Windypundit

Classical liberalism, criminal laws, the war on drugs, economics, free speech, technology, photography, and whatever else comes to mind.

Main Menu

Model Justice — Part 1

by 4 Comments

A few of days ago, defense lawyer Mark Bennett tweeted an interesting thread about how loss aversion bias could affect a criminal defendant’s decision to take a plea deal:

(If you’re interested, read the whole thread.)

For as long as I’ve been following criminal defense lawyers on the web, they’ve been discussing the way the criminal justice system encourages defendants to accept plea bargains rather than insisting on trials to force the state to prove its case in court. Often it’s some pissed off lawyer who wants to eliminate plea bargaining or end pretrial detention for routine offenses.

I think these kinds of reform proposals raise some interesting questions, and I’d like to explore them. I have some of my own ideas about how plea bargaining works, and why the system is the way it is, and I’ve been thinking of writing a blog post or two about it. But then I got a crazy idea…

For a while now, I’ve been trying to teach myself how to do system dynamics modeling, and these kinds of questions seem like they would make an interesting subject. I’m going to try to build models for some of the strategic issues affecting trials and punishment.

Models of systems are necessarily much simpler than actual systems because the real world is too complex and messy to recreate in a hand-built computer model with perfect detail, and yet we build models because we want them to tell us useful things about the real world. Thus the art and science of model design involves choosing which details the model must capture and which details it can safely ignore.

Before you can do that, however, you have to know how the model will be used. If you are designing a new type of commercial airliner, and you want to know the predicted fuel efficiency under a variety of flight regimes, you may need to build a detailed simulation of the engine and flight control surfaces and connect them to an aerodynamics model parameterized by a weather model of the troposphere and stratosphere. On the other hand, if you work for an airline that is operating the new airplane, you may be able to plan flights around the country using little more than a few tables that relate speed, altitude, and fuel consumption.

A related concern is the accuracy of the model in making predictions. A company planning to build a package sorting facility may do extensive modeling to test the layout and operation of machinery and workstations to achieve optimum efficiency. This has to be good enough to generate quantitative results that will help project managers spot subtle problems, detect conflicting operations, capture transient events, and calculate costs.

At the other end of the accuracy spectrum are relatively simple models that capture broad relationships within a system without attempting to produce mathematically precise predictions. A lot of social science and economic models fall into this category. These are tools of exploration and learning, and we use them to test our intuition and refine our understanding.

That’s what I’m aiming for here. The model I’m building is going to start out extremely simple — it’s not even going to have plea bargaining at first. I hope to improve the model in future posts so it can exhibit more complex behavior including, eventually, plea bargaining. But before I can model plea bargaining, I have to model the circumstances under which plea bargaining arises, and that’s going to take a while.

I’m building this model using a simulation tool called Insight Maker. I chose it because it’s totally free, and because the simulation engine and development environment are written in JavaScript, which means it runs in a web browser. In addition, once I’ve got a model I like, I can share it on the Insight Maker website, and other people can run it directly in their browsers without needing to download and install specialized software.

I’ve decided to use an agent-based model. That means each defendant will be represented in the model by a separate simulation entity which goes through a series of state changes as the model runs. For this initial model, each defendant will progress through three states: Awaiting Trial, On Trial, and (if found guilty) Prison.

I’ve decided to use a simulated time interval of one month between each iteration of the model. That strikes me as a reasonable unit of time for describing the period spent awaiting trial and the period spent in prison. For the sake of some technical convenience, the period spent on trial will be modeled as lasting exactly one month. That’s unrealistic, but I don’t think it’s unrealistic in a way that matters.

I could switch to a shorter unit of simulated time, such as a single day, to make the model more flexible, but I decided to keep it at a month for three reasons: First, I don’t think a finer time resolution will produce a better model. Second, using a small time unit suggests that the model is more accurate than it ever could be. Third, iterating daily instead of monthly would increase the number of iterations by a factor of 30, greatly extending the simulation’s run time.

The complete model, or at least the first version of it, looks like this:

(The actual model is here on the Insight Maker website if you want to follow along or play with it yourself.)

The model has four variable parameters which can be controlled by sliders appearing on the page.

