Should we retain the category of “hate crimes”?

January 19, 2021 • 12:00 pm

I’ve recently read several books on free speech, all of which emphasize a fairly strict construal of the First Amendment. That means that expressions that offend people, including “hate speech”, bigotry, and so on, while they may be offensive, are legal.

But while the verbal expression of bigotry is legal, the physical expression is not—not when it’s the motivation for a hate crime. And that got me thinking about the justifications for giving extra-harsh punishments for hate crimes. When I mention “hate crime”, I’m not referring to crimes that wouldn’t be crimes at all without the bigotry, so I’m not including Holocaust denialism or blasphemy (neither crimes in the U.S. but both in many other lands). I’m using the definition of hate crime given on the FBI website:

A hate crime is a traditional offense like murder, arson, or vandalism with an added element of bias. For the purposes of collecting statistics, the FBI has defined a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.” Hate itself is not a crime—and the FBI is mindful of protecting freedom of speech and other civil liberties.

And here’s the FBI’s explanation of what’s considered a hate crime:

Hate crimes are the highest priority of the FBI’s civil rights program because of the devastating impact they have on families and communities. The Bureau investigates hundreds of these cases every year, and we work to detect and prevent incidents through law enforcement training, public outreach, and partnerships with community groups.

Traditionally, FBI investigations of hate crimes were limited to crimes in which the perpetrators acted based on a bias against the victim’s race, color, religion, or national origin. In addition, investigations were restricted to those wherein the victim was engaged in a federally protected activity. With the passage of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, the Bureau became authorized to also investigate crimes committed against those based on biases of actual or perceived sexual orientation, gender identity, disability, or gender.

We see here that the high priority for investigating hate crimes rests not on the motivation alone, that is, it’s not an explicit attempt to eliminate feelings and expressions of bigotry, which are protected by the First Amendment, but because of the higher impact such crimes are said to have on communities. They are seen as more serious crimes.

The American Psychological Association asserts that hate crimes have a disproportionately large effect on the victims themselves:

People victimized by violent hate crimes are more likely to experience more psychological distress than victims of other violent crimes. Specifically, victims of crimes that are bias-motivated are more likely to experience post-traumatic stress, safety concerns, depression, anxiety and anger than victims of crimes that are not motivated by bias.

Hate crimes send messages to members of the victim’s group that they are unwelcome and unsafe in the community, victimizing the entire group and decreasing feelings of safety and security. Furthermore, witnessing discrimination against one’s own group can lead to psychological distress and lower self-esteem.

But when thinking about hate crimes just in terms of the three valid rationales that I, as a determinist, see for punishing someone (deterrence, sequestering someone from society, and reformation), I see no obvious justification for punishing someone differently whether they, say, kill someone because he’s a Jew or kill someone because they don’t like him for non-religious reasons. Does a higher punishment for the same crime, but one motivated in part by bias, deter an offender? I doubt it, but I’m not sure we have good data on that.

In terms of sequestering someone from society, a higher punishment for hate crimes assumes that those who commit the are more dangerous than those who commit the same crime but with a non-“hate” motivation, and thus more likely to do damage if paroled at the same time. Again, I’m not aware of data on this, which this bears on the third rationale: reformation.

Is it easier to reform someone who commits a murder based on bigotry than someone who kills, say, simply for the thrill of killing? Who knows? Perhaps through treatment you can wean someone from bigotry more easily than a sociopath who simply hates people in general. Again, I’m sure we lack data.

The other issue is that for some “hate crimes” you must judge the motivations of the criminal, and ascertain that they play a significant role in the crime. Sometimes that might be easy, as in the case of a person who hates Muslims burning down a mosque (especially if you have a documented history of bias). In others that’s no so easy, but clearly we need to use a “beyond reasonable doubt” criterion for ascertaining motivation.

That might not always be easy. For example, all 20 of Ted Bundy’s victims were women. He sometimes had sex with the corpses. Other serial murderers rape women before they kill them. Is this because they are biased against women, or because part of their motivation is sex, or because they find it easier to overcome women, who are usually less powerful than men? In other words, did Bundy commit “hate crimes”? Well, in his case it hardly matters, for he was electrocuted. But for other crimes it may be hard to suss out a motivation, and we all know of criminals whose motivations are unclear.

It becomes even more difficult when bias is part of a pathology—as Bundy’s may have been. Mental illness, which can manifest itself as bigotry, is a mitigating factor for punishment, mandating psychiatric treatment instead of straight incarceration. Do you use the concept of “hate crimes” with criminals who have mental problems?

When thinking about whether an offender should be punished more strongly because he or she is motivated by bigotry, I don’t see a clear justification based on rehabilitation, sequestration, or deterrence. But that’s irrelevant to how many people think about hate crimes. In effect, they are saying that hate crimes are more serious crimes than the identical offense committed without obvious bigotry. In other words, burning a synagogue because you hate Jews is seen as a different crime from doing the same amount of damage by burning a building because you don’t like landlords. Behind the “hate crime” rationale, then, is the psychological damage that is said to be attendant on both victims and society.

I’m prepared to believe that this is the case, and understand that there are data supporting the excess damage, at least in terms of victims. But of course there’s more psychological damage caused to a person and a community when you insult their race, religion, or gender than when you simply call them a jerk. Offense is the price we pay for free speech. In light of that, is “excess fear” or “trauma” in victims a reason to increase the punishment for a crime, or create a new class of crime?

On balance, I think it is, but my mind isn’t fully made up on this issue. The same “harm” that attends legal free speech (and let’s face it—some people’s feelings are hurt by free speech) is also the same kind of harm that attends individuals and communities victimized by hate crimes. If someone calls you a “dirty Jew” rather than a “jerk”, you may be much more offended, even though no crime is committed. But if someone punches you because you’re a Jew as opposed to punching you because you’re a Republican, does the former crime, even if it causes more offense and trauma, warrant more punishment?

