Loving the Sinner

When someone commits a crime, or otherwise breaches the moral code, there are expanding circles of victimhood.

First and foremost, there is the actual, literal victim -- the person robbed or cheated or abused -- followed by the victim's family and loved ones.

But I think after that, the persons hurt most, and hurt in a distinctive and devastating way, are the perpetrator's family.

When someone is arrested for a serious crime, it is normal for the media to seek commit from the perp's loved ones. On occasion, you'll see someone seize upon a letter written by perpetrator's mother to the judge pleading for clemency, juxtaposing the letter's description of the perp (which is, of course, written through the lens of parental love) against the usually vicious facts of the underlying offense. How out-of-touch, how classless, how blind.

For my part though, I have no idea what we expect them to say. The position they are in seems unbearably cruel, and I hate -- hate -- the people who treat the family as an easy target. It is of course true that a serious crime doesn't become less serious because a person you love committed it. And yet, it strikes me as unreasonable to demand a parent partake in what would otherwise be the obvious, perhaps even obligatory, practice of condemnation. In concept perhaps there is a tightrope one can walk of still expressing love while in no way diminishing the underlying offense; in practice I doubt it's possible to anyone's satisfaction. A columnist who concentrates on a convicted arsonist's volunteer work and urges others to see him in that light may be guilty of himpathy; the arsonist's father is not. The acquaintance who remains friends with the serial catfisher may be judged harshly for not cutting someone who hurts others out of his life; the swindler's mother should not be. This doesn't mean we abide by the parental perspective -- we know full well it is skewed -- but they're not wrong to hold it. They are in a fundamentally unfair and cruel position; the best thing we can do is just ignore them.

And that, too, is part of the cruelty. At least the primary victims have an obvious claim to our empathy, care, and concern. The perpetrator's family has, at best, a much shakier claim to emotional support. The fact that this order of prioritization is obviously justified -- of course we care more about the immediate circle of victims than we do about the feelings of the perpetrator's family -- in some sense compounds the wound; they don't even have the salve of knowing that their social abandonment is unjust. Or worse -- we know families come in for attack by people who think they must in some way be culpable too, looking for ways to accommodate a thirst for retribution that cannot be solely slaked on the body of the actual wrongdoer. They are blamed for not anticipating the misconduct, or they are blamed for somehow facilitating it, or they are blamed for not cutting loose the bad guy once his crimes became clear. 

Of course, occasionally the family really will have been complicit in a direct way (the parents who give their obviously disturbed teenager free access to firearms, for instance). But more often than not, they are victims who are not treated as victims. And I suspect there is, lying underneath everything else, a feeling of betrayal -- surely, they had to know that doing these dreadful things would hurt us; was our relationship of love not enough of a reason to refrain? What a terrible thought, and how much more terrible to have to endure it alone.

I'm soon going to start raising a son. I hope he turns out to be kind and smart and generous and every other quality one would hope to have in a person. I hope that for all the obvious reasons (I'd hope that everyone turns out that way!), but also for the more (selfish?) reason that if he doesn't turn out that way it would be heartbreaking, and I don't know what I would do. Brining a child into the world means committing to unconditionally love someone you haven't even met yet -- that is a terrifying vulnerability, when you think about it. To be sure, the overwhelming majority of the time it goes fine -- most people, whatever foibles and missteps they might make as part of a normal human existence, don't do anything so egregious as to provoke this sort of crisis. But if it goes wrong, boy does it go wrong.

As one moves away from the most intimate circles -- parents, spouses, siblings -- the obligation to be clear-eyed about the wrong waxes, while the indulgence we might concede for one who loves the perpetrator probably fades. But in any relationship of love -- familial, romantic, platonic, even political -- it hurts when someone or something you love does something objectively cruel, shameful, or even monstrous. It hurts because it is wrong, and it hurts because nobody's empathic attention will be focused on you, and it hurts because you know at some level that this loneliness and abandonment isn't even unjust, and it hurts because all of that means that even trying to articulate this sense of loneliness and abandonment and pain is inevitably going to be viewed as trying to wrongfully redirect care and concern from those who need and deserve it more.

What a terrible cruelty to endure.

Eight Good Deeds

As many of you no doubt have heard, a Rabbi by the name of Shlomo Noginski was stabbed the other day outside a Jewish community center near Boston. A suspect has been arrested and Rabbi Noginski is, thankfully, recovering.

At a rally in his support, one of the Rabbi Noginski's colleagues urged people to respond to this horrible attack with eight good deeds -- one for each time the Rabbi was stabbed. I thought it was a great sentiment (if admittedly just a touch macabre), and decided to donate, in Rabbi Noginski's honor,  to eight organizations pursuing justice in the United States and around the world.

Below are the organizations I donated to. I invite you to join me, whether with these organizations or others that pursue projects meaningful to you.

***

The Anti-Defamation League: Still without parallel as a force fighting extremist hate and bigotry around the world.

