Saturday, July 19, 2008

The Exclusionary Rule

The NY Times ran this article yesterday on what's known as the Exclusionary Rule. In1914 the Supreme Court ruled in Weeks v. United States that if law enforcement officials find evidence by breaking the law or violating your Constitutional rights, they can't use that evidence against you in a federal court. The Rule was then extended to the local and state level in Mapp v. Ohio (1961). While there's a good deal of nuance in the various opinions handed down by the Supreme Court, there is one important exception: if the police can prove that they would have uncovered the evidence in question if they hadn't broken the law or violated the Constitution, the evidence is admissible.

So, for example, if the police break into my home without a search warrant and find that I have a giant cocaine factory in my basement, they can't use the evidence they found in my house to convict me. If, however, the police can prove that they could have had a judge sign a search warrant and uncovered the evidence that way, i.e., without violating my rights, then the evidence is admissible, and I'm pretty much screwed.

The Times article clearly indicates that the Rule is controversial and that many people think it ought to be thrown out. In my not-so-humble opinion, that's just plain wrong: the Exclusionary Rule needs to be kept in place. Three important points:

1. The only evidence the Exclusionary Rule excludes is evidence that the police didn't obtain legally and can't even prove they could have obtained legally. I can't think of a single good reason why the police should be entitled to use evidence that they had no right to have found in the first place. The Exclusionary Rule just makes sure that the outcome of a case is the same as it would have been if everyone followed the rules. It's the same principle referees use in assigning penalties in football, or any other sport: the penalty is intended to take away any advantage the offending team got by not playing by the rules.

2. In that same vein, if the police broke the law but can prove that they could have gotten the evidence legally, they can use it. The same principle is at work here: by allowing the evidence to be used, the judge is making sure the outcome is again the same as it would have been if the police obeyed the law.

3. The major argument the Times emphasized in getting rid of the Exclusionary Rule has to do with the supposed social cost: "
The criminal is to go free because the constable has blundered.” Unfortunately, that's not an accurate characterization of what happens: it's not as though the police have an air-tight case and because of some legal technicality the criminal gets off; the police wouldn't have had a good case to begin with if they hadn't violated the defendant's rights. The criminal doesn't go free because the constable blundered; the criminal goes free because there was no way to legally get the evidence needed to convict him or her.

One final example. Consider two cases:

Case 1: a 7-11 is robbed, and the police believe Joe is the culprit. The police believe the money Joe stole is in his house, but they don't have probable cause to get a search warrant. Since these are good, law-abiding police officers, they're forced to let Joe go and not charge him with burglary.

Case 2: a 7-11 is robbed, and the police believe George
is the culprit. The police believe the money Joe stole is in his house, but they don't have probable cause to get a search warrant. Since these aren't particularly good police officers, they chose to break into his house anyway, knowing it's a gross violation of his rights. The police find the stolen money and charge George.

If we were to abolish the Exclusionary Rule, Joe would get off, but George would be convicted of burglary. Not that I don't like the idea of George being charged for something he's guilty of, but here's the problem:
George is convicted because the police violated his rights.

Does anyone really believe that's not unjust?

Friday, July 18, 2008

Four Ways Not to Be a Jerk

For those of you who may or may not know, I'm from Nevada (arguably the greatest state in the Union, but that's beside the point), and I try to keep up with local politics there, which is what got me to reading a blog by a guy named Chuck Muth. Muth, for those of you (probably everyone) who don't know, is a Carson City-based conservative commentator who is, to put it nicely, a jerk. In light of some recent things he's written, I now introduce my handy Guide to Not Being a Jerk On Your Blog, dedicated to Chuck.

One important point: usually I'd provide links where I quote or reference something, but in this case I really don't want to give Muth's blog any free advertising by linking to his website; instead, I'll make sure I include enough info so that, if you're so inclined, you can do a search and find the reference yourself.


1.
Don't make up rude nicknames for people who disagree with you. Though there are quite a few examples of this practice, in particular I'm thinking of Muth's calling Ron Paul supporters "Paultards."

