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L’Affaire Polanski September 28, 2009

Posted by Dwight Furrow in Criminal Justice, Current Events, Dwight Furrow's Posts.

One of my pet peeves is the widely held belief that the wealthy and talented are morally virtuous because they are wealthy and talented. This seems to be the underlying assumption behind much of Ayn Rand’s work. It is also the assumption driving the noisy approval of right wing tea-partiers for Wall St. bankers with blood on their hands, who are now getting rich by leveraging the public’s money.

Apparently, the French have their own version of this nonsense

Film director Roman Polanski was arrested in Switzerland on charges of fleeing sentencing for the rape of a 13 yr. old girl in Los Angeles 31 years ago.

Polanski, 76, was arrested at the Zurich airport Saturday night by Swiss authorities acting at the request of the Los Angeles district attorney’s office. Prosecutors there had learned of the Oscar-winning director’s plans to receive an honor at a film festival, and passed a request through the U.S. Justice Department.

The arrest has outraged the French, who have been harboring Polanski for the past 31 years.

“To see him thrown to the lions and put in prison because of ancient history — and as he was traveling to an event honoring him — is absolutely horrifying,” French Culture Minister Frédéric Mitterrand said after Polanski was arrested upon arrival in Switzerland to attend the Zurich Film Festival, where he was to receive a lifetime achievement award. “There’s an America we love and an America that scares us, and it’s that latter America that has just shown us its face.”

Please. “Thrown to the lions?”There is substantial evidence that he drugged and raped a 13 year old girl, a crime to which he confessed before escaping to Europe. How is he a victim?

There is also evidence of misconduct in the trial by the prosecutor and judge, but that is an argument for retrying the case, not letting Polanski go. The case cannot be retried without having him in custody.

If Polanski was an ordinary person he would have been behind bars for a very long time.

It is not only France that seems unduly friendly to child molesters. Some members of the press, who fancy themselves the arbiters of moral values, are busy trying to exonerate Polanski. Here is Patrick Goldstein of the LA Times:

I think Polanski has already paid a horrible, soul-wrenching price for the infamy surrounding his actions. The real tragedy is that he will always, till his death, be snubbed and stalked and confronted by people who think the price he has already paid isn’t enough.

What price?  He has lived as a celebrity film maker in France for over 30 years.

And here is Anne Applebaum in the Washington Post:

There is evidence that Polanski did not know her real age. Polanski, who panicked and fled the U.S. during that trial, has been pursued by this case for 30 years, during which time he has never returned to America, has never returned to the United Kingdom., has avoided many other countries, and has never been convicted of anything else. He did commit a crime, but he has paid for the crime in many, many ways: In notoriety, in lawyers’ fees, in professional stigma. He could not return to Los Angeles to receive his recent Oscar. He cannot visit Hollywood to direct or cast a film.

What trauma! He can’t visit Hollywood anymore where the young women apparently disguise themselves as tweens.

One omission from Applebaum’s sob story is that she is the wife of Radislaw Sikorski, the Polish foreign minister who is lobbying for the U.S. to drop the charges against Polanski, who was born in Poland.

As Mark Kleiman writes:

…in a well-functioning journalistic world, the egregious failure to disclose a direct conflict of interest would end her journalistic career.  That world is not, however to be confused with the actual world.

This really is a tale of three cultures and their characteristic obsessions. If you’re wealthy and talented in the U.S. you can get away with economic crimes. If you’re wealthy and talented in France you can get away with sex crimes. If you’re a journalist, you operate in a moral-free zone where defense of celebrity is the coin of the realm and conflict of interest a qualification for employment.

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


On The Release of the Lockerbie Bomber August 21, 2009

Posted by Dwight Furrow in Criminal Justice, Dwight Furrow's Posts, Ethics, ethics of care.
Tags: ,

Via BBC:

The man convicted of killing 270 people in the 1988 bombing of a Pam Am flight over the Scottish town in Lockerbie, has been released from prison on compassionate grounds. Abdel Baset Al-Megrahi is already on his way home to Libya, where it is believed he will die of prostate cancer within three months.

