Wells Fargo & Financial Crimes

The venerable Wells Fargo bank made the news in 2016 for financial misdeeds on a massive scale. Employees of the company, in an effort to meet the quotas set by management, had created numerous accounts without the permission of the clients. In response over 5,300 lower level employees were fired. Initially, CEO John Stumpf and former head of retail banking Carrie Tolstedt were to keep their rather sizable compensation for leading the company to a great financial “success” based on this fraud. However, backlash from the public and the shareholders has resulted in Stumpf and Carrie losing some of their financial compensation.

As would be expected, there are currently no plans for criminal charges of the sort that could result in jail time. This is consistent with how financial misdeeds by the elites are typically handled: some fines and, at worst, some forfeiture of ill-gotten gains. While I do not generally agree with Trump, he is not wrong when he points out that the system is rigged in favor of the elites and against the common people. The fact that Trump is one of the elite and has used the system quite effectively does not prove him wrong (that would be fallacious reasoning); rather he himself serves as more evidence for the rigging. Those who loath Hillary Clinton can also add their own favorite examples.

It is instructive to compare the punishment for other misdeeds to those imposed on Wells Fargo. Shoplifting is usually seem as a fairly minor crime,  but a person who shoplifts property with a combined value of less than $300 can pay a fine up to $1000 or be sentenced to up to a year in jail. Shoplifting property with a combined value over $300 is a felony and can result in a sentence between one and ten years in jail. While Wells Fargo did not seem to directly steal money (that is, it did not simply empty accounts into its own coffers), it did rob people through the use of fees and other charges that arose from the creation of these unauthorized accounts.

While there are clearly differences between the direct theft of shoplifting and the indirect robbery of imposing charges on unauthorized accounts, there seems to be little moral distinction: after all, both are means of robbing someone of their rightful property.  Because of this, there would appear to be a need to revise the penalties so that they are properly proportional.

One option is to bring the punishment for major financial misdeeds in line with the punishment for shoplifting. This would involve changing the fine for financial misdeeds from being a fraction of the profits (or damages) of the misdeeds to a multiple of the profits (perhaps three or more times greater). It could be argued that such a harsh penalty could financial ruin an elite who lacked adequate assets to pay for their misdeed; however, the exact same argument can be advanced for poor shoplifters.

Another option is to bring the punishments for shoplifting in line with the punishments for the financial elites. This would change the fine for shoplifting from likely being in excess of the value of what was stolen to a fraction of what was stolen (if that). The obvious objection to this proposal is that if shoplifters knew that their punishment would be to pay a fraction of the value they had stolen, then this punishment would have no deterrent value. Shoplifting would be, in effect, shopping at a significant discount. It is thus hardly shocking that the financial elite are generally not deterred by the present system of punishment—they come out way ahead if they do not get caught and can still do very well even if they are caught.

It could be objected that the financial elite would be deterred on the grounds that they would still be better off using legal means to profit. That way they would keep 100% of their gain rather than a fraction. The easy and obvious reply is that this deterrent value is contingent on the elite believing that the legal approach would be more profitable than the illegal approach (with due consideration to the chance of getting caught and fined). Since the punishment is often a fraction of the gain and the potential gain from misdeeds can be huge, this approach to punishment has far less deterrent value than a punishment in which the punished comes out at a loss rather than a gain.

It is also interesting to compare the punishment for identity theft and fraud with the punishment of Wells Fargo. Conviction of identity theft can result in a sentence of one to seven years. Fraud charges also have sentences that range from one to ten years and beyond. While some do emphasize that Wells Fargo was not engaged in traditional identity theft was morally similar. As an example of traditional identity theft, a thief steals a person’s identity and gets a credit card under that name to use for their own gain. What Wells Fargo did was open accounts in people’s names without their permission so that the company could profit from this misuse of their identity. As such, the company was stealing from these people and doing them the same sorts of harms inflicted by individuals engaging in identity theft.

From a moral standpoint, those involved in these actions should face the same criminal charges and potential punishments that individuals acting on their own would face. This is morally required for consistency. Obviously enough, the laws are not consistent—the misdeeds of the elite and corporations are so often punished lightly or not at all. This is nothing new—the history of law is also the history of its unfair application. The injustice of justice, one might say.  However, this approach is problematic.

Looked at from a certain moral perspective, the degree to which I am obligated to accept punishment for my misdeeds is proportional to the consistency and fairness of the system of justice. If others are able to walk away from the consequences of their misdeeds or enjoy light punishments for misdeeds that would result in harsh penalties for me, then I have little moral reason to willingly accept any punishments that might be inflicted on me. Naturally, the state has the power to inflict its punishments whether I accept them or not, but it seems important to a system of justice that the citizens accept the moral legitimacy of the punishment.

To use an analogy, imagine a professor who ran their class like the justice system is run. If an elite student cheated and got an initial grade of 100, they might be punished by having the grade docked to an 80 if caught. In contrast, the common students would be failed and sent before the academic misconduct board for such a misdeed. The common students who cheated would be right to rebel against this system and refuse to accept such punishments—though they did wrong, justice without consistency is but a mockery of real justice.

In light of this discussion, Wells Fargo is yet another shining example of the inherent injustice and inequality in the legal system. If we wish to have a just system of justice, these disparities must be addressed. These disparities also warrant moral disobedience in the face of punishment. Why should, morally, a shoplifter accept a fine that vastly exceeds what they stole when a financial elite can pay but a fraction of their theft and profit well from their misdeeds?

 

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Drugs, Race, Crime & Health

Operation Mallorca, US Drug Enforcement Admini...

The war on drugs is perhaps the longest and least successful war waged by the United States. One of the main problems is, as Walt Kelley said, “we have met the enemy and he is us.” Which is to say that the war on drugs is largely a civil war and most of the casualties are Americans.

While some regard the war on drugs as a battle of virtue against vice, there is a compelling case that many of the drug laws were motivated by racism. For example, San Francisco’s 1875 law against opium was apparently based on the fear that Chinese men were luring white women into opium dens so as to have sex with them. This was followed by laws against cocaine (motivated largely by racism towards blacks) and then by laws against marijuana (motivated largely by biases against Mexicans). The war on drugs proper began in 1971 with Richard Nixon’s declaration and following presidents followed suit with varying degrees of enthusiasm. President Bill Clinton, eager to appear tough on crime, escalated the war in a manner that has led directly to the present problems of mass incarceration and the disproportionate incarceration of minorities.

