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Wednesday, January 28, 2015

The Criminal Justice System; A Gut Check of My Personal Ethics

The Criminal Justice System; A Gut Check of My Personal Ethics
I have several core beliefs about the criminal justice system. The first would be that criminals are the enemy, and need to be treated on that basis; the second is that the limits of what we consider crime to be need to be limited to mala se offenses that are strictly defined; crimes against persons, property and State (such as treason or corruption). A belief that becomes absolutely necessary considering the first two is that the prosecution of criminals needs to be based on due process. The reason that the law, especially in defining criminal offenses, needs to be limited and strictly defined is to mitigate political influence, corruption, and the waste of resources. This is also a strong reason to support due process models. George Washington supposedly said that "Government is not reason; it is not eloquence. It is force. And force, like fire, is a dangerous servant and a fearful master." And whether Washington said this or not,1 it remains a powerful simile. The use of this fire to “resolve” culture conflict issues such as drinking, drug use, or prostitution is not only counter to the ideals of the Constitution, but fails every test a utilitarian view would put to it. Of course, not all culture conflict issues are mala prohibita issues, the “honor killings” accepted amongst some Islamic cultures demonstrate this. I suggest that utilitarian theory accounts for most of my beliefs, especially in the context of severity of the offense, but I can see that there is an undercurrent in my justifications that is based on retributive theory, or perhaps more to the point, retributive impulses that can be described through retributive theory. The practical methods I would choose are primarily incapacitative. I don't have a lot of faith in the rehabilitative or deterrent methods, although I see a moral imperative though deontological theory to make an attempt at rehabilitative efforts for non-violent juveniles. I see no
universalizability between myself and violent mala in se criminals; I can't see myself under any circumstances committing that kind of crime. I think that the criminal justice system is wrong in the idea that lack of mens rea should excuse a criminal from liability, but I have come to see that that this lack of agency should have a part in deciding the severity of punishment.
To be honest, I don't think my career will be in the criminal justice field itself, but rather as a advocate for policy. As a policy advocate, I would support the legalization of drugs, the decriminalization of regulation violations, and other proposals to take the “fire” out of punishment for mala prohibita offenses. I would support harsher measures aimed at incapacitating violent criminals, especially in identifying recidivist criminals. I will address specific proposals to deal with this type of criminal without violating their rights (for example,instead of surveillance on the released convict, a geographical study of the types of target that released convicts in the area are more likely to strike against would provide a rationale for additional patrols or surveillance of the potential victim, as long as the target is a business or area, not an individual). I will fight the creeping surveillance state in which every citizen but the Boston Bombers is scrutinized. I will support prison reform, especially towards protecting prisoners from violent prisoners. I will research and seek methods to incapacitate street gangs and organized criminals. I will seek to research effective rehabilitative strategies for non-violent offenders. The common ground that these policies share is the idea that we limit the scope of what we consider criminal behavior. In addition, the growth complex theory describes what happens to organizations as they seek more power, and the last thirty years of reality show how accurate this theory is by the example of “The War on Drugs” alone. This is a ridiculous situation going by my philosophy. This means that I would encourage education for criminal justice professionals stressing that a primary duty is to be prepared to arrest any public official for corruption, misfeasance, nonfeasance, criminal neglect of duty, obstruction of justice, perjury, or treason; especially considering how blatantly politicians are playing politics with special interests to the detriment of the public. Indeed, we can see politicians using law to criminalize criticism of the politicians. The underlying influence of my philosophy will have on my career will be the idea that the “fire” of law and punishment that the State holds is too hot for most types of behavior correction, and should be limited to offenders that actually damage the people around them by theft, assault, rape, treason, or murder (etcetera).
The utilitarian view of criminal justice is based upon the notion of the hedonistic calculus; a comparison of the consequences of an action. A human's actions are balanced between the seeking of pleasure versus the avoidance of pain. The hedonistic calculus takes into account differences between individuals by seeking to pursue the maximum quantity of pleasure for the maximum number of people. Criminals are to be punished in order to keep them from committing crimes which cause pain to multiple people. This view supports the incapacitative, rehabilitative, and deterrent methods of addressing crime. The deontological view is based on the concept that intent of the act; the judgment is based upon categorical imperatives such as universalizability and the intrinsic value of human life. Deontology is defined as the study of duty. Although the concept of retributive theory has been around since the first two humans bashed each other's heads open, the deontological view of proportionality puts a theoretical basis to the theory. Deontology also supports the incapacitative, rehabilitative, and deterrent modes of punishment. The peacemaking view of the system is based on the Positivist school, as it seeks to understand the criminal and his actions, even to the point where the system expresses empathy to criminals. The idea is that perpetrators are victimizers because they have been victims themselves at some point. I consider this approach to be academic hogwash. The utilitarian and deontological viewpoints can both be described as applied ethics and as normative ethics. Normative ethics seeks to study ethical actions, and to define what is moral, and what is not moral. Applied ethics is the study of how to make decisions based on these definitions to take moral actions. Meta-ethics seeks to define the language in which ethical propositions are formed; before one can judge “good versus evil”, the terms of “good” and “evil” must be defined.
Perhaps the best modifications to ethics theory as it applies to the criminal justice system would be the inclusion of the State's moral duty. In Confucianism, morality is based on a hierarchical set of personal relationships in which obligations are owed in both directions. In this system, the State is represented as “the ruler” with obligations to “the ruled” and to Heaven; by taking the Chinese social order out and extrapolating the State as having obligation both to Heaven ( or morality)and to “the ruled” (or in our case, the public), we could redefine the primary duty of the State as having moral duty to the public. I don't think that the moral duty of the State has been examined enough in this context. A second item of interest would be in resolving some areas of ethical dilemma by redefining categorical imperatives using the standards of utilitarian judgment; saying that human life has intrinsic value is one thing, but proving that proposition, or the situations in which that value is valid, is another. Thinkers like Hart have tried to reconcile differences between utilitarian and deontological theory with some success, but this approach should tighten the boundaries a little further. However, there is no conceivable way of resolving all ethical dilemmas. Heinlein, in Starship Troopers, refers to a morality based upon mathematics. This is a pipe dream. Because humans each have a different hierarchy of values, there is no 0 value. Let us look at the Unabomber's brother for example; he turned his brother in on what we could call a utilitarian judgment, but he could just as easily held to an ethical view that family loyalty was more important then public safety. I do not believe that a common education of morals would resolve this, as “some people just want to watch the world burn”. Other examples of “good versus good” dilemmas involve justice versus mercy. Even under utilitarian judgment, the weight of harm to society that a person holds who believes that “mercy to the guilty is treason to the innocent” will be much a different then that weight as valued by a person who believes that a murderous psycho is a victim in the first place. So I think that we should focus additional study on the moral duty of the State, that we could reconcile some ethical dilemma by reweighing categorical imperatives using utilitarian standards, but that there will never be a unified morality in which there are no ethical dilemmas due to the nature of humanity to hold individual moral values.