Hebrew Immigrant Aid Society: One of the premier immigrant rights organizations in America. Their slogan -- "We Used to Take Refugees Because They Were Jewish. Now We Take Them Because We're Jewish" -- makes me swell with pride.

NAACP Legal Defense Fund: With the Supreme Court dealing yet another blow to voting rights in America, the NAACP LDF's work could not be more urgent.

OneVoice: For years, they've been doing the hard, thankless work building grassroots support within both Israel and Palestine for peace and justice based on mutual respect for the rights and dignity of all persons in the region.

Be'chol Lashon: One of many great organizations supporting Jews of all hues and backgrounds, and which works tirelessly to ensure that the Jewish community is an equitable place for everyone in our community.

Harlem Lacrosse: A wrap-around support network for young people in five cities (including Boston) across America -- it's great (and not just because my wife helps run it!).

Operation Hope: The effort to provide economic opportunity to communities underserved by contemporary capitalism is the "silver rights movement" (and not just because my brother helps run it!).

Stop AAPI Hate: The attack on this Rabbi is one instance of a larger wave of racist violence which has afflicted many communities across the country, and we're stronger when we fight it together.

The Meaning of Haj Amin al Husseini

Daniel Schwammenthal has an interesting column up about a German exhibition that was to note Nazi sympathy in the Arab and Palestinian community (expressed notably, but not uniquely, by Haj Amin al Husseini), as part of a broader exploration of "The Third World in the Second World War". The exhibit was canceled, the column indicates, because the curator of the center did not like the indication of potential Arab complicity in the Holocaust.

Norm Geras takes issue with the opening of the piece, which reads as follows:

One widespread myth about the Mideast conflict is that the Arabs are paying the price for Germany's sins. The notion that the Palestinians are the "second victims" of the Holocaust contains two falsehoods: It suggests that without Auschwitz, there would be no justification for Israel, ignoring 3,000 years of Jewish history in the land. It also suggests Arab innocence in German crimes, ignoring especially the fascist past of Palestinian leader Haj Amin al Husseini, who was not only Grand Mufti of Jerusalem but also Waffen SS recruiter and Nazi propagandist in Berlin.

Geras responds:

It is true that Israel's existence has a justification that is independent of the Holocaust (though it is not inconsistent with the justification due to the Holocaust). But Arab and Palestinian collaboration with Nazism has no bearing on what the Palestinians lost or what they have suffered because of Israel's creation. To maintain the contrary is to make every Palestinian responsible for Haj Amin al Husseini. It is also to treat the existence of Israel as a form of punishment - punishment on account of Husseini and other Arabs who were complicit with Nazism.

I think Geras is mistaking what's going on here. It is quite true that whatever role the Palestinian political community did or didn't play in the Holocaust has nothing to do with what the Palestinians have lost in this conflict. But Geras is wrong to say that noting the vibrant enactment of Arab anti-Semitism in that time period is to treat Israel like a punishment. It is true that anti-Israel zealots like Mahmoud Ahmadinejad try to promote that framing as a turn against the Holocaust-justification, so they can then say that Israel should have been established in Germany. But they miss the point because, as usual, they categorically refuse to center the focus on Jews as moral beings of worth and dignity. It makes the center of the story the Germans, (one of) the perpetrators, rather than the Jews, the victims.

When people cite the Holocaust as a reason for creating Israel, they're not saying Israel was a punishment against perpetrators. They're saying Israel was protection for a victimized group, with the Holocaust being a particularly dramatic instantiation of that victimization. Noting the eager willingness of many Arab leaders to partake and promote in that atrocity demonstrates that the need for this shelter did not exist merely in Europe, that essentially where ever Jews lived -- be it Europe, North Africa, or the Middle East -- the prevailing powers could not be trusted to protect Jewish lives. Israel was established, fundamentally, because the rest of the world had proven itself impossible to trust. Haj Amin al Husseini is a demonstration that this was as true of the local Arab political class as it was of the contemporary European political class.

As I've written before, when dealing with sustained and ingrained systems of discrimination, like racism or anti-Semitism, I'm less interested in "getting the bad guys" than I am in making sure that the disadvantaged group has access to what they need in order to live fulfilling lives in an egalitarian social sphere. Sometimes, that means retribution against discrete perpetrators -- I don't want to minimize that -- but it is a severe misunderstanding of justice to think that's all that it means. It is only when we have these blinders on that restrict "justice" to "punishment" that we view the justice of establishing Israel as making sense only within a frame of punishment, rather than in a frame of securing equality and equal global citizenship.

It doesn't have to be about punishment. Indeed, it shouldn't be about punishment. It's about giving Jews what they need in order to be equals in global society.

Via.

The Not Duke Lacrosse Case

In the aftermath of the Duke Lacrosse fiasco, one of the points I made was that the same thing that happened to those players happens to countless criminal defendants across the nation, only they don't get the benefit of constant media attention leading to their rightful exoneration. They just get ignored. It's a harsh reality check to all those harping on how the Duke kids were targeted in a sort of reverse discrimination power play.