Some might argue that the drug laws do not specifically target minorities. After all, as one might point out, it is no less illegal for a white person to use cocaine than it is for a black person. While this is a point worth considering, the application of the laws and the approach to their enforcement is often strongly influenced by race. As one example, minority communities are policed more aggressively than white communitiesdespite the fact that blacks are no more likely to use drugs than whites (and whites are apparently more likely to deal drugs). This is one of the causes of the disproportionate incarceration rates. As another example, sentencing is often also disproportional, with the difference in sentences between crack and powder cocaine serving as an excellent illustration.

One counter to these assertions is to claim that minorities commit drug crimes at a higher rate than whites and thus the arrest rate justly reflects this. The challenge is to support this claim with evidence. In some cases, the “evidence” offered is the arrest rate itself, creating a circle of “reasoning”: minorities have a higher arrest rate because they commit crimes at a higher rate and this is proven because minorities have a higher arrest rate. Unfortunately, for some the crime rates are a matter of ideology and hence they perceive the matter through that lens and this makes discussing the issue challenging. While an analysis of the data provides what seems to be objective evidence of disparity, there are those who interpret the data rather differently. My own view is that the disparity does exist and is shown by the statistical data. Naturally, those who disagree might be inclined to claim that my view is due to ideology as well.

What is not in dispute is that the war on drugs has resulted in a mass incarceration thus making the United States the world leader in terms of the percentage of its population behind bars. While the left has long been concerned with the incarceration rate, conservatives have also begun to express worries about this matter and the war on drugs. But what seems to have caused a significant shift in attitudes is the opioid epidemic in America. While the American middle and upper classes have used drugs throughout American history, they have not been the main focus of law enforcement. This has enabled the maintenance of the illusion (or delusion) that drugs are a problem mainly for the poor and minorities. Due to the attention paid to the opioid caused deaths, this illusion has been dispelled. As such, it is now recognized that there is a drug epidemic sweeping white America—and not just poor whites, but whites of the middle and upper classes.

Recognition of the whiter and wealthier nature of the current epidemic seems to have motivated a radical shift in how drug use is being policed—at least when in regards to certain classes of people. This epidemic is being treated by many as a health crisis and not a crime wave. Instead of focusing on arresting and incarcerating people, considerable effort has been focused on helping people overcome their addiction and to mitigate the harms caused by this addiction. This is not to say that no one previously regarded the drug problem as a health issue, just that this does represent a significant change in the mainstream view.

While this change in attitude centered on opioids has had some trickle-down effect on other drugs, this change has yet to spread broadly. There is still fairly aggressive policing aimed at other drugs (with the obvious exception of marijuana in states that have legalized the drug) despite the fact that the logic that casts opioid addiction as a health issue should also entail that other forms of drug addiction are also health issues. However, there is some hope that this approach will spread to drug use in general.

There are compelling reasons to accept this shift. The first is that the approach of criminalizing drugs, whatever its actual intent, has failed to address the problem of drug use. As such, there is a clear need for a change and the health angle seems a sensible approach to test. The second is to use Mill’s principle of harm: the use of drugs itself hurts the drug user directly, thus people should have the liberty to use drugs—even though they are a poor life choice. This is consistent with treating them as a medical problem—people have the choice to accept or reject treatment.

The principle of harm does justify laws that criminalize drug related activity that harms others. Under this principle, the state has the moral right to impose on a person’s liberty to prevent harm to others. These justified impositions would include such things as making it illegal to operate a vehicle under the influence of drugs. Under this principle, the selling of drugs should be treated as the selling of any other product and regulated as such. For example, selling tainted or contaminated drugs should be punished in the same manner as the selling of tainted or contaminated food. As another example, the selling of dangerous drugs should be treated like the selling of any dangerous product (such as lead paint, rigged financial products, tobacco and alcohol) and punished appropriately. And, of course, drug motivated murder and theft should be treated, as always, as murder and theft. Treating drug use as a health issue is thus a better approach and is consistent with still treating some drug related activities as criminal activities.

 

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Not conservative, reactionary: The flawed case against same-sex marriage

Russell Blackford, University of Newcastle

The time has come for Australia to provide for same-sex marriages. This would reflect the countries with which we compare ourselves, including the US and the UK, and it would acknowledge the contemporary meaning of marriage in Western liberal democracies.

As I write, however, progress has stalled. It remains to be seen whether Australia will have a plebiscite on same-sex marriage in early 2017. Federal parliament is considering the issue, and political parties are negotiating. Something that ought to be easy has become very difficult.

A plebiscite is unnecessary, since the federal parliament has undoubted power to amend section 5 of the Marriage Act to change the definition of “marriage”. That is exactly what happened when the definition was last altered by parliament, as recently as 2004, to exclude the possibility of same-sex marriages. On that occasion, the Howard government’s action did not need a specific vote by the public.

Michael Jensen’s case against same-sex marriage

You need to squint pretty hard to see what arguments can be put against same-sex marriage in Australia without relying on religious morality or appealing to bigoted dislike of gay men and lesbians. On 28 May last year, however, Michael Jensen wrote an op-ed piece for The Drum to set out what seems to be a core social conservative argument.

It’s worth dusting this off to take another look. If a plebiscite does go ahead, whether next year or at any other time, something like Jensen’s case will likely be put in support of a “No” vote.

Jensen almost pleads with readers not to regard him as merely a bigot. In fact, I know Michael Jensen – albeit very slightly – and I doubt that he harbours any secret hatred for gay men and lesbians. The problem isn’t bigotry in the ordinary understanding of that word, and I understand Jensen’s concern that he might be simply demonised. Too much of that goes on in public debate.

At the same time, when I read and re-read his argument as published by The Drum he seems to be living in an earlier era. Central to the argument is that providing for same-sex marriage would alter the very meaning of marriage as a social institution. I can understand this concern up to a point, but the horse has bolted.

In a trivial sense Jensen is correct. The necessary alteration to section 5 of the Act would – obviously – change the definition of marriage in Australian federal law. But of course, that also happened in 2004.

To be fair, Jensen might say that the 2004 amendment to the Marriage Act merely clarified something that had previously been understood. By doing so, it shifted the onus to anyone wanting to introduce a new concept of marriage into the law. Let’s grant this point for the sake of argument. In the end, I doubt that it really matters.

At any rate, Jensen could plausibly claim that the understanding throughout Christendom, during the Middle Ages and continuing into the emergence of European modernity, was of marriage as a heterosexual and monogamous relationship. This idea of marriage was thus the one exported to British colonies, such as those founded in Australia during the eighteenth and nineteenth centuries.

Jensen could then go on to emphasise, as he does in his contribution to The Drum, that marriage was, at least in this European and Christian tradition, about the union of an individual man and an individual woman who intended to have children.

