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Unit 11: Criminal Justice

Unit Overview

In this unit, we will look at two essays on commonly discussed topics the morality of capital punishment and the morality of drug decriminalization. However, we also need to be thinking more broadly about how we as a society think about crime and how we use our legal system and our criminal justice system. Lastly, we have a couple of videos on the science of addiction, as the science of addiction is relevant to how we ought to respond to drug addiction and drug use. More broadly, we need to be thinking about and evaluating the ideas that underlie our current criminal justice system, whether they are ignorant about the science of addiction, lack of understanding regarding the causes of criminal behavior, dehumanization of large swathes of humanity and philosophical views like retributive justice. 

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 obesity, 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, and cocaine debases it. Nicotine alters one’s habits, and 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 to 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 falls within the scope of the natural right to use one’s body as one pleases.

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 forces 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 harm drug use allegedly causes to society does 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.

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 appendages, 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 pointless, and it is eventually abandoned. In the meantime, capital punishment is arbitrarily and unfairly imposed, 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 Americans support the death penalty they don’t know its dark history as part of the legacy of slavery, lynching, racial oppression, 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 the South
  • Texas and Virginia 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 opinions 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 admitted 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.”

Illinois governor George Ryan was a staunch supporter of the death penalty but after 23 years as a governor and state legislator, 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 minds. 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 of people gather in execution chambers and watch 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 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 that 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.”

Police Brutality

With the rise of the black lives matter movement, made possible by cell phone footage of brutality and murder by police, police conduct has come under closer scrutiny by many in this country. I’ve given you all a few items related to the protests that took place after the George Floyd murder in 2020.  I think for many, the biggest revelation was the conduct of the police who asked to help keep the pace and make sure protests didn’t get out of hand. But what happened in many places was that the police instigated the violence. The conduct of the Buffalo emergency response unit was particularly interesting. The issue of police conduct becomes particularly concerning when we realize there are deep psychological principles in play that affect a person’s behavior. A piece of that puzzle is revealed in the Stanford prison experiment where the students who were playing the role of prison guard acted in incredibly cruel and inhumane ways, even though it was just an experiment.

Solitary Confinement

In addition 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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