The story of Eric Frimpong, a soccer star for UC-Santa Barbara (and Ghanaian immigrant) presses the point. Like the Duke kids, the evidence supporting the rape charge against him was scant. Like the Duke kids, the DNA evidence pointed to other suspects. Unlike the Duke kids, that didn't stop the DA from bringing his case to trial. And unlike the Duke kids, Frimpong was convicted (by an all-White jury) and sentenced to jail, where he sits today.

(Via AAB)

Nullification Returns

Iowa Republicans simply want to ignore the Iowa Supreme Court's ruling striking down the gay marriage ban:

“If I have the opportunity to serve as your next governor,” Bob Vander Plaats told a crowd of about 350 people at a rally, “and if no leadership has been taken to that point, on my first day of office I will issue an executive order that puts a stay on same-sex marriages until the people of Iowa vote, and when we vote we can affirm and amend the Constitution.”
[...]
Co-founder of Everyday America, Bill Salier, told the crowd that state lawmakers need to thank the Supreme Court justices for their opinion but say it’s merely opinion and the law is still on the books.

Salier said: “(Lawmakers) can face down the court and say, ‘We passed DOMA, the Defense of Marriage Act. You claim that it is stricken. And yet unless some magic eraser came down from the sky, it’s still in code.’”

Anyone who knows a pittance about legal doctrine knows this is flagrantly illegal. Whether that includes any Republicans is an open question.

Speaking of nullification, ousted Alabama Supreme Court Chief Justice Roy Moore -- who rose to prominence by attempting to defy the federal courts and keep his 10 Commandment monument on courthouse grounds -- may take another crack at Alabama's governor's mansion.

Evil Inc.

Suppose there is an organization: Let's call it Evil, Inc. Unsurprisingly, given the name, EI does evil things -- terrorist attacks, human trafficking, drug running -- the whole gamut. There is a mole inside Evil, "A". Wanting to throw his superiors off his trail, he implicates "C" -- another henchman -- as the mole, and C is taken away and brutally tortured and executed.

Question: Am I right to feel like this is unfair to C, or is my sense of fairness going hyperactive again? Does it matter what role C had to play in the organization (someone directly doing bad acts, a mid-level managerial bureaucrat, or a menial worker like a janitor)?

Stevens Prosecutors to be Investigated

The Federal judge who presided over ex-Sen. Ted Stevens (R-AK) trial has set aside the verdict and will pursue contempt charges against the prosecution team.

“In nearly 25 years on the bench, I have never seen anything approaching the mishandling and misconduct that I have seen in this case,” Sullivan said. “Again and again, both before and during the trial in this case, the government was caught making false representations and not meeting its discovery obligations.”

No objection from my end. It was clear from the start that this prosecution team was the gang that couldn't shoot straight, and I'm as pissed as anyone given that it cost the United States the conviction of a man who I remain convinced is guilty of corruption. The only thing I find unfortunate is that I doubt this precedent will extend to cases of prosecutorial misconduct in situations where the defendant is not politically well-connected. Ted Stevens deserves justice and a fair trial just as much as any other accused criminal, but I worry the upshot of this move will not be to increase fairness but persuade DOJ attorneys to focus their shenanigans on defendants who don't have the pull to fight back.

Another Bit of Texas Mayham

The Faculty Lounge points me to a horrifying story involving Texas appellate court judge Sharon Keller. Basically, what happened was this: Michael Richards was on death row, about to be executed. But the day before his scheduled execution, the US Supreme Court accepted cert in Baze v. Rees, which threw into question whether lethal injection was "cruel and unusual punishment" under the 8th amendment. So Richards' attorneys spent all day crafting and filing an appeal -- and then their computer crashed.

The court was scheduled to close at 5 PM. So Richards attorneys went to Judge Keller, presiding judge of the Texas Court of Criminal Appeals, and asked if she would keep the court's clerk office open 20 minutes beyond closing time so they would have time to print and deliver their petition. Judge Keller refused to do so, even though she was not the judge assigned to Mr. Richards' case. Indeed, the judge who was assigned to the case was present in the court building, and would remain so along with other judges on the court who stayed well after 5 PM in anticipation of an appeal that never came (because it was not allowed to be filed). Judge Keller never consulted with any of the other judges.

Michael Richards was executed the next day.

After an ethics complaint against Judge Keller went nowhere, a Texas legislator has introduced impeachment proceedings against her. These likely will go nowhere either -- Judge Keller is a Republican, and so are the majority in the House and the Senate.

But her conduct was a gross abdication of judicial duty, one that displays a shocking indifference to justice and human life. She deserves to be punished -- even if that punishment can only come in the form of publicizing and memorializing her misdeeds.

Soak the Poor!