2. Don't selectively delete comments from people just because you disagree with them. Regarding a Nevada teacher's union, Muth wrote:
If an education reform will benefit students but not members of the union, then the union will strenuously object to the reform.
I pointed out in a comment that, according to him, if there were some magic policy change that helped every child in the school district and neither hurt nor helped the teachers, the union would supposedly fight it every step of the way. I wrote "Riiight. That's not exactly a fair characterization." My comment was deleted within a couple of hours.

3. If you DO selectively delete comments, don't lie about it: After another reader pointed out Muth was deleting comments, Muth wrote:

I am selectively deleting comments which put forward paranoid and inaccurate information. If you want to spread your BS, do it on your own blog. I’ll note that I’ve never had to take this kind of action for anyone other than Paultards…including liberals.

Ignoring the rude tone, it turns out that he's lying: my comment had nothing to do with Ron Paul, nor am I a Ron Paul supporter; it was neither paranoid nor inaccurate. Moreover, Muth also deleted another comment regarding teachers unions that again had no connection to Ron Paul within the last 24 hours.

4. If someone points out that you've lied about what comments you delete, don't be a jerk: I politely pointed out (and you can check my wording if you'd like to see it) that Muth deleted my comment which had nothing to do with Ron Paul. Muth responded with, "Dear Moral Guy, here’s today’s lesson: Life’s not fair. Get over it." Not only is he ignoring that he lied, he chose to be rude and pretend as though he had done nothing wrong.
< /rant >

***

You might ask, how is this anything but my ranting about a personal vendetta? OK, maybe it is a little, but I do have a legitimate ethics-related point to make: people who write in newspapers, journals, blogs, magazines or whatever are bound, ethically if not legally, by certain rules of conduct. We might disagree about what precisely those rules are, but it's not hard to list some that everyone would agree with, including:

1. Show respect for others by refraining from calling people derogatory names.
2. Only report or write information you have good reason to believe is true.
3. Don't lie, especially to make yourself look better.

While I admit I'm not President of the Chuck Muth Fan Club, I still think I can fairly say he was out of line.


Wednesday, July 16, 2008

Lots of Cases!

I've started doing a little reading of cases in preparation for law school (and, I admit, somewhat out of enjoyment of going back to my Philosophy of Law class and looking over the more interesting scenarios we covered). While I'm sure there will be much to hate about 3 years of law school, I think one consistent silver lining is that a good portion of what we'll read are opinions, meaning you get an interesting anecdote for most concepts you study. And in that vein, I thought I'd share an interesting case I just read, Regina v. Dudley and Stephens. Fair warning: this is a pretty creepy case.

The Case:
You can read the full background at that link I posted, but here's the basics: three men, Dudley, Stephens and and Brooks, along with a younger boy, Richard Parker, were sailing some kind of a boat, which was destroyed by a minor weather occurrence thousands of miles away from land. The four of them piled into a very small life raft with only two tinfuls of turnips and no fresh water. From July 7th to July 23rd of that year (1884), the four had almost nothing to drink or eat, and were near death. After some discussion between the three men, Dudley and Stephens decided that the boy, who was likely the most weakened of all four, would have to be killed in order to save the others. Brooks did not agree to the plan (which explains why he was not a co-defendant), and in the early morning of July 24th, Dudley held down the boy while Stephens stuck his penknife into the boy's jugular vein, killing him. On July 29th, the three men were found by another boat after subsisting on the boy's remains for nearly a week. After a long & involved legal process, Dudley and Stephens charged with first-degree murder and convicted.

Eventually the Queen's Bench, which is some kind of appellate court in England (possibly the highest court--I don't really know), heard the case and ruled that there was no excuse of necessity, that Dudley and Stephens were guilty of murder, and that they were therefore sentenced to death.

My Thoughts:
I think the court was clearly right in ruling that the excuse of necessity doesn't apply here, because of one very important fact of the case: the three men never consulted with Parker and decided, without his input, that he would be the one to die. In similar cases (yes, this has happened more than once) where the survivors drew lots to determine who should be killed, there was a legitimate excuse, which was recognized by courts. But for a person to decide to save himself by killing the weakest person, and to do it without even talking to the victim, is clearly murder.

But there's still a question of whether, in cases where a person must kill in order to save himself, the individual ought to be punished. Especially difficult in this case was the fact that all four men were slowly starving death over several weeks, with no realistic hope of survival except to commit a terrible crime; I think it would be hard to seriously condemn someone who made the wrong choice.

