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‘Positively’ Utilitarian Approach

Talk about ideas mattering.  Even philosophy.

I was a philosophy major at university.  People used to ask me what I was going to do with such a useless degree.  I’d say I would open a philosophy store.

“Life is a twinkie.  That’ll be $5 please.”

We were talking the other day about Judge Kopf, natural law and utilitarianism.  Well, not a whole lot about the latter, because there really isn’t much to say:  “Greatest good for the greatest number.  Natural law is nonsense on stiltsSolitary, nasty, brutish and shortEpistemology?  What’s that?  We done here?”

Judge Kopf’s rejection of natural law and passionate – that is, unthinking – embrace of utilitarianism dictates the way he decides things.  It’s utterly predictable.  And depressingly impoverished, intellectually and morally.  Every post he puts up, every comment he makes, only reinforces that.

Take Judge Kopf’s latest post regarding the association of criminal conduct in adult men and lead paint poisoning incurred as a child, more prevalent in older men since lead paint use has been curtailed in recent decades:

What should a judge do with this information?  In my opinion, there are two things a judge should strongly consider if Nevin’s conclusions are correct….First, particularly for drug and gun charges (that are often associated with violence), judges should be far more skeptical of the ability of older men (40 and above) exposed to lead as children to reform themselves in prison or conform their conduct to supervision when released…Second…judges may wish to treat older men exposed to lead as children as posing an increased risk to violate the conditions of supervise release and insist that the probation departments act aggressively when supervising such a person in order to protect the public from the offender…

In the entire post it does not occur to Judge Kopf that one other implication of the data is that the culpability of offenders would be less – or even eliminated – in the event their behavior was the result of circumstances over which they had no control.

As Scott Greenfield points out, Judge Kopf’s – how shall I put this – glaring oversight of this obvious alternate implication was cited in the very first comment to Judge Kopf’s post and is then given the same dismissive and even patronizing treatment I’m sure Judge Kopf regularly hands out in his courtroom – but only to the relatively powerless litigants.  It’s a question of ‘balance’, says Judge Kopf:

It is a large part of my job, as I see it, to protect the public from criminals who are likely to reoffend even if they are otherwise a sad lot. In this sense, “fairness” is trumped by “public safety concerns” because the defendant has first been proven to be legally culpable even given his or her deficiencies and therefore it is more important to protect the innocent public from the guilty defendant than it is to be “fair” to the defendant. Bluntly, my job is not to be a social worker. I don’t have the training, and I don’t have the resources to serve in that capacity. Fifth, I agree that I must seriously grapple with the facts and that to me means being very serious about assessing risks in a clear-eyed manner. The sentencing process is not and should not be a one-way ratchet that constantly looks for ways to excuse the conduct of a legally culpable defendant and lower his or her exposure to a prison sentence. Sentencing is a process of balancing the defendant’s interests with the public’s interest.

Where to begin?  The “public” is an abstraction, not a real thing.  The Defendant is a real thing – a human being – not an abstraction.  The judge is balancing the unreal against the real without knowing the difference, without even understanding that this is a problem.

Then, having begun with this fundamental confusion he aggravates it by, of course, giving more weight to the unreal consideration than to the real one.

And these are just the two of the biggest conceptual problems about Judge Kopf’s take on reality.  His take on his “job” is just as bad or perhaps worse.  It most emphatically is not “a large part of his job” to “protect the public”.  Protecting the public is an executive function, not a judge’s.  Because separation of powers.  It would be far closer to being correct if he said that protecting the public was no part of a judge’s job.

Not to mention that from a utilitarian perspective “the public” v. “guilty defendant” is not a contest, not a fair fight.  There’s really no ‘balancing’ to be done.

And why “guilty” defendant, not just defendant?  Because definition.  It’s a tautology – which is to say, meaningless – but this particular tautology, and only this one, seems to be very meaningful to Judge Kopf.

That a “positivist” thing.

As I’ve said, we’re all utilitarians and maybe even positivists, up to a point.  But elevating utilitarianism to a principle is an oxymoron.  Or at least it would be if Judge Kopf had a clue.  And the judge certainly sounds awfully moralistic for someone who claims not to have any opinions about morality:

Please realize that a low IQ and impulse control problems are deficiencies I see very often whether caused by lead or chance. By definition, I don’t sentence anyone unless they are blameworthy. Thus, while I appreciate your sentiment, and agree that we could do a much better job as a society extending a hand to the unfortunate, the stark reality is that the people we are talking about are criminals in every sense of that word.

To quote one of your other heroesthree generations of imbeciles are enough, right your honor?

Don’t worry, Judge Kopf.  Buck v. Bell is still good ‘law’, in the sense of that term you subscribe to.  And locking the defectives up for life only with others of their own sex makes forced sterilization pretty much a moot point, doesn’t it?