After winning a lawsuit seeking to hold it responsible for the shooting deaths of several Nigerian villagers, Chevron is firing back with a request for legal reimbursement:

Chevron Corp., which prevailed in a human-rights lawsuit seeking to hold it responsible for the shooting of Nigerian protesters at an oil platform, is seeking nearly $500,000 in legal costs from the villagers who brought the suit.

Chevron's claim for reimbursement, filed in federal court, includes $190,000 in copying charges. The San Ramon-based company, which posted a record $23.8-billion profit for 2008, says it is entitled to the money because a nine-member jury decided in the company’s favor in December.

Loser pays is not an uncommon legal principle. But here it is rather clearly extortionary. Not only is the sum of money being asked for here entirely out of reach for the plaintiff-class, but the tenor of the entire proceeding (as one of the plaintiff's attorneys put it) is that the request is "punitive" and a "shot across the bow" for other potential plaintiffs who might be inclined to bring similar human rights actions against large corporations. If the risk of trying to vindicate legal rights is bankruptcy, legal rights are worthless. Chevron, it seems, views this as a good thing.

It's Tough Being Innocent

Dan Solove notes an enduring and tragic paradox of our legal system: the innocent are punished more harshly than the guilty. Why?

1. The federal sentencing guidelines and sentencing guidelines in many states provide for reductions in sentences for "acceptance of responsibility." The innocent defendant, who refuses to admit to the crime, will not receive this benefit.

2. An innocent defendant might often refuse to accept a guilty plea deal. When the innocent defendant defends his or her innocence at trial and gets wrongly convicted, that defendant will invariably receive a much higher punishment than that proposed in the plea deal.

3. An innocent defendant, by not admitting to the crime, might hurt his or her chance for an early release from prison.

Solove recommends eliminating "acceptance of responsibility" as a factor in sentencing or parole, and setting guidelines to limit the disparity between plea deals offered and the sentence pursued at trial. What do you think?

Stigma as an Instrument of Protection

In the comments to this LGM post, folks are having fun noting the apparent inconsistency between how conservatives normally deal with the topic of rape ("It's largely a myth! Women want sex then cry 'rape' to avoid the consequences!"), and the discourse surrounding the Supreme Court's recently announced decision barring execution of child rapists (specifically, Louisiana Governor Bobby Jindal's signing into law a bill which would castrate all sex offenders). One of the points raised by "Ugly in Pink" struck me in particular:

[J]uries will never want to convict anyone with this punishment in place out of either compassion or worry they've got the wrong guy. Rape convictions will plummet, and it won't effectively be a crime anymore unless you're forcibly raping a baby who wasn't too much of a slut. Which is exactly what they want.

Now, in all honesty, I don't think there's a huge contradiction in the child rape case particularly, because I don't think conservatives as a rule apply their standard rape apologia -- namely, the bitch really wanted it after all -- to children. But in general, I think this is a very insightful point, and gets at an interesting paradox in our discourse around certain horrible injustices -- namely, sometimes, the act of extreme stigmatization can actual help protect the unjust behavior from further reform.

One of the things I've noticed with regards to rape discourse is how so many people want to treat it differently from other violent crimes. Most of the reasons for this are rather bogus: it's no more he-said/she-said than many other legal problems courts deal with daily; there isn't a particularly strong incentive for women to lie about the crime being committed, and we don't display the same default cynicism towards accusers in other cases where the incentive to lie is far greater (insurance fraud for robbery and arson, for example). But one argument stands out: that the accusation of rape is so uniquely stigmatizing to the reputation of the accused that we must be extra-vigilent to guard against false reports.

And the premise -- that the accusation of rape is uniquely stigmatizing -- strikes me as surprisingly accurate. Despite the dearth of effort focused on providing justice to actual rape victims (not to mention prevention efforts), the abstract language we use is one of virulent condemnation -- as in Gov. Jindal's overwrought castration plan. But, far from being in tension with the anemic concrete protections for victims of rape, the stigmatizing rhetoric actually helps sustain a climate in which citizens are hesitant to take action. As Ugly in Pink says, raising the rhetorical heat to such high degrees makes jurors reluctant to convict, particularly when that means no choice but assigning draconian penalities.

Now one might say that these crimes are truly repugnant, and thus deserve the highest depths of our condemnation. And I'd agree. But consider another case: the controversy over so-called "gray rape." Many people, including many women, have been resistent to use the rape label (hence the "gray" appellation), specifically because they don't see what happened to them as being commesurate with the ultimate evil that is rape. The intense stigma attached to rape means that we are naturally hesitant to apply the label to all but the most extreme cases, and that has the effect of shielding a great number of violent sexual assaults from being brought to justice.

This plays into the previously blogged upon "just world" theorem, which basically describes the psychological preference (or need) most people have to believe the world is just. Given that constraint, it is impossible to believe that a given act X is a) horrifyingly, unforgivably evil and b) common and widespread. Despite Arendt's protest, we cannot truly believe that evil is that banal. The reconciliation comes by redefining X, usually by restricting it to a narrow enough band of cases so that it no longer can be seen as omnipresent.

