New Jersey Tries An Ethics Experiment

bail-reform

New Jersey, a state for which many would say ethics itself would be a novelty, has taken the lead in a truly revolutionary criminal justice experiment that resolves an ancient ethical dilemma in favor of mercy and compassion. Beginning on January 1 this year, New Jersey  judges are expected to release all but the most dangerous and untrustworthy defendants pending their trials, often with certain conditions, rather than  to require cash bail as a condition of avoiding jail.

In 2014, voters decided to amend New Jersey’s Constitution and virtually eliminate bail, responding to a national movement to reform a system that has always discriminated against poor defendants. Although bail requirements are usually modest for most offenses (a bail bondsman typically charges a defendant 10% to post the entire bond), many defendants are still unable to pay even small amounts. Then they wait in jail, often losing their jobs and causing hardship for their families. Continue reading

A President Was Right, The Bunker Hill Indiana Police Are Wrong…And Also Ethics Dunces:

bunker-hill-police-2016-12-14

In Bunker Hill, Indiana, the police department resigned en masse over complaints about mismanagement and alleged unethical requests from the town council.
Town Marshal Michael Thomison submitted his letter of resignation and the resignation letters from his four unpaid deputies during the regular meeting of the town board last week.

Thomison alleged in his “I quit! Write your own damn parking tickets!” letter that the town board asked him to be involved in “illegal, immoral and unethical conduct,” as well as cutting police support and refusing to communicate with the officers. The Bunker Hill town council issued a statement denying the accusations, but it doesn’t matter what the provocation was. The police were in the wrong. This was settled long ago, by a wise man who clarified a bedrock principle of public service. Doing so helped make him President of the United States.

In 1919, as America recovered World War I, prices were rising faster than wages. With soldiers returning from Europe flooding the U.S. labor market, the burgeoning labor movement seized the nation. One-fifth of the country’s workers went on strike that year. New York’s harbor workers, textile workers in Massachusetts,  dressmakers, phone workers, elevated train workers— a general strike in Seattle closed all businesses from February 6 to 11. Some feared a Communist take-over.

The Boston police force was at the end of its forbearance. Starting pay for new officers had not risen in 60 years; police wages were  lower than those of unskilled factory workers. Officers worked seven days a week, with a day off every other week. They could not leave town without special permission. The typical work week for police was between 72 and 98 hours, and officers were required to sleep in the station houses, where conditions were uniformly horrible, with sub-standard sanitation, baths, beds, and toilets.

By June of 1919, with their legitimate grievances unaddressed, the police tried to unionize. The Massachusetts governor and his attorney general put forward legislation to make unionization illegal for public employees. The police responded  by voting 1,134 to 2 in favor of a strike, and scheduled it to start at evening roll call the next day.

On September 9, 1919, the Boston Police Department officers went on strike. Boston descended into lawlessness, with everything from petty crimes to looting and riots, and the  harassment of the striking officers. The mayor and the governor called out the State Guard, with the governor being adamant that there would be no settlement of grievances until the police returned to their jobs. To show he wasn’t bluffing, he eventually had  5,000 State Guards guarding the city with  mobile units using machine guns. His blunt and unequivocal statement made him nationally famous:

“There is no right to strike against the public safety by anybody, anywhere, any time.”

The police strike collapsed. By mid-December, the police commissioner had hired a new police force with higher pay, better working conditions, and additional holidays.

Police didn’t even have to pay for their own uniforms any more.

The next year that stalwart governor was nominated as Vice President on the Republican presidential ticket. By 1921, he was Vice President, and by 1923, President of the United States. His famous pronouncement about strikes against the public safety was one of his least concise statements. He was, of course, Calvin Coolidge.

Silent Cal was right in 1919, and he’s still right. Whatever the provocation and however just their cause, the Bunker Hill police were harming the public when they quit without notice or warning, and violated the public trust.

Meanwhile, Miami County Sheriff Tim Miller says that county deputies will patrol the town and respond to calls until a new police department can be hired.