However, the fact that this was a traditional European and Christian view doesn’t get us far. At the heart of the current controversy is whether such a view should prevail in future.

Religion, reasons, rhetoric

Jensen needs to say more, and of course he does. He claims that he is not putting a religious position, but if it’s not religious what is it? He employs some esoteric language that seems astonishingly contrived in a secular context. He writes, for example, “A child is a tangible expression of our sexed twoness.”

What, here on Earth, does that mean? As far as I can decipher it, Jensen is stating that we are a species which reproduces sexually (unlike, say, protozoa and certain starfish). Fine, but no one I know of disputes this.

Putting the point in a strange way is presumably meant to give it a kind of moral overlay or resonance, as if the facts of sexual reproduction among mammals are not merely established by science and common experience but also possess a metaphysical or theological oomph. If so, that’s not a claim Jensen can rely on while also denying that he is arguing from a religious viewpoint, or at least something very like one.

Jensen continues: “To remove the sexual specificity from the notion of marriage makes marriage not a realisation of the bodily difference between male and female that protects and dignifies each, but simply a matter of choice.”

Again, it’s hard to get my secular head around this sentence. But here’s my best attempt: our species, Homo sapiens, is (leaving aside a small percentage of intersex people) a fairly obviously sexually dimorphic one. Or more straightforwardly still: men and women have some significant biological differences. Some people may deny that we’re a sexually dimorphic species, but if so their number is … small. Again, this point isn’t news to anybody who’s not overthinking it.

But nothing follows automatically, from these familiar biological facts, as to whether or not the social institution of marriage should be available only to couples consisting of one heterosexual person from each of the two standard sexes. If we are capable – as we obviously are – of setting up the institution of marriage in a way that caters to personal choice more flexibly, why not? And how is human sexual dimorphism – or how are men and women – less protected if and when we do so? (Notwithstanding same-sex marriage, there will still be men and women unless something very drastic is done via genetic technology!)

It’s also true, of course, that we are a species whose members have varied sexual orientations. So, why shouldn’t our social institutions take that fact into account into some way?

Before I leave the topic of human sexual dimorphism, we need to be careful just how much weight we give to it in policy deliberations. It’s not entirely irrelevant to policy that men and women really are different in certain ways. But at this stage of human history, it is often wiser, and more to the point, to accentuate the similarities between us. Otherwise, it becomes tempting to give the differences an exaggerated emphasis (and, indeed, to be too quick to make assumptions about just what the differences are).

In particular, there’s plenty of work still to be done in response to the key feminist insight that men and women are cognitive equals. Doing that work is a good way to “dignify each”. In the past – and even now – the contrary assumption has unjustly excluded women from a very broad range of social positions and roles.

Though Jensen is not a bigot, and although he attempts to be civil and scrupulous, he can be criticised for some of his rhetoric. He approaches the role of propagandist when he states: “Instead of the particular orientation of marriage towards the bearing and nurture of children, we will have a kind of marriage in which the central reality is my emotional choice. It will be the triumph, in the end, of the will.”

The last sentence of this really adds nothing of substance, but it sounds very sinister: “Oh no! It will be … the triumph of the will!”

More seriously, although I don’t know whether this was intended, Jensen’s wording evokes the spectre of Nazism via the title of Leni Riefenstahl’s 1935 propaganda film, Triumph des Willens (“Triumph of the Will”). Whether or not Jensen’s (or my) readers are familiar with Riefenstahl’s brilliant, histrionic, terrifying film, a Nazi-like tinge to the phrase “triumph of the will” has entered the English language. (If not, what exactly is so bad about triumphs of human will?)

It would be helpful if all parties to the same-sex marriage debate managed to avoid suggestions that good-faith opponents are Nazis, resemble Nazis, or have anything to do with Nazis.

Once the rhetoric is stripped away, why shouldn’t my decision to get married, or not, reflect my values and choices, “emotional” or otherwise? Jensen’s suggestion here, that there is something wrong with individual choice, is highly illiberal. We might wonder why the law should override individual choices unless some kind of significant harm to society can be demonstrated. As to that, Jensen himself seems to accept that no such harm is in the offing. He states, early in his op-ed, that introducing same-sex marriage will not be “the end of the world for me.”

As best I can reconstruct it, then, Jensen’s argument against same-sex marriage comes down to a claim that European Christian marriage (and perhaps marriage in other cultures) traditionally mirrored and represented the fact that Homo sapiens is a sexually reproducing and sexually dimorphic species. That is, marriage involved opposite-sex couples who intended to have children via (of course) sexual reproduction. Therefore, the argument seems to conclude, the institution of marriage should always be like that.

This simply doesn’t follow as a logical argument. Something more must be being assumed, but if so Jensen doesn’t explain what it is.

Living in the past

A problem for Jensen and others who share his views is that the nature of marriage has already changed. It is already a matter of “emotional choice” whether or not to get married. It is already possible, furthermore, to have children outside of marriage without the traditional stigma of illegitimacy.

Nothing prevents a heterosexual couple from having a traditional sort of marriage, oriented mainly to children, if they want one, but already this is an option rather than a social obligation. Already, many straight couples get married with no intention of having children. They have various personal reasons. Some might find the status of marriage legally and socially convenient, and they might find the idea of marriage romantic – yet not connected, for them, with procreation and child rearing.

Far from being socially disastrous, such developments in freeing up the nature of marriage have given many people more ability to live as suits them best. With highly consequential life decisions and plans such as this, one size does not fit all.

A more accurate picture than Jensen’s of recent and current social change is that same-sex marriage is not putting pressure on the institution of marriage to become something different from what it was. At least in the main, the causal arrow goes in the opposite direction.

That is, same-sex marriage became more thinkable in the last few decades partly because marriage itself was already changing in ways that made the idea of same-sex marriage seem more coherent and attractive.

Over the past two centuries, and increasingly over the past fifty or so years since the Sexual Revolution, the institution of marriage has been transformed. Marriage, as once understood, was a form of social, and especially sexual, control. To be more specific, it especially controlled the sexuality of women. Among the wealthier classes, it assisted economic ends such as estate planning. Marriage was often far from a romantic or companionable relationship.

But in Western democracies, at least, marriage has evolved for the better. The current ideal of marriage is an equal union between two people, involving love, sexual and other intimacy, and companionship. We have, moreover, abandoned the concept of marriage as a kind of licence for sexual experience, which was otherwise forbidden by morality, if not by law; and we increasingly understand marriage as not necessarily including children. Marriage has become a kinder and far more flexible concept.

