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2013 was the 50th Anniversary of “The Banality of Evil” December 17, 2013

Posted by Nina Rosenstand in Criminal Justice, Culture, Current Events, Ethics, Nina Rosenstand's Posts.
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While it is still 2013 I want to mark the anniversary of an important concept in moral philosophy, the re-legitimizing of the concept of evil through the writings of German philosopher Hanna Arendt. 50 years ago Arendt launched a concept that was to have an enormous influence on discussions in the field of ethics for the rest of the 20th century, discussions that continue to this day––an influence that has had wider consequences than she probably imagined. She launched the idea of the banality of evil.
Interestingly, philosophers in the early 20th century, especially within the Anglo-Saxon philosophical tradition, had all but given up on the word evil. Too much religious baggage (just think of the problem of evil, the theodicy: how can a good god allow horrible things to happen?), too judgmental, too moralizing––at a time when most English-speaking philosophers were grappling with the meaning of words rather than with the meaning of life. Back in the 19th century and further back, thinkers such as Immanuel Kant had no problem throwing themselves and their readers into discussions about the ultimate meaning and values in life, and the notion of an evil person was not alien or uncomfortable as a  topic of analysis.But what is a moral philosopher to do when, in the mid-twentieth century, the ultimate worst conceivable behavior runs rampant across the continent of Europe? Call it “bad behavior”? Call it “behavior frowned upon by most people according to the standards of Western societies?” Call it “a moral choice made by a cultural subset?” Or “just another form of acculturation?” What words could a mid-twentieth century philosopher use to describe Nazi atrocities that wold seem sufficient? In 1963  Arendt, a German Jew who had narrowly  escaped the Holocaust, witnessed the trial in Jerusalem of captured Nazi official and instigator of the Holocaust Adolph Eichmann, and observed that to her surprise he did not look like a monster.  He looked, and sounded, frighteningly normal. And that, she said in her book, Eichmann in Jerusalem: The Banality of Evil, was the terrifying key to the Nazi engagement in terror, torture and murders: The Nazi torturers were normal people who, either under pressure from superiors, or from twisted values and twisted thinking, had reached the conclusion that torturing and killing innocent human beings was the right and normal thing to do. It had become a banality––the banality of evil.
And thus was launched a renewal of the concept of evil in philosophy; removed from a religious context, it focused on the inner “Schweinehund,” our baser, cowardly instincts that make us follow the crowd, or go with the lowest common denominator when it comes to standing up for simple decency and humanity, to the point where we are willing to disregard the humanity of another person if someone in authority tells us we’re not responsible, that it is for the good of all, or that bad things will happen to us if we don’t comply. Stanley Milgram corroborated the phenomenon with his “electric shock experiments”––to see how far a person would go when told to shock people who had given the wrong answer to a question. It is a relief to know that nobody was really being shocked, but utterly disconcerting that most of Millgram’s subjects were quite willing to shock people to death when told that they had to. Banality of evil. And a few years later Philip Zimbardo ran his now infamous Stanford Prison Experiment unintentionally resulting in real  harm caused to “prisoners” by “prison guards.” The participants were merely students doing role-playing, because the “prison guards” had been told to be ruthless to the “prisoners,” but some of them took to their roles with zest, and very quickly. Zimbardo himself pointed out, in his book The Lucifer Effect from 2007, that the willingness of the “prison guards” to commit atrocities was the banality of evil rising in completely normal people put into a situation where their moral compass had somehow been disengaged—a situation that her saw paralleled in Abu Ghraib. (I’ve visited the subject several times before in this blog, such as in “The Concept of Evil, and Joseph Duncan,” and “On a Scale of 1 to 22…”, so essentially I’m merely summing up what I’ve said several years ago, but with the specific anniversary of the concept in mind.)
So since the 1960s we have, in philosophy, been able to use the term “evil” as a term for the moral weakness lurking in almost every individual which can make us follow or even give unspeakably vicious orders and forget about the humanity of other people. But is that enough? It took courage for Arendt to reintroduce the concept of evil into the philosophical vocabulary; it took integrity to give voice to a condemnation that most thinkers felt, but perhaps were too polite and well-schooled in non-judgmental meta-ethics to engage in.
And now it is the question whether we’re ready to, once again, redefine the concept of evil. Because surely not all acts that cause irreparable and deliberate harm is caused by people following orders or bad role models. Sometimes some individuals make choices they know will cause harm, and they know it is considered wrong by society, but they want to do these things, anyway, for gratification or profit. The march goes on, from school shootings to imprisonment in locked rooms or basements of women (sometimes strangers, sometimes daughters!) for sexual gratification, to serial killings. Is that the banality of evil, too? I don’t believe so. Immanuel Kant would say that such choices deserve the term evil because they are (1) deliberately done, (2) with awareness that they violate society’s standards, (3) causing intense physical or psychological pain or damage to innocent people, and (4) done for selfish reasons. Is it possible that those individuals are possibly more mentally ill than “evil?” Perhaps, but as long as our legal system allows us to recognize a criminal as “sane” if he or she has a sense of the moral rules of society, then breaking the rules is a deliberate act more so than the act of a helplessly sick person. So perhaps it is time to allow an old concept to return to our modern vocabulary of ethics? In my textbook, The Moral of the Story, I have adopted the term “egregious evil” for such behavior, to differentiate it from “banality of evil,” but it is still a good question whether we are referring to evil acts, or evil persons, because therein lies a world of difference.
Maybe in the future we can come up with a term that is better suited to describe such acts of deliberate, egregious harm, a term that will allow a society to express its moral outrage while at the same time recognizing whatever neuroscientific insight into criminal pathology that we may acquire? Until then I will feel comfortable with a cautious application of the old word evil in its two applications—banal and egregious.