In this way, extreme stigmatization of injustice acts as a ward for it. By virtue of our strident condemnations, we are simultaneously signaling that the events in question are abhorrent as well as aberrant. They are exceptions. They are so far beyond the ethical standards of society that they merit this extreme reaction. The implication is that the object in question cannot, by its very nature, incorporate any mainstream elements, for that would undermine the very lifeblood of the stigma.

Racism is another example of stigma operating to reify, rather than undermine, an oppressive force. Prior to the Civil Rights revolution, racist activities were common and widespread, but they were not considered to be evil. After the civil rights revolution, we began to come to terms with the magnitude of the injustice that racism represented. But to recognize that while still accounting for its pervasive presence in American society would force us to consider the possibility that our system might be fundamentally unjust ("to the bone", as Jerome McCristal Culp might have put it). Society can't function when the vast majority of persons are considered implicated in supreme evil. If I can't associate with a racist, and everyone is a racist, I can't associate with anyone. This state of affairs is untenable. So racism got redefined to only mean the most overt, shocking, horrifying aspects of White supremacy, and the rest gets a free pass.

How do we resolve this dilemma? I'm on the record as favoring lowering rhetorical heat in order to create space for more public action (in other words, I want to diminish the sentiment that all race-based wrongs, or (yes) all sex crimes, are "horrifyingly, unforgivably evil."). This doesn't mean that I believe nothing qualifies for fiery, virulent condemnation -- a lynch mob or a child rape certainly does. But if (and because) we do need to preserve our rhetorical cannons for those truly horrible events, that then impresses the need to develop a more vibrant, flexible vocabulary for discussing these sorts of wrongs. If "racism" is to mean "unforgivably evil", then we need words that describe racial injustice that do not have that connotation -- for there are acts of racial significance that are neither unforgivable nor justly ignored.

Should We Allow Prisoners To Vote?

A few days ago, I wrote a post on what I termed "quiet injustices" -- things that pretty clearly implicate questions of ethics and morality in our society, but yet rarely seem to bother us. My main example was D.C. disenfranchisement. Another is felon disenfranchisement (after their sentences have been served). Neither, I think, is in any remote way justifiable, and neither are particularly salient political issues.

But the more I think about it, the more I question whether even disenfranchising felons while they're in prison is justifiable. So, I've decided to spend some time exploring that issue.

In the field of legal philosophy, there are two primary justificatory models for why we can punish criminals. The first is "utilitarian"; we punish people because it leads to better social outcomes when we do. Deterrence, for example, is a utilitarian consideration, as is preventing the criminal from committing more crimes. The second model is "retributive"; essentially, giving criminals their just deserts. Those who commit crimes deserve to be punished (to varying degrees, depending on the crime). But the flip side of the retributive model is that you can't punish people more (or less) than they deserve, even if society would benefit (from the deterrent aspect, say). Hence, the two models are somewhat in tension with each other. Sometimes, society as a whole would be better off if a criminal was punished more (or less) severely than they "deserve". In such situations, we are forced to pick which model we prefer. Hence, I'll analyze prisoner disenfranchisement under both models, then examine several additional pragmatic considerations outside punishment theory that might advise against allowing prisoners to vote.

I. The Utilitarian Model

The utilitarian position forces us to weigh the benefits of prisoner disenfranchisements against its costs. We'll start with the costs, which should be obvious: denying someone the franchise is an extraordinarily serious breach of normal civic procedures. The harms are aggregated when it is a particular class of individuals (in this case, prisoners) who are so disenfranchised, because whatever interests they have as a class will be erased from our collective deliberations. And prisoners do have several exceedingly important interests that deserve hearing: combating prison rape and prison reform more generally, the availability of reintegration programs for non-lifers, even the simple mechanisms to prevent family dissolution during imprisonment. Moreover, prison disenfranchisement leads to the 0/5 compromise wherein mostly minority prisoners are transferred to White locales, who then gain increased voting power without additional voters. This creates a perverse incentive to deliberately jack up the incarcerated population, particularly via laws which target minority populations, and has the effect of creating unjustifiable asymmetries in political power, privileging White communities over communities of color.

The benefits of punishment in general, in the utilitarian model, are those of deterrence, and pre-empting potential future criminal activity by the imprisoned person. But outside cases where the crime itself is election-related (and in those few cases, I think disenfranchisement is justifiable), neither seems to apply. Allowing prisoners to vote would not give them any more opportunity make it any more likely that they will commit more crimes. Indeed, if anything it may make it less likely: insofar as criminal activity is positively correlated with marginalization from general social practices, integrating people into socially mainstream acts (such as civic participation) should be a bulwark against recidivism. Deterrence, too, to be inapplicable -- I have trouble imagining the prospective criminal for whom prison is not a deterrent, but loss of voting privileges is. Whatever marginal gain (if one exists at all) in deterrent force disenfranchisement offers is more than outweighed by the aforementioned costs.