This, of course, is an enormously controversial decision that has provoked outrage in the U.S., and understandably, among the families of victims of this terrible act. And, as the linked story reports, some people question the motives of the U.K. in agreeing to the release. And there are also serious questions raised about whether the original conviction was correct.

But assuming compassion was the over-riding reason, the Scottish decision raises lots of questions about when mercy is justified and what justifies it.

I need to think more about this, but it seems to me that mercy is not a part of justice but is a consideration independent of justice. So it wasn’t fair or just that Al-Megrahi was released. The aim of mercy is not to achieve justice but to bring to bear values other than justice.

Nevertheless there must be a reason to support claims to mercy, and the question here is whether the fact that Al-Megrahi is dying is a sufficient reason to support mercy.

Of course, all prisoners sentenced to life in prison will end up dying in prison if the sentence is carried out. If nearing death is a sufficient justification for mercy, that suggests that there ought to be a blanket release of all prisoners over a certain age. As far as I know that is not the policy in the U.K.

So what is special about this case that warrants mercy? Perhaps doubts about the original conviction? But that seems to be an argument for more investigation, not mercy.

I think compassion is enormously important and something our political and legal systems must encourage. So was the Scottish Minister correct in his judgment here?

I’m not sure. I will probably have more to say when I have thought about it more.


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

Justice and an Ethic of Care August 9, 2009

Posted by Dwight Furrow in Criminal Justice, Dwight Furrow's Posts, Ethics, ethics of care, Political Philosophy.
Tags: , ,

I am often asked what a justice system based on an ethic of care would look like. This is a difficult question because a justice system must be guided by impartial rules and procedures that seem incompatible with the partiality and context-dependent judgments of an ethic of care.

Bloggerheads recently hosted an interesting discussion between two psychologists—Michael McCullough and Dacher Keltner–on the evolutionary role of revenge and its place in contemporary society.

The whole discussion is worth listening to but about 28 minutes into the videocast they discuss the idea of restorative justice, which takes repairing relationships to be central to the idea of justice. Repairing relationships is the main feature of an ethics of care as well, and it seems to me this is where an ethic of care is able to fill out our notion of justice.

In restorative justice, the person who is guilty of a crime takes responsibility for her actions, and the person who has been harmed receives an apology or some other form of reparation directly from the person who has caused them harm. Encouraging dialogue between the offender and the victim is crucial.

Restorative justice is important because it provides us (society and the victims) with information about the perpetrator’s continued intent to harm. It also requires the perpetrator to accept personal responsibility as a result of direct personal appeal. (Yes, he or she can fake it although that is harder than one thinks, psychopaths excepted.)

One of the psychologists reports data showing that most crime victims are emotionally dissatisfied with the outcome of legal proceedings even when the perpetrator goes to jail—they are looking for a sincere apology and the willingness of the perpetrator to suffer some psychological pain regarding what they have done.

Other data they report suggest that, with restorative justice, victims are 26 times more likely to feel they received a convincing apology, desire for vengeance drops fourfold, willingness to forgive doubles, and recidivism is substantially reduced, all for the cost of a conversation.

Of course, restorative justice doesn’t replace punishment. Neither does it lead to victims and perpetrators being BFF. But it does reestablish the basis for further cooperation, which should be the aim of a justice system.


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

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

or Visit the Website: www.revivingliberalism.com

American Taliban August 3, 2009

Posted by Dwight Furrow in Criminal Justice, Culture, Dwight Furrow's Posts, Education.
Tags: , ,

The Taliban wing of the Tea Party Party is making news again.

After successfully getting school boards in Texas to allow religious criticisms of evolution in biology class, they are now turning their attention to history class.

Biographies of Washington, Lincoln, Stephen F. Austin? Not fit reading material for children in the early grades.

Cesar Chavez? Not worthy of his role-model status.

Christianity? Emphasize its importance.

