Diffusion of Responsibility

Ariel Casto, you will recall, was citizen who imprisoned three people – without any evidence of wrong-doing on their part, and for no reason other than his own perverse desires – which lead, inevitably, to their repeated rapes over a period of ten years.

Thirty person-years of confinement to a dungeon, of hopelessness, of rape, of degradation – the mind boggles at the horror.

Castro ended up pleading guilty to 937 felonies including multiple counts of rape, kidnapping, and aggravated murder, and was sentenced to life plus 1,000 years. And, note, this was the result of a deal he negotiated: by pleading guilty and making the process easier for the victims, he got off with a lighter sentence than he might otherwise.

You may or may not have heard of Annie Dookhan. Ms Dookhan is a chemist in Massachusetts and worked doing drug tests. She could have done her job of testing samples for drugs, and then marking the results on sheets of paper. But that sounded too much like work for Ms. Dookhan, so she didn't do it. Instead, she alternated between mixed known drugs into samples and then testing them so as to generate positives, or skipped the tests entirely and just marked the paperwork "drugs present". When tests or investigations done by others would occassionally contradict her work (such as showing that a sample that she had "tested" for cocaine and which had "turned up" cocained was actually not suspected of having cocaine, but only of some other drug), she forged signatures of coworkers and subordinates on lab reports to cover herself.

Despite multiple people observing Dookhan's malfeasance, no corrective action was taken by any other employee at the lab.

boston.com

However, the troopers’ interviews with other chemists in the lab make clear that Dookhan’s colleagues had concerns about her unusually large caseload and lab habits and raised them with supervisors. But the supervisors took little action even when they learned that she had forged other chemists’ initials on some drug samples.

In fact, the type of malfeasance Dookhan was engaged in was so common that there's a slang term for it: " dry labbing". Backed up on work, but still want to get out in time to beat the Friday rush hour? Just "dry lab" the last few samples.

Before she was caught Dookhan lied about 34,000 samples.

Over 4,000 cases were tainted with her corrupt evidence.

Over 1,100 people were jailed in cases where Dookhan was the primary or secondary chemist finding them "guilty" of drug crimes.

Without knowing the exact durations of their sentences, we can't know how many person-years of confinement Dookhan was responsible for, but taking two years as a conservative guess per person, she was responsible for 2,200 person years of confinement.

Without knowing the exact torture and abuse these 1,100 men and women underwent, we can't know exactly how much rape and degredation Dookhan was responsible for, but given that we do know that most rape victims in the US are men, specifically men in the custody and "protection" of the State, and looking at the multiple studies that show that 9-20% of inmates are raped, we can guess that Dookhan was responsible for over 100 men and women being raped. To hand-wave further, we can guess than because "once a punk, always a punk" in the prisoner's code, she is responsible for thousands of actual rapes.

To recap:

Ariel Castro:

  • crime: 3 prisoners, 30 person years, hundreds of rapes.
  • sentence: life plus 1,000 years.

Annie Dookhan:

  • crime: 1,100+ prisoners, 2,200+ person years, thousands of rapes.
  • sentence: three years,

Ariel Castro was a monster.

Annie Dookhan was a government employee who was under too much stress and made some mistakes.

Needless to say, the managers at state-run chemistry lab who allowed Dookhan to commit her illegitimate acts of imprisonment and rape -by-proxy despite being alerted multiple times to the problems were not charged at all.

It kind of sucks, but if we didn't give government employees either explicit or implicit immunity from prosecution for their misdeeds, we'd be incapable of carrying out the core functions of government.

Last 5 posts by Clark

Comments

  1. NI says

    I agree with every word you write, and if I were sentencing her, I'd be more inclined to twenty years. But if it's any consolation, her real punishment will come when she leaves prison and spends the rest of her life earning a living by emptying wastebaskets or taking orders at McDonalds because nobody in their right mind will hire her as a chemist, and what else does one do with a chemistry degree?

  2. says

    Utterly obscene. One can only hope that during those three years she is tortured, raped and beaten on a daily basis by all the other inmates.

  3. Zack says

    I understand what you're saying and certainly can't disagree with the facts, but it's a bit hard to draw TOO close a comparison here. Castro's imprisonment of those women was not something that he just allowed to happen, and did not just "lead, inevitably, to their repeated rapes over a period of ten years", but rather he was the one ACTIVELY taking those actions against other human beings directly.

    In the false lab tests case there is certainly a massive breach of trust, and quite a bit of wrongdoing – entirely inexcusable to be sure, especially when acting on behalf of an institution that we simply need to be trustworthy… but systemic issues aside (not that they should be put aside, mind you, just that they make the problems even more different in contexts), there is a difference between action/inaction – even grossly negligent or fraudulent actions – that "lead to" a horrible crime and actively committing the crime yourself.

  4. Éibhear says

    What happens to the convictions that arose from evidence from her? Will they be looked at automatically? or will each convicted person be required to raise an appeal individually? or something in between?

    Éibhear

  5. says

    An excellent comparison, Clark, but don't stop there. Let's think also about the millions of people who did have something to do with some disapproved substance. Their lives were ruined, millions of person years wasted, countless rapes, and thousands died in a pointless and arbitrary "drug war". As to who is responsible for this atrocity, we can pick out a few particular monsters (Richard Nixon), but … diffusion is the rule!

  6. NS says

    Annie Dookhan was a government employee who was under too much stress and made some mistakes.

    This is where we part company in our thinking, Clark. Specifically:

    made some mistakes.

    I believe that Ms. Dookhan made only one mistake, believing that her fraud was a sustainable plan. The rest seems very deliberate.

    Stubbing your toe is a mistake. Dialing the wrong phone number is a mistake. Falsifying your lab reports, and forging signatures is as decission. It is also, quite frequently, and particularly in this case, a crime.

    Other than that one quibble, I don't disagree with a thing you've said here.

  7. Zack says

    G. Filotto • Oct 24, 2013 @5:44 am

    Utterly obscene. One can only hope that during those three years she is tortured, raped and beaten on a daily basis by all the other inmates.

    Ugh. This all too common sentiment is utterly obscene, regardless of the crime.

  8. says

    @piperTom

    An excellent comparison, Clark, but don't stop there. Let's think also about the millions of people who did have something to do with some disapproved substance.

    One step at a time, Tom, one step at a time. ;-)

  9. says

    @NS

    made some mistakes.

    I believe that Ms. Dookhan made only one mistake, believing that her fraud was a sustainable plan. The rest seems very deliberate.

    Indeed. I was speaking sarcastically in the voice of polite society / her defenders / other government employees.

  10. says

    @Zack

    G. Filotto

    Utterly obscene. One can only hope that during those three years she is tortured, raped and beaten on a daily basis by all the other inmates.

    Ugh. This all too common sentiment is utterly obscene, regardless of the crime.

    I'm with you, Zack. I've certain have the same immediate and visceral emotional reaction as G. Filotto, but it's not our place to allow, encourage, or celebrate that.

    We should hope that her time in jail is utterly safe from depredations from both guards and other prisoners. …which is the thesis sentence of a longer yet-to-be-written post on the point of incarceration.

  11. says

    @Zack:

    there is a difference between action … – even grossly negligent or fraudulent actions – that "lead to" a horrible crime and actively committing the crime yourself.

    This is exactly the antithesis of my argument. Why do you assert that there is a difference?

    Because the results are different?

    Because the forseeable results are different?

    Because the ethical or legal responsibility of the perpetrator is different?

  12. Taliesyn says

    You know, while I normally disagree with you strongly, Clark, I have to agree with you this time that this woman deserved a LOT more in the way of a punishment.

    Personally, I'd say she serves time equal to all the time served by everyone they determine to have been wrongly convicted due to her 'evidence'. And honestly, I'd say the supervisors who refused to look into her actions should get the same.

    Those are peoples' lives they ruined, not just some numbers in a database.

  13. TM says

    @Clark, Zack

    Frankly I don't see how you can classify what she did as "inaction". She didn't just let the labs slip through without verification. She actively and wilfully forged or misrepresented the labs in question. That is "action" just as much as snatching a person off the street and chaining them in your basement is action. That she didn't personally send these people to jail with the bang of a gavel is merely the difference between hiring a hit man and being the hit man (although in this case, assuming for the sake of argument that all other government employees were acting above the board, the hit man was legally required to act upon the requests of the person hiring the hit man)

  14. a_random_guy says

    Just a minor note: the poor woman may have had no choice but to fake her lab work. She claimed to have a Master's in chemistry and at one point also claimed a doctorate from Harvard. She had neither.

    She won't have sent transcripts or copies of her diplomas, because she didn't have them (even though that's pretty standard practice in academic fields). But her bosses didn't want to look to closely, I mean, female and a minority! You've got to reach those affirmative action percentages somehow…

    Sorry, that's very non-PC, but is has to be said. This is the kind of thing that genuinely talented women and minorities absolutely hate, because people wonder…are they really qualified, or just placeholders? It's a damn shame that things like this happen.