II. Retributive Model

The retributive model allows for punishment as "just deserts" for criminal activity. This, obviously, is a bit fuzzy: what is "just deserts"? Obviously, we can recognize the poles: death for jaywalking is not just deserts, nor is a fine for murder. But there still remains the "how many grains of sand make a pile" problem. The line at which a punishment becomes too severe or not severe enough is blurry and contested.

However, one thing that can aid us in the present discussion is that we have, by and large, at least a metric for measuring the relative severity of punishments: prison. We can debate which crimes are the worst, and we can debate where each crime should specifically be placed on the spectrum. But we do agree that, abstractly, the worse the crime, the longer you (deserve to) spend in prison. And in the public imagination, that sentence is exhaustive of just deserts. Simply put, I think that the decision on imprisonment length alone is the reflection of what we imagine just deserts to be.

Consider a crime that we all agree should, in our status quo system, be punished by 20 years in jail. Imagine now that we agree that the prisoner should be enfranchised while he's serving his sentence. Do we now think the sentence should be 30 years instead of 20? If we do not believe that (and I don't think most people do), then we're implicitly saying that enfranchisement/disenfranchisement is not part of our internal weighing mechanism for determining just deserts. And if it doesn't meet that threshold, then under the retributive framework it is not a punishment we can legitimately impose on offenders.

Of course, one might take the opposite stance on my hypothetical, and say that both factors (enfranchisement and sentence length) are relevant considerations for measuring just deserts. At that point, the question shifts to whether disenfranchisement is an inherently unjust punishment. For example, if in the previous hypothetical we replaced the variable of "enfranchisement" with the variable "tortured daily", I might agree that we should adjust the sentence length downward to make up for the increased severity of the punishment. But prior to that I'd hold that torture is not a just punishment -- inherently it can never be considered part of just deserts, because it represents a extreme violation of human dignity. The question is whether voter disenfranchisement occupies a like category. I think that there is a solid argument that it does. Voting is an absolutely bedrock, fundamental part of being a person in a democratic citizenry. To be barred from voting is to be rendered a non-person in our political community. Whatever else prisoners are, I think they remain persons and citizens. They are not "men without countries", and they should not be treated as such.

This, I recognize, is more of a judgment call. But particularly since I believe we can affect just deserts via imprisonment alone, without disenfranchisement, I do not believe we have good grounds to add disenfranchisement as a punishment options outside of very special circumstances (where the felon's crime was election related).

III. Pragmatic Considerations

Having dealt with the question at a level of theory, the final issue is whether there are any pragmatic bars that would advise against allowing prisoners to vote. I think a few present themselves, but they do not strike me as sufficient to outweigh the arguments laid out above.

The first potential problem is both the most intuitively obvious (to me, anyway) as well as the most easily dispatched. That is that prisoners, already having demonstrated themselves to have anti-social tendencies, will vote for policies that sanction their sociopathic activities (i.e., all the robbery inmates will get together and vote to legalize robbery). This strikes me as an unfounded fear, in part because I don't actually think most robbery convicts actually believe that robbery should be legal, but primarily because there aren't enough prisoners to accomplish such an end. Prison enfranchisement is important because it allows prisoners to form political alliances with like-minded interest groups who also are concerned with their problems. But while there are voices on the outside who care about the problem of prison rape, there are very few, I'd imagine, which believe we should legalize robbery. The only way this could be circumvented is if prisoners actually became a democratic majority, in which case I'd argue we have bigger problems on our hands. Particularly since I think prisoners should still be considered "residents", for voting purposes, of their hometowns, and not where the prison is located, it strikes me as unlikely that prisoners will ever gain a working democratic majority.

The second potential problem is that of independent agency in a prison environment. Prison is a institution of power and control, both among prisoners, and between the guards and the prisoners. But voting demands the free exercise of one's own autonomous faculties. This creates tension. But I think the tension can be overcome. The biggest risk for intimidation comes where the prisoners are all voting in the same jurisdiction. But where the prisoners are spread out of many jurisdictions (because they hail from different hometowns), the potential for adverse influence dissipates. It doesn't go away entirely (statewide and national elections will see significant overlap in interests), but then again, the potential for voter intimidation always exists anyway. So long as ballots are secret, the risk strikes me as minimal.

The third potential problem is how to organize an election in prison. Prisoners should be given access to news, so they can make informed decisions (I do not think utter isolation from current events is justified by either utilitarian or retributive considerations). And since I envision the prisoners as being registered in their home jurisdictions, rather than residents of whether the prison is located, the election itself would be standard absentee ballot fare.

