Take The Law Into Your Own Hands

Given that Rand/Objectivists claim:

(i) no man has the right to initiate the use of physical force against others; and

(ii) the use of retaliatory force should be delegated to the government to place it under the control of objective laws.

Surely we agree that we want government to uphold (i) and (ii). My question is... should an individual who is following in your opinion the most moral ethics potentially ever in any conceivable context break (ii) and retaliate on their own? As a side note, usually only the question is asked for (i) in lifeboat scenarios.

This could be asked in three different contexts:

1. Government is utterly corrupt and/or inept

2. Government is partially corrupt, maybe corrupt in the business or case that you are involved in (but who is to judge?)

3. Government is pretty much Objectivist optimal: its only purpose is to protect the property of innocent citizens, and it is pretty effective.

I debated this at my local Objectivist meetup group (link to debate thread).

Post 1

Monday, August 17, 2015 - 12:15pm

Would it be useful to think of the delegation of the right of retaliatory force as revokable?

I think it is conceivable that tehre would be general contexts where such delegation is moral (gives rise to the right society, in your self interest), but that certain temporary or specific contexts would require that you revoke the delegation and work toward the day you can re-delegate.

Are you looking for concrete examples? Simplest one is fighting off, and apprehending a mugger who attacks you, if you happen not to be right next to a police officer when the crime is initated against you... and even then it depends upon whether the policeman is close enough and paying attention.

Post 2

Monday, August 17, 2015 - 12:33pm

Colin,

Yes, finding an example of when it would be in one's best interest to retaliate is what I'm asking for. And then I'm asking whether or not you (each) agree that it is such a case that breaking policy (ii) can in some cases be the right thing to do.

Let me further stipulate that there is no clear and present threat to you or anyone. The transgressor has already broke (i) and is now no longer threatening you. You may have already taken the transgressor to court, but the court did not have sufficient evidence to convict the transgressor.

Post 3

Monday, August 17, 2015 - 2:18pm

Dean:

I think it would have to come down to morality again but not in a short term arbitrary way.

When would "taking the law into your own hands" actually be in your self-interest, long range, not restricted only to the particular harm you want to retaliate against, and possibly taking into account that you may end up in jail etc.?

Perhaps in a situation where the harm is not imminent, but is inevitable and extreme. Imagine someone threatening to kill you (taking a threat of physical harm as initiation of harm) within the decade but has promised to let you live for a few years. If you know this person enough to understand they will attempt to carry out the threat, what is your recourse after you ask the government to protect you?

If government cannot or will not help ... the standard of morality may require action beyond simply beefing up your home security system.

Post 4

Monday, August 17, 2015 - 4:10pm

In the linked thread, this was my proposed example:

A 55 year old man's wife & children are murdered. The murderer tells him "I killed your family", and proceeds to show the victim a video recording of the murder. Police investigate, find no evidence of who the murderer was. The man claims that so-and-so did it. They go to court. The man claims that so-and-so told him he did it and showed him the video of it. The judge and/or jury decide the victim's testimony do not meet the standard of evidence beyond reasonable doubt.

The victim's family was everything to him. Being 55 and other details of his circumstance, he has no chance of stating a new family and once again having children of his own. His life had one purpose: to work towards the success of his family. That purpose has been completely obliterated. He now has to find new purpose to his life, or die in depressed passivity.

What is your advice to this victim?

Post 5

Monday, August 17, 2015 - 4:16pm

We, as individuals, didn't authorize government to exercise retaliatory force. And at that level it wouldn't make sense to say that we can, individually revoke that authority.