Such suggestions are part of efforts to rewrite history books for the state’s schoolchildren, producing some expert recommendations that are sure to inflame Texans, no matter their political leanings. […]

The State Board of Education has appointed six experts to review existing social studies standards, which will influence the new curriculum. Two of them have recommended that migrant farm labor union leader Cesar Chavez, who died in 1993, be removed as an example of a significant model for “active participation in the democratic process.”

“Chavez is hardly the kind of role model that ought to be held up to our children as someone worthy of emulation,” said Peter Marshall, head of Marshall Ministries. […]

Marshall, one of the expert reviewers, also recommends that school children get a better understanding of the motivational role the Bible and the Christian faith played in the settling of the original colonies. He provided multiple examples of early Americans parlaying their biblical views into the communities and governments they established — beginning with the Pilgrims who risked their lives in coming to America.

[…] One of the reviewers also suggested that the late U.S. Supreme Court Justice Thurgood Marshall be removed from history books on grounds that he is not an appropriate example as a historical figure of influence. Thurgood Marshall was the NAACP lawyer who won the landmark 1954 U.S. Supreme court school segregation case that led to the integration of public schools.

And here is more child abuse, this time from Oregon:

An Oregon City man convicted of criminal mistreatment in the faith-healing death of his young daughter was sentenced Friday to 60 days in jail and ordered to provide medical care for his other children. […]

A jury convicted Carl Worthington of the misdemeanor charge of criminal mistreatment after acquitting the couple of felony manslaughter charges in the March 2008 death of their 15-month-old daughter, Ava, from pneumonia and a related blood infection that could easily have been cured with antibiotics. […]

The couple belong to the Followers of Christ Church in Oregon City, which avoids doctors in favor of spiritual healing. […]

But the church has suffered a long series of child deaths that prompted the Oregon Legislature in 1999 to limit a faith healing defense to criminal charges.

60 Days in jail for permitting the death of your child?

So let me understand this. You can get a year in jail for reckless endangerment even when it doesn’t result in a death. The penalty for negligent homicide is typically 2-3 years. The penalty for second-degree manslaughter can be up to 15 years. Second-degree manslaughter is described as follows:

When an individual causes the death of another person by recklessness, unreasonable risk, carelessness, setting a dangerous trap or not properly confining dangerous animals.

And this clown gets 60 days? Oh. I forgot. If you have a religious motive, you’re excused.

And finally here is a letter from an advice column in the Denver Post:

Dear Margo: Our daughter started college a year ago, and we’ve noticed during her visits home that she’s not the sweet, innocent girl we sent away for higher learning. We raised her with strong Christian beliefs, but lately she’s saying that she’s joined an atheist club on campus and is questioning everything we taught her. Now my husband refuses to let her in the house and is threatening to turn her in to the FBI. I’ve tried to cure our daughter and reconcile with her, but nothing seems to work. I’ve prayed over her at night while she sleeps, enlisted friends in a phone prayer tree and even spoken to my priest about the possibility of an exorcism. I’m at my wits’ end. How can I recover my daughter and keep her from hell? — God-fearing

Needless to say Margo wasn’t buying it.

But how much sickness must we endure before we stop allowing religion to be an all purpose excuse for child abuse.


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

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

or Visit the Website: www.revivingliberalism.com

The Ethics of Urban Foraging July 11, 2009

Posted by Ian Duckles in Criminal Justice, Culture, Ethics, Food and Drink.

Recently I have taken to foraging for some of my food and I have wondered about the morality of such an action. Some types of foraging I engage in are clearly morally acceptable. I recently foraged some oranges and lemons from the trees of neighbors, but I asked permission first, so there is clearly no problem there. In addition, I found a nice patch of nasturtiums on an empty lot that appears to be city-owned. Again, picking a few flowers from this patch to throw in a salad does not seem problematic. These two examples seem to show that foraging is uncontroversial in those situations where one has permission or the item being foraged is not owned (issues arising around the tragedy of the commons might play in here, but I am going to ignore them for now).