Chris Dorner: Not a Folk Hero February 14, 2013

Posted by Nina Rosenstand in Criminal Justice, Current Events, Ethics, Nina Rosenstand's Posts.
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It seems the saga of former LAPD cop and spree killer Chris Dorner has now come to an end, in a way that he himself predicted: He would not survive to experience the fallout. And I suspect that many of you, like myself, have been eerily mesmerized by the unfolding story over the past week. More fortunate than most, I have been able to discuss the case with a bunch of intelligent students, and we have exchanged viewpoints. I have also listened to talk shows, read online commentaries, followed news briefs, and read most of the Manifesto which Dorner had posted to Facebook. And I’m sitting here with a very bad feeling—not just for the four people who fell victims to Dorner’s vengeful rage, and for their families, but a bad feeling about the voices in the media who somehow seem to have elevated Dorner to some sort of folk hero, a Rambo, a Jason Bourne kind of character (as a guest on a talk show pointed out). When such views have been expressed, they have generally been prefaced with, “Yes, of course what he has done is wrong, BUT he has a point,” or “Of course he shouldn’t kill people, BUT even so, he is fighting the good fight.” In other words, his actions may be wrong/over the top, but somehow it is in a noble cause.

Now that upsets me. It upsets me, because that kind of evaluation shows a fundamental misunderstanding of the connection between having a cause and taking action, and perhaps even a politically motivated willingness to overlook certain very disturbing facts in favor of some subtext that some people feel ought to be promoted, such as “the LAPD is in need of reforms.”

So let us look at what Dorner actually did (allegedly, of course): He shot and killed a young woman and her fiance. The young woman was the daughter of an ex-cop from the LAPD who had been Dorner’s lawyer. He also shot and killed a Riverside police officer, as well as a San Bernardino deputy. In addition, he deprived three people of their right not to have their liberty interfered with (he tied up an elderly boat owner in San Diego, and two maids in Big Bear), he wounded several police officers, and he stole two cars. And for what purpose? In the Facebook Manifesto he states it clearly: Because he felt that he had been wronged when fired from the LAPD in 2009, he felt that the only way to “clear his name” was to kill members of the LAPD and their families.

Martha Nussbaum, the American philosopher, says that emotions should be considered morally relevant, provided that they are reasonable, meaning that they arise as a logical response to a situation, and thus inspire moral decisions/actions that are somehow reasonable/proportionate to the event that caused the anger (Nussbaum is also a philosopher of law). So let us allow for the possibility that Dorner experienced an emotion that was a relevant response to his (perhaps) unfair dismissal from the LAPD: He was angry. But exactly what is reasonable anger? That would be (according to Aristotle, whom Nussbaum admired) righteous anger that is directed toward the right people, for the right reason, at the right time, in the right amount. But even if he was unfairly dismissed (which is a common experience for many people), and even if he had experienced racism at his workplace,  would it ever be morally reasonable for him to exact revenge on the daughter of his lawyer? Or her fiance? Neither of them had anything to do with his being fired. The murders were simply a means to cause pain to her father. (For you Kant-aficionados: Dorner used his lawyer’s daughter merely as a means to an end to get back at him.)  The moment Dorner made good on his threat to start killing the relatives of LAPD officers was the moment where he lost any claim to a moral high ground, any claim to a righteous anger or any claim to taking justifiable action. That was the moment when he went from somebody with possibly a justified grievance to merely being a thug, and a petty, selfish one at that, taking his anger out on innocent victims.

And the killing of Riverside and San Bernardino law enforcement officers? That seems to have been dictated by his poor judgment, and his attempt to escape the dragnet cast over all of Southern California, not by his manifesto. He claimed to go after LAPD officers because the LAPD had “done him wrong,” but in the end, it was Riverside and San Bernardino that lost members of their police departments.  We can discuss, in the weeks to come, whether he was actually mentally stable in his final week. We can discuss whether the manifesto reveals an intelligent, reflective mind, or a person on the brink of insanity. We can discuss whether another outcome had been possible. We can even discuss whether his manifesto made some valid points. But the fact that he broke the basic covenant that he had been taught, as a police officer, to protect and serve those who need protection, and showed abysmal disregard for the lives of innocents, resulting in a chain of events that cost additional lives, removes him from the realm of folk heroes and reduces him to merely another criminal who will be remembered for the lives he took, not for his rationale. Even if it should turn out that original rationale may have been justified—he may have been right that he was treated unjustly—that does not justify in any way what he has done.  And for some media voices to overlook that fact is very disturbing…

Kevin Coe Revisited: Locked Up for Life September 29, 2012

Posted by Nina Rosenstand in Criminal Justice, Current Events, Nina Rosenstand's Posts.
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I had to look up my original post about Kevin Coe, and to my surprise it’s been four years since I wrote it. The wheels of justice grind slowly, or at least the wheels of the justice system. If you go back to that post from October 2008, you can refresh your memory about the serial rapist Fred (Kevin) Coe who had been serving time for 25 years for one rape, the only sentence they could make stick after several other sentences were overturned because of a technicality. When the date for Coe’s release was approaching, the state of Washington decided that he was too dangerous to be let loose, so a new law was applied that allowed the WA court system to commit Coe to a mental institution. And now Coe’s final WA Supreme Court appeal has been denied, and his life will be spent on McNeil Island (barring new developments, of course).