The court, by the way, agreed that a lesser punishment was appropriate: it wrote, "...if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has intrusted to the hands fittest to dispense it."

Dudley & Stephens were sentenced to 6 months imprisonment and then released.

Sunday, July 13, 2008

Vaccines and Autism: Is There a Link?

I'll admit that this is more of a rant than an involved ethical discussion on the subject, but I recently had to read through a not-so-respectful exchange on whether or not vaccines cause diseases like autism, where people with no scientific or medical background apparently felt qualified to discuss highly specialized subjects in those fields.

The answer is No. Let me just say that one more time: there is no evidence vaccines cause autism. Period. The fact is that there is literally no scientific evidence which in any way connects infants who receive vaccines to children who later develop development disorders. No matter how many conspiracy articles/books/websites you read, the scientific community has unanimously denounced the connection.

What I think is particularly terrible about the way this rumor has (apparently) gained some legitimacy is that a) it preys on the basic fears of new parents, and b) to the extent that it is believed, it effectively denies helpless children medical care which saves lives. If you want to believe there's a gigantic conspiracy the government's managed to keep under wraps about the Kennedy Assassination for 60 years, or that the Bush Administration orchestrated the September 11th terrorist attacks, go ahead; if you think the End of the World is near, go build a cabin the woods and live off of Twinkies and Fanta. But *please* don't force your "alternative lifestyle" on children in a way that puts their lives in danger.

Saturday, July 12, 2008

Shamless Plug

Check out the right-hand column of my blog...there's a poll asking how ethical of a person you think you are. Not that it matters for anything, but I'd love to have more than 5 votes. So come on, people I know who regularly check this blog, but haven't responded (hurrah for Google Analytics), click an answer and make me feel better!

Friday, July 11, 2008

Lies, Lies, Tell Me Sweet Little Lies

Apologies for the long break between posts, but I've been busy these last few days and have just now taken a look at this blog and realized I should write something! Today's topic has to do with lies (and, perhaps, the lying liars who tell them). More specifically, I want to consider the idea of white lies, those tiny untruths people tell mostly to try and make others feel better.

Let's start by considering a situation you've probably found yourself in:
Sofia, a co-worker of yours, comes by your desk and asks if you like her new dress. Maybe what she's wearing isn't quite as bad as this, but it's still something you don't think makes her too appealing. You also happen to know that Sofia herself really likes her new look, and would be hurt if you gave her your honest opinion. Is it okay to lie?
Most people who are really trying to answer ethically are going to say that no, you can't lie: after all, the truth sometimes hurts, but lying is wrong. But I don't think that this is exactly right.

Let's start by all agreeing that, generally speaking, people are obligated to be truthful to each other and that only some kind of special circumstance could justify or excuse lying. In the case of Sofia, the answer to whether or not you may lie has to do with what you think the answer to this question is: Does Sofia expect that you will tell the truth?

Let's assume that Sofia does not expect you to be brutally honest with her in your response. In that case, she's probably asking you in order to gauge the way that you frame your response. If you say "You look fantastic!", she'll think you like her new dress; if you say "you look fine" or "that's certainly an interesting choice," she's likely to read between the lines and understand that you don't think she looks fine, or that by "interesting" you really mean "stupid." If, on the other hand, she does expect you to tell her the truth, then, uncomfortable as it may be, you do need to be more literally honest (which of course doesn't mean you have to say "you look hideous!" One can be truthful and tactful at the same time).

To put it another way, Sofia is looking for you to be honest, which doesn't necessarily mean she wants you to be truthful. The concept of sarcasm acts in much the same way: if I make a comment like "that business meeting certainly did not make me want to shove my head into an oven!" my listener will probably realize my real intent. In both cases, it's the message I'm communicating that's important, and not necessarily the literal meaning of the words I employ.

Which of course brings us to an important point about the ethics of lying: namely, that our obligation to the truth has much more to do with communication, not the words that we use. I have to make an honest effort to ensure the idea I'm communicating to you is true, and I can do that through a number of different means, including some where I tell a lie.