Far more problematic of course is the situation where one takes fruits or flowers from private property without permission. Occasionally on my many walks around town I see some lovely ripe fruit on a tree hanging over a wall or in someone’s front yard. In some situations I have gone ahead and taken the fruit. The question, of course, is: Is this stealing? On one hand it clearly does appear to be that. I cross over onto privately owned land and take something from that land for my own use. In some sense, the taking of a lemon from a tree does seem to be identical in kind to, for example, taking someone’s lawn furniture.

In my defense, there is a very old (going back at least to the Romans) legal principle know as “usufruct” which, according to an online law dictionary is defined as “the legal right to use and derive profit or benefit from property that belongs to another person, as long as the property is not damaged.” This legal principle helps distinguish between the two sorts of acts discussed above. When I take a lemon from a tree, the tree still exists and remains undamaged (in some situations, removing lemons from a particularly fruitful tree can actually contributes to the health of the tree) and can still be used by the owner. By contrast, taking the lawn furniture deprives the owner of her ability to use that furniture. Thus, perhaps we can justify the former and still find the latter impermissible.

The problem with this solution is that, as near as I can tell, one must be granted usufructory rights. That is, I don’t have a generalized right to usufruct, I only have this right in situations where that right has been granted by some individual. Thus, issues of usufruct really only apply in those situations described above where I get permission to harvest my neighbors lemon and orange trees. In these situations I have been granted usufructory rights to those trees, but not to the trees of strangers.

So, I seem back in the position I started, is there any justification for taking fruit or flowers without permission from someone’s garden? Am I just a thief? The problem here is that these questions are articulated within a particular, western legalistic frame that takes property rights as absolute. There is, in fact another way of looking at the issue, one which does seem to justify the actions I have described above. I came across a very nice articulation of this point in Wendall Berry’s The Unsettling of America. He cites a letter he received from David Budbill that, in part, describes the principles of property and land ownership that are operative in his community in Vermont,

…we always, with our neighbor, pick apples in the fall off trees on a down-country owner’s land. There is a feeling we have the right to do that, a feeling that the sin is not trespass, the sin is letting the apple’s go to waste.

I find this quotation to be a nice summary of my own feelings on the subject. The one change I would make is in that italicized word ‘right.’ As the author describes the situation it almost seems as if the word ‘obligation’ is more accurate. That is, when the earth produces its bounty, especially when we are the ones that have nurtured it, we have an obligation to make use of that bounty and not allow it to go to waste. This very much describes my own feelings when I pass a  tree that is so heavy with fruit that it is falling off the tree and rotting on the ground. This seems like such a waste, that I almost feel an obligation to harvest and enjoy some of that fruit myself. In many cases, particularly if there is no one around, I go ahead and give in to those feelings.

Now I do worry that I am guilty of rationalizing here, but at the same time, I also feel that my feelings concerning waste have legitimate validity and need to be entered into my moral calculus. Beyond this, there are a variety of reasons related to US food policy and my interests in local food that provide buttressing justifications for the kind of foraging I have been considering. Anyway, these are my thoughts and I would be very curious to hear what others think of this issue (particularly people who have nice gardens).

Does torture work? Depends what you are trying to do. April 27, 2009

Posted by Ian Duckles in Criminal Justice, Current Events, Ethics, Political Philosophy.

As the kerfuffle surrounding the release of the torture memos moves into the red herring phase of the media debate, the question about whether to prosecute or not has subtly (though intentionally) been shifted to the irrelevant question of whether or not torture works. This question is a red herring because the efficacy of torture is irrelevant to the question of its morality. In addition, all the relevant laws surrounding torture are quite explicit in their statements that torture is always wrong no matter why it is pursued or what effects it has. Article two of Part I of the UN Convention Against Torture is very clear on this point (emphasis added):

