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Over at the NY Time's "Opinionator," Seyla Benhabib took on Obama's decision not to deport a certaion groups of undocumented immigrants. It's really quite interesting.

To lay my cards on the table, I happen to believe that most of our laws on immigration are unjust laws. While a country certainly has a right to keep accurate tabs on who comes into a country and even to limit who comes in, either individually or as groups if there's a legitimate reason to do that, I think our laws often go too far. ("This man is a known narcotics trafficker" would be one such reason, as would "This group is too large or too poor for our society to reasonably support them." I'd even say many countries could give a third type of reason, "We cannot absorb them into our culture without losing our own identity," though I wouldn't put a melting-pot-based society like America in that group.)

My real beef with American immigration policy is that we depend on the illegal immigrants out of one side of the mouth and label them as criminals in who they are, not what they do out of the other. As this article points out, California agriculture depends on cheap labor. So do any other number of other businesses. These jobs are typically sub-minimum wage and paid under the table (so no taxes paid by the business). I'd argue we all rely on cheap labor that's denied legal recourse for whatever bad things are done to them. It basically sets up two classes of citizens (and I do consider immigrants – people who permanently join a society, legally or otherwise – to be citizens in the philosophical sense if not the legal one), and I'm not crazy about living in a society built on that. Not that any other society is really any better here, and not that there's a whole lot I can do about it, but it does make me feel complicit in something I don't like.

So I'm predisposed to be in favor of this argument. My main qualm with Obama's DREAM-like action is that it affects so few immigrants, and siphons off the most sympathetic immigrants from the larger community. But still, I find Dr. Benhabib's argument confused. She seems to be drawing on two different philosophical traditions and acting like they're compatible. Since I'm going to be teaching these two approaches to justice with my students in just a few hours, I thought it might be interesting and useful to lay them out here, and apply them to this particular argument.

(By the way, this discussion of communitarianism vs. voluntarism is taken more or less from Ch. 9 of Michael Sandel's book Justice: What's the Right Thing to Do; I highly recommend it.)

Dr. Benhabib appeals to Kant's "duty of hospitality." She writes:

If conditions in a person's native country so endanger his life and well-being and he becomes willing to risk illegality in order to survive, his right to survival, from a moral point of view, carries as much weight as does the new country's claim to control borders against migrants Immanuel Kant, therefore, called the moral claim to seek refuge or respite in the lands of another, a "universal right of hospitality," provided that the intentions of the foreigner upon arriving on foreign lands were peaceful. Such a right, he argued, belonged to each human being placed on this planet who had to share the earth with others.

I've never heard of this particular bit of Kant's philosophy, but it does sound like him. I've proved over the last several weeks how hard it is for me to speak authoritatively about Kant's moral philosophy, so here I'll rely on Sandel's summary of the relationship between Kant's account of freedom and communal obligations:

To be free is to be autonomous, and to be autonomous, is to be governed by a law I give myself. Kantian autonomy is more demanding than consent. When I will the moral law, I don't simply choose according to my contingent desires or allegiances. Instead, I step back from my particular interests and attachments, and will as a participant in pure practical reason. […] Kant's idea of an autonomous will and Rawls's idea of a hypothetical agreement behind a veil of ignorance have this in common: both conceive the moral agent as independent of his or her particular aims and attachments. When we will the moral law (Kant) or choose the principles of justice (Rawls), we do so without reference to the roles and identities that situate us in the world and make us the particular people we are. (Sandel pp. 213-214)

What Sandel's getting at here is that we are only Americans or Britons or whatever, by virtue of a historical accident. There's no reason I had to be born in the American South, with all that carries with it as far as the way I view the world and my moral obligations. So while I may think I have a duty to put other Americans first – "buy American," monitor the border, care more about the lives of American deaths than Afghani deaths or however you want to put it – I don't really have any obligation here. And it may make sense to have communities and develop them, at a practical level. But I think Kant would be hard-pressed to explain why those communities are morally relevant, certainly to the point that they outweigh someone's right to preserve their life. (Someone who's a better Kant scholar than I am, could perhaps offer an explanation of why communal obligations are morally relevant and not just based on a hypothetical imperative, perhaps, but I can't see it based on what I understand of him.)

Anyway, so far Dr. Benhabib's on solid footing as far as I can tell. The trouble is she then makes a very un-Kantian move. She writes:

We do have special obligations to our neighbors, as opposed to moral obligations to humanity at large, if, for example, our economy has devastated theirs; if our industrial output has led to environmental harm or if our drug dependency had encouraged the formation of transnational drug cartels.