1 Attributed to George Washington.—Frank J. Wilstach, A Dictionary of Similes, 2d ed., p. 526 (1924). Can also be found with variations such as the exchange of “fearful” for “troublesome,” in George Seldes, The Great Quotations, p. 727 (1966). Unverified. (Popik, 2009, para. 23)

Popik, B. (2009, November 12).Dubious origins of a “George Washington” quote on government. RedState. Retrieved June 20, 2014 from http://www.redstate.com/diary/barrypopik/2009/11/12/dubious-origins-of-a-george-washington-quote-on-government/

Tuesday, January 27, 2015

Immorality of political interference with rape cases - Central Park wilding

  1. Were the police more interested in just solving this case, rather than solving the case in a just manner?
  2. Is this a case of police corruption, incompetence, or a lack of ethics?
  3. How can police use of deception in interrogation best be controlled?
  4. What can be done to ensure such injustice is not repeated?

Before answering the following questions, it is important to note that the jury did not convict the attackers based on the confessions, which the jury found to be the “result of subtle forms of coercion.” (Sullivan, 1990, para. 9). Instead the jury relied “upon the physical evidence that he believed incriminated Mr. Richardson far more than his taped admissions.” (Sullivan, 1990, para 15) The jury found enough physical evidence to convict the attackers, and it was known at the time there was an additional attacker that wasn't brought to justice. Reyes' confession identified the unknown attacker, but it did not remove the victim's hair from the attackers' clothes.
I am going to stop moving down this line of thought, because proceeding would mean we move away from discussion questions and towards inquiries into media propaganda and political influence affecting the criminal justice system. It is necessary to bring this fact into the discussion as it has a direct bearing on the questions.
Is this a case of police corruption, incompetence, or a lack of ethics?

None of the above. The rape was not the only crime committed during the “wilding”, which lasted over an hour and in which more criminals then the defendants were involved (over 40 in total). Police brought in over 20 suspects involved in the series of physical assaults, some of which informed on the rape case attackers. From that basis, police found the physical evidence that eventually convicted the attackers. A review of the case instigated by Reyes' confession “concluded yesterday that there was no misconduct in the 1989 investigation of the Central Park jogger case” (McFadden, 2003, para.1) One possible lapse of competence was in treating the 15-year old Salaam as a 16-year old due to the forged identity paper Salaam carried. A second possible lack of competence was the “failure to connect the April 17, 1989 rape to the April 19, 1989 attack on the jogger” (Armstrong, Hammerman, & Martin, 2003, p.43)

What can be done to ensure such injustice is not repeated?

From a utilitarian or a teleological view, there is not an injustice in this case, even if the rape itself did not occur. The rape case attackers “admitted being among several dozen teens on an hour-long assault and robbery spree”(Hirschkorn, 2003, para. 9). From the utilitarian point of view, violent criminals were prevented from harming society for the next few years. From the teleological view, the violent criminals were punished as the end result If anything, the violent criminals got less then they should have, considering the severity of the rape victim's damage and the extant of the violence they committed that night. Santana “admitted that he and his friends planned to go to the park that night to rob and assault people. He stated that about seven or eight friends devised the plan. They were prepared to attack whoever they encountered that night in the park” (Armstrong, Hammerman, & Martin, 2003, p.38)

Let's Assume

I think the point of the discussion was to examine police ethics in obtaining confessions (the abysmal lack of the course writer's research on the subject matter notwithstanding). A brief examination of this question reveals that there are issues in the police use of deception and coercion. Ciske cites Brooks in that “the decision to lie involves a utilitarian calculus–a belief that the truth will cause a greater evil than the deception” (2009, para. 13) Ciske qualifies the situations that police uses deception and considering that “The goal of an interrogation or criminal interview is to obtain factual information about a crime and the confession of the person responsible for it.” (Ciske, 2009, para. 15) There are “three sometimes competing principles underlie the law of confessions: first, the truth-finding rationale, which serves the goal of reliability (convicting an innocent person is worse than letting a guilty one go free); second, the substantive due process or fairness rationale, which promotes the goal of the system's integrity; and third, the related deterrence principle, which proscribes offensive or lawless police conduct.” (Skolnick & Leo, 1992, para. 11). This lies in parallel with the idea of moral agency for defense lawyers, in that a lawyer may use questionable ethics (discrediting a witness, for example) of that results in a innocent verdict for an innocent man.

Armstrong, M., Hammerman, S. & Martin, J. (2003). NYPD review of the Central Park jogger case. Retrieved June 18, 2014 from http://news.findlaw.com/cnn/docs/cpjgr/nypd12703jgrrpt.pdf

Ciske, M. (2009, July 27). The ethics of police deception. Ohio University: The Institute for Applied & Professional Ethics. Retrieved June 18, 2014 from http://www.ohio.edu/ethics/1999-conferences/the-ethics-of-police-deception/

Hirschkorn, P. (2003). Police panel slams decision to absolve men in Central Park jogger case. CNN Law Center. Retrieved June 18, 2014 from http://www.cnn.com/2003/LAW/01/27/nyjogger.report/index.html

McFadden, R. (2003, January 28) Boys' guilt likely in rape of jogger, police panel says. The New York Times. Retrieved June 18, 2014 from http://www.nytimes.com/2003/01/28/nyregion/boys-guilt-likely-in-rape-of-jogger-police-panel-says.html?pagewanted=all

Skolnick, J. and Leo, R. (1992, January 1) The ethics of deceptive interrogation.Criminal Justice Ethics. Retrieved June 18, 2014 from http://www.thefreelibrary.com/The+ethics+of+deceptive+interrogation.-a012396024

Sullivan, R. (1990, December 13). Jogger trial jury relied on physical evidence, not tapes. The New York Times. Retrieved June 18, 2014 from http://www.nytimes.com/1990/12/13/nyregion/jogger-trial-jury-relied-on-physical-evidence-not-tapes.html

Personally, I think the charges should be based on the actual crime committed.  But I'm not going to worry too much if people that are clearly guilty of assault and robbery are charged with additional crimes.  The only reason this becomes an issue is that there is a negative consequence of having a guilty party remain free, and likely to commit additional criminal acts.

In this case, that isn't so.  The jury reported that they didn't find the confessions compelling, and relied on the other evidence.  After looking at the NYPD review, It is clear that there was physical evidence that put the attackers at the scene,
"Other evidence admitted at trial consisted of: three hairs, one pubic, found on Kevin
Richardson’s clothing that were “consistent” with the jogger’s hair; one hair “consistent”
with the jogger’s found on Steven Lopez’ clothing; a blood stain on Raymond Santana’s
sneaker; individual blood stains on Yusef Salaam’s jacket and Steven Lopez’s
underwear; and semen stains on the underwear of Antron McCray and Kevin
Richardson and the sweatshirt of Raymond Santana.

We have not been given access to all of the forensic test material.
Nevertheless, it is apparent, from the Ryan Affirmation, that no new DNA evidence contradicts any of the evidence introduced at trial. (Armstrong et al, 2003, p.37)

There were voluntary statements (pre-interrogatory) that showed the attackers knew of the crime before the police did;
"En route to 100th
 Street and Central Park West Clarence Thomas began to cry.
Without being questioned, he stated, ‘I know who did the murder.  I know who did
the murder.  I know where he lives and I’ll tell you his name.’  Richardson said he
also knew who did it and would tell them  too.  Then Thomas said that it was
Antron McCray and that he lived at a particular address on 111th
 Street.  Kevin
Richardson concurred saying, ‘Yeah.  That’s who did it.’ (Exhibit A, pp. 11, 12).
(Armstrong et al, 2003, p.15)

The Reyes confession matched the evidence that investigators knew indicated an additional attacker had assaulted the victim; it does not preclude additional assault.