Here’s what they control:

  • Arrest Rate: This is the number of defendants arrested each month. Every iteration of the simulation will fire the Arrest action, which will create this many defendant agent entities and add them to the Defendants pool, starting in the Awaiting Trial state.
  • Time to Trial: This is the amount of time (in months) that defendants will spend waiting for their trial. In this version of the model, nothing interesting happens during this period, and I could have omitted it. However, I think it will be useful in future versions of the model.
  • Probability of Guilt: This is the chance that a defendant will be found guilty at the end of the trial. In this version of the model, every defendant has the same probability of conviction. Future models will allow different probabilities of conviction, as a crude measure of the quality of the case. In preparation for that, each defendant agent in this model has an independent ProbGuilty property, but they are currently all set to the same value when the defendant agent is created, and that value is used in determining the trial outcome.
  • MaxSentence: Specifies the maximum sentence for the defendant if convicted. As with probability of guilt, this is currently the same for every defendant, but the agents have independent NominalSentence properties that can be used in the future to adjust sentences on a per-defendant basis.

In addition, each agent has other properties associated with it to contain more detailed state information. I’ve added data items to represent the actual sentence (which is always the maximum sentence in this version of the model) and to help count the sentence down as it is served.

The meat of the model is the Defendant agent and its lifecycle, pictured above. Defendant agents begin their life in the model when the Arrest action fires, at which point they receive their probability of being convicted and their expected sentence. They sit in the Awaiting Trial state for however long Time to Trial specifies, and then they transition to the On Trial state and go through a one-month trial. In the Verdict action, they are found guilty or not guilty with a random draw, based on the probability of guilt assigned to their agent when it was created.

If found not guilty, they are removed from the defendant pool and from the model. If found guilty, they move to the Prison state, and the Serve Time action counts down their sentence with each iteration until their sentence is done, at which point they are removed from the model.

Running the model with the above parameters yields a graph displaying the number of agents in each model state over a simulated period of 10 years:

During the first four months, defendants are added to the model in the Awaiting Trial state (green line) at a rate of 30 per month, for a total population of 120. After that, as each new group of 30 defendants is added to the model, the group of 30 from four months ago stop waiting and enters the Trial state (red line). A month later, those 30 are remove from the Trial state, and a new batch of 30 begins trial. For the rest of the simulation run, these values remain in a steady equilibrium state, with 120 defendants awaiting trial, and 30 defendants on trial.

Starting at the 5th month, 30 defendants per month conclude their trials. Half of them, chosen randomly, are found not guilty and removed from trial. The other half — about 15 per month, on average — go to the Prison state. The prison population continues to build up at that rate until the 41st month, at which point the first batch of defendants is done serving their sentence. Since 15 prisoners per month serve for 36 months, the prison population stabilizes at around (30 x 0.5 x 36 =) 540 prisoners from there on out. Unlike the other populations in the model, the Prison population is influenced by the random events of trial, therefore the Prison population exhibits random rises and falls 

The advantage of using a model is that we can play around with it. If we “get tough on crime” by arresting an extra 10 defendants per month and sentencing the guilty ones to an extra year in prison, the steady state prison population booms to (40 x 0.5 x 48 =) 960 prisoners.

These results are not surprising, nor should they be, with such a simple model, and we didn’t really need an agent-based model to figure out these numbers, as demonstrated by the simple math in the preceding paragraphs. We could easily have modeled these same results with a few spreadsheet formulas. I think, however, that an agent-based model will be more suitable when we want to model more complex situations.

A few limitations or simplifications of this model are worth noting:

  • The model assumes there are no resource limits. No matter how many defendants are arrested, there will always be enough prosecutors, defense lawyers, and criminal court rooms to try them all without delay. There’s also plenty of prison space for everyone found guilty.
  • Everyone commits the same crime. If you wanted to model multiple crimes, or multiple degrees of severity, you’d have to re-run the model multiple times with different parameter settings and combine the results. Note that this implicitly assumes that cases of one type do not interfere with cases of another type, for which it is necessary, but not sufficient, to assume that there are no resource limits.
  • As mentioned, all defendants have the same chance of being found guilty, which implicitly assumes that the cases against all defendants are of equal quality.
  • If found guilty, all defendants are hit with the same sentence. There is no uncertainty about the sentence if found guilty.