These claims of interdependence require a third moral principle – in addition to the right of universal hospitality and the right to self-government – to be brought into consideration: associative obligations among peoples arising through historical factors.

This sounds very much to me like the communitarian approach to ethics that Sandel outlines. Kant (according to Sandel) basically thought we only have two kinds of obligations: natural duties, that we owe to everyone just because they're human, and voluntary obligations, things we agreed to ourselves. So there's really no sense in talking about making up for what your ancestors had done, or feeling proud of it. As Sandel explains:

If, in thinking about justice, we just abstract from our particular duties, it is hard to make the case that present-day Germans bear a special responsibility to make recompense for the Holocaust, or that Americans of this generation have a special responsibility to remedy the injustice of slavery and segregation. Why? Because once I set aside my identity as a german or an American and conceive myself as a free and independent self, there is no basis for saying my obligation to remedy these historic injustices is greater than anyone else's. (Sandel p. 214).

The thing is, the way I understand these points, they can't both be true – at least not for the reasons pointed to. If I have a Kantian duty to hospitality because it's a Kantian duty, can I also have special obligations to those living near me? Particularly since I wasn't alive when America enacted the drug policies that encouraged the cartel (so any special obligation I have to help these peoples because I'm an American is distinctly non-Kantian). Unless I'm missing something about Kant?

I've really enjoyed teaching Kant's and Aristotle's accounts of freedom and justice, and I find the whole contemporary debate utterly fascinating. But the way I read things, the two sides aren't really compatible; if you're a communitarian, you seem to be rejecting some pretty crucial claims made by Kant, and vice versa. That Dr. Benhabib tries to draw from both sides is a bit frustrating, because I think a lot of what she's saying individually works pretty well but put together it just undercuts itself. It's actually a problem I see a lot in student papers, where they will just take bits from different theories, without worrying about whether the foundations for those ideas make sense together. Given that this is a full professor writing this, and given that I'm really and truly not a Kant expert, I'm hoping I'm missing something in Kant's thoughts that makes this move possible.

Regardless, it's good to see professional philosophers working on this issue. Personally, I tend to think if an immigrant is willing to throw his lot in with a society, said society needs a damned good reason to exclude him – particularly in a society built on immigration, as is the case with America (and really, if you go back far enough, is the case anywhere). But that's probably coming more out of my own Christian tradition more than anything you'll find in philosophy. You know, Abraham keeping his tent open on all four sides and all that.

(P.S., I started this before class this morning and only finished it now, nearly twelve hours later. So any odd wording, seeming obsession with certain books, etc. may be explained by that.)

(Originally posted at LJ.)

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Many atheist friends of mine (I’m thinking of Dan Fincke in particular, but I’m sure I’ve heard the point other places as well) describe “faith” as being more sure of something than is warranted by the available evidence. It’s not a complement. The thought, as I understand it, is that we should only believe things we have good reason to think are true, and that there’s no good reason to believe God exists. So people who do believe God exists are either making a factual mistake (they think there’s evidence but there isn’t), or otherwise they’re wrong to think we don’t need that evidence. Either way, all theists are being irrational.

Obviously I don’t agree with this in every situation or I wouldn’t be a theist. on theology being 'true' )
on heaven, hell, and a rather messed-up kind of justice )
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  (Written for the March 2012 synchroblog; links TBA.)

I have a secret: for years now, I've wished I was eligible for the selective service.

In my country, at the age of eighteen all the guys have to register for the military draft. They don't actually have to serve, and chances are negligible that they'll be called up, since (for all our wars) America has been an all-volunteer army since I believe Vietnam. But ever since I've figured out how committed of a pacifist I am, I've wanted the ability to declare to God, country, and the world at large that there wasn't anyone representin me in this war, either.

I want to be clear about something: I respect what our veterans are trying to do. I nod at them out of respect when I see them on campus, and I've gotten in the habit of picking up pastries every week or two for my veteran neighbor, as a small token of gratitude. I also would gladly pay any tax asked of me to improve their safety while in service and their recovery once they leave. It's the generals and the contractors I have a beef with. I don't think our current wars are just, and given our track record of judicial process for people accused of war crimes and quasi-legal neverending wars, I think it will be a long time before I'd find an actual war I could support. And that's my point. I want the right to register as a conscientious objector to document this fact. Because I am not expected to fight, someone else "covers" me by default, so I get no say in the matter.