Weigh in below: do you think the concept of “hate crimes”, with the attendant higher punishment attached to them, a good one?

Who will get pardons from Trump?

January 18, 2021 • 6:14 pm

In only two days Trump will be gone, to a massive sigh of relief across America as well as to the groans of Deplorables.

There are reports that Trump may issue up to 100 pardons tomorrow, though the recipients are said not to include himself. But the list will surely include many who don’t deserve this leniency.

Whom do you think he’ll pardon?  Although this isn’t a contest, I’ll give a prize of my choosing to the first person all of whose guesses are all correct, so long as they are four or more. Any wrong guesses disqualify you, and if you guess fewer than four but they’re all correct, you also don’t get a prize. There’s only one way to win, and if nobody wins, no prize. But guess away if you don’t care about prizes, and of course you can give fewer or more than four names.

I’m not qualified to guess, but I know that many readers are. Who do you think will be the recipient of Trump’s largesse?

Remember, Trump can pardon people convicted of or who will be accused of federal crimes, not state ones.

Andrew Sullivan immerses himself in hot water by saying “only some black lives matter”

December 6, 2020 • 1:30 pm

The mantra “All Lives Matter” is rightfully criticized as an effort to marginalize black people, for it’s an attempt to practice “whataboutery” on the slogan “Black Lives Matter”, words meant to emphasize that black people count just as much as white ones. It’s an anti-racist slogan, and a good one, even though the movement has been coopted for some goals with which I disagree.

But title of Andrew Sullivan’s new Weekly Dish piece (click below if you have a subscription) might sound just as offensive to people of color, even though it’s not meant to do down racial justice. Rather, Sullivan is pointing out that the number of black people killed by other black people dwarfs the number of unarmed African-Americans killed by cops (and not all of those cops are white). And yet, he argues, if black lives do matter, why is this problem given so much less attention?

Now you may say that the statement that “Only some black lives seem to matter” (Andrew means “the ones killed by cops”) also tries to diminish the problem of police racism, but that’s not what Sullivan is about here, for he notes that “there remains a real problem with police interaction with African-Americans.” As he says,

. . . . killing by a representative of the state is a much, much graver offense than that by a fellow civilian. We should take it much more seriously than regular crime. That’s why I favor every measure to increase accountability from the police — tackling their unions, de-militarizing their equipment, ending qualified immunity, putting more resources into de-escalation training, and so on.

But then he goes on to quote the data, and after that highlights the folly, in view of that data, of calling for reducing policing, whether it be by eliminating cops or “defunding” them to the point that crime prevention and protection is seriously diminished.  I’ll give a few quotes from the article, as the data should be seen by anyone who deals with these issues:

Nationally the toll on black lives from violence is shockingly disproportionate. The data from 2019 show 7,484 homicides of African-Americans, compared with 5,787 homicides of whites. That we have become used to this discrepancy doesn’t make it any less awful: African-Americans form only 13 percent of the population and yet comprise 54 percent of homicide victims. If you look at black men alone, it’s even worse. They comprise less than 7 percent of the population and a whopping 46 percent of the murder victims. Black men, in other words, are over six times more likely to be killed than the general population — and young black men face even worse odds.

Increasingly black children and minors are victims as well. . .

. . . It is not therefore an exaggeration to say that African-Americans are being gunned down in America vastly out of proportion to their numbers in the population as a whole. We’ve heard this truth before, of course, but usually when talking of police shootings. And it’s true that police disproportionately kill black men — 26 percent of fatal police shootings are of black men, compared with their 7 percent of the population as a whole. This is a vital, troubling issue that deserves attention. But the disproportion for African-Americans killed by civilian shootings is almost twice as skewed as that for those killed by cops.

And the scale of it is on an entirely different level. In 2019, 243 black men (including only 13 unarmed black men) were shot dead by cops. In comparison, a whopping 7,484 were killed by civilians. If you believe that black lives matter, where is the outrage about that 7,484? If Travis Nagdy, a young man of color, had been killed by a cop, you would know his name by now. Because he was killed by a civilian, you probably don’t.

I live in a city where these statistics are often in our face on the evening news. Time after time we hear about black teenagers or kids shot, often accidentally, and the toll can be brutal. So far this year in Chicago, 715 people have been victims of homicide—227 more than in all of 2019. Most of these killings are on the South and West sides, areas where black and Hispanic people live. In 2016, a year for which I could find data, 75% of the 762 murder victims in Chicago were black, and 71% of murderers were black; yet in the city as a whole, 30.1% of the residents are black.  It is a valid question—one apart from that of police brutality—why blacks disproportionately kill each other so often. And if you do think that black lives matter, as most good people do, then surely this is a problem that must be addressed. (Gun control, in my view, is one of several solutions.)

There’s no doubt in my mind, though, that one of the solutions is NOT less policing.  Those who call for that are, in my view, lunatics: so woke that nobody’s life means much to them. Yes, by all means reform the police, involve social workers when police alone won’t do, and get ride of hyper-militarization. But in view of statistics like those above, cutting way back on policing is not the answer. In fact, American blacks are in general against reducing policing, as Sullivan notes (and the bolded bit, which is my emphasis, will get him into that hot water):

Yes, I know many now insist that abolishing or defunding the police is not their real agenda. And for some, that may be true. But the record is quite clear: abolition of the police and of incarceration was exactly what many BLM activists and critical race theorists demanded, and still demand. It’s what the Minneapolis City Council voted for last June. It’s what Ilhan Omar explicitly demanded. It’s what the autonomous zone in Seattle enforced. It’s what BLM’s DC branch explicitly endorsed. It’s what the newly elected congresswoman Cori Bush supports. It’s what was painted on the streets of DC in letters large enough they could be read from an airplane. Abolition, in fact, is integral to critical race theory, and its view of the police as mere extensions of “white supremacy”, even when police departments are often very racially diverse or majority black, and run by black police chiefs.