Same intellectual/philosophical destination, different route.  The problem is that the destination is moral depravity.  At that point, what meaning does the term “criminal” really have?

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Eight Years For Dawn Nguyen

I’m just going by news reports, of course.

Based on those my understanding was that the government was asking for 10 years consecutive, meaning that she would serve the 10 years after the state sentence was completed.  If she served the state maximum of 4 years that would translate into a total of 14 years.

Judge Larimer took 2 years off the government’s position and made the sentence concurrent, meaning that she’ll be serving her state and federal sentences at the same time, for a maximum of 8 years.

In the world of criminal sentencing, this is a considerably more lenient sentence than the government was asking for, and I have to give Judge Larimer credit for bringing a little, a tiny little bit, modicum, sliver of perspective in handing out his sentence.  It is still way too much for what she actually did, even assuming it’s all true.  Which I doubt.

It’s still very troubling that there isn’t one single living person in the chain of causation besides Dawn Nguyen that is suffering any consequences at all, even though there’s an abundance of candidates.  How is it that a 21 year old woman is singled out for 8 years but the parole board members who released Spengler don’t miss so much as a paycheck?

It’s so disproportionate.  Disproportionate based on the nature of the act being punished (signing a form), disproportionate given the nature of the defendant – a young and evidently productive citizen with no criminal history – and disproportionate given that there are many others with a very similar, if not greater, level of culpability who have not even been prosecuted, let alone imprisoned.

More fundamentally, turning someone like that into an arbitrarily selected scapegoat that the angry mob vents their anger onto is unspeakably cruel.  Not as cruel as what Spengler did, but I don’t see how adding to the cruelty helps anyone or anything.


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Natural Law

I’ve said that the problems of the justice system in the United States, both for civil and criminal cases, run very deep, and one of the main sources of trouble is a reflexive hostility to what is called ‘natural law‘.

Interesting discussion from the other day hosted by Judge Kopf at his blog, Hercules and the Umpire, about the death penalty.  Interesting not least because it wasn’t just about the death penalty, but also Judge Kopf’s rejection of natural law.

There is a line of reasoning by which the political concept of “pluralism” degenerates into rejecting natural law that is peculiarly American and is perfectly illustrated by Judge Kopf.  It’s largely derived from Thomas Hobbes’ political philosophy.  And indeed Judge Kopf mentions Hobbes specifically in his post describing his thinking about the death penalty.

The first thing to be said about this is that in the long history of what is often termed western thought Hobbes is barely a footnote, not to be taken seriously as a launchpad for anything that could be remotely described as a “school of thought”.  He was not, properly speaking, a philosopher.  Even a cursory comparison of his writings and ideas with those of Plato, or Aristotle, or DesCartes, or David Hume or Kant or Leibniz or Hegel or indeed dozens of others I and nearly any other somewhat educated person could rattle off (Edmund Husserl and phenomenology, anyone?) will demonstrate beyond any debate how relatively mundane Hobbes is, in a totally different – and clearly lesser – league.  Any semi-serious undergraduate student of western philosophy in his second year of study would regard Hobbes as little more than an amusement or distraction, intellectually speaking.

Put simply, it’s a profound intellectual error to base any kind of outlook on the world, or an analysis of any serious issue, on Hobbes.  He simply doesn’t have the depth, the intellectual gravitas.  It’s like basing your opinions about roadrunners on the cartoon.  And since Judge Kopf actually went to the trouble of including Hobbes’ portrait in his death penalty essay:


The only depth that follows in Judge Kopf’s analysis after making this mistake is the kind when you are further down the rabbit hole.  For the love of God, he starts bringing up Oliver Wendell Holmes as some kind of ‘theorist’.  Ugh:

The positive law theorists (like Hobbes and Holmes*) would say “yes, it is just”–so long the judge acts pursuant to the law. To them (and probably me) there is no justice without law. Legal positivists believe (a) Justice and injustice are dependent on positive law; (b) Law itself is independent of justice; (c) Justice consists in conformity to positive law; (d) Justice, apart from legality, is merely a subjective [individual] norm; (e) Justice is obligatory ultimately only because of legal and political sanctions; and (f) The virtue of justice is identical with obedience.

At least Holmes had the excuse of extremely traumatic experiences in the Civil War, but the point – well, one point – is that while Hobbes can barely make it onto the most expansive possible list of thinkers in the history of western thought one might give the slightest consideration to, Holmes doesn’t even make that list.  The only reason anyone outside of lawyers has ever even heard of him is that damn unforgettable name.  His most important ‘contribution’ as a judge was to place his imprimatur on Alger Hiss, who of course turned out to be a communist, a spy and a perjurer.  I often call Alger Hiss the most important but obscure American political figure of the 20th century.  And I don’t mean that in a good way.  But in any case I find his association with Holmes endlessly amusing.