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More Clown Ethics: The County That Banned Bozo

bozo

An alternate title was “The County Run By People So Ignorant Of The Constitution That They Think You Can Tell People How To Dress And Who Will Be Easy Pickings When The Democrats Decide To Ban What They Decide Is “Hate Speech,” but I thought it was a little too long.

The mass Ethics Dunce in question is Mississippi’s Kemper County, which in response to the evil clown hysteria embarrassing the nation almost as much as the evil Presidential candidates hysteria, enacted a clown ban this week, forbidding people from dressing as clowns until after Halloween. Anyone caught in public wearing a clown costume, mask or makeup will face a $150 fine.

This is, of course, ironic, since any elected officials voting for such a ban are, by definition, clowns themselves.

County supervisors president Johnny Whitsett justified this overly broad law and per se violation of the Constitution as a matter of public safety because, he said, people “could react badly if they get scared by a clown in their yard.” Wait: how does my wearing clown shoes and a red nose in my yard scare someone in their yard?

Boy, I can’t wait until I am retired, rich, and at leisure to go down to future Kember Counties and get arrested for being dressed like Bozo.

In these tiny, trivial, stupid examples of elected officials proving themselves ignorant of our rights and protections are the seeds of the destruction of American liberty.

Meanwhile, non-government entities, which are legally free to reject the principle of free expression but not ethically free to get away with it, at least on this little corner of the Internet, have revealed their own censorious clown DNA. Target, for example, has removed clown masks from its stores and website. “Given the current environment, we have made the decision to remove a variety of clown masks from our assortment, both in stores and online,” the Big Box chain announced through a spokesman.

This is consistent with the current reasoning of the increasingly totalitarian left on guns and other commodities, that if a small minority of citizens abuse a product or right, the rest of us have to do without. Again, I look forward to my future career as the Ethics George Soros, funding nation-wide Scary Hair Dryer User  hoaxes to see if Target will ban hair dryers too.

From “The Ethics Incompleteness Theorem” and “The Ends Justify The Means” Files, The Pautler Case: My Favorite Legal Ethics Dilemma Ever!

"Irena's Vow" Pictured L to R: Maja Wampuszyc, Tracee Chimo, Tovah Feldshuh (kneeling), Gene Silvers

The Sundance Channel was doing a “Law and Order” marathon this week, and I happened to see an episode from 2002 that I had missed. It was based on the Pautler case in Colorado from the same year.

In “DR 1-102,”  Assistant DA Serena Southerlyn (Elisabeth Rohm) deals with a hostage crisis in which a man suspected of bludgeoning two women to death claims he will release his captive, held at knifepoint (above), if he can consult with an attorney. Southerlyn volunteers to enter the scene, and obtains both the hostage’s release and the killer’s  surrender, but only by deceiving him into believing that she is his lawyer, and not a prosecutor working for the police and the State. Although Southerlyn is hailed as a hero, the bar seeks to disbar her, charging her with violating Disciplinary Rule 1-102 (now New York RPC 8.4 d., which prohibits lawyers from lying.  .

Actually, Serena did a lot more than that, as did her model, Mark Pautler, the Jefferson County (Colorado) assistant D.A. whose real life conduct created a legal ethics dilemma that is debated to this day.

On June 8th, 1998, Chief Deputy District Attorney Mark Pautler  arrived at a gruesome crime scene where three women lay not just murdered, but chopped in the skull.  All had died from hit in the head with a wood splitting maul. The killer was William Neal, who had apparently abducted the three murder victims, one at a time, and killed them over a three-day period. Now, police said, he was at another locale, having released three hostages he had held in terror for about 30 hours. Neal left in the apartment a tape recording that detailed all of his crimes, including a fourth murder and rape at gun point.