It is no accident that the killing of George Floyd prompted a massive outpouring of protest while no such national movement emerged in response to, say, the killing of a one-year-old child in Brooklyn. Black lives matter, it seems. But some black lives matter more than others — depending entirely on who took them.

This left-progressive view is not one shared by most African-Americans. Or, for that matter, by leading and successful black pols like Barack Obama and James Clyburn and the late John Lewis. Polling in 2018 showed that only a small minority — 18 percent in one survey — opposed hiring more police officers, while 60 percent want more cops and more funding. A Gallup poll this summer found that “61 percent of Black Americans said they’d like police to spend the same amount of time in their community, while 20 percent answered they’d like to see more police, totaling 81 percent. Just 19 percent of those polled said they wanted police to spend less time in their area.” So mostly white leftists last summer campaigned for something a hefty majority of actual African-Americans oppose. And, of course, it is the African-American community that endures the murderous consequences.

The notion that the cops are universally reviled in the African-American population is just as false. In a Vox/Civis analysis poll, 58 percent of black Americans said they have a favorable opinion of their local police. In the Gallup survey, 61 percent are “very confident” or “somewhat confident” about “receiving positive treatment” by police.

It seems to me, and here Sullivan agrees, that the “defund the cops” movement is a drive led mostly by well-off white people that is against the wishes of most black people.

Reformation of police departments is much to be desired, and will go a long way towards easing the feelings of many blacks that the cops put targets on their backs. But even if we bring down the number of unarmed blacks shot by cops to zero, the huge problem of homicide in the black community will remain. Who in their right mind would say that the solution is to get rid of the cops?

Trump administration rushes to kill federal prisoners before Inauguration Day, now allowing firing squads, gas, and electrocution

December 1, 2020 • 9:30 am

As CNN reports, the federal government has already executed eight inmates in federal prisons in 2020, a big number. But it gets worse, as now there are five more prisoners scheduled to be executed by the feds before Inauguration Day. This is all since Attorney General William Barr order federal killings to be resumed in July 2019—following a 17-year moratorium on killing federal prisoners. As I’ve said before, Trump has the authority to stay the executions, and that would allow the Biden administration, with Joe opposed to capital punishment, to determine the fate of the prisoners.

That would be the charitable thing to do, but, as the article reports, “”What is clear is that this administration wants these prisoners dead before Joe Biden takes office,” Executive Director of the Death Penalty Information Center Robert Dunham told CNN on Monday.”  To Trump, I suspect, these men—and one woman—are simply pawns that he can sweep off the board to curry favor with his acolytes. But they are human lives. 

If you’re opposed to the death penalty as barbaric, non-deterrent (why not televise executions if you want a deterrent?), useful only to satisfy feelings of retribution, and, above all, a penalty that can’t be undone if the convicted person is exonerated (there have been many), then this is bad enough. But it gets worse. As reader Ken informed me, the U.S. Department of Justice has filed a a proposed rule change, effective on Christmas Eve, that would add three other forms of execution to the presently mandated lethal injection: suffocation by nitrogen gas (never before used), electrocution, and firing squads Some of these are already legal for state executions.

Why the change? The Federal Register link above says this (my emphasis):

Execution by lethal injection is authorized in all States that have capital punishment. . . . However, some States also authorize execution by other means in certain circumstances. . . . Some States also provide by law that a prisoner may choose the manner of execution from among several options, in at least some circumstances. . . States may authorize execution by other means in the future, and it is possible that a State in the future will provide that a manner other than lethal injection is the only authorized means of execution. Section 3596(a) would then require execution in that manner for a Federal offender sentenced in the State.

The current regulations also provide that a Federal execution shall occur “[a]t a federal penal or correctional institution designated by the Director of the Federal Bureau of Prisons.”. . . Section 3597(a), however, provides that State and local facilities and personnel may be used in carrying out Federal executions. As discussed above, future situations may arise in which it is necessary to carry out an execution by some means other than lethal injection. However, the Federal Bureau of Prisons (“BOP”) facility for carrying out executions, located at the Terre Haute correctional complex in Indiana, is equipped for carrying out executions only by lethal injection. If cases arise in which the Department is required to execute a Federal inmate according to the law of a State that uses a method other than lethal injection, the most expedient means of carrying out the execution may be to arrange for State assistance.

Since most states—and the federal government—have hit on lethal injection as (presumably) the most humane way of killing prisoners, why would “a situation arise in which it is necessary to carry out an execution by some other means”? Well, American pharmaceutical companies now refuse to provide the requisite drugs to prisons, so they have to obtain the unconsciousness-inducing drug from suppliers in other countries, or by other means that they don’t specify including having pharmacists mix up the requisite barbiturates themselves (pentobarbital is used most often, having replaced sodium thiopental). The result is that quality control isn’t guaranteed, and some lethal injections have gone badly wrong.

Further, the rules have been that prescriptions for fatal drugs must be issued and signed by a physician prescribing for the condemned person. This is against the American Medical Association’s ethics rules, and this stipulation now appears to have been overturned by the Supreme Court.

There are other questions about how humane executions are, with reports that the patients are tortured, with extreme pain that isn’t evident to observers. If you simply want to cause death, isn’t dying and the thought of it punishment enough without making it painful and horrible? (Disgustingly, some advocates of capital punishment are gleeful at the thought of such torture.)

