Crime and Punishment

I’ve always thought that “possession” was an odd type of crime. Legal possession is such a passive concept. It doesn’t seem right to even call it a behavior. I’m pretty sure you can be guilty of possessing contraband even when you are literally asleep in bed. That just doesn’t sound harmful enough to justify punishment.

And consider what happens if the police bust you for possession of marijuana: The police will confiscate your stash. At that point they are the ones who are in possession of marijuana, aren’t they? Why is it that it was illegal when you did it, but it’s legal when they do it?

Because the law says so, I guess, but why? Cops can’t legally break into someone’s house and steal their jewelry or force women into having sex with them, so why is possession different? What’s the principle here? Clearly, since cops are allowed to do it, possession of marijuana doesn’t actually cause whatever social harm the law is seeking to prevent. So why is possession still illegal?

I think the answer has to be that possession is a proxy for the behavior that causes actual harm. In the case of marijuana, that would be the harm caused by smoking marijuana. (As a libertarian, I don’t see any net social harm from smoking marijuana, but let’s ignore that for the sake of argument.)

The problem — for the drug warriors, anyway — is that it’s hard to catch people smoking marijuana because it only takes a few minutes and they can do it in hiding. So the legislatures have moved backwards on the causal chain to criminalize a precursor act that is easier to detect: People generally possess marijuana for a lot longer than they smoke it, and they often do so in relatively public places where police can observe them, question them, and search them. Thus criminalizing the possession of marijuana serves as an imperfect way to attack the problem of smoking marijuana, at the cost of criminalizing behavior that is not really harmful.

This explains why it’s not a crime for cops to possess marijuana after a bust: They aren’t going to smoke it later.

Other crimes of possession can also be justified by their relation to harmful acts: We criminalize felons possessing guns because we don’t want them murdering people, we criminalize young people possessing cans of spray paint because we don’t want them vandalizing buildings with graffiti, and we criminalize possessing open containers of booze in cars because we don’t want drivers to drink.

The exact conditions under which it’s okay to punish people for harmless behavior in the name of stopping a related harmful act is a moral and ethical question worthy of exploration, but for now I’d like to look at a more practical problem. Because the behavior that is illegal is distinct from the behavior that is harmful, scenarios can arise where the law doesn’t really make sense.

For example, it’s illegal to possess child pornography. Clearly, mere possession is harmless, as proven by the fact that police and prosecutors can possess child pornography in the process of sending people to jail for it. Possession of child porn is nevertheless illegal because we don’t want people to look at it.

Houston criminal defense lawyer Mark Bennett gives an example of how this can lead to a bizarre dilemma:

Suppose that a client comes to you with a problem: he has a computer hard drive full of child pornography, and he wants to know what to do with it. What do you tell him?

It’s illegal for him to continue possessing the images. So you can’t advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law.

This is not just a hypothetical situation. At least one lawyer has been prosecuted for destroying child pornography on a client’s computer.

Lawyers wouldn’t be facing this kind of conundrum if it weren’t for the crime/harm separation that is inherent in possession laws. If possession of child pornography wasn’t a crime, then deleting it from the hard drive wouldn’t be destruction of evidence of a crime. It would arguably even be crime prevention, since deleting it prevents people from looking at it, just as flushing marijuana down the toilet prevents people from smoking it.

(I’ve never heard of someone being charged with destroying evidence of pot possession by smoking it, but people do get charged with tampering with evidence for eating drugs when the cops pull them over.)

On the other hand if the crime and harm of possessing child pornography were linked, if mere possession somehow did cause actual harm, then deleting the pornography from the drive would be stopping a crime in progress. The lawyer would be a crime fighter.

If you have trouble thinking about possession being harmful in that way, try imagining it this way: The lawyer visits the client’s house, but instead of learning that the client has child pornography, he discovers that the client has an actual child, locked in a cage in the basement. Alarmed, the lawyer frees the child, who immediately runs off. The child is confused, however, and is never able to identify his captor or the location he was held. By releasing the child, the lawyer has in a sense obstructed the ability of the police to charge his client for kidnapping, yet no sane person would argue that he shouldn’t have done it.

I’m not going so far as to say that possession should never be a crime, but the fact that possession crimes don’t work that way is a sign that possession is a strange kind of crime, one where stopping the crime is also a crime. I’m not sure how to fix this, but I’m pretty sure it’s broken.

This is my third post in a series of ruminations about lethal force. Part 1 discussed the basics of what might or might not be self defense, and in Part 2 I discussed how participants and witnesses report and distort what happens, and in this part, I’ll be exploring how the news gets out, and what we do with it.

News

In most cases of lethal force, not only do we not know what happened, we don’t even have access to anyone who knows what happened. All we get are accounts passed to us by news reporters, editorial writers, bloggers, and acquaintances. As I’ve tried to show, these incidents can get very complicated once you take into account the ethics of lethal force, subjective perceptions, and the possibility that people are lying. Meanwhile, news stories necessarily have to economize on detail, because there’s limited space and limited time to write. Therefore it’s highly unlikely that any of our sources of information will pass along every detail we need to know.

Furthermore, the people telling the story are also subject to all the same distorting influences as the witnesses: They could make mistakes interpreting witness accounts, they could misremember witness accounts, or they could spin the story (or outright lie) to serve their own agenda. Even if they try to keep everything straight, they’re bound to make mistakes, and they’re bound to distort the account based on their own interpretation.

The same thing will happen all over again when people read these stories and pass them on, comment on them, or write blog posts about them (and don’t even get me started on Twitter). It ends up being like a game of telephone, except that instead of passing the message along in a line, from one person to the next, it’s more like something happens to people in the center and information about it radiates outward along multiple interweaving paths. Each person in the information flow receives different stories from different people at different times.

Further, as they receive each piece, they can either adjust their mental model of what happened to accommodate the new information, or they can reject the new information because it seems unlikely to be true, based on the model they have so far. In this way, everybody comes to believe a different version of the story, and they will interpret new information based on the framework established by that story.

Argument

That we all have different ideas of what really happened is a big problem when we start to argue about what it means. It’s hard to have a discussion about right and wrong, crime and punishment, when we don’t agree on the facts. It’s doubly hard when we don’t realize that we’re all working from different mental models of the main incident.

I first noticed this several decades ago, back before the internet was everyone’s source of news, as I watched the story of one such incident dribble out in a series of small revelations. I can’t remember enough details to look it up, so I’m certainly misremembering it, but I’m offering it as an example of a phenomenon, not to discuss the specifics of the incident. The series of revelations, in the order I encountered them, went something like this:

  • A drunk guy visiting a friend late at night accidentally went to the wrong house and was yelling and pounding on the back door when the homeowner shot and killed him. To me, it was hard to see how the homeowner could possibly be in reasonable fear for his life, so this sounded like some kind of murder.
  • The homeowner said he thought the guy was trying to break in. Burglary is not a reason to kill someone, but a guy breaking into the house while you’re there might justify lethal force. However, it was difficult to agree with the homeowner’s perception, since pounding and yelling aren’t really a break-in.
  • Before pounding and yelling on the back door, the guy had rung the front doorbell. Presumably he thought his friend was asleep, so after the doorbell didn’t work, he went around back to try to get his attention. Some people argued that burglars never do that, but I had heard that ringing the doorbell was a great way to find out if a house is unoccupied without doing anything clearly illegal. If the homeowner answers, just say you must have the wrong address and walk away. Or if you’re the violent type, ringing the bell gets the homeowner to open the door for you, so you don’t have to risk attracting attention by breaking in. This information seemed to cut either way in terms of fault.
  • The most damning detail to come out was that the homeowner shot the guy through the back door. This seems indefensible. You’re never supposed to shoot without identifying your target, and you have no idea what’s on the other side of the door — what if a neighbor came over to investigate the noise and was standing behind the guy? What if the guy knocking had a child with him? You just don’t know. Shooting through the door was terribly reckless and made it seem more like a murder of some kind.
  • At least until it came out that the back door was a screen door. The homeowner heard noises from the back of the house and went to investigate. He didn’t just find someone pounding and kicking the door. He found someone punching and kicking through the screen into the house, while he was standing there with the gun in his hand. No wonder he shot.

This was actually a fairly simple story, and yet many of the people discussing this story, including the news media, weren’t used to thinking about the issues involved in lethal force, and they had missed a bunch of important points, including the final detail that changed everything. And as these points came out, arguments kept erupting over the incident, often between people working from different versions of what happened.

Laura hears that Alice shot Bob after he broke into her house in the middle of the night, and based on that, Laura concludes that Alice justifiably shot Bob in self-defense and should not be charged with a crime. Natalie hears that Alice shot Bob after inviting him over, and based on that, Natalie concludes that Alice murdered Bob and deserves to go to jail. They have both reached reasonable yet incompatible conclusions based on what they know.

It seems like a simple misunderstanding that could be cleared up with a little discussion, but it’s simple human nature that once we have staked out our positions, we become resistant to considering alternatives, even if the evidence for them is pretty good. Confirmation bias and other phenomenon make us resistant to changing out minds and accepting new evidence, even if the evidence from which we formed our initial opinion is proving increasingly shaky. Further, the strength of our belief makes it difficult to consider that other people may have reasonably interpreted the situation very differently.

When these people get into arguments with each other over the incident, the difference in conclusions is simple and obvious, but people’s internal mental models of what happened are hidden, so folks on each side have trouble understanding how people on the other side could reach a different conclusion, and they often misattribute those conclusions to ignorance, prejudice, or anti-social values rather than recognizing that different assumptions are in play.

If Laura and Natalie hear each other’s conclusions without hearing the reasons for them, they’ll conclude bad things about each other. Laura will be appalled that Natalie wants Alice to go to jail for shooting a home invader — she may accuse Natalie of coddling criminals or believing men should be able to attack women without consequences. Natalie, on the other hand, will be appalled that Laura believes that murderers like Alice should go free — she may accuse Laura of coddling criminals or believing that women should be able to gun down men without consequences.

We’ve seen this sort of thing happen in Ferguson, with the shooting of Mike Brown by Darren Wilson. Some people see an unarmed black kid gunned down by a white policeman and conclude that anyone who doesn’t think the cop belongs in jail must be a black-hating racist who thinks it’s okay for cops to gun down black people in the streets. They want justice for Mike Brown.