IV. Choice of Punishment: A Middle Ground

A middle ground option, alluded to early, that exists within the retributive framework would be to give prisoners an option of taking a reduced sentence that includes disenfranchisement, or a lengthened sentence that allows one to vote. But that would entail figuring out an exchange rate between enfranchisement and time-served (how many years of a sentence is the right to vote worth?). Pragmatically, it is simpler to use prison length on its own as a metric of just deserts. Moreover, insofar as a just democratic polity incorporates (to the greatest degree possible) the voices of the entirety of the citizenry, we should promulgate policies that encourage people to vote, and be particularly wary of discouraging voting amongst particular classes or groups of the citizenry. But since I suspect few prisoners would choose voting rights over a reduced sentence, adding voting rights as a punishment consideration would cut against the benefits of inclusion that I've articulated.

V. Conclusion

So in conclusion, I believe that it is difficult to justify disenfranchising prisoners, under normal circumstances, under either a utilitarian or a retributive model of punishment. Furthermore, the pragmatic arguments against prison voting are similarly lacking in merit. Meanwhile, allowing prisoners to vote would benefit society by making it more democratically legitimate, by including pertinent voices on deliberations of great social import, and even by potentially reducing recidivism rates.

Quiet Injustices

There are many arguably unjust aspects about American society. Some of them are quite hotly debated in the public arena, but others seem to maintain themselves more quietly. For example, I consider the denial of marriage equality to gay and lesbian citizens to be a grave injustice, but it certainly is not absent from our public deliberations about what it means to live in a just America. However, other topics which seem to equally implicate our fundamental values, such as felon disenfranchisement or the status of American colonial possessions (e.g., Puerto Rico, Guam, the Northern Marianas Islands, and yes, the District of Columbia), manage to exist without being the subject of intense public debate.

I say this because, despite being of obvious moral and ethical import, I've yet to read a convincing justification for the current status of the District of Columbia. The last time the topic came up in Congress, the main argument deployed against it was constitutional, not moral. It's not that I don't think constitutionality matters, but it does raise the question -- why not amend the constitution? The point is, there's really no argument that the status quo is radically undemocratic vis-a-vis D.C. (and Guam and American Samoa and the Marianas and all our other colonial possessions). But this is not considered to be a "problem". At least with gay marriage, which I also think is a rather clear case of definitive injustice, the topic is recognized as being within the realm of politics and debate. But nobody is grilling our presidential candidates about whether they support Puerto Rican representation. By and large, even civic-minded voters don't have this issue at the front of their minds. There is no groundswell of outrage that we're depriving millions of American citizens of their voting rights for no discernible reason.

Why not?

Justice and Assumed Relationships

From Iris Marion Young, Inclusion and Democracy (Oxford: Oxford UP 2000):

Onora O'Neill...argues that people (and perhaps some other creatures) who dwell together in the ways I have discussed stand in relations where principles of justice ought to apply. An agent stands in relations of justice with all those others whose actions that agent assumes in the background of his or her own actions. In going about our own business we assume that many others will or will not do things whose institutional and causal consequences can affect our lives and actions, and we likewise implicitly assume our actions as institutionally and causally connected to the lives and actions of others. On O'Neill's account, people have obligations justice to others insofar as and on account of this fact that they assume the specific agency of others as premisses for their own action.

The citation to O'Neill is Onora O'Neill, Toward Justice and Virtue (Cambridge: Cambridge UP, 1996), ch. 3.

Criminal Production System

This was the post I meant to write before I got distracted by post-structuralist crime busters.

The end of Mr. Sanchez's post reads as follows:

It's frequently noted that a perverse consequence of our prison system is that we end up placing petty criminals in an intensive training program for serious crime. But more than that, we reinforce their identity as criminals.

Ezra Klein follows up to say:

Look: Incarceration can serve a valuable purpose in segregating dangerous individuals from the wider society. That incarceration should be handled humanely and wisely, of course, but it has a purpose. For the millions and millions of non-violent offenders, though, it serves a very different purpose. It abandons them to a realm where violence, and threats, and intimidation, serve as your only security. And so those characteristics are honed, and amplified. It renders them unfit for many jobs, and less marriageable. Abuse and rape at the hands of other prisoners and prison guards can leave the inmate psychologically damaged and deeply rageful.

This is what our system of justice does: It takes the unlawful and makes them more violent. It takes criminals and makes them worse, reducing their future options, encouraging them to become more physically brutal, cultivating their marginalization from society.

Agreed, agreed, agreed. I have no trouble sending murderers away to jail. For life, or for a long, long time. But there is something deeply, fundamentally wrong with how we treat non-violent offenders, especially non-violent drug offenders. We come down harder on crack users than we do on rapists half the time. And we essentially are guaranteeing that these people graduate into lifelong criminal activity, because they have no other option.

We have to come up with another route. At this stage in the game, if I were sitting on drug trial jury (for anybody who wasn't some sort of kingpin), I would be sorely tempted to nullify regardless of guilt or innocence. It's gotten out of hand. I'm open to the idea that drug use needs to be punished. But right now, the punishment doesn't fit the crime, the punishment isn't stopping the crime, and the punishment is likely causing more, worse crimes.

