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Unit Overview

In this week we will look at a small sampling of issues related to both race and criminal justice. These are of course separate topics, although in the US there is some overlap in the sense that African Americans have, throughout the history of the US, suffered at the hands of the legal and criminal justice system. Our readings for this week will just look at the morality of capital punishment, the morality of drug criminalization, and the morality of affirmative action laws.

Readings

Michael Huemer’s  “America’s Unjust Drug War”


Summary:

“Should the recreational use of drugs such as marijuana, cocaine, heroin, and LSD, be prohibited by law? Prohibitionists answer yes. They usually argue that drug use is extremely harmful both to drug users and to society in general, and possibly even immoral, and they believe that these facts provide sufficient reasons for prohibition. Legalizers answer no. They usually give one or more of three arguments: First, some argue that drug use is not as harmful as prohibitionists believe, and even that it is sometimes beneficial. Second, some argue that drug prohibition “does not work”, i.e., is not very successful in preventing drug use and/or has a number of very bad consequences. Lastly, some argue that drug prohibition is unjust or violates rights.”

Huemer looks at three of these arguments:

  1. Drugs should be illegal because they harm the user
  2. Drugs should be illegal because they harm society
  3. Drug Prohibition violates the rights of those who want to use drugs

“I shall show that the two arguments for prohibition fail, while the third argument, for legalization, succeeds.”

Argument 1: Drugs should be illegal because they harm the user

“This argument assumes that the proper function of government includes preventing people from harming themselves. Thus, the argument is something like this:

  1. Drug use is very harmful to users.
  2. The government should prohibit people from doing things that harm themselves.
  3. Therefore, the government should prohibit drug use.”

“Obviously, the second premise is essential to the argument; if I believed that drug use was very harmful, but I did not think that the government should prohibit people from harming themselves, then I would not take this as a reason for prohibiting drug use. Furthermore, premise (2), if taken without qualification, is extremely implausible. Consider some examples of things people do that are harmful (or entail a risk of harm) to themselves: smoking tobacco, drinking alcohol, eating too much, riding motorcycles, having unprotected or promiscuous sex, maintaining relationships with inconsiderate or abusive boyfriends and girlfriends, maxing out their credit cards, working in dead-end jobs, dropping out of college, moving to New Jersey, and being rude to their bosses. Should the government prohibit all of these things? Most of us would agree that the government should not prohibit any of these things, let alone all of them. And this is not merely for logistical or practical reasons; rather, we think that controlling those activities is not the business of government.”

Huemer says that maybe drug use is different from these activities but that the burden of proof is on prohibitionists to show why it is that the government should prohibit drugs but not these other activities

Argument 2: Drugs should be illegal because they harm society

Huemer makes several responses:

  1. Drugs don’t kill nearly as many people as tobacco or obeisity, which we don’t criminalize
  2. The harm to oneself caused by drugs isn’t nearly as bad as choosing the wrong job or marrying a jerk
  3. Drugs might harm one’s relationships with others but so does being a jerk, which certainly isn’t and shouldn’t be illegal
  4. Drugs harm people’s financial lives but so do lots of other things

The moral harm argument

According to James Q. Wilson:

“[I]f we believe—as I do—that dependency on certain mind-altering drugs is a moral issue and that their illegality rests in part on their immorality, then legalizing them undercuts, if it does not eliminate altogether, the moral message. That message is at the root of the distinction between nicotine and cocaine. Both are highly addictive; both have harmful physical effects. But we treat the two drugs differently not simply because nicotine is so widely used as to be beyond the reach of effective prohibition, but because [137] its use does not destroy the user’s essential humanity. Tobacco shortens one’s life, cocaine debases it. Nicotine alters one’s habits, cocaine alters one’s soul. The heavy use of crack, unlike the heavy use of tobacco, corrodes those natural sentiments of sympathy and duty that constitute our human nature and make possible our social life.”

But according Huemer there is no proof that these claims are true. And even if it’s true that drugs corrode sympathy and a sense of duty we wouldn’t put someone in jail if they are a jerk and just lack a sense of empathy or sense of duty.

According to the Office of National Drug Control Policy:

“Democracies can flourish only when their citizens value their freedom and embrace personal responsibility. Drug use erodes the individual’s capacity to pursue both ideals. It diminishes the individual’s capacity to operate effectively in many of life’s spheres—as a student, a parent, a spouse, an employee—even as a coworker or fellow motorist. And, while some claim it represents an expression of individual autonomy, drug use is in fact inimical to personal freedom, producing a reduced capacity to participate in the life of the community and the promise of America.”

But again, Huemer says that even if drugs cause these effects it doesn’t make sense to criminalize drugs because the effects described are not criminal offenses.

Argument 3: Drug Prohibition violates the rights of those who want to use drugs

“Philosopher Douglas Husak has characterized drug prohibition as the greatest injustice perpetrated in the United States since slavery. This is no hyperbole. If the drug laws are unjust, then we have 450,000 people unjustly imprisoned at any given time.”