I don't believe that charges should be added on to satisfy a prosecutor's belief that the initial charged aren't "enough".  Charges should match the offense.

My position is that, depending on the severity of the case, I am not going to care if developments down the line show that a convict was overcharged.

There is a difference in overcharging with an unethical intent then there is in being wrong.  And that difference doesn't generate a lot of outrage in me if the convict needs to remain in jail in the first place

Moving back to the Central Park case,  my opinion is that the attackers were guilty of an attack on the rape victim, in addition to their other crimes.  There was more evidence then the DNA and the confessions that proved their guilt, although the argumentation for exonerating them ignored that.  The fact that Reyes raped her too does not indicate in any way that she was not attacked by the defendants.

The only injustice I see in this particular case is that these criminals were exonerated for ALL the crimes they committed on faulty logic and then awarded 40 million taxpayer dollars for assaulting and robbing people in the park.


'm going to dispute you on a few points regarding the Central Park case; I'll respond separately on the moral issues.

The attackers were not only convicted of rape, but also of the assault and robbery of several other victims, in addition to being convicted of riot.

The attackers, with the exception of one, were 16 and treated appropriately under NY law.  The one attacker that was under 16 carried forged ID indicating he was 16

Dahl's contention that the convictions were SOLELY based on confessions is either incompetent research or is a bald faced lie.  The 1990 NY Times article I cite quotes the jurors explaining that their verdict decision was based on physical evidence, and that they didn't give the confession much credence.  Interesting enough, the 2003 NY Times article I cited claimed the same thing that Dahl did, again, either indicating a simple lack of research, or intentional dishonesty.  How hard is it for the NY Times to look up their own archives? 

Although DNA evidence indicated that there was an additional attacker, there was physical evidence that the attackers were indeed at the scene of the crime. DNA is not always present at rape scenes; "Seminal fluid itself does not contain DNA, but spermatozoa does" (Parks, 2001, p. 509), and remember that the semen collected from the attackers was present on the attacker's clothes, meaning not in or on the victim.

Witness testimony implicated the attackers, none of whom were arrested on the basis of their skin color, but rather from either being at arrested the riot, or implicated by other riot participants.

Reyes confession only identified the attacker that the police had not identified previously; logically, it is not proof that the other attackers are innocent of the attack on the victim as well; as far as the idea that should exonerate them from the rest of the charges, all I can say is that I am glad I don'r live in New York City

Parks, S. (2001) Compelled DNA testing in rape cases:illustrating the necessity of an exception to the self-incrimination clause William & Mary Journal of Women and the Law Volume 7:Issue 2. Rereieved June 20, from http://scholarship.law.wm.edu/wmjowl/vol7/iss2/7

n the point that  “a just proceeding and verdict and should not be obligated to only solve a case and blame the crime on any probable offender without an appropriate and just interrogation.”, the NYPD decided that, based upon physical evidence and witness statements, that they had all but one attacker in custody.  Prosecution of suspects does not require all suspects to be caught at once, but that suspects be tried as evidence presents itself.  The NY justice sytem did act ethically under this consideration.

Under utilitarian considerations, the attackers were involved in more then "minor" crimes; these were violent and preplanned attacks.  The consequences of not dealing with this behavior could have left a high level of certainty that police would find woman left for dead, and a man beaten unconscious every day in the park.

Looking at deontological considerations, the NYPD review panel found that the investigators performed their duties correctly under the standards of the NYPD. 

The NYPD treated the attackers caring, connectedness, or mindfulness” by the required standarsd of the department, with the exception of an underage defendant that was "hoist on his own petard" by carrying false ID.   "Justice Galligan, an experienced and highly regarded jurist, carefully analyzed each claim raised by each defendant and found, with one exception, that there was no constitutional or statutory violation by any of the officers or prosecutors involved" (Armstrong et al, 2003, p.14)

Now having said that, I need to further research the charge that the system failed to disclose the DNA evidence indicating another attacker from the charged attackers; this would be an ethical violation.  In my opinion, this would not exonerate the rape charges in light of the witness testimony, the analysis of the interrogations, and the other physical evidence, but it needed to be made available to the defense regardless.  But considering the inaccurate, if not dishonest, information that has been peddled in regards to the cases as a whole, I need to check into the charge's validity.

I will suggest that the Armstrong review, and the 1999 NY Times interview with the jurors, be considered in addition to any accusatory material.