The institution of marriage retains deep emotional significance for most Australians. But our predominant understanding of marriage is now one from which gay men and lesbians cannot reasonably be excluded. It’s time to let them in, but this is not meant as a mere slogan. Marriage has changed until it no longer makes sense to keep gay couples out.

Conservatives should, as I’ve suggested in the past, take comfort that the institution of marriage has survived the social upheavals of the last half-century, and that so many couples, including gay and lesbian couples, still want to participate in it.

However, arguments against same-sex marriage – when not relying on religious morality or simple bigotry – require that we view the institution as something that it no longer is and cannot easily be again.

Arguments such as Jensen’s are not apt for conserving marriage as it has become widely understood. They are arguments for turning back the clock to earlier ideas of marriage. Such arguments are losing their appeal in Australia, and especially any appeal to younger Australians.

Once more, I don’t call Michael Jensen a bigot and I don’t wish to smear or silence him. But he and others with similar views are living in the past. In that way, their arguments are more reactionary than conservative.

Russell Blackford, Conjoint Lecturer in Philosophy, University of Newcastle

This article was originally published on The Conversation. Read the original article.

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Is BLM Responsible for Increased Crime?

One talking point on the political right is that the Black Lives Matter (BLM) movement is causally responsible for an increase in crime. This point has been made by such sources as the National Review and Bill O’Reilly. As would be suspected, those to the left of the right have denied this connection and, of course, BLM has denied this claim.

In general terms, BLM is alleged to make two major contributions to crime. The first is in regards to videos: BLM encourages citizens to take videos of the police and also supports the release of police videos. These videos are said to create what is known as the ‘Laquan McDonald Effect.’ Laquan McDonald was a 17-year-old black man who was killed by officer Jason Van Dyke. The police video shows the officer shooting McDonald 16 times as he was moving away from the officers. McDonald was holding a small knife; as such he was technically armed. The effect of this video and the following protests, it is claimed, was to cause officers to step down in their policing out of fear of being the next Van Dyke. For example, police in Chicago reduced their street stops by 80%. This reduction in policing is supposed to contribute to the increase in crime (or at least fail to address the increase).

The second is in regards to the protesting against the police. One alleged impact is that the hostility towards the police damages their morale and this negatively impacts how they do their jobs. In the face of weakened policing, crime increases. Another alleged impact is that the police are burdened by dealing with BLM protests and this pulls away resources, thus allowing crime to increase. There are also the assertions that BLM engages in criminal activities (under the guise of protesting) and that it encourages or inspires (intentionally or not) criminal activity.

The hypothesis that BLM has a causal role in the increase of crime is certainly something that should be given due consideration. Those that already think it does would presumably want confirmation and those who disagree would want it to be disproven. Naturally, many people see BLM through the lens of ideology and proof contrary to their views could merely cause them to double down on their claims. However, those willing to accept reason should be prepared for the possibility they will need to adjust their views in the face of adequate evidence.

As some people see it, the fact that BLM’s appearance was followed by an increase in crime in some cities is sufficient proof that BLM was the cause of this increase. While cause normally precedes effect, to infer that BLM is the cause of the increase because it occurred after BLM arose would be to fall victim to the classic post hoc ergo propter hoc fallacy. This fallacy is committed when it is concluded that one event causes another simply because the proposed cause occurred before the proposed effect. More formally, the fallacy involves concluding that A causes or caused B because A occurs before B and there is not sufficient evidence to actually warrant such a claim. While this sort of error is usually the result of a lack of caution, it can also arise from motivated thinking: those who dislike BLM could be quick to link it with the increase of crime because of their dislike.

Properly sorting out the connection, if any, between BLM and the increase in crime would require a robust and objective analysis of statistical data, causal connections and human motivations. As of this writing, this has not been completed. As such, whether or not BLM really is a causal factor remains an open question. That said, it is certainly worth assessing the arguments advanced in support of BLM responsibility.

The first argument, as noted above, focuses on the claim that BLM encourages people to take videos of police and pushes for the release of police videos when incidents occur. This causes officers to worry that they will be filmed, thus leading them to scale back on policing. It is this, it is alleged, which increases crime. In terms of a causal explanation, this has considerable plausibility. If the police are afraid of being filmed, they are less likely to engage in activities that would result in their being filmed. When the police cut back on those activities, such as stops and aggressive policing, the pressure on criminals is lessened and they have a freer hand in committing crimes.

The second set of arguments also do establish a link between BLM and the increase in crime. The idea that the protesting demoralizes the police does make sense and dealing with protests does pull away police resources. As such, the causal link between BLM and an increase in crime can be established. While those who dislike BLM would be content to take this as the end of the story, this is actually just the beginning. There still remain causal questions as well as questions about moral responsibility.

One way to consider the matter is to use an analogy that is, hopefully, less imbued with ideology and emotion. Imagine that it was found that some doctors were prescribing unnecessary medications in order to get money and gifts from pharmaceutical companies. It can also be added that some doctors engaged in Medicare fraud that also proved harmful to the patients. Suppose that this was exposed by videos taken by patients and an organization arose called Patients’ Lives Matter to address this mistreatment of patients by some doctors. Suppose that the rate of illnesses started increasing after PLM started protesting.

Some might argue that PLM is to blame. One argument might be that doctors are now afraid to properly treat patients because someone might take a video of them. Another might be that doctors have become demoralized by the protests and hence do not do as well on the job. Presumably the solution would be for PLM to disband and allow the doctors to return to what they were doing. But, this seems absurd—the moral responsibility rests on the doctors who engaged in the misdeeds, not on PLM. The bad doctors need to be corrected or replaced—getting rid of PLM will merely “solve” the problem by returning to the previous problem.

In this case it would seem odd to blame the patients alone. After all, but for the doctors who engaged in the misdeeds, there would be no PLM to demoralize the doctors. Going back to BLM, but for the police who engaged in misdeeds, there would be no BLM. As such, the police who have engaged in misdeeds are also a causal factor. BLM would have nothing to encourage people to film and no videos to press for release if there were no misdeeds. As people so often say, those who have nothing to hide have no reason to fear scrutiny—ironically, this is often said about cases in which the police or other agents of the state are intruding into the privacy of citizens. If it applies to citizens, it surely applies to the police as well. After all, if an officer does nothing wrong, video will vindicate the officer. This is why some departments actually want officers to have cameras.

In terms of the protests, while it is true that such protests can be demoralizing, BLM is not protesting nothing—they are protesting events that are quite real. Naturally, it is reasonable to be concerned about how the community regards the police. However, BLM seems to be a response to the already poor relationships between many communities and their police, not the cause of those poor relationships.

