Tag Archives: criminal justice

Should A Minor Be Tried as an Adult Due to the Seriousness of the Crime?

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Here’s a piece I published one year ago today, in case you missed it at the time, and I’d love to hear what you think. I’ll be publishing some brand new pieces very soon, including a piece by a returning guest, the continuing saga of my adventures following the life and ideas of Frederick Douglass, some recommendations, and birthday remembrances of great thinkers. Stay tuned!

Ordinary Philosophy

Here’s a case, currently in the news, in which a young girl helps murder her mother because her mother was trying to break up her relationship with her much older boyfriend.

In this case, the girl charged is 14 years old. A long series of text messages, along with forensic evidence, the timeline of events, and the girl’s own testimony indicate that she and her boyfriend did in fact commit the murder (though, of course, this must be proved in court).

Here’s what troubles me most besides the cruel and terrible murder itself: the girl is being charged as an adult. And she’s being charged as an adult, apparently, due to the seriousness of the crime, a practice that’s been allowed in many states for decades. The main argument in favor of this practice goes something like this: if the crime is serious, or ‘adult’ enough (whatever that means), the…

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Should A Minor Be Tried as an Adult Due to the Seriousness of the Crime?

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Here’s a case, currently in the news, in which a young girl helps murder her mother because her mother was trying to break up her relationship with her much older boyfriend.

In this case, the girl charged is 14 years old. A long series of text messages, along with forensic evidence, the timeline of events, and the girl’s own testimony indicate that she and her boyfriend did in fact commit the murder (though, of course, this must be proved in court).

Here’s what troubles me most besides the cruel and terrible murder itself: the girl is being charged as an adult. And she’s being charged as an adult, apparently, due to the seriousness of the crime, a practice that’s been allowed in many states for decades. The main argument in favor of this practice goes something like this: if the crime is serious, or ‘adult’ enough (whatever that means), the punishment should be proportionate. Adult crimes, in other words, merit adult punishment.

But wait a minute! In what way does the seriousness of the crime indicate that the girl is capable of the level of reasoning, impulse control, emotional maturity, and therefore moral accountability, of a fully functioning adult? It seems to me that in this case, the seriousness of the crime compared with the triviality of the reasons the girl gives for committing the murder indicates that she is not yet capable of an adult level of understanding.

As my regular readers may know, I hold a rather robust view of personal responsibility. But that’s not the same thing as believing that adolescents, lacking the fully developed brain structures of a person in their early 20’s, should be held to the same standard of accountability as an adult. To me, this is piling one injustice on top of another, if we believe that true justice necessarily includes not only the principle of proportionality of crime to punishment, but of punishment to culpability.

What do you think?

How the Brain Works (and Doesn’t) vs Our Justice System

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We’re learning new and surprising things about our brains all the time. Psychologists, behavioral economists, and other scientists have sophisticated new tricks to reveal what’s going on inside our skulls, and their findings are publicized more widely than ever before. We reveal what we think we’re thinking through polls and quizzes, we’re ‘tricked’ into revealing what we’re really thinking through rigged puzzles and tests (exposing our biases, misconceptions, etc), we have easy access to massive databases of recorded human thought, and most amazingly, neuroscientists can now peer inside our brains while we’re thinking. And some of what we’re learning shows us that we’ve been wrong about ourselves in some really important ways.

So: do changes in our understanding of how the brain works mean we have to change, even to overhaul, how our justice system works too?

Our justice system! WHAT?!? Why would we want to change something so equitable, so honorable, it’s defined by the word ‘justice’?

Seriously, though: to many, this question is almost too scary to ask. 

Won’t we send the signal that we’re no longer tough on crime by even proposing such a project? Isn’t our justice system pretty good as it is? Occasional ‘bad apple’ cops, perjuring witnesses, and corrupt prosecutors aside, our justice system is founded on the wholesome principle of personal responsibility: if we do wrong, we pay the price. A central feature of our justice system, after all, is the right to a fair trial by a jury of our peers. And as a society, we’ve taken great pains to ensure that everyone charged with a crime can get a fair trial. Our standards of evidence are pretty high: there must be eyewitness testimony and plenty of it. Forensic evidence is carefully collected and thoroughly analyzed, from blood to fingerprints to DNA to the tiniest of hairs and fibers. Everyone is entitled to legal counsel, even if the taxpayers have to foot the bill. Children and the mentally disabled are, properly, not tried as if they have the same level of responsibility as fully capable adults. The convicted have a right to appeal if they present evidence that their trial was unfair or if they can demonstrate innocence. And so on.
Even granting all of these and setting them aside for now, a common objection to the current justice system in general is that the underlying concept of personal responsibility is a myth. We’re not responsible since everything we think and do is determined by laws of cause and effect. So, we have no free will, and if we have no free will, the whole concept of moral accountability, of responsibility for our actions, doesn’t make sense. The justice system ends up, then, having nothing to rightfully judge or punish. Let’s explore this for a moment.

What do we mean by personal responsibility? We mean that it’s we that did the thing, it’s we who understand that there are alternatives available to us, and it’s we that could, at least conceivably, have done otherwise. This is true even if our personalities, past experiences, and current circumstances make it unlikely we would have chosen otherwise. It’s reasonable to assign responsibility for actions, since it deters us from making bad choices, and motivates us to inculcate better habits in ourselves. Assigning responsibility does not mean we must ruthlessly punish all who do wrong; it means that we can make reasonable demands of one another as the circumstances warrant, be it punishment, recompense, an apology, or an acknowledgement of responsibility.


Who’s responsible for our actions, then? We all are, so long as we are capable of understanding what we should do and why (whether or not we understood at the time), and so long as we could have chosen to do otherwise. Unless immaturity, injury, or illness makes it impossible, or nearly impossible, to control our actions, all persons who are free to make their own choices can and should be held responsible for those choices. (I argue for this more fully in ‘But My Brain Made Me Do It!’)

By the way, that’s why I disagree with many who think that psychopaths shouldn’t be held responsible for their actions. Although it may be more difficult for the psychopath to do the right thing, to respect the rights of others, it’s still in their power to do so, so long as they are capable of reason. We don’t let other people off the hook just because they don’t feel like doing the right thing; and all people, psychopaths or not, often find the wrong thing to do irresistibly attractive, and the right thing difficult. As long as anyone demonstrates sufficient intelligence to understand that the rules apply to them, it doesn’t matter that they wish it didn’t, or feel like it shouldn’t. After all, psychopathy is characterized by lack of empathy, not intelligence. The impartiality that underlies all morality, as in A owes a moral or legal duty to B, so B owes an equal moral or legal duty to A, is a simple and logical equation that any minimally intelligent adult person can grasp, psychopath or not.

So if the concept of personal responsibility, or moral accountability, is generally a good one, and our society is so committed to creating a fair justice system, what’s the problem with it?Here’s one of the main problems: many of our laws and practices are based on a poor understanding of how memory works, and an underestimation of how often it doesn’t work. For example, many of our law enforcement tactics are virtually guaranteed to result in unacceptably high rates of false convictions through their tendency to influence or convince suspects and eyewitnesses to remember details and events that never happened. Police interrogators can and do legally lie to their subjects in the attempt to ‘get them to talk’, under the assumption that false information has little to no effect on the person being interrogated other than to coax or scare the truth out of them. Until very recently, we didn’t understand how malleable memory really is, how easy it is in many circumstances to get others to form false memories by feeding them information. Courts all over the United States, even the Supreme Court, have upheld such deceptive techniques as lawful, yet we have mounting evidence to show these techniques have the opposite of their intended effect – unless, of course, the intended effect is any conviction for crime, not just the true one.

