It has been discovered that there lurks in Minnesota a former member of a Ukrainian unit of the Waffen SS. "Discovered" may not be the appropriate word, as this 94 year old man demonstrated a noteworthy lack of intelligence by deciding at one point in his long life to write a memoir in which he described his membership in that infamous organization, thus alerting the world to his existence and his past. Perhaps it wasn't mere stupidity to do so, however. Perhaps he is inclined to confess misdeeds, is remarkably honest, or is actually proud of this fact.
"Prosecuting" is not the appropriate word, either...yet. A formal investigation has been opened by German authorities. News accounts indicate that thus far there is no evidence of his participation in atrocities, though it seems there is some evidence that he was "in the area" where certain of them took place. But his example inclines me to speculate regarding why he is being formally investigated and the purpose of any prosecution should it take place. Of course, there is also the recent example of an actual prosecution regarding a man who died at the age of 91 while appealing his conviction for being a guard at one of the camps.
Just what would a prosecution accomplish? It is unclear how "punishment" would apply in the case of a 94 year old. It may be there is not much he could be deprived of at this point. I've seen nothing regarding his physical or mental condition. If he is ill or infirm in either respect then transporting him to Germany, putting him through a trial and imprisoning him may further impair his body and his mind, but if his capacity to appreciate punishment, as it were, has been diminished due to age, this may not be significant. If he is in whatever it is may be "good" condition for 94 years, his condition would still presumably be made worse. But how much worse? And it seems that the idea of punishing a 94 year old is discomforting in some sense. It isn't comparable to punishing a child, I suppose, as the punishment would be more severe. However there is something which strikes us (strikes me, in any case) as wrong or at least inappropriate about punishing someone old and weak.
Can it be maintained that prosecution and any resulting penalty would be appropriate as a deterrence in this case? Well, it's very unlikely anyone would be deterred from joining an SS unit as a result, as there are none to be joined. However, there may well be similar organizations at large in the world today. It's unclear to me that they would be deterred, though, by the punishment of someone whose crimes, if any, were committed in the 1940s. They may not care what their fate would be when they're in their 90s; they may think it likely they won't live that long. Those Nazis who may still live likely will not change their conduct now in any fashion, except to struggle to be less conspicuous than they may already be. Is there deterrence value in the knowledge that the long arm of the law will extend and ensnare even 70 years into the future, for certain crimes at least? I don't know. Do we want to premise prosecution and punishment now, after so long, on the mere speculation there will be a deterrence?
Perhaps it can be maintained that the crimes of the Nazi regime and its accessories were so vile and of such magnitude that prosecution and punishment is, in a sense, inherently necessary, i.e. regardless of consequences and regardless of the age or the condition of the defendant. That would be to paint with a rather broad brush, though. Individuals may have been Nazis who did nothing culpable. It isn't apparent one should be punished merely because he was a Nazi long ago. Punishment should be based on individual acts, crimes.
What if it can be established that he did participate in atrocities? Well, let's say someone, 94 years old, can be shown to have murdered someone in the 1940s, not as a member of an SS unit or an auxiliary of the SS, but in the course of a robbery. What resources would be devoted to investigating, prosecuting and imprisoning him now? Should he be prosecuted?
At what point does punishment become torture, justice mere revenge? At the point where they have no purpose but to cause harm, particularly to the elderly? Is that their purpose in the case of this man?
These considerations should come into play in determining action to be taken. If they do not, then it may be that pursuing this old Nazi may actually make him a sympathetic figure.
Monday, June 24, 2013
Wednesday, June 12, 2013
What is Privacy?
Periodically here in God's Favorite Country we confuse ourselves over questions related to privacy. We're prompted to do this when we "discover" that something (generally embarrassing) we consider our own business is made public or is a matter in which the government is interested or would have access to if it should become interested. As to the latter, this is especially a concern in cases where the government has made a point of collecting information we deem "private" regardless of whether it has made use of that information, as it evidently has in the case of the National Security Agency and its vast consumption of information regarding our telephone calls and etc., a/k/a PRISM.