Coe and his attorneys appealed his commitment on the argument that Superior Court Judge Kathleen O’Connor erred when she allowed assistant attorneys general to introduce evidence from 36 sexual assaults that did not result in criminal charges against Coe. They also contended that he had ineffective counsel and that he deserved a new trial.

“Finding no reversible error in any of Coe’s claims, we affirm his commitment,” Justice Susan Owens wrote for the majority.

“In general, I believe allegations of uncharged crimes should not be admitted into evidence,” Chambers wrote. “Experts should not act as funnels to allow lawyers to get into evidence through their expert opinion what is otherwise inadmissible.”

Yet, Chambers noted that he agreed with the decision to uphold the conviction because of the “unusual elements” of the case.

“In many, though not all, of the uncharged crimes, the perpetrator put fingers into victims’ mouths; attempted to induce the victim to urinate or defecate upon him; and asked personal and offensive questions,” he wrote. “The overwhelming untainted evidence supports the jury’s verdict.”

The decision likely ends Coe’s legal pursuit of exoneration after his arrest in 1981, following dozens of rapes attributed to the so-called South Hill rapist.

In my  post from 2008 I expressed my satisfaction with the judges’ decision, but at the same time I found it disturbing that principles seemed to be pushed aside for the sake of pragmatism. I can’t say I’ve changed my mind—I am still relieved that Coe is not going to be out and about, and I still find a forward-looking approach to justice disquieting. But look how common sense prevailed, in Chamber’s note. They had the guilty person all these years, he made so many women suffer and never had to answer for it except for one case, and now—he is not being punished for something he hasn’t been convicted of doing, but the community is being kept safe based on evidence of habitual activities. Justice.

The Death Penalty and Albert G. Brown September 29, 2010

Posted by Nina Rosenstand in Criminal Justice, Ethics, Nina Rosenstand's Posts.
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The state of Virginia executed Teresa Lewis last week, and here in CA Albert Greenwood Brown was scheduled to die this week, but the execution has been put on hold because of a shortage of sodium thiopental, the drug used for the lethal injection.  Is there a national, or even a local debate about the death penalty about to happen? Not according to the Los Angeles Times a few days ago:

Brown, 56, is poised to be the first inmate killed in the state’s new death chamber in San Quentin, built after U.S. District Judge Jeremy Fogel ordered a stay on executions in California in 2006 because its three-drug lethal-injection method appeared to violate the constitutional ban on cruel and unusual punishment. Brown’s attorneys say Fogel’s decision last week not to block their client’s execution was rushed, and that even though Fogel is giving Brown the option of a single-drug method that is considered more humane, the judge still hasn’t examined the new death chamber or properly studied new training procedures for the state’s executioners.

They may have a point, but that’s not why we’re disappointed. We had hoped that Fogel’s stay would start a dialogue in California about the death penalty, which is objectionable for a host of reasons, and not just because the three-drug death cocktail may not ease the pain of the condemned. We’d hoped Californians would be shaken by the case of Cameron Todd Willingham, who was executed in Texas in 2004 following a conviction based on shoddy forensics evidence, or of the 17 death-row inmates in other states who were exonerated by DNA testing. We’d hoped they would notice that capital punishment has no deterrent effect on violent crime, or that the cost of carrying it out is helping to bankrupt the state, or that most developed nations have abandoned it because of its essential inhumanity.


Here you have the essential abolitionist arguments. For the sake of Fairness in Blogging (FIB), let me mention the key arguments in favor of the death penalty (retentionism): No other punishment matches the severity of the crime of murder. No other punishment guarantees that the murderer will never be pardoned/will never escape. No other punishment guarantees specific deterrent (the criminal himself/herself won’t repeat their crime). The high cost is due to the long appeals, not the punishment itself. And the unfair executions of defendants based on shoddy evidence and/or discrimination are flawed, but such situations can be avoided in the future with sufficient reforms.

As reported by MAARS News,

John Hall, a spokesman for the Riverside County district attorney’s office, said prosecutors were pleased with Fogel’s ruling.

“This is a horrific case with horrific facts,” Hall said cited by the Los Angeles Times. “This man showed no remorse. He never claimed innocence…. It’s time for this family to finally see justice. It’s been delayed too long already.”

Brown was convicted of raping and murdering of Susan Jordon a student of Arlington High School in 1980 in Riverside. The 15-year-old was walking to school when Brown pulled her into an orange grove, raped her and strangled her with her shoelaces.