  1. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
  2. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Despite this, I am going to bite and take up the question of whether or not torture works. To answer this question, we need to have a sense of what the goals of torturing people were. In the popular imagination, torture is a technique we break out for the “ticking time-bomb.” In this scenario, we have a terrorist in custody and only he knows the location of a bomb that will destroy something important in a short period of time. Thus, we torture one individual to save the lives of many. This scenario makes for great TV, but its connection to reality is tenuous at best. More importantly, it has never made much sense to me to think that an individual who comes from a group capable of flying a plane-load of people into a crowded office building would not be able to hold out until the ticking bomb blew up. Regardless of these concerns, it is important to note that there is no evidence whatsoever of any US official torturing an individual under these circumstances (I am inclined to think that even under these limited circumstances torture is still wrong, but that is a separate argument). In fact, the most plausible position is that torture was instigated out of a desire on the part of the Bush Administration to find an Iraq/Al-queda link that could not be uncovered through traditional means.

Much of the evidence for the above claim is nicely detailed in this important piece by NYTimes columnist Frank Rich. He summarizes this point as follows:

In other words, the ticking time bomb was not another potential Qaeda attack on America but the Bush administration’s ticking timetable for selling a war in Iraq; it wanted to pressure Congress to pass a war resolution before the 2002 midterm elections. Bybee’s memo was written the week after the then-secret (and subsequently leaked) “Downing Street memo,” in which the head of British intelligence informed Tony Blair that the Bush White House was so determined to go to war in Iraq that “the intelligence and facts were being fixed around the policy.” A month after Bybee’s memo, on Sept. 8, 2002, Cheney would make his infamous appearance on “Meet the Press,” hyping both Saddam’s W.M.D.s and the “number of contacts over the years” between Al Qaeda and Iraq. If only 9/11 could somehow be pinned on Iraq, the case for war would be a slamdunk.

So, the key motivation of the Bush Administration for engaging in torture was to get individuals to falsely confess to an Iraq/Al-queda link, and these confessions were then used to convince the American people (and people in other countries) to support an invasion of Iraq. There is a degree of irony here insofar as the torture techniques employed by US torturers were reverse-engineered from the SERE training given to US military. This training were developed to expose and prepare US troops for the sorts of torture that they had encountered in the Korean and Vietnam War; torture that had been designed to get US soldiers to make false confessions and denounce the US government.

So, finally we are in a position to answer the question of whether torture works. The answer is quite simple. If your goal is to elicit false confessions, torture is extremely effective (probably the most effective method). However, if your goal is to get at the truth, torture is counter-productive since one has to spend additional time figuring out which of the detainee’s statements are truthful and which are merely attempts to tell the torturer what he or she wants to hear.

UPDATE: Yesterday (Wednesday, April 29), the NPR show Fresh Air conducted an interview with Scott Shane on exactly the matters I discuss in the post. The interview is quite good, but in it Shane makes some compelling arguments that would seem to refute some of the conclusions I draw above. You can listen to the interview here. In particular, Shane suggests that the government was not intending to elicit false confessions when they initiated the torture regime. Given what Shane says, I am inclined to agree with him here, but I still think much of what I said above is still valid in that one of the major reasons for using torture was to find evidence of an Iraq/Al-queda link. Shane also agrees with this timeline of events, he just sees less malicious intent on the part of the Bush administration than I do.

Faces of Evil–Duncan and Fritzl? March 16, 2009

Posted by Nina Rosenstand in Criminal Justice, Current Events, Ethics, Nina Rosenstand's Posts.

As chance will have it, two stories that we’ve been following are unfolding in the news simultaneously, both of them making claim to revealing the face of what I call egregious evil (what Kant calls radical evil is slightly different, involving giving up on the very possibility of goodness. Good article here.) Joseph Duncan was, until Friday, facing trial in Riverside Ct, CA, for yet another murder, the murder of 10-year old Antonio Martinez (a murder he has, essentially, confessed to already). If you’ll recall my previous posts about Duncan, he was already found guilty and sentenced to death—3 times—for the murders of a family in Idaho. However, last Friday the Riverside Ct. judge put his trial on hold, citing the necessity for a new competency evaluation. Despite the fact that Duncan has been repeatedly tested by federal authorities and found competent to stand trial in Idaho, the Riverside judge (who is not bound by federal rulings) feels that it is necessary to evaluate Duncan as he is now, to determine if he is competent to stand trial. As much as some of us would just prefer for Duncan to get put back where he was, on Death Row, and spare the rest of us the sight of his face again, the CA judge’s ruling is sound. Duncan may have been utterly competent to not only stand trial but represent himself in court in Idaho, but his mental condition may have deteriorated since then (or he has found a way to fake incompetence). March 30 he will be evaluated by two court-appointed psychiatrists, and he has vowed not to cooperate. Is this Duncan’s death wish at play, or is he just toying with the court, getting a bit of extra time away from Death Row, in his usual narcissistic way?