Monday, January 26, 2015

The Consequentialist Argument for Military Tribunals for Terror Suspects

The Consequentialist Argument for Military Tribunals for Terror Suspects
One of the by-products of “The “War on Terror” is the question of how to legally deal with terror suspects. From one perspective, the history of law and due process in America leads to the call for civilian trials. From another perceptive, the adversarial nature of the defense process would be detrimental to achieving the goals of justice and that military tribunals should be the vehicle of legality for these cases. This issue of which jurisdiction should deal with the suspects is clouded at every level at every level due to the ambivalent nature of standing laws and precedent. Further, there is some difficulty in differentiating some acts of crime and some acts of terror. A review of the entire issue based on utilitarian judgment, but considering deontological views should lead to the conclusion that terrorist suspects should be tried by military tribunals.
A discussion of which authority should handle these cases should begin with an examination of the legal statuses of terror suspects. The first determination to be made is combatant status, as this has a bearing on how these cases can be adjudicated. This issue has been muddied by people who can't read, but the Geneva Convention is absolutely clear on what defines a legal combatant; “Many leftist academics and activists insist that the Geneva Conventions must be universally applied. Yet, that argument is undercut by those treaties' texts. The Third Geneva Convention explicitly states that parties need not apply it to all conflicts, especially when the foes are not parties, and when enemies do not abide by its terms” (Lapkin, 2004 para 13) Since the one of the main purposes of the Convention is to protect civilian life, it is not surprising that the Convention does not extend protection to illegal combatants, also known as franc tireurs. The primary reason to disqualify terrorists from POW status and it's attendant protections is the qualification “that of conducting their operations in accordance with the laws and customs of war. “ (International Red Cross, 1949, Article 4 (A)(2)(d) ). The determination of status applies to suspects whether they are
citizens or not; “In its 2004 Rasul v. Bush decision, the U.S. Supreme Court upheld the right of the U.S. government to detain enemy combatants, even if they are American citizens. The court, however, mandated that non-American detainees could challenge their incarceration in U.S. Courts. “ (Lapkin, 2004, para 7.)
The next legal dilemma is based on the fact that there is no legal
definition of what comprises terrorism. “In contrast to other countries, the United States has no legal definition of terrorism. There is no organized body of legislation one might call the law of terrorism, and there is no inherent crime of terrorism (terrorists are charged with other offenses). “ (O'Connor, 2006, para. 14) In addition, within the US government, the State Department, FBI, and Department of Defense all have different formal definitions of terrorism. This dilemma is not limited to the US, either; “A vexed question raised by proponents of both the 'wars' is how international lawyers and lawpersons may make sense of the relationship between 'terror' and human rights. ... This important question has not been fully addressed by either philosophers or international law persons.” (Baxi, 2005, p.16) Even the traditional boundaries of where the war starts and end are legally hazy; “The principle of Ludecke—that, for legal purposes, 'the ‘war’ does not end when the fighting stops,' but rather when 'the political branches have formally acknowledged as much'—remains an 'authoritative precedent.' It is the confluence of Ludecke and the open-ended nature of a conflict against terrorism that gives rise to assertions, and fears, that under the AUMF 'the President may continue to use many of his warpowers . . . indefinitely'.” (Klein, 2010, p. 1878). The issue of “declared war” will come up in relationship to military tribunals.
Following the issue of combatant
status is the issue of what rights are afforded to suspected terrorists under American legal principles. This issue contains a variety of questions. First of all, there is a view that any person tried by American law has the protection of Constitutional rights. The 14th Amendment defined what a citizen is, but the Constitution is not specific to which protections extend to citizens versus non-citizens. Such precedents as Yick Wo v. Hopkins (1886), Wong Wing v. U.S. (1896), and Plyler v. Doe (1982) have granted Constitutional protection for non-citizens, and have led to the view that “the Constitution presumptively extends not just to citizens, but to all who are subject to American legal obligations, and certainly to all persons within the United States. “ (Cole, 2003, pp371-372)
One of the first practical questions to arise from these considerations is whether captured terrorists should be treated under military or civilian legal authority. .”a potential issue exists as to the jurisdiction of military commissions, and, in some instances, even as to the jurisdiction of general courts-martial, when armed conflict exists but war has not been declared.”(Everett, 2006, pp.6-7). Indeed, the Supreme Court invalidated
President Bush's Military Order establishing military tribunals in the 2004 case, Hamdan v. Rumsfeld. Continuing the tradition of contradictory legal assertions, Congress then “promptly passed the Military Commissions Act of 2006”(Elsea, 2014, p.1). However, there is legal precedent for trying illegal combatants via military tribunal. In Ex parte Quirin, “the Court reasoned that the Articles of War then in effect made clear that, in conferring jurisdiction on general courts-martial to try violations of the law of war, Congress had not intended to limit the long recognized jurisdiction of military commissions.”(Everett, 2006, p.1) Considering the instable legal premises, it may be wise to examine the consequences of both civilian and military trials. Amongst the arguments for civilian trial is the following doozy...”Killing terrorists carries even greater costs as it creates more bitterness among already hostile populations”(Brook, 2010, para.13); or paraphrased simply, killing people that hate you makes them hate you. Although this is specific to Islamic terror, that writer ignores the difference between dal al harb and dar al Islam, and generally ignores the motives behind terror in the first place. Moving past circular attempts at logic we can see an argument that combines deontological argument as well as an appeal to the utilitarian public relations aspects of a civilian trial, the call for due process; however, this appeal fails to note that military trial also requires due process, if in a different form then civilian justice. On the other hand, military tribunals have some advantages. A major advantage is that intelligence sources and methods are protected, whereas in a civilian court they are open to defense inquiry, exposing them to counter-attack. There are other problems that have already occurred, highlighting the certainty of negative consequences. In one case, “Prosecutors in the first major terror trial after Sept. 11 were hindered by superiors from presenting some of their most powerful evidence” (AP, 2005, para 1.) Even worse, terrorists have been aided and abetted by traitors within the American legal system. Lynne Steward is one such traitor. “Stewart was sentenced to two years and four months in prison in 2005 for helping Sheik Omar Abdel-Rahman talk to militants from prison after his 1996 conviction for plotting to blow up New York City icons”(Gendar & Goldsmith, 2009, para. 7)
But how does a
prosecutor know when a terror suspect should be considered as a criminal as opposed to a terrorist? What is the difference in crimes? Foster contends that “A primary part of [this] definition that separates terrorists from ordinary criminals is motive. For someone to commit a terrorist act his or her motivation must be a social, political or religious cause”(Foster, 2005, p.2) In addition, another variant is that “One of the main objectives of terrorism is usually to gain publicity for some cause” (O'Connor, 2006, para. 39). Terrorists committing crime may be identified by ties to terrorist groups. Finally, some crime may be committed by terrorists for the purposes of funding terror.
In conclusion, although the dominant trend in legal precedent is to treat all persons in the American legal system as though they have Constitutional protection, there is also precedent for trying violators of the laws of war under the jurisdiction of military tribunals. Because the duty of American security professionals towards terrorist is not consistently and specifically defined, because there is due process under military law even if it is not the same due process civilians are entitled to, and because the consequences favor military tribunals, it should be seen that terror suspects should be tried by military tribunal.

Associated Press (2005). AP: Superiors thwarted terror prosecutors. Retrieved June 17, 2006 from http://usatoday30.usatoday.com/news/washington/2004-08-08-terror-trial_x.htm

Baxi, U. (2005, Spring/Summer). The "War on Terror" and the "War of Terror":Nomadic multitudes, aggressive incumbents, and the "New" international law: Prefactory remarks on two "Wars”.Osgoode Hall Law Journal.Volume 43, Number 1/2 . Retrieved June 16, 2006 from http://digitalcommons.osgoode.yorku.ca/ohlj/vol43/iss1/2

Brooks, B. (2010, March 30). Military tribunals vs. criminal trials: A different perspective. Foreign Policy Journal. Retrieved June 16, 2006 from http://www.foreignpolicyjournal.com/2010/03/30/military-tribunals-vs-criminal-trials-a-different-perspective/

Cole, D. (2003) Are foreign nationals entitled to the same constitutional rights as citizens? Thomas Jefferson Law Review,Vol. 25:367 Retrieved June 16, 2006 from http://scholarship.law.georgetown.edu/facpub/297

Elsea, J. (2014).The Military Commissions Act of 2009 (MCA 2009): Overview and legal issues. Congressional Research Service. Retrieved June 17, 2006 from http://www.fas.org/sgp/crs/natsec/R41163.pdf

Everett, R. (2006). The role of military tribunals. Brown University International Law Journal. Vol. 24:1 . Retrieved June 17, 2006 from http://www.bu.edu/law/central/jd/organizations/journals/international/volume24n1/documents/1-14.pdf

Foster, R. (2005). Terrorism :Crime or aysmmerical warfar? Hi Tech Criminal Justice. Retrieved June 17, 2006 from http://www.hitechcj.com/sitebuildercontent/sitebuilderfiles/terrorism.crime.or.warfare.r1.pdf

Klein, A. (2010). The end of Al Qaeda? Rethinking the legal end of the war on terror. Colunbia Law Review. Vol. 110:1865. Retrieved June 16, 2006 from http://www.columbialawreview.org/wp-content/uploads/2010/11/110-7_Klein.pdf

Gendar, A, & Goldsmith, S. (2009, November 17). Conviction of disbarred lawyer Lynne Stewart upheld for smuggling messages to jailed terrorist. Daily News. Retrieved June 16, 2006 from http://www.nydailynews.com/news/crime/conviction-disbarred-lawyer-lynne-stewart-upheld-smuggling-messages-jailed-terrorist-article-1.415941