  15. Griffin3 says

    s/mixed/mixing/ in paragraph 4
    [only mentioning it because my brain stuttered there, distracting from the point of your excellent post]

  16. Jonathan says

    @Clark,

    there is a difference between action … – even grossly negligent or fraudulent actions – that "lead to" a horrible crime and actively committing the crime yourself.

    This is exactly the antithesis of my argument. Why do you assert that there is a difference?

    Because the results are different?

    Because the forseeable results are different?

    Because the ethical or legal responsibility of the perpetrator is different?

    I presume that you have paid taxes to the federal government at some points. Taxes that have, in part, gone to support the prison system, pay prison guard salaries, and so facilitated the rape of inmates.

    How do you sleep at night?

  17. Zack says

    @Clark:

    This is exactly the antithesis of my argument.

    I know, that's why I made it instead of saying "I agree" :)
    As to why I feel that way though, to be honest I've been trying to put my finger on it since I originally chimed in. I guess part of why I instinctively feel her case is different does have to do with the results – predictable or otherwise, and who are we kidding if we don't think they were predictable. None of the actions you describe here would necessarily have directly lead to the abuse of other persons without the addition of other problems.

    First the systemic issues (and yes, I earlier said put them aside… but in my defense I also said they shouldn't be put aside!) failed to provide sufficient oversight, verification, and repercussions. Frankly it's insane that this kind of institution that is assumed to be above reproach is not subjected to more safeguards. Proper steps taken here could and likely would have caught her very early on and eliminated many of the resulting problems.
    But I don't know, that doesn't feel like it's enough to explain my reaction and certainty that this is a lesser crime (on a human level, not a legal one)… but that doesn't make me less certain of that sentiment.
    Don't get me wrong, falsifying lab reports when you know or should reasonably have known that doing so would lead to wrongful incarceration is unquestionably reprehensible, I just have a hard time putting it at the same level of personal offense as chaining somebody to a wall in your basement and raping them repeatedly over 10 years. I'm also inclined to agree that 3 years feels like far too light a sentence, but I'll leave the specific critiques of the penal code and accompanying sentences to the 112% of authors & readers here who know more than I do on the subjects.

  18. says

    @a_random_guy

    the poor woman may have had no choice but to fake her lab work

    Well, how is applying for a job you aren't qualified to do not a choice?

    But anyway, if I were somehow forced into her job, unqualified as I am to do it (perhaps by some hilarious farcical sequence of events), how would it not be more work and greater risk of discovery to fake positive results? Mere incompetence and negligence would seem to argue for a nice brisk (and relatively safe) turnaround of 'negative' and 'inconclusive'.

    The only explanation I can see is malice.I don't see any way that punishing her more will make things better. But I see a lot of utility in punishing more of the people who failed to supervise her.

  19. Jonathan says

    BTW – I totes agree that this woman committed a grievous crime commensurate with a much harsher punishment. However if your thesis is truly that all the strands in the tangled web of moral culpability are of coequal length regardless of proximity to the moral action in question..

    Respectfully, I think you better think it out again.

    edit: Couldn't get the youtube link to work. =( Anyway, I think you're playing fast and loose with ethical concepts, Fagan.

  20. Tarrou says

    A prime example of the power of structure of responsibility. Allow me a demonstration with something everyone but me apparently hates and fears on a feral level, WMD.

    For all the outrage, shock, horror, thirty years of scare-mongering during the cold war, WMD are inherently less of a problem for humans that people who kill in very personal ways. Yes we all bluster in public about Syria, for instance, as we did with Saddam and the Kurds. About four hundred people died, and thousands were injured. Had one man done that with a hammer, there would be no force on earth that could arrest our vengeance.

    This is the innate human horror of getting one's own hands dirty. To make the jump to this case, Ms. Dookhan didn't imprison or rape anyone. She only caused them to be imprisoned by others and raped by still others. It's a weird mental trick, you see it in moral quandaries. People say they will pull a lever to shift a train to kill one person rather than five. But they generally won't push someone onto the tracks to save five farther down.

    Humans can't instinctively do consequentialist utilitarianism. Most of those who say they can are liars. We cannot separate the emotional impact of the crime from the horror we feel for those who commit personal violence. Prison is impersonal. Forcible rape is personal. Our limbic system will not allow us to equate them on a visceral level.

    And unfortunately, this means there will be no widespread outcry over this outrageous behavior. One Ms. Dookhan is far more damaging to our justice system than a thousand Castros.

  21. says

    @TM

    @Clark, Zack

    Frankly I don't see how you can classify what she did as "inaction". She didn't just let the labs slip through without verification. She actively and wilfully forged or misrepresented

    Agreed.

    That she didn't personally send these people to jail with the bang of a gavel

    Actually, even the judge doesn't send someone to jail. He just reads some words off a page.

    At the end of the line a couple of prison guards push a person into a cage and then lock the door behind them, but it's a vast cooperative effort: legislators declare that behavior X is worthy of jail time (and implicitly accept the rate of false positives that State is going to get on convictions), cops on the street arrest someone, detectives gather data and arrange it to create a narrative, a chemist checks a sample, a judge listens to the data, legislators allocate money for the jails, tax officials send out statements demanding that citizens pay for the jails, etc.

    This is my point about diffusion of responsibility. When everyone is just doing their job, no one is to blame.

  22. jb says

    Oh my god, the level of not getting sarcasm in this comment thread is ridiculous. Guys, this is a Clark post, everything that's not heavy-handed analogy or snark is sarcasm.

    That said, I absolutely agree with this post. I would add that beyond the consequences suffered by the specific people unjustly convicted, is the mistrust of the justice system sowed. Not that I think people should trust a broken justice system, but it is well-documented throughout history that societies that lose respect for their institutions decline and fall. So people who purposely wreck those institutions, such that other people justifiably lose faith in them, are committing structural sabotage of their entire societies.

  23. says

    @Jonathan

    @Clark,

    I presume that you have paid taxes to the federal government at some points. Taxes that have, in part, gone to support the prison system, pay prison guard salaries, and so facilitated the rape of inmates.

    Under duress, but yes.

    How do you sleep at night?

    Poorly.

    For ten years now I have refused to take any work that involves, directly or indirectly, tax dollars. It's not much, and I want to do more.

    I don't see what other avenues are open.

  24. says

    @jb

    Oh my god, the level of not getting sarcasm in this comment thread is ridiculous. Guys, this is a Clark post, everything that's not heavy-handed analogy or snark is sarcasm.

    This is why @jb is one of my favorite commenters.

    people who purposely wreck those institutions, such that other people justifiably lose faith in them, are committing structural sabotage of their entire societies.

    I'd argue that – perhaps – they're not committing structural sabotage of society, but of government.

    …in which case, I guess that there's a silver lining here.

  25. Zack says

    Hopefully as I think about it some more I'll have more luck putting my finger on why I feel this way. "It just is" is a disgusting basis for an argument, and doubly so when it's my own…

  26. Erwin says

    Well, don't worry – there are plenty of white men who also fake their qualifications and mostly get away with it. Of the remainder, I've found that qualifications usually speak poorly to competence. (One of the more reliable indicators of competence is being a foreigner from a poor country with enough grit and chutzpah to get a degree from an American university.) Personally, I'm american-born, but, yah, all else being equal, I suggest hiring the foreigner first.

    I think that this is more a racial/class issue than a government issue. Think about the sentences enjoyed by most high level white collar criminals – even though the harms they cause are usually arguably larger. And then think about white collar prisons with tennis clubs. The chemist was just lucky enough to fall into the white collar side of the justice system.

    The closest model I can find is a 2 class system, with one set of prisons dedicated to keeping the animals in line with repeated rapes and torture and the other prison dedicated to deterring real people from crimes with some attention to justice.

    Overall, I'd favor a system with sentencing somewhere between these two systems and closer to the white collar side of things. How close? Dunno – that'd take a lot of thought.

    –Erwin

  27. Jonathan says

    @Clark,

    At the end of the line a couple of prison guards push a person into a cage and then lock the door behind them, but it's a vast cooperative effort: legislators declare that behavior X is worthy of jail time (and implicitly accept the rate of false positives that State is going to get on convictions), cops on the street arrest someone, detectives gather data and arrange it to create a narrative, a chemist checks a sample, a judge listens to the data, legislators allocate money for the jails, tax officials send out statements demanding that citizens pay for the jails, etc.

    This is my point about diffusion of responsibility. When everyone is just doing their job, no one is to blame.

    Do you believe that it is unjust to ever inflict punishment on a fellow human? Vengeance is mine sayeth the Lord, so leave 'em to me?

    I ask because the issue here seems to be that Ms. Dookhan wasn't doing her job, and so individuals were potentially punished unjustly, or for crimes they didn't even commit. The issue here is dereliction of duty, not punishment as such.

  28. says

    @scav

    @a_random_guy

    the poor woman may have had no choice but to fake her lab work

    Well, how is applying for a job you aren't qualified to do not a choice?