While there are certainly some racists who feel that way, I think it’s safe to say that many of Wilson’s supporters simply don’t believe that narrative about the encounter. They think Mike Brown viciously attacked Darren Wilson and tried to grab his gun, presumably to kill him, and then when Darren Wilson tried to arrest him, Brown attacked again and Wilson shot to defend himself. They think Brown’s supporters are just white-hating racists making excuses for black violence, or attention-seekers trying to drum up trouble out of ulterior motives. And while there are certainly some people doing just that, I think it’s safe to say that many of Brown’s supporters simply don’t think he attacked Officer Wilson.

It’s hard to understand other people’s arguments when you don’t realize you’re not arguing about the same thing.

Interlude: The Police

Shootings by police officers have been in the news a lot lately, and they’ve touched off a lot of controversy, especially when the police shoot unarmed black males. For the most part, I think we should analyze police shootings the same as any other, but there are a few special considerations.

For one thing, police get a lot of training in how to handle potentially violent encounters, and this training affects their perceptions and the conditions under which they fear for their lives. For example, a police officer may have been trained that an assailant with a knife who is within 20 feet can stab him faster than he can draw a gun, so he’s likely to regard someone 15 feet away with a knife as a deadly threat, and he can likely point to his training as the reason he was in fear for his life.

Also, police follow a departmental use-of-force policy, which specifies when and how officers can use different degrees of force, up to and including deadly force. So officers may escalate their level of violence according to training or departmental policy rather than according to what a reasonable non-police-officer would do.

In addition, we expect police to actively fight crime. This means that we expect them to look for trouble, and when they find it, we expect them to stand their ground rather than try to run away. That would be suspicious or troublesome in an ordinary citizen, but for a police officer, that’s the job. We actually expect police to make arrests. This necessarily involves laying hands on people. It’s a violent act that would be called battery and kidnapping if anyone else did it. As a society, we want police to do this violence to protect us from bad people who would harm us, so acts that would cause other people to lose their right of self defense are often acceptable when done by a police officer.

On the other hand, just because police are carrying out a public service mission in accordance with their societal role, training, and departmental policy doesn’t magically eliminate the social costs of what they do. Having people with guns who are looking for trouble, standing their ground, and grabbing people off the street to lock them up in cages is still a form of harm to the people they are doing it to, even if they are criminals.

When police officers hurt people according to departmental guidelines, that doesn’t mean that it’s okay. It just changes the discussion from a question of personal ethics to a question of public policy. Instead of asking if the cops are bad people, we need to ask if the cops are following bad policies.

Just because the cops were doing what they were told doesn’t mean the policy, the mission, and the training aren’t wrongheaded, unethical, or downright evil. Just because police departments theoretically serve the needs of the society they’re embedded in doesn’t mean they aren’t up to no good. Like all institutions, they will serve their own needs, which may conflict with the public good.

For example, police conduct tens of thousands of drug raids every year, and on some of those raids the officers mistakenly kill an innocent person. The mistakes may be honest mistakes — the police thought they saw a gun, or they thought they were taking fire — so we might conclude that the officer did nothing deserving punishment, nothing that we’d call evil. At the same time, we might also conclude that staging a series of drug raids that carry the risk of killing innocent people is a policy that does more harm than good.

I’m almost done with this subject, but I think I have one more post in me.

In the Washington Post, Zerlina Maxwell insists that, despite the way the UVA fraternity gang rape story seems to be falling apart, when it comes to accusations of rape:

In important ways, this is wrong. We should believe, as a matter of default, what an accuser says. Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist.

Scott Greenfield (amoung others, one supposes) has already responded to some of Maxwell’s argument, and he had more about the UVA rape story in an earlier post. (Note that Maxwell’s article was edited to soften it a bit after some of the early responses.) I’d just like to add a few comments.

The accused would have a rough period. He might be suspended from his job; friends might defriend him on Facebook. In the case of Bill Cosby, we might have to stop watching his shows, consuming his books or buying tickets to his traveling stand-up routine. But false accusations are exceedingly rare, and errors can be undone by an investigation that clears the accused, especially if it is done quickly.

The earlier version of Maxwell’s article post seemed to imply that we should abandon the legal presumption of innocence. This more recent version leans more toward a discussion of the moral and procedural issues of campus rape investigations. Nevertheless, as people have been pointing out, we have a presumption of innocence for a reason.

Maxwell seems to be understating the consequences of a rape accusation, at least when the accused isn’t a celebrity or the archetypical rich frat boy of college rape stories. And although some colleges are bastions of progressiveness, I suspect most of them will share the foibles of the society they serve, meaning that a disproportionate number of accusations will be aimed at blacks, Hispanics, and low income students.

And Maxwell’s assumption that if the accusation is ruled false everyone will cheerfully accept the decision of the investigating body seems naive when the news is filled with stories of protests against grand jury decisions not to indict two cops accused of murdering unarmed black men. Grand juries have an even lower standard of proof than college investigations, yet regardless of how you feel about the case, it’s obvious Darren Wilson’s life will not be returning to normal.

In fact (despite various popular myths), the FBI reports that only 2-8 percent of rape allegations turn out to be false, a number that is smaller than the number (10 percent) who lie about car theft.

Yeah, but that’s now. That’s under the system that Zerlina Maxwell wants to change. (And I’m not saying that some change isn’t necessary.)

It comes down to contingent probability. Imagine you’re a woman walking home down a somewhat deserted street when a man you’ve never seen before pulls up next to you and offers to give you a ride. Do you get in? Only a small fraction of men would rape a woman just because she got in their car, so statistically you should be safe, right?

Of course not, because the small percentage of men who are violent rapists are always on the lookout for a chance to get a woman into a position where they can rape her, so they are much more likely than most men to offer to give a woman a ride. Consequently, the group all men has a small percentage of rapists, but because rapists are much more likely to try to get a woman into their car, the group all men who stop to offer a woman a ride has a much higher percentage of rapists. (Or their more common variant, creepers.)

Similarly, only a small percentage of women are likely to make false accusations of rape, and as long as investigators take rape investigation seriously, they won’t be able to make very many of them. But if institutions adopt an always-believe-the-victim methodology, it gives the kind of women who make false accusations a much greater incentive to do so: They will be able to cause a world of hurt for anyone they don’t like. So if we stop protecting the process against false accusations, we can expect to get a lot more of them.

Everything works this way. Most of us have never robbed a bank, but banks still have security to protect against the small percentage who try. Most of us have never tried to enter a stranger’s home at night, but we all lock our doors to protect against the few who do. And most of us would never make a false rape accusation, but it’s still wise to guard against the few who would. Bad actors make things hard for everyone.

Even if Jackie fabricated her account, U-Va. should have taken her word for it during the period while they endeavored to prove or disprove the accusation.

That seems incoherent. If  U-Va is trying to prove or disprove her accusation, how can they take her word for it? Could she mean that U-Va staff should have pretended to take her word for it while investigating behind the scenes?

That actually makes sense, in a way, if you think in terms of different roles people assume in responding to a rape accusation. If a friend tells you she’s been raped, your should help her and support her, which pretty much requires you to believe her. Same thing if you’re a crisis counselor or psychologist: You’re there to help, and accusing the victim of lying or attempting to cross-examine her and check her story is not going to help. If she does turn out to be lying, all that’s happened is that you’ve wasted your time with someone looking for attention.

On the other hand, if your role in responding to the rape accusation is to punish the alleged rapist, the consequences of believing a lie are more severe: You could end up harming an innocent person. Wouldn’t it be best to approach the situation carefully and investigate with an open mind? After all, the falsely accused are victims too. They deserve some belief as well.

This is my second post in a series that explores how we can think about news stories about people using lethal force in an act of claimed self defense. Part 1 discussed the basics of what might or might not be self defense, and this part expands the discussion to cover witness reliability.

I want to emphasize again that my discussion is neither legal advice nor self defense instruction, because I’m not qualified to give either, so if you read any of this as a how-to guide, you’re making a serious mistake.

Memory

So far in my discussion of the ethics of lethal force, I’ve discussed the basic ethics of self defense and the importance of considering what the participants thought was going on. But unless we are involved in the incident ourselves, we have no direct knowledge of either of those things. We have to rely on what the participants and other witnesses tell us, and that can get tricky.

Human perception is unreliable. We may think we experience the world in continuous high-definition full-motion real-time 3D Technicolor with stereo sound, but decades of research into the physiological and neurological function of our senses tells us that the raw sensory inputs are filled with noise and gaps, and our brains pick bits here and there that seem important, and fill the gaps with plausible guesses (based on our genetics and past experience), presenting the result to our conscious minds so we can react. If we’re under a lot of stress, this process gets streamlined to make it even faster, sacrificing accuracy in favor of quick responses to the most likely threats. We can miss important observations, misidentify objects, confabulate details, and even get confused about the order of events.

This problem appeared in Part 1 as the problem of mistaken beliefs: If Alice is expecting Bob to draw a weapon, and Bob reaches into his pants pocket to withdraw a mobile phone, Alice’s brain may catch the first glimpse of something dark and shiny and her brain may take an urgent shortcut to “Gun!”

If she then shoots Bob, is it fair to say she was careless for shooting before identifying the weapon? Or was it an excusable mistake because she was up against the limits of her sensory system? Does it matter that she could have done more to train her brain to make better decisions? Does it matter if someone trained her incorrectly? Does it matter if she incorrectly believes that people of Bob’s race are more likely to pull a gun?

Whatever we believe about the legitimacy of Alice’s perceptions, the same issues arise again when considering her account of events because what she remembers depends on what she thinks she saw — garbage in, garbage out — so we have to take into consideration the errors in her perception.

Making things worse, not only are people fooled by their perception of reality, but their memory of their perceptions changes over time. Our brains process our memories the same way we process reality, making mistakes and filling in the gaps along the way. We also integrate information from other sources into our memories, believing things we heard from other people, even if they aren’t true: If Dave saw Bob pull out a mobile phone but Alice says she shot him because she saw him draw a gun, Dave may come to believe Alice’s version and remember seeing a gun too.

We try to create a consistent picture of the world, but sometimes that means we replace real memories with invented ones, instead of the other way around. Sometimes the more we think about an event we remember, the more we contaminate our memory with errors and lies.