International Red Cross. (1949) Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. Retrieved June 17, 2006 from http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=2F681B08868538C2C12563CD0051AA8D

Lapkin, T. (2004, Fall)Does Human Rights Law Apply to Terrorists? Middle East Quarterly VOLUME XI: NUMBER 4 Retrieved June 16, 2006 from http://www.meforum.org/651/does-human-rights-law-apply-to-terrorists

O'Connor, D. (2006, May 6). The criminology of terrorism: History, law, definitions, typologies. Cults and Terror. Retrieved June 16, 2006 from http://www.cultsandterror.org/sub-file/TOConnor%20Lecture.htm

Sunday, January 25, 2015

Solyndra: A Renewable Source of Unethical and Criminal Behavior

Solyndra: A Renewable Source of Unethical and Criminal Behavior

The ethics of the executives of the Solyndra demonstrate the kind of moral misbehavior that can be defined as immoral through either utilitarian or deontological grounds. Solyndra's executives committed these actions which should have been punished on criminal grounds. Although ethical violations included actions such as failing to employees of layoffs until after political elections, the three major lapses involved defrauding the government and collusion with government officials.
It may have been necessary for executives to defraud the government simply to exist; “The fact that federal loan guarantees were even necessary for Solyndra tells us that few, if any, lenders thought that giving the firm money was a very good idea” (Taylor & Van Doren, 2011, para. 4). Indeed, employees of Solyndra realized that the company was unfeasible even at it's
startup. A caller to “The Ethical Barometer” declared that this was the case for the low level employees as well; “Well, the little talk-show caller, just a frontline employee, was absolutely correct. What she may not have known were the financial details and investment priorities that make that knowledge of 'it won’t work because they won’t sell' critical to a criminal investigation.” (Jennings, 2011, para. 14) Eventually, Solyndra collapsed under it's own financial instability, an instability it hid from the government; “The FBI is investigating the now-defunct Solyndra in connection with allegations of financial statement fraud. Solyndra received more than $500 million in government loans from the Department of Energy (DOE) as part of the stimulus package, but when it filed bankruptcy at the end of August 2011, the government realized it was not as healthy as it had presented itself in financial statements submitted to obtain and then renew government financing.” (Ethics4CPAs, n.d., para. 1). Solyndra's executives continued the pattern of ethics violations at a later hearing for bankruptcy by taking the 5th; “ 'Management’s invocation of the Fifth Amendment does not excuse them from performing their fundamental disclosure and reporting duties under the Bankruptcy Code,' the filing says.
One topic of concern to federal attorneys is the accuracy of Solyndra’s financial statements. According to a report Thursday by Bloomberg, a focus of a federal investigation into the firm’s behavior is whether it lied to Energy Department officials in order to secure additional financing after the company started to fail. (Mosk & Greene, 2011, para. 5-6). But how were Solyndra's executives able to slip this fraud past government oversight that should have been able to catch such fraud?
Some government
officials did their job. “On August 20, 2009, a DOE staffer asked 'how can we advance a project . . . that generates a working capital shortfall of $50 [million] when working capital assumptions are entered into the model?," adding "it also simply won't stand up to review by oversight bodies. Solyndra's federal loan guarantee closed the following month. “ (The Wall Street Journal, 2011, para. 6). It wasn't just staff asking questions. Mary Miller, an assistant Treasury secretary, wrote “expressing concern that the Energy Department had not asked Treasury to review the loan restructuring as required. She said that the deal could violate federal law because it put investors' interests ahead of taxpayers'” (Stephens & Leonnig, 2011, para. 8) We will return to Miller's concern later. At the time, all warnings were ignored; “Energy Department officials were warned that their plan to help a failing solar company in Fremont by restructuring its $535 million federal loan could violate the law...” (Stephens & Leonnig, 2011, para. 1). But why were these warnings ignored?
There was collusion between Obama administration officials and Solyndra's
executives. “One of Solyndra's top investors was also a bundler for the Obama campaign responsible for tens of thousands of dollars in campaign donations.” (Wilson. 2011, para. 7). This collusion reached into the Department of Energy as well; “Facts continue to come to light around the controversy underlying government loan guarantees to the now bankrupt Solyndra solar power company. Now Wilson Sonsini Goodrich & Rosati stands accused of a conflict in connecting with its work represented the company.” (Law Firm Risk Management Blog, 2011, para.1). DOE official Spinner was married to a member of
law firm, Wilson Sonsini; “Wilson Sonsini Goodrich & Rosati says it built an 'ethical wall' around a lawyer married to an energy department official who pushed for a loan to Solyndra before its collapse.” (Weiss, 2011, para.11) Spinner's ethical failure was clear; “Despite an ethics agreement under which he said he would recuse himself from Solyndra's loan application, correspondence shows that Spinner defended the company, worked to get the president or vice president to visit its factory, and pushed for a final decision on approving the company's loan.” Stephens & Leonnig, 2011, para. 12). Finally, “Spinner took steps to further disclose his potential conflicts in an email dated Sept. 23, 2009 – but only after the Solyndra loan had closed” (Greene, 2011, para. 12).
From a deontological point of view these these ethical breaches are serious enough; violations of honesty to the public, to employees, and shareholders, refusing to testify in open court, and collusion with government officials. But the consequences of these actions are the truly painful effects. To start with, the taxpayer suffers; “When government takes $535 million and invests in a loser, it not only wastes taxpayer money but it also denies that capital to some other project in the private economy that might have succeeded “ (The Wall Street Journal, 2011, para. 10). Following this, it undermines public trust in the government to handle economic duties; “And there you have America's Solyndra economy, as the White House understands it: Washington allocates capital, and taxpayers pick up the tab if those choices go bust.” (The Wall Street Journal, 2011, para. 2). And finally, it undermines the public trust in politics overall; “It isn’t a Republican or a Democratic Party problem, and it isn’t unique to the Obama Administration. It is a structural problem in American government, a conflict of interest that pits the best interests of the American people against the political interests of the party in power.” (Ethics Alarms, 2011, para. 1). Returning to Asst. Secretary Miller's concern, as Solyndra went into bankruptcy, it
transfered it's losses in tax credit to the succeeding company. The $500 million was indeed lost to the taxpayer.