As I develop future models, I’ll be relaxing some of those constraints.

Finally, you may be wondering why I’m bothering building models. After all, there are people who study this kind of thing for a living. They probably have much better models than I could ever build in my spare time. Why don’t I just use their models? Or better yet, why don’t I just read their criminology papers to find out what they’ve already learned?

The short answer is: Where’s the fun in that? I like exploring new ideas and learning new things.

And if you’re a criminal lawyer, prosecution or defense, who finds this project at all interesting, I could use some help. I want to build more elaborate versions of this model, and I need help figuring out what aspects of the criminal justice system belong in this model, and what aspects can be safely ignored. I need to figure out how to model plea bargain decision making on both sides, and I’m not sure where to begin. I’m a professional software developer, but my interest in the criminal justice system is strictly amateur. Nevertheless, I’d hate to put in so much work into the models — and these posts — only to discover that I’ve been making my readers stupider.

You don’t want that on your conscience, do you? Besides, it might be fun.

It Sometimes Begins with Virginia Postrel

by Leave a Comment

Reason magazine is celebrating its 50th anniversary this year, and a bunch of the staff are sharing their libertarian origin stories. I think I’ll share mine.

The first time I remember hearing the word “libertarian” was when I was in high school in 1980 and Ed Clark was running for President on the Libertarian ticket. I remember that he wanted to legalize all drugs, and I thought it might make sense in theory but that really doing it would be nuts.

When I got to college, I got interested in some common political issues, and I decided to make an effort to learn more about them. This was years before the first web page traversed the internet, so my approach was to scour the magazine racks for publications that covered political issues. The magazines ranged from liberal to conservative, and they were often interesting reading, but all of them took editorial stances that struck me as inconsistent and misguided. 

Except for one magazine, where I found myself nodding along with almost everything they wrote. It wasn’t so much that they agreed with my views, but that the authors thought about the issues in a way that made a lot of sense to me. I’d start reading a piece about the war on drugs or transportation policy, and at some point there’d be this mental ping and I’d realize they had found exactly the right way to think about the issue.

Unfortunately, I had read so many different magazines that next time I went looking for reading material, I couldn’t remember what it was called. I had to just continue buying a variety magazines, hoping to pick it up again. I think it was a few months before I opened up a magazine, started reading, and got that ping sensation again. This time I made a point of noting the magazine’s name.

Of course it was Reason.

This was during the years when Virginia Postrel was Editor in Chief, and I remember her editorials had a way of drawing libertarian ideas out of all kinds of topics, from contact lenses to breast implants. Every issue of Reason had articles that helped me clarify my thinking about the issues of the day. It was during this time that I really began to think about the world in libertarian terms and of myself as a libertarian. I will always be grateful to Postrel and the rest of the Reason staff for the clarity they gave me.

In the following years, four books also heavily colored and solidified my libertarian thinking:

  • Ain’t Nobody’s Business If You Do: The Absurdity of Consensual Crimes in a Free Society. This is Peter McWilliams’ magnum opus. His passionate argument convinced me forever that the government has no business telling us what to do if we aren’t hurting anyone.
  • The Armchair Economist This is Steven Landsburg’s easy-to-read and thought-provoking introduction to some very serious economic concepts. It helped me organize my thinking about policy analysis, and kicked off my now decades-long amateur interest in economics. (Link is to the latest edition.)
  • Hard Heads, Soft Hearts: Tough-minded Economics For A Just Society. This book by liberal economist Alan Blinder argues that some public policies are so bad, and so economically ill-informed, that we can find solutions that improve on hard-headed conservative concerns about limiting spending and regulation, while also doing a better job of satisfying soft-hearted liberal goals like reducing pollution and improving the lives of the poor.
  • Lost Rights: The Destruction of American Liberty. In this book, James Bovard presents hundreds of examples of how laws and regulations can get out of control when enforced by the petty and power-mad. It’s a searing and heartbreaking account of ruined lives. (Bovard turns out a ton of books like this. This is just the first one I read.)