The fact that human memory is as undependable as it it seems counterintuitive, to say the least. It’s true that we can be forgetful, that we trip up on unimportant details such as the color of a thing, or the make of a car, or someone’s height. But surely, we can’t forget the really important things, like what the person who robbed or raped us looks like, or whether a crime happened at all, especially if we’ve committed it ourselves. Yet sometimes it’s the accumulation of small, relatively ‘unimportant’ misremembered details that leads us to ultimately convict the wrong people, and the evidence piling up also reveals that we do, in fact, misremember important things all the time. And people are losing their reputations, their liberty, their homes and money, even their lives, because of it.
 
Before we look at this evidence, let’s explore, briefly, how we think about memory, and what we are learning about it.

Not so long ago, working theories of human memory rather resembled descriptions of filing systems or of modern computers; many still think of it that way. We thought of the brain as something like a fairly efficient librarian or personal secretary neatly and efficiently storing important bits of information, such as memories of things that

happened to us, images of the people and places we know or encounter in significant moments in our lives, and so on, in a systematic way that would facilitate later retrieval, and most importantly, retrieval of reliable information. ‘Unimportant’ memories, or the less significant details of memorable events, were thrown away by forgetting, so that brain power wouldn’t be wasted on useless information. Sometimes we’d find old memories stuffed away in the back of the file or pushed off to a corner somewhere, a little difficult to retrieve after much time had passed, but still accessible with some effort. But important memories were stored more or less intact and discrete from one another, so if we remembered something at all, we’d remember it fairly correctly, or at least, the most important details of it. After all, it wouldn’t make sense for our internal secretary to rip up the memory file into little pieces and stash it all over the place helter-skelter, or to cross out random bits or even doctor the files from time to time, would it? And we certainly couldn’t remember things as if they actually happened to us if they didn’t. It seems all wrong, that evolution (or an intelligent designer, if that’s your thing) would give us an inefficient, inaccurate, dishonest, or mischievous keeper of that most cherished, most self-defining component of ourselves, our life’s memories.

But now we know that memory works differently in many ways than we thought. How do we know this? For one, we’re now looking inside the brain as we think, and brain scans show that the process of recalling looks different in practice than we might have expected if some of our old theories were true. But more revealingly, we’re taking a closer look at our cognitive blunders. Like many other discoveries in science, we find out more and more about how something works, honing in on it so to speak, by examining instances where it doesn’t work as it should if our theories, or common sense, were correct.

As we’re finding out that memory doesn’t work as we thought, we’re also realizing how heavily our justice system relies on memory and on first-person accounts of what happened. We place a very high value on eyewitness testimony and confessions in pursuing criminal convictions, again, based on faulty old assumptions about how memory works, and how accurately people interpret the evidence of their senses. Yet as we’ll see, people have been falsely convicted because of these, even when other evidence available at the time contradicted these personal accounts of what happened. As our justice system places undue faith in memory and perception, despite their flaws, in what other ways is it built on wrong ideas about how the mind works?

Neuroscience, the quest to understand the brain and how it works, was founded on case studies of how the mind to appeared to change when the brain was injured. Traditionally, the mind was thought of as a unified thing that inhabits or suffuses our brain somewhat as a ghost haunts an old house. If part of the house burns down, the ghost is the same: it can just move to another rooms. But careful observers, early scientists, noticed that an injury to a part of the brain affects the mind itself. When particular parts of the brain were injured, patients lost specific capabilities (to form new memories, for example, or to recognize faces, or to keep their temper). Sometimes, the personality itself would change, like from friendly to unfriendly or vice-versa. Or in the case of split-brain patients, they would simultaneously like and dislike, believe and not believe, or be able and not able to do certain things, depending on how you ask, or sometimes just depending on what side of the body you address them from! Gradually, we came to understand that the mind is something that emerges from a physical brain, from the way the brain’s parts work together, and is entirely dependent on the brain itself for its qualities and for its very existence. 


And as we discussed, it’s not only neuroscientists with their fMRIs that are revealing how the brain works. The criminal justice system has amassed mountains of evidence that shows us how often the human brain does its job and helps us ‘get the right guy’, and how often it fails. With advances in technology, such as DNA testing, more sophisticated firearms testing, expanded access to files and records, and many other newly available forensic tools, we’re discovering an alarming number of false convictions, not only of people currently imprisoned, but sadly, of those we’re too late to help. Most of these are the direct result of basic errors of our own faulty brains. 

(I’ve more briefly discussed the issue of false convictions for crime in an earlier piece, stressing the importance of knowing the ways our criminal justice system fails, and one of the most effective ways society can keep itself informed.)

Two of the main culprits in false convictions are false memory and misperception, the one resulting from errors in recall, the other resulting from bias or the misinterpretation of sense evidence.

For example, let’s consider the case of a rape victim and the man she falsely accused, who went on to work together for reform in certain law enforcement practices. For years, Jennifer Thompson-Cannino was absolutely sure that Ronald Cotton had raped her, and her identification of him led to his conviction for the crime. After all, as she said, and as the court agreed, one couldn’t forget the face of someone who had done this to you, committed such an intimate crime inches away from one’s own eyes, could they? Eleven years later, the real rapist was identified when the original rape kit sample was re-tested to confirm a DNA match. Over time, Thompson-Cannino had convinced herself, honestly by all accounts, that Cotton’s face was the one she originally saw, and each time she looked at it, the more she ‘recognized’ it as that of her rapist, and the more strongly she associated this recognition with the rest of her memories of the crime. Fortunately, she’s one of those rare people who are able to fully admit such an egregious mistake, and she has joined with Cotton to call on police jurisdictions to change the way suspect lineup identifications are conducted. Thompson-Cannino and Cotton learned a hard lesson about the fallibility of memory, and how preconceived notions (in this case, that the police must be right) can withstand the rigors of the courtroom and still lead to very wrong conclusions.

But we can imagine that such a mistake must happen from time to time, as in Cotton’s case, when the supposed criminal looks quite a bit like the real one, and the array of circumstances that led to the whole mix-up were so unusually convoluted. But, surely, a lot of people couldn’t all remember the same crime, or series of crimes, wrongly, and describe it mostly the same way when questioned separately? Well, that happens too. The McMartin case of the early 1980’s was just the first of a string of cases which resulted in hundreds of people being convicted for the rape and torture of small children, usually entirely based on the purported evidence of the ‘victims’ ‘ own memories, or those of their family members. The ‘victims’, mostly young children, told detailed, lurid, horrific stories of events that most people would consider beyond the imaginative scope of innocent children. Over time, as those convicted of the crimes were pardoned, exonerated, or usually just had the charges dropped without apology (some still languish in prison, or are confined to house arrest, or are barred from being with children, including those of their own family), videos and transcripts of ‘expert’ interviews with these children found them leading their interviewees on. Professional psychologists and interrogators were found to be influencing children to form their own false memories, even planting them whole-cloth, rather than drawing them out as most people thought they were doing. This includes the professionals themselves! Some of these children, now grown, still ‘remember’ these events to this day, even those who now know they never happened.