Interlude: Standing Your Ground, Lying in Wait, and Looking For Trouble

George Zimmerman’s shooting of Trayvon Martin brought a lot of attention to the issue of standing your ground. This enters our analysis in the form of asking whether it’s a moral failure to use lethal force to end a life-threatening situation when the threat could have been averted by some other means. If Alice is sitting in her car, and Bob approaches on foot, wielding a knife and screaming “I’m going to kill you!”, can Alice simply drive away? And if she could, does that mean that shooting him instead is unnecessary and therefore wrong?

What if Alice is walking instead of driving, is she still obligated to try to run? What if she’s trapped in a dead-end alley and can’t run away? What if the alley has a gangway between buildings that she could escape through, but Alice doesn’t see it? How hard should she be required to look for an alternative before shooting?

The details can be confusing. What if Bob is wearing running shoes and Alice is wearing high heels? Is she still obligated to try to escape? If Bob does chase her, how close should she let him get before she stops running and starts shooting? Fifty feet? Ten feet? When he grabs her? Whenever she reasonably believes escape is impossible? Whatever distance her shooting instructor taught her?

What if Alice is in her own home? Is she required to flee her home if she can? If she’s trapped in a room, and the assailant is blocking the exit, is she obligated to try to get out the window? What if she’s on the second floor? What if she’s on the fourth floor? What if she can flee safely, but her child is still in the home somewhere? It’s hard to know where to draw the lines.

Another issue I thought was raised by the Zimmerman case (although it was rarely mentioned) is the problem of someone who’s looking for trouble.

Suppose Alice stops in a rough bar to have a drink, and when she pays, she flashes a large wad of cash in her purse. As she leaves the bar, Bob follows her out into the dark street, pulls a knife, and demands “Your money or your life!” Alice draws her gun and shoots him dead.

That sounds like a pretty clear case of shooting in self defense, but suppose we find out that Alice has been flashing cash in rough bars three times a week for the last six months? Suppose Alice was intentionally trying to draw someone like Bob into attacking her, thus creating a situation in which she would be justified in shooting and killing him?

On the one hand, Bob brought the problem on himself by committing a violent assault. On the other hand, Alice pretty clearly had a premeditated plan to kill someone, which is usually called murder. So while Bob is certainly not innocent, Alice is arguably not innocent either.

Another example might be if Bob breaks into Alice’s place of business after hours, intending to rob the safe, but it turns out Alice is still there, and she confronts Bob and kills him in self defense. If Alice was lying in wait in the store in hope of confronting and killing a burglar, she might not be as innocent as if she had been working late to balance the books.

Standing your ground, lying in wait, looking for trouble — these are murky issue where reasonable people will disagree. I think it ultimately comes down to a conflict of values between Alice’s right to protect herself and society’s preference for reducing violence. We want Alice to be able to shoot to defend her life, but we also want to discourage Alice from entering into situations, deliberately or not, where she is likely to have to do so.

Lies

Up until now, I’ve been discussing the natural difficulties that arise when trying to analyze the morality of a lethal force incident. But now it’s time to address an unnatural difficulty: In addition to the honest perceptual problems that can contaminate witness accounts, we also have to allow for the possibility that witnesses are deliberately lying to hide the truth. In our attempt to understand what happened, we may have opponents who want to fool us.

Until now, we were able to confine our analysis to the particulars of the incident — who was where, what they did, and why they did it — but when we have to consider the possibility that some of the witnesses are lying, it means we have to check their story and evaluate their credibility, and so our analysis becomes explosively complex, consuming everything in the world.

For every single witness, whether they were involved or not, we have to consider the possibility that their story is a lie. We need to check it for internal inconsistencies, and we need to check it against our mental model of how the world works.

If Alice says Bob broke in to her house by smashing the second story window into her bedroom, does that seem like something that really could have happened? Is climbing up to smash a second-story window a common way for attackers to enter a house? Is it a sensible way to enter this house? Or would some other point of entry have been simpler? Does it make sense that Bob could have climbed up there? If he’d need a ladder to make the climb, did police find a ladder somewhere nearby? Is there any way to rule out the possibility that Alice placed the ladder there after shooting Bob? Does the spray of smashed glass comport with Alice’s story of what happened?

We should also consider the motivations of the witnesses. People directly involved have the strongest motivation to lie because they could face punishment for crimes. Alice might shoot Bob in cold blood out of pure malice, and then try to keep herself out of jail (and civil court) by saying she had to defend herself against Bob’s attack. Alternatively, Bob might attack Alice and get shot by her in a legitimate act of self defense, only to try to stay out of jail by claiming from his hospital bed that she shot him without provocation.

We also have to consider how each witness’s story is supported or contradicted by the accounts of the other witnesses. If Alice says Bob broke in, but her neighbor Emily claims to have seen Alice let Bob in the front door, how do we decide whether to believe Alice or Emily? We could analyze each of their stories in detail and try to pick it apart. How did Emily happen to be looking at Alice’s house? Could she see it from where she says she was? How does she know it was Bob? How does she know it was Alice who let him in?

If Carl steps forward as a witness and claims Alice shot in self defense, it’s possible that he is lying for reasons of his own. Perhaps he backs Alice’s story out of a sense of loyalty, even though he saw nothing at all, or perhaps he saw her murder Bob, but he backs her story because he fears her retribution. Perhaps he just hated Bob and doesn’t want to see Alice punished for something he wanted to do himself.

Alternatively, maybe Dave steps forward and says he saw Alice murder Bob. It’s possible that Dave hates Alice and wants to make her life miserable. Or maybe he didn’t actually see anything, but he doesn’t believe Bob would have attacked Alice, so he feels justified in lying to ensure that Alice is punished for the unprovoked murder of Bob. Or maybe Bob was Dave’s best friend, and even though he knows Bob attacked Alice first, he’s still angry enough at Alice to want her to suffer. Or perhaps Bob and Dave both attacked Alice, and now that Alice has won the fight, Dave wishes to blame her for murder to deflect attention away from his own crimes and get vengeance for the death of his friend.

It’s not just the specifics of the incident that matter. It’s also quite reasonable to examine witness stories for peripheral details that turn out not to be true. If Fred says he saw the whole thing while driving home from work, but the location of the incident is not on his route home, then maybe he’s lying about seeing the incident as well. Or maybe the incident is on his route home, but we have reason to believe he was somewhere other than his job that day, so he wouldn’t have been on that route. If he’s lying about the little things, maybe it’s because he’s lying about the big things.

Looking even further afield in our attempt to evaluate the credibility of witness stories, it pays to investigate whether the alleged behavior of the participants in this incident is consistent with their past behavior. Has Bob ever attacked someone before? If Gloria reports being attacked by Bob, it tends to support Alice’s story. On the other hand, if Bob has no history of violence, we might ask whether it’s more likely that Bob did something uncharacteristically violent, or that Alice is making it up.

That in turn might lead us to look into Alice’s past, to see if she has a history of shooting people. We might also then investigate whether Alice has a history of telling lies. If Alice has previously made false accusations that Harold attacked her, it casts doubt on her story that Bob attacked her.

Of course, when we hear either of these stories about the past — Bob’s previous attack on Gloria, Alice’s previous lies about Harold — it opens up two more incidents to analyze. Did Bob really attack Gloria, or is Gloria lying? Did Alice really falsely accuse Harold of attacking her, or is Harold lying? If there are additional witnesses to those incidents, the investigation proceeds to analyze their credibility as well.

The pattern repeats as all kinds of things get pulled in. What kind of person is Bob? Was Bob coming home from church at the time of the incident? Or was he coming home from heavy drinking at a rough bar? Did he get in a fight at the bar? Did he start the fight? Is Bob prejudiced against people like Alice? Is Alice prejudiced against people like Bob? What are the prejudices of every single witness? Do Bob and Alice know each other? Were they coworkers? Did either of them hate the other? Was one of them stalking the other? Were they lovers? Former lovers? Who dumped who, and why?

All of the answers to all of these questions require evidence, and that evidence comes in the form of accounts from other witnesses, all of whom must also be evaluated for plausibility and truthfulness, because people may lie to help their friends and hurt their enemies, or for personal reasons. We have to keep asking, how do we know? And who says? And are they telling the truth?

So now it begins to matter that Alice’s story is backed by Ivan, but maybe Ivan is lying because Jeff thinks Ivan has a thing for Alice because he saw Ivan give her flowers, but Kate says she got flowers from Ivan too, so maybe Ivan just likes giving women flowers, and now Larry is telling us that Jeff is lying about Ivan’s attachment to Alice because he hates her, and, and, and…

We’ve gone from the simple case of Alice shooting Bob to the vagaries of whether Jeff is lying about why Ivan is giving flowers to women. It all seems like a distraction, but there’s also a point about the credibility of a key witness to a shooting, so we can’t ignore it, but we shouldn’t make too much of it either, and so maybe we should get a little more information…

Multiply that by ten, or a hundred, and you can see why discussions of these incidents go so far afield. This is why it may be important that Treyvon Martin had Skittles, or that Michael Brown stole some cigars. This is why it may be important that Brown was going to college, or that officer Wilson had worked for a troubled police department before transferring to Ferguson. These facts aren’t part of the shooting incident, but they may matter because they’re part of how we judge the truthfulness of witnesses.

That’s it for now. In the third and (I think) final chapter, I’ll talk about how we hear about all this, and how we respond to it.

Update: Part 3 is up.

In response to my earlier post about the grand jury in the Michael Brown case, Jack Marshall posted a lengthy comment. Events have somewhat overtaken that post, but I wanted to address a few points Jack makes. (He wrote his comment before the grand jury decision came out.)

I don’t find the fact that a prosecutor could get an indictment probative of whether he should get one, not at all. The special prosecutor in Florida, for example, indicted Zimmerman with nothing that would support a conviction. That’s not serving justice.

Funny you should mention Zimmerman, because prosecutor Angela Corey only charged Zimmerman with a crime after caving in to public pressure to do so. Initially, prosecutors chose not to charge Zimmerman at all. If Bob McCulloch thought Darren Wilson’s shooting of Mike Brown was justified, there was no need to present anything to the grand jury.

If there were conflicting witnesses, it would be lousy practice to merely put on Johnson, about as biased a witness as one could find.

After Darren Wilson. But point taken.

The fact that there were six shots fired isn’t indicative of anything. Police are trained to fire until a subject is down.