Sorry. No Ayn Rand.

Why I’m Posting About Jack Marshall Here

by 5 Comments

Over the last few weeks, I’ve been doing a series of posts responding to things that Jack Marshall writes in his Ethics Alarms blog. I’m getting a bunch of mini-rants out of my system, in the hope that it will help me end my obsession with his blog. I’ve been slacking off on the posts lately, so I think I’m almost done.

Meanwhile, Slickwilly left this comment on an earlier post of mine, taking me to task for writing about Jack here instead of over at Ethics Alarms:

Wow. This is sheer cowardice, akin to knifing someone in the back. Jack is no saint, but he is miles higher than those who follow here: he bothers to have standards, and you don’t.

Everything here is progressive emotional blather, so I guess I am glad you are too scared to post over at Ethics Alarms.

We will see if you have the guts to leave this post up.

Of course I’ll leave that up. I normally only take down spam and trolling and the occasional literal Nazi or Stormfronter. But I remember you as one of the more reasonable commenters on Ethics Alarms, so I assume you’re not just trolling.

And for the record, this blog is not progressive blather. It’s libertarian blather. Get it right.

Seriously, Jack is conservative in a lot of ways (especially in the “tough dad” sense, as you might expect from a guy who expounds on ethics), and we actually agree on a lot of things, such as gun control or the idiocy of zero tolerance in schools. But I want to write now about some areas where we disagree, and those will tend to be areas where progressives would also disagree, thus much of my criticism of Jack appears progressive in origin. I have plenty of complaints about progressive ideas elsewhere on the blog.

I am a bit irked — and also amused — that you accuse me of “cowardice, akin to knifing someone in the back.” This is a public website. Jack links to it from his blogroll. And I link to Jack’s posts when I talk about them, so there are plenty of tools that will tell Jack I’m responding to him, if he’s interested. That’s how blogging has worked for as long as Jack and I have been doing it.

(Also, dude, I’m right here. I blog under my own name. And for some reason I’m responding to an accusation of “sheer cowardice” from a guy who signs his comment “Slickwilly” and leaves a fake email address in the comment form.)

As for Jack’s standards, they are malleable at best. He used to complain all the time about the appearance of impropriety, but now that a walking, talking, in-the-flesh incarnation of impropriety is in the White House, he almost never brings it up. Instead, he excuses Trump’s nonsense under the “Julie principle,” which I’m pretty sure is something he just made up.

And after years of complaining (rightly) that “everybody does it” is sloppy ethical thinking, he’s now attacking criticism of Trump with cries of “Obama did it too.” (He did this again just this Sunday in a note about Trump’s disturbing relationship with the Saudis.) Jack tries to justify his embrace of “everybody does it” by claiming he is engaged in media criticism. That is, he’s not saying what Trump did is OK because Obama also did it, he’s saying that the media has double standards because they’re complaining about Trump when they didn’t complain about Obama.

I find this explanation difficult to credit. If the media glossed over Obama’s bad behavior (and I think they did) then the time to bring it up was when they were doing it. But now that the media are taking the current President to task for his bad behavior, you’d think an ethicist would congratulate them on calling out unethical behavior when they see it (as Jack routinely applauds himself for doing) but instead Jack attacks them for it and calls them “enemies of the people.” It’s this sort of thing that makes it hard for me to take him seriously any more.

Finally, I’m not scared of posting stuff over at Ethics Alarms. I’ve been contributing comments (and the occasional story tip) to Jack’s blog for many years. I’ve always disagreed with him about some things, but I thought he did a good job thinking about and explaining his ethical reasoning, and I appreciated the way he engaged in dialog with his audience. He does blogging the way it’s supposed to be.

The main reason I’m posting my commentary here rather than on his blog is because I’m taking a page from Jack’s playbook: I’m doing media criticism. And the media I’m criticizing is Jack’s blog. He complains (with some justification) that the left has gone crazy in its opposition to Trump. Well, I think Jack has gone crazy in his opposition to the left. He’s turned his curmudgeonly but thoughtful ethics blog into some kind of liberal-hating Trump-apologizing shit-show.