If these five are executed before Biden takes office, that will still leave 49 people on death row. The fair thing to do is to halt all federal executions pending the new administration. But who ever said that Trump was fair?

As for the other methods of execution, well, electrocution is surely grossly inhumane.  Execution with bullets is quick but surely painful, and execution with nitrogen gas has never been tried before; there are doubts about its efficacy and painlessness.  But none of this matters to me, as none of the methods should be used.

Here’s the gurney that the state of Arkansas uses for its executions by lethal injection:

Why “defunding the police” won’t work

November 19, 2020 • 10:45 am

Since the summer, there have been increasing efforts to “defund the police” (DTP), both in cities like Seattle and Minneapolis, and on many college campuses. This mantra can mean different things: reducing the money given to police departments, paring the size of the force, diverting some police funds to social workers who could do some police-related tasks, or getting rid of police completely, replacing them with either a brigade of mental-health specialists or “citizen patrols” (i.e., vigilantes and posses). The latter has been suggested in several places, including for the campus police at my school. (The Provost has already declared that this is a no-go.)

The DTP movement came from the poor treatment, including possible murder, of some black suspects like George Floyd by white policemen. It’s clear that black people are, overall, treated more poorly by police than are whites (more per capita traffic stops, etc), but there are no convincing data that the rate of murder of black suspects by cops is higher than that of whites when one controls for encounter rates.

But I have no objection to examining police departments for the behavior of their officers and, if there’s more than one or two bad apples, to mandate some kind of reeducation or remediation program.  And I favor including social workers or mental-health professionals being involved in policing, but they should always be riding along with officers—as in the case where these programs are already in place.

Defunding is another matter. Clearly, those who favor elimination of entire police departments, whether in cities or on campuses like the University of Chicago, are uninformed chowderheads. Without cops, crime would skyrocket. One bit of evidence, often cited by Steve Pinker, is the Montreal Police Strike of 1969, which is also known as the Murray-Hill Riot. Because of poor working conditions, the cops went on strike for just one day. The results were chaos. Wikipedia quotes Steve from The Blank Slate:

“As a young teenager in proudly peaceable Canada during the romantic 1960s, I was a true believer in Bakunin’s anarchism. I laughed off my parents’ argument that if the government ever laid down its arms all hell would break loose. Our competing predictions were put to the test at 8:00 a.m. on October 7, 1969, when the Montreal police went on strike. By 11:20 am, the first bank was robbed. By noon, most of the downtown stores were closed because of looting. Within a few more hours, taxi drivers burned down the garage of a limousine service that competed with them for airport customers, a rooftop sniper killed a provincial police officer, rioters broke into several hotels and restaurants, and a doctor slew a burglar in his suburban home. By the end of the day, six banks had been robbed, a hundred shops had been looted, twelve fires had been set, forty carloads of storefront glass had been broken, and three million dollars in property damage had been inflicted, before city authorities had to call in the army and, of course, the Mounties to restore order. This decisive empirical test left my politics in tatters (and offered a foretaste of life as a scientist).”

It’s the recurrent calls from “progressive” leftists to “defund the police” (and its ancillary mantra ACAB: “all cops are bastards”) that, I think, turned many voters against Democrats in general, turning the vaunted “blue wave” into a “blue trickle.” No American wants to feel unsafe, or have nobody to call if there’s a crime or home invasion. You may not want Trump around, but you do want the cops.

After the death of George Floyd in Minneapolis, according to the article below in the Washington Post, the city council voted to “defund and dismantle the department and replace it with a new agency focused on a mix of public safety and violence prevention—a move that could go before voters in 2021.”

In the meantime, we have a taste of de-policing in Minneapolis already, as the police are bleeding officers (they’ve lost 100 because of the situation there), with the expected surge in crime.

Click on the screenshot to read:

Some quotes (George Spann is a community activist):

The police are not as much a presence as they used to be, Spann said, noting that sometimes when neighbors call 911, officers are delayed in responding or don’t come at all.

“If you want to talk about pandemics, we’re dealing with a pandemic of violence,” Spann said on a recent afternoon, just as word came of two more nearby shootings. “We’re under siege. You wake up and go to bed in fear because you don’t know what’s going to happen next. . . . And our city has failed to protect us.”

. . .Homicides in Minneapolis are up 50 percent, with nearly 75 people killed across the city so far this year. More than 500 people have been shot, the highest number in more than a decade and twice as many as in 2019. And there have been more than 4,600 violent crimes — including hundreds of carjackings and robberies — a five-year high.

Most of the violence has happened since Floyd’s killing on Memorial Day, and some experts attribute it in part to the lingering anger over the slaying and the effects of the coronavirus, including job losses and the closure of community centers and other public spaces.

. . . Police Chief Medaria Arradondo said over 100 officers have left the force — more than double the number in a typical year — including retirements and officers who have filed disability claims, some citing symptoms of post-traumatic stress disorder linked to the protests over Floyd’s killing.

Well, you can attribute it to whatever, but the same violence happened in Montreal, and there was no pandemic or police murder there. It’s simply common sense to surmise that if the police force is cut way down—to the point that police don’t even respond to 911 calls—then crime will go up.

More police are planning on leaving, and last week the city council allocated half a million dollars for “temporary hiring of police officers.”  But the situation may get worse. The article quotes a personal-injury attorney who is representing 175 officers who have left the force or are firing disability claims:

Meuser said his firm recently met with an additional 100 officers who are considering leaving the force, some citing mental exhaustion and fears of further unrest, including protests linked to the trial of the four former police officers charged in Floyd’s killing, which is scheduled for March. The officers have expressed a fear that the city will suffer “Portland-style riots during the entire trial,” he said, referring to extended unrest in the Oregon city.