I agree with Jack’s point about police tactics. Some time ago, police departments noticed there had been a number of incidents in which an officer fired a shot at an attacker which either missed completely or didn’t stop him quickly enough to prevent him from injuring or killing the officer. So modern police training tends to emphasize shooting until the attacker goes down.

This means that the number of shots fired is not necessarily indicative of maliciousness, anger, or race hatred. It’s just training. However, the number of shots is indicative of intent. One shot could be an accident. Six shots are on purpose.

Or to look at it another way, instead of a white cop shooting an unarmed black teen, imagine that it was just two white dudes from Missouri, Vern and Earl, who ran into each other on the streets one day. Somehow Vern ended up drawing his gun and shooting Earl to death, and it turns out Earl was unarmed, and some of the witnesses describe Vern shooting him in cold blood. In that case, don’t you think the prosecutor would make sure the grand jury heard that Vern shot Earl six times?

Why would a prosecutor want to indict a police officer if the evidence showed that he was in legitimate fear of his life and fired in self defense?

If that’s what the prosecutor thought the evidence showed, why would he present evidence to the grand jury at all?

Why would you assume that if the prosecutor is presenting the evidence fairly, he doesn’t want an indictment?

Because that’s not what prosecutors do when they want an indictment. The grand jury process isn’t “fair” in the same sense that a trial is, and it’s not intended to be. There’s no presumption of innocence, no way for the defense to contest the admission of evidence, no way to impeach a witness. It’s not even an adversarial process.

I will presume, until I see evidence to the contrary, that if the officer isn’t indicted, then there was not sufficient evidence to bring a legitimate indictment. Sure, prosecutors often get grand juries to indict on insufficient evidence. Are you really advocating that? Why? Because the protesters and civil rights groups want it to be a racist cop shooting an unarmed kid, rather than a scared cop shooting a charging thug with more than a 100 pounds on him who already tried to get his gun?

Jack is right that the process Darren Wilson went through is not inherently unjust. And going back to my hypothetical shooting in which Vern killed Earl, I think it’s entirely possible that citizen Vern would receive the same three months of investigation, and the same weighing of evidence, that Officer Wilson did.

The difference is that Vern would be indicted by the grand jury the first day (or just charged directly), and the rest of the process would take place while Vern sat in jail, unless he was able to make whatever really high bail the judge gave him. Also, some of the investigation would probably be done by the defense rather than the prosecutor, and if the prosecutor wasn’t convinced, Vern would have to go to trial or take a plea to a lesser crime.

To illustrate why Darren Wilson’s wonderful treatment by the prosecutor makes people angry, let’s change the hypothetical a bit: Let’s suppose it turns out that Vern is actually a second cousin to former President Bill Clinton. Then suppose the media begins finding witnesses who say that Earl had his hands up when Vern shot him. Now imagine that without interviewing some of those witnesses, and before the forensics are in, the chief of police makes statements of support for the Clinton relative and says he won’t be charged.

However, Earl’s family and friends drum up public criticism, so the county prosecutor — who has family members that work for the Clintons — announces that he will present the case to the grand jury. Unlike most presentations to a grand jury, in which a few witnesses are presented over a couple of days, this case drags on three months and includes 60 witnesses. Unlike most presentations to a grand jury, Vern testifies and tells his side of the story. Unlike most presentations to a grand jury, the prosecutor does not explicitly ask the grand jury for a particular criminal charge. And in the end, unlike most presentations to a grand jury, there’s no true bill, and Clinton’s cousin walks away a free man.

And so my question to Jack: Given your low opinion of Bill Clinton’s ethics, if you found out that a relative of his had been no-billed by a grand jury proceeding unlike any other, run by a prosecutor with close ties to the Clinton family, wouldn’t you be damned suspicious? Wouldn’t that set off your ethics alarms?

Now if you replace Vern with Darren Wilson, Earl with Mike Brown, and “Clinton family” with “police,” that suspicious scenario is pretty close to how the Ferguson grand jury decision feels to a lot of us: A killer with ties to a politically influential group benefited greatly from a one-of-a-kind grand jury proceeding.

Ultimately, the decision may in fact be the right one, but that kind of privilege and special treatment is astoundingly unfair.

(Caveat: I wrote my original post and parts of this one before the grand jury decision was released to the public. I haven’t read the full document release, nor do I plan to — I’ll wait for analysis from some of the web’s smart legal minds. It’s certainly possible that some of the issues I previously viewed as suspicious will turn out to have reasonable explanations once I catch up, but I maintain that I was right to be suspicious at the time.)

Ferguson is breaking my heart. I’m not talking about the grand jury’s decision not to indict Darren Wilson for the murder of Michael Brown. I pretty much expected that.

What’s breaking my heart is the magnitude of the destruction going on during the protests. I paid pretty close attention to the earlier batch of protests, right after Brown was shot, and there was sporadic property damage, some of it severe, but for the most part, the protesters were peaceful. It was neighborhood people out late, milling around, making noise, and occasionally blocking traffic. As a middle-aged white guy, I didn’t see much that would make me feel unsafe to be there.

None of that stopped the racist fuckwads who continued to paint the largely peaceful protesters as looters and and wild animals. And tonight, unfortunately, some of the protesters are doing everything they can to give the racists an “I told you so.”

This time around, the looters are out in force, and a lot of stuff seems to be burning. Just a brief Twitter scan finds mention of a Metro PCS phone store, a Beauty Town beauty supply store, and the outreach office of Alderman Antonio French. Also a New York Grill, a Little Ceasar’s, a Walgreens, a car dealership, an Enterprise car rental, several auto parts stores, a public storage facility, and a church van.

All burning away.

I am reminded of an old joke:

Late at night, a drunk was on his knees beneath a street-light, evidently looking for something. A passer-by, being a good Samaritan, offered to help. “What is it you have lost?” he asked.

”My watch,” replied the drunk. “It fell off when I tripped over the pavement.”

The passer-by joined in the search but after a quarter of an hour, there was still no sign of the watch.

“Where exactly did you trip?” asked the passer-by.

“About half a block up the street,” replied the drunk.

“Then why are you looking for your watch here if you lost it half a block up the street?”

The drunk said: “Because the light’s a lot better here. ”

What we’re seeing in Ferguson is the because-the-light’s-better-here version of sticking-it-to-the-man. The jerks setting fires are angry at the cops and the political institutions they protect, but they know that attacking the establishment is hard. Assaulting the cops and burning down the police station would be one hell of a statement, but the cops are armed and prepared for a fight. Attacking them would require skill and audacity and a willingness to risk getting arrested.

On the other hand, burning down private businesses is much easier. The vandals can tell themselves they’re fighting capitalist oppression or hitting the establishment in pocketbook or whatever, but the truth is that small shops and fast food joints are much softer targets. The light’s a lot better there.

The political leadership of Ferguson, on the other hand, remind me of a (possibly untrue) story I once heard about Iraqi leader Saddam Hussein from the first Gulf War. His forces had invaded Kuwait, and a few months later a coalition lead by the United States counterattacked into eastern Iraq. They moved with breathtaking speed and routed the Iraqi army. Saddam watched the defeat unfold from one of his bunkers, as the coalition forces advanced to a point where they had a clear path to capture Baghdad and Saddam himself.

Before that could happen, however, with Kuwait being freed from Iraqi control, the U.S. declared a unilateral cease-fire. Saddam’s reaction was supposedly a jubilant “We’ve won!” Although twenty thousand Iraqi soldiers had died in the battle, Saddam considered it a victory because he was still standing, and that’s what mattered most.

The police presence available to keep the peace in Ferguson consisted of hundreds of officers, perhaps as many as a thousand according to some sources. The Governor of Missouri declared a state of emergency and dispatched National Guard troops. And yet looters controlled the streets, and a dozen businesses burned out of control for hours. But all the cops are safe and the police station is intact, so I’m guessing they feel they’ve won. Because to the powers-that-be in Ferguson, their safety is what mattered most.

Ah, fuckit. I’m running out of steam here. Maybe it all won’t seem so bad when I wake up in the morning.

Update: Reading back over this, I should point out that even if every fire was started by a different person, which seems unlikely, that’s only a dozen or so arsonists among all those protesters.

I should also add that I’m not saying cops should have taken insane risks with their lives to stop the looting and support a fire suppression effort. On the other hand, police have been comparing themselves to soldiers and saying police work is a battlefield for years, and in response we’ve been equipping them with shields and body armor and armored vehicles. Well, last night the battle came to Ferguson. Did they use all that fine equipment the way we wanted them to?

Finally, as to the grand jury’s decision, a cop shooting an unarmed black man sounds damned suspicious, but these sorts of incidents are always very fact sensitive, and based on the bits and pieces I’ve heard, I can imagine ways in which the shooting of Mike Brown might have been justified. And that’s true for most of these cop-shoots-unarmed-person shootings: Any one of them might be justified. But they can’t all be justified. There are some cops getting away with some shit.

We keep hearing about police plans to respond to protests in Ferguson, Missouri if the grand jury investigating Officer Darren Wilson’s shooting of Michael Brown decides not to return an indictment.

On the other hand, if the grand jury decides to indict Wilson, there would be a warrant for his arrest, and that would mean there’s officially an accused murderer on the loose. And we know he’s got access to weapons, training, and an undisputed willingness to kill, right? So how come we haven’t heard anything about the plans to send SWAT teams to capture him?

Obviously, no one expects Darren Wilson to be indicted. The other clue is that it’s taking so long for the grand jury to announce a decision. If anyone in the prosecutor’s office really thought Wilson was a murderer, do you think they would have allowed him to remain on the streets for three months?

As Jeff Gamso points out, this is a slam-dunk indictment if the prosecutor wants it to be. If you or I had shot Michael Brown, the grand jury proceedings would have gone something like this:

  • Present witness Dorian Johnson, who was present at the shooting, and have him repeat his statements to the media describing how Darren Wilson shot an unarmed Michael Brown in cold blood.
  • Present the medical finding that Brown was shot six times and that he died from the shots.

I’m no lawyer, but I’m pretty sure that’s enough for a murder indictment. There’s no need for cross examination or hearing from the other side. Grand juries proceedings are not a trial, they are the threshold over which an accusation must pass to get to a trial, and it’s a very low threshold. The grand jury just has to think it deserves a trial.

Of course, for them to do that, the prosecutor would have to want them to.