It doesn’t help that this period has has also brought out the ugliness of Jack’s authoritarian vision in a way I can no longer ignore. Not only does he support the drug war and restrictionist immigration policies, but he has neither respect for, nor understanding of, the role of the press in a free society, and his concept of civic duty leaves little room for dissent and opposition. (I may have more to say about all that in another post.)

What it comes down to is that I’m angry at Jack. I’m angry at his lack of respect for freedom, I’m angry at what he’s turned his blog into, and I’m angry that I’ve wasted so much time reading and commenting on his blog. Which is another reason I’m posting this on my blog.

And let’s be realistic: Most of what I’m saying here is not anything Jack would want or allow in his blog comments. His posts are usually about specific topics, so my broad-ranging criticism of his viewpoint would come across as an ad hominem attack. This is the sort of thing that belongs in a separate post.

In the end, I’m posting my opinions on my blog rather than his because they belong on my blog rather than his.

Facebook Lawsuit Isn’t Going to Help Sex Workers

by 1 Comment

I’m a big fan of Reason writer Elizabeth Nolan Brown, but I think I disagree with her take on this development:

Some people were upset that Brown was apparently applauding an attempt to shut down advertising by sex workers, through the now-familiar subterfuge of claiming to be fighting “sex trafficking.” But she’s been reporting on that trick for years, and she’s been anticipating that the sex trafficking panic will eventually hit a non-fringe website like Facebook.

That would be a good thing for sex workers, she believes, because with $40 billion in annual revenue — much of which would be at-risk if Facebook is labeled a “sex trafficking website” — they have both the means and motivation to fight this tooth and nail. Their legal team could end up setting some good precedents in the courts that will help other sites that carry sex work content, and their lobbying efforts could get some important changes to the law that would prevent these attacks on sex work in the future.

I’m not so sure.

Back in 2006, there was a bit of a panic when it was discovered that a bunch of children’s toys manufactured in China had high levels of lead in some of their components. The toy company Mattel was by far the most affected: Six of the seven toy recalls were for Mattel products, and the company ultimately recalled 19 million toys. Naturally, Congress leaped into action.

The resulting law, the Consumer Product Safety Improvement Act (CPSIA), did a number of things, the most far reaching of which was that it added a lot of new testing requirements:

The law bans lead and phthalates in toys, books, clothes, and any other object intended for children under 12. To enforce these rules, the law requires every toymaker, distributor, or retailer who sells products in the U.S. to certify each of its models through third-party testing, labeling every item with an individual date and batch number.

Broadly speaking, manufacturers used to ensure their products didn’t contain dangerous substances like lead by making that a requirement for materials purchased from suppliers. E.g. A company making painted metal toy trucks would make sure to order only lead-free paints and lead-free metal alloys from their suppliers. Under CPSIA, however, toy makers were required to independently test a sample of their assembled toys for lead content.

The law left a lot of decisions up to the Consumer Product Safety Commission (CPSC), such as how items should be marked:

On July 20, only three-and-a-half weeks before the rules were to take effect, the CPSC announced some lenient if vague interpretive guidelines. The agency said it didn’t think individual marking was required for very small objects and items in sets, such as wooden blocks, and agreed that harm to a product’s functionality or aesthetics might be a possible reason to reject marking as impracticable.

More craziness: Regulators banned lead outright in children’s items, apparently without accounting for bio-availability, so even lead locked up in tight chemical bonds could keep a product off the market:

Jewelry is subject to particularly strict requirements, since most true crystals and rhinestones contain lead—although it poses minimal danger to kids, since the metal remains locked inside the crystal structure of the stones.

The effects of this requirement are harder on smaller manufacturers who lack economies of scale. A giant toy maker could spread the costs of testing over hundreds of thousands of units of each toy, but a company that sold only 3000 units of a toy would have to cover the testing with much larger increases to the cost of each of a much smaller number toys.

One small business owner, with fewer than 10 employees, told me of needing to add an employee to do nothing but administer and document his testing and regulatory compliance program. Another told me that since children’s garments were not a major part of his business, he has decided just to get out of that aspect of the business altogether rather than have to hassle with all the rules.