                The other case is of course the Josef Fritzl case in Austria. A quick summary: Fritzl kidnapped his daughter when she was 18 and kept her locked in a small room in the basement, where he raped her and fathered children with her, for 24 years. One sick baby was not given medical assistance and died. Fritzl is now standing trial for a number of felonies, from kidnapping to rape and incest to murder, and today he pleaded guilty—to incest.  His defense lawyer has asked the jury to consider Fritzl as a “human being.” That is a dangerous road to go down—it implies that “heck, we’re all human, and don’t we all want to imprison our daughter, abuse her sexually, have kids with her and let her live in terror for 20 years?” What removes these two cases from any consideration within the category of Hanna Arendt’s concept “the banality of evil” is that in either case, the perpetrator pursued a course of action for his own self-gratification that is utterly beyond what any slightly self-centered person might dream of. What might ordinary fairly selfish people contemplate in the darkness of their soul? Killing their spouse? Killing their boss? Killing their landlord, as in the old Eddie Murphy poem/skit? Having sex with Dad’s new wife, or with Sis’s new husband, or teenage daughter’s best friend? Or perhaps hold up money transports, or some similar illegal but fairly trivial scenario. But even your run-of-the-mill criminal, or ordinary selfish person with dreams of having a “Ring of Gyges” just does not dream of killing a family so he can abduct and sexually torture the children, or kidnap his daughter, imprison her, and abuse her sexually and mentally for decades. Just another human being? Sorry, no. We may sometimes view human nature as a sad, frail, ill-tempered thing, easily tempted to do violence. But for one thing, neuroscience hasn’t found much evidence to support this view. And for another, we may be easily led into the banality of evil, but egregious evil is not a matter of being easily mislead. It is, in most cases, a matter of choice, with full awareness of the overwhelming weight of the moral and legal tradition. No innocence due to ignorance here. No claim that “I was just following orders.” This is why we tend to question the sanity of such people—because anyone who takes such radical steps to go against the social grain for the sake of personal satisfaction surely must be crazy. But both Duncan and Fritzl have been found to be at least as sane as it takes to understand the possible consequences of their actions—they hid, and obfuscated, and lied. In the spirit of Socrates, we’d rather believe them to be sick, than to have to face the fact that they made conscious choices, with their rational capabilities intact. So “sane” they are—until we abandon the criterion of rational sanity for a new criterion of emotional sanity.  And that will have its own set of  problems.

(Update 3/18: Fritzl has pleaded guilty on all counts.)

Duncan: 3 Death Sentences, 9 Life Sentences November 6, 2008

Posted by Nina Rosenstand in Criminal Justice, Current Events, Nina Rosenstand's Posts.

I can see on the blog stats that blog readers have been looking for news about Joseph Duncan, so here’s an update: Duncan was just given additional life sentences for the murders of Shasta’s and Dylan’s brother, mother, and her fiancé, so the tally now comes to 9 life sentences in addition to the three death sentences (for the abduction, torture, and murder of Dylan), and three 10-year terms, plus fines. This is where some readers would shake their heads—because after all, what’s the use of 9 life sentences? Especially since Duncan already has three death sentences. How many times can a person be put to death, and how many lifetimes can he serve? Idaho law professor Richard Seamon says it could be a record, and explains the principle behind what some would say is an overkill of sentences:

Courts impose multiple death sentences and multiple life terms for various reasons, Seamon said. “In a situation like this, of course, it does seem to be piling on.” But, he said, “Sometimes on appeal, some of the convictions can be thrown out, and that may very well affect the overall sentence. … That’s the main reason, as a practical matter, it matters.”