He even called the girl’s parents and the police and told them where to find her body.
Brown had been paroled four months earlier from a prison term imposed for the 1977 rape of a 14-year-old girl.

Here is a recap of the whole, heartbreaking story from AP .

And indeed it appears that we are about to have a debate about the death penalty, at least in CA: Here’s a comment from The Faster Times, by Maureen Nandini Mitra:

The evidence was compelling too. Several witnesses had been seen him approaching Susan. Among other things, police found semen-stained clothes, Susan’s missing schoolbooks and phone directory open to the page with her parents’ phone number in Brown’ possession. At the time of the murder, he was on parole. He’d been released four months earlier after serving four years in prison for the 1977 rape of a 14-year-old girl.

As I discovered the details of Brown’s crime, my rage boiled over. Despite my intellectual opposition to death penalty, part of me felt he deserves to die.

Then I took a second look at the figures. Brown’s lawyers have managed delay his sentencing for 30 years. Which means Susan’s family has been waiting for three decades for some kind of closure to their pain. They’ve had to relive their trauma over and over again through years of appeals and two reversals of the sentences by the California Supreme Court. And it’s still not over.

 Is there a “right” view and a “wrong” view? From an abolitionist POV, of course, the answer is easy. But for those on the fence or in favor of capital punishment (70 percent of us!), the cases of Lewis and Brown provide a challenging juxtaposition: One, a borderline mentally disabled woman rushed through the court system (relatively speaking) and put to death, even when there was some doubt about her initiative in the murder-for-hire, and clear evidence of her remorse. The other, a confessed rapist/killer without a shred of remorse whose lawyers have kept him alive on Death Row for 30 years, and who have just won him another reprieve. Is it acceptable to have capital punishment in a nation where justice is meted out with such vast differences in different states? Are individual cases where our sense of justice feels let down enough to undermine an entire judicial tradition? Of course we should have a political debate about capital punishment, allowing both rational and emotional arguments to be heard, because without emotional engagement we are unaffected by the suffering of the victim and her or his relatives, as well as by the concept of mercy, and without reason we are incapable of acting justly, as well as comprehending social consequences. It need not be a partisan discussion, because even if the L.A. Times seems to assume that the reasons the Democrats in CA don’t want to discuss the issue is because they’re cowards, the fact remains that there are retentionists among Democrats as well as Republicans, and abolitionists among Republicans, too. So we need to hear each others’ best arguments. Are we willing to listen?

The Death Penalty and Teresa Lewis September 22, 2010

Posted by Nina Rosenstand in Criminal Justice, Current Events, Ethics, Nina Rosenstand's Posts.
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Let’s talk about the death penalty. A final appeal has just been denied by the Supreme Court, and a convicted criminal is headed for execution Thursday night. Such denials of appeals happen on a regular basis, but this one is a little different—and I’m not talking about the fact that the criminal, in this case, is a woman. If we want equality, well, there it is: If a man can get executed for being the mastermind of a murder-for-hire (and he can), so can a woman. No, it is the fact that this case goes against the recent tendency in the legal discussion to reserve the death penalty for the “worst of the worst,” if the death penalty is to be imposed at all.

If you are opposed to the death penalty, there is no particular reason to look more closely at this case, because all executions are, to you, morally wrong, regardless of the guilt or innocence of the person on Death Row, their age, their mental capacity, their remorse or lack of it, etc. Still, the case provides another opportunity to argue why capital punishment is wrong per se. If you’d like to share such arguments here as comments, feel free. But if you are in favor of the death penalty, this case deserves your attention, because Teresa Lewis doesn’t seem to fit the category of “the worst of the worst”—not like serial killers Ted Bundy (executed), or Robert Yates (awaiting execution), or the Green River Killer Gary Ridgway with his scores of murders (serving life without, because he made a plea deal). She hired a man (who happened to be her lover) to kill her husband and stepson. Before he killed himself in prison, he apparently stated in an interview that he had put pressure on her to go through with it, because he needed the money. Both he and a second hired shooter got life because of plea deals.  And it appears that Lewis’s mental capacity, while not reaching the criterion of being legally “diminished,” is still on the low side with an IQ of 72, making her sense of judgment more like that of a 13-year old.  She has no prior history of violence, and she apparently has shown genuine remorse during her years in prison.

I can’t claim to be familiar with the ins and outs of this case, because it just came to my attention, but after reading a number of news stories about Lewis, it seems to me that we’re definitely not talking about the “worst of the worst.” From a utilitarian point of view she would  present no danger to the general prison population, if  her sentence were commuted to life.  From a deontological point of view, justice must be done, but wouldn’t justice be served as well with her in prison, since that was the sentence given to the actual gunmen who may have influenced her decision? Her guilt is not in doubt, but her role as sole instigator may be.

There are many things I don’t know about this case; were D.A.s and judges up for reelection while it was going on? I have no idea. If they were, would it matter to their voters if they were tough on crime? I don’t know. I will assume that the trial had no elements that would make us question the motivations of the court, other than justice. But it seems to me that, contrary to that other infamous killer who took the life of his wife and their unborn baby/3rd trimester fetus, Scott Peterson, who didn’t have a history of violence, either, and who was sentenced to death, Lewis seems like a person who might be manipulated. Not a person of good intentions (or, as her lawyer says, “a good and decent human person”) at the time of the crimes, to be sure, but not a manipulative master mind, either. Still, within the legal parameters of capital punishment, we’re probably not talking about a miscarriage of justice if this woman is put to death—but might this not be an appropriate occasion to consider mercy?