The complaints about BLM disrupting communities seems analogous to the complaints about civil rights activists “damaging” community relationships by protesting the violation of civil rights. That is, that race-relations were just fine until the civil rights activists came in and caused all the trouble.

While it is true that people reacted negatively to civil rights activists, the moral blame for the reactions lies with those responding, not with the activists. And, of course, race relations were not fine—at least not fine for those being lynched. In the case of BLM, the problems are already there in the community, BLM is merely bringing them into the national spotlight—and some would prefer that they remain in the shadows. Blaming BLM for the increase in crime is thus a red herring—an attempt to distract people from the real cause and to discredit a movement that makes the white right very uncomfortable by bringing what was once in the shadows into the light.

 

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Automated Trucking

Having grown up in the golden age of the CB radio, I have many fond memories of movies about truck driving heroes played by the likes of Kurt Russell and Clint Eastwood. While such movies seem to have been a passing phase, real truck drivers are heroes of the American economy. In addition to moving stuff across this great nation, they also earn solid wages and thus also contribute as taxpayers and consumers.

While most of the media attention is on self-driving cars, there are also plans underway to develop self-driving trucks. The steps towards automation will initially be a boon to truck drivers as these technological advances manifest as safety features. This progress will most likely lead to a truck with a human riding in the can as a backup (more for the psychological need of the public than any actual safety increase) and eventually to a fully automated truck.

Looked at in terms of the consequences of full automation, there will be many positive impacts. While the automated trucks will probably be more expensive than manned vehicles initially, not need to pay drivers will result in considerable savings for the companies. Some of this might even be passed on to consumers, resulting in a tiny decrease in some prices. There is also the fact that automated trucks, unlike human drivers, would not get tired, bored or distracted. While there will still be accidents involving these trucks, it would be reasonable to expect a very significant decrease. Such trucks would also be able to operate around the clock, stopping only to load/unload cargo, to refuel and for maintenance. This could increase the speed of deliveries. One can even imagine an automated truck with its own drones that fly away from the truck as it cruises the highway, making deliveries for companies like Amazon. While these will be good things, there will also be negative consequences.

The most obvious negative consequence of full automation is the elimination of trucker jobs. Currently, there are about 3.5 million drivers in the United States. There are also about 8.7 million other people employed in the trucking industry who do not drive. One must also remember all the people indirectly associated with trucking, ranging from people cooking meals for truckers to folks manufacturing or selling products for truckers. Finally, there are also the other economic impacts from the loss of these jobs, ranging from the loss of tax revenues to lost business. After all, truckers do not just buy truck related goods and services.

While the loss of jobs will be a negative impact, it should be noted that the transition from manned trucks to robot rigs will not occur overnight. There will be a slow transition as the technology is adopted and it is certain that there will be several years in which human truckers and robotruckers share the roads. This can allow for a planned transition that will mitigate the economic shock. That said, there will presumably come a day when drivers are given their pink slips in large numbers and lose their jobs to the rolling robots. Since economic transitions resulting from technological changes are nothing new, it could be hoped that this transition would be managed in a way that mitigated the harm to those impacted.

It is also worth considering that the switch to automated trucking will, as technological changes almost always do, create new jobs and modify old ones. The trucks will still need to be manufactured, managed and maintained. As such, new economic opportunities will be created. That said, it is easy to imagine these jobs also becoming automated as well: fleets of robotic trucks cruising America, loaded, unloaded, managed and maintained by robots. To close, I will engage in a bit of sci-fi style speculation.

Oversimplifying things, the automation of jobs could lead to a utopian future in which humans are finally freed from the jobs that are fraught with danger and drudgery. The massive automated productivity could mean plenty for all; thus bringing about the bright future of optimistic fiction. That said, this path could also lead into a dystopia: a world in which everything is done for humans and they settle into a vacuous idleness they attempt to fill with empty calories and frivolous amusements.

There are, of course, many dystopian paths leading away from automation. Laying aside the usual machine takeover in which Google kills us all, it is easy to imagine a new “robo-planation” style economy in which a few elite owners control their robot slaves, while the masses have little or no employment. A rather more radical thought is to imagine a world in which humans are almost completely replaced—the automated economy hums along, generating numbers that are duly noted by the money machines and the few remaining money masters. The ultimate end might be a single computer that contains a virtual economy; clicking away to itself in electronic joy over its amassing of digital dollars while around it the ruins of  human civilization decay and the world awaits the evolution of the next intelligent species to start the game anew.

 

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Don’t Say the C Words

While weather disasters have always plagued humanity, there has been a clear recent uptick in such events. Naturally, the greater scope of these disasters is due partially to the human population being larger than ever and occupying more land—especially in areas prone to such events. That said, events such as the floods in Louisiana and the steady inundation of the sea in many places (such as Miami) are indications of a real change.

Nearly every climate scientist accepts that climate change is occurring and that human activity has had an influence. Given the historic record, it would be irrational to deny that the climate changes and few claim that it does not. The battle, then, is over the cause of climate change. Unfortunately for addressing the impact of climate change, it was brilliantly changed from a scientific issue into a political one. Making it into a partisan issue had the usual impact on group psychology: it became a matter of political identity, with people developing a profound emotional commitment to climate change denial. When denying climate change became a matter of group identity, it became almost impossible for reason to change minds—in the face of overwhelming evidence, people merely double down, deny the evidence, and craft narratives about how scientists are biased and environmentalists hate corporations and jobs.

To be fair, some of those who accept climate change do so out of political identity as well—they are not moved by the science, but by their group identity. They just happen to be right, albeit for the wrong reasons.

Not being an expert on climate change, I follow the rational approach to any issue that requires expertise to settle: I go with the majority view of the qualified experts. As such, I accept that climate change is real and humans play a role. If the majority shifted, I would accept that view—after all, the history of science includes numerous shifts.

If this matter were a purely abstract debate, then there would be no real worry. However, the impact of the changing climate is already doing considerable harm and the evidence suggests that it will continue to get worse unless steps are taken to address it. Unfortunately, as noted above, climate is now a political issue with deeply entrenched interest groups and strong emotional commitments. In some places, such as Florida, there is considerable political pressure to not even use the words “climate change.” The problem is, of course, that not using the words does not make the problems go away. Miami will slowly vanish into the ocean, even if people refuse to say “climate change.”