This was especially brutal for craft toy makers: A woodworker making hobby horses in his garage would be required to pay for outside testing of his toys — about $4,000 per batch (whatever a “batch” is for handcrafted toys) even though the wood and paint he used were lead-free. That could wipe out his entire profit from selling the toys, and possibly his entire revenue.

Eventually, a bunch of exceptions were carved out, and some small toymakers were able to stay in business, but it was a mess for a long time. At least for some people… Remember Mattel? The giant toy company responsible for most of the contaminated products that kicked off this whole mess in the first place? Yeah, well, funny story…

Turns out, when Mattel got lemons, it decided to make lead-tainted lemonade (leadonade?). As luck would have it, Mattel already operates several of its own toy testing labs, including those in Mexico, China, Malaysia, Indonesia and California.

So while most small toymakers had no idea this law was coming down the pike until it was too late, Mattel spent $1 million lobbying for a little provision to be included in the CPSIA permitting companies to test their own toys in “firewalled” labs that have won Consumer Product Safety Commission approval.

The million bucks was well spent, as Mattel gained approval late last week to test its own toys in the sites listed above—just as the window for delayed enforcement closed.

Instead of winding up hurting, Mattel now has a cost advantage on mandatory testing, and a handy new government-sponsored barrier to entry for its competitors.

That particular episode in legislative history is why I’m not as optimistic as Elizabeth Nolan Brown about Facebook coming under attack in the sex trafficking panic. I agree with her that Facebook is going to throw money, lawyers, and lobbyists at the problem, and they’ll come out of this just fine. But I’m not convinced that Facebook’s victory will be a victory for sex workers.

That’s because I expect Facebook to work toward a Mattel-like outcome. Their lobbyists and lawyers will offer their expertise at social media to work with Congress to help craft the most effective legislation for “protecting vulnerable people.” I’m probably not devious enough to figure out exactly what they’ll do, but I would expect the 2019 Stopping Internet Facilitated Child Sex Trafficking Act (or whatever they call it) to include provisions like:

  • This rule applies to all entities that operate websites that sell ad space to people offering services including but not limited to escorting, massage, exotic dancing, modeling, cuddling, or any other service that must be performed in person in a non-public location.
  • Web site operators must “know their customer” and obtain suitable identification from ad buyers.
  • Web site operators must, within one year of passage of this law or prior to accept their first ad, which ever comes later, submit to the Department of Homeland Security their comprehensive pland for preventing child sex trafficking through their site. The plan must include,
    • Appointment of a Sex Trafficking Prevention Officer.
    • Description of how the site proposes to identify potential child sex trafficking related advertising materials.
    • Description of how the site proposes to handle reports from law enforcement agencies indicating that one or more ads are child sex trafficking related.
    • Description of how the site proposes to handle reports from third parties that one or more ads are child sex trafficking related.
    • Establishment of a liaison relationship with the state agency responsible for child sex trafficking crimes in every state in which the website does business.
    • Establishment of a liaison relationship with the city police unit responsible for child sex trafficking crimes in every city with a population of 250,000 or more in which the website does business.
  • Upon receipt of a request from a law enforcement agency to take down an ad suspected of being related to child sex trafficking, the website operator must remove the ad within 24 hours.
  • Website operators must furnish to the Department of Homeland Security a quarterly report detailing the number of suspected child sex trafficking ads reported, the source of the report, and the final disposition of the ad.

And so on.

There’s be adjustments. Some church groups would notice that the law technically applies to their programs to match teenage members of the congregation with elderly members who need help around the house, and Congress would quickly amend the law to exclude faith-based social services providers. Amazon’s Home Services sales group would arrange for their own carve-outs. Maybe language would be added to require that the services be of “a sexual or intimate nature” and leave it to DHS and the courts to figure out all the details. Eventually, as with FOSTA/SESTA, something would get signed.

Facebook, with $40 billion a year or so in revenue, could easily afford to create a department and hire 10 or 20 people to comply with a law like that, as could many of the other social media giants. But a lot of smaller businesses would be casualties, not all of them escort advertising sites. I wouldn’t be surprised to discover that sites like Model Mayhem and One Model Place would fall under such a rule.