We’ve heard a lot of argument about whether or not George Zimmerman’s shooting of Trayvon Martin was murder or self defense, and more recent controversial shootings such as that of Michael Brown by Darren Wilson in Ferguson, Missouri have raised many of the same issues. Some of the disagreements represent a genuine clash of values, but there’s a lot of noise caused by differences in how we receive information about lethal force incidents, how we weigh different aspects of that information, and how we fill in the gaps.

It seemed like a good subject for one of my lengthy thinking-out-loud posts, and indeed I was able to pile up a great many words, some of which may even be worth reading.

When I started writing, however, I realized that in order to write about how we discuss lethal force, I was going to have to write about when it’s okay to use lethal force. That runs into the hazard that anything I write about when it’s okay to use lethal force is going to sound an awful lot like legal advice.

So before I get into this, I want you to understand one thing: This is so not legal advice. I’m not a lawyer, and if you ask me when it’s okay for you to shoot someone, I’ll tell you it is never, ever okay for you to shoot someone, because if you’re looking to me for advice on when to shoot someone, you have no business contemplating shooting people.

That said, I’m going to try to explain some basic ideas about lethal force. These ideas are roughly based on the sort of thing you might be taught in a course on self-defense with a firearm, which in turn is based on self defense law. But my discussion is neither legal advice not self-defense instruction (I’m not qualified for either). Rather , this is more like a primer on how to think about stories in the news that involve lethal force.

I’m going to begin with a discussion of the basics of self-defense and then move out from there into increasingly confusing realms of understanding. I fervently hope that nothing I write makes you stupider for having read it, but as always, there are no guarantees.

Self Defense

I guess I should start by asking, when is it okay to kill someone? In a sense, the correct answer is never. Aside from a few special (and very controversial) situations — war, capital punishment, assisted suicide — it is never okay for Alice to intentionally kill Bob.

However, if Bob is attempting to kill Alice — or any other innocent person — it is okay for Alice to try to stop him. She has the right to self defense, and although self defense is generally supposed to be proportional, the fact that he is trying to kill her means that she can be pretty extreme in her attempt to stop him, up to and including doing things that might kill him.

But her goal can never be just to kill him. Shooting and possibly killing Bob can only be justified when it’s necessary to save a life. The way this is commonly put is that Alice can’t shoot to kill, but she can shoot to stop a killing. Sometimes shooting to kill is the only way to stop an attacker, but that’s the only way it can be justified.

(There may or may not be other actions Alice can ethically shoot to stop, such as severe injury, rape, or kidnapping. We can make our own moral judgements about what’s worth killing for, but Alice would also be judged under the laws where she lives. On the other hand, a pacifist may feel it is never okay for Alice to kill Bob, even if Bob is trying to kill her.)

One important point alluded to above is that in order to defend yourself you have to be innocent. If Bob breaks into Alice’s house at night, Alice may be justified in using lethal force to stop him. But even though her shots endanger Bob’s life, he does not then have the right to shoot at her in self-defense. He’s not innocent, he’s a home invader.

If Bob quickly flees the house to get away from Alice, then he’s no longer a threat, so Alice no longer has the right of self-defense and cannot shoot him as he runs away. If Alice decides to follow Bob out of the house and shoot at his back as he flees the scene, then she is the aggressor, and Bob then he arguably acquires the right to defend himself against her, including the use of lethal force. If he shoots back and wounds her and she drops the gun, then Bob loses the right to self-defense and has to stop shooting. If instead he continues shooting, perhaps to finish her off, then Alice is once again the innocent victim, and she arguably has the right shoot Bob to defend her life.

In a complex confrontation between Alice and Bob, the right of self-defense could switch back and forth multiple times. The reasons that happens — Bob fleeing, Alice dropping the gun, and so on — are exactly the kind of details that often gets left out of early news reports, either because the details aren’t known to the reporters, or because the reporters or their editors don’t recognize the significance of the details.

Interlude: Tragedy

Note that it’s possible to believe both that (a) Alice shot Bob in a righteous act of self defense, and that (b) Bob’s death is a tragedy.

For one thing, Bob did not live in this world alone. There are probably people who will miss him and mourn his loss. Bob was somebody’s son, and he may have been somebody’s brother, husband, father, or friend. Even if Bob turns out to have been a violent asshole intent on raping and murdering Alice, it’s not going to change the way that people feel about the Bob they knew. Even if Bob was killed by police while shooting children at a school, Bob’s parents are still going to cry that he’s gone. No matter how much Bob objectively deserved his fate, nobody who knew him is going to instantly incorporate that fact in their emotional response. The heart doesn’t change direction that fast.

But even if no one misses Bob, many people would argue that his death is still a tragedy. Killing Bob may have been necessary to prevent the loss of innocent life, but that doesn’t mean that Bob’s death isn’t a loss as well. Bob’s death destroys both the bad and the good in him, and we can regret the loss of the good parts, even if Bob brought it on himself. No one is as bad as the worst thing they’ve ever done.

That’s not to say that Alice was wrong to kill Bob in self defense. Alice may have killed him to save her life, and we can approve of her doing so, but it’s no criticism of Alice’s actions to say that it would have been even better if Alice had figured out a way to save her life without killing Bob.

There are of course limits to that sentiment — everyone likes to see the bad guys get what’s coming to them — and there’s a lot of subjectivity in our feelings toward criminals. It’s easier to feel the loss of a teenage gangster killed in a gunfight with police if you grew up with people just like him, or if you could have been him in another life. On the other hand, there’s no reason to expect any sympathy from the family of his victims…although that has been known to happen.

Perception and Intent

Self defense is just the first layer of the ethical puzzle, describing the conditions under which Alice is allowed to shoot Bob. There’s a difference, however, between the abstract morality of certain outcomes and the ethics of human action, because people are limited by their perceptions and understanding.

If Alice or Bob honestly misunderstands the facts of a situation in such a way that they would not be doing anything wrong if their understanding was correct, we generally do not consider them to have committed a moral error. We judge people’s ethics by their decisions based on their subjective knowledge at the time of the event, not on our own knowledge in hindsight.

This usually enters the lethal force analysis with regard to the question of whether or not someone’s life was actually endangered. When we say Alice can shoot Bob to stop him from killing her, what we really mean is that Alice can shoot Bob if she reasonably believes it is necessary to stop him from killing her. The usual way to express this is that Alice must be in fear for her life.

Perhaps Bob plays a mean joke on Alice by pointing a fake gun at her and screaming “Die! Die! Die!” just to see her frightened reaction. Since Alice isn’t in on the joke, she might reasonably come to the conclusion that Bob intends to kill her, and so she might believe it is necessary to use lethal force to stop Bob’s “attack” and end up shooting him dead.

Had Bob actually been attempting to kill Alice, we might say this was a righteous shooting in self defense. It would have been the right thing to do, and if in the future Carl attacked Alice the same way, we would want her to shoot him as well. However, since Bob wasn’t actually trying to kill Alice, her shooting him was not the right thing to do, and if Carl performs a similar fake attack on Alice, we ideally want her not to shoot him.

Nevertheless, this does not mean that Alice is a bad person who deserves punishment. We can understand why Alice shot Bob, and although with full knowledge of the situation we realize it was the wrong thing to do, we can also realize that with Alice’s limited knowledge, it probably seemed like the right thing to do. On the other hand, if Alice ignores information — limits her own knowledge, either recklessly or intentionally to avoid the duty to take it into account — we may hold that against her.

Note also that it’s not enough for Alice to be afraid. There has to be some connection to reality. Alice’s fear need not be accurate, but it must be reasonable. If, for example, Alice has an irrational fear of young black males and Bob is a young black male, that’s not a license for Alice to shoot Bob.

In general, the subjective nature of Alice’s perception makes the ethics harder to analyze. If Bob breaks into Alice’s home carrying a gun and charges at her while screaming “Die! Die! Die!”, we’d probably all agree that’s a justified shooting. If Bob was actually playing a prank and didn’t even have bullets in the gun, I think we’d all agree that Alice is not the one at fault.

But what if Bob is just a burglar who intends Alice no harm? What if he breaks into Alice’s house in the night, but he brings no gun and makes no threats, and Alice still shoots him? Shooting Bob is not necessary to save Alice’s life, but does it look that way to Alice? Is she required to see a weapon or evidence of intent to harm before she can shoot him? Or do we say that when Bob breaks into Alice’s house in the middle of the night that she can reasonably presume that he intends to harm her and has the means to do so?

The analysis based on reasonable belief also brings into play factors that might influence Alice’s reasoning. Alice might have had previous encounters with Bob that lead her to believe that he’s dangerous, or she might have previously been attacked by strangers in the same location where she encounters Bob, or police might have been warning area residents of a rapist who breaks into homes in the middle of the night, or Alice might have had self-defense training in which she was told that most intruders who break into occupied homes intend serious harm to the occupants.

It’s even possible for situations to occur in which both sides reasonably believes that they’re in a self-defense situation. Imagine that Alice comes home to find the front door ajar. Furthermore, she can hear someone moving around inside. Concerned, she draws her gun and enters. However, what Alice doesn’t realize is that because she lives in a real estate development where all the houses look the same, she has mistakenly entered Bob’s house. Upon seeing hearing Alice enter the house, Bob becomes concerned and draws his own gun to go investigate. When Alice and Bob encounter each other, each reasonably believes they’ve encountered an armed intruder, and both open fire.

Although Alice is clearly the one who made the mistake, and even though the consequences were profound and tragic, it’s not clear that Alice’s error is the moral equivalent of murder. She certainly wasn’t intending to kill an innocent person. With a little more inventiveness, perhaps involving a malicious third party, we could probably come up with scenarios where it’s not at all obvious that either Bob or Alice is to blame.

This is one of the most contentious areas in the ethics of self defense. On the one hand, we don’t want Alice shooting at anyone who makes her uneasy; on the other hand, we don’t want her to wait until she sees the muzzle flash. There’s a lot of distance between those extremes, and sincere and diligent people can nevertheless have very different ideas of what should reasonably cause someone to fear for their life, or of what mistakes are understandable and excusable.

Making things more complicated, we need to be careful not to confuse our analysis of perceptions and our analysis of reality. It’s not inconsistent to believe that (a) Alice was justified in shooting Bob because she was in fear for her life, and (b) Bob was not actually endangering Alice’s life.