Of course our vigilant political representatives take advantage of these concerns when they arise, in pursuit of what they consider to be in our best interest--which is to say, their reelection. This in itself can be somewhat embarrassing, as is the case with the blurting of the unfortunately named Rand Paul. I think his heart may be in the right place on this issue, but he lacks any sense of...well, he just lacks sense.
I think we must acknowledge, though, that "privacy" is in the process of being redefined in these all too interesting times. Most of what we do is being monitored, or at least logged, by someone. Telephone service providers, Google, whoever operates the various cameras which seem to be omnipresent and record us walking or driving or waiting or shopping, and no doubt many others have a great deal of information regarding all of us. Just what they do with it is uncertain, but I'm inclined to believe that much of what they do with it involves the acquisition of money.
Most of us know this is the case, at least in the "back of our minds." But we don't seem to mind, at least until such time as we're confronted with the fact that others know what we did or said or wrote and are faced with the undeniable fact that we knew or should have known that we were providing them with the means by which they know. Nothing is more irritating than the recognition of our own stupidity, except of course the consequences of our own stupidity. However, until we're faced with that recognition or those consequences, we're quite content to expose ourselves, as it were, to the world at large using the technology available, because it is convenient or in some manner gratifying to do so.
There is a right of privacy which is recognized by the law. Courts in this Great Republic have said so, and some of them have even found it lurking by implication in the Constitution itself. This makes a certain sense, and some of the rights expressly given constitutional protection seem to relate to concerns which impact privacy, e.g. our right to hold religious beliefs without government intrusion, our right to withhold our private knowledge of what may incriminate us. Given our peculiar fascination with all involving sex, we also see privacy come into play as something worthy of legal protection in the case of contraception, abortion, and obscenity and sodomy laws. Many states have laws which provide a civil remedy to those whose privacy is infringed.
As a result there is nothing frivolous in maintaining that PRISM is an unwarranted intrusion into our privacy. But one might wonder what difference it makes, since we voluntarily make this information available to private companies and the public generally so blithely.
The answer can only be that the government is different from private companies and the public, and this is undoubtedly true. Private companies may use the information we so willingly supply them to make money by taking ours, and the public may use the information to humiliate us or mock us, but the government can do even more than that if it wants to.
Can't the government simply obtain such information from those who have it? It can and does, as we have seen. However, it's ability to do so should be subject to some check. Requiring a warrant, some kind of impartial judicial or quasi-judicial review, is an imperfect check but would seem the best that is available. Much as we want to prevent terrorism or crime, it would seem to make far more sense to do so in a manner that doesn't require the wholesale collection of data which may or may not be useful in preventative efforts.
At the least, the burden should be placed on the government to establish that wholesale collection of information is needed to effectively prevent whatever it is that is feared and would be adverse to us, and such claims should be subject to vigorous tests of verification. Even if that is the case, though, there should be control and supervision beyond that available in the Executive Branch.
We have less and less of an expectation of privacy, and it is in the nature of private companies and the government to take advantage of us due to our electronic exhibitionism. If we're not careful, there will be no right of privacy.
Of course our vigilant political representatives take advantage of these concerns when they arise, in pursuit of what they consider to be in our best interest--which is to say, their reelection. This in itself can be somewhat embarrassing, as is the case with the blurting of the unfortunately named Rand Paul. I think his heart may be in the right place on this issue, but he lacks any sense of...well, he just lacks sense.
I think we must acknowledge, though, that "privacy" is in the process of being redefined in these all too interesting times. Most of what we do is being monitored, or at least logged, by someone. Telephone service providers, Google, whoever operates the various cameras which seem to be omnipresent and record us walking or driving or waiting or shopping, and no doubt many others have a great deal of information regarding all of us. Just what they do with it is uncertain, but I'm inclined to believe that much of what they do with it involves the acquisition of money.
Most of us know this is the case, at least in the "back of our minds." But we don't seem to mind, at least until such time as we're confronted with the fact that others know what we did or said or wrote and are faced with the undeniable fact that we knew or should have known that we were providing them with the means by which they know. Nothing is more irritating than the recognition of our own stupidity, except of course the consequences of our own stupidity. However, until we're faced with that recognition or those consequences, we're quite content to expose ourselves, as it were, to the world at large using the technology available, because it is convenient or in some manner gratifying to do so.