According to author John Grisham, in a Washington Post article earlier this month,

Such inconsistencies mock the idea that ours is a system grounded in equality before the law.

In this case, as in so many capital cases, the imposition of a death sentence had little do with fairness. Like other death sentences, it depended more upon the assignment of judge and prosecutor, the location of the crime, the quality of the defense counsel, the speed with which a co-defendant struck a deal, the quality of each side’s experts and other such factors.

In Virginia, the law is hardly consistent. There have been other cases with similar facts — a wife and her lover scheme to kill her husband for his money or for life insurance proceeds. But there is no precedent for the wife being sentenced to death.

Your thoughts?

On a Scale of 1 to 22… September 15, 2010

Posted by Nina Rosenstand in Criminal Justice, Nina Rosenstand's Posts, Philosophy of Human Nature, Science.
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Since Dwight brought up Michael Stone, and I’ve encountered his work before, here’s another angle on the work of Stone, tying it  in with our ongoing discussion of the concept of evil. A trend in moral philosophy which was pretty well established in the 20th Century has been broken lately, and it is partly thanks to Stone’s work—because philosophers do, on occasion, read the works of psychologists/psychiatrists. That trend was, for ethicists, to avoid the term ”evil” professionally,  partly because of its supposed religious connotations, and partly because of its unmanageability—because how exactly do we define evil, and how does it play into our subjective notions? In other words, using the term “evil” opens the door wide to subjectively emotional statements of condemnation, the kind of sweeping irrationality that moral philosophers have tried to avoid and counteract ever since Plato. Instead, to designate truly horrendous acts toward others, ethicists have preferred to call them “morally wrong,”  “heinous,” “going against the accepted norms of society,” or simply “malevolent.”

But even so, in everyday life, in the media, in politics, and in the world of entertainment we have blithely proceeded to use the E-word, with all its baggage, because expressions such as “morally wrong” and “really really bad behavior” simply aren’t strong enough. And now philosophers seem to be softening their stance against using the word evil—not just because we have been inundated with graphic novels and their world view of good vs. evil, but because we’re beginning to get some kind of structured understanding of what we can and can’t say when using the word. The first step in that direction was taken by Hannah Arendt, German philosopher who, after reflecting on the atrocities of the Holocaust, coined the term the banality of evil, to designate a new category:   the deplorable tendency in (supposedly) each of us to be persuaded to cause harm to other human beings under the assumption that it’s okay, that it’s not our responsibility, that everyone is doing it, and that somehow those people we’re hurting must have deserved it. In the wake of her analysis, we’ve had Stanley Milgram and Philip Zimbardo substantiating her theory through psychological experiments. Zimbardo has even drawn a line from Arendt’s analysis directly to Abu Ghraib. So though the backdoor, so to speak, ethicists were reintroduced to the concept of evil, but this time in an everyday guise, of normal people capable of doing horrendous things to others.

And now we’re, interestingly, reopening the possibility of using the label of what some of us call “extreme” or “egregious evil,” by reexamining not the banality of it, but the rare and shocking total disregard for the suffering of others, and even the joy in inflicting it. That is what laypeople have called evil all along, and a few years ago Michael Stone reached out to laypeople and ethicists alike, by suggesting a scale of evil related to homicide and other infliction of pain. This list has been making the rounds on the Internet, and was even featured in a television series in 2006, Most Evil, but NPR ran a story about it in August:

Inspired by the structure of Dante’s circles of hell, Stone has created his own 22-point “Gradations of Evil” scale, made up of murderers in the 20th century. “I thought it would be an interesting thing to do,” he says.

His scale is loosely divided into three tiers. First are impulsive evil-doers: driven to a single act of murder in a moment of rage or jealousy. Next are people who lack extreme psychopathic features, but may be psychotic — that is, clinically delusional or out of touch with reality. Last are the profoundly psychopathic, or “those who possess superficial charm, glib speech, grandiosity, but most importantly cunning and manipulativeness,” Stone says. “They have no remorse for what they’ve done to other people.”

Stone hopes the scale could someday be used in prosecutions. “The people at the very end of the scale have certain things about their childhood backgrounds that are different,” he says, from those who appear earlier in the scale. And because the scale follows a continuum of likelihood a killer will kill again, courts may be able to better categorize the risks posed by releasing a psychopath.

 Justifiable homicide such as self-defense is not evil, according to Stone, and gets a 1. The worst of the worst rates a 22, psychopathic  torture-murderers. Spree killers “only” rate a 15, and there is a difference between murdering torturers (20) and “merely” torturing murderers (18). And, interestingly, I can’t find a category or a number that would fit Arendt’s duty-driven, even reluctant Nazi torturers, but with some tweaking, the list might accomocate the banality of evil.