Low morale is rampant, Meuser said, and he expects the exodus could extend to hundreds more officers by summer, perhaps as many as a third of the department’s positions. “You have a lot of officers come in and say, ‘Why am I doing this?’ They sit there with their spouses and say, ‘Is this worth it?’ ”

The reasonable solution was voiced by a black resident of Minneapolis, Spann:

Among some Black residents, she said, there have been conflicted feelings about the push to abolish the police. Many have been harassed by officers, but they also live in a neighborhood that on some nights feels like a war zone.

“Why can’t I have police reform? Why can’t I have law and order? Why do I have to pick and choose? I should be able to have both,” Spann said.

Indeed. Another resident described the surge in Minneapolis crime as “a sociology experiment that obviously doesn’t work.” So now we have TWO inadvertent experiments in reducing policing: Montreal an Minneapolis. Both suggest that police inactivity or attrition will lead to more crime.

The solution is training police, not firing them. (I’d of course like more stringent gun laws for citizens as well.) In view of this, and the common sense view that less policing means more crime, or more unsolved crime, I’m led to respond to “defund the cops” calls with Hitchens’s razor:

“What can be asserted without evidence can also be dismissed without evidence.”

Or maybe the cop-defunders care more about getting rid of the cops than about boosting the crime rate.

 

h/t: Enrico

Trump presides over a spate of federal executions, including three in his lame-duck period

November 12, 2020 • 12:45 pm

Executions are prescribed by the laws of some states (25 out of 50, to be exact), but also by the federal government for federal crimes. The federal government can execute you if you commit more than 60 crimes, including treason, terrorism, espionage, using a weapon of mass destruction, first-degree murder, murder of government officials, some drug offenses, and so on.

Federal executions are much rarer than state ones: since 1977—43 years ago—there have been 37 federal versus 1453 state executions—a ratio of almost 40 to 1.

I’m opposed to state-sponsored killings for a number of reasons, one of the most important being that if someone is exonerated, you can’t make amends if he’s dead. In fact, I see not a single justification for state or federal governments killing someone, though I do see a need to put those carrying life sentences under more humane conditions, so although they’re deprived of their liberty and certain privileges, they can still live a reasonable life.

Of the 37 federal executions occurring since 1988 (about 1.2 per year), when these killings resumed after a 16-year court-ordered halt, seven have occurred after Donald Trump ordered a resumption of these killings—again on hiatus—in July of last year.

In other words, Trump has allowed executions to go forward since then at a rate of 5.6 per year—a roughly fourfold increase over the earlier rate. As a new story from The Independent notes (click on screenshot below), three more prisoners are scheduled to die between now and Christmas, making a total of ten federal executions on President-Eject Trump’s watch.


A stay of execution for federal crimes can be ordered by either the President or the Supreme Court, so it’s well within Trump’s power to stop the three killings scheduled before the end of 2020. But, determined to do as many odious things as possible before he does the exiting perp walk through the Rose Garden, he’s letting them go forward. Here’s who’s going to be killed, and when:

On 8 December the government plans to execute Lisa Montgomery, who will be the first woman federally executed since 1953.

She is a victim of sex trafficking who suffers from psychosis and complex Post-traumatic Stress Disorder, according to anti-death penalty advocates.

On 10 December they plan to put to death Brandon Bernard for the murder of a Texas couple in 1999, when he was 18.

The last time the US government executed a person as young as eighteen at the time of the crime was in 1952.

The third person to be executed during the “lame duck” period is likely to be Orlando Hall, a Black man sentenced to death by an all-white jury in 1994 for kidnapping, raping, and burying a 16-year-old girl alive in retaliation for a bad drug deal.

He never denied killing her, but his lawyers insist racial bias and remorse were not taken into account.

Now nobody’s arguing that these people shouldn’t be in the pen for life (though Montgomery, who may be mentally ill, might be confined in a hospital), but I am arguing that they shouldn’t be killed. And even if you believe in federal executions, the people have just chosen to replace Trump with Biden. Shouldn’t, then, Trump stay the executions, converting them to life without parole, in case Biden might pardon them? What’s to be lost by that? Were I Trump, I’d call Biden (this is not going to happen) and ask him what he would do. If Biden said, as is likely, “I’d stay their executions, or at least would look at them carefully” then Trump should stay them as well. What is to be lost by such an action?

Biden has, in the past, favored the death penalty, but his views appear to have softened in recent years. Other notable Democrats, including Kamala Harris, also oppose the death penalty, although, as a prosecutor, Harris  took some questionable actions given this view.

As the Independent reports, polls show that 56% of American favor the death penalty, but that’s dropped from 80% in 1994. Further, a Gallup poll from last year showed that 60% of Americans agree that life in prison without parole is a better punishment for murder than is the death penalty. And all three prisoners above are in jail for murder.

Like all civilized countries, America is ascending the moral arc towards ending state-sponsored executions. We can’t of course expect a narcissistic, authoritarian President to nudge America up this arc, particularly when his Republican base is so hungry for blood (nearly twice as many Republicans as Democrats favor the death penalty). But this truly is a matter of life and death, and it would be nice if Trump did the civilized thing and asked his successor.

h/t: dawn

 

The humane prisons of Finland

November 11, 2020 • 2:00 pm

I’ve maintained that becoming a determinist leads many people to promote criminal-justice and prison reform. This comes from realizing that people have no choice in their actions—including committing crimes—and so criminals should be treated as if they were broken machines to be fixed (if possible) rather than as “people who made the wrong choice.” Readers have responded that promoting prison reform can also come from non-deterministic world views, and that’s true. But I believe that “hard” determinism, not sullied by the semantic taints of compatibilism, leads more automatically and naturally to criminal justice reform.