    I suggest that @a_random_guy was being sarcastic, @scav.

  29. ketchup says

    there is a difference between action … – even grossly negligent or fraudulent actions – that "lead to" a horrible crime and actively committing the crime yourself.

    This is exactly the antithesis of my argument. Why do you assert that there is a difference?

    Because the results are different?

    Because the forseeable results are different?

    Because the ethical or legal responsibility of the perpetrator is different?

    Zack and Clark are both right, in a way. The actions in the two cases discussed are different. The foreseeable results of those actions are substantially similar. The problem is that currently our justice system is to a large extent based on actions. Falsifying a lab test is a different crime legally than kidnapping, rape, and murder. Does this lead to injustices? Yes, as Clark has clearly articulated. But I'm not sure how to fix the problem. Is changing criminal law to a system based on foreseeable results workable in practice? Does intent matter? There are a few situations in which our law is currently foreseeable-results based. Assault (hurt but didn't kill), manslaughter (didn't mean to kill, but should have known it was likely), and varying degrees of murder (intended to kill with varying levels of pre-meditation), for example. But if we had such a system for kidnapping and rape, it still would not resolve the inequality in how the two cases under discussion were resolved. It would be very hard to prove that Dookhan intended for her victims to be raped. Castro obviously intended his victims to be raped.
    So I completely agree with Clark – what happened in the Dookhan case is an incredible injustice. But what is the practical solution?

  30. says

    @Jonathan

    Do you believe that it is unjust to ever inflict punishment on a fellow human? Vengeance is mine sayeth the Lord, so leave 'em to me?

    Compare:

    vengeance – n. –

    Infliction of punishment in return for a wrong committed; retribution.

    1. With great violence or force.

    2. To an extreme degree

    and

    There are five possible purposes to the punishment of criminals:

    1. Incapacitation: A felon in prison cannot commit crimes while imprisoned. An executed felon cannot commit a crime ever again.

    2. Deterrence: The threat of punishment deters people from engaging in illegal acts.

    3. Restitution: The felon is required to take some action to at least partially return the victim to the status quo ante.

    4. Retribution: The felon harmed society; therefore society (or the direct victims) is entitled to inflict harm in return.

    5. Rehabilitation: The punishment changes the felon in order to make him a better citizen afterwards. (The punishment can include mandatory vocational training, counseling, drug treatment, etc.)

    I agree with all of these except #4. Althought sometimes I waver on #2 because it reaks of treating humans for their instrumental value (ob: "Jackie Treehorn treats objects as women, man!"), instead of as ends unto themselves, which seems incompatible with Christianity to me.

    If I put on my left-libertarian hat (it's dusty; I don't use it much), I'd suggest that criminals should be locked away in nicely appointed apartments with good wall-to-wall carpeting, where their only interaction with the outside world is video chat with loved ones, news, and educational webcasts. And if you want to get instrumental about that, I'll point out that it would be a lot cheaper than supermax.

  31. says

    @Zack

    Perhaps rephrasing the crime makes it seem like more of a big deal:

    She was a malicious liar and bearer of false witness against others, knowingly seeding utter misery among the people that (via taxes) paid her salary. She is a sneaking traitor to her fellow humans, a poisoner of the well, a sly hateful and reckless harm-doer. A perjurer, and a perverter of justice. In a country with stricter drug laws, she could have got 1000 people hanged. And are you sure that would have discouraged her?

    Perhaps it's just harder to visualise and sympathise with 1000 unnamed victims than 3 specific ones.

  32. Sterling Archer says

    G. Filotto • Oct 24, 2013 @5:44 am

    Utterly obscene. One can only hope that during those three years she is tortured, raped and beaten on a daily basis by all the other inmates.

    This is the type of attitude that allows rape and other abuse to permeate the prison system. Revenge may be tempting, but it undermines justice.

  33. L says

    Do we have to argue about whether Dookhan or Castro was worse? I think the OP's argument that Dookhan was worse has a lot of logic to it, but also requires some gymnastics and lousy math. How about they were both horrible in their own way? Castro was worse in some ways, Dookhan worse in others, and they're both monsters?

    I agree that three years for what Dookhan did is an outrage.

  34. Jonathan says

    @Clark,

    You must be a fan of Norway's penal system. It certainly does seem to get results in the 'rehabilitation' ledger.

    I'd note that, from a traditional Christian perspective at least, retribution is a standard feature of punishment, not a bug. Thus St. Thomas could speak of the pleasure with which the saved would look upon the infinite tortures of the damned, as the righteous retribution being visited upon them rendered glory unto God.

    Of course, I'd argue that that's not Tommy's finest moment, but it's in the tradition all the same.

  35. Sterling Archer says

    @Clark

    Nice post! What is your source for the statistic below? It's not that I don't trust you, I just like to reference primary sources.

    …we do know that most rape victims in the US are men…

  36. says

    @ketchup

    Zack and Clark are both right…. The actions in the two cases discussed are different. The foreseeable results of those actions are substantially similar.

    Exactly.

    The problem is that currently our justice system is to a large extent based on actions.

    And to a degree, that is just and proper. There is a difference between intentionally running over a 4 year old with your car and failing to put new break pads on because you're short on cash this month and then losing breaks and accidentally running over a 4-year old while trying to avoid hitting a busload of nuns.

    I'm not sure how to fix the problem.

    One anarcocapitalist / miniarchist / voluntaryist answer:

    1) false imprisonment is a tort that can be raised against anyone with no immunity.

    2) thus very few people would want to take jobs in the justice system

    3) …unless they had massive insurance to pay out claims ($1 mill/year for false imprisonment does not sound too high to me)

    4) such insurance would put drastic pressure on crime labs and other parties to be better at what they do

    5) …but none-the-less it would still be expensive (see malpractice insurance)

    6) Thus employing people in the criminal justice system would be very expensive

    7) …and therefore a state or other law-giving and law-enforcing entity would not be able to afford a legal system much bigger than one that goes after people for murder, theft, rape, and fraud.

    It would be very hard to prove that Dookhan intended for her victims to be raped.

    In the infantry everyone is exposed to CS gas in training.

    In the special forces everyone is exposed to privation, hunger, simulated captivity and torture.

    Perhaps we need to throw every cop, judge, and lab tech into jail and have one forcible rape done to them as a condition of employment, so that they can understand the world that they're creating for others.

    I'm joking.

    …I think.

  37. Jonathan says

    Would Clark, or anyone else here, agree that intentionality has a place in the analysis of moral culpability? If not, what criteria do you accept to make judgements about moral activity?

  38. says

    @Jonathan

    You must be a fan of Norway's penal system. It certainly does seem to get results in the 'rehabilitation' ledger.

    As I say, culturally I am a right libertarian. I'm still wrapping my head around these issues.

    I think that Norway's legal system has one advantage over ours: the criminals are all Norwegians.

    I'd note that, from a traditional Christian perspective at least, retribution is a standard feature of punishment, not a bug. Thus St. Thomas could speak of the pleasure with which the saved would look upon the infinite tortures of the damned, as the righteous retribution being visited upon them rendered glory unto God.

    Your fact is correct, but I believe that your interpretation is wrong.

    Being safe on my couch feels nice. Seeing other people burn to death would make me appreciate that even more. That does not mean that (a) other people actually are burning to death; (b) other people burning to death is necessary for my couch to be a safe place; (c) so that Thomas knows what Hell is really like.

  39. Joe Blow says

    Ariel Castro was a monster is a man.

    Annie Dookhan is a woman.

    The criminal and civil justice systems treat them quite differently.

    There is also the matter of how we treat blue collar and white collar type crimes quite differently. Lab Fraud is a white collar crime – crime committed by nice, educated people who just went astray. Never mind the destruction that resulted, white collar criminals do not have actual dirty hands. Blue collar criminals though – they're people who are Not Like Us.

    Try embezzling a few tens of millions, reducing a bunch of pensioners to eating dog food, cause suicides, wreck the futures of dozens. It will be a year or two in the federal country club for you. Then go hit your wife once or rob a liquor store and see what happens.

  40. Jonathan says

    Clark,

    Your fact is correct, but I believe that your interpretation is wrong.

    Being safe on my couch feels nice. Seeing other people burn to death would make me appreciate that even more. That does not mean that (a) other people actually are burning to death; (b) other people burning to death is necessary for my couch to be a safe place; (c ) so that Thomas knows what Hell is really like.

    What do you mean my interpretation is wrong? I tend to dare to hope with Balthasar, which admittedly places me on shaky ground when it comes to orthodoxy, but I am not wrong to claim that traditional Christianity has held the retributive aspect to be fundamental to justice.

    I don't know if you're familiar with Ed Feser – he's a strong traditionalist/classicalist, and I think you'd at least enjoy his pugnacious tone. =) Anyway, here's a good article from him arguing that the retributive aspect of justice is fundamental:
    http://www.thepublicdiscourse.com/2011/09/4033/

    I find it troubling, and I'm not sure I agree, but it's the standard position of the Church, historically speaking.