Will this scale make the concept of evil easier to handle for ethicists? The list is not intended to be absolute, and of course philosophers are welcome to question the moral connotation of a clinical psychiatric list of symptoms ( and we should), but overall Stone has simply systematized a vocabulary that we have been using all along, with its dangers of misunderstandings and exaggerations. Egregiously evil acts do exist, and Stone offers a moral classification of the degree of evil involved, without getting into any metaphysical discussion about what made these people do these evil things, whether they acted out of “free will,” or whether “evil” exists as an entity. That’s not for him to do—that’s for philosophers to discuss. (However, as you can read in the post below by Dwight, Stone also has a theory about underlying brain anomalies which should be taken into account—but all the brain theories in the world can’t provide the complete answer to the perennial philosophical question of when, why and to what extent we choose to assign guilt and responsibility to an act.) So his list is useful—not the final word for ethicists, but another tool in our ongoing understanding of not only what people do and what might make them do it, but why we believe they shouldn’t do it. In the end, it does boil down to how we view our responsibility to the Other.

Where is the Crime Wave? June 3, 2010

Posted by Dwight Furrow in Criminal Justice, Dwight Furrow's Posts, politics.
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One of the conservative justifications for Arizona’s new immigration law, which enables the police to roust undocumented immigrants just for being undocumented, is that Arizona is suffering under a crushing crime wave instigated by the influx from Mexico. Arizona Governor Jan Brewer (R) called these crimes “terrorist attacks.”

last week, the FBI released its preliminary Uniform Crime Report for 2009; it is hard to find evidence of a crime wave. As reported in the Wall St. Journal:

Violent crime fell significantly last year in cities across the U.S., according to preliminary federal statistics, challenging the widely held belief that recessions drive up crime rates.

The incidence of violent crimes such as murder, rape and aggravated assault was down 5.5% from 2008, and 6.9% in big cities. It fell 2.4% in long-troubled Detroit and plunged 16.6% in Phoenix, despite a perception of rising crime that has fueled an immigration backlash.

The early figures, from the Federal Bureau of Investigation, indicate a third straight year of decreases, along with a sharply accelerating rate of decline.

And the report shows many other cities in the Southwest have seen similar reductions, including El Paso Texas which is just across the border from the drug war in Juarez.

Last week, The Arizona Department of Public Safety released its crime report as well. The trend toward decreasing crime rates includes 3 of the 4 counties that border Mexico. The trend holds even along the border: three of Arizona’s four border counties reported less violent crime in 2009 than they did in 2002, when crime statistics were first made available on the Internet.

One exception is Maricopa County where Joe Arpaio   “America’s Toughest Sheriff” resides. Arpaio is famous for making immigration enforcement a priority and using violence and intimidation to get results.

Some results. Via Dara Lind, although crime in Maricopa dropped from 2008 levels, since 2002 it has increased 58%!

One of the arguments against Arizona’s new immigration law is that making immigration enforcement a priority will actually increase crime because anyone who looks Latino (or Latina) will avoid cooperating with police. In fact, many police chiefs and sheriffs in Arizona were opposed to the law for that reason.

Sheriff Joe may be making their argument for them. And if crime goes up subsequent to the law being enforced, what conclusion should we draw?

book-section-book-cover2 Dwight Furrow is author of

Reviving the Left: The Need to Restore Liberal Values in America

For political commentary by Dwight Furrow visit: www.revivingliberalism.com

Gardner and the Presumption of Innocence March 18, 2010

Posted by Nina Rosenstand in Criminal Justice, Current Events, Nina Rosenstand's Posts.
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Sorry I’ve been quiet lately—I’ve been under the weather. And there’s been much to talk about, so let me see if I can catch up!

The murder of Chelsea King and arrest of her accused killer, John Albert Gardner, is of course something that has occupied the minds of many San Diegans, myself included. And the discovery of the body of Amber Dubois, and the possibility of a connection between the two tragic deaths of young women have only added to the sense of outrage and urgency in our community—a terrifying suspicion that Chelsea’s death, and perhaps also that of Amber, could have been avoided with more diligent surveillance of a known sex offender. 20/20 hindsight is cheap, though, and the fact that the laws that got Gardner convicted of his first sex offense (or at least the first he was charged with) were different in 2000 that they are now seems to have escaped some critics. More safeguards are in place now, and we can’t send our outrage retroactively back to 2005 when he was paroled and complain that he wasn’t convicted according to the laws of today. We can, however, hold the appropriate authorities accountable for not keeping an eye on him the way the law demanded at the time.  And we can try to improve on current laws. (And we can remind ourselves to be more vigilant in our own lives. That’s another topic…)