It's not just that theoretical point that bothers me, though. At the tender age of seventeen, I was a registered Republican and generally supported the idea of bringing democracy to the world, but I also wasn't sure now I felt about killing someone for that cause or any other, and so I asked my history teacher what were my options if I was morally opposed to war. He told me that I wasn't required to register for the draft, and when I asked why he explained that "Uncle Sam" didn't want to take mothers away from their children, or put children in homes with a mum suffering from PTSD. I'm now a few months shy of thirty years old, still happily single and happily child-free, in a doctoral program that I hope will lead to a professorship. In the meantime I am happy with my hobbies, my volunteer work, my church, and my friends both online and offline. I am living the life of the mind in a truly vibrant city, and it's a good life - just not the one my high school teacher thought I was destined for.

I thought about all this when I heard someone use the phrase "war on women" for the umpteenth time in a newspaper editorial this morning. Again, let me be clear: I think preventive birth control is a good thing, and I think subsidized or insurance-covered birth control is an even bett thing because it vies lower-class women the same liberties I have to manage their sexuality and its consequences. But every time I hear that phrase I bristle just a little bit (and sometimes quite a lot), because it carries with it the suggestion that as a woman I am defined by the bits of anatomy between my legs. It also suggests that if I personally didn't think of fertility like a disease, I would not be included in the collective of womanhood that was under attack. I've been on the receiving end of people telling me what it means to be a real woman, to feel comfortable with that. 

Given that this is a SynchroBlog post, I feel a strong pull to somehow tie this back to my religion. I could cite the many different roles women serve throughout the Bible, from Miriam to Esther to Mary Magdalene, and those stories are relevant. The problem is, they're part of a fabric that stretches beyond any one religious or literary tradition. I could just as easily point to Eowyn and B'Elanna Torres and Brenda Leigh Johnson and all the other strong women of literature. They weren't all shieldmaidens, either. Often as not, womanhood is as varied as human nature (as well it should be!). Our battle-cries need to reflect that.

(Originally posted to LJ; please comment there.)
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 I actually saw this one coming a mile away:

What the 'After-Birth Abortion' and 'Personhood' Debates Have in Common

A few weeks back I wrote about a journal article proposing that infanticides just after birth should have the same legal status as abortions just before. Meaning that they should be legal if the mother's welfare was at risk, and not even called infanticides. I find this claim preposterous, and I tried my best to explain why. Basically, I think there's a big distinction between legal status and moral status.

ChristianityToday, a major online and print magazine in the evangelical (not necessarily conservative, not necessarily fundamentalist, but just evangelical) publishing world made the above post in one of their associated blogs. Basically, the argument goes, this whole debate over infanticide comes from the recognition that there's no recognizable distinction between a fetus and an infant, meaning we should give  all the rights of an infant to a fetus. Think the personhood bills you've seen put out in U.S. states like Mississippi and Colorado.

The problem here is that the concepts of "fetus" and "born human" (to say nothing of human and person generally) are really not so simple, and we're using them like they are. I tend to think the whole abortion debate would be much, much easier if we thought about what we meant by a fetus. I'll grant that a fetus a minute before birth has more in common with an infant one minute after birth, than it does with a fetus one minute after conception. I'll even grant that some of the ways these three things are similar and different are morally relevant. All that proves, though, is that a fetus is a distinction where the members in it don't all have the same moral status.

There are a lot of big philosophical words floating around in there, so let me try to make this simpler. I'll give you that it's morally wrong to kill a fetus one minute before it's born. (Allowing the usual exceptions for self-defense, etc.) That doesn't mean it should be morally wrong to kill any fetus. And, just for the record, it doesn't actually mean it should be illegal to kill a fetus one minute before birth. The law's a blunt instrument and may not be up to the task of splitting that moral hair. It just means that not all fetuses are in the same position, morally speaking.

While we're on the concept of distinctions, it's worth looking at one more: human vs. person. On one definition, it's quite obvious that a newly-fertilized zygote is human. So is an amputated leg or fingernail clippings. Human here just means "has human DNA" or "has human cellular structure." But a doctor who amputates a leg to save the patient doesn't have to go through a hospital board inquiry, and I didn't have to explain to the police why I cut my nails last night. There's another definition of "human," which philosophers both prefer to call "person" to avoid speciesism and to avoid the confusion of using human in more than two ways. Persons are members of the moral community, things that have rights and responsibilities. Some philosophers use  the ability to feel pain; more common is the sentience idea, or the ability to act on something other than just instinct. But when a scientist or a bioethicist talks about a fetus being human, they don't usually mean it in the personhood case.

