shifting standards of evidence in criminal justice

Matt Yglesias brings up the really good point that the death penalty is merely one facet of the cluster of horrific policies that constitutes the American criminal justice system. After all, it is unclear that putting an innocent man to death is really much worse than locking a man in a cage for the rest of his life.

[The case for executing the guilty] seems like a separate issue from the fact that the American criminal justice system too often punishes the innocent. I see three main facets of that problem. One is that we don’t provide adequate legal representation to many indigent defendants. The prevailing wisdom seems to be that underfunding public defender officers is somehow “tough on crime” as if railroading innocent people is a close substitute for punishing guilty ones. The second is that we rely heavily on eyewitness testimony even though it’s known to be unreliable, and police departments often don’t seem very interested in improving witness identification procedures. The third is that we give convicts far too little ability to present newly discovered evidence of innocence. But none of this has anything in particular to do with the death penalty. If an innocent man is in prison for a grisly rape/murder based on eyewitness testimony that would be debunked by DNA evidence that wasn’t available at the time of his conviction, that’s terrible even if he’s not being executed. 

There seems to be an active institutional resistance to the introduction of new information once a verdict has been decided and a sentence has been passed. If the point of the criminal justice system is to mete out actual justice, then it is mighty strange that after an arbitrary moment in time, new information is no longer permitted. Or at least the barrier to new information is abruptly and steeply raised. It also seems to me that the burden of proof abruptly shifts after a verdict has been passed. While in trial, a guilty verdict requires proof beyond a reasonable doubt, but post-verdict, it seems that innocence requires proof beyond a reasonable doubt.

I keep saying "seems" because I must admit that I am not really well-versed in the ins and outs of criminal justice. The two cases I have read the most about (and even here I have not really done all my homework) are those of Cameron Todd Willingham and Troy Davis. In the former case, independent forensic analysis called into question the forensic methods used to reach the guilty verdict, but the new forensic report was ignored. The latter case relied heavily on eye-witness testimony, seven-ninths of which was later recanted. Both of these cases are examples where, at least post-conviction if not pre-, the evidence of guilt was not sufficient to surmount reasonable doubt. If the same burden of proof applied after conviction as before, these two men would still be alive.


Getting back to Yglesias' post, it is perhaps a shame that so many bleeding heart types like myself get so riled up about the death penalty when there are likely many more innocent people languishing in prison than there are innocent people awaiting execution. I agree with this, and recognize it as an unfortunate cognitive bias. On the other hand, it's hard to see it happening any other way. Ritualistic state killing is so conspicuous that it probably must come first in reform efforts. I rest somewhat assured that the liberal appetite for justice will remain unsatiated after exhausting the ample low-hanging fruit of state-sanctioned injustice.

humanitarian aid and migration

This post by Andrew Cohen over at Bleeding Heart Libertarians is short enough that I hope it's kosher to just quote its entirety:

Assume there is a moral principle indicating that states (or citizens therein) that have adequate (or better) resources have an obligation to aid those in states that have inadequate resources. Such a principle has been defended, of course (see, for example, Charles Beitz’ 1979, esp. 136-143). Importantly, even if such a principle is right, it does not get us directly to a conclusion that states (or citizens therein) that have adequate (or better) resources (like us) have an obligation to aid those in states that have inadequate resources in their society. Although many that write in defense of international redistribution often fail to recognize it, immigration—perhaps coupled with remittances–is an important method of international aid. Hence, it might be enough—indeed, it might be better—to help those in states with inadequate resources to immigrate to a place with better resources (perhaps our own state).

Picture an island devastated by floods and incapable of supporting agriculture. The people on this island need help. Assume we owe them help. If there is a good reason to believe the island cannot be made life-supporting (a dubious situation to be sure), the people have to move and at most our aid should be aiding emigration. More realistically, the island will take some years to be life-sustaining again. Perhaps, then, we ought to help them with temporary food supplements. But perhaps aiding emigration can still satisfy our duty. Certainly, in the more extreme case, where the island can’t support life, we simply cannot conclude that we must sustain the people on the island. Some might bemoan the loss of the “island culture” that would follow mass emigration, but given the extreme nature of the natural disaster, that is unavoidable. The only possibilities are losing the culture and the individuals or losing the culture and saving the individuals by relocating them.

It seems clear, then, that no duty to aid individuals in other societies (or our own) can require, in all cases, that we help them to continue to lead the sorts of lives they previously lived (or would choose to live) in the environment they did (or want to). This does not mean there is no duty to help individuals in other societies; it simply means that sometimes the way to satisfy such a duty would be to help the people move, perhaps to our society.

I don't usually come at my migration advocacy already assuming that we have a moral duty to help people in other nations. But let's assume there is such a moral duty. If you assume this and follow along with Cohen's quick argument that sometimes supporting greater emigration is the best of all options, then I want to offer a small twist.

I claim that natural disasters and catastrophic misgovernance are morally indistinguishable. If a disaster strikes your country or you happen to be born in North Korea, both events are best described by luck. Unless you're a Calvinist, you probably agree that bad luck has nothing to do with culpability or just deserts. Then if you accept the premise (perhaps a big if*) that we in rich countries owe some kind of aid to people in nations struck by disaster and that emigration is an optimal kind of aid, then I think it follows that we also owe similar aid to people fleeing grossly incompetent or malevolent governments.

As a side note, I think Cohen is too harsh on his natural disaster premise. A nuclear strike could render a small country uninhabitable for decades. And last I checked, the island nation of Maldives is, like fabled Atlantis, actually in danger of sinking beneath the waves.