If we wanted to change the structure of our laws, of how our government is structured, so that it did have some different relationship between individual rights, government and retaliatory force, and that would be a different thing, and hopefully, this would only be done with a careful understanding of the proper purpose of a government.
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I think it makes sense to view the purpose of government, as a whole, as protecting individual rights. Retalitation is required when it isn't possible, much less practical, to do perfect or near perfect self-defense. A burglar can steal things from your house when you aren't there to guard it. Even if we used the nth degree of protective measures, like burglar alarms, private guards, etc., it doesn't ensure that our property will always be safe. And what is far more rational is to see the goverment's purpose as creating the legal environment that is most conducive to individual rights. And the best legal environment is one that doesn't let a person get away with violating a right, just because they didn't get caught in the act. The law should be able to come after someone weeks or months later.
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There are other times when there is a difference between straight forward self-defence and the best environment for individual rights. For example, we have civil courts which can be handy even when there isn't a clear violation of individual rights. They can work out intricate details of contract law and enable a decision that prevents one side or the other from enforcing what they think are their legal rights by using force. Civil law, and civil courts take much of the area of mutually voluntary interactions and free it from the need of one side or the other resorting to force. Just like criminal law (with all of its structures and components) free us from using vigilantee "justice."
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We can't individually revoke the government's authority to use retaliatory force. And we can't revoke the government's power to hear civil cases (and to use force if needed to back the civil court's decision).
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We can't say that the government has the power to use force to defend a person's individual rights BUT not have the authority to acquire the needed structures and tools and funds to be able to do that. Government can't protect rights without police cars, guns, jails, military, military weapons, money for salaries, etc. These kind of things are just plain required as a part of the proper purpose. It is a package deal. It is implied.
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I would make the argument that retaliation is a required part of a government whose purpose is to create the legal envirnoment that is optimmum for the exercise of individual rights. Same as the use of force to back up civil court decisions. Same as the power to acquire and use the minimal tools and structures needed to do that. Yes a person has the right to his life, therefore a proper government has the proper authority to make laws prohibiting murder, therefore the government has the proper authority to hire police to arrest a suspected murderer, etc., etc.

Post 6

Monday, August 17, 2015 - 5:42pm

Dean:

Your example does not seem to raise the issue of rightful retaliatory force in the context of Objectivist morality. No action, retaliatory or not, can attain any value to the surviving victim, so no action of any nature retaliatory or not is mandated by rational self-interest (except perhaps avoidance of further crimes by the perpetrator, but your scenario raises no further threat).

Your example certainly does appeal to, and actually test, a human being's capacity for hatred, violence, vengeance, and thereby tempt him to err, to act in a self-defeating manner which by definition is immoral. In fact the scenario is so extreme that the man may not be capable of rationality at all. If a man is incapable of rationally, any moral issue is beyond his capacity, and any question regarding what a man should do if he is incapable of being a rational moral actor is the same as asking whether a man falling from the roof of a building "should" stop half way down. I do not think this is the kind of question you are interested in answering.

Change the scenario into something for which action of a retaliatory nature can achieve a value to the actor, i.e. some values are possible and in which the actor can make rational moral choices, then it becomes a question of whether the actor should act based on all the facts of reality i.e. all of the consequences to his well-being long range, upside and downside.

I think it is clear that, for example, if you were a slave in the early 1800s, and your rights were violated with use of force by your slaver (apparently this could happen from time to time.... by which I really mean to say "all the time, at every moment of time"):

1: government does not protect your rights,

2: you do not live in the right kind of society

3: your self-sovereign right of retaliatory force according to a rational morality has never been delegated

which simply means you would need to decide whether it makes sense, given all the possible consequences to (in the course of escape) a) destroy your slaver's property , b) strike and or imprison your prison-maker, c) steal money from him (or more accurately in terms of retaliation, justly re-take value/payment in recompense for services rendered ...) and/or d) take/borrow a horse without his permission. I think if there is reasonable chance for escape (forever), no one who understood rights and morality (as a rational egoist does) would be able to say your actions were not proper and eminently moral in the context.

...

Does the above make sense?

(Edited by Colin B. Gallant on 8/18, 1:54pm)

Post 7

Tuesday, August 18, 2015 - 2:19pm

Hello Steve:

You have made a great number of statements which I am having difficulty integrating into a whole.

There is the distinction between a proper moral government fulfilling its proper role (which you touch upon) and particular existing governments which fall very short of what is proper. For some of your statements about the relationship between government and individuals, I do not know which of these contexts you intend, and in some cases whether the statement is prescriptive or merely descriptive.

