(The following short essay was originally written for a prosecution clinic class. I re-discovered it while digging through my archives in preparation for writing a thesis on the ethics of plea-bargaining. I thought it might be worth posting here.)
Suppose a defendant pleads guilty to a crime, and that the judge has some discretion in sentencing. Should a prosecutor recommend that the judge impose a lighter sentence on the defendant than would otherwise have been imposed solely for the reason that the defendant, by pleading guilty, has saved the state considerable resources by sparing it from trial? Conversely, should a defendant who insists upon going to trial where conviction is likely have a relatively heavier sentence imposed solely for the reason that the defendant, by insisting on a trial, has cost the state considerable resources in a trial?
It is clear to me that many stakeholders in the criminal justice system (prosecutors, police officers, judges) would affirmatively answer both of the above questions.
I think this answer is against justice. Given that defendants have a procedural right to a trial, why should a defendant be penalized for exercising that procedural right? Why should the state's cost of trial fall on him particularly, in the form of a higher sentence?
You might say: "Because the defendant has the power to avoid the trial by pleading guilty, and where the defendant recognizes the probability of his conviction anyway, it's just wasteful for him to make the state endure the cost of a trial." But if blame follows directly from causal ability to avoid a trial in this way, then the state is also properly blameworthy for "causing" the trial, insofar as it could have avoided the trial simply by not arresting and charging the defendant.
Moreover, this sort of sentencing factor has nothing to do with the just deserts of the defendant for the crime he committed, as that crime, nor does it have anything to do with other goals of criminal justice, like denunciation, rehabilitation, and deterrence. And surely nobody deserves punishment merely for having cost the state resources in virtue of exercising a right: we don't punish social security recipients, welfare recipients, those who call emergency services for a legitimate reason, or licensed users of state roads, even though all of these people impose costs on the state in the exercise of a right.
So, sentencing a defendant more harshly merely because that defendant caused the state to go to trial is simply unjust and inconsistent with our own deeper principles. It's punitiveness without an appropriate object, engendered perhaps by a dislike for whatever bad thing the defendant has in fact done, and a failure to separate that bad thing, whatever it is, from the legitimate exercise of a right which, like many other legitimate exercises of rights, nevertheless has a social cost. Conversely, justice is not served by "easing up" on defendants merely because, in pleading guilty, they have saved state resources, nor is justice served (conversely) by imposing extra punishment because a defendant has failed to plea.
Monday, October 18, 2010
Saturday, October 9, 2010
Why PZ Myers deserves his audience
A brilliant call for intelligently confrontational atheism can (and should) be read here. There's a little bit at the end of the essay about the meaning of life which may not be worth wholesale subscription, but overall, the piece is well worth the read.
Friday, October 1, 2010
Dealing with poor people across the world: a modest proposal
It might not have escaped your notice that large swaths of the world are desperately poor. Haitians, for example, had an average per capita GDP of less than $1000 per year--and that was before the devastating earthquake earlier this year. Now granted, $1000 in Haiti goes further than $1000 almost anywhere in the United States. But it doesn't go so much futher that Haiti can't still be truthfully described as desperately poor, with a host of lagging social welfare indicators.
Haiti is just one example of a desperate place. In the face of such poverty worldwide, it is hard not to feel badly, and not to want to do something. Of course, "feeling badly" and "wanting to do something" doesn't mean that we actually will do anything meaningful, either individually or collectively. Take myself for example: as badly as I feel, I'm not actually going to do anything for the impoverished parts of the world that would involve abandoning the project of ruining my credit in pursuit of various forms of higher education. And as badly as we all undoubtedly feel, we have only a limited amount of energy with which to insist that governments (including our own) live up to their aid promises (as to Africa or to Haiti).
So anyway, when it comes to solving the world's poverty problems, feeling pity apparently doesn't work. Guilt doesn't work either; promises of help by rich countries to desperately poor places are routinely broken. If anything is clear about foreign aid, it's that people in rich countries are by-and-large incapable of even feeling guilt with regard to the plight of people in poor countries, and that after repeatedly promising and failing to deliver aid to the desperate people of those countries. We have, no doubt, better things to do than feeling guilty; and feeling guilt is uncomfortable in ways that feeling pity isn't.
The imperialist take-over of the world's poor spots might work, the idea there being one of imposing proper functioning institutions on those countries. However, despite all the reasons David Brooks could offer for the imperialist option--and despite my own helpful efforts to make his proposal seem more respectable than it probably was--it is time to admit that that proposal has stalled and is going nowhere, probably in light of the great expense to rich countries.