An issue that has been raised is whether Gardner can get a fair trial in San Diego. Information released before the arraignment (and after the arraignment, no more information about Chelsea’s death will be released before the trial, to avoid overexposure to the case, and prevent it from being judged in the media) included tidbits about Chelsea’s clothing found with DNA evidence. We have a sense that the DA’s office has a very strong case against Gardner. Even so, it shouldn’t be hard to find jurors who are able to keep an open mind—it can usually be done. Even in the case of David Westerfield (who killed Danielle van Dam) the trial took place here in San Diego, with a jury that was perfectly capable of weighing the evidence on its merit, and not base their judgment on what they’d seen on TV. But who will defend Gardner in court? Two attorneys from the Public Defender’s Office. In the San Diego Union Tribune, columnist Logan Jenkins speculates that they will probably be vilified for their willingness to defend Gardner, just like Steven Feldman was vilified for defending David Westerfield. Jenkins points out that regardless how certain we may be that Gardner killed Chelsea, and regardless of how much we may despise him, he still deserves the “best defense our tax dollars can buy,” because the presumption of innocence is one of the cornerstones of our legal system. And, I might add, far preferable to Napoleonic Law which we encounter south of the border, where a person is presumed guilty until he or she can prove their own innocence. So I completely agree wth Jenkins that Gardner deserves his day in court, with competent lawyers speaking for him. However, I don’t quite agree with some of Jenkins’s general assumptions, if I understand him correctly: For one thing, the law guarantees presumption of innocence in court, not in the media, or around the kitchen table. We are perfectly in our right to think whatever we want about Gardner in the court of public opinion—but if we have reached an opinion that is flavored by news coverage, we just won’t be good jury material. It doesn’t mean we ordinary people have to empty our minds of every fact we’ve read, or pretend we can’t put two and two together. Another thing I find somewhat disturbing about Jenkins’s op-ed piece is his reference to Westerfield’s lawyer Feldman and the vilification of him. If Jennings is referring to people harassing Feldman during the trial, he’s right. That was inappropriate and unworthy of San Diego as a society. But what about after the trial? That was where a certain talk-show host spoke up against Feldman-–because it became clear that Feldman had deliberately tried to mislead the jury. According to information coming out after the trial, Feldman had been aware that Westerfield had killed Danielle, because Feldman had been in the process of a plea bargain with the court on behalf of Westerfield when Danielle’s body was found. And even so, he put up a defense of Westerfield where he misrepresented facts and tried to deflect suspicion onto somebody else. Now this is a fine line, legally: A defendant is entitled to the best possible defense—but as far as I know, there are limits to what a defense lawyer can try to put over on jurors, and Feldman was dancing very close to that limit. Some legal scholars said he crossed the line. That was the talk show host’s concern, not that Feldman had chosen to defend a murderer.  After all, that’s what high-profile defense lawyers do. Let’s make sure we remember the actual situation before we begin to imagine future parallels in the Gardner defense.

Was Descartes Murdered? February 18, 2010

Posted by Nina Rosenstand in Criminal Justice, Culture, Nina Rosenstand's Posts, Philosophy.
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A few days ago The Guardian reported that a new book by German scholar Theodor Ebert claimed that Descartes did not meet his end by being exposed to the harsh Swedish winter climate, as we philosophers have been fond of telling forever, but by arsenic poisoning.

According to Theodor Ebert, an academic at the University of Erlangen, Descartes died not through natural causes but from an arsenic-laced communion wafer given to him by a Catholic priest.

Ebert believes that Jacques Viogué, a missionary working in Stockholm, administered the poison because he feared Descartes’s radical theological ideas would derail an expected conversion to Catholicism by the monarch of protestant Sweden. “Viogué knew of Queen Christina’s Catholic tendencies. It is very likely that he saw in Descartes an obstacle to the Queen’s conversion to the Catholic faith,” Ebert told Le Nouvel Observateur newspaper.

In a letter written after his patient’s death, Descartes’s doctor, Van Wullen, described having found something wrong – which Ebert believes to be blood – in the philosopher’s urine. “That is not a symptom of pneumonia; it is a symptom of poisoning, chiefly of arsenic,” said Ebert, adding that Descartes asked his doctor to prescribe an emetic. “What conclusion is to be drawn other than the philosopher, who was well-acquainted with the medicine of his day, believed he had been poisoned?”

 What Ebert contributes here, contrary to the buzzing assumptions on the Internet, is not the theory that Descartes died by arsenic poisoning—that story has been circulating for a long time, at least since 1980. I myself read about it in, of all places, an old popular account of conspiracy theories we’d picked up, serendipitously, in a used bookstore, and I cautiously put it into a footnote in Chapter 7 in my textbook, The Human Condition, in 2001. (Unsubstantiated theories should not go into textbooks, but footnotes referencing the unsubstantiated are acceptable!) The prevailing theory was then, to my understanding, that Descartes was murdered by Protestant bishops, not a Catholic missionary, for precisely the opposite reason: The conversion to Protestantism in Sweden had been long and bloody, and Protestant bishops feared that Queen Christina would revert back to Catholicism, helped along by what they perceived to be a very Catholic French philosopher. Hence the plot to get rid of Descartes.  Evidence in support of this theory was that Descartes never got to have any in-depth discussions with the queen, but  was put off with excuses for five months, until his death. A missionary would not have that kind of political power, but a bishop might. So who knows? I’m looking forward to reading Ebert’s book, to evaluate the level of research and the likelihood of his hypothesis. I’m thrilled that somebody is finally doing a (presumably) serious study of Descartes’ death, which might very well be an old unsolved mystery, a “cold case,” not because of chilly temperatures, but because of chilly politics.  I’m just not sure that his conclusion is the most likely one. If anybody has a lock of hair of Descartes that we can test for arsenic, would he or she please step forward? That would at least tell us the “How,” if not the “Why.