I agree that the idea that individuals "authorize" current government to perform some positive act seems suspect, since it implies authorization is somehow arbitrary and divorced from the individual's initial right of action. However, the idea that an individual voluntarily abstains from acting within his/her right, on the premise that a proper government will act for him/her, is not the same thing.

I would like to understand your thoughts on the proper role of government in respect of the use of retaliatory force which a self-sovereign otherwise would be entitled to use by right but abstains from undertaking personally on the premise that such a policy is in his long term self interest.

Post 8

Tuesday, August 18, 2015 - 2:34pm

Hello Dean:

I've looked at your debate thread.

I do not disagree with your general stance which I would paraphrase as:

No man can abdicate from his ultimate self-responsibility of rational moral judgment and rational moral action. Such is tantamount to embracing irrationality and it is precisely what a man who chooses life cannot do.

cheers

Colin

Post 9

Tuesday, August 18, 2015 - 3:53pm

Steve,

In your post, if I understand it correctly, you were focused on what the government's policies should be. But my question is on what the individual should do. Whether an individual should ever retaliate in the case where the initiation of force has already taken place and there is no longer any clear and present danger.

Colin,

Thanks for taking the time to read through the thread and consider this moral question. My fundamental on this is: "An individual's goals and objective plan predictions are primary, contextually deduced moral 'rules' do not apply in all potential contexts."

And well, that is for my philosophy, which is a general philosophical system that should work for any individual with any goals and abilities...

Which differs from Objectivism, where in Objectivism, the moral system is based on something like: "A man should act to succeed in life, as a 'man'." Where 'man' is defined based on peculiarities between modern man and other animals. Or something like that. Anyways, I'm not a philosophical scholar, so I can't really say what the official Objectivist position might be or what Rand would have thought on this particular moral question.

Cheers,

Dean

Post 10

Tuesday, August 18, 2015 - 4:23pm

Hi Colin,

You wrote:

I would like to understand your thoughts on the proper role of government in respect of the use of retaliatory force which a self-sovereign otherwise would be entitled to use by right but abstains from undertaking personally on the premise that such a policy is in his long term self interest.

By "self-sovereign" I'm assuming you are referring to an individual, a sovereign individual. If there is some other meaning, please let me know.

I can't think of any justification for an individual using retaliatory force. Individual exercise of force is justified when it is needed as self-defense.

Having said that, there is something that occured to me when I considered the following. In my eyes, when someone engages in acts that violate individual rights of another, by acting in that way, they give up their own individual rights (to the degree that they violated them in others). If someone kills others (not in self-defense), then the killer has given up his own rights. A person has to leave the very realm of rights to violate them.

Now, from that perspective one could imagine a situation where a person could engage in retaliatory force that is morally acceptable. Like if someone had killed Hitler, even if they weren't in danger from Hitler. But you went on to ask about long-term self-interest and personally engaging in retaliatory use of force. As to that part of your question, it would be in anyone's self-interest to kill kill Hitler just because he was such a great evil as to be the enemy of all rational humans, but if it would have put the person in grave danger to kill Hitler, then it might not have been in his long-termself-interest. I have no idea if that answers your question.
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Let me ask you this: Did you agree that the proper purpose of a government is to provide the optimum environment for the protection of individual rights? And if so, do you agree that having a government that retaliated against violations of individual rights would, net-net, result in a social/economic/political environment that had fewer violations of individual rights than if the government didn't use retaliatory force? I believe that it is in each person's long-term self-interest to support that kind of government.

Post 11

Tuesday, August 18, 2015 - 7:18pm

Steve:

BTW I am equating self-soverign with sovereign individual.

In answer to your question at the end of your post I would like to first observe that free and voluntary interaction among rational men in society is not an example of any form of government, as clearly no one in such an interaction are "governed" and then state that:

By its very nature government is and only ever can be an agency of force, and to the extent that government is proper (according to Objectivism), that force is only rightful use of retaliatory force and its sole purpose is protection of individual rights. To the extent a government fulfills its role as a proper government the individuals would be living in a proper society and it would be in their interests to maintain that government and voluntarily pay those performing the necessary tasks.

