Thursday, May 18, 2006

Punishment and the Case for Due Process

Yesterday, in a post called "Harsh Words", I wrote about the appropriateness of condemnation in morality. I claimed that doing the work of morality requires using the tools of morality, and that one of those tools is condemnation. Through the use of condemnation (and the companion tools of praise, reward, and punishment), we promote good desires and inhibit bad desires.

Punishment is condemnation taken to an extreme. Punishment means that we are not just going to shout at the person who does wrong. Instead, we are going to do something violent. We are going to take away his property (fines), liberty (imprisonment), and perhaps even his life and we will use violence against those who try to stop it.

By the way, perhaps the best argument for the justification of condemnation is that punishment is sometimes justified. If punishment can sometimes be a justified response to another person's actions, and condemnation is less severe than punishment, then condemnation can certainly be a legitimate response.

Because of the particularly harsh nature of punishment, its use requires some safeguards. We need ways to make sure that these calls to do violence are justified.

History is filled with examples in which a call to violence in the form of punishment was not justified. Innocent people were made to suffer. People were made to suffer for light and trivial reasons – and for wrong reasons. These ‘injustices’ are states that good people are going to try to avoid.

To avoid them, we establish rules and principles of ‘due process.’

How do we keep the violence of punishment properly restrained?

(1) We should begin with the assumption of ‘presumed innocent unless proven guilty.” Under this principle, we resolve that we are not going to jump to conclusions of guilt (or ‘deserving of punishment’). Instead, we are only going to jump to conclusions of innocence. In order to get to a conclusion of guilt, we must be forced into it by the evidence.

(2) We need to recognize that people have a habit of believing that which it benefits them to believe. As a result, we should not trust a person to be a judge in his own case. Instead, we should demand that the case be presented to somebody who has no stake in the final result. We should give these people -- individually or collectively -- a title such as 'judge' or 'jury'.

(3) We must recognize that some types of evidence are more reliable than others. We can even test the quality of different types of evidence. Stage a fake purse-snatching in front of several witnesses, then interview them to determine the quality of their testimony. From this, we know that hearsay and eye-witness testimony are not very good. Other types of testimony -- physical evidence -- are quite good. We should train professionals to be able to tell the difference, and to make sure that only good evidence is used to support a conclusion that punishment is deserved.

(4) We can help to make sure to reduce the risk of punishment being inflicted when it is not justified by inviting somebody to play the role of 'devil's advocate' or 'defense attorney.' Their job is to present the best case possible against punishment. We do not want the call for punishment to be grounded on a straw man of our own construction. The defense attorney's job will be to expose any straw men that those who call for punishment demand.

(5) We debate, negotiate, and seek results that have broad, mutual support. It is an act of pure arrogance for anybody to claim that he knows the truth and that anybody who disagrees with him is wrong. A sprinkling of humility -- which all people should have -- suggests the possibility that the critic is right. In order to reduce the possibility of error, rather than give one person dictatorial power to make all of the rules, we give rule-making power to a group and have them negotiate a solution.

(6) This institution of negotiation requires that we ban one side from taking up arms against the other. Whatever the group decides, everybody who is under that group agrees to live peacefully under those rules without instituting acts of violence against other members of the group. Everybody will have some reason to hate some part of the rules reached through this type of compromise. Yet, a willingness to live under rules that are less than ideal is better than living in a state of perpetual war.

(7) If the rules are determined by vote, we need to institute some system whereby the majority does not tyrannize the majority. Let us imagine a vote on an issue where 60% of the population are going to kill off the other 40%, take their property, and distribute it amongst themselves. We see in this possibility the fact that 'majority rule' gives us no guarantee that all violence is justified. We must temper 'majority rule' with a measure of 'minority rights'. That is to say, there will be recognized limits on what the majority may do to a minority. "51% approval" will not be taken as being synonymous with "right."

(8) By definition, each instance of protecting the rights of a minority is an instance where the will of the majority is overruled. Because of this, the rights of the minority must be trusted to somebody who does not answer to the majority and, in fact, can speak against the majority without fear of repercussions. Each time somebody complains about a judge who overrules the will of the majority, he shows himself to be somebody who thinks that the majority may do whatever it pleases to the minority, and the minority has an obligation to accept whatever is done to them. He shows himself to be somebody who does not understand the concept of minority rights. 'Minority rights' means that, under certain narrowly defined circumstances (those in which a minority are being made to suffer some extraordinary burden that would benefit the majority), the minority gets to make the rules and the majority has to live with them.


Punishment is as much a part of the essence of morality as condemnation. However, punishment is violent and far more intrusive. As such, its use requires a set of safeguards. Those safeguards do not eliminate all possibility of mistake. However, they help to reduce the frequency and the magnitude of harms caused by unjustified violence.

One of the things that I would like the reader to notice is that the Bush Administration has violated every one of these safeguards. Since getting into office, they have worked ceaselessly to eliminate all of the protections against unjustified violence that I have described. Through signing statements, executive orders, and simple assertion, the Bush Administration has assigned itself to the role of judge, jury, prosecuting attorney, and executioner.

In fact, I think that the Bush Administration and those who still defend and support it do not even grasp the significance of procedural safeguards. Arrogant and foolish people do not appreciate the value of safeguards -- they think that they can operate quite well without them. In fact, they tend to see safeguards as a hindrance -- a barrier that denies them the freedom they need to move freely.

The problem is that without those safeguards, some people move a bit too freely. If these people only did harm to themselves (such as the motorcycle rider who refuses to wear a helmet), then we may decide to allow them to play the fool and suffer the consequences.

Unfortunately, a national leader without safeguards seldom suffers the ill effects of his own arrogance and foolishness. He causes others to suffer -- citizens, soldiers, foreign nationals. We do not establish these rules to protect national leaders from themselves. We establish these rules to protect their potential victims.

It is precisely because the Bush Administration has neglected these principles that we find ourselves in the mess we are currently in. In attacking Iraq, the Bush Administration took none of the safeguards that have been created to prevent unjustified violence. The Administration appealed to nothing but its own desire to attack.

A better respect for these principles would have likely saved the world hundreds of billions of dollars and tens (hundreds) of thousands of lives.

More than this, we do not know how much money or how many lives will be lost in the future because the principles of due process – the principles that best prevent unwarranted violence – have been swept aside.

The Bush Administration may still have a good idea of what it is fighting against. Yet, it is clearly blind to what it should be fighting for.

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