Well, you might disagree, but that’s not important for today’s post. I think most of us will agree that American prisons are cruel, inhumane, and do a lousy job of rehabilitating prisoners. That’s largely, I suspect,  because American prisons are directed more toward punishment than rehabilitation, and what you learn in prison is how to commit more crimes.

But here’s a country where prisoners are treated much more humanely: Finland. And here’s the story of one Finnish murderer who’s serving a long sentence but appears to be on the path of reformation. As the video claims, the recidivism rate in Finland (re-imprisonment within two years after release) is half of what it is in America. If you see the environment experienced by Finnish prisoners, and the efforts made to treat them humanely and reform them, that makes sense.

If someone can really be turned into a good and useful citizen, very unlikely to do any more crime, why should they be kept in jail under horrible conditions? You may say—and some will—that “the U.S. is not Finland.” But why can’t it be in the ways shown below?

The Breonna Taylor mystery

September 24, 2020 • 9:00 am

UPDATE: My Chicago colleague Brian Leiter has a short post on his website about the indictments, which he thinks constitute a fair resolution. He blames the death of Taylor not on the involved cops, but on the system, which includes guns, a history of racism that leads to poverty and crime, and no-knock warrants. A brief excerpt:

The media, unfortunately, have linked these cases of police killings, even though they have almost nothing in common.  And now, unsurprisingly, a Louisville grand jury has failed to indict any of the officers involved in the no-knock raid that led to Ms. Taylor’s death (by contrast, the officer that killed Mr. Floyd was quickly and rightly indicted, although he is planing an aggressive defense).  The failure to indict any officer for the killing of Ms. Taylor is unsurprising because:  (1) a judge had authorized the raid and the warrant to search the apartment because of Ms. Taylor’s sometime-boyfriend, a suspected drug dealer, and (2) when the police entered the apartment, the boyfriend fired on the police (he did not know they were police), wounding one officer; the police returned fire, resulting in Ms. Taylor’s death.  On these facts, it’s hard to see how any officer was culpable for Ms. Taylor’s death.  Louisville subsequently banned no-knock raids, which undoubtedly contributed mightily to the cascading calamity resulting in her death.

. . .  Since that is the reality in the U.S.–extreme poverty and desperation, combined with a proliferation of weapons–the real question has to be what institutional and systemic reforms will minimize situations ripe for tragedies like the killing of Ms. Taylor.  Eliminating the no-knock raid is probably one, and the sociologist Randall Collins has identified some others.   Of course, eliminating poverty and restricting access to firearms would be even more important, but that would require real political and economic change in the country that elected Donald Trump.

h/t: Greg

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I don’t consider myself particularly well informed on the Breonna Taylor incident, which, as you know, prompted big protests in Louisville, Kentucky (and the rest of America) last night. I’ve read the newspaper articles about it (e.g., here, here, and here, and many others), as well as the Wikipedia page, and still don’t know how to regard the killing of Ms. Taylor.

As you know, Taylor, 26, was killed on March 13 of this year after being shot six times by one police officer, part of a group of three executing a search warrant on Taylor’s apartment, where she was staying on that night with her boyfriend, Kenneth Walker. The search was authorized because Walker was thought to not only be a drug dealer, but also to hobnob with drug dealers, and because Taylor had dated one of the other drug merchants before taking up with Walker. (The police tracked Walker to Taylor’s apartment.) When the police entered Taylor’s apartment, Walker, thinking the intruder might be Taylor’s former drug-dealer boyfriend,T fired a legal weapon in self defense, he says, and the police fired back, killing Taylor. Several shots from one cop also went into an adjacent apartment, leading to the sole charge in the case: three charges of “wanton endangerment” against the single cop who fired the errant shots. Each charge carries a maximum of five years in jail. The other two policemen were not charged, and this apparently lenient result led to the protests.

I’m on the fence about all this because the details are hazy and because of the absence of evidence that could have been there, and the secrecy of the grand jury, I don’t know them. Perhaps, given the absence of bodycams, none of us will ever know the important details.

On the side of the charges being way too light we have this:

  • The warrant was originally a “no knock” warrant in which the cops could simply bust their way into Taylor’s apartment. Before the raid this was changed to the requirement that the police announce themselves and knock before entering. Some neighbors testify that they did not hear police announce themselves.
  • The city has settled a civil suit by paying the Taylor family $12 million, which (though standards of evidence are lower for civil suits) implies that Louisville recognized that the police bore some culpability.
  • If the police didn’t announce themselves and didn’t knock as per the requirement, then Walker would seem to have been justified in firing at police. In that case, the ultimate killing of Taylor would be a result of police misbehavior.
  • The city waited for months before charging the police with a crime (I understand, though, that a federal investigation is underway.)
  • No drugs were found in Taylor’s apartment (apparently there wasn’t even a concerted search for them), and there’s this from Wikipedia about the supposed involvement of Walker in drug dealing, which bears on the validity of the search warrant:

Specifically, the warrant alleges that in January 2020, Glover left Taylor’s apartment with an unknown package, presumed to be drugs, and subsequently went to a known drug apartment with this package soon afterward. This warrant states that this event was verified “through a US Postal Inspector.” In May 2020, the U.S. postal inspector in Louisville publicly announced that the collaboration with law enforcement had never actually occurred. The postal office stated they were actually asked to monitor packages going to Taylor’s apartment from a different agency, but after doing so, they concluded, “There’s [sic] no packages of interest going there.” The public revelation put the investigation and especially the warrant into question and resulted in an internal investigation. No drugs were found in Taylor’s apartment after the warrant was executed.

and, finally, this:

  • The real person suspected of drug dealing was already in police custody by the time they executed a warrant on Walker’s apartment.