I guess the bottom line here is that there’s a lot to be said about the death penalty but if somebody brings up Hobbes or Holmes you might as well absent yourself from the discussion and turn on the TV.

Not a suggestion I’d normally make.

Of course it’s not as if Judge Kopf doesn’t have a lot of company.  Contemporary judges might rightly be called liberal or conservative, but the vast majority bristle at the notion of natural law, and that includes Scalia.  But maybe not Justice Thomas:

In 1991, shortly before Supreme Court Justice Clarence Thomas’s Senate confirmation hearings, Harvard Law School professor Laurence H. Tribe wrote in The New York Times that Thomas was “the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.” Thomas was repeatedly grilled on this point during the hearings that followed. Though he acknowledged that the Constitution is “[t]he positive law,” he added, “We look at natural law beliefs of the Founders as a background to our Constitution.”

So there’s that, then.

Now, there are intellectually respectable reasons to question or maybe even reject natural law.  In my view they’re all wrong, but they might be intellectually respectable.  But rejecting natural law “because Hobbes” is like rejecting high school physics “because Curly“.  It may well be, as Judge Kopf says. that he’ll always come to an impasse with natural law adherents, but how you get to the impasse can be important.  Intellectually, I mean.

Does that make all this merely an intellectual exercise?  Not if the subject is the death penalty and you’re a judge.  Or for that matter a lawyer.

Besides, what’s wrong with an entirely intellectual exercise?  Oh, I forgot:  there’s a strong strain of anti-intellectualism in the American political arena, of which a devotion to Hobbes is a part.  Or maybe a product.

And the reflexive hostility to natural law is part of the peculiar American brand of anti-catholicism as well. Even if a lot of Catholics go along.

So maybe this makes clear how deep the divide really is between someone like Judge Kopf and someone like me.  We barely speak the same language, really.  And that’s one big reason why, for me……juries.  People – other than judges – naturally believe in and understand natural law.  Because it’s natural.



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Was Robin Williams Brain Injured?

I don’t want to dwell on this, but there’s been so much noise about this latest celebrity suicide I thought there should at least be some discussion, somewhere, that might be worthwhile.  At least for some people.

It’s just my opinion, of course – although it is perhaps a bit more informed than most – but I believe that any person who exhibits symptoms of  psychological or psychiatric disturbance should be neurologically evaluated for brain injury.

Brain injuries, as we are learning from things like former NFL players who commit suicide for no apparent reason, are extremely common.  Extremely.  Very extremely.  In fact, in my opinion a significant percentage of the people reading this post have at least some limited form of brain injury.  I may have a brain injury without knowing it, and so might you.  These are scary thoughts in a way, but it’s the truth.

What happens to people with brain injuries?  Well, read a pretty good summary here.  Compare the kinds of problems brain injured people have with problems associated with various kinds of mental illness.  There’s a good deal of overlap that can be discerned immediately, but things like depression, mania, lack of impulse control, Parkinson’s should jump right out at you.

Greenfield put up a good post about mental illness in relation to the Robin Williams suicide.  But nobody that I know of has mentioned the possibile role of an undiagnosed and unknown brain injury in many aspects of Robin Williams’ personality, including his suicide.

One reason I think it’s important to mention this is that in recent years some promising treatments for brain disorders have been developed, in particular neurofeedback therapy, where it’s possible that the brain can be re-trained to function better essentially through playing a kind of video game.   This is, of course, non-invasive and non-pharmacological. 

People might not be so tempted to make harsh moral judgments, as has apparently happened surrounding Robin Williams’ death, if they realized not just that there might have been psychological or psychiatric issues, but physical brain issues over which no one has any control.



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Shepard’s Off The Wall ‘Warning’ Re: Mooney v. Holohan, 294 US 103 (1935)

With apologies, probably only lawyers will really understand this post.  Nevertheless, on to it.

Shepard’s is this service that’s been around for a log time helping lawyers to find cases (usually published opinions from appellate courts) dealing with a specific subject, where those cases have been cited by other cases, whether the citations are favorable or unfavorable – and very importantly, whether a case has been overruled and is no longer good law.

In recent years of course all these functions have been computerized and data-based and Shepard’s is primarily an online tool.

So recently I was checking Shepard’s for any recent developments relating to a case that’s been pretty important fodder for discussion around here for quite some time:  Mooney v. Holohan, 294 US 103 (1935).  That’s a US Supreme Court case.

And Shepards contains a warning that Mooney has been “abrogated”.  The warning then directs the reader by hyperlink to an unpublished opinion from a case in an intermediate state appeals court in Arizona – State v. Branch, decided April 17th of this year.