  41. jb says

    I'd argue that – perhaps – they're not committing structural sabotage of society, but of government.

    …in which case, I guess that there's a silver lining here.

    And that is the difference between left and right libertarians. You are willing to cause harm to actual people, or praise harm caused to actual people, as a result of governmental inefficiency, if that gets us closer to a more libertarian government. I am not. I don't think that suffering is worth it, partially because I reject the leninist "Make it worse until it collapses" revolutionism in favor of a focus on incremental progress, and partially because I don't think that making it worse will actually lead to collapse, and if it does libertarianism will not be what emerges.

  42. TM says

    @ Joe Blow

    I strongly suspect that gender had less to do with the difference in sentencing than the diffusion of responsibility and the benefit of being a government employee.

  43. says

    @jb

    I'd argue that – perhaps – they're not committing structural sabotage of society, but of government.

    …in which case, I guess that there's a silver lining here.

    And that is the difference between left and right libertarians. You are willing to cause harm to actual people,

    Willing to?

    No, I'm not. Not remotely.

    Saying "the silver lining of the Holocaust is that the world now knows what genocide looks like and our resistance to it is higher" has absolutely nothing in common with "let's murder 6 million people to raise 'awareness'".

    Nothing.

  44. says

    @TM

    @ Joe Blow

    I strongly suspect that gender had less to do with the difference in sentencing than the diffusion of responsibility and the benefit of being a government employee.

    I suspect that all three were relevant.

    Look at the picture. She's cute. She's small. She's innocent.

    …and she destroyed thousands of lives.

    Our brains evolved in small tribes of hunter gatherers. Our brains tell us that fertile women should never be punished. Not for reals punished, at least.

  45. xtmar says

    @Clark

    I think your idea is interesting, but it has some of the same problems as a loser pays tort system. Namely, since the cost of failure is too high, prosecutors will put aside all but the most slam dunk cases. While you might view this as a feature, rather than a bug, (and a part of me agrees with this), I think there is also a value in going after criminals who are smart enough to create a little FUD about their crimes and stand a decent chance of getting acquitted.

    Also, this sort of side steps the issue of legal culpability versus moral culpability, but set that aside for now.

    I think the only way this would work is if we had three options for a jury, something along the lines of guilty, not proven, and innocent. In terms of imprisonment and double jeopardy, not proven and innocent would be the same, but in terms of going after the prosecutor, only defendants with an innocent result would have actionable causes (outside of normal cause for action about procedural problems and so on).

    Similarly, in civil cases, you would have to have three outcomes, similar to how cases can be dismissed with and without prejudice.

  46. BullsLawDan says

    This is another example of why reflective justice is needed in our system. This woman's punishment should be equal to the sum total of the punishments her intentional actions caused others to face. She abused the justice system to make gains for herself. A civilized society REQUIRES strong trust in the fairness and accuracy of the justice system, and this woman damaged that trust through willful and intentional actions. Anyone that does so deserves severe punishment.

  47. jb says

    OK, let me rephrase:

    1) Competent government, known to be competent and restricted to appropriate functions, is good.
    2) Competent government, believed to be incompetent due to lies and FUD propounded by opponents of the current government policies, is bad.
    3) Incompetent government, papered over by people pretending that it's competent, is bad.
    4) Incompetent government, known to be incompetent and therefore giving rise to a reform movement, is OK.
    5) Incompetent government, known to be incompetent and therefore giving rise to a decline in societal respect for institutions, is bad.

    I am arguing that this case is an instance of (3) turning into (5). You are either arguing that it is (3) turning into (4), which I would disagree with based on the facts of this specific case, or that the fact that it is turning into (5) instead of remaining (3) is an improvement, which I disagree with.

    In general, I think that right-libertarians are OK with a decline in societal respect for institutions, since they identify most institutions with repression of freedom. Left-libertarians, on the other hand, believe that although governments are naturally inclined to incompetence, an individual instance of incompetent government presents the possibility of reform, but if a society loses respect for institutions in general then it will degenerate into the wrong kind of anarchy. Right-libertarians are less sure that there is a wrong kind of anarchy.

  48. ketchup says

    1) false imprisonment is a tort that can be raised against anyone with no immunity.

    I like this idea.

    Perhaps we need to throw every cop, judge, and lab tech into jail and have one forcible rape done to them as a condition of employment, so that they can understand the world that they're creating for others.

    I'm joking.

    …I think.

    For some prospective government employees, that would make them more sympathetic and careful. Others would say "Society did this to me, so I am going to do it back to society". Uncaring bastards would remain uncaring bastards.

  49. Docrailgun says

    But she didn't "make some mistakes". She purposefully falsified records and misused illegal drugs detained as evidence.
    Also, let's not think if this as a government employee mad with power. This could have happened at the lab of a hospital or a private testing firm working for employers. She just was performing her fraud somewhere that she could ruin people's lives completely.

  50. says

    While we're on the subject of Ariel Castro, Let's not forget James Randi's Takedown of Sylvia Browne on Amanda Berry's 'death' Berry's mother died believing her daughter was dead. One can ridicule her for believing in Psychics but it's not hard to understand how a emotionally distraught desperate woman would grasp to any bit of certainty she could find.

    Too bad all three of these people couldn't rot together.

  51. glasnost says

    Also, let's not think if this as a government employee mad with power. This could have happened at the lab of a hospital or a private testing firm working for employers. She just was performing her fraud somewhere that she could ruin people's lives completely.

    This.

    7) …and therefore a state or other law-giving and law-enforcing entity would not be able to afford a legal system much bigger than one that goes after people for murder, theft, rape, and fraud.

    The fantasy here is the idea that raising the expense per-employee of the justice system to huge levels would conviently defund enforcement of all the laws you don't like while not affecting the enforcement of the laws you like. That's more or less gibberish. The real-world consequences would be a lot more like what you see in today's real world – fraud effectively free, murder only enforced in rich areas, but foreclosures and drug crimes prosecuted with vigor.

    And to a degree, that is just and proper. There is a difference between intentionally running over a 4 year old with your car and failing to put new break pads on because you're short on cash this month and then losing breaks and accidentally running over a 4-year old while trying to avoid hitting a busload of nuns.

    Three years doesn't seem like enough to me either, but I think it's appropriate that personally holding people hostage and raping them gets a heavier sentence than falsifying drug tests, more or less for the reasons you specify. I mean, I think white-collar crimes generally deserve much more vigorous punishment than they get generally, and this is just one example of that. But you run into a problem fairly quickly, which is that there's not that much space to be made between punishment types; all long prison terms are more or less the same, so it seems to me.

  52. Regular Guy says

    While I agree that three years was too light, I think the problem with the overall argument is that it ignores the "bell curve" aspect to these cases.

    Realistically, the "average" harm caused by the "average" kidnapping and/or rape is greater than the "average" harm caused by the "average" document falsification.

    Put another way, (on one end of the bell curve) it is possible for a government employee to falsify a document that created little actual harm. For example, they could have been too lazy to count the number of stamps used, and could have been off by 46 cents. I can't possibly envision any forcible kidnapping or rape having as minimal an impact.

    Because of the general differences in these crimes, the sentencing ranges are presumably different. And they should be. Is that fair in this particular case? From a result perspective – no. But is the solution to grant judges or prosecutors the ability to sentence all people who have fudged a document as severely as a kidnapper or rapist? Why, then, should we even have different sentencing ranges?

    A possible solution is to create more tiers of sentencing options based on the actual harm created by the fudged document. Until that happens, I am not offended that the sentencing frameworks were indeed different. That is because the crimes, generally speaking, are different. It's absurd to ignore this reality.

  53. xtmar says

    @Regular Guy

    False equivalence. Doing something that has a very high likelihood of putting somebody falsely in jail is in no way comparable to fudging a receipt for $4.00.

    However, even positing that what you say is true, the fact is that she didn't do this one or two times, but thousands of times. Because of that, even if we only punished her for ten or fifteen days for each infraction, her net sentence would still be orders of magnitude larger than it was.

  54. Mimi says

    And before her was Joyce "Black Magic" Gilchrist, whose allegedly falsified lab results led to 11 executions in Oklahoma.

    http://en.wikipedia.org/wiki/Joyce_Gilchrist

    And there's the FBI crime lab scandal, which could be involved who knows how many lab techs and falsified findings..Just how common is this , anyway? How many innocents have been framed and languish in prison or have even been executed?

    Here's a link to one article on the FBI lab troubles:

    http://www.huffingtonpost.com/radley-balko/a-massive-mess-of-forensi_b_2365141.html

  55. Regular Guy says

    @xtmar, you are missing an important concept. Yes, her actions are not the same as a person who fudges a 49 cent charge, but the crime is the same – fudging a document. (I use a non-specific term since I do not know the specifics of MA state law.)

    I agreed that the sentence was too light, and that is based on the multiplicity of charges that you mention – with the caveat that I don't know if any were barred by the statute of limitations.