Okay, now we’re talking about children, and we all know children are impressionable. But usually it’s adults who give evidence in such important cases, and though they might be fuzzy on the details when it comes to what other people did, they know what they themselves did, right? Well, here again, no, not necessarily. In Norfolk, Virginia, eight people were convicted of crimes relating to the rape and murder of one woman, based on the first-person confessions and testimony of four military men. These men, who had tested sound enough of mind and body to join the Navy, were convinced by police interrogators, one by one, to ‘reveal’ that they and several others had, by a series of coincidences, formed an impromptu gang-rape party that managed to conduct a violent crime that lasted for hours, while leaving little destruction or evidence behind. Although these confessions didn’t match the evidence found in the crime scene, didn’t match the other confessions, or were contradicted by alibis, all were found guilty on the common-sense and legal assumptions that sane, capable people don’t falsely accuse themselves.Yet as in the Norfolk case, the case history of our criminal justice system reveals that with the right combination of pressure, threats, assertion of authority, and personality type, just about anyone can be pushed to confess to committing even a terrible crime, and worse yet, become convinced that they did it (as one of the men did in the Norfolk case). The Central Park Five, as they are often called, were five teenage boys, aged 14 to 16, who were convicted of the rape, torture, and attempted murder of a woman in Central Park in New York City. The justifiably horrified public outrage at this crime, combined with frustration over a rash of other crimes throughout the city, put a lot of pressure on law enforcement to solve the crime in a hurry. These five boys had already been picked up by police officers in suspicion of committing other crimes that night, of robbery and assault, among other things, and when the unconscious, severely beaten woman was found, the police hoped they had her attackers in custody already. After hours of intensive untaped interrogation, all five eventually confessed, implicating themselves and each other. They were convicted, despite the fact that the blood evidence matched none of them, and their confessions contradicted each other in important details. 

False memories and false confessions are only two of the ways our fallible brains can lead us astray in the search for truth. Human psychology, so effective at so many things, is also short-sighted, self-serving, and wedded to satisfying and convenient narratives, to a fault. Law enforcement officials in all of these cases were convinced that their theories of effective interrogation were right, and that their perceptions of the suspects were right. The prosecutors were convinced that the police officers had delivered the right suspects for trial. The legislators that made the laws, and the courts that upheld them, were convinced they were acting in the best interest of justice. And as we’ve seen, all of these were wrong.

As just about everyone was who were involved in bringing Todd Willingham to court, and in condemning him to die for the murder of his own children by arson. By all accounts, Willingham didn’t act as people would expect a grieving father to act, especially one who had escaped the same burning house his children had died in. Yet it was one faulty theory after another, from pop psychology and preconceived notions about that ‘real’ grief looks like, from bad forensics to a poor understanding of how an exceedingly immature and awkward man might only appear guilty of an otherwise unbelievable crime, that led to his conviction and execution by lethal injection.

But the problem of false conviction for crime is much, much larger than we might suppose from the cases we’ve considered here: these were all capital crimes, and as such were subject to much more rigorous scrutiny than in other cases. If wrongful convictions are known to happen so often in the case of major crimes, we can reasonably extrapolate a very high number of false arrests, undeserved fines, and especially, false plea deals, in which people innocent of the relatively minor crimes they’re accused of are rounded up, charged, and sentenced. Plea bargaining presents a special problem: suspects are persuaded to plead guilty and accept a lesser sentence than the frighteningly harsh one they’re originally threatened with, and in jurisdiction after jurisdiction, we’re finding that huge numbers of innocent people are sent to prison every year through this method. All of this results from a blind zeal to promote justice, or at least, the appearance of justice in the interest of feeling secure, of more firmly establishing authority, or of fulfilling the emotional need to adhere to comforting social traditions.

So how do we need to change our attitude towards our criminal justice system, in the pursuit of actual justice? A proper spirit of epistemic humility, a greater concern for those who may have been wrongfully convicted, and a real love of justice itself (rather than the mere show of caring about justice that the ‘tough on crime’ too often consists of).

 But we still are left with the practical task of protecting ourselves and one another. Positive action must be taken, or crime will run rampant, being unopposed. But that doesn’t mean hold on to old ideas and practices because we like them, because they are familiar and ‘time-tested’, and make us feel safe. This includes the death penalty, which shuts out all possibility that we can remedy our mistakes.

Here’s one general solution: approach criminal justice as we do science itself, where we accept conclusions based on the best evidence at the time, but founded on the idea that all conclusions are contingent, are revisable if better, compelling, well-tested evidence comes along. We need a justice system that assumes the fallibility of memory and perception, and builds in systematic corrections for them.

And we need a system that doesn’t just pay homage to this idea: we need to build one that allows for corrections, and not in such a way that it takes years, if ever, to release someone from prison or clear someone’s name if the evidence calls for it. Many would say that the system already works this way: look at how many appeals are available to the convicted, and how many hundreds of people have already been exonerated of serious crimes. But it doesn’t work that way in almost all circumstances. It takes anywhere from months to several years after actual innocence is established to actually release a wrongfully convicted person from prison. For all those not so lucky as to have their innocence proved: most cases don’t have DNA evidence available to test to begin with, at least that would definitively prove guilt or innocence. And even in the rare cases such evidence is available, most is never re-tested to begin with, since the bar for re-evaluation of evidence is so high. Or, the evidence that was available is destroyed after the original conviction and is unavailable for re-examination. Or, legal jurisdictions are so determined that their authority remain unchallenged that they make it extremely difficult, if not impossible, for prosecutors and law enforcement officers to be held accountable in any way if they make a mistake, and bend over backwards to make sure such mistakes are never revealed. And so on.

In short: we don’t just need a justice system that brings in science to help out; we need a justice system whose laws and practices emulate the self-correcting discipline of science, which, in turn, is derived from the honest acknowledgement of the limitations of our own minds.

*Listen to the podcast version here or on iTunes

* Also published at Darrow, a forum for thoughts on the cultural and political debates of today

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Sources and Inspiration

‘About the Central Park Five’ [film by Ken Burns, David McMahon and Sarah Burns], PBS.org.
http://www.pbs.org/kenburns/centralparkfive/about-central-park-five/Berlow, Alan. ‘What Happened in Norfolk.’ New York Times Magazine. August 19th, 2007.
http://www.nytimes.com/2007/08/19/magazine/19Norfolk-t.html

‘The Causes of Wrongful Convictions’. The Innocence Project.
http://www.innocenceproject.org/causes-wrongful-conviction

Celizic, Mike. ‘She Sent Him to Jail for Rape; Now They’re Friends’ Today News, Mar 3, 2009.
http://www.today.com/id/29613178/ns/today-today_news/t/she-sent-him-jail-rape-now-th…

Eagleman, David. ‘Morality and the Brain’, Philosophy Bites podcast, May 22 2011.
http://philosophybites.com/2011/05/david-eagleman-on-morality-and-the-brain.html

‘The Fallibility of Memory’, Skeptoid podcast #446. Dec 23, 2014.
http://skeptoid.com/episodes/4446

Fraser, Scott. ‘Why Eyewitnesses Get It Wrong’ TED talk. May 2012
http://www.ted.com/talks/scott_fraser_the_problem_with_eyewitness_testimony

Grann, David. ‘Trial by Fire: Did Texas Execute an Innocent Man?’ The New Yorker, Sep 7, 2009
http://www.newyorker.com/magazine/2009/09/07/trial-by-fire

Hughes, Virginia. ‘How Many People Are Wrongly Convicted? Researchers Do the Math’. National Geographic: Only Human, Apr 28, 2014.
http://phenomena.nationalgeographic.com/2014/04/28/how-many-people-are-wrongly-…

Jensen, Frances. ‘Why Teens Are Impulsive, Addiction-Prone And Should Protect Their Brains’. Fresh Air interview, Jan 28th, 2015.
http://www.npr.org/blogs/health/2015/01/28/381622350/why-teens-are-impulsive-...