So to sum up:

  1. Yes, fetuses are (genetically) human.
  2. No, not all fetuses are humans/persons in the moral sense.
  3. The solution is not to call a zygote a person – it is to recognize that fetuses exist along a continuum, and while some may reasonably be called a person, not all can.
  4. So: drop this drive to call a zygote a person. It's not helping.

I am actually as dismayed by this journal article's claim as anyone else. The solution, though, isn't to double down and insist all fetuses are people. It's to recognize the very real difference between a zygote smaller than the period at the end of this sentence, and an eight-month old human baby that could survive on its own outside the womb.

It also wouldn't hurt to distinguish between a late-term fetus's right to life, and the mother of a late-term fetus's obligation to preserve that life. She may have such an obligation based on her past actions of not terminating the pregnancy, not using appropriate birth control, etc. (depending on the situation – this is a big if), but it's not all about a "right to life." There are other concerns that play out here, and the dueling claims in this situation are complicated. You don't do anyone any good by pretending this is a simple issue.

(Originally posted at LJ; please comment there.)
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I’ve been following two news stories fairly closely these last few weeks. These are the kinds of things that you probably wouldn’t hear about unless you followed news and political opinion sites, though I think they do have health impacts, in this case on women’s health.

First, Komen for the Cure pledged to stop funding mammograms through Planned Parenthood because PP was under active investigation and because PP only did breast exams and referred people out for mammograms. There is much about Komen’s actions that seemed fishy to me, especially the being-under-investigation thing, since Komen has donated to other organizations similarly under investigation since imposing the rule, and has only stopped funding PP. And it was frustrating, as always, to see so much misinformation about PP out there.

But those topics are being hashed out elsewhere, I’m sure. What really piqued my interest was an aspect almost no one was talking about: In the short time Komen cut its ties with PP, lots of evangelicals donated to Komen and said they just couldn’t bring themselves to donate to them while they were PP-allied.  One example – and I’ve seen several these last few days – is Lifeway’s refusal to sale Breast Caner-awareness Bibles in their store. Lifeway is a Christian publishing-house operated by the Southern Baptist Church, and they had printed and pledged to sell a pink-covered Bible. They had planned to donate at least $25,000 and $1 per Bible sold (so whichever was higher), and they do seem to be living with their pledge to donate the $25,000 to PP.

But they also had never distributed the Bibles to stores. As Lifeway’s President explains it: “There’s nothing wrong with the Bibles. We just have no business being in even a perceived relationship with Planned Parenthood.” So donating to a group that donates to a group that does abortions is so wrong, you’d rather not stand by that group publicly. Because $1 per Bible is small potatoes, really. (And I have majorly mixed feelings about letting people “give” in ways that donates the company more than the charity.) But the exposure, the statement that we will stand beside you, is an important one. And the fact that evangelical organizations – and individual evangelicals – are willing to donate to Komen but only if it’s not two or three steps removed from abortions is pretty frustrating, actually.

Let me put it simply. I respect Christians’ right to oppose abortions. In some case I think it’s morally wrong; in other cases not, mostly depending on the development of the fetus. I also respect the Christian’s right to do with her charity $$$ what she wants. (So long as it really is charity; it’s different if we’re talking about something everyone should have access to, and I’d put cancer screenings in that category.) But we need a little consistency here. Back during the Bush years, evangelicals were happy to take other peoples’ tax $$$ through faith-based initiatives and funnel them to distinctly ideological groups. The test was, is the work being paid for a legitimate government function? Poverty relief, social services, disaster services, etc. Even medical research. Here many Christians are balking to the idea that their $$$ should go to a group whose ideology they disagree with, but that performs a service they’ve shown they would support if not for the ideology. It’s only fair.