  56. A. Nagy says

    @jb That's more just on the sliding scale of statist/libertarian/anarcist then right/left libertarian. Normally when I think right/left libertarian, left libertarians are more concerned with less government in social aspects, right libertarians are more concerned with less government in economics.

  57. Duvane says

    @scav re:malice v/s laziness

    My first thought, too, on seeing intentional false positives was that this was partially a case of maliciousness rather than just laziness. But given the nature of the test (positive vs negative, and they probably know what they're looking for in advance), and assuming that the lab retains the samples after testing, contaminating the sample and reporting a positive is slightly more work than just "dry labbing" (that term makes me almost physically ill) a negative, but one's tracks are covered if anyone goes back to reanalyze the samples later. The only way to cover one's tracks on a negative would be to destroy the original sample and replace it (assuming that's possible). Of course, the people submitting samples are expecting a positive, or they wouldn't send the sample, so returning all positives is going to raise fewer eyebrows than returning all negatives. And I'm betting that neither the law enforcement or the lab itself were sophisticated enough (or cared enough) to send blind samples through the system, like you would if ran a real lab that had to get the results right or go out of business.

  58. C. S. P. Schofield says

    "but if we didn't give government employees either explicit or implicit immunity from prosecution for their misdeeds, we'd be incapable of carrying out the core functions of government"

    So, there is no down side, per se.

    Personally, I think this twunt should be lined up with all the people she helped railroad, and given a 15 second start. And we should make her supervisors watch, and then tell the that if they let this happen again, they are next.

  59. Shane says

    @ketchup

    But what is the practical solution?

    To start off, limiting the size and scope of the government. In particular end the drug war. I know that people respond at a low level when that includes people being able to take heroin and crack without legal ramifications, but think about the alternative.

  60. Shane says

    @glasnost

    The fantasy here is the idea that raising the expense per-employee of the justice system to huge levels would conviently defund enforcement of all the laws you don't like while not affecting the enforcement of the laws you like.

    I don't think that would happen at all, and I don't think that was what Clark was saying. What he was saying was that the justice system would be forced prioritize because of resource scarcity. This is the same thing that you and I have to do everyday. Why not enforce discipline on government functions. It won't mean that I will get things that I don't like it means I will get less things I don't like.

  61. Shane says

    @Duvane

    My first thought, too, on seeing intentional false positives was that this was partially a case of maliciousness rather than just laziness

    Unless financially or socially positives are incentivised.

  62. Quiet Lurcker says

    Duvane —

    Of course, the people submitting samples are expecting a positive, or they wouldn't send the sample, …

    What happens in the case of either a) the person(s) doing the initial test got an equivocal result or b) the person(s) doing the initial test got a false positive or negative result (which does happen even in the lab; I know from personal experience)?

    If the sample goes off with an expected positive and it gets a negative instead, then isn't that a sign that something might be wrong with the case and it's time to look a bit further, maybe double check the facts?

    @Clark —

    Typically, there's a line or three of text to the effect of "By signing this piece of paper, I'm swearing I'm not lying" on most 'official' (with a pretty broad definition of that term – see your IRS form 1040 or the last employment application you submitted for example) paperwork, frequently with criminal penalties attached. Wouldn't that kind of thing apply here, especially since it was for use by a court?

  63. jb says

    @A. Nagy

    That's more just on the sliding scale of statist/libertarian/anarcist then right/left libertarian. Normally when I think right/left libertarian, left libertarians are more concerned with less government in social aspects, right libertarians are more concerned with less government in economics.

    Perhaps. I see the "left" (Liberals and left-libertarians) as equally committed to effective government that addresses societal injustices, but strongly disagreeing on the way to go about that, while the "right" (Conservatives and right-libertarians) as not particularly interested in using government to address societal injustices, but for vastly different reasons. Where both sides of libertarianism agree, and disagree with both liberals and conservatives, is in a strong skepticism that government intervention, as understood by most people and the entire government, will achieve its intended goals.

  64. A. Nagy says

    Yeah that seems about right, Another way I sorta look at it is
    Statist Left = Pro government (make all wrongs right though government)

    Statist Right = Pro corporation (I'm with ^^^ guys, just with a slightly different spin)

    Libertarian Left = Pro social freedom (People should be allowed to do what they want with their lives)

    Libertarian Right = Pro economic freedom (People should be allowed to do what they want with their money)

    It's certainly putting things in a box a bit too much, and just because your in another group doesn't mean you are anti government or anti freedom or whatever just that's not the general focus of the group.

  65. Duvane says

    @Quiet Lurcker

    If the sample goes off with an expected positive and it gets a negative instead, then isn't that a sign that something might be wrong with the case and it's time to look a bit further, maybe double check the facts?

    It absolutely should be; I was just being cynical about the likelihood of the lab's customers (whatever law enforcement is sending them samples) critically examining positive results. In other words, if all the results came back negative, they'd be pretty quick start asking questions, but if they all come back positive, not so much. Of course, if they cared about getting accurate results, they'd be sending blind positives and negatives through as a check. But why bother with that when if the lab gets it wrong a)someone else suffers and b)you can just point fingers at the lab to take whatever fall does occur?

    Having just glanced a little through the testimony linked in the Globe article, it sounds like what you describe did happen, and it sounds like very little came of any of the investigations. It sounds like when a sample had the "wrong" values, she would resubmit it for analysis and it would magically come out "right". The fact that they had samples that were supposed to contain, say, heroin, that would then initially show positive for, say, cocaine is a dead giveaway that there was contamination (intentional or not). The fact that these events were reported up the chain and nothing happened is absolutely appalling, and goes exactly to Clark's overall point about nobody really having responsibility. (I'm imagining Family Circus-style "Not Me" and "Ida Know" ghosts running all over this lab.)

  66. jb says

    A. Nagy,
    There are several issues with your taxonomy. For one, Tea party-style populism, which is anti-corporation, anti-government, and anti-labor all at once, is not easily represented on there. Second, you gloss over priorities. Left-libertarians value economic freedom,the statist left is fine with corporations except for the extreme socialist/communist fringe, the statist right is only generally pro-corporation (and really needs to be divided between governess-state social conservatives and big-business types), and right-libertarians value various personal freedoms highly as well.

    While each group's #1 priority is probably just as you say, the more interesting story is each group's lesser priorities, as they determine who allies with who.

    To further elucidate the left-libertarian perspective, by "economic freedom" left-libertarians tend not to mean "lower taxes" as much as right-libertarians do. Left-libertarians focus on burdensome regulations and barriers to entry in business, confusing red tape in interactions with bureaucracy, and the many ways in which large incumbent businesses use regulatory capture to achieve market power. If taxes need to be higher, or certain regulations tighter, in order to achieve a freer market (defined as one with less market power, more information and fewer information asymmetries, and fewer de facto and de jure restrictions on the right of contract), then so be it. Right-libertarians tend to be more focused on taxes and regulations in a broader sense.

    Presented a different way:
    Right-libertarians want lower taxes, their plan for getting them involves removing burdensome, expensive governmental interventions.
    Left-libertarians want to see burdensome, expensive governmental interventions be removed, with any savings going toward lower taxes.
    The statist right wants lower taxes, quite likes many burdensome, expensive governmental interventions, and can't be bothered to think about the inconsistency and long-term problems with that approach.
    The statist left likes burdensome, expensive governmental interventions, although it disagrees with the statist right on which ones are most worth imposing, and is willing to impose high taxes in order to fund said interventions.
    Then there are the people who actually want high taxes qua high taxes, but they don't have real power or coherence.

  67. Matt says

    @Clark

    Althought sometimes I waver on #2 because it reaks of treating humans for their instrumental value (ob: "Jackie Treehorn treats objects as women, man!"), instead of as ends unto themselves, which seems incompatible with Christianity to me.

    Does it make more sense to try and think of #2 as preventative deterrence, not that you're holding up those currently in jail pour encourager les autres (although there are some prisons that do so, e.g., bringing in troubled youth to meet with prisoners to show them that the gang lifestyle ain't all it's cracked up to be), but just as a general bogeyman – "don't do the crime, cuz hey, prison's a bad place!". Same as with Christianity – "don't sin, cuz Hell's mighty hot!".

  68. says

    @Matt

    @Clark

    Does it make more sense to try and think of #2 as preventative deterrence, not that you're holding up those currently in jail pour encourager les autres (although there are some prisons that do so, e.g., bringing in troubled youth to meet with prisoners to show them that the gang lifestyle ain't all it's cracked up to be), but just as a general bogeyman

    I don't see how this does not use the actual human beings in cages for their instrumental value. Perhaps I'm missing something.

    – "don't do the crime, cuz hey, prison's a bad place!". Same as with Christianity – "don't sin, cuz Hell's mighty hot!".

    A tangent:

    Certainly as a historical matter, Hell as been perceived as a burning place of torture, but I'm not convinced that that's accurate.