Kean, Sam. ‘These Brains Changed Neuroscience Forever’. Interview on Inquiring Minds, 

Lilienfeld, Scott O. and Hal Arkowitz. ‘What “Psychopath” Means’. Scientific American,
Nov 28, 2007. http://www.scientificamerican.com/article/what-psychopath-means/

Loftus, Elizabeth. ‘Creating False Memories.’ Scientific American, Sept 1,1997. http://faculty.washington.edu/eloftus/Articles/sciam.htm
and ‘The Fiction of Memory’ TED talk. June 2013.
http://www.ted.com/talks/elizabeth_loftus_the_fiction_of_memory?

 
Nelkin, Dana K., ‘Moral Luck’, The Stanford Encyclopedia of Philosophy. Edward N. Zalta (ed.) http://plato.stanford.edu/entries/moral-luck/
 
Perrilo, Jennifer T. and Saul M. Kassin. ‘The Lie, The Bluff, and False Confessions’. Law and Human Behavior (academic journal of the American Psychology-Law Society). Aug 24th, 2010.
https://www.how2ask.nl/wp-content/uploads/downloads/2011/10/Perillo-Kassin-The-Lie…

Possley, Maurice. ‘Fresh Doubts Over a Texas Execution’. The Washington Post, Aug 3, 2014.
http://www.washingtonpost.com/sf/national/2014/08/03/fresh-doubts-over-a-texas-execution/

Robertson, Campbell. ‘South Carolina Judge Vacates Conviction of George Stinney in 1944 Execution’, The New York Times, Dec. 17, 2014. http://www.nytimes.com/2014/12/18/us/judge-vacates-convict…

Shaw, Julia. ‘False Memories Creating False Criminals’. Interview, Point of Inquiry podcast.
March 2nd, 2015. http://www.pointofinquiry.org/false_memories_creating_false_criminals_with_dr..

‘The Trial That Unleashed Hysteria Over Child Abuse.’ New York Times, Mar 9th, 2014.
and video ‘McMartin Preschool: Anatomy of a Panic | Retro Report’

The Wisdom of Crowds: How Voting Produces a Better Society

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It’s easy to feel discouraged in the United States of America sometimes.

Recently, I was chatting with someone who suggested that a meritocracy might be better than the democracy (of sorts) which we have now. A democratic republic, rather, and a degraded one: our government seems more dysfunctional than ever, overrun with ideologues and pawns of a few moneyed interests, and hyperbole and unreason holds sway over public discourse. A meritocracy, where rulers are selected based only on their qualifications, be it education, political experience, or business acumen, might prove a welcome change.
Meritocracy is, pretty much, just a theoretical form of government. I expect everyone believes it would be best to have wise and qualified leaders (if we must have any at all), and most think it’s good to try to put such people in office. No government exists whose constitution specifically requires that only the smartest people rule. But imagine a real meritocracy, with strict laws in place to ensure that only the most able, most knowledgeable leaders are appointed. Perhaps public officials would be selected by undergoing a series of tests, or elected by a panel of experts in relevant fields of knowledge. Wouldn’t this increase the chance that no dummies, however slick, charming, or pandering, would be allowed to hijack the government and, through their incompetence, ruin it for everyone else?
Not all that long ago, this sounded pretty good to me. When I returned to college awhile back and studied political philosophy, I was very much in the mood for it, or something like it. Like just about everyone else, it felt that I was constantly slapping my forehead (as I still do) over the ludicrous statements and bad laws our politicians were cranking out. Wouldn’t it be much better if they all had to take IQ tests, plus general knowledge tests in political and legal theory, history, English, rhetoric, and the rules of basic courtesy before they were allowed to run for office? (I’m willing to bet that no politicians who call for ‘citizenship tests’ for voters also call for ‘leadership tests’ for themselves.) Like you, dear readers, I have a deep respect for learning, and would be thrilled to see more of it make its way into our government and into our political discourse, let alone into our (to my mind) overly-materialist culture.

Yet through the years, the more widely I read, and the more I listen to politicians, scholars, and other influential people discuss and debate any given topic in any given field of expertise, it doesn’t seem likely that anyone exists, however brilliant, who could know or understand enough about any subject to craft public policy on their own. No one mind can hold all the relevant knowledge that should be brought to bear in crafting a good law. It’s not just technical knowledge that’s the problem: an expert in a field could, at least theoretically, access enough of that sort of knowledge on their own, from their colleagues, their library, and the Internet, though it still seems unrealistic that one person could put it all together in a reasonable time frame. The far bigger problem is that no one person could escape their own biases sufficiently to craft laws that are just for everyone.

All societies are made up of people with different personalities, different points of view, different belief systems, different circumstances of life. Each, therefore, has different interests and different responsibilities, and have different rights they hold most dear. It’s not possible for any one mind to fully understand how the rights, responsibilities, and interests of all interact and conflict. Not only that: a wise leader must effectively predict the entire chain of events that might result from enforcement of the law, or system of laws. We might say well, of course, no one knows all these things. So what we need in order to create an effective meritocracy is many leaders, not one or just a few. Between them all, a governing body of a large number of experts should be able to work out these problems as least as well as the public at large, and probably better.
But here we run into problem of numbers. Aside from the inevitable clashes of ego, think of how many ‘meritocrats’ it would take to adequately take all of the relevant knowledge, all the possible outcomes, all the values and interests of all of its citizens into account while crafting legislation. Is it likely that any one group, so unrepresentative as they are of the general population, could create a society in which the rights and interests of all of society, rich and poor, educated and otherwise, men, women, and children, laboring and not, of all races, are fairly and equally represented? Could they do this even in theory, given the facts of human psychology? Almost everyone, almost all of the time, automatically favors their own interests and those of their peers over those of other groups, and it makes sense that they should. For one thing, they understand why their own interests are as they are, because they arise from their own particular life experience. For another, everyone is prone to availability bias: people form beliefs and make decisions based on examples they themselves can readily call to mind. Therefore, we are intellectually hostage, so to speak, to whatever set of information and experience we are privy to. However much we try to expand our knowledge of the world, we are always limited. These, and myriad other quirks of human psychology, make it inevitable that no one human being on their own, or a relatively small group of human beings, could make sufficiently fair, impartial, and fully informed decisions on policies that effect everyone.