On the side of the charges being appropriate, or not involving racism, we have this:

  • One neighbor said he did hear the police announce themselves. We don’t know for sure because the cops weren’t wearing bodycams. (Why isn’t this required for all cops in situations like this one?)
  • The protests, if not the killing of Taylor, is deemed “racist” because she was black and the three police officers were white. Yet the charges were brought by a grand jury that likely included black jurors. Who, then, is the object of the protestors’ ire? The cops, the grand jury, or the system?
  • We don’t know what evidence was presented to the grand jury, and it may not emerge during a trial for “wanton endangerment”.
  • The attorney general of Kentucky who announced the charges, Daniel Cameron, is black. (Against that people will say, well, he’s a black Republican, which he is.) Cameron was visibly upset when announcing the charges, choking up when he talked about his own family as well as Taylor’s.
  • Legal experts in Kentucky, including some black ones, say that the cops were justified in defending themselves once someone had fired at them.
  • Some of the jurors who voted to bring the lighter charges were likely black, though we won’t know.

So we have conflicting claims about several items bearing critically on what happened, and no tangible evidence in the form of bodycam footage. Presumably a grand jury brings charges if they think there might be sufficient evidence to convict the cops of homicide, and apparently they didn’t think sufficient evidence existed. The proceedings are sealed, so we won’t know what happened.

What I’ve written above is what I’ve distilled from reading about the case, and I may have made a few errors or left out crucial information. If so, please correct or supplement what I’ve written.

I can conclude only that I’d know better what to think had I been on the grand jury. But I’m not at all convinced that the killing of Taylor was a racist act. How could it be, when the cops opened fire at an unknown person who was shooting at them? Taylor’s killing might be seen as part of a pattern of white police killing black citizens, but this is not a George Floyd-like incident in which accusations of racist cops are at least plausible.

Anyway, I’m sure many readers have their own opinions of the police’s guilt, and about whether the protests, which were largely peaceful but did have some violence (two police officers were shot), were justified. Weigh in below.

Here’s Taylor, who was formerly an emergency medical technician:

Photo courtesy of the family of Breonna Taylor, via Agence France-Presse — Getty Images

 

Steve Bannon among four people indicted in New York for fraud

August 20, 2020 • 9:45 am

Athough Steve Bannon was scheduled to speak here a while back, that never took place, though the University refused to ban him. Now it looks as if he won’t be here for a long while.

Hot off the press (click on screenshot for details):

Bannon, of course, was Trump’s former campaign manager. He and three others face one count of conspiracy to commit wire fraud and one count of conspiracy to commit money laundering. Each count carries a maximum of 20 years in prison!

A few details from the report:

Bannon is among four people indicted for allegedly defrauding hundreds of thousands of donors to the online “We Build the Wall” campaign.

Manhattan federal prosecutors allege that Bannon, campaign leader Brian Kolfage, Andrew Badolato and Timothy Shea “received hundreds of thousands of dollars in donor funds from We Build the Wall, which they each used in a manner inconsistent with the organization’s public representations.”

“We Build the Wall” began as a GoFundMe campaign in late 2018, designed to raise money directly from the public to build a border wall in the face of Congressional opposition.

While Kolfage publicly guaranteed that he would not take salary or compensation, and that 100 percent of funds raised would go toward the wall, the indictment alleges he actually took more than $350,000 for personal use and took steps to conceal it.

It’s both ironic and horrific that a campaign designed to keep poor immigrants out was actually used to enrich the promoters.

h/t: Ken

The insanity defense: is it sane? Thoughts from the Leopold and Loeb case.

August 17, 2020 • 10:30 am

I’m reading the book below, which I found in a free book box, about the famous Leopold and Loeb murders of 1924.  The murders took place in Hyde Park/Kenwood, just a few blocks from where I sit. Nathan Leopold (left on the cover below) and Richard Loeb, once University of Chicago students, 19 and 18 respectively, decided to commit the perfect crime—a murder. There was no obvious reason for it except for for their hubris, especially Leopold’s, for he was a fan of Nietzsche and thought he was exempt from ordinary moral strictures. That gave rise to the book’s title. (Click on the screenshot to go to the Amazon site, and I do recommend the book as a historical page-turner.) They planned the murder for six months, confident that they could kill someone (they planned to abduct a random child from a nearby school) and never get caught.

In May of that year, the pair abducted and brutally murdered 14 year old Bobby Franks, Leopold’s second cousin. They drove his body to Indiana and sequestered it in a railroad culvert. The pair then sent a ransom note to Franks’s family, though the child was already dead.  They probably would have pulled off the crime, too, except that Leopold dropped his glasses near the body, and they had a special frame that had been sold to only three people in Chicago. The cops quickly traced the glasses and zeroed in on the pair, who promptly confessed everything in great detail. And they confessed without ever having talked to a lawyer, which of course is a serious mistake.

Leopold and Loeb’s families were wealthy, and engaged three lawyers to defend them, including Clarence Darrow, the most famous lawyer in America. (The next year he was the major defense attorney in the Scopes “Monkey Trial”.) Darrow, who also lived near me in Hyde Park, is a hero of mine: dedicated to fighting for the underdog, fiercely smart and eloquent, and an outspoken determinist and atheist.

Left to right: Loeb, Darrow, and Leopold. Source.

The boys changed their plea from “not guilty” to “guilty”, therefore giving up a jury trial as well as the possibility of a verdict of “not guilty by reason of insanity”. The only courtroom proceedings, then, were the lawyers’ arguments before the judge to determine what sentence the boys got (hanging, life without parole, or 14 years or more in prison).