I think we are essentially both in agreement with this.

Post 12

Thursday, August 20, 2015 - 4:35pm

http://www.galtsgulchonline.com/posts/9f316b7/the-constitution-of-government-in-galts-gulch

The government must have the power to initiate force against the innocent. I was as surprised by that as you. I refer you to the works of Wolf DeVoon.

See here: http://necessaryfacts.blogspot.com/2014/06/wolf-devoon.html

and here

Quite simply, a court of law must have the power to compel appearances, not only of the accused and accusor, but also of witnesses. We use the term "innocent by-stander." You happen to see something you want no part of, but you can be compelled to appear in court. Moreover, it is well-known that the accused often initiate force against witnesses, so you are compelled by the court to put yourself in danger.

Just sayin'... all these years, I thought the same as you about the government only being an agency of retaliatory force. I repeated the same statements you make. But, I read DeVoon's Constitution of Government in Galt's Gulch, andrealized that we all have been wrong. The court must, indeed, have the power to intiate force against the innocent.

I mean, if you stop and think about it, what sense does it make to claim that a person is innocent until proven guilty, but at the same time accept that he can be compelled to appear in court, i.e., be arrested by the police, perhaps only on a sworn complaint from another party, though legally innocent?

Post 13

Thursday, August 20, 2015 - 5:25pm

If you want to optimize a political environment for the maximum protection of individual rights, what do you do?

Do you have a government, or anarchy? That question has been raised many times - and more than thoroughly answered.

Do you have civl courts or do you leave it to individuals to settle their own conflicts? Reason tells us that civil courts, and the civil law that is used will more than pay for itself in an enviorment where honest, productive people can settle their differences peacefully and flourish.

If your country is under military attack from a some major world power will you defend your nation even at the cost of innocent lives? Yes - another question that has often been asked and then answered.

If you need to seat jurors or compell testmony from witnesses as the only way to achieve just outcomes as part of the environment that protects individual rights, will you do it? Notice that this is a trick question. It has the word "only" in there. I'd answer the question, as written, with a "Yes" but I want to say that we could use paid jurors (find the market price that brings in enough jurors that are competent) and there are problably things that can be done to make witness testamony voluntary (E.g., anyone who doesn't agree to testify will not, in the future, be able to call on the police or courts.)

Commonsense tells us that the move from our initial state of presumed innocent to that state of guilty by conviction is a process. It has steps. The steps take time. There must be a reasonable suspicion of some sort to get a judge to sign a warrant (be it for a search or an arrest). Then the person has to be arraigned (habeus corpus) or they will be released. Then there must be an indictment or they will be released. Then there must be a trial and the trial must result in a conviction before the person is judged guilty. This is the process of innocent till proven guilty. How could it be otherwise?

What we should notice is that our system is designed to protect individual rights by ensuring due process, equality under the law, objective laws, right to counsel, probable cause, speedy public trial, judgement by a jury of peers, etc. Anyone can poke fun at this with claims that it isn't perfect, but what suggestions do they have for a different system?

Marotta's post claims we don't have "innocent until proven guilty" because people can be arrested before they are convicted and that witness testimony can be compelled. That completely overlooks the meaning of the phrase "innocent until proven guilty." That phrase is offered in honor of a system that does not hold that all people are guilty of any accusation until they can prove otherwise. That other is the system that can lock anyone up at any time for any reason or compel any person to perform any act at any time until they can prove that they don't deserve it. Marotta is either offering a backdoor argument for totalitarian states, or clinging to some idea of anarchy where there are no courts, or a uniform code of laws, or any enforced standard of guilt or innocense... or he is just doing more floating of abstractions... untethered from reality.

Post 14

Thursday, August 20, 2015 - 5:41pm

Hi Dean,

You wrote to me:

In your post, if I understand it correctly, you were focused on what the government's policies should be. But my question is on what the individual should do. Whether an individual should ever retaliate in the case where the initiation of force has already taken place and there is no longer any clear and present danger.