To make that more concrete: Thinking that George Zimmerman and Officer Darren Wilson don’t belong in jail is not the same as thinking that Trayvon Martin and Michael Brown deserved to die, or that it’s open season on young black males. It’s true that there are people who think that Martin and/or Brown were thugs who deserved to die, or that young black males are a threat to public safety, but it would be a mistake to assume that everyone who defends Zimmerman and Wilson is in either of those camps.

By all means, if your opponents are actually violent racists, you should call them out on that. But there’s a difference between wanting to see young black kids killed for no reason and believing Zimmerman and Wilson did the right thing. And there’s a difference between believing Zimmerman and Wilson did the right thing and believing that Zimmerman and Wilson did the wrong thing for understandable reasons. Intellectual honesty demands that we recognize the distinctions and take them seriously, and that when evaluating other people’s opinions, we recognize that they may be making different distinctions than we would.

That’s enough for now. In future posts I’ll explore how we learn about lethal force incidents, and why that adds to the confusion.

Update: Part 2 is up.

Scott Greenfield is complaining about people who propose simplistic solutions to the ills that infest the criminal justice system. This time it’s the Economist, and their solution is the ever-popular one of eliminating the problems of plea bargaining by eliminating plea bargaining. Scott’s not happy with that for the usual reason criminal defense lawyers aren’t happy with eliminating plea bargains:

Consider what life would look like without plea bargaining.  Every defendant would then have to be tried to be convicted, as there would be no incentive to cop out.  Every guilty defendant would then be subject to full freight sentencing, the price that no one in power really expects anyone to pay, which is what allows them to set the MSRP for crime in the stratosphere, tell the groundling during stump speeches about how they’ve saved them from rapists and give headline writers silly numbers for clickbait.

I have no disagreement with this. Criminal defendants would get hammered without the plea bargaining escape hatch. You would not want to be prosecuted for a crime after plea bargaining was eliminated. Nevertheless, Scott misses a point that may be worth discussing (or maybe not, but that never stops me) when he writes this:

The government would need 100 times the existing number of courtrooms, judges, clerks, court officers, prosecutors and jury pools. And public defenders would get stretched a wee bit thinner.  Even so, kids would sit in jail for years awaiting trial, turning that one year potential sentencing into three, until it was their turn in the well.

The government is not going it get what it wants. Increasing the case volume of the justice system 100-fold — or 20-fold if you use the 95% plea figure — is never going to happen. The government can’t afford the cost of holding trials for everyone they charge, and it sure as hell can’t afford the cost of operating prisons for all those people. (Instead of having 1% of our adult population in prison, we’d probably have to hire 1% of our population as guards for our vast prison empire.) If we somehow outlawed plea bargaining tomorrow, there’s no way the government at any level could afford to try and imprison everyone that gets arrested.

Advocates of eliminating plea bargains are counting on this. Without a larger budget, prosecutors would have to make some hard choices about who to prosecute and who to let walk. They’d have to focus their efforts on the people they most want to put in prison and let everyone else go. It seems likely to me that the net effect would be a reduction in aggregate prison time.

On the other hand, it would be devastating for Scott’s clients. The ones found guilty would be pounded into the ground by draconian sentences, much higher than the legislature intended, and these long sentences would be concentrated on a small group of people, which is arguably unfair. (Speculation about this group’s age, race, and gender characteristics are left as an exercise for the reader.)

The other big problem with eliminating plea bargaining is that lots of crimes would go unpunished. While it seems unlikely that every single one of the 95% who currently take plea bargains are guilty, it is probably even less likely that every single one of them is innocent. Many of them would go on to commit more crimes against the public. Eventually, they would be prosecuted and imprisoned, but in the meantime they could wreak havoc on the innocent. It seems likely that the result would be a lot more crime.

Finally, as a libertarian, I’d like to think that if the justice system could only prosecute a small fraction of the crimes it does today, it would abandon enforcement against consensual crimes and focus on crimes that present a real danger to the public. Somehow I doubt that would be the case.

The plea bargaining system could use some reform, but eliminating plea bargains altogether is an extreme measure that would imprison a lot of people for a very long time while allowing crime to run rampant. That doesn’t sound like it would be good for anybody.

We just had Elliot Rodger’s rampage in Isla Vista, and we’re now seeing another horror story from Waukesha, Wisconsin, in the form of two 12-year-old girls who stabbed another 12-year-old child, supposedly to benefit a supernatural entity known as “Slenderman.”

Slenderman is an entirely fictional creation of recent vintage:

He is Slenderman, a menacing, faceless specter in a dark suit — sometimes portrayed with octopus-like tentacles — known to haunt children and those who seek to expose him. He was born in 2009 in an online forum for people who enjoy creating fake supernatural images.

[…]

To be clear, the origin story of the monstrous character (sometimes referred to as The Slender Man) in no way urged readers to kill to earn his favor. But Slenderman has undergone hundreds of permutations online in his five-year existence.

If you want to learn more about Slenderman, you can Google him up as easily as I can, but the details aren’t really very important. Although someone studying the psychology of the would-be killers might find it interesting to explore their beliefs about Slenderman in some detail, I doubt that the specifics of the legend are an important part of the cause of this violence.

For one thing, these kinds of killers — serial killers, spree killers, thrill killers — are often a bit confused about the world. Something may have inspired them, but they often seem to get more out of their inspiration than what’s actually there. Back in the late 1980’s a pair of young men named Raymond Belknap and James Vance shot themselves in some sort of suicide pact. Belknap died immediately, but Vance lived for three years afterward, and he claimed they were inspired to suicide by lyrics in some Judas Priest songs. The thing is, he remembered stuff from the lyrics that just wasn’t there. In his book The Gift of Fear, author Gavin de Becker recounts some confusion by Vance when it came to the lyrics:

The group Judas Priest did not create James Vance, of course, but in a sense, he created them. When he was asked about a particular lyric, “They bathed him and clothed him and fed him by hand,” he recited it as “They bathed him and clothed him and fed him a hand.” So he had done more than just react to the songs; he had actually rewritten them, taken a lyric about someone being cared for and turned it into something about cannibalism. Even his admiration was expressed in violent terms. James said he was so enamored of the band that he would do anything for them, “kill many people or shoot the president through the head.” He told lawyers that if the band had said, “Let’s see who can kill the most people,” he would have gone out and done something terrible. In fact, the band said no such thing, and he did something terrible anyway.

Another example is John Hinckley Jr., a disturbed young man who became obsessed with actress Jodie Foster after seeing her in the movie Taxi Driver. After stalking her for a while at Yale University, where he was unable to make any meaningful contact, he eventually decided that his best chance to impress her was to make some spectacular gesture, and on March 30, 1981, he opened fire on President Ronald Reagan and his entourage outside the Hilton Hotel in Washington, D.C., wounding Reagan and three other people. Needless to say, Hinckley’s stated intentions were not grounded in reality, and his assassination attempt did not actually impress Jodie Foster, nor did anyone blame her for his actions. He was just crazy.

A few years before that, serial killer David Berkowitz shot 13 people in New York over a period of several months. When he was captured, he claimed to have killed his women victims because his neighbor’s dog was a demon that had demanded a blood sacrifice. As with Hinckley, the craziness of his motivation was immediately apparent, and nobody actually blamed the dog. Further, some criminal psychologists believed Berkowitz made up the whole “dog made me do it” story to lay the groundwork for an insanity defense, or maybe just to mess with investigators. And depending on how you interpret some of his statements, Berkowitz may also have tried to convince investigators that he was part of a team of murderers, some of whom were still at large. There’s no evidence for that, though.

Ted Kaczynski, the “Unabomber,” carried out a 17-year campaign of mail bombings that claimed 26 victims, three of them fatally. Based on a 35,000-word “manifesto” he sent to newspapers, he appears to have been attacking people involved in technology our of some concern for the dehumanizing effects of industrial society. Like Berkowitz, Kaczynski also seems to have wanted to convince people he had confederates: The manifesto was written in the first-person plural and refers to something called “Freedom Club,” but there is no evidence of involvement by others.

Confessions should generally be taken with a grain of salt. In 1984, a white man named Bernhard Goetz shot four young black males on a commuter train. When captured, he claimed it was self-defense (which held up in court), but he also said that after shooting each man once, he walked over to one of them, told him “You don’t look so bad, here’s another,” and shot him again. At the trial, however, it turned out that each man had been shot only once, and most witnesses said that all the shots were in rapid succession. No witnesses heard him say the “here’s another” line. He had apparently invented a story that made him seem like more of a badass.

Confusion abounds. Some killers claim to be getting back at bullies, but when investigators interview their acquaintances, it turns out they were bullies themselves. Some killers try to manufacture higher purposes for their crimes, such as leading revolutions against real or imagined oppression. Others spin their crimes to make themselves seem less pathetic and more cool and in control. Still other killers try to evade punishment by denying all involvement with the crime or blaming someone else, including the victim. On the other hand, something like 20% of all post-conviction exonerations include false confessions to the crime.

So while it’s important to consider a killer’s statements about his crimes, it’s also important to keep in mind that what he says may be delusional, incoherent, self-aggrandizing, manipulative, or an outright lie. This is obvious when the killer’s explanation is clearly nonsense — involving Slenderman or talking dogs — but just because the killer’s explanation is banal and ordinary doesn’t mean it’s accurate. And just because his explanation is crazy doesn’t mean he’s crazy in the most obvious way.

A young man named Elliot Rodger apparently killed six people Saturday in Isla Vista California. I say “apparently” because the story is new enough that it keeps changing. When I first heard it, he had shot six people dead, but now it appears that three of them were stabbed, according to a recent version of the story. Apparently most of his targets were women, although not all of them. The story is likely to change again by the time you read this. For that reason, I wouldn’t normally write about a story like this, since almost anything I say would be speculation, and it could turn out to be very wrong when a clearer story emerges.

Still, a lot of people are talking about it anyway — it’s hard not to, when it’s something so shocking — and I’d like to talk a little bit about what some of them are saying.

The first thing to note is that this is a confusing situation. A lot of people are emotionally upset by what happened, yet the story isn’t really clear yet. That’s a combination that is guaranteed to produce angry misunderstandings. People might say strange things just because they’re working from a different version of the facts than we are, which isn’t their fault (especially if it turns out their facts are correct and ours are wrong). They might also be repeating something they heard without thinking it through or trying to verify the truth of it. So for the first couple of days, if somebody says something that really pisses us off, we might want to cut them some slack and hold off on our angry responses.