As a philosopher, I do believe in reason. However, I am also a practical person and know that reason is the weakest form of persuasion. Because of the entrenchment over climate change, trying to use reason and evidence to change minds would be a fool’s errand. As such, I suggest a purely pragmatic solution: stop using the C words (“climate change”) when trying to influence public policy, at least in cases in which there is strong ideological resistance. Using those words will simply evoke an emotional response and create strong resistance to whatever might be proposed, however reasonable.

As an alternative, the approach should be to focus on the specific threats and these should be cast in terms of risks to the economy and, perhaps, the lives and well-being of voters and consumers. There should be no mention of man-made climate change and no proposals to change behavior to counter man-made climate change. In short, the proposals must focus solely on mitigating the damage of weather events, with due care taken to present the notion that these events “just happen” and are “natural” with no connection to human activity.

It might be objected that this would be analogous to trying to combat the Zika virus by dealing only with the effects while refusing to say “virus” and not proposing any efforts to address the cause. This is certainly a reasonable point. However, if there was a powerful political movement that refused to accept the existence of viruses and citizens emotionally devoted to virus denial, then trying to persuade them to deal with the virus would be a nigh-impossible task. If they did accept the existence of the effects, then they could be enlisted to assist in addressing them. While this approach would hardly be optimal, it would be better to have their cooperation in mitigating the consequences rather than facing their opposition.

It might also be objected that I am deluded by my own ideological views and have been misled by the conspiracy of scientists and liberals who are in the pocket of Big Environment. Since I rather enjoy a good conspiracy theory, I certainly admit that it could be the case that the noble fossil fuel companies and those they pay are right about climate change and the scientists are either villains or dupes. If so, then not talking about climate change would be the correct approach—just as not talking about climate demons is the correct approach (because there are no such things). Since the weather events are really occurring, then addressing them would still be reasonable. So, regardless of whether climate change is real or not, my approach seems to be a sound one: avoid the resistance of climate change deniers by not using the C words; but enlist them into addressing those perfectly natural severe weather events that will be occurring with increasing regularity.

 

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Hillary, Secrecy & Pneumonia

While attending a 9/11 event, Hillary Clinton seemed to succumb to the heat. It was later revealed that she had been suffering from pneumonia, something her campaign had failed to disclose. As would be expected, her critics rushed to claim that this is yet another example of her problematic obsession with secrecy. As should also be expected, those who have long been advancing the narrative of her ill health were given a fresh magazine of ammunition. Her supporters mostly responded by downplaying the incident.

Assuming she really does have pneumonia, her illness is not really a big deal. After all, if getting sick disqualified a person from being president, then there would be no one to fill the office. The real concern was, of course, about the failure to announce in a timely manner that she was sick. This ties into the damaging narrative that Hillary is needlessly and problematically secretive.

It could be countered that the decision was not based in this desire for secrecy but was a calculated move in response to Trump’s strategy of claiming Hillary is unwell. While everyone gets sick at some point, there was no doubt concern that Trump would exploit such an announcement and ratchet up his attacks. Hillary and her handlers probably thought they could bluff their way through the illness; something that might have worked.

While that approach has some appeal, there is the very reasonable concern that the failure to disclose this illness was, as noted above, just another example of Hillary’s problematic obsession with secrecy. Hillary also recently faced the backlash from Bill’s tarmac meeting with Loretta Lynch. This was rightly presented as an example of an approach so often taken by the Clintons. After all, while any sensible person would expect that Bill would use his influence to help Hillary, doing this in such a blatant and clumsy manner did considerable damage. Given that Hillary is supposed to be such a savvy politician, it is interesting to consider why she engages in what seem to be so many self-damaging actions. While the discussion focuses on Hillary, it also applies to people in general. Poor decision making is a common affliction.

One possibility is that such behavior is in her nature—she is what she is, so she does what she does even when it harms her efforts to fulfill her ambition to be president. This is illustrated by the classic story of the fox (or frog) and the scorpion.

A fox was about to start his swim across a river when a scorpion called out to him, asking for a ride across. The fox, being good natured, wanted to help. But, he was worried that the scorpion would sting him. The scorpion assured him that he would be in no danger. After all, if he stung the fox, they would both drown and he certainly would not do something so foolish.

The fox agreed and the scorpion climbed up on his back. When the pair was half way across the river, the scorpion stung the fox. When the fox asked the scorpion why, he replied “it’s my nature” and they both died. Each thing is what it is and does what it does because of what it is. So, perhaps it is simply Hillary’s nature to engage in such behavior—she simply cannot do otherwise. This does raise many interesting questions about whether people have a nature or not and it certainly ties into the endless philosophical battle over free choice.

An alternative that avoids metaphysics is to take the view that Hillary is habituated into doing as she does. While habits can be very powerful, they are obviously weaker than having a nature. This is because, as Aristotle discussed at length, habits can be made and broken. But, habits can be rather hard to break, especially bad ones and it is quite obvious that people will stick with detrimental habits even in the face of continuous negative results. For example, most people have the habits of eating poorly and exercising too little or not at all. As such, they suffer needless and easily avoidable health problems. As another example, many people form habits involving damaging substances ranging from sugar to opioids. These do considerable harm, yet people persist in their habits. Hillary seems have learned the habit of secrecy and, like many habits, she seems unwilling or unable to break it.

A third alternative is that Hillary has consciously adopted secrecy as a strategy. People do often stick with failing strategies for various reasons. It is also worth considering that she actually has a winning strategy. While the revelations about her email and her pneumonia have cost her politically, it could well be that she has other secrets that have been effectively kept and that doing so has proven very advantageous for her. To use a sports analogy, a team that has a good strategy does not win every time. However, they win enough to make it rational to stick to that strategy. One interesting thing about the strategy of secrecy is that the public only knows about cases in which the strategy failed, not the situations in which it worked very well. So, what seems to be a bad strategy because of a few very visible failures might actually be very effective—who knows what secrets remain hidden and what damage they would do if they were revealed?

 

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Political Parties & Principles

While the United States does have numerous third parties and many voters now register as independents, politics is dominated by the Republicans and the Democrats. While there are independents in office here and there, independent voters still identify strongly with the two parties. They are also almost entirely limited to voting for candidates from these two parties.

My own party affiliation is Democrat, although it is a very weak affiliation. While I do share some of the values professed by the party (such as support for education and protecting the environment) my main reason for being a Democrat is that Florida is a closed primary state. If I did not have a party affiliation, I would be limited to voting between the candidates picked by the Democrats and Republicans. That is not acceptable and I regard the Democrats as less evil than the Republicans. At least for now.

While people do sometimes change parties (Reagan started as a Democrat and ended as a Republican, while Hillary Clinton took the reverse path) most people stay loyal to their parties. Trump has tested the loyalty of some Republicans, but it seems likely that most will vote along straight party lines. Likewise for Hillary and the Democrats.