Even Darrow admitted that the boys should be in jail until they died, but argued fiercely before the judge that the boys had no choice but to commit the crime—they were conditioned by their genes and environment to murder Bobby Franks. Darrow considered this mitigation, and was arguing for a prison sentence rather than hanging. Much of the book is devoted to the testimony of neurologists and psychologists who argued whether or not the boys were mentally ill, even though they couldn’t plead insanity. Darrow argued that both had mental disorders, and these played a major role in the crime.

In his summation and plea that the judge impose prison rather than the noose, Darrow made a famous twelve-hour argument, some of which you can read here. It was heavily deterministic, to wit:

This terrible crime was inherent in his organism, and it came from some ancestor … Is any blame attached because somebody took Nietzsche’s philosophy seriously and fashioned his life upon it? … It is hardly fair to hang a 19-year-old boy for the philosophy that was taught him at the university.

. . . Why did they kill little Bobby Franks? Not for money, not for spite; not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way. Because somewhere in the infinite processes that go to the making up of the boy or the man something slipped, and those unfortunate lads sit here hated, despised, outcasts, with the community shouting for their blood. Mr. Savage, with the immaturity of youth and inexperience, says that if we hang them there will be no more killing. This world has been one long slaughterhouse from the beginning until today, and killing goes on and on and on, and will forever. Why not read something, why not study something, why not think instead of blindly shouting for death?

Darrow won. To everyone’s surprise, the judge gave them both life sentences. In 1936, Loeb was murdered in prison with a razor by a fellow inmate who claimed that Loeb made homosexual advances (Leopold and Loeb had a homosexual relationship). Leopold was actually paroled in 1958, moved to Puerto Rico, and died in 1971 at the age of 66.

I’ve digressed, but the story is a fascinating one, seen at the time as the crime of the century, with worldwide interest and publicity. Thousands of onlookers tried to rush the Chicago courtroom to hear Darrow’s summation, and finally had to be beaten back by the police.

When reading the book, I discovered that the standard for “insanity” at the time, which if proven by the defense would get you a “not guilty by reason of insanity” verdict (and likely a shortish stint in an asylum) was that the defendant did not understand that his conduct was criminal. That is, he didn’t know the difference between right and wrong (in the law).

That is in fact still the law in Illinois: here’s from the criminal code of our state in 2012:

Darrow argued that although Leopold and Loeb were not “insane” by these standards (he knew that such a plea wouldn’t fly), they were nevertheless suffering from mental illness, and it is on this issue that his speech centered.

While thinking it over, I realized, as I’ve said here before, that understanding that your crime was against the law is a lousy criterion for “insanity” mitigation in these cases. That’s because, as a determinist, I think that to some extent everyone who commits a crime is “insane” in the sense that they could not help themselves. As for Illinois’s insanity defense,  there may be those, including some serial killers, who know that their deeds are criminal and illegal, but are under such delusions or compulsions that they cannot help themselves, even though they know about conventional and legal morality.

Is “a knowledge of criminality”, then, to be the line that divides a gentler, more rehabilitative punishment from one that throws you into jail with other criminals, a dreadful fate if you’ve committed a capital offense? I can’t see why.  Why is “mental illness that blinds you to criminality” so different from “mental illness that compels you to do murder, even though you know it’s wrong?”  In fact, as a determinist, I don’t think that the criminal, at the moment of the crime (and oftentimes before, as with Leopold and Loeb) could have chosen to behave differently. Regardless of your views on punishment, if you agree with me—and I think all science-minded people must)—then you have to take determinism into account when weighing punishments.

My own view, which I’ve expounded here over and over again, is that even “hard” determinism mandates punishment for three reasons: to keep a dangerous person out of society (sequestration), to rehabilitate them if possible (so that sequestration can end), and to deter others (deterrence). But none of this justifies any punishment, like the prosecutor in the Leopold/Loeb case argued repeatedly, based on the fact that the criminal made the wrong choice. (The State’s Attorney repeatedly argued for the death penalty because Leopold and Loeb, not being insane, could have realized the criminality of their act and refrained from it.)

And although both Darrow and I are determinists, he went even further than I, arguing that prisons were superfluous. But perhaps we do agree on this: “prison” shouldn’t be an exercise in horror, but a removal from society (which is punishment itself and a deterrent), combined with whatever therapy necessary to ensure that the criminal can be returned to society. If there is no such therapy, then sequestration for life is mandated. In Norway, you’re examined for rehabilitation every five years, and if you’re judged un-rehabilitated, you stay in jail for another five years. But Norwegian prisons are far less brutal than American ones.

In other words, I don’t like the insanity defense, which offers true rehabilitation only to those deemed “insane”.  My view of criminal trials is that there should be two phases:

A. Was the criminal “responsible” for the deed? That is, did he do the act, period? That can be decided by a jury.

B. What is the best way to treat a convicted criminal in light of the three rationales for punishment given above? What sequestration is an appropriate deterrent? (That is something that can be decided empirically.) Is there a form or rehabilitation that will allow the criminal to return to society and pose no more danger than that of an ordinary citizen? If there is, that therapy should be given. The sentence, then, should be imposed not by judges or juries, but by a panel of experts, legal, medical and psychiatric.

I know that this mandates an extensive reform of the American penal system, and will be costly and will involve trial and error for a long time to come. And many people who are libertarian free-willers, and who think that criminals could have decided otherwise, will oppose reforms that take determinism into account.  But I can’t see any good argument for keeping the present system, which is cruel, retributive, and yields a high rate of recidivism.

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CODA:

Here are Leopold and Loeb’s mugshots taken when they entered prison (Leopold is at the top

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