There is a right of privacy which is recognized by the law. Courts in this Great Republic have said so, and some of them have even found it lurking by implication in the Constitution itself. This makes a certain sense, and some of the rights expressly given constitutional protection seem to relate to concerns which impact privacy, e.g. our right to hold religious beliefs without government intrusion, our right to withhold our private knowledge of what may incriminate us. Given our peculiar fascination with all involving sex, we also see privacy come into play as something worthy of legal protection in the case of contraception, abortion, and obscenity and sodomy laws. Many states have laws which provide a civil remedy to those whose privacy is infringed.
As a result there is nothing frivolous in maintaining that PRISM is an unwarranted intrusion into our privacy. But one might wonder what difference it makes, since we voluntarily make this information available to private companies and the public generally so blithely.
The answer can only be that the government is different from private companies and the public, and this is undoubtedly true. Private companies may use the information we so willingly supply them to make money by taking ours, and the public may use the information to humiliate us or mock us, but the government can do even more than that if it wants to.
Can't the government simply obtain such information from those who have it? It can and does, as we have seen. However, it's ability to do so should be subject to some check. Requiring a warrant, some kind of impartial judicial or quasi-judicial review, is an imperfect check but would seem the best that is available. Much as we want to prevent terrorism or crime, it would seem to make far more sense to do so in a manner that doesn't require the wholesale collection of data which may or may not be useful in preventative efforts.
At the least, the burden should be placed on the government to establish that wholesale collection of information is needed to effectively prevent whatever it is that is feared and would be adverse to us, and such claims should be subject to vigorous tests of verification. Even if that is the case, though, there should be control and supervision beyond that available in the Executive Branch.
We have less and less of an expectation of privacy, and it is in the nature of private companies and the government to take advantage of us due to our electronic exhibitionism. If we're not careful, there will be no right of privacy.
Wednesday, June 5, 2013
(Hate) Crime and Punishment
There is something I find disturbing about punishing a person for what motivates him or her to commit a crime (beyond motivation in the sense of intent to commit a crime). It is easy enough for me to accept that a person's motives may be objectionable in and of themselves; in other words, that they are objectionable regardless of whether they precipitate commission of a crime. But it is difficult for me to accept that motives, in and of themselves, should subject people to criminal penalties.
I suppose the Orwellian concept of Thoughtcrime figures in my concern. But hate crime cannot be said to consist of "unspoken" thoughts or feelings as presumably the criminal act is an expression of the objectionable motive. In other words, a hate crime does not exist unless it is reflected in the "normal" crime with which it is associated.
Hate crime is bias-motivated crime. As such it must necessarily involve crimes against certain classes of persons deemed to be the subject of bias. Just what classes are the subject of bias can probably be determined statistically. Punishment is not, apparently, considered appropriate merely for hate. One person may hate another and cause harm because of such hate in various circumstances which don't reflect a bias as defined in the law.
So it would seem that the idea behind such law is that hate is not itself objectionable enough to warrant punishment. Only hate of a particular kind, therefore, constitutes a hate crime. And that would seem to be hate directed against certain definable categories of people.
If that is the case it would seem appropriate to ask why that kind of hate as opposed to other kinds should be criminal. A victim of a hate crime would seem to be injured as a result of assault, for example, no more and no less than the victim would have been injured had "bias-motivation" not been present. It would be most difficult to establish that when improper bias is involved an assailant is more violent than when he is not. If there is no greater injury, why should there be an "additional" crime subjecting the assailant to additional penalty?
I think this brings us closer to the concerns I have. What is "criminalized" is a particular motivation which legislators (in the case of legislative forms of government) have determined to be peculiarly objectionable. What is considered a crime is in that case a political decision. It may be said in response that this is the case with all crimes, since criminal laws are adopted by legislators or government generally and so are necessarily political in that sense. And that is certainly true.
However, there is a significant distinction between laws criminalizing conduct which causes some kind of physical injury and criminalizing "conduct" which consists of nothing more than objectionable beliefs. Where belief or bias is made subject to criminal penalty, the possibility of misuse of political power and the law is much greater, because this makes the decision regarding what is criminal dependent to a much greater extent on the beliefs and biases of those making the laws, regardless of whether harm is caused to others.