Terrorist Trials November 16, 2009

Posted by Dwight Furrow in Criminal Justice, Current Events, Dwight Furrow's Posts.
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Last week, the Justice Department announced their decision to try Khalid Shaikh Mohammed and four others connected to the 9/11 attacks in federal court in New York. Predictably, the announcement has sent conservatives into paroxysms of melodramatic hand-wringing. Here is Joe Leiberman:

“The terrorists who planned, participated in and aided the Sept. 11, 2001, attacks are war criminals, not common criminals,” Lieberman said in a statement. “The individuals accused of committing these heinous, cowardly acts of intentionally targeting unsuspecting, defenseless civilians should therefore be tried by military commission rather than in civilian courts in the United States.”

And here is Rudy Guiliani:

“I do not understand why they cannot try Khalid Sheikh Mohammed in a military tribunal.  That also would demonstrate that we are a nation of laws.  That is the way we have tried enemy combatants in the past, whether it was the Second World War or the [U.S.] Civil War.  In this particular case, we are reaching out to give terrorists a [legal] benefit that is unnecessary.  In fact, Khalid Sheikh Mohammed, when he was first arrested asked to be brought to New York.  I did not think we were in the business of granting the requests of terrorists,” he said

I don’t understand what the problem is.

Zacarias Moussaoui, Ramzi Ahmed Yousef, Sheik Omar Abdel Rahman, Jose Padilla, Ali Saleh al-Marri, and Masoud Khan are just a partial list of dangerous terrorists who we have tried and convicted of crimes in U.S courts. None of them have escaped from their jail cells or gained some sort of propaganda victory as the result of their trials.

And I don’t remember conservatives complaining when these trials were announced.

The conservative position seems motivated by nothing but the belief that our principles aren’t worth defending, our justice system is too incompetent, or that this collection of misfits and fanatics have magical powers. There is nothing rational about these worries.

As Glenn Greenwald wrote:

[T]he Right’s reaction to yesterday’s announcement — we’re too afraid to allow trials and due process in our country — is the textbook definition of “surrendering to terrorists.” It’s the same fear they’ve been spewing for years. As always, the Right’s tough-guy leaders wallow in a combination of pitiful fear and cynical manipulation of the fear of their followers. Indeed, it’s hard to find any group of people on the globe who exude this sort of weakness and fear more than the American Right.

People in capitals all over the world have hosted trials of high-level terrorist suspects using their normal justice system. They didn’t allow fear to drive them to build island-prisons or create special commissions to depart from their rules of justice. Spain held an open trial in Madrid for the individuals accused of that country’s 2004 train bombings. The British put those accused of perpetrating the London subway bombings on trial right in their normal courthouse in London. Indonesia gave public trials using standard court procedures to the individuals who bombed a nightclub in Bali. India used a Mumbai courtroom to try the sole surviving terrorist who participated in the 2008 massacre of hundreds of residents. In Argentina, the Israelis captured Adolf Eichmann, one of the most notorious Nazi war criminals, and brought him to Jerusalem to stand trial for his crimes.

It’s only America’s Right that is too scared of the Terrorists — or which exploits the fears of their followers — to insist that no regular trials can be held and that “the safety and security of the American people” mean that we cannot even have them in our country to give them trials. As usual, it’s the weakest and most frightened among us who rely on the most flamboyant, theatrical displays of “strength” and “courage” to hide what they really are. Then again, this is the same political movement whose “leaders” — people like John Cornyn and Pat Roberts — cowardly insisted that we must ignore the Constitution in order to stay alive: the exact antithesis of the core value on which the nation was founded. Given that, it’s hardly surprising that they exude a level of fear of Terrorists that is unmatched virtually anywhere in the world. It is, however, noteworthy that the position they advocate — it’s too scary to have normal trials in our country of Terrorists — is as pure a surrender to the Terrorists as it gets.

As to the principles of justice involved, these people are not prisoners of war.

Prisoners of war are uniformed members of states who are party to the Geneva Conventions. Prisoners of war are not necessarily criminals but have been captured on the battle field and can be held until the war is over. The procedures that govern treatment for prisoners of war differ from criminal trials because no crime has been alleged and the rights of criminal defendants are not at stake.

By contrast, the 9/11 terrorists are not uniformed members of states and more importantly they have allegedly committed heinous crimes on U.S soil. Thus, they are properly considered criminal defendants.

But anyone accused of a crime has a right to a jury trial, competent representation, and rules of evidence that exclude hearsay, evidence obtained by excessive coercion or torture, etc. In the U.S., regardless of citizenship, we do not deprive someone of life or liberty without due process, which the special military tribunals set up by the Bush Administration did not provide, according to the Supreme Court. We don’t suspend due process procedures when the crimes are especially heinous.

There was a time in this country, before conservatism was reduced to reactionary authoritarianism, when these principles of basic justice would have been uncontroversial.

Can we please return to that time? That is my conservative thought for the day.

book-section-book-cover2 Dwight Furrow is author of

Reviving the Left: The Need to Restore Liberal Values in America

For political commentary by Dwight Furrow visit: www.revivingliberalism.com