You are using the word "should" in a situation where you have stated that there is no longer a clear and present danger. "Should" implies a moral/ethical question. There is no danger, so self-defense isn't on the table. What would the moral value sought with retaliatory force? Helping society? I reject any altruistic (sacrificial) motives. Getting justice? Under these circumstances it seems like that would be an emotional motivation disconnected from any other self-interest and I 'd reject that. If one lives in a lawless environment, can't move, and could get away with using retaliatory violence to set an example that other thugs would take note of and stay away from you in the future, that would be an example of where retaliatory force served one's self-interest - but in all lf the real-world situations that are likely to exist.... it would be better to use one's energy to just move to a better political environment.

Post 15

Friday, August 21, 2015 - 6:12am

Anyone who has been arrested has a good understanding of how the criminal justice system works. It works differently than the utopia theorized by Steve Wolfer. I point to the Innocence Project which to date has brought 334 wrongfully accused people out of prison. They served an average of 12 years. Moreover, these are not mere exceptions, but examples of systemic injustice. Prosecutorial misconduct, the withholding of exculpatory evidence, racial bias, and a tendency toward authoritarian response (juries believe police officers) are among the many factors. Eyewitness misidentification, false confessions, and bad lawyering are others. (See the University of Michigan Law School wrongful convictions page here: http://www.law.umich.edu/clinical/innocenceclinic/Pages/wrongfulconvictions.aspx

Officials at the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University claim the registry is the most comprehensive of its kind.
It lists more than 2,000 people that its authors claim were exonerated after being falsely convicted of crimes in the U.S. in the last 23 years.
The Patriot-NewsDavid Gladden was convicted of murder in Dauphin County in 1995 and sentenced to life in prison. He was released in 2007.

Nearly 900 individual cases are highlighted. More than 1,000 other cases involve group exonerations that resulted from police scandals.
Story from http://www.pennlive.com/midstate/index.ssf/2012/05/national_registry_of_exonerati.html
Is about this:
http://www.law.umich.edu/special/exoneration/Pages/about.aspx

The scandals at police crime labs are further evidence of systemic injustice. Those also are not isolated or rare or exceptional. Just put "police crime lab scandal" in your search engine. And it is not new, and never was. The first case of a faked fingerprint occured in 1925. Fingerprints themselves fails the Daubert Test for scientific evidence, yet we still have them as part of the process. Fingerprints are just the most visible example of "junk science." Bite marks, shoe prints, tire tracks, hypnosis, regression memories, and even self-proclaimed psychic readers have been allowed in courtrooms.

People are convicted during times of "moral panic". The Red Scares and the McCarthy Era should be dramatic evidence of that. However, consider the cases of mothers who kill their children - as some apparently have.

For instance, all of the CWC clients were single mothers charged with murdering their children. None of the four had even the slightest apparent motive to kill her child. Yet one of the women had falsely confessed under duress, and the others had made statements that police and prosecutors misconstrued as incriminating. As the CWC lawyers and Julie Rea discussed such commonalities, the need for a wrongful conviction project devoted solely to women became apparent. No such project existed—until the CWC launched its Women's Project on November 29, 2012. -- http://www.law.northwestern.edu/legalclinic/wrongfulconvictions/womensproject/about/

The Innocence Project only works with capital cases or cases of rape, both involving DNA evidence. Few crimes have that kind of evidence. Using the number of homicide convictions against the number of people released because of the Innocence Project and then extrapolating that to all felonies, led one University of Michigan law professor to calculate that 80,000 people are wrongfully imprisoned right now.

Yet Steve clams: What we should notice is that our system is designed to protect individual rights by ensuring due process, equality under the law, objective laws, right to counsel, probable cause, speedy public trial, judgement by a jury of peers, etc. Anyone can poke fun at this with claims that it isn't perfect, but what suggestions do they have for a different system?

The lack of an alternative is not justification for the present system.

Even if we could address and remediate all of those problems, the basic fact remains: the government must of necessity have the power to initiate force against the innocent. If we accept all of Steve Wolfer's hand-waving about the rights of the accused, we still must face the fact that witnesses and jurors are compelled to appear. Steve Wolfer does offer one well-known solution to the present jury system, from the science fiction of Robert Heinlein: paid, professional jurors. That still leaves the innocent bystander who is forced to appear in court without compensation and at risk for their own safety.