Ethics4CPAs. (n.d.). Solyndra: Financial statement fraud revealed Retrieved June 15, 2015 from http://ethics4cpas.com/solyndra-financial-statement-fraud-revealed/

Ethics Alarms. (2011, September 18). Solyndra, the White House, and the most dangerous conflict of interest of all. Retrieved June 15, 2015 from http://ethicsalarms.com/2011/09/18/solyndra-the-white-house-and-the-most-dangerous-conflict-of-interest-of-all/#more-8322

Greene, R. (2011, October 7) Fundraiser for Obama urged Solyndra deal from the inside. The center For Public Integrity. Retrieved June 15, 2015 from http://www.publicintegrity.org/2011/10/07/6920/fundraiser-obama-urged-solyndra-deal-inside

Jennings, M. (2011, September 10). Solyndra – The little company that couldn’t – Something even its employees and external auditors knew. The Ethical Barometer. Retrieved June 15, 2015 from http://www.mariannejennings.com/?p=1212

Law Firm Risk Management Blog. (2011, October 13). Facing Conflicts Allegations, Law Firm Representing Solyndra Cites Ethical Screen . Retrieved June 15, 2015 from http://www.lawfirmrisk.com/2011/10/facing-conflicts-allegations-law-firm.html

Mosk, M., & Greene, R. (2011, October 7). Solyndra executives refusing to answer bankruptcy questions. The National Law Review. Retrieved June 15, 2015 from http://www.natlawreview.com/article/solyndra-executives-refusing-to-answer-bankruptcy-questions

Stephens, J. & Leonnig, C. (2011, October 11). Solyndra loan: Energy officials were warned on law. SFGate. Retrieved June 15, 2015 from http://www.sfgate.com/news/article/Solyndra-loan-Energy-officials-were-warned-on-law-2328444.php

Taylor, J. & Van Doren, J. ((2011, September 13) A teachable moment courtesy of Solyndra. Forbes. Retrieved June 15, 2015 from http://www.forbes.com/sites/powerlunch/2011/09/13/a-teachable-moment-courtesy-of-solyndra/

The Wall Street Journal.(2011, October 12). The Solyndra economy: Administration emails reveal the reality of politicized investing. Retrieved June 15, 2015 from http://online.wsj.com/news/articles/SB10001424052970204524604576610972882349418?mg=reno64-wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10001424052970204524604576610972882349418.html

Weiss, D. (2011, October 12).Wilson Sonsini cites ‘ethical wall’ in defending its Solyndra work. ABA Journal:Law News Now. Retrieved June 15, 2015 from http://www.abajournal.com/news/article/wilson_sonsini_cites_ethical_wall_in_defending_its_solyndra_work/

Wilson, A. (2011, September 13) Why the Solyndra Solar Bankruptcy Scandal Is a Big Deal, but Not the Big Deal Republicans are Making of It. Huff Post Green. Retrieved June 15, 2015 from http://www.huffingtonpost.com/andy-wilson/why-the-solyndra-solar-ba_b_959232.html

Saturday, January 24, 2015

Ethics of Juvenile Justice

Does either of these cases address the utilitarian view of ethical treatment of convicted murderers?

There are few examples of utilitarian justifications used in these discussions. Most of the argumentation is based upon deontological principals. In the first place, the main issue is based upon the question of mandatory sentencing of juveniles; “One important distinction to recognize is that the ruling is not an outright prohibition on the sentence of life without parole for juvenile offenders; rather, it declares that mandatory life without parole for juvenile offenders is unconstitutional” (Michigan State Senate, Senate Fiscal Agency, 2012, p.1) Because this directly affects the discretion of juvenile courts within the correctional system, it is a question of duty as opposed to a question of consequences. As important, the discussion also focuses on mens rea, or intent. “In 1796 Blackstone explained that lunatics suffered a deficiency in will that rendered them unable to tell right from wrong. It is this lack of free will that prevents a finding of criminal liability” (Phillips & Woodman, 2008, p.467). Mens rea becomes an issue in juvenile justice due to the presumed lack of capacity of agency. This presumption is primarily based on maturity level. “Freeman added that the frontal lobe of the brain, which controls rational thinking and common sense, does not fully develop until someone is in his or her early-20s. This is why people into their late teens tend to engage in risky behavior, such as speeding, he said. “ (Lupkin, 2014, para. 14).
To be honest, I personally engaged in risky behavior until I was in late my late '30s. I used to joke that maturity was not based in wisdom, but rather a lack of energy to do anything...fun.... How sad that my joke has turned into reality. However, lack of maturity is not the only factor. “Characteristics of juveniles that differentiate them from adult offenders (for whom mandatory life without parole sentences are still allowed) include their general lack of maturity, vulnerability to outside pressures (peer pressure), and that their traits are much less fixed, meaning that their actions may not be evidence of unchangeable vile” (Michigan State Senate, Senate Fiscal Agency, 2012, p.2)

What would be the difference between the utilitarian and the deontological philosophies of the two cases reviewed?

My assertion that utilitarian argument is lacking in the direct discussion of these cases does not address the underlying considerations of utilitarianism in the juvenile court system; “...the U.S. Supreme Court in Kent v. U.S .identified constitutionally sanctioned standards, criteria, and procedures governing decisions by the juvenile court to waive its jurisdiction over the offending adolescent. Signs of 'maturity' and 'sophistication' in the crime were important parts of the Kent calculus, signaling to the judge that the young offender posed a danger for further crimes..” (Fagan, 2008, p.82). Fagan continues later, “The recent push to lower the age threshold for treating juvenile offenders as adults assumes that they are sufficiently mature to be held culpable for their crimes, that any deficits in their maturity are minor compared with the harm they have done, and that unless punished harshly, they are likely to offend again.” (2008, p.93). However, the deontological considerations that due process, especially the necessity of mens rea, must play are balanced against the consequences of juvenile justice, and not always successfully; “Justice Kagan stated that the decision to try the offender as an adult is often a false choice because charging someone in the juvenile system may mean he or she can be released on his or her 21st birthday, which may be viewed as too lenient given the magnitude of thec rime of murder.” (Michigan State Senate, Senate Fiscal Agency, 2012, p.2).
One area of intersection between the two philosophies lies in the interest in rehabilitating non-homicidal juveniles (Miller & Jackson not applying). “The development of a separate juvenile court also reflected a fundamental distinction between sanctions based on characteristics of the offender and punishment based on the offense. The parens patriae philosophy emphasized treatment, supervision, and control, rather than the traditional punitive responses of the criminal law” (Fagan & Deschenes, 1990, p.318). Unfortunately, juvenile rehabilitation is as elusive as adult rehabilitation; A New York State Office of Children and Family Services [OFCS] study of recidivism showed that 49% of program participants were re-arrested within 1 year of release, and that 66% were re-arrested within two years of release (2013, p.2) The OFCS study reflects the correctional system at large; “Few modern criminologists or correctional administrators maintain the illusion that incarceration has either broad therapeutic benefits or a strong deterrent effect. Recidivism rates in adult prisons are simply too high—more than two prisoners in three released in 1994 returned to prison within three years—to sustain beliefs in either the rehabilitative or deterrent component of adult corrections” (Fagan, 2008, p.101) This is at a point where utilitarian concepts break from rehabilitative concepts; The rate of youth offending per 100 ages 12-17 dropped from a high of 52 in the early 90's to 6 in 2011 (ChildStats, 2013, Table 1). This is a decline of 88%. One possible explanation for this drop in juvenile crime is that lawmakers in the early 90's embarked upon a series of reforms that changed the approach to juvenile justice. Piquero and Steinberg found that "during the 1990s . . . legislatures across the country enacted statutes under which growing numbers of youths can be prosecuted in criminal courts and sentenced to prison...today, in almost every state, youths who are 13 or 14 years of age (or less) can be tried and punished as adults for a broad range of offenses" (2007, p.1).
Returning to Miller & Jackson after this broader look at juvenile correctional issues we can say the following: there are utilitarian considerations in considering the severity of their crimes and the extant of harm (society at large). These considerations are balanced by duty issues such as adherence to due process of law, and the ability of juvenile courts to use their discretion (often under utilitarian considerations).The utilitarian considerations are also balanced by issues of intent, as the issue of juvenile mens rea is examined. Finally, this becomes more of an emotional consideration in juvenile issues, as Kidder's “right versus right” dilemma of justice versus mercy pills at the mercy strings strongly in juvenile cases.