Being a philosopher, I endeavor to operate from consistent moral, logical and political principles rather than merely embracing whatever my party happens to endorse at any given moment. Because of this, I could end up leaving the Democratic party if its professed values changed enough to be broadly incompatible with my own. This can certainly happen. As Republicans love to mention, their party was once the party of Lincoln and Teddy Roosevelt. As they also love to point out, the Democratic party was once an explicitly racist party. Now, of course, both parties are very different from those days. Teddy Roosevelt would be appalled by the current Republican party and the Democrats are now regarded as a civil rights focused party that is very welcoming to minorities (and certainly welcomes their votes).

While political parties presumably provide some benefits for citizens, they mainly exist to benefit the politicians. They provide politicians with resources and support that are essential to running for office. They also provide another valuable service to politicians:  a very effective means of cognitive and moral derangement. Like other groups, political parties exploit well-known cognitive biases, thus encouraging their members to yield to irrationality and moral failure.

One bias is the bandwagon effect; this is the tendency people have to align their thinking with that of those around them. This often serves to ground such fallacies as the “group think” fallacy in which a person accepts a claim as true simply because their group accepts it as true. In the case of political parties, people tend to believe what their party claims, even in the face of evidence to the contrary. In fact, it is well-established that people often double down on false beliefs in the face of objective evidence against this belief. This afflicts people across the political spectrum. The defense against this sort of derangement is to resist leaping on the bandwagon and train oneself to accept evidence rather than group loyalty as support for a claim.

Another bias is the tendency people have to obey authority and conform. Stanley Milgram’s famous experiments in obedience purport to show that people are generally obedient by nature and will obey even when they also believe what they are doing is wrong. This derangement forges people into obedient masses who praise their leader, be that leader the objectively unfit Donald Trump or the morally problematic and Machiavellian Hillary Clinton. Since obedience is so ingrained into humans, resisting is very difficult. In fact, people often think they are resisting authority when they are simply bowing low to some other authority. Being disobedient as a matter of principle is difficult, although people such as Socrates and Thoreau do offer some guidelines and inspiration.

Perhaps the most powerful bias here is the in group bias. This is the natural tendency people have to regard members of their group as having positive qualities while seeing members of other groups as being inferior. This tendency is triggered even by the most superficial of group identifications. For example, sports teams stand for nothing—they do not represent moral or political principles or anything of significance. Yet people routinely become obsessive fans who regard their fellows as better than the fans of other teams. This can, and does, escalate into violence. Violence of the most stupid and pointless sort, but real violence nonetheless. In the case of politics, the bias is even stronger. Republicans and Democrats typically praise their own and condemn their competition. Many of them devote considerable effort scouring the internet for “evidence” of their virtue and the vice of their foes: it is not enough to disagree; the opposition must be demonized and cast as inferior. For example, I see battles play out on Facebook over whether Democrats or Republicans give more to charity—and this sometimes becomes a matter of deep rage that has ended friendships. Since I prefer to not let politics or religion end an otherwise fine friendship, I make a point of not getting engaged in such battles. There are, after all, only losers in those fights.

This bias is extremely useful to politicians as it helps fuels the moral and cognitive derangement of their supporters. The most pronounced effect is that party members will typically rush to defend their politician over matters that they savagely attack the other side for. For example, Donald Trump is, as a matter of objective fact, unrelenting in his untruths. His supporters who otherwise regard lying as wrong, rush to defend and excuse him, while bashing Hillary as a liar and a crook—despite the fact that Hillary says untrue things far less often than Trump. As should be expected, Hillary’s devout backers do the same thing—excusing Hillary for things they condemn about Trump (such as sketchy business deals).

As a matter of rational and moral principle (and consistency), a person who regards lying as wrong should take liars of both parties to task and criticize their lying appropriately. To do otherwise is to be irrational and morally inconsistent. The same should apply to other matters as well, such as sketchy business deals. To avoid this derangement, people need to train themselves (or be trained) to assess politicians as objectively as possible to avoid being morally and cognitively deranged by the undue corrupting influence of party.

This is not to say that a person should fall into the trap of false equivalency or regard any misdeed as equal to any other. Simply saying “they are all equally bad” when they are not is also a failure of reason and ethics. Using the example of the 2016 campaign, while Trump and Clinton both have their flaws, Clinton is objectively better than Trump in regards to qualifications for being president. As Republicans argued when Obama was running in 2008, experience is critically important and the presidency is not an entry level political job. Naturally, I expect some to lash out at me over such claims. Some will rush to praise Trump and tear apart Hillary. I also would expect Hillary backers to be displeased by my fairly negative view of Hillary (while Hillary haters will probably have the mistaken impression that I am all in for her). Such things will actually help prove my point: people tend to be ruled by their biases.

I am not advocating that people become apathetic or abandon their parties. Rather, I want people to hold all politicians to the same standards of criticism rather than rushing to defend their side simply because it is their side and bashing the other simply because it is the other. This would, I hope, force politicians to actually be better. As it now stands, they can be rather awful and simply count on the derangement of voters to work in their favor.

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Policebot Profiling

In 2016 the Dallas police used a remotely operated robot to kill a suspect with a bomb. While this marked a new use for robots in the realm of domestic policing, the decision making process was entirely conventional. That is, humans decided to use the machine and then a human operator controlled it for the attack. As such a true policebot is still a thing of science fiction. That said, considering policebots provides an interesting way to discuss police profiling in a speculative setting. While it might be objected that the discussion should focus on real police profiling, there are advantages to discussing controversial matters within a speculative context. One important advantage is that such a setting can help dampen emotional responses and enable a more rational discussion. The speculative context helps make the discussion less threatening to some who might react with greater hostility to discussions focused on the actual world. Star Trek’s discussion of issues of race in the 1960s through the use of science fiction is an excellent example of this sort of approach. Now, to the matter of policebots.

The policebots under consideration are those that would be capable of a high degree of autonomous operation. At the low end of autonomy, they could be deployed to handle traffic laws on their own. On the higher end, they could operate autonomously to conduct arrests of suspects who might resist arrest violently. Near the highest end would be robotic police at least as capable as human beings.

While there are legitimate worries that policebots could be used as unquestioning servants of the state to oppress and control elements of the population (something we will certainly see), there are also good reasons for using suitably advanced policebots. One obvious advantage is that policebots would be more resilient and easier to repair than human officers. Policebots that are not people would also be far more expendable and thus could save human lives by taking on the dangerous tasks of policing (such as engaging armed suspects). Another advantage is that robots will probably not get tired or bored, thus allowing them to patrol around the clock with maximum efficiency. Robots are also unlikely to be subject to the corrupting factors that influence humans or suffer from personal issues. There is also the possibility that policebots could be far more objective than human officers—this is, in fact, the main concern of this essay.