Monday, July 7, 2008

Ask The Moral Guy: Epilepsy Made Me Do It

It's time again to Ask The Moral Guy, where I answer all your most difficult ethical dilemmas in 500 words or less. Today's question deals with medical conditions and when they excuse bad behavior.
Last week I had two people over to my house, one a good friend and the other more of an acquaintance I knew from work. While we were talking in my living room, the acquaintance (I'll call him Peter) stood up and jerked his hand out in front of him, breaking a picture frame and tearing a cherished family photo. Peter didn't apologize, though after a few days he did offer to pay for the frame. Later my good friend, who knew Peter better than I did, took me aside to tell me Peter had a medical condition which caused him to involuntary move his body. My friend seemed to think I shouldn't hold a grudge, but I'm not so sure. Even though Peter offered to pay for the damage, I felt I was still owed an apology. Is it OK for me to be upset about this, or am I just being insensitive to someone with a disability?

--Anonymous
Like a lot of ethical questions, it depends on the details of the situation, specifically whether or not Peter made any effort to avoid causing damage:

If Peter made an honest effort to make sure his condition didn't break that great picture of your little bro--if he tried staying away from breakable items and faced away from fragile objects--then he didn't do anything wrong. It would be no different than if your friend was careful, but tripped over your rug and shattered the expensive china--an unfortunate accident. We can't reasonably expect people who suffer from relatively minor medical conditions to become hermits and cloister themselves off in child-proof rooms.

If, on the other hand, Peter didn't care enough to avoid getting near the expensive stuff, and just assumed that his condition would excuse any minor destruction he might wreak, then he acted unethically: he knew he was running a risk picking the chair next to your valuables, and he chose to sit there anyway. In that case, he owes you an apology.

On a totally unrelated note, I toyed with the idea of calling this post "Conditional Excuses." Am I trying too hard for the cheap pun?

Saturday, July 5, 2008

Circumstantial Luck: Another Response!

Very few things in life get me more excited than a response to one of my posts (OK, maybe more than a few, but it's still pretty great). This comment was a counterpoint to my July 1st post on the topic of circumstantial luck. I admit this post gets a bit technical, but I promise to try and keep it as layperson-friendly as possible (if you want an even more technical treatment, check out my response to Kyle's post, on that same page). Here we go:

Circumstantial Luck, or CM for all you sweet abbreviators out there, deals with the different ways we treat two people: the person who actually did do something wrong, and the person who would have done the same bad thing, but got lucky and was never put in a circumstance where he had to make that decision (recall my example of Mary, Joe and the Nazis). My argument is that we have to hold Joe, the guy who would have, but didn't do the bad thing, equally culpable as we do Mary, who actually did do the bad thing.

Kyle's response had to do with Joe. Here's what he said:
Even if, say, Joe told us he would act like a Nazi, we simply can't know for certain. There are surely people who think of themselves as unethical in certain ways but, when presented with an actual chance to act, choose rightly. In short, I'm not sure there is any substitute for acting like a Nazi.
That's definitely an interesting point, but I don't think it poses a problem to my example, for two reasons:

1. I think that we can know what people would do in lots of different circumstances. If I gave you a gun and said "shoot your parents," would you do it? I bet (for your mom and dad's sake!) you can truthfully say you wouldn't. The fact is that human behavior is awfully predictable most of the time, and even if there are some cases where we don't really know what we would do, we can still usually predict what our actions will be.

2. Even if it's impossible for us to know what we would do in some particular set of circumstances, that fact doesn't make us any more or less blameworthy. Let's say it really is impossible for me to know if I'd help the Nazis out if I lived in Germany in 1938. That doesn't change the fact that, if I were placed in that situation, I really would make a decision, either to collude or not to collude. Take a different example: I have no idea if I would be a courageous soldier if I enlisted and fought in a war, and I don't think I would know until I actually did it. But that doesn't change the fact that I am a courageous or cowardly person: I still have that attribute (courage or cowardice), and it just won't "show up" until I'm forced to act. In the same way, I still do have either a good or a bad moral character; I just might not know which one I have until I'm in a tough spot and have to make a decision.

And that brings me back to my original point. Assuming Mary did collaborate with the Nazis, and assuming we know that Joe would have collaborated if given the chance, shouldn't we blame them both the same?

