‘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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