Let’s consider pre-Revolutionary France for an extreme example of how a meritocratic but short-sighted few, ruling over a non-participatory citizenry, can bring about societal collapse. France, like other European societies at the time, was ruled by a heritable meritocracy of a monarch and an aristocracy, and an appointed clergy, who all had the wealth and leisure, unavailable to most people, to afford an education. These ruled a populace which they kept in strict subjection, for the people’s own good, of course. Yet these meritocrats could not put themselves into the sabots (wooden clogs of the peasantry) of the majority of the people. (The Estates General, made up of representatives from various classes, advised the king, but had little power to begin with, and it decreased over time; the Third Estate, made up of the poorest members of  French society, had the least power, and the burden of taxation fell almost entirely on them.) As they saw it, the classes of society were properly kept in their place to fulfill their respective roles, and to undermine this structure would be to undermine the delicate balance of a functioning society. They were proven wrong: the intolerable condition of their lives caused the laboring classes to revolt and overthrow their rulers. While the monarch, the aristocracy, and the clergy considered themselves best suited for rule, they lacked the knowledge, the insight available only through the experience of what it takes to make the life of a laboring person not only bearable enough forestall rebellion, but satisfying and remunerative enough to encourage more productivity. They lacked the epistemic humility that wise people have. If the ruling elites were more informed, say, by the input of the people they ruled over, perhaps they could have thought of ways to harness human energy and facilitate creativity as market societies would later do. But since they shut themselves off from the input of the majority of the population, their policies were ill-informed and short-sighted, and their society eventually collapsed. This was the fate of so many undemocratic societies, that it seems most likely to be the fate of all.

‘But wait a minute!’ you may object. Why would we expect better results in a democracy, when it’s at least as likely and probably more, that the average person’s vote is based on just as narrow, less-than-fully-informed self-interest as that of the aforementioned meritocrats?

 
In a democratic system, individual voters don’t have to be fully informed about everything for their votes to be valuable. Since the vote crowd-sources knowledge from the entire population, each person, even if voting out of narrow self-interest, informs society of the things they know most about. Our votes tell each other what we want, and indicate why. By the way people vote, we discover what individuals have learned from their own life experiences, from the work they do, their area of study or expertise, their family and peer groups, and the demands of the environment in which they live. We learn what people believe, what their interests are, how far they’re willing to go to help each other out, and where they want the line drawn to protect themselves. We learn how much people know (and how much they don’t), what values they hold, and what kind of leaders they admire.

So it’s not that the average voter must be wise or fair for their vote to count, though it’s better that they are, since this speeds up the process of creating a better government. What matters most is that society as a whole is well informed. A society can only become knowledgeable enough to create a government that’s well-functioning, impartial, and more conducive to the flourishing of all of its constituents, by this crowd-sourcing of information. Since no one mind, or no few minds, can hold enough information or understand enough points of view to do what’s best for everyone, it’s everyone who must provide the necessary knowledge.

This utilitarian argument, by the way, is not meant to replace moral arguments in favor of democracy: that proper respect for the moral equality of all persons entails the right to vote, or that it’s incumbent on all good citizens to fulfill their social obligations through political participation, and so on. I offer it as one of many excellent reasons to prefer a democratic system of government over any other: not only because it’s morally enlightened, it’s also the most practical. Democracy is best because it works best, and the evidence of history bears this out. In modern democratic societies, for example, war is relatively rare, since the transfer of power from one leader to the next is peaceful. Generally, the burdens of war disproportionately fall on the majority of society while a relative few reap the benefits; very few wars in history were revolutions that benefited the majority the most. For those of us dismayed at how many wars we still wage nowadays, compare the state of the world today with the history of Europe : nearly every time a ruler or rulers died, by fair means or foul, either a war would break out to decide who should rule next, or the new ruler(s) would embark on a war of conquest to prove their supremacy, or the favored religion of the new ruler(s) was forcibly, and bloodily, imposed. Most of Europe was at war most of the time, century after century, until their monarchies, aristocracies, and theocracies were replaced with modern, democratic, and largely secular governments. Modern democratic societies, while sometimes at war with other countries, aren’t at war with each other, and there are far fewer wars overall as a result.

Let’s consider a modern example of how not voting not only leads to more oppression, but to well-intentioned yet bad policy resulting from self-imposed ignorance: the disenfranchisement of convicts. Those convicted of serious crimes are punished with the loss of some of their civil rights, at least for awhile, and this often includes the right to vote. While I understand the deterrent effect of many types of punishment, including the loss of some rights and privileges, the loss of the vote does little good in this respect. Each individual prisoner loses little when they lose the vote, but society loses a lot: as we punish criminals by taking away their right to vote, we undermine our society by making it that much less informed.

As we are only significantly realizing now, our criminal justice system is not only rife with mistakes, but with affronts to human dignity and assaults on human rights. For example, we’re discovering that our ‘common-sense’ reliance on eyewitness testimony and police interrogation techniques has led to an unacceptable rate of false convictions. We’re finally discovering that our ‘tried-and-true’ methods of police interrogation and psychological questioning routinely generate false testimony and false confessions. This includes 20%-25% of exonerations for serious crimes based on DNA evidence (an alarming rate, since relevant DNA evidence is available only in a substantial minority of cases). There are a wealth of examples of people convicted because of the brain’s ability to create false memories, especially if an authority figure or medical ‘professional’ induces them, or because eyewitnesses misunderstand or misremember what they saw. Consider the rash of cases in the 1980’s and 1990’s where scores of childcare workers were falsely convicted of ritualistic child rape and torture. Or the Norfolk, Virgina murder/rape case, in which four grown military men (who had passed mental- and bodily-health tests to join the Navy) were coerced into giving contradictory confessions. The list of problems with our justice system does not end there, not by a long shot: there’s our long history of junk forensic science, prison overcrowding, official indifference to prison rape, solitary confinement-induced mental illness, and law-enforcement policies which generate higher recidivism rates and help turn petty criminals into hardened, violent ones through over-punishment.

Yet if those convicted of crimes had been informing the rest of us, through their votes, of their inside knowledge of the criminal justice system, the sooner we could have had the opportunity to recognize and correct these errors. It took centuries for policy makers and researchers and scientists to discover how prevalent, and how serious, these problems are, or to care enough to find out. Of course, it’s important to be tough on crime, and all members of a society have the right and responsibility to protect themselves and their loved ones. But this interest in self-protection must be balanced against the interests of those who have suffered the ill effects of over-zealous, ‘tough-on-crime’ policies. Every time an innocent person is convicted of a crime, the guilty one remains free to commit more, and every policy that encourages the abuse of prisoners and raises incarceration and recidivism rates, the more injustice we commit, the more criminality we foster, and the more taxes we pay.

None of this is to say that merit doesn’t matter, of course it does. In modern democratic societies, we not only vote directly for specific laws and taxes, we vote for representatives, specialists whose job it is to be better informed on the issues than the average person, or have expert advisers, or have achieved a higher level of education. A democratic republic such as ours can be seen as a type of meritocracy, since the idea is that the people, as a whole, elect representatives based on their merits as well as on the likelihood that they will best represent their constituents’ interests. But even so, the fact that they are voted in by all of the people still ensures that the whole range of interests are represented, and the widest possible range of knowledge is brought to bear.