I’ve already blogged about news story #2. Basically the RCC doesn’t want to pay for health insurance that covers contraception, because this would force the Church to either not offer medical insurance or else pay for something they didn’t approve of morally. Interestingly, it’s not a stance that the majority of Catholics actually hold. Back in April 2011, a survey found that about 98% of Catholic Americans used contraception at some point, and 70% used it currently. I suppose you could make a somewhat-reasonable point that if Catholics didn’t use birth control as a group it didn’t make sense to lump them in with people that did use birth control – essentially forcing them to buy something they didn’t need. It’s only semi-reasonable because insurance should force people to buy what they don’t need yet, since that’s how risk pools work – otherwise you’d just have the sick people in the group, and you wouldn’t have much of an insurance policy against illnesses you can’t afford.

But that’s not even what’s going on here. The Catholic hierarchy – single men all – are deciding based on ideology what women and families should do to manage their reproduction. It isn’t that Catholics don’t want insurance; it’s that the Catholic Church disagrees with it and is opposed to paying for it. And really, the RCC is no more a person than corporations are.

That’s the similarity I see between these stories, and that’s the detail that’s stuck in my throat. In both cases, you have women with a real need and because of a group affiliation, people stop from filling that need when either they would like to help if not for what it says about their group identity (“I’m an abortion-enabler, not an Evangelical”) or else they should provide it (because it’s the company’s right to provide health insurance and the individual’s right to make decisions on how to use that insurance).

That seems twisted to me. Whatever other lessons we should learn from these stories, I'd say rejecting that mentality should be at the top of the list.

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I've been following the debate over health care mandates, freedom of conscience, and religious exemptions pretty closely. It's really very interesting and (for me at least) very personal.

For those of you who aren't American or, you know, have lives to live that don't involve watching the news, the new health care bill basically requires everyone to carry insurance. If you can't afford it, you get a tax-paid subsidy to help out; if you refuse, you pay a penalty to cover the cost of health care if you get sick. The problem is that many companies only offer very minimal coverage – either really high deductibles (the amount you have to pay before insurance kicks in) or low caps (after which you're responsible for the bills). So to help with that problem, Congress said that each eligible plan – meaning, the plans that will let you avoid the penalty – have to provide a certain level of coverage in several defined areas.

And one of those areas was reproductive health for women. Anyone familiar with American politics and the *erm* heightened interest anything to do with sex seems to draw.

Even before the law passed, it was on record that no taxpayer money could go to fund abortions. I wasn't crazy about that decision, but at the time I accepted as the price of doing business. Personally the thought of people with money deciding what medically-necessary health procedures I should have access to (yes, even if they're footing the bill) really bothers me. This is basically because I recognize that yes, capitalism is great at encouraging innovation and hard work and all that, but it really and truly sucks at distributing resources in a fair way. I think that middle- and upper-class people are generally overpaid, meaning that we should give up our money to fill the actual needs of the poor. I see this as a moral duty, and I don't think I should get to say how that money is actually used. So I don't think I should be able to tell a poor woman she can't have an abortion or buy a soda out of their food stamp money (another personal bugabear, brought to you courtesy of Mayor Bloomberg) or whatever, any more than I should be able to tell a rich or middle-class person. But whatever. As I said, with the abortion provision, I do think the ends justified the means there, even if I wasn't totally comfortable with it.

Now the government is trying to work out just what insurances should have to cover. One of those areas, as I mentioned above, is reproductive health. Basically, the government wants to force all health insurance plans to cover health insurance – including plans paid for in part by employers who have traditionally opposed birth control, like the Roman Catholic Church. There are conscience clause exceptions, which basically let people whose jobs are suitably religious in nature (think pastors and priests) buy insurance plans that don't cover birth control. Sometimes the groups oppose birth control on principle, like the Catholics whose natural law ethics condemn any ejaculation that doesn't have the goal of procreation. Other times there's a concern that the some of the birth controls can act as abortifacients, opening up a back door to taxpayer-funded abortions. Still others, usually conservative Protestants, point to the connection between birth control and extramarital sex and don't want to subsidize promiscuity.

But whatever the reason, these groups don't want to limit the conscience clause to clergy and church employees. The conscience exception wouldn't apply to people whose work wasn't devoted to religious ends. Like social workers and nurses employed by Catholic charities, for instance. And plans for students at religious universities would have to cover birth control.