There are symbolic reasons as well, he noted. “It has primarily symbolic significance, that each life counts, each offense is individually valued and considered.”

Now Duncan will probably be headed for Riverside County, CA, to stand trial for the murder of little Anthony Martinez. However, Steve Groene, Shasta’s and Dylan’s father, is actively engaged in attempting to prevent that from happening. Groene says the reason officials in Riverside want to conduct the trial is for political gain, more than concern for Anthony’s family; he adds that having had Dylan’s story of torture and death told in detail in the courtroom was devastating, and he would want to spare the Martinez family from a similar experience. And besides, says Groene, it’s a waste of money, since Duncan will spend the remainder of his days in prison anyway.

                This is a great example of “pragmatic assessment” over “principle,” but what say you? Does the Martinez family need justice for their boy in court, or should the fact that Duncan will never walk free again be sufficient to them? (Not that they need to listen to us, or to Groene for that matter. We’re using very concrete, tragic events to illustrate abstract issues in criminal justice ethics here.) I’m reminded of a scene in True Grit where Mattie (whose father has been murdered by the outlaw Chaney) is assured by the Texas Ranger LaBoeuf that when he takes Chaney back to Texas to hang for the murder of a senator, he’ll be just as dead as if he’d been hanged for the murder of Mattie’s father. And Mattie responds, “It means  little to me how many senators he has killed.” She wants justice for her father, not justice in general. This is a very human reaction—but is it reasonable, in terms of possible outcome and costs? The ultimate question here is, is the Martinez family’s sense of justice satisfied if Duncan is “hanged for a senator” instead of for their son? Should justice reflect the feelings of the victims at all, or should the emotional aspect be irrelevant—as philosophy has traditionally assumed?


Punishment or Protection? The Case of Kevin Coe October 27, 2008

Posted by Nina Rosenstand in Criminal Justice, Culture, Nina Rosenstand's Posts.

When a person has been convicted of a crime, sentenced, and has completed his or her punishment, we are all accustomed to thinking that such a person has paid his or her debt to society—under the assumption that we believe in the righteousness of punishment in the first place. Some don’t. Some believe that punishment is an inappropriate and oppressive enforcement of society’s values on an individual, based on a culture-specific values system. Some believe that punishment is justified if it helps rehabilitate the offender, and/or keep the public safe; and some believe that punishment is, and ought to be, a form of just retribution. Some believe that punishment is supposed to make the offender feel bad, and the rest of us feel good. We’ve touched on this debate before, but here is a new twist: the case of serial rapist Kevin Coe, Spokane, WA.