To return to the degraded state of the United States’ democratic republic: the problem isn’t so much that uninformed voters are dragging the country down, though I think they, too, can impede progress. The bigger problem is that the votes of most people count less than ever, in this era where buying power makes right, and where the interests and values of the majority of people are not adequately represented. For example, we have a problem under-regulation, where powerful financial interests have over-ridden the interests of most of the population. These few financial interests, who have grown to such gargantuan proportions that they hold most of the nation’s capital in their (virtual) vaults, gamble with it freely for the sake their own personal gain, to the detriment of the nation’s economy, and of the world’s.We also have a problem with over-regulation, where special interests of a powerful few successfully hijack government, through financial enticements and pressure on elected officials, for the express purpose of crushing their competition. Here, again, the interests of most of the people are trumped by the outsize influence of a moneyed few.

Here’s my two cents on the matter: VOTE! You matter! Your interests, your input matter! Don’t just throw your hands up in the air, sigh, stay home, and play into the hands of those who have, in recent years, been throwing up roadblocks to keep certain people from the polls, disproportionately effecting the poor, those disabled by age or illness, and otherwise disadvantaged people. After all, do you think it’s likely that such an effort would be made by those in power if voting doesn’t matter? Think about it.

Listen to the podcast edition here or on iTunes

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Sources and Inspiration:

Berlow, Alan. ‘What Happened in Norfolk.’ New York Times Magazine. August 19th, 2007.
http://www.nytimes.com/2007/08/19/magazine/19Norfolk-t.html

Childress, Sarah. ‘Why Voter ID Laws Aren’t Really About Fraud’. Oct 20, 2014. Frontline.
http://www.pbs.org/wgbh/pages/frontline/government-elections-politics/why-voter-id-laws-arent-...

‘Day-care sex-abuse hysteria’. (2014, December 29). In Wikipedia, The Free Encyclopedia.
http://en.wikipedia.org/wiki/Day-care_sex-abuse_hysteria

‘Estates General (France)’. (2014, October 5). In Wikipedia, The Free Encyclopedia. 
http://en.wikipedia.org/wiki/Estates_General_%28France%29

Fontevecchia, Agustino. ‘As New York City Crushes the Food Truck Business, Mexicue Pushes a New Model’. Forbes. May 23rd, 2014. ‘http://www.forbes.com/sites/afontevecchia/2014/05/23/...

Fraser, Scott. ‘Why Eyewitnesses Get It Wrong’ TED talk. May 2012
http://www.ted.com/talks/scott_fraser_the_problem_with_eyewitness_testimony

Kahneman, Daniel. Thinking, Fast and Slow. Farrar, Straus and Giroux, New York 2011.
https://books.google.com/books?id=ZuKTvERuPG8C&printsec=frontcover&dq=thinking...

Lightman, David. ‘Wall Street crisis is culmination of 28 years of deregulation’. McClatchyDC. Sept 15th, 2008. http://www.mcclatchydc.com/2008/09/15/52559/wall-street-crisis-is-culmination.html

Loftus, Elizabeth. “The Fiction of Memory” TED talk. June 2013.
http://www.ted.com/talks/elizabeth_loftus_the_fiction_of_memory?

‘Meritocracy’. Wikipedia, The Free Encyclopedia. Jan 8, 2015.
http://en.wikipedia.org/wiki/Meritocracy

Mills, Steve and Maurice Possley. ‘Man Executed on Disproved Forensics’. Chicago Tribune, Dec 9th, 2004. http://www.chicagotribune.com/news/nationworld/chi-0412090169dec09-story.html#page=1

Perrilo, Jennifer T. and Saul M. Kassin. ‘The Lie, The Bluff, and False Confessions’. Law and Human Behavior (academic journal of tje American Psychology-Law Society). Aug 24th, 2010.
https://www.how2ask.nl/wp-content/uploads/downloads/2011/10/Perillo-Kassin-The-Lie-The-Bluff…

Perry, Marvin. Western Civilization: A Brief History, Vol II: From the 1400’s. Boston: Wadsworth, 2009 https://books.google.com/books?id=7SIKAAAAQBAJ&printsec=frontcover&dq=Perry,…

Pinker, Steven. The Better Angels of Our Nature: Why Violence Had Declined. New York: Viking Penguin, 2011 https://books.google.com/books?id=J7ATQb6LZX0C&printsec=frontcover&dq=inauthor…

Personal Responsibility and Collective Action Problems

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In a recent essay, ‘But My Brain Made Me Do It!‘, I argue that many attempts to evade or minimize personal responsibility for one’s actions are misguided. The concept of personal responsibility exists not only to impart personal and societal meaning to human behavior, but to assign accountability. After all, if human beings can not be required to fulfill responsibilities or make retribution for harms done, societies could not function and group living would be impossible. Many attempts to evade personal responsibility only consider the reasons why one might easily have acted one way or another, and ignore two other key factors which lend weight and force to it in the first place: whether the person could have acted otherwise, and whether the person was in fact the one who performed the action. Therefore, attempts to isolate only deliberate intention, and to disregard other factors in matters of personal responsibility, undermine the nature and utility of the whole concept.

In the United States, debates about the meaning and ramifications of personal responsibility surround not only crime and punishment issues, but also public policy dealing with collective action problems, such as pollution, overpopulation, gun control, defense, law enforcement, and access to health care. These types of problems result from individual choices en masse, so that personal responsibility may be difficult to assign to any one individual. Yet, these problems would not exist unless all of those individuals choose to act they way they do. Collective action problems affect so many people, are so complex, and are so expensive, that a solution to them requires mass participation: many individuals each required to take part in solving the problem.

Yet solutions are often difficult to find because of the personal responsibility problem: how do we hold particular people responsible for solving a collective action problem when their individual choice is merely a ‘drop in the bucket’, so to speak? If personal responsibility is so narrowly conceived that one is only held responsible when there is a clear and direct link from the act in question to the entirely of the consequence, and they that they must have (mostly) understood the consequence of their action beforehand, than we must allow that no-one can be held responsible for most collective actions problems. But if we take a more robust view, that people can be held responsible for what they do and the consequences that flow from it, even if the consequences cannot be foreseen or intended, then we do have the right to call on the community to do what they can to fix the problem, be it through contributions of money or effort, through reparations, through accepting (just) punishment, or through other means.

In my ‘Brain’ essay, many of my arguments supporting a robust view of personal responsibility are consistent with a typically American conservative viewpoint, though some of my conclusions relating to particular public policies may differ. (For example, when it comes to criminal justice, I favor a reparative/restorative system over a punitive one, and restraint over zeal in enforcement of all but the most serious crimes, but those are topics for other essays.) When I apply the same arguments to collective action problems, however, the result is more consistent with a progressive approach to public policy as well as to morality.

A robust view of personal responsibility, I find, entails that individuals are morally obligated to contribute, through taxes or otherwise, to programs that preserve and promote the health, protection, and basic well-being of society as a whole. I argue this for two reasons: one, it is individual choices, be it in the aggregate, that create collective action problems (I address this issue in a past essay, in my example of the Dust Bowl crisis in mid-century United States, where the individual decisions of farmers to ‘get rich quick’ created a crisis for everyone, including those others who decided to farm more prudently and responsibly.) Therefore, members of a society should contribute to solutions or to make reparations, for the harms to others that result, directly or indirectly, as a result of their choices, Secondly, individuals, as well as society as a whole, often enjoy wealth, comfort, improved health, and other benefits that are derived from the reduced circumstances of others. A robust view of personal responsibility would also require that those who enjoy these benefits should pay their fair share for them when they have not adequately contributed for them otherwise (for example, in the marketplace).