This unpublished opinion maintains that while under Mooney the prosecution’s knowing use of perjured or false testimony in a criminal case is a denial of due process, Mooney has been qualified to include a “materiality standard”:  that is, there is only a denial of due process of law when the perjury or false testimony affected the outcome of a criminal trial.

Two things about this.  First, it’s not true.  Mooney has never been limited or qualified, and we can hope never will be. 

But second, how can Shepard’s issue a “warning”, complete with the red stop sign symbol, that a US Supreme Court case has been “abrogated” by an unpublished opinion from an intermediate appellate court in Arizona?  State intermediate appellate courts don’t have the authority to limit or abrogate US Supreme Court precedents. 

Who is running things over there at Shepard’s?


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Moreland Commission – Continued

So just to drive the point home, one of the allegations of the New York Times article goes like this:

Word that the [Moreland Commission's] subpoena had been served quickly reached Mr. Cuomo’s most senior aide, Lawrence S. Schwartz. He called one of the commission’s three co-chairs, William J. Fitzpatrick, the district attorney in Syracuse.

“This is wrong,” Mr. Schwartz said, according to Mr. Fitzpatrick, whose account was corroborated by three other people told about the call at the time. He said the firm worked for the governor, and issued a simple directive:

“Pull it back.”

The subpoena was swiftly withdrawn. The panel’s chief investigator explained why in an email to the two other co-chairs later that afternoon.

“They apparently produced ads for the governor,”


Nothing to see here, right?

Besides, the Commission Chair William Fitzpatrick, in his three page letter, had this very detailed response to this specific allegation:


“Fuck you.”


Okay, that wasn’t really what Fitzpatrick said.  What he really said was a far more egregious gesture of contempt, something to the risible effect that he always gave a lot of thought to issuing subpoenas because that’s “serious”; and the Commission reissued the subpoena a few weeks after it was retracted; and finally, the suggestion that the Commission was interfered with by such things as, oh, the Governor’s henchman aide Schwartz telling the Commission to “pull it [the subpoena] back” was – and I quote – “absurd”.

Of course, it’s not like that kind of thing happened except for that one time, though.  Right?


According to a subpoena that had been prepared, investigators wanted to examine the real estate board’s political donations, its materials related to a valuable tax break for new housing, and its communications with public officials, including phone calls with lawmakers…

Whereupon Mr. Cuomo’s office stepped in to shut it down.

Mr. Schwartz, the secretary to the governor, telephoned one of the commission’s three leaders in a fury, according to four people briefed on the call. There would be no subpoena to the real estate board, he said.

Ultimately, the commission merely sent the real estate board a letter asking it to provide information voluntarily, which it did.


Apparently the Governor’s office got advance notice of objectionable subpoenas because the Governor had a spy lackey close associate as one of the Commission’s co-chairs.  Her name is Regina Calcaterra.

Investigators began to suspect that Ms. Calcaterra was monitoring their activities and reporting back to the governor’s office:


Ms. Calcaterra repeatedly pressed Ms. Perry [another investigator with the Commission] not to serve the subpoena, emails show. Yet the commission backed Ms. Perry, and on Aug. 19, she wrote to the co-chairs that she would be sharing a subpoena with them “shortly.”


I don’t know what is more laughable – or depressing, depending on your mood:  the Commission itself, or Fitzpatrick’s & Cuomo’s when-you’re-caught-just-deny-deny-deny defense.  Ugh.

I mean, this shows the “Commission” was just a toxic mix of tawdry skullduggery and highly dishonest political posturing by the Governor’s office.  The Feds tried to criminalize such conduct through some statute or other regarding public officials’ failure to render “honest services”, but that was held unconstitutional.  And I don’t know if criminalizing is the right way to go, or even remotely effective.  Given day to day realities of the political system in the US I’d tend to say no.  In any event, I’ve made my suggestion and that has nothing to do with putting anyone in prison.

This does not, of course, indicate that the entrenched corruption of the political class is not a serious problem; indeed I wish we could overcome this vague belief that unless the government is prosecuting someone the wrongdoing, if it exists at all, must be trivial.

Our ‘leaders’ do not so much lead us as reflect us.  We tolerate in them the kind of wrongdoing we tolerate in ourselves.  Thus we like a little bit of ruthlessness in our politicians, it seems.  Unless we’re on the receiving end personally.

We’ll improve the character of our political class when we improve our own.  Until that happens, “Moreland Commissions” are worse than a waste of time; they are a farce.


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Can This Be Right?

That over a million people – mostly Americans – have signed a petition directed to the Prime Minister of the UK declaring that the US is still a British colony?

Or is that some kind of hoax website?


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