Thursday, July 3, 2008

Kickbacks: The Easy Way To Get Great Patients

It's been long established by the American Medical Association that it's unethical for a physician to give another physician money for a patient referral--what many would call a kickback.

In other words, let's say I go to Dr. Bob, my primary care doctor, complaining of back pain. He takes a look at me and says I should go see a back surgeon, Dr. Sue, who will likely perform an operation that my insurance will pay $50,000 for. Dr. Sue is grateful for the referral, and to show her appreciation she gives Dr. Bob $5,000 for his efforts.

This scenario is a huge ethical no-no in the practice of medicine, but it might not be entirely clear why it's viewed as such a serious breach of good conduct. After all, in most business ventures it would be perfectly acceptable for me to, say, give my friend over at Circuit City $100 for sending a customer to The Moral Guy's Electronics Emporium (where we're obligated to give you a great deal!) for an item Circuit City didn't have in stock. The common explanation for this prohibition is that giving doctors money for referrals leads to a lower standard of care to the patient: if the doctors care more about referring their patients and getting a big payday when the patient has an expensive procedure, they'll be less likely treat the patient more conservatively and avoid major operations. Back to our example, maybe my back pain could have been treated with a simple steroid injection by my primary care doc; but because Dr. Bob wanted the $5,000 from Dr. Sue, he referred me over to her and caused me to go through a difficult, painful operation I didn't really need.

But what about the argument that a customer could be taken advantage of in the same way in any business transaction? After all, most people have a story about how a mechanic demanded $600 for some brand new parts the car didn't actually need replaced; doesn't the Latin phrase caveat emptor ("let the buyer beware") apply to all business transactions?

Here's my take: medical practice is fundamentally different from just about any other profession because of the inherently unequal relationship between the doctor and the patient. The fact is, when you go to a doctor because you're sick you aren't in the same position as when you go into buy a stereo at a store: you're going to a person who's had four years of medical school and at least two further years of residency and knows more about medicine than you ever will; the doctor has seen and treated dozens, hundreds, perhaps thousands of other patients; you're expected to talk to a complete stranger about the most intimate details of your life; and most importantly, you're there to treat a problem which could permanently affect your well-being or even cause your death. Going in to see a doctor can be a terrifying experience where no one could reasonably expect you to be a rational consumer.

That's why I believe in the oft-repeated adage about the medical profession: Lawyers and whores have clients--doctors have patients.

To be fair, I think a lot of these issues come up in the legal profession as well--a person facing a felony conviction is in much the same situation as a patient going to see a doctor. But the basic point remains: given the nature of the relationship between the two, physicians have a greater obligation to the well-being of their patients.

Tuesday, July 1, 2008

Do You Feel Lucky?

Well do you?

No, seriously, today's post, like this one from a few days ago, has to do with the problem of moral luck, which is just when we blame a person for something that isn't under her control. In the last post, it looked like we were blaming Bob more than we were Fred, even though the only difference between their two situations was totally outside their control. To push that same intuition even more, consider this:
When Germany was controlled by the Nazi's in the 1930's, many ordinary citizens were faced with a difficult dilemma: cooperate with the current regime and in some small way aid in their evil acts, or refuse and be persecuted and ostracized from their community. Consider someone, let's call her Mary, who was placed in this situation and made the wrong moral choice: she helped the Nazis.
We're assuming in this case that Mary made the unethical choice (fill in the details how you like to make that true), and as a result she clearly deserves some blame for what she did.

Fair enough. But what do we have to say about the person (calling him Joe) who would have done just as Mary did, but never had to face that difficult moral decision? Mary's certainly to blame--after all, she did something wrong. But do we just let Joe off the hook because he got lucky and never had to make a tough choice in his life? It doesn't seem fair to throw Mary to the wolves but give Joe the Ethical Guy Award if we know he would have done just as Mary did.

Here's what I think: the two are equally blameworthy.

***

Briefly, here's my reasoning: people aren't responsible for their actions per-se--luck plays too large a role in determining what we do--but for their moral character, which is their set of conditional dispositions, a fancy way of saying the way you would act if placed in different situations.

Check out this Wikipedia article if you want to read a bit more about moral luck.