Neal contacted police at the apartment using his cell phone and personally described his crimes in a three-and-a-half hour conversation. The officer speaking with Neal took notes of the conversation and occasionally passed messages to Pautler and other officers at the scene. A skilled negotiator, she urged the maniac to surrender peacefully. Efforts to ascertain the location of Neal’s cell phone were unsuccessful, and it was feared that if Neal did not surrender, others would die.

Neal made it clear he would not surrender without legal representation. The police did not trust the public defenders office to handle the situation, fearing that a defense counsel’s advice might lead Neal not to place himself in police custody. Pautler also believed that a public defender would advise Neal not to talk with law enforcement. Neal was savvy enough, he felt, that a police officer could not effectively pretend to be his lawyer, so Pautler agreed to impersonate a defense attorney over the phone He told Neal that his name was was “Mark Palmer.”

Though in the ensuing phone conversation Pautler tried to avoid giving direct legal advice, it was clear that Neal believed “Mark Palmer” worked for the public defender’s office and represented him. And the deception worked: Neal eventually surrendered without further incident.

Not surprisingly, the Colorado Bar had problems with Pautler’s conduct. He was charged with violating two ethics rules, the equivalent of the one used in the “Law and Order” episode and also Colorado Rule 4.3, which requires a lawyer to inform an unrepresented party so it is clear that he isn’t representing him, and to give no legal advice other than to get an attorney. They could easily have charged him with violating others. like Rule 1.3, requiring diligent representation (Call me a stickler, but trying to trick your client into surrendering to police isn’t what the rule has in mind), Rule 1.4, which requires a lawyer to keep a client informed (“Oh: I’m really a prosecutor!“), Rule 1.6, Confidentiality (Pautler shared what Neal told him with police; a lawyer can’t do that! ) Rule 1.7, Conflicts of Interest (Ya think?) and Rule 4.1, which prohibits lawyers making false statements of fact, like “I’m here to help you.” Continue reading

Ethics Quiz: The Smokeless Tobacco Ban

Chicago recently became the fourth city—Boston, Los Angeles and San Francisco—to enact a ban on using smokeless tobacco in sports stadiums. I initially ignored it, in part because I never use the stuff and have never known anyone who did, and in part because I knew that Major League Baseball has been trying, with some success, to discourage its ballplayers from chewing and especially spitting on camera, since it is a) disgusting and b) encourages impressionable tykes to take up an ugly and perilous habit. I’m inspired to make the issue an ethics quiz because of the pronouncements of law professor-blogger Jonathan Turley on the issue and the vociferous debate his comments sparked on his blog.

Turley wrote…

This is a lawful product like smoking tobacco. People have a right to make choices about their lifestyle so long as they do not harm others. That is why I always supported the bans on smoking in public areas due to the second-hand smoke research. That is an externalized harm. What is the externalized harm of smokeless tobacco?

…I happen to deeply dislike smoking and I find chewing tobacco disgusting. I also do not question the link to serious health problems like cancer. However, that should be the subject of an educational campaign by the government and MLB. Yet, in the end, people need to be able to make choices in our society rather than go down the path to paternalistic legislation regulating our good and bad choices.

His supporters on the blog were typified by this comment by Beth (not our Beth, I presume)…

“Tobacco, in all forms, is NOT a singular activity that affects no one else. Tobacco use weighs very heavily on the public at large in the form of health care costs, higher insurance premiums, toxic litter, poisoned air and ground spit. To suggest that limiting tobacco, smokeless tobacco and e-cigarettes should not be controlled substances goes against all manner of policy for the public good. Wrong stance, Mr. Turley.”

This comment, from “wonderer,” is a fair summation of the other side, which mostly came from the libertarian side of the metaphorical aisle:

“The efforts to ban “icky” behaviors are of a piece with the bans or taxes on sugared beverages. What seems to be happening is that some people want to push bans on behaviors of “out of favor” groups. Those “big soda” people are Walmart denizens, so they clearly need to be told what to do. But keep hands off urban bicycling. As risky as that is, it’s one of the things “enlightened” people do. Bans (at least here in California) seem to be all about the condescension.”