So, it's time for another proposal, namely this: the rich countries of the world ought to let the poor people of the world immigrate freely. To the extent that poor people would immigrate, that represents their judgment that doing so is a way of materially improving their condition; and it is perhaps safe to presume that they would be in a position to know. (At any rate, if they don't know their own interests, surely they have only themselves to blame.) Since we can't get a panacea, we might settle for making things systematically incrementally better; and there is reason to think that free immigration would do that.
The objection may be that immigration imposes costs on us non-immigrants in unacceptable ways. Here, however, careful consideration of these particular supposed costs reveals such concerns to be largely empty.
"But immigrants will use social welfare services at the expense of us non-immigrants." But there is an obvious answer to this objection: the laws can be changed to prevent recent immigrants from accessing such services. (So, in America for example, we might change the law that requires emergency rooms to provide services to everyone so that immigrants are excepted.) This means that some of those immigrants will suffer and die in rich countries from want of such services; but, of course, they could have suffered and died elsewhere just as well. What is decisive is the consideration of cost.
Admittedly, there would be incremental costs of policing to us, and this is a downside. Although our free immigration law would forbid criminals from immigrating, despite the best efforts of our border guards, some criminals would undoubtedly get through. This will sometimes impose a cost on the rest of us non-immigrants. Still, this cost can perhaps be minimized: in the case of immigrant-on immigrant-crime, we need not prosecute or police vigorously, if at all. In the case of immigrant on non-immigrant crime or law-breaking, rather than giving the immigrant an expensive trial, appeals process, and incarceration at taxpayer (read: our) expense, we could have a summary trial and execution for all crimes. This would cut costs considerably -- perhaps, almost to the point of being barely noticeable at all. For small crimes like jaywalking where the death penalty seems far too harsh and would be unpermitted by our consciences, we could punish in some better way, like fining. Of course, if the immigrant is too poor to pay the fine, then we could take other less-than-death-penalty measures instead, e.g, maiming their legs, or breaking a hand; this would get the message across about the importance of upholding the law, and be more in keeping with our sense of justice. As before, the major pity would be the cost to our system for the time of the policeman, judge, and leg- or hand- breaker. Still, I would bet that after a few such leg- or hand- breakings, the immigrants would get the message. And if not, we could always return to the much more cost-effective option of summary execution.
As for the rest of the non-criminal law -- the law of contract, say, or property, or torts -- we should just not enforce that law at all for the immigrants, unless the immigrants can reimburse us for that enforcement (i.e., for the cost of the judge's time).
"But," you say, "the immigrants will become citizens, gain a say in the making of laws, and eventually make laws that require better treatment for them at more expense to us." The obvious solution here is to pass a law preventing the immigrants from becoming voting citizens. If they can't vote, no politician will pander to their claimed interests. This will keep our expenses down.
"But," you say, "the immigrants will take our jobs." If this were true, then, in light of the antecedent moral right every person has to their job under the same or better conditions in which they've always had it, the objection would be fatal and decisive. However, this objection as well can be met by passing a law forbidding immigrants from taking our jobs. We are not heartless and cruel, and so the law will not prevent the immigrants from having their jobs. But this rightful concern for ourselves can certainly be accomodated within a system of free immigration.
Of course, enacting this system might mean that some desperately poor places are emptied of all people, who will flock to rich countries just as soon they can afford the ticket. There is obviously no reason at all to care about this; to the extent that we already don't care about those places with people in them, there will be even less reason to care about those places without people in them.
In sum, there is no good reason that I can see not to enact free immigration. Since it would do some good (the immigrants wouldn't immigrate otherwise, by and large), and would do vanishingly little harm, free immigration laws ought to be systematically enacted. If I have missed a reason not to do it, post in the comments, and I will try to reply when I can. Or if you think that this system would not be better (even if only incrementally) than the present system of non-aid, let me know that as well, and I'll try to respond.
Haiti is just one example of a desperate place. In the face of such poverty worldwide, it is hard not to feel badly, and not to want to do something. Of course, "feeling badly" and "wanting to do something" doesn't mean that we actually will do anything meaningful, either individually or collectively. Take myself for example: as badly as I feel, I'm not actually going to do anything for the impoverished parts of the world that would involve abandoning the project of ruining my credit in pursuit of various forms of higher education. And as badly as we all undoubtedly feel, we have only a limited amount of energy with which to insist that governments (including our own) live up to their aid promises (as to Africa or to Haiti).