And even when we don’t want to cut them any slack, we may still want to hold off on angry responses anyway. Some people are just trolls, saying outrageous stuff just to be outrageous and get a reaction. It’s best not to feed the trolls. (Although in some cases, you will probably want to keep an eye on them in the future. Geez.)

With that in mind, I’d like to talk about some of the discussion of the “cause” of Elliot Rodger’s killing spree. Most of the emerging discussion of his motive centers around a video he posted and a “manifesto” he sent out. I haven’t seen either of them, and I don’t want to, but apparently they’re quite misogynistic, and he literally threatens to kill a bunch of women. This has naturally lead a number of people to make pronouncements about the how Rodger’s killings reflect the misogyny of our society.

One immediate complication to that view is that, as far as I can tell, Elliot Rodger started by killing his male roommates, and he ended up killing more men than women. (He also wounded a lot of people, and the news reports don’t talk much about them, so he may have shot more women than men.) I’m not saying that he wasn’t a misogynist, but it’s probably not a sufficient explanation for his behavior. I’m assuming he has some type of mental disorder.

For that reason alone, it would probably be a mistake to take much of what Rodger says at face value. Furthermore, murderers are often not really reliable sources of information about their motives. Almost none of them say, “I killed because I’m a violent asshole.” They cast blame elsewhere — the victim usually, but also society in general, racial minorities, women, video games, porn, music lyrics…anything other than themselves. Sometimes this is a clear case of a manipulative personality looking for a way out, and sometimes it’s just something they’ve come to believe. They feel lonely, cut off, and rejected by the world, and they blame the world for those feelings, and they seek their revenge.

I’ve heard that Elliot Rodger was associated with the Pick-Up Artist (PUA) community, and some people have tried to use his killing spree as proof of the misogyny in the PUA community. This is spurious reasoning. Spree killers, whatever their motives, are very rare. However they fit into society, whatever communities they are associated with, they are far out at the end of the curve, and they tell us very little about the bulk of the people clustered in the center.

If you want to make judgements about the values of a community, you should base it on the values displayed by the bulk of its members, not by the crazy people on the fringe. Elliot Rodger is not proof of the misogyny in the PUA community. The PUA community is proof of the misogyny in the PUA community.

I’ve also heard that Rodger was a Men’s Rights Activist (MRA), and some people are arguing that his killing spree is proof of the misogyny in that community as well. Again, you can’t judge a group’s values by the behavior of its most extreme members. Judge the misogyny of the MRA community by the misogyny of the MRA community.

There are those who would argue that by portraying Rodger as a lone madman rather than a representative of our misogynistic society, I am minimizing the problem of violence against women. I would argue that the people who are holding Elliot Rodger out as an example of societal misogyny are distracted from the larger social problem.

Spree killers are a small part of the problem of violence against women. The larger problem is less spectacular and more mundane, so it gets less news coverage. Usable statistics are surprisingly hard to find via Google, but according to a study by the Violence Policy Center (based on the FBI UCR Homicide Supplement), in 2009 there were 989 women killed by their husbands or boyfriends. An additional 590 women were killed by other men that they knew. That is far more than are killed by spree killers in any year. Using those numbers as a statistical average, it probably means that on the day Elliot Rodger killed two women in his spree, another 2 or 3 women were killed by their husbands or boyfriends, and an additional 1 or 2 more were killed by some man in their life. And unlike Rodger’s shooting spree, that toll keeps repeating itself day after day after day. It may be a better place to focus our efforts.

(And if you think domestic violence gets little coverage or study, it gets even worse for violence against sex workers, but that’s another matter.)

At the end of the day, I’m pretty confident that Elliot Rodger was some kind of madman. He may have seen himself in a political context, as striking a blow for unloved men everywhere against women and other men, but that doesn’t mean he actually was, or that other men in similar situations are going to follow his example.

And for the record, whatever mental disorder he was suffering from, he’s out on the fringe there as well. People with mental health problems are generally no more violent than everyone else.

In response to my post about some of economist Gary Becker’s views on crime, “russ” leaves a comment with a couple of interesting points:

I would think the failure of the war on drugs is the evidence AGAINST Becker’s idea that increased punishment reduces crime.

Just because criminalizing drugs hasn’t made them go away completely doesn’t mean that criminalization has no effect at all. After all, we’ve seen what happens when criminalization is undone: Certainly more alcohol was sold after prohibition was repealed than while it was in force, and the home-brewed beer industry exploded after that was legalized. I assume that criminalization is suppressing a lot of drug sales and consumption that would be occurring if drugs were legalized.

Becker is just saying that if you punish people for engaging in certain behaviors, people will be less likely to engage in that behavior. It’s just another variation of the general economic assumption that people will respond to incentives. Since Becker started studying the problem, economists have generally discovered that criminals are making the same kinds of risk/reward decisions as everybody else does. In other words, the movie Trading Places has a lot of truth to it: If you took a bunch of Wall Street bond traders and stuck them in the same circumstances as poor, uneducated inner-city minority youths, they would make many of the same life choices, and some of them would choose the high-risk/high-reward life of a crime. If you changes people’s incentives, you change their behavior. It happens all the time.

Of course, maybe the problem is that only those with a vested interest in prosecution consider the drug trade a crime. After all, non-fraudulent transaction between willing buyers and willing sellers are not really crimes.

I’m right with you there, although it’s more than just police and prosecutors and prison guards lining their pockets. There’s some genuine social disapproval of a lot of consensual crimes. People are busybodies, and they assume that anything that they don’t like is probably not important.

The death penalty was supposed to deter crime but there is no evidence that it has. Perhaps Becker’s theory that crime is subject to a cost-benefit analysis only applies to theft/fraud crimes.

I’ve heard mixed reports about the effectiveness of the death penalty. Some studies find a deterrent effect, and others do not. I’ve heard that in those studies that have found an effect, much of it goes away if you drop Texas from the data set. On the one hand, that doesn’t prove the study is wrong — of course the results of a study will change if you cherry pick the data — but it’s interesting that it all depends on the state with the most executions. Perhaps the deterrent effect doesn’t show up unless you execute a lot of criminals.

More generally, I believe studies have shown that deterrence effect is not as sensitive to the severity of the punishment as it is to the immediacy and certainty of the punishment. This would be consistent with the idea that the criminal personality includes a high tolerance for risk and that criminals discount the future heavily. So if we want to fight crime, it’s more important to make the punishment swift and sure than it is to make it harsh.

In the past few years, the states have been facing increasing difficulties obtaining the drugs they need to carry out their death penalties. This is in part because manufacturers have been refusing to make the drugs available for use in executions. So instead of using the traditional three-drug sequence, states have been experimenting with new drugs. However, since they don’t want manufacturers to stop selling them the drugs, states have begun keeping their execution protocols a secret.

And perhaps because of these changes, an execution in Oklahoma went disturbingly wrong:

McALESTER, Okla. — What was supposed to be the first of two executions here on Tuesday night was halted when the prisoner, Clayton D. Lockett, began to writhe and gasp after he had already been declared unconscious and called out “oh, man,” according to witnesses.

A medical technican inserted the IV needle and then the the first drug, a sedative intended to knock the man out and forestall pain, was administered at 6:23 p.m. Ten minutes later, the doctor announced that Mr. Lockett was unconscious, and the team started to administer the next two drugs, a paralytic and one intended to make the heart stop.

At that point, witnesses said, things began to go awry. Mr. Lockett’s body twitched, his foot shook and he mumbled, witnesses said.

At 6:37 p.m., he tried to rise and exhaled loudly. At that point, prison officials pulled a curtain in front of the witnesses and the doctor discovered a “vein failure,” Mr. Patton said.

Without effective sedation, the second two drugs are known to cause agonizing suffocation and pain.

Lockett eventually died, but that didn’t stop the criminal coddling defense bloggers (e.g. Gamso, Gideon, and Greenfield) from wringing their hands and calling for abolition of the death penalty.

Giving up is for losers. What I wanted was someone who could rise to the challenge of killing criminals. Naturally, I turned to the only name in blogging when it comes to sane, measured commentary about the death penalty, Crime and Consequences. I discovered that Kent Scheidegger had this to say:

As I have noted several times on this blog, lethal injection was a mistake from the beginning.  We should have kept the gas chamber and merely used a different gas.  Carbon monoxide, for example, is painless.

We have lethal injection for the time being, though, and we should make it effective.  Congress should act promptly to lift the restrictions on importation of the needed drugs and to outlaw manufacturers’ restrictions on resale of them.

Hmpf. I guess Scheidegger isn’t as much of a conservative as I thought. Not if he wants to limit manufacturers’ ability to set the terms and conditions of sale of their products in the free market. His closing paragraph just confirms his new namby-pamby liberal leanings:

We should do what we can to minimize pain in executions, but we should never forget that even in the worst execution what the murderer suffers is a tiny, tiny fraction of the suffering he chose to inflict on the victim.

“Do what we can to minimize pain in executions”? I visited C&C because I was looking for the hard-boiled law-and-order view, someone who would rain down hell upon the sinners. And he’s worried about minimizing pain? What a pussy.

So I set about searching for another solution. Surely someone among the hundreds of bloggers in my feed reader must have a friggin’ solution for the problem of how to execute people when the old tried-and-true drugs are no longer available. But try as I might, I couldn’t find anything useful.

In a desperate effort, I even visited The Watch, written by noted law enforcement expert Radley Balko, whose wonderful book Warrior Cop was such a loving tribute to the the brave officers who fight the war on drugs. He mentioned the Lockett execution in passing, but he had no solutions either. My heart began to fill with despair.

And then it hit me…

The states don’t need to find a new drug protocol to execute people. There’s another way states can kill people. It’s simple, easy, and effective. Every state already has the mechanisms in place, and they’ve been killing people with them for years. When it’s time for a prisoner to be executed per a judicial order, all they have to do is have a SWAT team stage a no-knock raid on the death chamber!

Just think of it: A few hours before the appointed time, the warden could call one of the local multi-agency drug interdiction task forces and leave an anonymous tip that the condemned individual was selling pot, giving the address of death row and the time when the inmate was expected to be there. The SWAT team would show up, lob flash-bang grenades into the room to stun the witnesses, kick down the door to the chamber, yell at the guy strapped to the gurney to get down on the floor, and when he doesn’t, empty their weapons into his center of mass.