Consider the issue of health care, and the debate over whether it should be publicly subsidized.

A typically American conservative position on this issue is that health care should be a free market commodity, because it should be a reward for honest work and its contribution to society. If one is personally responsible for their own actions, then if they do their fair share and work hard, they earn the right to access health care. The market is the mechanism, therefore, that limits the access to health care only to those people who have contributed to society through work. People who do not do their fair share, on the other had, should not get health care as a freebie, coercively paid for via taxation, by wage earners. If people feel like freely donating health care to the poor, fine and good, but they should not be forced to do so.

I sympathize with that position to a limited degree. I now work in the health care industry and see people who I have good reason to believe are gaming the system, quite often, in fact. (I address this issue in another recent essay.) If some people are cheating the system, I agree, they oftne are doing the wrong thing, but, I think, not necessarily. Consider this example: a pair of aging parents find their nest egg, carefully scrounged together through a lifetime of hard work, suddenly threatened by the wife’s recent diagnosis of breast cancer. These parents may be faced with this set of choices a) let the wife die without treatment, b) pay for the treatment, wiping out the life savings with which they would have paid for their retirement and the care of their children c) hide their assets to access free public health care assistance. These parents may feel justified making the third choice, since they feel that their primary moral duty is to save the life of their spouse and to care for their children, that their lifetime of hard work contributed enough to society to earn the moral right to this public assistance, and that they do little wrong gaming a system made corrupt and expensive by greed and political chicanery. I, for one, would find it difficult to condemn such a choice, and in some circumstances, may agree that it’s the most morally justifiable choice.

In my work in the medical office as well as in my years in the work force, I’ve seen far more examples of situations that bear a closer resemblance to the hypothetical situation I presented (closely inspired by a real life one) than to simple cheating out of greed or laziness. I work for a good doctor, who is the only local one in his specialty to see low-income patients on public health care assistance. (The reimbursement rates from many public health care assistance programs are very, very low, and physician’s offices have a hard time keeping their doors open at all if they accept many patients with that insurance.) Therefore, our office cares for many of the working poor as well as the suspected cheaters. Every day, I see elderly people who carry the signs of their past lifetime of hard work as well as people who currently work long, hard hours for little pay, whose health care is paid for through taxation because they can’t afford it otherwise. And I think: that’s how it should be.

That’s because all of us enjoy the benefits that come from the hard work of so many low-income people. We get to eat plentiful, cheap food because other people toil long hours with little pay in fields, restaurants, and factories. We get to wear comfortable, well-made clothing and stuff our wardrobes to a degree that no-one but the wealthiest of aristocrats used to enjoy, again, because others work in miserable, boring, depressing conditions working practically for nothing. I live in Oakland’s Chinatown, where I am surrounded by the hardest-working people I’ve seen in my life, other than the (largely immigrant and children of immigrant) people I worked with in the food industry, and these people, too, receive pitiful remuneration for the vast contributions they make to your life and mine.

When you and I pay a few cents for an apple, or a few bucks for a shirt, or a couple hundred for a computer, we do not pay our fair share, to my mind. The market may have driven prices and wages down, but when we’ve purchased those things, we’ve only fulfilled our part of the bargain between the buyer and the seller. We have not, however, fulfilled our personal responsibility towards all those other people who made our wealth possible. We have paid for our own life of comparative wealth and ease in an exchange that buys a life of privation for another.

So when you and I buy that cheap apple, that cheap shirt, that cheap computer, our decision to do so creates an economic situation in which many other people earn poor wages. And those poor wages, in turn, mean that people can’t afford to buy health care, or indeed, enjoy those benefits of society that their work makes possible in the first place. In the long run, it’s our fault, even if indirectly, that other people can’t buy health care, because this situation arises as a consequence of our own choices, our own actions. And this is only one example in which individual actions cause collective action problems. Other examples are pollution, overpopulation, natural resource depletion, systematic racism, traffic jams…. The list goes on and on.

So here’s a question with which I would challenge those who don’t like to feel responsible, or to hold other people responsible, for such collective action problems, including so many American conservatives: why is it that you should be personally responsible for your economic well-being by choosing to do your part and work hard, but you should not be held personally responsible for the consequences of your choices in the marketplace for others who work hard? As an example we’ve already considered shows, we can follow the chain of consequences readily from our own market choices to their collective impact on the lives of others. People, out of self-interest, choose to pay less for food if they can, usually without questioning why it’s cheap. But for food to be cheap, it’s generally because wages are low (in combination with improved technology, which can increase efficiency; but sometimes, new technology means workers have to compete with it, again lowering wages). Individual choices to buy cheaper produce cause wages to be low: they benefit from the reduced circumstances of others. And healthcare, even in more efficient, less corrupt systems than ours, tends to be expensive, because of the high cost of the education of doctors and of research and development, and because it’s labor intensive (each doctor’s visit often requires a significant input of time to be effective), so low wage earners usually cannot afford adequate health care. Therefore, our personal decision to buy cheap produce causes many others not to be able to afford health care. Why, then, would we not be held to any level of responsibility for the consequences of our actions when it comes to access to health care?

We already accept the idea of personal responsibility for individual contributions to collective action problems in many other areas of life. In order to enjoy the legal right to drive, for example, we’re required to purchase driver’s insurance. That’s because our own decision to drive can have debilitating and fatal consequences for others, even if they are entirely accidental. Almost no-one intends to maim or kill another when getting behind the wheel, yet we accept that when we choose to drive, we are still personally responsible, in one way or another, for what happens as a consequence. We also accept that since we desire and enjoy such benefits and freedoms as the right to go our way unmolested by other people, to vote, to travel on public roads and bridges, and so on and so forth, we are responsible for contributing to those institutions that solve collective action problems, and contribute to the maintenance of the military, the police, infrastructure, legal system, and so forth, thorough our tax contributions and otherwise.

As intelligent social creatures, human beings have conceived and developed societies organized according to and supported by robust conceptions of personal responsibility, demonstrated by such human products as morality and law. Instead of operating primarily from a ‘me and mine’ outlook, the most successful and long-lasting, and I argue, the happiest persons and societies operate from a predominantly ‘us and ours’ mentality, with the ‘me and mine’ enjoying even greater benefits than pure self-interest could produce. (The earliest Christian communities adopted this influential philosophy and practice, with great success and to their great credit; consider the tale of Ananias, who, out of greed, did not contribute the same percentage as others towards the welfare of all. Contrast this with the later incarnations of the Church, which retained the rhetoric and abandoned the practice of equal personal responsibility for, and equals enjoyment of, the public good.)

In sum, a robust view of personal responsibility leads us to act more responsibly in our day to day actions and, in turn, to generally behave in such a way that has the best outcomes. We come to act as Immanuel Kant’s categorical imperative would have us do, to ‘Act only according to that maxim whereby you can, at the same time, will that it should become a universal law’. When each of us realizes that our day to day actions often have not only immediate and personal but wide-reaching consequences, our behavior changes. And when we wish that the consequences of our actions are beneficial or at the least not harmful, our behavior changes for the better, our imagination expands, and the world becomes a richer and safer place for us all.

Stop Pretending ‘The Law’ is Not Racist!