As for those jurors, on the Galt's Gulch Online site, last week, there was posted this quote from Thomas Sowell: "It is hard to imagine a more stupid or more dangerous way of making decisions than by putting those decisions in the hands of people who pay no price for being wrong." It received 8 Thumbs Ups. I asked if that would apply to juries. If this statement is to be accepted, would we not execute jurors who wrongfully condemn the innocent? For that, I received a Thumbs Down. But the problem remains.

Steve Wolfer used the phrase "jury of peers." That phrase is meaningless in American law. It once had meaning in British (and presumably Continental) law: nobles would try nobles, commoners would be jurors for commoners, and perhaps the royal house would be triers of fact for themselves. In America, everyone is a "peer" and therefore we have no peers. (Unless you want to suggest that illegal immigrants - being a special status apart from citizens - should sit on juries for each other. I grant that is silly, but it does show the easy route to the reductio ad absurdem of "a jury of your peers".)

Marotta is either offering a backdoor argument for totalitarian states, or clinging to some idea of anarchy where there are no courts, or a uniform code of laws, or any enforced standard of guilt or innocense... or he is just doing more floating of abstractions... untethered from reality.

None of the above. I am just pointing out that in order for government to work, it must initiate force against the innocent. I have no problem with that in the utopian sense suggested by Steve Wolfer. We compel jurors here and now (science fiction aside). We compel witnesses now. And we compel both the accused and the accuser to appear in court. If we did not, we would have no courts. Those are facts. Make of them what you will.

Post 16

Friday, August 21, 2015 - 9:21am

Marotta generates another laundry-list rant instead of dealing with principles.

He points out that 334 people who were incarcerated have been found to be innocent. (A few quick points: I wouldn't expect the system to be perfect and 334 - and that is going back to the late 1980s - out of millions isn't a sign that the system as a whole should be thrown out, But that must be what Marotta wants, because he says, "....these are not mere exceptions, but examples of systemic injustice." If we are talking about a very small percentage of convictions, then maybe we have the right principles, but aren't implementing them well enough.)

He lists these problems: "Prosecutorial misconduct, the withholding of exculpatory evidence, racial bias, and a tendency toward authoritarian response (juries believe police officers) are among the many factors. Eyewitness misidentification, false confessions, and bad lawyering..." What he doesn't give us is any sense of the proportion of the problem. Are 10% of the criminal cases tried subject to prosecutorial misconduct? Or, is it closer to 80%? How do we fix it? No answers to either of these. Do we throw away the adversarial system used in our trials? No answer. Do we do away with retaliatory force and decide that if someone violates another’s rights and gets away with it, they are free.... kind of an automatic amnesty program? Is he calling for anarchy? No answer.

Notice how many of his complaints aren't about the principles I named, but about violating the rules that were created to implement good principles or about character flaws, or a lack of human perfection.

-------------------

Marotta writes:

Yet Steve cla[i]ms: What we should notice is that our system is designed to protect individual rights by ensuring due process, equality under the law, objective laws, right to counsel, probable cause, speedy public trial, judgement by a jury of peers, etc. Anyone can poke fun at this with claims that it isn't perfect, but what suggestions do they have for a different system?

And Marotta answers:

The lack of an alternative is not justification for the present system.

Oh, great. We want to protect individual rights. We develop legal principles and implement them in the real world. But along comes Marotta that walking, talking purveyor of floating abstractions, saying we should throw it out... He says it is flawed and just because nothing else is better is no excuse for not throwing out. What nonsense! I repeat, either he is still an anarchist under all of his blather, or there is just something in his personal makeup that leaves him far too comfortable with floating abstractions.
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Steve Wolfer used the phrase "jury of peers." That phrase is meaningless in American law.

No, it isn't meaningless. In America it simply means other citizens. It is just another check on government power and one that is deemed better than, for example, having the judge be the trier of fact. That's the principle. Marotta doesn't offer a suggestion for a better approach.