Today in Tonedeaf

The United States is trying to deport the wife of missing US soldier Alex Jimenez. Jimenez was serving in Iraq when his platoon was attacked by insurgents and he was kidnapped. He had applied for a green card for his wife, Yaderlin Hiraldo--the act of which alerted US authorities to her immigration status. Incredibly, the US is refusing to grant her a hardship wavier, meaning that she could be deported as her husband is likely being tortured (if he is not already dead) for fighting for America.

"I can't imagine a bigger injustice than that, to be deporting [the wife of] someone who is fighting and possibly dying for our country," [attorney Matthew] Kolken told WBZ.
[...]
"She may never be able to return to the United States, to visit her husband's grave if necessary," Kolken said.

Their third wedding anniversary was last week.

An immigration judge has been sympathetic, putting the case on hold since Alex Jimenez was reported missing. But her case is in limbo, and her future in this country uncertain.

She is currently with family members in Pennsylvania.

Sen. John Kerry, D-Mass., has asked federal immigration officials not to deport Hiraldo.

In a letter to Homeland Security Secretary Michael Chertoff, Kerry said the grief and stress being felt by Hiraldo should not be compounded by worries about her immigration status.

"Under no condition should our country ever deport the spouse of a soldier who is currently serving in uniform abroad," Kerry said. "I feel even more strongly in this case, given the terrible uncertainty surrounding Army Specialist Alex Jimenez."

In his letter, Kerry urged that no action be taken against Hiraldo while her husband remains missing.

"I believe this is a very real test of our government's compassion for a military family which has already made enormous sacrifices for the United States," he wrote.

Via Shakes, who noted that the only reason this deportation is happening is because a US soldier wanted to do things the legal way. Unbelievable.

Nice Guys Finish....

Jonathan Adler comments on the apparent upcoming confirmation fight over D.C. Court of Appeals nominee Peter Keisler:

In my opinion, Keisler deserves confirmation on the merits. I also believe Senate Democrats should begin to consider how they would like Democratic judicial nominees to be treated in the future, and set an example. This would be a welcome step toward a de-escalation in judicial nomination fights -- a step the next President (whomever he or she is) might appreciate.

I express no opinion as to whether Judge Keisler should be confirmed on the merits. However, there is a significant flaw in the "set an example" point. It assumes that Republican treatment of a future Democrat's nominees will in any way be influenced by how Democrats behave now.

Even were I to believe that a gesture of good faith by Democrats regarding judicial confirmations would be met with future "de-escalation" by the GOP, there is no way Senate Democrats believe it. They have been alive over these past few years of Republican control, after all. I suspect they think that treating Bush's nominees with respect and deference will yield much the same results as adopting slash-and-burn tactics: either way, Senate Republicans will show no restraint or fairness towards a Democratic President's nominees.

Does this mean I think that Democrat's should just get their licks in while they can? Not necessarily. But it does mean that if, for any reason, they think that Keisler will be the type of judge they don't want on the D.C. Circuit, they might as well block and delay him. It won't change the future any--and to be blunt, it's the GOP who will need to make the first move of good faith if the poisonous atmosphere they've created is going to break.

Good Thing They're Colorblind

The conservative view of race, we're told, is color-blind. They don't look at race. They don't examine race. And this, we are told, is the way by which to foster in a new era of racial equality--a world where race doesn't matter.

Interesting, then, that as this conservative administration has (color-blindedly, of course) restaffed the Criminal Section of the Civil Rights Division of the Justice Department, they've failed to hire a single Black attorney since 2003. Not one. And because of that, there are but 2 African-American attorneys in this part of the DOJ out of 50--the same number as in 1978, when the department was half its current size.

Now, you might say that this was the tragic result of Republicans merely looking to hire the "most qualified." African-Americans, I'm to believe, simply are inferior attorneys compared to their White peers (but this does not in any way implicate a racist mentality among the evaluators--no sir). Whatever--when the skew is this blatant, the meritocracy objection is facially ridiculous. But regardless, the department actually seems relatively unconcerned with merit: filling its spaces with partisan hacks is the top concern.

I've written previously about how political considerations create a particular cognitive dissonance for conservative adherents to the color-blind philosophy. Aside from the empirical observation that "color-blind" policies miraculously seem to replicate the same distributional outcomes as their white supremacist ancestors, the big problem is that conservatives are willing to jettison merit--and even color-blindness itself--upon the altar of the political interests of a largely White male party. I have no doubt that if Bush's DOJ saw a Black applicant who was willing to carry water for their racially regressive policies in the Civil Rights Division, they'd jump at the opportunity, because he would be the ultimate in political and racial expediency. That's color-consciousness too, but of a perverted and twisted kind--it recognizes identity politics only to the extent they can exploit them.

It's wrong, and hopefully a new, Democratic DOJ will be able to restore and rebuild the department from the decimation it is receiving at the hands of Bush and his lackeys.