    Matthew 3:1-12

    In those days John the Baptist came, preaching in the wilderness…

    "I baptize you with[b] water for repentance. But after me comes one who is more powerful than I, whose sandals I am not worthy to carry. He will baptize you with[c] the Holy Spirit and fire. His winnowing fork is in his hand, and he will clear his threshing floor, gathering his wheat into the barn and burning up the chaff with unquenchable fire."

    Reading this analogy, I see that the good part of the plant, the wheat, is taken into the barn, and the chaff is not kept in a perpetually burning fire as torture, but merely expeditiously disposed of. So too do I think that Heaven is the preservation of what is good in us, and Hell is merely the lack of preservation. I've got a huge rant about this that leans heavily on Teilhard de Chardin, but I don't have time for it now.

  69. jdgalt says

    I don't buy a bit of that last sentence. People like her (and cops who misbehave) need to be punished more than civilians who commit crimes with the same direct ill effects, because they have abused a trust on which everyone is forced to rely. Ms. Dookhan must go on trial and must spend decades in prison, even if it takes a revolution to put her there.

    It's cases like hers which give the lie to the standard leftist argument that government agencies and their workers are inherently "unselfish" and therefore more to be trusted with sensitive judgment calls than private, for-profit companies. Private companies can be dragged into court. Good luck dragging Ms. Dookhan.

    No constitution is worth the paper it's written on unless it provides a way for each and every individual wronged to enforce justice on the person who did it — with no exceptions. And no government is worth having if it ever once thwarts that right.

  70. says

    @jdgalt

    I don't buy a bit of that last sentence.

    My sarcasm was too subtle; click the link in the last sentence.

    I feel I must add that it's cases like hers which give the lie to the standard leftist argument that government agencies and their workers are inherently "unselfish"

    Sure…as if "human nature" wasn't enough of an argument!

  71. says

    The aspect of this case that stuck in my craw was her lawyer's plea for a lenient sentence of just one year:

    He said Dookhan's husband had recently left her for another woman and that she had been racked with anxiety and guilt. She also lives in terror of being separated for a prolonged period from her disabled 7 year old son…

    I wonder how many of the people who were convicted as a result of her lies had spouses that left them? Or children they were separated from?

  72. Sami says

    The problem of the banality of evil is, in part, that it is easy for people to do evil without realising that they do evil.

    Although to be honest, I'd have less of a problem with this sort of thing if she just marked the samples clear. Faking positive drug tests does somewhat alter the character of her actions from "lazy/stressed/overworked" to "and also horrible".

    Not to state the obvious, or anything, but there is still a relevant difference between her and the other guy, in the magnitude of instances of crime.

    If I threw a bullet at your head, it would be annoying and hurt a little. If I threw a thousand bullets at your head, that would be a serious problem for you and cause you all sorts of pain, no doubt.

    However, it would be as nothing to the effect if I fired but a single bullet at your head from a gun.

    Or if I poked you in the chest with 1 Nm of force a thousand times, or poked you in the chest with a thousand Nm of force once… different, even if the additive effect is nominally equal.

  73. Malc. says

    One minor quibble: while 1,100 people who jailed certainly have a case that their convictions were "unsound" (to use a extremely appropriate British legal term for such situations), it does not follow that 1,100 were actually unjustly jailed, because in some proportion of the cases the fake lab results merely mimicked what real results would have shown. Obviously, every one of them should have their convictions quashed; not because they were innocent (although it seems that some certainly were), but because the state/commonwealth did not prove that were were guilty beyond a reasonable doubt.

    What this really shows is a calibration problem: if the lab systems are not subject to regular calibration i.e. by sending known samples and validating that the findings of the lab match the known content of the sample, then they cannot be trusted.

    At least part of the resulting mess can fairly be blamed on society, and in particular TV shows like CSI: Podunk, where the "scientific experts" are made out to be infallible. This leads to the sad fact that, while it's possible to impeach a state crime lab (cf O.J.Simpon's trial), it takes a lot of effort and money to hire experts, and in many cases once the lab results are in, the case gets settled by a plea agreement on the strength of what it's going to cost to fight.

    My straightforward solution: a policy to allocate funding for public defenders strictly on parity with funding for the prosecutors, including that of their investigators (Police, FBI, Postal Inspectors, etc.).

  74. A. Nagy says

    @jb

    It seems like we are mostly of the same thought process here just seeing it from a slightly different angle at least that is the feeling I'm getting. Yes there are more groups and the more you try to nail down what any group thinks the less people are actually within that group. The tea party for instance is a pretty new group that a whole bunch of people almost all on the right that are frusterated with X thing have jumped behind. I see the anti government/anti corporate thing, not sure where you are getting anti-labor unless you mean anti-union and by anti-union you mean right-to-work. I mean I wouldn't be surprised if their was some dumb law pushed by tea-party that actually attacked unions but in general most of them just want unions to not have forced membership.

  75. nlp says

    Without in any way, shape or form excusing her actions, the problems at the drug lab were not limited to Annie Dookhan's lies. There have been years of complaints about the slowness of the lab: some rape sample kits were not tested until after the statute of limitations had passed. The other chemists who questioned the high volume may have done so because they were being blamed for not matching her speed. I believe that much of the blame lies on the shoulders of the people in charge of the lab, and the Commonwealth of Massachusetts for not funding the lab properly.

    In terms of prisoners being released, many are now out. (And some are right back in). In some cases their sentences have been lightened, because the cocaine charge was only one of several crimes they were convicted of. Some were already out, and are suing for false imprisonment.

  76. Quiet Lurcker says

    Duvane —

    Of course, if they cared about getting accurate results, they'd be sending blind positives and negatives through as a check.

    This in reference to the cops/other law enforcement types. I've worked in a lab before, and I have known to question my own results, and double-check my own work in face of perceived wrong/abnormal result. Of course, I have this thing about doing right by everyone else, which requires of me that I get it right, or at least as close to right as I can manage, so the way I do things like that might be an outlier.

    If the cops can't/won't check the lab for performance – and don't get me started on third-party "certifications" – half or more of the time they're bogus (again, from personal experience at several companies) – then they're not living up to, if not the legal requirements (although an argument could be made in favor of that notion) then at least the moral requirements of their position in the law enforcement/justice system. Sort of in the spirit of 'let he who is without sin cast the first stone'.

  77. Jonathan says

    @Clark,

    Reading this analogy, I see that the good part of the plant, the wheat, is taken into the barn, and the chaff is not kept in a perpetually burning fire as torture, but merely expeditiously disposed of. So too do I think that Heaven is the preservation of what is good in us, and Hell is merely the lack of preservation. I've got a huge rant about this that leans heavily on Teilhard de Chardin, but I don't have time for it now.

    Stop reading The Watchtower! =)

    But srsly, I'd love to hear your de Chardin rant, and then I'm totally gonna come at you, bro. (Here's a hint: We have to make sure we account for the coherency of our being)

  78. ChicagoTom says

    If the cops can't/won't check the lab for performance – and don't get me started on third-party "certifications" – half or more of the time they're bogus (again, from personal experience at several companies)

    That can't be right. Every libertarian I know tells me 3rd party certifications from private entities is inherently superior than having a government body doing it.

    To hear them tell it, we don't need the FDA, USDA etc because 3rd party certifiers would do it better and at a lower cost and they would also be more accurate because they would want to protect their reputation.

  79. says

    If there is moral difference between malice and mere callous disregard for another, I doubt its relevance here. Both criminals did what they did to benefit themselves; I wouldn't bet that one had more desire than the other to inflict suffering for its own sake.

    scav: I'm charitable enough to prefer perverse incentive over malice as a motive. If the lab returns too many negatives, prosecutors will stop sending it business.

    xtmar: Market anarchist conceptions of law typically abolish the distinction between criminal and civil law. So the court sets money damages, and if the defendant can't pay then some prison operators say, "I'll pay if you'll toil in my prison for ‹time›; you know our reputation; here's our standard contract." (If the defendant is a Good Person who Made a Mistake, maybe someone will simply lend the money.) Well, plaintiffs or their agents will prosecute when the expected value of tort damages exceeds the expected cost including malfeasance damages. Are you saying there's a societal interest in prosecuting when the expected value of doing so is negative?

  80. says

    Our brains evolved in small tribes of hunter gatherers. Our brains tell us that fertile women should never be punished. Not for reals punished, at least.

    Citation? Or were you being sarcastic again?

    Modern hunter-gatherer societies vary tremendously in how they treat women, as well as how they treat members of their society who transgress in some way in general; even if one were to somehow set all the anthropology aside in favor of ad-hoc "this is how evolution works intuitively" logic, it doesn't really follow. Carrying capacity for a small band of hunter-gatherers is much lower than fertility is.

  81. says

    @jb,

    I would say that "left-libertarianism" and "right-libertarianism" differ in that the former is focused on positive liberty, while the latter is focused on the more classically-defined negative liberty.

    Which is why I don't really understand the label "left-libertarian."

    Clark describes himself as "culturally right-libertarian," but I am willing to wager he defends your freedom to, say, live in a doped-out, free-loving hippie commune, even if he himself wouldn't live there. [And perhaps I assume too much. Maybe Clark already lives in such an arrangement! Many of our 19th century religious utopian communities dabbled in drugs and free love. (End tangent.)]