Hmmm, is parens patriae a utilitarian concept? I was about to assert it was (based on the consequences of children growing up feral being bad for everyone arround), but it sounded weak where I had placed in my discussion. What do yall think?

ChildStats. (2013). Youth perpetrators of serious violent crimes. Retrieved February 11, 2014 from http://www.childstats.gov/americaschildren/beh5.asp

Fagan, J. & Deschenes, E. (1990, Summer), Determinants of Judicial Waiver Decisions for Violent Juvenile Offenders, Journal of Criminal Law and Criminology, Vol.81:Iss.2. Retrieved June 12, 2014 from http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6662&context=jclc

Fagan, J. (2008, Fall). Juvenile crime and criminal justice: Resolving border disputes. The future of children VOL. 18: NO. 2 Retrieved June 12, 2014 from http://files.eric.ed.gov/fulltext/EJ815074.pdf
Lupkins, S. (2014, June 11) Should girls in Slender Man stabbing be tried as adults? ABC News. Retrieved June 12, 2014 from http://abcnews.go.com/Health/girls-slender-man-stabbing-adults/story?id=24095011

Michigan State Senate, Senate Fiscal Agency. (2012, August 16). Juvenile Lifers: Miller v. Alabama and Michigan. Retrieved June 12, 2014 from http://www.senate.michigan.gov/sfa/Departments/DepartmentPublications/CorrJuvenileLifersMemo.pdf

Phillips, J. & Woodman, R. (2008). The insanity of the Mens Rea Model: Due process and the abolition of the insanity defense. Pace Law Review, Volume 28 issue 3. Retrieved June 13, 2014 from http://digitalcommons.pace.edu/plr/vol28/iss3/

Piquero, A. & Steinberg, L. (2007) Rehabilitation versus incarceration of juvenile offenders: Public preferences in four models for change states. Models For Change. Retrieved February 11, 2014 from http://www.macfound.org/media/article_pdfs/WILLINGNESSTOPAYFINAL.PDF

OFCS Fact Sheet: Recidivism among juvenile delinquents and offenders released from residential care in 2008. (2011). New York State Office of Children and Family Services. Retrieved February 11, 2014 from http://www.ocfs.state.ny.us/main/detention_reform/Recidivism%20fact%20sheet.pdf

I think I would have decided for the State;  there can be a problem with ineffective judges (from a utilitarian point of view, over merciful or too lenient) and there can also be cases in which mandatory sentencing statues do not meet the crime proportionally.  This is true in both juvenile and criminal justice.  I see that it is easier to fix an injust law law then it is to identify and fix a "bad" judge.  I also don't see LWOP as an issue of "cruel and unusual" for juveniles after considering the severity of the offense...strange to see that concept has been redefined from the ripping off of limbs originally to how it is adjudicated now.

This can leave a bad taste in the mouth.  For example, I would try the two girls in the "Slender Man" stabbing as adults.  The main point in juvenile justice should be severity of offense, and I base this on the utilitarian concept. I wouldn't feel like a hero of the Republic for that decision, but I think it's the right one  Perhaps a better overall fix would be to assign the juvenile courts the ability to issue severe penalties while still separating the juveniles from the adults; "separate but equally harsh"

I think that parens patraie has been used, but quite capriciously.  For example, I'll toss out the 2008 case in which Texas seized 468 children of a religious sect (the Yearning for Zion ranch, they were a Mormon break-off group).  Even when not abused, the decision of parens patraie is going to be difficult;  you have to balance the rights and the good of the parents, the child, and the State.

The other side of this is when the State fails to assert parens patraie in cases of negelected or abused children.  I won't even look up cases in which the State has lost children, or worse.

In either case, it comes back to the point where we leave theory and enter the world of resources and politics.

I think that there is an emotive/intuitive reaction as far as protecting children, even children that are monsters.    Even younger children then the Slender Man attackers have done vicious things.  The murderers of James Bulger were ten years old.  My main consideration of weighing crime is in the severity of the crime.  Murder is an overwhelming weight, in my opinion ( and attempted murder is pretty close).
So there is a valid "right versus right" argument.  Mercy for monsters with the appearance of children versus justice, and the future protection of society.  That sounds biased against mercy, but I'm not sure I can balance the statement out from my perceptive.
I wonder if tribalism plays a part in this thought process; I'm not big on race or social status as far as I regard people that are "on my team", but people that kill, rape, or steal, regardless of mens rea, are instinctive "others".  I'm not worried about their intent, background, or motivations...I just want them AWAY from me. I think this is where retribution as a factor in criminal justice comes from for many people.

Many of these cases, not only in dealing with juveniles, but in other questions involving mens rea, rest upon the Court's definition of "cruel and unusual punishment".  But isn't punishment "cruel and unusual" to begin with?  The whole point of punishment is inflicting pain in proportion to the offense.  Do you define cruelty at this point as lack of proportionality? And punishment is unusual as well...you aren't punished every day as a matter of schedule (no married jokes here!).  I can see I'm going to have to hit the books here for the Founders' intent and practice, because the definition of what is "cruel and unusual" has certainly changed over the years.


I think that the point at where we measure proportionality is the issue.  If a person is murdered, does the murderer have to die, regardless of mens rea, to meet proportionality?

I do know that confining children with adults is disproportional, considering our society's reluctance to make prison a safe place for prisoners.  I don't think it should be a "painless" place, as "pain" is a function of punishment.  But that "pain" needs to be a measured instrument of the State, not simply more crime committed by other prisoners.

I should have specified this;  the "pain" should be the loss of freedom. Corrections staff should not be beating or otherwise "adding on". 