Then again, I wouldn’t be surprised if escort advertising sites survived just fine. I think Slixa and Eros are already run from offshore, and I wouldn’t be surprised to see some more foreign websites start selling to Americans. On the other hand, I can also see how small sites where a few escorts pooled their money to advertise might get shut down.

Ultimately, I just don’t think Facebook is going to end up defending sex workers.

Jack Marshall Watch – Special Ethics Abdication Edition

by 6 Comments

Lately, Ethics Alarms has been pretty much all about the Kavanaugh confirmation shit show, and I’m just sick of writing about it, so as a change of pace, I’d like to revisit one of Jack Marshall’s posts from January of 2016, and especially one of his responses to a comment that has stuck with me as an example of Jack at his worst.

In the post itself, Jack took on Univision anchor Jorge Ramos, who argued that Latino candidates Marco Rubio and Ted Cruz should do more to support “undocumented immigrants.” That’s a phrase that always sets Jack off:

Those who engage in illegal immigration are immigrants, and because their manner of immigration is illegal, they are illegal immigrants. Those who insist on calling them merely immigrants are lying; those who favor euphemisms like “undocumented workers” are engaging in intentional deceit.

Aside from the logical incoherence of accusing people of lying for calling them “immigrants” right after Jack himself calls them “immigrants” — which we can probably put down to hasty writing — there are plenty of legitimate things you can say about immigrants which are true for legal and illegal immigrants alike. Furthermore, it’s entirely accurate to refer to these people as “undocumented” immigrants because, in fact, it is precisely their lack of documents that sets them apart from other immigrants and makes them illegal. And it’s hardly deceitful, because everybody understands this.

I think Jack doesn’t like “undocumented” because it doesn’t carry the same stigma that “illegal” does. Jack is on team “What part of illegal don’t you understand?” and he regards coming here illegally as the one unforgivable sin.

This is a convenient rhetorical crutch for Jack — arguing that once some conduct is outlawed it becomes irredeemably unethical — which he uses it to avoid having to argue for the law itself. I don’t understand how anyone who is familiar with history and seen our elections could possibly believe that our legislatures consist of people who produce only ethical laws deserving obedience — slavery being the canonical counterexample — but it’s an assumption Jack relies on all the time.

In the comments, Pieter van Megchelen challenges Jack on this point:

[…] I fail to understand how ‘illegal’ means the same as ‘unethical’ or ‘immoral’. I can imagine many morally valid reasons to break the law of a country, especially if you perceive that law as unjust or even unethical. […]

Breaking the law has many (other) ethical aspects, I might endangers others, etcetera, but I have always been taught that legality and morality are essentially different categories. What is illegal may be morally right, and what is legal may be morally abject (I know you agree with the last part of this sentence).

Of course, the ultimate ‘proof’ of the first half of this thesis is in historical extremes: there were laws against homosexuality in most countries, there have been laws against Jews and other groups, laws against abortion have endangered women’s lives, etc. Rumour has it that in Iran, it’s even forbidden to smile outside. If that is true, is it immoral to smile in the streets?

Jack’s response is alternately authoritarian and idiotic.

A citizen is ethically obligated to follow a nation’s laws as part of the social contract with that country. If he violates a law on principle, he is ethically obligated to voluntarily accept the consequences.

Jack is thinking of civil disobedience, where the goal is to protest an unjust law by flagrantly breaking it in a highly visible manner. But that only works when the punishment is not too severe. It makes no sense to break the law to make a statement, and then allow yourself to be silenced by a long prison sentence. The demonstrators who staged the Boston Tea Party wore disguises because they did not want to get caught.

Furthermore, protest is not the only reason good people break laws. Sometimes obedience to the law is harmful to society. The “conductors” who ran the Underground Railroad that helped slaves escape to the North didn’t “voluntarily accept the consequences” by turning themselves in to the authorities. Instead they operated in secret for many years, freeing thousands of people from misery.