Your Ethics Alarms Ethics Quiz of the Day:

Is a ban on smokeless tobacco in ballparks an abuse of government power and an unethical breach of personal choice, autonomy and liberty, or is it a responsible use of government power to encourage public health and safety?

I’ll hold my fire on this one until sufficient numbers weigh in. Remember, the issue here isn’t policy, but ethics.

 

 

“Jaws” Ethics: A Real Life Larry Vaughn Models Rationalization #49, “It Would Have Happened Anyway”

Jaws

Wait, I’ve seen this movie!

From the Associated Press:

OAK ISLAND, N.C. (AP) — The mayor of a coastal North Carolina town where two young people were severely injured in shark attacks this weekend says she doesn’t think emergency workers had enough time between incidents to close the beaches. A 12-year-old girl was attacked just after 4 p.m. Sunday in Oak Island, and a 16-year-old boy was attacked less than two hours later about two miles away. The girl lost part of her arm and suffered a leg injury. The boy lost his left arm…

Beaches were open for the two-hour stretch Sunday but closed after the second attack.

Oak Island Mayor Betty Wallace told The Associated Press on Monday that she didn’t think that gave workers enough time to decide to close the beach between attacks. …Wallace says that even if the beach had closed after the first attack, the order might not have extended to the area of the second incident.

It was unclear whether the same shark attacked them…

The beaches were open Monday, with a boat and a helicopter patrolling the water.

OK, I know what happens next! The helicopters spot a fin in the water, and there’s a panic on the beach, and it turns out to be two kids with snorkels and a fake shark fin. The younger boy points to his brother and says, “He made me do it!” Meanwhile, the Great White goes over to the lagoon and bites the leg off a guy with a bad fake Boston accent.

If, as I suspect, Mayor Wallace is Amity Mayor Larry Vaughn come to life from “Jaws” and identifying as a woman as well as disguising herself accordingly to get another job as a resort town mayor—which means that she is a woman, of course—then old Larry sure has a flat learning curve. On the other hand, if Mayor Wallace isn’t Larry Vaughn, someone needs to make her watch “Jaws,” quick. Is it unethical—irresponsible, negligent, incompetent— for any Mayor of a coastal town not to be aware of the lessons of that film?

I think so. Continue reading

Rand Paul, Anti-Vaxxing and Signature Significance

"Got it, Senator. NEXT!!!"

“Got it, Senator. NEXT!!!”

It would be nice if a genuine, rational libertarian candidate could be part of the national political debate. The problem is that there are no genuine, rational libertarians. To be genuine, a libertarian has to decide on his or her policy positions based on the dictates of the ideology, which is backwards: as a leader, rather than a professor or theorist, one must figure out what is going to work, and what you wish would work or what a pre-determined formula says should work are not germane to the issue. For proof of the flaw in the latter approach, all we have to do is consider the past seven years.

Thus libertarians are prone to saying things like, “The United States should never have entered World War II.” This has been a staple of Rand Paul’s deluded father, Ron Paul, and properly places pure libertarianism with pacifism, also known as Cloud Cuckoo Land. The Berrigans used to say the same thing, you know. I believe it was Philip who said that nobody tried passive resistance to defeat Hitler, so we’ll never know if it would have worked. When you say things like this for public consumption, you forfeit the privilege of being taken seriously. It is signature significance: your judgment can’t be trusted.

For me, Rand Paul’s libertarian moment of signature significance was when he questioned the need for the 1964 Civil Rights Act, essentially saying that the nation would have been just fine allowing people like Lester Maddox to chase African-Americans out of his restaurant with an axe handle, or bus drivers to force Rosa Parks to sit in the back of the bus until change occurred naturally, you know, like after the race war. Such statements are not isolated instances of momentary madness; they are markers of serious ethical and cognitive problems, and it was inevitable that the source of that opinion would have more of the same, and perhaps worse. Continue reading