Friday, January 23, 2015

The questionable morality of the insanity defense

The questionable morality of the insanity defense
The case of Singleton v. Norris presented a set of issues for the warden of the prison, the correctional system, and the legal system. On the surface, the issues have been summarized by Brunsvold as the following:
The appeal presented two issues: (1) whether, without violating due process, a state may forcibly administer antipsychotic medication to a prisoner whose date of execution has been set, and (2) whether,without violating the Eighth Amendment, a state may execute a prisoner who is artificially competent because of a forced medication regimen.”(2004,p.1300)
The alleged violation of the 8th Amendment is based upon the 1986 Supremes Court ruling in Ford v. Wainwright that executing the insane is cruel and unusual punishment. However, an examination of utilitarian philosophy and retribution theory shows that not only are the surface issues questionable, but that the underlying assumption that executing the insane is wrong is also morally questionable.
To begin with this line of inquiry, we must recognize the importance of the concept of mens rea in our legal system. Mens rea is a Latin term meaning “guilty mind”. It is a cornerstone of American justice, and reflects deontological though the question of intent. “Crimes are defined by their 'elements,' which always include a prohibited act and in most cases a mental state, a mens rea, such as intent. “ (Morse & Hoffman, 2007, p.1074) The basis of the insanity defense is that the insane can not have mens rea as there is an incapacitation of agency. However, there are several other legal contexts in which the lack of mens rea has been raised; “heat of passion”, intoxication, mental retardation, and the criminal responsibility of juveniles. There have been legal precedents in which lack of mens rea does not protect the offender from criminal liability; in the case of intoxication, Montana vs Egelhoff and in the many cases of juveniles being tried as adults due to the severity of their crimes. As it becomes clear that mens rea is important to our idea of justice, it just as clear that there limits to claims of a lack of mens rea in criminal defense. Mental illness is also limited in these claims; “mental disorder produces crazy desires or crazy beliefs about reality,but it virtually never prevents a defendant from meeting the law's criteria for intention, knowledge, conscious awareness, and other mens rea terms.” (Morse & Hoffman, 2007, p.1087)
Next, an examination of utilitarian and retributive theories do not show compelling reasons to consider the execution of the insane as immoral. This is more apparent for utilitarian theory, which focuses solely on the consequences of actions and the weighing thereof, but it is not so clear regarding retribution theory. To begin with, “the nature of retributivism is deeply contested. No particular account should be regarded as canonical; philosophers of criminal law use this label in countless different ways.(Husak, 2012, p.450) Husak does contend that “Despite their considerable differences, all desert theorists place the principle of proportionality near the heart of retributive justice. “(2012, p.453) Even so, how proportionality is measured differs. One view of retributive thought holds that “the insane prisoner does not possess the ability to understand the reasoning behind his punishment, therefore stripping the retributory effect of the punishment” (Gogna,2012, p.16). Hollander-Blumoff expounds on this idea, “There are several basic tests of insanity, all of which rely to some degree on a conception of the sane individual’s ability to control his actions. The M‘Naghten test states that a person is insane if, at the time of the act in question, he did not know the nature and quality of the act or did not know that the act was wrong. This means that individuals who know what they are doing, and that their act is wrong, are not insane. This test tracks a retributivist account of self-control: we only punish those who could have chosen not to do wrong.”(2012,p.515). One the other hand, retributive theory insists that social relationships be restored; “Since crime is defined as the violation or disturbance of the "right" relationships in the community, the goal of the retributive theory of justice is to reconcile these relationships. Reconciliation is accomplished by making an offender "pay" for the disturbance his or her conduct has caused.”(Starkweather1992 p857). “Kant states that the act that the person has performed “is to be regarded as perpetrated on himself” “ (Murtagh, n.d., para. 11) Thus, as some retributive thinkers morally justify a claim an exemption to mens rea based on insanity, others posit that such a defenses does not meet the basic definition of retributive theory. Reflecting it's disparate nature, there is no overall moral justification of the insanity defense from a retributive viewpoint.
On the other hand, utilitarian theory presents several specific opportunities for opposition to the idea. The first is that the qualification of insanity is not easily judged; “Probably the most widely used definition in the United States, and perhaps in the world, is contained in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. This document admits,however, that "no definition adequately specifies precise boundaries for the concept of 'mental disorder'” (Morse & Hoffman, 2007, p.1082) This presents a lack of certainty that justice, a beneficial consequence for the public good, can be attuned. Indeed, considering that intent is not a factor of utilitarian thought, one utilitarian argument is that the concept of mens rea doesn't apply at all; “the mens rea issue is entirely distinct from the legal insanity issue, even if precisely the same evidence would be relevant to adjudicating both claims. People with mental disorder are not automatons; rather, they are agents who act for reasons. Their reasons may be motivated by distorted perceptions and beliefs, but they do form intentions and have knowledge of what they are doing in the narrow, most literal sense” (Morse & Hoffman, 2007, pp.1096-1097) Morse and Hoffman continue to provide argument for the idea that the consideration of intent is not necessary to provide justice, especially in the case of the insane; “No matter how limited an insanity defense may be, some defendants will have been so grossly out of touch with reality at the time of the crime that an excuse is warranted because their mental disorder, as in our example of the deluded self-defender, interferes with their rationality even if it does not interfere with their formation of mens rea. It is precisely because of this category of defendants that mens rea alone cannot do the work necessary for a morally coherent system of criminal responsibility.” (Morse & Hoffman, 2007, pp.1119-1120). Another argument that utilitarians would use in favor of the death penalty for a criminal offender suffering from a violent mental illness, and thus touching on Brunsvold's surface issue of medical treatment, is the continuing potential of danger presented by such an offender; “The Eighth Circuit majority seems to believe that since Singleton became dangerous when not taking medications on one occasion, he would always be-come dangerous when he stopped them”(Zonana, 2003,p.375)
Beyond the concepts of utilitarian and retributive thinking, there are other moral questions regarding the use of the insanity defense. Due to the fluid definitions of insanity as applied from court to court and psychiatrist to psychiatrist, Morse and Huffman make the point that there is not an objective level of insanity,“unlike the mens rea inquiry, legal insanity is a legal and moral policy judgment, not a particular empirical fact.”(2007, p.1119) and they continue this line of thought, “precisely because insanity is a moral construct and not a scientific one, we cannot abandon it to the scientists, especially scientists who, as we discuss below, misguidedly reject the possibility of individual responsibility tout court”( Morse & Hoffman, 2007, p.1119). Morse and Huffman follow that assertion by examining the motives involved; “Some people, including many neuroscientists, think that these discoveries are leading inexorably to a mechanistic, deterministic view of the brain, and thus to a mechanistic, deterministic view of human behavior in which conscious intentionality plays no role”(Morse & Hoffman, 2007, p.1133)
In conclusion, the warden, the corrections staff, and the lawmakers need to contend with the thought that there is more to the morality of the insanity defense then simply a possible, and yet hard to prove, incapacity for mens rea. In the first place, although mens rea is crucial to American jurisprudence, there are exceptions to the requirement of mens rea in other contexts of incapacity of agency than insanity. Secondly, morally speaking it has no ground in utilitarian considerations. Third, retributive theory both supports the insanity defense and prohibits it, but retributive theory is diverse to begin with. Finally, the use of the insanity defense should be a moral issue rather than an issue decided upon a question of assumed but unprovable “objectivity”.

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Morse, S., & Hoffman, M. (2007, Summer). The uneasy entente between legal insanity and mens rea: Beyond Clark v. Arizona. Journal of Criminal Law and Criminology, Volume 97 Issue 4 Retrieved June 9, 2014 from http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7274&context=jclc

Murtagh, K (n.d.).Punishment. Internet Encyclopedia of Philosophy. Retrieved June 6, 2014 from http://www.iep.utm.edu/punishme/#SH3a

Starkweather, D.. (1992). The detributive theory of "Just Desserts" and victim participation in plea bargaining. Indiana LawJournal: Vol. 67: Iss. 3, Article 9.Retrieved June 10, 2014, from :http://www.repository.law.indiana.edu/ilj/vol67/iss3/9

Zonana, H. (2003). Competency to be executed and forced medication:Singleton v. Norris. Journal of the American Academy of Pychiatry and the Law, Volume 31, Number 3. Retrieved June 10, 2014, from http://www.jaapl.org/content/31/3/372.long