Moreover, from a utilitarian standpoint, it is the consequences of a bad law that make it bad. Years ago, many states had laws against sodomy which were enforced mostly against gay people. The harm from such laws did not come from their mere existence in the criminal code. The harm came from the fact that police enforced these laws by dragging gay people away in handcuffs and locking them in cages. By Jack’s argument, people who engaged in sodomy should have “accepted the consequences,” presumably by turning themselves in at the nearest police station.

Just violating laws when it’s convenient or beneficial fails the Kantian test: if that were a universal standards, civilization would collapse.

Any idea will fail the “What if everybody did that?” test if you generalize it in the most stupid way possible. “Dance parties are unethical because if everyone danced all the time, no one would harvest the crops, and we would all starve to death!”

Jack is attacking a straw man by supposing that opponents of current immigration laws are arguing in favor of violating all laws. The appropriate generalization is that they think everybody should be allowed to violate immigration laws, which is a very different proposition.

(As a libertarian, I would consider an even wider generalization. Foreigners coming here to live normal lives — working, making friends, raising families — aren’t hurting anyone, so undocumented immigration is a crime without a victim, and it’s far from the only one. Applying the Kantian test, we should then imagine what would happen to our civilization if everyone was willing to break all laws against victimless crimes. Personally, I think it would be wonderful.)

Illegal aliens are violating the obligation to obey the laws of other countries, and worse, won’t accept the consequences. There is no ethical argument that supports this, just emotional ones.

I’ve never understood what Jack means by calling these arguments “emotional.” I think maybe he’s just tired of hearing sad stories about immigrants dragged away from their lives by the authorities, and he regards these as emotional appeals. And I guess that’s what they are. But they are also evidence of the enormous harm caused by these laws. Take any of those sad stores and multiply it by a few tens of thousands, and you have some idea of the scale of harm caused by immigration enforcement.

What I rarely ever hear from Jack is the argument in favor of these laws, other than the fact that they are laws, which is the rhetorical equivalent of might makes right. Winning the legislative battle doesn’t mean your side is right, only that your side is powerful.

Not to niggle, but saying breaking laws isn’t immoral is absurd, because morality is established by rules and laws. Breaking laws is by definition immoral.

Not to nitpick, but this is completely backward. Morality is not established by law. If law is the ultimate determinant of right and wrong, then by what principles should we determine what the law should be? If law is the ultimate determinant of right and wrong, how could we ever advocate changing the law? Ideally, the law must be crafted to serve morality. And here in the real world, where laws are created by imperfect people following imperfect processes, the law and morality are often at odds, sometimes in ways that justify defiance of the law.

Yes, in Iran, it’s immoral to smile in the street.

God, Jack is such an authoritarian bootlicker.

First of all, to use one of Jack’s favorite phrases, res ipsa loquitur, “the thing speaks for itself.” A law against smiling is too fucking stupid to be taken seriously. Everybody should just ignore it.

Second, you can’t talk about the immorality of disobeying Iranian law without taking into account what kind of government Iran has. It’s one thing to argue for a norm of obedience to the laws of a republican democracy like we have in the U.S., but it’s crazy to expect that of people in a country like Iran, which is at least partially under the control of a theocratic dictatorship. It is not a free country. By the American standard — “of the people, by the people, for the people” — it doesn’t even have a legitimate government. It’s absurd to think there is any ethical duty to obey these laws just because autocrats with guns say you should.

(Note: I’m pretty sure that the the Iranian law against smiling is a myth. On the other hand, the Gasht-e Ershad really do try to enforce equally vile and stupid rules on how women can dress in public.)

I really don’t understand what’s going through Jack’s mind when he writes stuff like this. Maybe it’s a hazard of his day job as a professional ethics trainer. In that role, he can’t very well advise his clients to break the rules. He has to take things like laws and professional ethics codes as given. He can’t tell someone, “That law uses a bogus public safety justification to protect politically powerful business interests, so there’s nothing wrong with disobeying it.” Not even when, in a case such as Louisiana’s florist licensing law, there’s nothing wrong with disobeying it.

But that’s the wrong approach to ethical thinking when discussing issues of public policy. In fact, saying “the authorities have ruled and it’s unethical to disobey them” isn’t ethics at all. It’s the abdication of ethics in favor of power.

css.php