Once there was a young man called Fred Coe. He had a doting mother and a father connected to the local power structure, being a newspaper editor. Fred didn’t like his name, so he changed it to Kevin. And as Kevin Coe he became locally infamous a quarter of a century ago, as “The South Hill Rapist,” stalking young women in the parks, forcing a gloved hand or an oven mitt into their mouth, and raping them. When he was caught (and the rapes stopped), a dozen rape cases were piled up against him, but due to legal procedural issues he only faced one rape trial at the end—of which he was found guilty, and sentenced to 25 years. You can read the story in an excellent true-crime book, Son, A Psychopath and His Victims, by Jack Olsen, and here is an update in the Spokesman-Review. There’s an additional angle to it: His mother spent time in prison for having tried to hire a hit man to kill the local judge and prosecutor…Coe never admitted any guilt, and never sought parole. He served his 25 years precisely so he could walk out of prison without having to report to any parole officers, and two years ago the 25 years were up. The local community was worried; Coe claimed he wouldn’t return to Spokane, but since he never showed remorse, had displayed sociopathic behavior patterns (read Son), and had given indications of being mentally addicted to violent sexual behavior, Spokane prosecutors were motivated  to pursue a new WA law: permanent incarceration in a mental facility. This was not intended as an additional punishment (so it is not unconstitutional), but as a means of protecting the public from a person who is likely to reoffend. It is roughly the same philosophy that is the foundation of the various versions of Megan’s Law (registration of sex offenders): prediction of future behavior based on past tendencies. As a result, a jury recently found that Coe presents a danger to the community, so he is now locked up again, in a mental facility, for an indefinite length of time. His victims are elated that he will not be allowed to walk free. The community feels vindicated, finally. Having followed the case for many years, I have to agree with the verdict—but as a moral philosopher, I had to ask myself some questions, and now I will pose them to you: What concept of justice are we operating with here? A straightforward utilitarian protection of the public? A further attempt to rehabilitate the unrepentant? An ad hoc attempt at justice that bypasses past legal hurdles—or punishment for something the offender hasn’t yet done? Or perhaps it really is a form of revenge? Are we just playing semantics when we claim that further incarceration of offenders who are likely to reoffend isn’t “punishment”?  Does the end justify the means? Lock’em up for the sake of society, or let’em loose on society for the sake of a moral principle? I certainly don’t want to imply that a good man has been railroaded, because I think he is as vicious as they come, and as manipulative. A huge amount of written pages authored by Coe while in prison have been obtained by The Spokesman-Review, from letters and legal briefs to a pornographic novel, and they give a clear picture of a smart and guilty man dancing as fast as he can. Take a look, and judge for yourself. In the real world, principles and pragmatic assessments have to be balanced (which is why we had the discussion about Susan LeFevre and mercy), and I think Coe’s case is an example of just that. But being an old deontologist, my concern is that pragmatic assessments may win out over principles in cases that truly involve the risk of people being railroaded for the sake of the community…

Duncan gets Death August 27, 2008

Posted by Nina Rosenstand in Criminal Justice, Current Events, Ethics, Nina Rosenstand's Posts.

I have been out of town and have not been able to post updates, but for the past few weeks the Duncan trial has been moving through excruciating testimony and video of the torture of young Dylan to its predictable end: The jurors’ verdict is death on three counts: kidnapping resulting in death, sexual exploitation of a child resulting in death, and using a firearm during or in relation to a crime of violence. No mitigating factors. In his closing statement Duncan said,

“You people really don’t have any clue yet of the true heinousness of what I’ve done. … My intention was to kidnap and rape and kill until I was killed, preferring death, easily, over capture.”

There is speculation now that he may be on his way to Southern California for a trial, confronting him with the murder of a young boy in Beaumont, Riverside, Tony Martinez. Shasta’s and Dylan’s father, Steve Groene, said he considered it a waste of money, considering the circumstances. But would justice require that Duncan face all charges? Would that bring “closure” to the families?

As you know, I’ve followed this case since its beginning, and have attempted to share with you some of the reasons why I think it deserves our attention—not only because it confronts us with the concept of evil, in its narrowest sense, but also because it has brought up issues of sanity, of victims’ rights, of media ethics (I didn’t even get into that part!), and perhaps even of what it might take for a community to start a healing process after having gone through this kind of ordeal. Will Duncan’s death (after all the appeals, of course) give the community, and Shasta, some form of peace? The verdict gives us an opportunity to talk about the whole purpose of the trial: the concept of punishment. When someone like Duncan—who is indisputably guilty; no risk of executing an innocent person here—is sentenced to death, what is your reaction? Do you deplore the primitive reaction of a young society, feeling the need to put a person to death for what he or she has done? Do you consider it a shame that the community has given up on the possibility of rehabilitating Duncan? Or do you consider it a measure of justice, the only one truly appropriate for (1) the severity of the crime, and/or (2) deterring similar crimes, and/or (3) protecting other children from other acts by that same man? Here we have some of the key arguments in the death penalty debate, the abolitionist vs. the retentionist arguments, and the retributivist vs. the consequentialist arguments. I’d like to hear what you think.