    If we can agree that libertarianism is fundamentally built on the non-aggression principle, why do we need different flavors?

  82. jb says

    Not Claude,
    As a self-professed left-libertarian, I disagree. It is the modern statist left that is concerned with ensuring positive liberties. I agree with statist liberals that a situation where positive liberties are enjoyed by the large majority of people is a good thing (and perhaps I disagree with right-libertarians on that), but I disagree with statist liberals that such liberties can be ensured by government without the unintended consequences overwhelming the intended, if at all.

    The reason why we need different flavors is because I disagree with Clark in several deep and fundamental ways, and agree with him in some others. I believe that both of us are libertarians, and both are representative of many others who think like each of us, but there is no single term that accurately encompasses both of our worldviews. Restricting us to both be described as "libertarian" renders the term almost meaningless. It's the same reason why there are hundreds of different types of craft beer, even though 98% of what Americans drink is mass-market crap. I like Belgian session ale, my friend Bill likes IPAs, but since all craft beer is based on the 'beer should taste like more than heavily diluted piss' principle, why do we need different flavors?

  83. Quiet Lurcker says

    Chicago Tom —

    Worked QA/QC for a company manufacturing bottled water. Company was certified to BRC standards. The standard and examination was more centered on the paper-pushing than on the work performed and or actual compliance with the programs in place.

    Worked at a 2nd tier aerospace supplier, certified to ISO standards. Again, more emphasis on paper-pushing than on physical activities and or compliance with existing programs.

    Two companies, two different experiences. Granted, 2 samples do not a universe make, but practical experience elsewhere points to the analogy see smoke, expect fire.

  84. Alicia says

    "we do know that most rape victims in the US are men"

    Umm, what? Since when are 1 in 3 (or 4) men in the US raped?

  85. htom says

    Her sentence was far too light; the longest sentence imposed by those affected by her perjury would have been appropriate.

    Her supervisors (up through and including at least one layer of elected officials) should be on trial for subornation of her perjury through willful blindness. Some of them, I would hope, would be convicted.

    The damage they did together in damaging the public trust in the "justice system" will be exceedingly difficult to undo.

  86. says

    No. No there really isn't. She ACTIVELY did things that resulted in shattered lives. If I hire a hitman to kill someone then I am as guilty as the hitman who pulls the trigger. If anything, perhaps even moreso, for my premeditated, calculating, and more cowardly evil.

  87. says

    It's not a "sentiment", as in, an ill-thought out "conclusion" arising from imbalanced emotions. It is a reasoned and conscious response that arises from wanting a measure of justice, however crude, to be imposed, given the utterly shambolic situation in regard to justice on this planet. In a utopian ideal, reparation to the victims by the offender would be the norm and for certain crimes the death penalty seems perfectly appropriate to me where there is no doubt as to guilt, a situation far from the current one where prosecutors are more concerned with their win"stats" than justice.

  88. says

    @Clark
    @Zack

    Don't think we disagree in principle. In an IDEAL world the whole process of imprisonment, the relationship between law and justice, the importance of actual offender rehabilitation (an utterly laughable concept in the current paradigm) etc. Etc. Would all be radically different and I am even willing to bet that we all three would very likely agree on the way these points should be handled. The difference between the two of you and myself is (I think) that whilst we may share a relatively similar vision for what the ideal should be we probably differ quite a lot in two things: firstly, what the realistic way to get there is. I am constantly looking for a way that avoids violence to do so but am not yet convinced it is a possibility to avoid it entirely *within our lifetimes and that of our children* I continue to hope I am wrong on this and there is at least some evidence I may be, such as the steps discussed by the lady in this link: https://www.youtube.com/watch?v=4hgA9j-4dB0&feature=youtube_gdata_player
    Namely, use an asset based currency, instead of a debt based one, and refuse to take part in the wars the banksters want us to kill each other in, (see Syria recently and see Iran, coming soon to a theatre for WW3 near you soon).

    Secondly, in the time while WE ARE NOT THERE YET (to Utopia land where jails are places of honest re-education, not with electrodes and batons but with therapy and intelligence and discipline and victim reparations) to me, JUSTICE for victims, is more important than political correctness, the so-called "law" or even the need to get as dirty as the bad guys.
    This is not because I enjoy or have lurid revenge fantasies, but because it goes hand in hand with the unfortunately true saying that in order for evil to triumph all that is required is that good men do nothing.
    With regard to that woman, she destroyed countless lives. To my mind, in the Utopian world we all want, she would have to spend the rest of her natural life in a place that not only re-educates her, but makes her a productive member of society and that production would ALL go to the victims until her debt to them is fully paid of. In a JUST society, that debt will never be paid off in full in one human lifetime so she would die working to diminish it over decades.
    In our UNJUST society, I can only hope as much misery and trauma gets visited on her as required to give her the breakthrough experience of enlightenment that only what I refer to as karmic justice sometimes brings. And even if doesn't bring such enlightenment then there IS a measure of comfort for a victim in knowing the evil bitch is going through the same shit she caused them to go through.

    I hope I have made my position more clear and that whilst I respect your position differs from mine, that you might be interested in engaging further our difference in philosophies. I am certainly WILLING to learn a more civilised way, and I certainly BELIEVE in a more civilised way, but at current levels of bonobo activity, a big stick seems to me the only think that might actually GIVE some small measure of justice. I look forward to your rebuttals.

  89. says

    Totally flawed and false logic here. Clark paid taxes to avoid the brute force of government. If a man puts a gun to your head for your wallet then uses the cash he stole from you to buy and sell drugs to kids or buy a "rape kit" or a gun to use in a murder, you are certainly not an accessory! You really need to pick your straw men better and/or understand anarchist philosophy better. I suggest the essay Natural Law by Lysander Spooner. Only 8 pages or so printed and sums up all the law and all the politics an honest man will ever need perfectly.

  90. says

    @Alicia

    "we do know that most rape victims in the US are men"

    Umm, what? Since when are 1 in 3 (or 4) men in the US raped?

    Put the Even Ensler book down and step away from it with your hands up.

    Nowhere REMOTELY near 1 in 4 women are raped.

    Even the crazy statistics your referencing say that 1 in 4 women suffer rape or attempted rape and then they define that to include things like "using guilt to get sex".

    fbi.gov

    Rapes by force comprised 93.0 percent of reported rape offenses

    The rate of forcible rapes in 2011 was estimated at 52.7 per 100,000 female inhabitants.

    Even assuming that there was absolutely no correlation between who gets raped in one year and who gets raped in the next (which absolutely isn't true), and in fact, we assert that no woman ever gets raped twice, if we look at the above statistics we see that over a 50 year window a woman has a maximum chance of being raped of 2.6% in the US.

    Correct this to account for the fact that 7% of rapes aren't forcible, and it goes up to 2.83% of women in the US will get raped in that 50 year window.

    Compare this with the 10-20% of men in prison who get raped and you can see why women are a minority of rape victims in the US.

  91. says

    My view is that: 1. Revenge is a perfectly natural, reasonable and just concept. Why anyone thinks different is as much a mystery to me as to why many people have serious issues around another perfectly natural thing: sex.
    2. The ONLY reasonable option under which revenge may become unnecessary and/or contemptible would be one in which recourse to true justice, victim reparations and criminal re-habilitation was in place and functioning efficiently, effectively and quickly. I don't know which planet you are beaming your comments in from, but here on Earth we are absolutely nowhere near that point.

  92. says

    @ChicagoTom

    To hear [ libertarians ] tell it, we don't need the FDA, USDA etc because 3rd party certifiers would do it better

    What is "it" ? Block life saving medicines because of small perceived risks and the belief that adults should not be free to make their own decisions?

    No, I don't think that free market certifiers would do as good a job as government does.

  93. Matt says

    @Clark

    I don't see how this does not use the actual human beings in cages for their instrumental value. Perhaps I'm missing something.

    Well, I agree, I was kinda splitting some hairs before, it was just one of my first reactions to it – hence the Hell analogy, since one can't definitively point to certain deceased persons and say "yep, look at them there in Hell, suffering", it's an abstract threat, which one could also make about going to prison. Just that in practical terms, that abstract threat of how bad prison is ("small room! restricted movement! bad food!" etc) is reinforced by being able to see real, concrete examples of what happens, by doing no more than watching "Lockup" on MSNBC, or similar.

  94. xtmar says

    @Anton Sherwood

    The problem that I'm pointing out is that there is a difference between a failed, but good faith, prosecution, and a bad-faith malicious one. That is to say, based on what the prosecutor, using due dilligence, knows at the time of prosecution, he may reasonably believe that his target is guilty, and still lose, either because new evidence comes to light, the jury disagrees with him, or he gets outlawyered.

