000

… Tough subject to talk about in a fair way. I’ll try. These thoughts will be random and disconnected, as usual.

First, please construe nothing I say as an effort to minimize the wrong-doing documented in the famous videos on the part of ACORN staffers.

I once was a libertarian on the subject of prostitution, but no longer. Prostitution should be decriminalized for the prostitute only, if at all. “Johns” and pimps should feel the full weight of justice. This view comes from learning about massive human trafficking motivated by prostitution. Given that the chief complaint against these staffers is that they, in some cases, offered to assist pimps in setting up brothels, I would not see that grievance minimized.

This despite the fact that the individual who arranged the hidden-camera exposé was a self-important schmuck on a vendetta inspired by manufactured right-wing paranoia. This despite that these events will forever mar the reputation of an organization that is in many ways a very positive force for people in the American underclass. Unfortunately, as is often the case with non-profits, ACORN did not sufficiently screen or train their employees, and will suffer as a result. A lesson in sustainable growth for non-profits – a very costly lesson.

So, anyway… I guess that’s the first point. For a fair-minded person, no matter their political preferences, ACORN is and was an organization on a positive mission to assist the urban poor in important ways. This fact should be overlooked by no-one. Despite having what appear to be systemic flaws that could potentially be exploited by people of ill will, it cannot be said that ACORN ever deserved the jihad that was waged against it on phony pretexts and out of irrational paranoia.

Next issue in order of however it randomly comes to my mind: Do O’Keefe and Giles deserve to be prosecuted for illegally recording a verbal conversation in order to produce their piece? No. The first amendment should protect them. The Baltimore D.A. who entertained the notion was wrong to do so, and may deserve accusations of partisanship for suggesting it.

Next: Should O’Keefe & Giles be lionized for bringing this scandal to public attention? No. They are, as I said earlier, self-important schmucks with a vendetta. I can imagine a similar scenario in which those doing the exposing would be praise-worthy: Imagine that an individual was concerned about the quality of services being offered by non-profits in her area… perhaps she witnessed something suspicious… perhaps because she had done sociological research and learned that there were often flaws in such organizations… perhaps because she had heard complaints from people in the neighborhood. Imagine that she staged something of this sort in order to answer a real concern she had. Imagine she recorded such an incident, then turned over the information quietly to regulating authorities who then pursued it in a professional way with the aim of fixing the problems. Such efforts would be laudable. Malicious fratboy hijinks just don’t qualify. Sorry. That goes for you, too Breitbart.

Next… this is interesting. Sue Sturgis at Facing South has written a piece that compares the Congressional reaction to the revelations about poor staffing at ACORN with their reaction to Blackwater’s malfeasance in Iraq. She found that 23 members of the House – all Republicans – decided it was worth completely defunding ACORN over the incident at hand… but felt it would be going to far to allow a far less serious sanctions against Blackwater meant to make them accountable for the shooting deaths of 17 civilians in Iraq. It’s time for somebody to get some perspective.

I held my fire on ACORN for over a week. I didn’t want to jump in without all the info. I didn’t want to mindlessly condemn them just to show that I was one of the “reasonble” guys on the Democrat’s side. And, I certainly didn’t want to defend them. I guess now that the dust has settled and I have read more widely on the issue, it just comes down to this: ACORN was wrong to field such shoddy and dirty case workers. Congress is right to defund them. With any luck, they will have to go back to square one and build a cleaner, stronger organization that will serve the people well.

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A Metaphor

smijer — Fri, 11 Sep 2009 17:30:04 +0000

Non-players, please pardon the chess metaphor and fret not – no detailed knowledge of the game is necessary.

Imagine a chess board, set up in advance to position toward the middle of the game. One side may have a material or positional advantage in the game. Now imagine that two players, not necessarily evenly matched in skill – in fact likely very unevenly matched – are each assigned a side to play. Play continues until each side feels they can no longer make moves that will improve their chances of “winning” – and they then stop. Sometimes this is at “mate”, and sometimes not. Now imagine a group of observers – none have ever played chess before, themselves. Another long-time chess-player explains the rules and object of the game to them. He also watches the game to ensure that neither player cheats – but he isn’t always very attentive! After play stops, the observers talk amongst themselves until they can unanimously pronounce a winner of the game!

What have I just described?

The American judicial system.

The initial set-up of the board – corresponding to the “middle” of the game correspond to the “evidence” as it is situated before the DA by police investigators. The players are the opposed legal teams. In a criminal case, one “side” is the the DA’s office. Their job is to get that evidence and turn it into a conviction. That’s how they win the game. Not by discovering the truth. By getting a conviction, using the “evidence” where it helps them to do so, but ultimately by applying their skill at the game. Likewise, the opposing player is the criminal defense attorney, who tries to get an acquittal.

The theory is that from all of this gaming, the “truth”, beyond a “reasonable doubt” will emerge. My question is this: Why should we expect it to?

There is a part of the process that includes working with evidence. The police investigators do it, sometimes with an assist from forensic scientists who actually have some training (of some quality) in interpreting evidence. And it’s fair to say that in a large percentage of cases the police investigators are not motivated primarily by the hope of a conviction, but at least as much by the hope of discovering a real culprit. But there *is* political pressure on police departments to get convictions. And investigators are themselves not rigorously trained – the way, say physicists are – in how to conduct an investigation without bias or error.

And, so, while evidence plays a role, the actual goals in the process are the opposing ones of the defense team and the prosecutorial team. Should the defense team be too good and the prosecutorial team too poor, then the guilty walk and threaten the neighborhood again. If it’s reversed, then the innocent go to prison or worse.

How a system of this sort has become the celebration of pop culture on television and never become the object of the public’s scorn is completely beyond me.

So, that’s enough for now. I’ll try to think & write about a better way as I can.

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Not the Trail of Tears

smijer — Fri, 11 Sep 2009 14:17:05 +0000

Since I often write in praise of the Front Porch Republic, I’m going to have to respond when they jump the tracks of reason and compare themselves to Indians whose babies are ripped from their arms at gunpoint and carried away to be re-educated into the white culture.

Ummm… Well, I responded in the comments there – to whatever extent the response isn’t self-evident… I can only ask that they and their sympathizers take a deep breath and a step back and think about what they’re saying.

OK … to avoid charges that I am responding “culturally” and “sub-rationally” I’ll point out that denying marriage rights hurts people, children and families (and in some rare cases results in babies being ripped from their families’ arms and raised by the “straight culture”).

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No Constitutional Right for Innocent Not to be Executed

smijer — Thu, 20 Aug 2009 14:52:09 +0000

Alan Dershowitz versus Tony Scalia and Clarence Thomas on a truly unthinkable (but thankfully minority) opinion….

Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”

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File under “Acted Stupidly”

smijer — Tue, 18 Aug 2009 11:00:32 +0000

Attacking mom in front of kids. IOIYWB (It’s ok if you wear blue).

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