Husak’s  argument against prohibition is that it is unjust for the government to punish someone without good reason, and that as we’ve seen the government doesn’t have any good reason to punish people for taking drugs.

The Right to Use One’s Body as One Chooses

Huemer Argues that drug use fall within the scope of the natural right to use one’s body as they please.

A few points:

  1. If there were a drug that directly caused one to be violent and harm others one would not have a right to use it
  2. The right to one’s body is possibly the most basic right and explains why it is wrong for other to assault, kidnap, or kill you
  3. The right to one’s body doesn’t mean you have a right to use your body however you want, just like the right to your property doesn’t mean you can use that property however you want. But as long as you are not harming anyone else you have a right to use your body and your property how you wish.
  4. You don’t have a right to use drugs and drive a car.

“When a country goes to war, it tends to focus on how to win, sparing little thought for the rights of the victims in the enemy country. Similarly, one effect of America’s declaring “war” on drug users seems to have been that prohibitionists have given almost no thought to the rights of drug users.”

Conclusion:

“Undoubtedly, the drug war has been disastrous in many ways that others can more ably describe—in terms of its effects on crime, on police corruption, and on other civil liberties, to name a few. But more than that, the drug war is morally outrageous in its very conception. If we are to retain some sort of respect for human rights, we cannot deploy force to deprive people of their liberty and property for whimsical reasons. The exercise of such coercion requires a powerful and clearly-stated rationale. Most of the reasons that have actually been proposed in the case of drug prohibition would be considered feeble if advanced in other contexts. Few would take seriously the suggestion that people should be imprisoned for harming their own health, being poor students, or failing to share in the American dream. It is still less credible that we should imprison people for an activity that only may lead to those consequences. Yet these and other, similarly weak arguments form the core of prohibition’s defense.

Prohibitionists are likewise unable to answer the argument that individuals have a right to use drugs. Any such answer would have to deny either that persons have rights of control over their own bodies, or that consuming drugs constituted an exercise of those rights. We have seen that the sort of harms drug use allegedly causes to society do not make a case against its being an exercise of the user’s rights over his own body. And the claim that drug users can’t control their behavior or don’t know what they are doing renders it even more mysterious why one would believe drug users deserve to be punished for what they are doing.”

He concludes by again comparing the war on drugs to an injustice similar in magnitude to that of slavery.

Michelle Alexander on “The New Jim Crow”

James Rachels’ In Defense of Quotas


Affirmative action programs began in the 1960s to address past racial injustice. Later the programs were expanded to include women, hispanics, and people with disabilities.

Quotas vs. Racially Sensitive Policies

A quota requires a certain number of people from some minority group whereas racially sensitive policies simply allow people to consider race as one of the criteria. In California v. Bakke the US Supreme Court ruled that quotas were unconstitutional.

Rachels argue that quotas are actually very useful way of a fighting unconscious biases and discrimination.

According to Rachels, we are all biased. We just don’t know it.

Discrimination based on Height:

  • When trying to distinguish between identical candidates who only differed in their height, only 27% recognized they were equally qualified. 72% thought the taller candidate was more qualified.
  • The average difference in starting salary between tall and short librarians was three times as much as the average difference between those who graduated in the top half of their class and those who graduated in the bottom half.
  • Only two presidents in the history of the United States were shorter than average

“These points, taken together, have a discouraging implication. They suggest that it is difficult even for people of good will to prevent such prejudice from influencing their deliberations. If I am prejudiced in ways that I do not fully realize, and if I am skilled at coming up with reasons to justify the decisions that such a prejudice leads me to make, then my good intention to think objectively – no matter how sincerely I want to do this -maybe be depressingly ineffective. ”

Rachels’ Widget Thought Experiment

You need the 10 best widgets. There are two factories that make widgets. One is in Buffalo and one is in Albany. Your Vice President for Widget Procurement (VPWP) chooses ten widgets from the Buffalo factory every year. They are all good widgets but you are skeptical because it would seem that at least some should come from the Albany factory. You find out she is from Buffalo and you suspect she is unconsciously biased against the Albany widget factory. So you tell her to pick 5 from each factory. She says that this will make it such that she doesn’t always pick the 10 best. You tell her you are aware of this but think that it ensures that you will be more likely to end up with higher quality widgets overall.

Hiring people is no different, according to Rachels.

The circumstances in which quotas are justified:

  1. The goal of the process is to identify the best-qualified individuals for the purpose at hand.
  2. The nature of the qualifications is specified.
  3. A pool of candidates is assembled.
  4. The qualifications of the individuals are ranked from best to worst.
  5. The jobs, promotions, or whatever are awarded to the best-qualified individuals.

The objections to quotas revolve around the idea that quotas are a form of reverse discrimination and unfair to those who are more qualified and miss out on opportunities because an organization is forced to hired someone less qualified.

Rachels’ basic line of response is that the whole point is to ensure that you hire the most qualified people. He acknowledges that there would of course be some instances where this happens but overall there would be less injustices of this nature is quotas were used judiciously.