* It's a big if that a reader will accept the premise, but it's interesting to note that natural disasters do tend to tug our heartstrings, empirically. You see this in the sudden, worldwide spike in donations to aid organizations and relief efforts when big tsunamis or earthquakes occur.

principled ideological fuzziness

Some days I wonder if I should even consider myself a libertarian any longer, since I reside in the ambiguous borderlands of progressive liberalism and libertarianism. Every time I tell someone I'm a libertarian, I find myself hedging "No, not that kind of libertarian!" So I enjoyed Will Wilkinson's recent piece at the New Republic: A Libertarian's Lament: Why Ron Paul Is An Embarrassment To The Creed. The whole thing is worth reading, but I really liked this bit:

In any case, the philosophical basis of Paul's property-rights absolutism is mysterious. Like many libertarians, Paul sees ironclad property rights as a straightforward implication of the moral impermissibility of coercion in human affairs. But, of course, a system of property is itself a system of coercion. If I cannot waltz into your home, raid your fridge, and make myself a hoagie, it is because you might shoot at me or call the cops to drag me off at gunpoint. If you're like me, you think the enforcement of property rights through the use of violence, or the treat thereof, is justified. But it does need to be justified.

Here’s my best attempt: A system of secure property rights is conducive to a society of peaceful cooperation that benefits even the least among us. The important thing for libertarians to remember—and the thing that Ron Paul forgets, or, rather, never knew—is that a system of secure property rights is a means to a peaceful society of mutual benefit, not an end in itself. And there are other legitimate public goods beyond the police protection of property rights. The need to finance the provision of these goods can justifiably limit our property rights, just as a system of property can justifiably limit our right to free movement. The use of official coercion to collect necessary taxes is no more or less problematic than the use of official coercion to enforce claims to legitimate property.

Maybe this is all Ayn Rand's fault, but I think many (certainly not all!) libertarians come to the philosophy in a blinding flash of enlightenment, where the truth of something like the Principle of Non-Aggression is made clear, and let's run to the ends of the earth with it. I don't want to be condescending here; I was an anarchist for many years because I took the PNA very seriously. But Wilkinson points out here that, rather than flowing elegantly out of the PNA, property rights are a separate beast entirely, and actually constitute a framework of aggression. This is a shame because a system of property rights and principled non-aggression both seem like good ideas to me.

But we can't have it all. Some really nice ideas rather clumsily butt heads with one another. I was an anarchist for so long because I couldn't see how you could get from a state of nature to a state of monopoly governments wielding violent force. But eventually I decided there was no 'state of nature', or rather, the real state of nature is that we humans are apes, only recently quit the African savanna, and our vaunted morals have old, deep roots as evolutionary adaptations to the problems associated with fostering cooperation and keeping a social group from fragmenting.

Evolution has shaped our moral concerns. But evolution doesn't care much about rigorously adhering to consistent principles. It's hodge-podge all the way, mixing and matching to solve problems that are themselves constantly evolving. So it would be a little surprising if, in our modern world of complex interactions, we found that public policy was reducible to one or more ethical principles that were both easily stated and universally applicable.

Something I remember from reading Michael Shermer's The Science of Good and Evil several years ago is his hammering home the idea of a "provisional morality". This is a morality crafted with genetic and cultural evolution in mind, and it consist not of hard and fast principles, but of fuzzier principles that worked "for most people, in most situations, most of the time." (I don't have the book with me, so that might not be his exact wording). I think this is the best we can do with our ethics and with political philosophy.

Property is an excellent social technology as long as we realize the edges are blurry and ill-defined. They are contingent upon other social considerations, like the fact that present distribution of property is unjustified and unjustifiable. Likewise, a prohibition of coercion is great until it's inconvenient, where what constitutes "inconvenient" has to be hashed out by competing social concerns. Democracy is fine and dandy until it becomes ridiculous (Is de facto gerontocracy justified merely because young people are less motivated to vote?)

This sounds hopelessly slippery. Libertarianism in the style of Ron Paul is attractive because it is easy; there are simple rules to apply to every situation. A less ridiculous libertarianism is more difficult to apply, but it provides value by offering a set of insights (for example, actions carried out by the State rely on violence or the threat of violence) and suggesting that we should demand very good reasons to override the first-order moral reaction to those insights ("Gentlemen, leave your guns outside." really is a good rule for most people, in most situations, most of the time.)

Finally, also commenting on Wilkinson's essay, Eli Dourado made a useful distinction:

Let’s call an action justified if, all things considered, it is the best action to have taken. Let’s call an action satisfying if we can go further and say that we are glad that it happened. It should be obvious that an action can be justified but not satisfying.

Take statements of the form: I wanted person X to do action Y, so I made X do Y. Y can be a number of things: give me candy, have an abortion, not have an abortion, eat vegetables, stop picking on the other kids, not trespass on my property, stop gunning down innocent victims, pay for Timmy’s leukemia treatment.

The action of making X do Y is sometimes justified (depending on what Y is and the circumstances and, sometimes, on who X is), but it should never be satisfying. If an intruder came into my house and threatened my family, I might (might!) be justified in shooting and killing the intruder. But if I were satisfied that I got to justifiably shoot and kill someone, it would represent serious moral deficiency.

I feel that way about all coercion; it should never be satisfying, even when it is justified. Yet when I observe real-world taxation, I see a lot of satisfaction. People seem glad, for instance, that taxation is progressive. It’s not just a resigned, “Well, this is the most justified level of progressivity.” People are satisfied that those who they want to pay taxes are doing it.