So anyway, when it comes to solving the world's poverty problems, feeling pity apparently doesn't work. Guilt doesn't work either; promises of help by rich countries to desperately poor places are routinely broken. If anything is clear about foreign aid, it's that people in rich countries are by-and-large incapable of even feeling guilt with regard to the plight of people in poor countries, and that after repeatedly promising and failing to deliver aid to the desperate people of those countries. We have, no doubt, better things to do than feeling guilty; and feeling guilt is uncomfortable in ways that feeling pity isn't.
The imperialist take-over of the world's poor spots might work, the idea there being one of imposing proper functioning institutions on those countries. However, despite all the reasons David Brooks could offer for the imperialist option--and despite my own helpful efforts to make his proposal seem more respectable than it probably was--it is time to admit that that proposal has stalled and is going nowhere, probably in light of the great expense to rich countries.
So, it's time for another proposal, namely this: the rich countries of the world ought to let the poor people of the world immigrate freely. To the extent that poor people would immigrate, that represents their judgment that doing so is a way of materially improving their condition; and it is perhaps safe to presume that they would be in a position to know. (At any rate, if they don't know their own interests, surely they have only themselves to blame.) Since we can't get a panacea, we might settle for making things systematically incrementally better; and there is reason to think that free immigration would do that.
The objection may be that immigration imposes costs on us non-immigrants in unacceptable ways. Here, however, careful consideration of these particular supposed costs reveals such concerns to be largely empty.
"But immigrants will use social welfare services at the expense of us non-immigrants." But there is an obvious answer to this objection: the laws can be changed to prevent recent immigrants from accessing such services. (So, in America for example, we might change the law that requires emergency rooms to provide services to everyone so that immigrants are excepted.) This means that some of those immigrants will suffer and die in rich countries from want of such services; but, of course, they could have suffered and died elsewhere just as well. What is decisive is the consideration of cost.
Admittedly, there would be incremental costs of policing to us, and this is a downside. Although our free immigration law would forbid criminals from immigrating, despite the best efforts of our border guards, some criminals would undoubtedly get through. This will sometimes impose a cost on the rest of us non-immigrants. Still, this cost can perhaps be minimized: in the case of immigrant-on immigrant-crime, we need not prosecute or police vigorously, if at all. In the case of immigrant on non-immigrant crime or law-breaking, rather than giving the immigrant an expensive trial, appeals process, and incarceration at taxpayer (read: our) expense, we could have a summary trial and execution for all crimes. This would cut costs considerably -- perhaps, almost to the point of being barely noticeable at all. For small crimes like jaywalking where the death penalty seems far too harsh and would be unpermitted by our consciences, we could punish in some better way, like fining. Of course, if the immigrant is too poor to pay the fine, then we could take other less-than-death-penalty measures instead, e.g, maiming their legs, or breaking a hand; this would get the message across about the importance of upholding the law, and be more in keeping with our sense of justice. As before, the major pity would be the cost to our system for the time of the policeman, judge, and leg- or hand- breaker. Still, I would bet that after a few such leg- or hand- breakings, the immigrants would get the message. And if not, we could always return to the much more cost-effective option of summary execution.
As for the rest of the non-criminal law -- the law of contract, say, or property, or torts -- we should just not enforce that law at all for the immigrants, unless the immigrants can reimburse us for that enforcement (i.e., for the cost of the judge's time).
"But," you say, "the immigrants will become citizens, gain a say in the making of laws, and eventually make laws that require better treatment for them at more expense to us." The obvious solution here is to pass a law preventing the immigrants from becoming voting citizens. If they can't vote, no politician will pander to their claimed interests. This will keep our expenses down.
"But," you say, "the immigrants will take our jobs." If this were true, then, in light of the antecedent moral right every person has to their job under the same or better conditions in which they've always had it, the objection would be fatal and decisive. However, this objection as well can be met by passing a law forbidding immigrants from taking our jobs. We are not heartless and cruel, and so the law will not prevent the immigrants from having their jobs. But this rightful concern for ourselves can certainly be accomodated within a system of free immigration.
Of course, enacting this system might mean that some desperately poor places are emptied of all people, who will flock to rich countries just as soon they can afford the ticket. There is obviously no reason at all to care about this; to the extent that we already don't care about those places with people in them, there will be even less reason to care about those places without people in them.
In sum, there is no good reason that I can see not to enact free immigration. Since it would do some good (the immigrants wouldn't immigrate otherwise, by and large), and would do vanishingly little harm, free immigration laws ought to be systematically enacted. If I have missed a reason not to do it, post in the comments, and I will try to reply when I can. Or if you think that this system would not be better (even if only incrementally) than the present system of non-aid, let me know that as well, and I'll try to respond.
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