    As a society, if we're willing to give the jury the right to try matters of fact, I don't know if it's in societies interest to punish prosecutors who act in good faith, but still lose, for any of a variety of reasons. Obviously, it is in our interest to punish government (and non-government) actors who act in bad faith. However, I think that there needs to be a way to decide between somebody who is acquitted because they're probably guilty, but not beyond a reasonable doubt, and people who are clearly being railroaded or scapegoated.

    I can see the argument that we should only prosecute those cases where the prosecution is absolutely certain to win, but I think on a utilitarian basis that can get out of hand by skewing the incentives towards ignoring criminals who make any attempt to give themselves plausible deniability, and switch the focus only to crimes which favor the government by a lot, and are hard to fight. In other words, I think you would end up with the prosecutors only going after civil forfeiture cases and really dumb criminals who've already made something like a confession on video or other social media. For other crimes, I think risk aversion will make them less willing to go forwards, and I think that is a bad result from a social standpoint.

    The big problem that I see is that raw expected value isn't a good predictor of (rational) behavior when the downsides are very large, because of people's tendency towards loss aversion. Perhaps you could mitigate this by pooling, but then you would end up with a quasi-government in which the prosecutors don't face individual sanctions, but only sanctions against their insurer/quasi-governmental body.

    Also, about cash punishments, presumably this would have to be scaled by income or wealth or something? Otherwise, it would be too easy for the wealthy (or a syndicate of the wealthy), to hire somebody to commit a crime and then pay his way out, which wouldn't be available to the less well off. An interesting concept, to be sure, but I think it has serious implementation problems.

  95. AlphaCentauri says

    The statistics I've heard is 1 in 6 women American experience rape at some time in their lives. That includes those who are victims of child sexual abuse.

    http://www.911rape.org/facts-quotes/statistics

    Even if you use the figure of 20% of men in prison are raped, it still doesn't exceed the number of women, since most men will never be incarcerated. Even if you look at the highest risk group, Black males, and projected that to all American males, only 1 in 6 will be incarcerated during his life. 20% of that obvious overestimate would still be less than the number of women raped. Counting sexual abuse against boys would up that number, but as with women, there is a lot of overlap between being victimized as a child and being incarcerated or raped as an adult.

    (The source I linked says that the risk for men is 1 in 33, by the way.)

  96. En Passant says

    I read this entire thread, and the entire file of police reports referenced.

    I cannot defend the practices of which Ms. Dookhan was accused, and to which she readily admitted. I do think that a number of other actors should have been prosecuted, but they were never mentioned by name in the police reports.

    These were the police officers and ADAs who over the years willfully violated both law and lab protocol by communicating directly with Ms. Dookhan about various samples, tests and results. She took the fall for them.

    She was both completely forthcoming about her conduct in the police interviews, and I believe genuinely remorseful for her conduct.

    I think she was genuinely trying perform as much work as possible in order to be perceived as doing her job well. She was doing analyses at about twice the rate of the second highest performer in the lab.

    She very obviously is of a personality that seeks to please those she perceives as superiors in the workplace. She also was under extreme financial and time management pressure because of a disabled child.

    Yet her crimes had no possibility of direct financial gain such as a bribe. She was simply being the super-performer what she thought her superiors and the lab's law enforcement clientele demanded.

    I think she was seduced by the ADAs and police who contacted her. I think they persuaded her to believe that by pleasing them she would be perceived as excellent at her job.

    She committed wrongs. But she did not do so without advice and encouragement from the very persons who are entrusted to police and prosecute wrongdoing.

    I think that every person convicted of any drug offense based on her lab work or testimony should have their convictions overturned and expunged entirely on motion by the state. They should also be awarded very high damages for their false convictions and incarceration. That much is only decent and just.

    I also think that every police officer and ADA who contacted Ms. Dookhan during her tenure at the lab in violation of protocol should be charged and tried for evidence tampering, or solicitation, or accessory to evidence tampering. That would be minimal justice.

    But that won't happen, because this is just another case of corrupt drug warriors finding an easy and disposable victim to advance their personal narcissistic and sociopathic ambitions for power and control. They are the real criminals in the case.

  97. says

    @AlphaCentauri

    The statistics I've heard is 1 in 6 women American experience rape at some time in their lives. That includes those who are victims of child sexual abuse.

    http://www.911rape.org/facts-quotes/statistics

    I've linked to FBI crime statistics about actual rapes in 2011.

    You've linked to a non-profit that references, but does not quote, statistics from 1998, and which mixes "attempted rape" and "completed rape".

    I think my numbers are much more solid than yours.

  98. Jonathan says

    @Clark,

    I've linked to FBI crime statistics about actual rapes in 2011.

    You've linked to a non-profit…

    I hear ya brother. Everyone knows the government is more reliable and trustworthy than private institutions!! =p

    But in seriousness, I think the fbi figures reflect *reported* rapes. Presumably a significant percentage of rapes and attempted rapes go unreported, but it's up for debate what that number really is.

  99. AlphaCentauri says

    The problem with crime statistics is that most rapes aren't reported, and of those that are, the police fail to classify many of them as rapes to avoid the hassle and to avoid the expense of processing rape kits. (There was a huge scandal about pretty violent sexual assaults being routinely classified as "investigate persons" by the Philadelphia police, for instance.) So there are limitations to FBI data.

    The study I linked was random confidential interviews with 8000 men and 8000 women.

    The questions asked in the survey were as follows:

    [Female respondents only] Has a man or boy ever made you have sex by using force or threatening to harm you or someone close to you? Just so there is no mistake, by sex, we mean putting a penis in your vagina.

    Has anyone, male or female, ever made you have oral sex by using force or threat of force? Just so there is no mistake, by oral sex we mean that a man or boy put his penis in your mouth or someone, male or female, penetrated your vagina or anus with their mouth.

    Has anyone ever made you have anal sex by using force or threat of harm? Just so there is no mistake, by anal sex we mean that a man or boy put his penis in your anus.

    Has anyone, male or female, ever put fingers or objects in your vagina or anus against your will or by using force or threats?

    Has anyone, male or female, ever attempted to make you have vaginal, oral, or anal sex against your, will but intercourse or penetration did not occur?

    "Using guilt to get sex" wasn't part of the questions. (You're turning into a cultural Catholic, Clark, if you see using guilt as powerful enough to count as forcible rape.) ;)

    That's not to discount the fact that prison rape is inexcusable, and jokes about prison rape should be called out the way Zack did, each and every time, until people stop accepting it as anything other than government-sanctioned torture (not to mention a gross failure of prison security).

    https://www.ncjrs.gov/pdffiles1/nij/183781.pdf

  100. Zazlo says

    @Clark

    But for prison rape, you simply said "10-20%" without any statistics. But regardless – I think the only answer here is "Insufficient Data." Rapes are under-reported in and out of prison. There is also the spectrum of forcible rape, induced rape, molestation, etc. If anyone thinks rape is an important subject, then they oughtn't make assertions about which sex gets raped more when we're still a long way from really accurate quantification. I've looked at a number of reports, and the numbers are all over the place, because they have to estimate based on how under-reported they think it is, and how they define rape. My guess is, overall, in America, it's near enough to even as far as we can tell [it could be roughly 50/50, it could be 60/40 either way]. We can say that outside of prison, females have a higher chance of being raped, and inside prison, males have a higher chance.

    But anyone really hung up on gender with regard to rape statistics, if you're that into it, then here's a solid one:

    Both in and out of prison, the majority of rapes are performed by men.

    Everyone happy?

  101. nlp says

    I've linked to FBI crime statistics about actual rapes in 2011.

    But Clark, you're still not seeing the problem you created. You are saying 6% of women vs 10% of men are victims of rape. But those aren't in the same category, because the article specified men in prison which is a small subset of men in the general population, and women in general.

    I also read your "Let me Google that" and read the articles you linked, and not one of them said that more men are raped. I believe you misconstrued the information about prison rapes as opposed to rape in the general population. (It also appears that you have forgotten that women in prison are raped).

    I'm sorry, but your figures just don't add up. If you can explain why there are more men in prison than there are women in general, I will accept your theory.

  102. Marconi Darwin says

    http://www.bjs.gov/content/pub/pdf/svpjri1112.pdf says

    The estimated number of prison and jail inmates experiencing sexual victimization totaled 80,600 (or 4.0% of all prison inmates and 3.2% of jail inmates nationwide)

    includes males and females, rapes and other sexual offenses. Article is not clear on whether these were determined to be actual rapes or just reported as rapes, which is a distinction that is being made for the fbi.gov site by Clark on the stats he culls from there. Nor does it characterize what percent of actual rapes are reported, or how under-reported rape is. It does say this:

    There were an estimated 83,425 forcible rapes reported to law enforcement in 2011

    Even being lenient with the former, and strict with the latter, I do not see the numbers that affirm that most rape victims are men.

  103. DCX2 says

    @Regular Guy Yes, her actions are not the same as a person who fudges a 49 cent charge, but the crime is the same – fudging a document.

    Let's say you stole a car and I stole a pack of bubble gum. Did we not both commit the same crime?

Trackbacks