Then the SWAT commander could complete the ritual by pulling a small baggie of crack out of his back pocket and announcing that police had “discovered salable quantities of narcotics at the scene” to reassure spectators that the bad guy got what he deserved.

Last summer, I expressed my doubts about scientific aims of the SORNA Challenge. By asking for proposals for “innovative” ways to measure the costs and benefits of the Sexual Offender Registration and Notification Act, I felt that the National Institute of Justice was implicitly admitting that the widely accepted methodologies of sociology, criminology, and economics wouldn’t give them the answers they were hoping for.

Also, the SORNA Challenge was using a very broad definition of the social benefits of SORNA, but limiting costs only to those directly incurred by the government, which could make SORNA look much more beneficial than it really is, if people using the study were not careful in interpreting the results.

I decided to check up on how the Challenge was going, and it turns out to be a bust:

We would like to thank everyone who submitted an idea under this Challenge.

We know our Challenge questions are tough, and in this case, no submission met the Challenge, so we will not award a prize.

We will continue to collaborate with the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking to address this important question.

That’s probably for the best.

Apparently yesterday was sentencing hell day at Simple Justice.

First up, Scott reminds us of the case of Antwuan Ball, Joseph Jones, and Desmond Thurston who were accused of engaging in a massive drug dealing conspiracy. The case went to a jury trial, and they beat all of the conspiracy charges. The jury only found them guilty of some relatively small-time drug dealing.

When it came time for sentencing, however, the prosecutor argued that they should receive harsh sentences for the crimes they had been convicted of because they committed those crimes as part of a massive drug-dealing conspiracy, even though they had been acquitted of those charges.

This process of sentencing on acquitted conduct turns out to be a pretty common practice. I’m very shaky on the legal reasoning, but I gather the basic principle is that a convicted person can only be sentenced for crimes he’s found guilty of committing, but once he’s convicted, the judge has broad latitude to mete out any sentence up to the maximum spelled out in the criminal code, and in making his sentencing decision, he can take into account factors that have not been proven to the jury. I can’t even pretend to understand the details.

What I do understand, however, is that this is bullshit.

One of the things I’ve learned from my amateur interest in economics is that it is more useful to judge policies by their results, fully accounted for, than by their intent or the mechanism used to enact them. Thus, a legislature that passes price caps on gasoline may intend to make driving more affordable for motorists, but when gas station owners stop selling gas because they cannot do so profitably, the result is going to be a gasoline shortage. The price cap mechanism and the legislature’s intent to ease the life of motorists may be well-intentioned and competently implemented, but any evaluation of the effectiveness of the price cap policy should include the fact that it makes it harder for motorists to fuel their cars.

Most of us think that the verdict in a jury trial is pretty important: You can’t be sent to jail for charges they can’t make stick, right? But in a case like this, where the judge can take into account everything the defendant is accused of (even if he’s acquitted of those crimes by the jury) the prosecution can obtain a hefty sentence — just as if they had succeeded at getting the jury to convict on many charges — as long as they can prove at least one of their accusations and then convince a judge to choose a sentence at the high end of the range based on all the remaining accusations, even if the jury was not convinced. Thus prosecutors can increase a defendant’s sentence (on average) by lodging many accusations, even if few of them can be proven to a jury.

In other words, if we look at the sentencing results produced by the policy of sentencing on acquitted conduct, we can see that the ability of the jury to influence the defendant’s sentence is being diminished by this policy. This is pretty disturbing in a country that is supposed to guarantee a right to a trial by a jury. How real is that right if the jury has so little control over the resulting sentence?

This whole idea angered Jim Caron, a former economist for the U.S. Department of Agriculture, who also happened to be one of the jurors that acquitted Antwuan Ball of so many charges. When he heard about the prosecution’s request, he wrote a scathing letter to the judge. I can’t find a copy of the whole letter, but here’s an excerpt:

As you remember, Judge Roberts, we spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements. We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail. If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time. Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly. No conspiracy shown but more importantly, where was the money? No big bank accounts. Mostly old cars. Small apartments or living with relatives.

It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves. We, the jury, all took our charge seriously. We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy. We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on. Eventually, through every hour-long tape of a single drug sale, hundreds of pages of transcripts, ballistics evidence, and photos, we delivered to you our verdicts.

What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty. Had they shown us hard evidence, that might have been the outcome, but that was not the case. That is how you instructed your jury in this case to perform and for good reason.

This story does not have a happy ending for the defendants. The prosecutors didn’t get quite the sentence they wanted, but the defendants still got tough sentences which were just upheld by the D.C. Circuit Court of Appeals a couple of days ago. Scott has more explanation and outrage.

Scott also posts about an Alabama Law Review article that reveals some disturbing (although not particularly surprising) things about how federal judges react to defendants’ allocution, which is basically their last chance to say something to the court prior to sentencing. I didn’t read the article, but Scott’s summary starts with some hope:

What this suggests isn’t that judges aren’t open to being influenced by allocution, but that the defendant’s statement (as well as defense counsel’s argument) do not sufficiently alter the calculus.  In other words, the opportunity may be there, but it’s either not being used very well or, more likely, there isn’t much that can be said that will change the judge’s views.

But significantly, when allocution does affect the sentence, it serves to lower the sentence, mostly within the guideline range, but closely followed by a below guidelines sentence.  The message here is that it is definitely worthwhile to put in the effort, and get it right.

Unfortunately, that proves to be difficult:

The problem, as is made clear in what follows, is that every judge has an approach that they think is perfect, and they differ markedly.

In their open-ended responses, some judges commented on the value of hearing defendants’ plans for the future, with one judge noting, “Some suggestion that the defendant has a concrete game plan for turning his life around would be helpful.” Many judges commented on the value of hearing the defendant reflect on his or her victims. But as one judge observed, defendants should “resist the powerful urge to whine and blame others.” Also, although defendants might think it wise to ask the court for forgiveness, at least for one judge, it is actually better to ask for leniency instead: It is not a “judge[’]s role to grant forgiveness. Asking for leniency and providing reasons why [a] certain sentence is appropriate works much better.” As this semantic difference demonstrates, defendants must forever be on their toes, navigating the bear-filled woods of each sentencing judge’s preferences—and defense counsel should be their guide.

What struck me about the specific advice is that many judges appear rather petty and trivial in what matters, reflecting a remarkable lack of understanding about the people whose lives are in their hands. Silly aspects, such as semantics, matter greatly to them, as they apparently are unaware that most defendants didn’t go to Harvard Law School and were lucky to have graduated from high school.  Yet, they expect such finely honed allocutions to reflect levels of mitigated speech, delivered with precision and yet sincerity, to appeal to their prep school sensibilities.

One of the the judges in the study advises that lawyers “Don’t let them read these long, prison-written letters. They tend to become maudlin, self-indulgent, and annoying . . . . Some defendants get carried away and start to whine that it wasn’t their fault, etc. That hurts any good that the attorney may have done.”

Scott’s response is moving:

Every lawyer knows the “long, prison-written letters,” put together with the best advice of their jail-house sentencing mavens, which is likely the longest thing they’ve ever written in their lives. They can be enormously proud of their speech, and desperate to deliver it.  They may swear it’s sincere, and demand their right to read it to the judge.  We may try desperately to explain that it’s not as effective as they think it is, to no avail. They want to be sincere, to be real, but it’s not the same sincere and real that judges want to hear.

That’s because, as the paper notes:

After preparation, defendants must come to court and deliver the allocution in a style that connects with the presiding judge. Overwhelmingly, judges in the survey indicated that they want defendants to show genuine remorse and sincerity. One judge bluntly recommended to defense counsel, “If your client cannot be sincere, and that is frequently the case, tell them to shut up.”

The problem with that idea, as the study paper points out, is that judges aren’t very good at detecting sincerity.

In fact, from what I’ve read elsewhere, I think it is safe to say that there is no such thing as a general human ability to detect sincerity. Study after study has shown that when we do correctly identify that someone is lying to us, it is not because of their demeanor, or their body language, or the tone of their voice. We detect their lies primarily through analysis of their statements and our knowledge of the subject matter. We look for internal inconsistencies within their story, we check their statements against facts we can verify, we compare their story to similar stories that we know the truth or falsity of, and we try to nudge them off their story to see if it changes.

Obviously, if the defendant’s allocution conflicts with his earlier testimony, or with other trustworthy evidence from the trial, a judge could conclude that he’s lying. But how can the judge tell if he’s sorry? How can the judge tell if he really wants to be a better person? How can the judge tell what’s in his heart?

Judges do have a lot of experience hearing allocutions, but I don’t think they get too much feedback. If they disbelieve the sincerity of a defendant’s remorse and sentence him to longer than he deserves, how will they ever know if they made a mistake? And if they don’t find out about their mistakes, how will they learn?

Frankly, I’ve always been a little horrified at the idea of “taking responsibility” and related concepts in sentencing. It seems like some kind of Soviet show trial, where the defendant is found guilty and then coerced into confessing his crimes. Because that’s what it is when you threaten to give somebody a longer sentence if they refuse to admit guilt: A coerced confession.

As Scott points out, this leaves defendants who believe they are innocent with a difficult choice:

The most notable, and glaring, omission in this article is what a defendant can do if he maintains his innocence through sentence.  This may suggest that no federal judge believes that any defendant being sentenced is innocent, or that they just don’t want to deal with difficult situations.

Given that they clearly want sincere expressions of remorse, it presents a dilemma for the defendant who maintains that he was wrongly convicted, which means he is unable to gain the advantage of a reduced sentence based on a sincere expression of remorse because he isn’t guilty, or he must give up his position of innocence to feign remorse to appeal to the judge.

Even with defendants who are factually guilty, this approach penalizes people who aren’t well educated or good at explaining things or used to speaking to judges. It’s hard to see what any of those things have to do with how much prison time is necessary, but apparently that’s how the system works.

On the other hand, this is also a system that rewards those who are slick and well-spoken and well-prepared by their attorneys. It rewards those who can acknowledge their bad acts and then look the judge in the eye at just the right point and, with just a hint of real tears, say they’re sorry and they’ve learned their lesson and with God’s help they will do better. It rewards those who are good at figuring out what other people want to hear and then saying it convincingly and with apparent sincerely. It rewards, among others, psychopaths.

Somehow that doesn’t seem like a very good way to fight crime.