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Victims of convict leasing, from an earlier era of selective law enforcement

Everybody’s talking these days about the killing of Michael Brown in Ferguson, Missouri. And the protests following the shooting. And the host of other recent killings and use of force against black people by police officers.

I’ve also heard many pundits, commentators, and counter-protesters (in support of the officer who shot Brown) say that all this controversy is pointless, unfounded, just plain wrong. The laws are not racist, they say. Neither are officers expressly told (most of the time) to target minorities. They also say that they themselves never have trouble with police officers as long as they cooperate and just do what the officer says, as they’re supposed to, which just goes to show that as long as you behave yourself, you have nothing to worry about.

As a generally ‘well-behaved’ (mostly so, but then again, I rarely got caught when I wasn’t) white woman who has never felt unfairly targeted by law enforcement, I say to this second group of people, if you are an adult yet you think the law is ‘color-blind’, either you systematically let your biases filter out too much of the available information out there, you live under a rock, or you’re lying. Or something like one of these.

Because I had never been unfairly targeted by police, I was mostly, blissfully unaware, until my very early adulthood, that such things were still going on. I thought this sort of behavior on the part of the police largely a relic of the past, of the Jim Crow and Civil Rights era that I became so fascinated by in my schoolgirl years (and remain so to this day). We all love hero stories, and I thought of Rosa Parks and Martin Luther King (and my favorite fictional hero, Atticus Finch) as among the greatest, ordinary people who stood up for the oppressed and the outcast, who triumphed against the tyrannical and the cruel, and most of all, the unjust: I always have been rather obsessed with issues of justice. I thought police had mostly changed their racist ways like most of us, and now usually did the right thing, especially because, of course, they make it their mission to stop those who don’t do the right thing.

My rather childish ignorance was first revealed to me when I witnessed my then boyfriend, a young Mexican man, pulled over by a police officer for no good reason at all.  Usually, if we were driving, we were driving together unmolested, but that day, I was following his car in mine because we had met up after work. A police car passed me after a stoplight and to my surprise, I found that his flashing lights and siren were intended for my boyfriend! We were not speeding, and it was daytime so car lights were not an issue… I could not think of a reason he would be pulled over. After the questioning ended and the cop had left, I asked my boyfriend what had happened. He admitted, embarrassed, that this happened to him all the time, it was just a regular part of his life. A young Mexican man in an old car must, necessarily, be up to no good, or if he wasn’t now, he must recently have been or was about to.

I was angry and shocked at the injustice of it all, and tried to imagine what it would feel like, and the effect it would have on my character, if I were regularly treated as a criminal, or a potential criminal, based entirely on what I look like, from the time I was young. I don’t think I could imagine, fully, what it would truly be like, but it seems a reasonable expectation that many people’s moral characters could be damaged from an early age, if many of the adults around them, especially those who set themselves up as authorities and moral leaders, act so unjustly. These young people are taught that ‘the law’ is used to protect others but punish them, that the police are not there to protect them, and that justice has a different meaning depending on what color you are, or worse, that it doesn’t really exist.

As I’ve gone through life, as I’ve had friends, co-workers, and fellow students of many races and ethnicities, as I have followed the news, and have done some study and research on matters of criminal justice, I’ve encountered countless instances of minorities unfairly and systematically targeted by law enforcement. I have a dear friend who used to travel though Colorado and Utah to go visit her family, who had to allow time for the inevitable police stop or two on each trip, no matter how carefully she drove. Yes, as you may have guessed, my friend is black. (My brother regularly travels a route in more or less the same geographical region, and has never had that problem).

These related issues, of racial profiling and selective law enforcement, has bothered me so long that when I had the opportunity a few years ago to take a criminal justice class, I jumped at the chance. I chose this subject  as the topic of my final paper, and my research uncovered a wealth of information on the subject. Study after study, public record after public record, revealed that minorities are pulled over, stopped and frisked, or arrested even for incredibly minor infractions that I had no idea that were ever enforced, at disproportionately high rates, commonly double or more than the rate of white people, in jurisdiction after jurisdiction, all over the United States. And even when minorities and whites are charged with the same or similar crimes, they get very different treatment: whites are shown leniency far, far more often than anyone else: they are, on average, sentenced to fewer years in prison or are routed to treatment instead; they are sent to state courts instead of federal courts. Minorities generally get the book thrown at them.

And in case you’re one of those who think that the law is color-blind, no, the objection you might make, that minorities commit more of the crimes so of course they’re targeted and go to jail more, is not valid. This vast accumulation of evidence that minorities are disproportionately targeted holds true for all kinds of crimes, the ones that whites commit at the same or higher rates, as well as ones that different minority groups commit at higher rates. Especially drug crimes: while whites commit most drug crimes at the same or higher rates than other groups, they are arrested far less, and if caught, don’t tend to be punished nearly as often.

Much of this information, many of these stories, have been featured in news story after news story over the years. This includes the seemingly ever-increasing recent stories in which black people are shot and/or killed for trying to get into their own house they locked themselves out of, or for being mentally ill and having a breakdown in public, or for selling single cigarettes on a street corner, or for having a fight with a bullying wannabe self-appointed ‘lawman’ on his way home. Have these pundits and ‘color-blind’ pollyannas been sticking their fingers in their ears and shouting ‘nah-nah-nah-nah-nah, it’s not happening!’ as black and brown people are being shot, beaten, and arrested, by the score, for the kinds of mistakes and indiscretions that most of us have engaged in at one time or another without permanent repercussion, while minorities are being caged at a rate that puts those old Jim Crow regions to shame?

I would say to these people, especially parents: imagine what would have happened to you, and what the life chances would be for your kids, if you and they were stopped and frisked, pulled over and your car searched, constantly throughout your life. If all those times you were a little naughty and had a drink while underage or too soon before you drove, or you or your friends had a little weed or coke in your car or pocket, or had sassed a cop when you were immature and raging with hormones and gleeful with youthful irresponsibility, or committed a petty theft…. Imagine that instead of getting away with it at the time, as most of us have, you would almost surely be caught and suffer permanent consequences (jail time, a criminal record, or worse) because everywhere you go, you are likely to be followed around by someone who assumes you probably belong in jail because of what you look like, has the power to throw you in there, and in extreme cases, even beat, choke, or shoot you, with impunity.

I and most of the white people that I, and I expect that you, know would all have been arrested or jailed at least once if the laws were enforced equally for everyone. But those of us lucky enough to go through life untargeted probably have forgotten most of the stupid things we’ve done because we haven’t had to suffer permanent harm for it; instead, we grew up, and had the chance to live a decent life, get an education and good housing, and get a decent job because we don’t have a criminal record. I fear for my nephew when I remember that he has to grow up as a young black man in this society, that he has far less wiggle room to make the mistakes that most of us make as we grow up and struggle through life. I got away, and still do, with my indiscretions and mistakes, easily, because I’m not targeted. That is not likely to be the case for my nephew.

Give that a ponder, put yourself in other’s shoes. If you are honest, I think you’ll admit that we still live in a racist, unjust, and all to much un-free society, especially for those of us with darker skin. Stop pretending now, if you are doing so, that racism is over just because the letter of the law is no longer racist. As long as law enforcement is racist, the reforms of the Civil Rights era have very limited practical meaning, and the struggles of our great social reformers continue to be, largely, in vain.