Bright  “The US Will Join the Rest of the World in Abandoning Capital Punishment”


“The United States will inevitably join other industrialized nations in abandoning the death penalty, just as it has abandoned whipping, the stocks, branding, cutting off apendages, maiming, and other primitive forms of punishment. It remains to be seen how long it will be until the use of the death penalty becomes so infrequent  as to be be pointless, and it is eventually abandoned. In the meantime, capital punishment is arbitrarily and unfairly impossed, undermines the standing and moral authority of the United States in the community of nations, and diminishes the credibility and legitimacy of the courts within the United States.”

ALthough many american support the death penalty they don’t know its dark history as part of the legacy of slavery, lynching, racial oppresion and “legal lynchings.”

Racial Discrimination remains a prominent feature of the death penalty.

  • Out of 20,000 murders only 300 people are sentenced to death, and only 55 are actually executed It is inflicted in less than 1% of all murder cases.
  • Since 1972, only 19 states have carried out executions
  • 86% of those were in teh South
  • Texas and Virgina carried out 45% of those executions

“To understand the realities of the death penalty, one must look to the states that sentence people to death by the hundreds and have carried out scores of executions. In those states, innocent people have been sentenced to die based on such things as mistaken eye witness identifications, false confessions, the testimony of partisan experts who render opionions that are not supported by science, failure to police and prosecutors to turn over evidence of innocence, and testimony of prisoners who get their won charges dismissed by testifying that the accused admited the crime to them. Even the guilty are sentenced to death as opposed to life imprisonment without the possibility of parole not because they committed the worst crimes but because of where they happen to be prosecuted, the incompetence of their court-appointed lawyers, their race, or the race of their victim.”

Illionios governor George Ryan was a staunch supporter of the death penalty but after 23 years as governor, executing 12 people and releasing 13 who were on death row but were innocent, changed his mind.

many other supporters of the death penalty have changed their mind. Justice Harry Blackmun “the death penalty experiment has failed.”

“The death penalty has no place in a conservative society weary of too much government power”

Capital punishment serves no purpose. 100 countries have abolished it and several states in the US have also abolished the death penalty.

Capital punishment doesn’t deter crime. The south, which conducts 85% of all executions has the highest murder rate. The North East, which rarely executes anyone has the lowest murder rate.

99% of murders are not punished with capital punishment. So clearly it is not necessary to condemn murder.

Lastly:

“Capital punishment has no place in a decent society that places some practices, such as torture, off limits -not because some individuals have not done things so bad that they arguably deserve to be tortured, but because a civilized society simply does not engage in such acts. It can be argued that rapists deserve to be raped, that mutilators deserve to be mutilated. Most societies, however, refrain from responding in this way because the punishment is not only degrading on whom it is imposed, but it si also degrading to the society that engages in the same behavior as the criminals.”

“When death sentences are carried out, small groups fo people gather in execution chambers and warch as a human being is tied down and put down. Some make no effort to suppress their glee when the sentence is carried out and celebrations occur inside the and outside the prison. These celebrations reflect the dark side of the human spirit-an arrogant, vengeful, unforgiving, uncaring side that either does not admit the possibility of innocence or redemption or is willing to kill people despite these possibilities.”

Capital punishment and The Moral Standing of the US

The US and three other countries (China, Iran, and Saudi Arabia) account for 90% of all executions in the world.

Even Russia has abolished the death penalty. Since 1985 over 40 countries have abolished the death penalty.

The US is one of the few countries which allows people to be executed for crimes committed before the age of 18. The only other countries to have done this are Congo, Iran, Nigeria, Pakistan, Saudia Arabia, and Yemen.

The US and Somalia are the only two countries tha have not ratified the International Covenant on the Rights of the Child, which prohibits the execution of people who were children at the time of their crimes.

Arbitrary and Unfair Infliction

“Regardless of the practices of the rest of the world or the morality of capital punishment, the process leading to a death sentence is so unfair and influenced by so many improper factors and the infliction of death sentences is so inconsistent that this punishment should be abandoned.”

  • the race of the victim often times influences whether the prosecutor will seek the death penalty
  • the race of the defendant often times influences whether the prosecuture will seek the death penalty
  • prosecutors often make mistakes (sometimes maliciously and sometimes just because they are overworked)
  • Those accused of the death penalty usually cannot afford a lawyer and the court appointed lawyers are often unqualified and or overworked
  • testimony of convicts or other flimsy evidence is often used

“these are not minor, isolated incidents; they are long-standing, pervasive, systemic deficiencies in the criminal justice system that are not being corrected and in some places are even becoming worse.”

Over 100 people condemned to death in the last 30 years  have been exonerated.

“courts will always be fallible and reversible, while death will always be final and irreversible.”

In additional to capital punishment there is also the broader issue of how prisoners are treated. Solitary confinement is commonly used in the United States with devastating consequences. As a point of interest here is a short video comparing a US prison to a prison in Norway.

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