Like a human office, policbots would need to identify criminal behavior. In some cases this would be fairly easy. For example, an autonomous police drone could easily spot and ticket most traffic violations. In other cases, this would be incredibly complicated. For example, a policebot patrolling a neighborhood would need to discern between children playing at cops & robbers and people engaged in actual violence. As another example, a policebot on patrol would need to be able to sort out the difference between a couple having a public argument and an assault in progress.

In addition to sorting out criminal behavior from non-criminal behavior, policebots would also need to decide on how to focus their attention. For example, a policebot would need to determine who gets special attention in a neighborhood because they are acting suspicious or seem to be out of place. Assuming that policebots would be programed, the decision making process would be explicitly laid out in the code. Such focusing decisions would seem to be, by definition, based in profiling and this gives rise to important moral concerns.

Profiling that is based on behavior would seem to be generally acceptable, provided that such behavior is clearly linked to criminal activities and not to, as an example, ethnicity. For example, it would seem perfectly reasonable to focus attention on a person who makes an effort to stick to the shadows around houses while paying undue attention to houses that seem to be unoccupied at the time. While such a person might be a shy fellow who likes staring at unlit houses as a pastime, there is a reasonable chance he is casing the area for a robbery. As such, the policebot would be warranted in focusing on him.

The most obviously controversial area would be using certain demographic data for profiles. Young men tend to commit more crimes than middle-aged women. On the one hand, this would seem to be relevant data for programing a policebot. On the other hand, it could be argued that this would give the policebot a gender and age bias that would be morally wrong despite being factually accurate. It becomes vastly more controversial when data about such things as ethnicity, economic class and religion are considered. If accurate and objective data links such factors to a person being more likely to engage in crime, then a rather important moral concern arises. Obviously enough, if such data were not accurate, then it should not be included.

Sorting out the accuracy of such data can be problematic and there are sometimes circular appeals. For example, someone might defend the higher arrest rate of blacks by claiming that blacks commit more crimes than whites. When it is objected that the higher arrest right could be partially due to bias in policing, the reply is often that blacks commit more crimes and the proof is that blacks are arrested more than whites. That is, the justification runs in a circle.

But suppose that objective and accurate data showed links between the controversial demographic categories and crime. In that case, leaving it out of the programing could make policebots less effective. This could have the consequence of allowing more crimes to occur. This harm would need to be weighed against the harm of having the policebots programmed to profile based on such factors. One area of concern is public perception of the policebots and their use of profiling. This could have negative consequences that could outweigh the harm of having less efficient policebots.

Another area of potential harm is that even if the policebots operated on accurate data, they would still end up arresting people disproportionally, thus potentially causing harm that would exceed the harm done by the loss of effectiveness. This also ties into higher level moral concerns about the reasons why specific groups might commit more crimes than others and these reasons often include social injustice and economic inequality. As such, even “properly” programmed policebots could actually be arresting the victims of social and economic crimes. This suggests an interesting idea for a science fiction story: policebots that decide to reduce crime by going after the social and economic causes of crime rather than arresting people to enforce an unjust social order.

 

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CSI Overconfidence

Television shows and movies about CSI often seem to present a science fiction version of investigation that involves amazing technology and incredible inferences. While people do get that the almost magical solving of crimes is fiction, there is still considerable overconfidence in many methods used in real investigations. This overconfidence plays a significant role in some of the problems infecting the criminal justice system.

The history of criminal investigation is replete with debunked methods, such as the use of phrenology to diagnose criminal tendencies. There are also technologies that have little or no validity and are not admitted in court, yet enjoy some public confidence (such as lie detectors). There are also methods that might have some value in investigations, yet are the subject of unwarranted overconfidence in their efficacy. These include such things as bite mark analysis and fiber analysis. Other methods are reasonable useful, such as fingerprints, yet are still often accepted with an unwarranted level of confidence—especially in situations where the defendant has an ill-prepared and overworked public defender. Defendants of means or fame can, of course, purchase a better sort of justice.

In contrast with the above methods, DNA identification strikes many as a silver bullet. After all, aside from identical twins (or clones), no two people have the same DNA. This would seem to make the presence of a person’s DNA at a crime scene extremely good evidence for their involvement.

While such evidence is valuable, it is rather important to consider the limitations of and problems with this method. Contamination and transference should always be given due consideration because DNA can travel quite far. This can be illustrated with an example involving my husky.

Like all huskies, my husky generates an incredible amount of fur and this fur gets onto everything and everyone. The fur is thus transported from my house to various points around the world—I know for a fact that her fur is now in at least five states—although she has not left Florida. As such, if fur sampling was used to determine what dogs had been present, she could show up as being present in many, many locations that she did not visit. The same also holds true for humans. While humans do not shed like huskies, humans do shed hair and this can get onto people and objects that could end up in crime scenes. For example, if Sally wears a hat and it ends up in someone else’s possession, that hat will almost certainly still have Sally’s DNA on it. So, if the hat is found at a crime scene, Sally’s DNA will be found there as well, which could be trouble for Sally.

These concerns do not show that DNA testing should not be used; rather they show that is wise to maintain a degree of healthy skepticism in the face of such evidence. It also shows the importance of informing law enforcement, judges, juries and lawyers about the limitations of methods This assumes, of course, that those involved (have the time to) care about justice—which is not always the case in the criminal justice system. There is also the concern, as noted above, that the quality of a person’s defense is a function of their available resources (be they money or fame). These are, of course, concerns that go far beyond worries about particular methods.

It can be objected that educating people about the limits of such methods could create a skepticism that might undermine convictions. For example, that the possibility of “wandering DNA” could be used to create unwarranted doubt, thus allowing the guilty to go free. A skilled and well paid lawyer could exploit such doubts quite effectively and allow a lawbreaker to go free—thus preventing justice from being done.

This concern is reasonable; while overconfidence is problematic, so is under-confidence. However, the United States’ criminal justice system is supposed to operate on a presumption of innocence: it is better to err on allowing the guilty to go free than to err towards punishing the innocent. As such, the greater mistake would be overconfidence in a method. However, there is the concern that these doubts would be exploited by those who have the resources to purchase an effective defense, while the less fortunate would not benefit from them. But, as has been noted, this is a general problem with America’s pay-to-play legal system.

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