This is where it gets personal for me, because I am a graduate student on stipend at attend a Jesuit (Catholic) university, and I was very much surprised to discover that my health insurance (purchased through my school) doesn't cover birth control or really anything reproduction-related besides OB-GYN exams. I'm not a member of the Roman Catholic Church, nor do I think I accepted a "Catholic" ethic because I decided to study and teach here. Jesuits just happen to produce the best scholars in my corner of philosophy. As it happens, I don't need birth control because I'm not sexually active, and I actually think most premarital sex is immoral for various reason. But that's my decision, based on my moral choice. And for the majority of the culture that disagrees with me, that's there moral choice, too. To be perfectly honest, I really resent the idea that some group I never joined up with should decide what kind of health choices I'm able to access.

(To be clear: this "joined up" idea can be hard to nail down. If you were born into a church and your whole family belonged, staying on the church rosters could just be inertia at work. Or maybe you joined because you agreed with most of the beliefs but not this one. Or maybe you took a job at a Catholic hospital or teaching Spanish at an evangelical high school because it was the only or best opening in your area. None of these should take away your access to medical procedures. But this is doubly so for college students, given how little emphasis students put on the school's ideology when choosing to go there.)

This, right here, is why the whole idea of relying on charity for basic needs doesn't work. The Catholic Church (and the other groups taking similar stances) are saying it's an affront to their freedom of conscience if they have to pay for my birth control (if I decided I wanted it). I would maybe be okay with that (maybe) if not for the refrain I keep hearing in politics. We're told that government is inefficient, that it's wrong to make people give up their money to support people who didn't earn it. That Americans are the most generous nation and to just let people hold on to their money so they can donate it willingly. But many, many charities have religious ideologies. Those that don't tend to have their own ideologies, and many attach requirements to people using their money. That doesn't sit right with me.

Think about an analogy. Say someone proposes we slash the budget for Section 8 housing. [for Non-Americans: government $$$ paid to private landlords, to provide lower-income housing for the poor] This is in exchange for a taxcut, with the assumption people will turn around and donate that money to private charities working in their local area. Only those charities have their own ideology, as most do. Say a certain charity has a strong ideological position against smoking. (Perhaps it's Mormon-backed, whose church considers tobacco use a sin; perhaps the group's founder just lost a favorite uncle to emphysema and hates smoking.) I can't help thinking low-income people would be less free under this system than the current one.

I guess it all comes down to this for me: you can only use those rights you have the power to exercise. I'm all for personal responsibility and saying that if you have enough money to meet your needs if you were smart about it and you squander it, that you're responsible for. Maybe those people need to suffer, or maybe there's room for honest-to-goodness charity there. But if someone isn't making enough to have a basic standard of living, if they're trying to find a job and can't or if the jobs available pay too little, that's not what charity's for. They need public funds – yes, taken from my tax $$$ – and it's really not up to me how they spend it. That's justice.

Your thoughts?

Originally posted at LJ; please comment there.
fidesquaerens: (politics)
A few days ago I posted wondering whether Troy Davis was really Troy Davis. The thinking was, since everyone changes over the course of time, I wasn’t sure that the Troy Davis who existed today was the same person who had allegedly killed Mark MacPhail. I had in the back of my mind the first season DS9 episode “Dax,” where Jadzia Dax is put on trial for a murder allegedly killed by her previous hosts. Jadzia is a Trill, and it means she has a symbiont inside her that was previously joined with another person. Kind of like half reincarnation – you have part of you that lives on from life to life, but also there is some new personality in each iteration.

When the philosophy class I teach discusses this scenario (yes, we do occasionally discuss Star Trek applications!) I ask them what exactly drives the intuition that this young woman isn’t responsible for an old man’s crimes – because if it’s just the acquisition of new memories, new character traits, that could also be said of (say) an eighty year old committed of a crime done while in university. Which raises the question: just how much time has to pass, how much does a person’s character have to change before it’s no longer just to punish them for a crime they committed. I’m not admitting Davis is guilty, but in the debate leading up to the execution I saw a lot of people asking whether he did the crime or not – if he did it, it was just to kill him, so the reasoning seemed to go. Of course we should be horrified to kill an innocent man. Of course we should want to know. But I don’t know that the situation is so simple.

Over at Facebook, my friend Wendy asked the natural question. If a cop-killer or psychopathic serial murderer or child-rapist or some other moral monster has changed enough that it’s no longer just to keep them in jail, what do we do with them? That’s a hard question to answer, but I could tell from the comments this was an issue Wendy cared about. So I wanted to give it the time and space it needed to answer that question adequately. (If you have a FB account, you can see the conversation on my wall, on 23-Sept at 8:13 AM.)