Post 17

Thursday, August 20, 2015 - 11:16pm

Hello,

The discussion seems to have bounced back and forth from how a government should act to how a particular individual should act. I think the specific question of should an individual act against a criminal who poses no current threat to them, with the answer in almost all cases being no. However, being that not all individuals will act rationally, or even be able to act rationally in some cases, what exactly should be done to those who do retaliate against criminals, either because of the emotional heartache of a crime committed against them or simply as a vigilante with an altruistic motive?

Specifically in cases where the alleged crimes were serious and:

1.) the crimes are proven beyond a reasonable doubt (either before or after the retaliation).

2.) the crimes are unproven, but the individual was very likely guilty.

3.) the individual who received the retaliation may or may not have been guilty, but the vigilante/retaliator sincerely believed to the best of his reason that he was guilty.

As a side note, would presidential/governor pardons play any role into how the government deals with these cases? Using Dean's example, a 55 year old man kills the man who he says admitted to killing his family, and of coarse he is charged and sentenced to life in prison. If the governor of whichever state the crimes were committed in believed that the man who retaliated with violence sincerely believed the other man was guilty and the governor believed (based on objective evidence) that the man acted as rationally as he could (within the limits of his control) and was otherwise a rational man who could live peacefully, should he pardon him? Is there any similar case in which a pardon would be appropriate?

Post 18

Friday, August 21, 2015 - 11:42am

Steve, if you want to debate Oxford style, that's fine, but I am not interested. The facts are what they are, regardless of how you try to mangle them. Perhaps you simply do not know the fundamental facts.

He points out that 334 people who were incarcerated have been found to be innocent. (A few quick points: I wouldn't expect the system to be perfect and 334 - and that is going back to the late 1980s - out of millions isn't a sign that the system as a whole should be thrown out...

These are not 334 out of millions. They are 334 capital or rape cases where DNA evidence was available. Other facts could invalidate a conviction, but the Innocence Project does not pursue those because they are putative: DNA is unarguable, like gravity. Moreover, they only pursue those cases that are brought to them - usually by the accused - they do not independently investigate every murder or rape. They are funded by grants. Resources are limited. They only take cases that they can win.

Among those other cases, the iconic one is What Jennifer Saw (http://www.pbs.org/wgbh/pages/frontline/shows/dna/). A young adult, aware, and articulate, Jennifer Thompson was raped for 45 minutes before she got away. She memorized every detail of her rapist's face -- and wrongly identified Ronald Cotton twice. Cotton was in prison when he got word of another convict bragging about the crime. DNA evidence brought Cotton's release. Thompson and Cotton have toured on behalf of the Innocence Project. This is not a litany of disconnected facts. It is proof - and I have much, much more - that witness identifications are flawed.

It is a fact that fingerprints fail the Daubert Test for scientific evidence. If Steve Wolfer is ignorant of the Daubert Test, that is fine, as long as he is willing to gain new knowledge. It is not moral to remain ignorant "as a commitment to principles."

A jet aircraft is a system. We refer to the criminal justice system only by analogy. No one designed it. No one tested it. Competing designs are not tried out by skilled practitioners. Generally, we, the people, never got to vote on any of it. We elected the representatives, and sometimes the prosecutors (district attorneys) and of course judges. But the rest of it is out of our control. Liam Thornback asked about governor's pardons. Here in Texas the Constitution forbids the governor from suspending executions, the way the governor of Illinois did in the wake of several exonerations. So, we do have some input. But, I must insist that the example in Texas only underscores the limits of democracy, when masses of ignorant people have political power.

We do not have a criminal justice system. We just have a disconnected set of traditions, most of which grew up in the same progressive era that brought all other government power we distrust.

And do not speak of the Bill of Rights. Until 1934, you could be tortured for a confession by a state government, only not by the federal government. How many innocent men were hanged? (Less dramatic, but no less true, before 1990 in 11 states, you could be denied your right to vote if you were an atheist. The First Amendment was not completely incorporated to the states until then.) It is not a system: it is just something we grew up with.

(Edited by Michael E. Marotta on 8/21, 11:47am)

Post 19

Friday, August 21, 2015 - 11:44am