Perhaps it's possible to establish that bias-motivated crimes are prevalent in some fashion, and the argument made that this fact warrants the adoption of laws punishing hate crimes. But if we were able to determine that those holding certain beliefs are more likely to commit crimes than others, should they be subject to greater penalties than those who commit the same crimes but don't hold such beliefs? Shouldn't we impose penalties on a case by case basis?
If it is maintained that hate crimes cause psychological harm in addition to physical harm and should be subject to greater penalty as a result, I suspect that would be something difficult to prove. It may also raise questions regarding whether the imposition of psychological harm should be criminal, and under what circumstances.
To the extent that the law should be a device to address objectionable bias (and this presents difficult issues as well) I think it is better that the civil law serve this purpose rather than the criminal law. Bias against people due to race, sex and other prohibited categories already can subject bigots to substantial pecuniary harm. Bigotry should not necessarily be criminal, though. What is considered bigotry or improper bias may change with governments and with societies and over time.
Hate crime may not be Thoughtcrime, but the temptation to make thought criminal is too strong with us and is something we should discourage, not encourage. Hate crime is a step in the direction of Orwell's dystopia.
I suppose the Orwellian concept of Thoughtcrime figures in my concern. But hate crime cannot be said to consist of "unspoken" thoughts or feelings as presumably the criminal act is an expression of the objectionable motive. In other words, a hate crime does not exist unless it is reflected in the "normal" crime with which it is associated.
Hate crime is bias-motivated crime. As such it must necessarily involve crimes against certain classes of persons deemed to be the subject of bias. Just what classes are the subject of bias can probably be determined statistically. Punishment is not, apparently, considered appropriate merely for hate. One person may hate another and cause harm because of such hate in various circumstances which don't reflect a bias as defined in the law.
So it would seem that the idea behind such law is that hate is not itself objectionable enough to warrant punishment. Only hate of a particular kind, therefore, constitutes a hate crime. And that would seem to be hate directed against certain definable categories of people.
If that is the case it would seem appropriate to ask why that kind of hate as opposed to other kinds should be criminal. A victim of a hate crime would seem to be injured as a result of assault, for example, no more and no less than the victim would have been injured had "bias-motivation" not been present. It would be most difficult to establish that when improper bias is involved an assailant is more violent than when he is not. If there is no greater injury, why should there be an "additional" crime subjecting the assailant to additional penalty?
I think this brings us closer to the concerns I have. What is "criminalized" is a particular motivation which legislators (in the case of legislative forms of government) have determined to be peculiarly objectionable. What is considered a crime is in that case a political decision. It may be said in response that this is the case with all crimes, since criminal laws are adopted by legislators or government generally and so are necessarily political in that sense. And that is certainly true.
However, there is a significant distinction between laws criminalizing conduct which causes some kind of physical injury and criminalizing "conduct" which consists of nothing more than objectionable beliefs. Where belief or bias is made subject to criminal penalty, the possibility of misuse of political power and the law is much greater, because this makes the decision regarding what is criminal dependent to a much greater extent on the beliefs and biases of those making the laws, regardless of whether harm is caused to others.
Perhaps it's possible to establish that bias-motivated crimes are prevalent in some fashion, and the argument made that this fact warrants the adoption of laws punishing hate crimes. But if we were able to determine that those holding certain beliefs are more likely to commit crimes than others, should they be subject to greater penalties than those who commit the same crimes but don't hold such beliefs? Shouldn't we impose penalties on a case by case basis?
If it is maintained that hate crimes cause psychological harm in addition to physical harm and should be subject to greater penalty as a result, I suspect that would be something difficult to prove. It may also raise questions regarding whether the imposition of psychological harm should be criminal, and under what circumstances.
To the extent that the law should be a device to address objectionable bias (and this presents difficult issues as well) I think it is better that the civil law serve this purpose rather than the criminal law. Bias against people due to race, sex and other prohibited categories already can subject bigots to substantial pecuniary harm. Bigotry should not necessarily be criminal, though. What is considered bigotry or improper bias may change with governments and with societies and over time.
Hate crime may not be Thoughtcrime, but the temptation to make thought criminal is too strong with us and is something we should discourage, not encourage. Hate crime is a step in the direction of Orwell's dystopia.
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