As far as I can see, there are three real reasons to put someone in jail:

  1. Retribution: Jail’s not fun. Seeing someone put in jail who has wronged you can bring some sort of comfort. At the least it seems like society’s way of saying what happened to the victims isn’t okay with the rest of us either.

  2. Character Growth: Arguably, committing a crime harms the criminal, too, because they hurt someone and then have to hide what they did afterwards. Jail (in theory!) gives criminals the opportunities to become better people.

  3. Prevention: We can’t completely fix past crimes, but we can keep known criminals by committing further crimes, by keeping them away from the situations where they could. Jails limit criminals’ access to non-criminals (except for the jailors who have superior weapons and special training).

Of course, it’s possible I overlooked some reason for putting people in jail, but if there are other options I’m not seeing it. So let’s say just for argument that these are the reasons we put people in jail. I take that to mean, if none of these reasons apply, it’s automatically unjust to lock someone up. Imprisonment is by definition a loss of liberty, so I do think you need a reason to do it.

So let’s take an example. Troy Davis is emotionally charged and I don’t want to use someone’s tragedy for my own sake, anyway. And Dax is a rather… well, weird case. Plus not everyone is really familiar with it anyway. So let’s take another case. Let’s say someone is a vicious racist. His sister was planning to marry an Afro-American, and he is so blinded by his hatred that he kills the man. There’s no insanity; he was lucid, he planned the murder out. But over the course of several decades of visitors’ day he gets to know his would-be-in-laws and has a genuine character change so he no longer hates this minority. Let's take it a step further and say he realizes that hatred based on generalizations is also wrong. Moreover his regret at having tried to kill someone leads him to get a better control over his anger, which had previously been an issue so not only does he not hate groups but he also is less likely to act on his anger – no more than any one else would be. Does it still make sense to lock this person up?

If this change is truly possible, he's no longer a danger to others, certainly no more than anyone else, so the idea of prevention doesn't apply. He also doesn't still need to become the better person we sent him to jail to be. But what about retribution? His victim's family and even his sister would be very reasonably upset and may not quite be ready for him to get out. This is one of the points Wendy raised. Why should someone who has suffered a horrific crime have to let their harmer out?

Growing up, I was taught to believe in forgiveness, in the sense that if someone hurt you, you had to move on and give up any claim to anger or judgment over them. I'm not sure how much I believe of that because I think forgiveness means something a bit different than pretending like it never happened. I tend to think that people have the right to be upset about this kind of thing. But that right doesn’t mean they have the right to keep other people in prison. You need an impartial judge, someone who isn’t overwhelmed by bias. So the fact that the victims’ families don’t want you out isn’t a good enough reason.

What is a good reason is to say that they haven’t actually served enough for their crime. But, while retribution is certainly necessary, I’m not sure what would count as just retribution. How much time would make up for someone who raped your child? Who murdered your sister, or embezzled and squandered your company’s retirement plan? I can’t think of any amount that would, or would even be proportionate. At best it is a symbolic thing, I think. I’m also reminded of Christian teaching on forgiveness – that we are supposed to forgive generously precisely because we have our own debts that could never be paid back. I have a vague memory of a parable, where someone had a debt forgiven and was blasted for throwing someone who owed him money in prison. Expecting proportional retribution feels a bit like that.

Of course we need some retribution, but I still find myself wondering: will another year, five years, whatever really make a difference if someone has been in jail for decades already? To say someone hasn’t suffered enough to make up for what they took, I don’t find that very convincing. Or charitable, or Christian, or whatever. (Not that everyone has to be Christian; but for those of us that are, this attitude does seem “off” to me.)

The question I keep coming back to, and one that Wendy raised was this: who decides someone is really rehabilitated? How do I know this ex-criminal is really ex and won’t reoffend? Wendy said these criminals are experts at fooling people, and many of them are. But they’re not supermen. I have to believe that with modern social work and psychiatry and just decades of experience in criminal justice, there’s a way to sort out the fakers from the not-fakers. Of course we have to be careful – but should we really keep people locked up on principle, because some of them might reoffend? I don’t think so.

As for Wendy’s last question – where should they live – I’d take them as my neighbors. Honestly. If they managed to fool the entire criminal justice system and are complying with parole, maybe there’s still a chance they’d reoffend and I’d get violated by them. I’m not blind to that. I just have faith in peoples’ ability to change, and really do think I’d be willing to take a risk in order to honor that.


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August 2012

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