Justice, Compassion, and the Dreamers

DACA controversy reveals conflict between blind justice and broad compassion

Fresno Bee, September 8, 2017

The reconsideration of DACA presents an example of the conflict between justice and compassion. It also shows us the conflict between a narrow conception of our obligations and a broader point of view.

Justice requires impartial application of rules. The goddess of justice is blind. She administers law without considering the identity of those who receive her decisions. Justice is a goddess of the public sphere. She demands that we extend moral concern universally, fairly, and without exception.

Compassion operates differently. The goddess of compassion opens her eyes and her arms. She attends to people’s concrete situations, making exceptions for the disabled, the displaced and the disadvantaged. The motherly goddess of home and hospitality focuses on individual identity and relations of care.

Compassion and justice disagree whenever there is a conflict between mercy and rule-following. Justice requires equal treatment and unbiased judgment. Compassion makes exceptions for special needs and mitigating circumstances.

The DACA debate asks whether we should extend compassion to the children of immigrants who did not knowingly violate the law when their parents brought them here. Justice may ignore this fact and simply apply a rule that says if you are not here legally, you must leave. Compassion begs us to consider that these young people have no other home to return to and bear no responsibility for their predicament.

President Trump’s statement about DACA uses moral language. But he prioritizes compassion for Americans, saying, “We must also have heart and compassion for unemployed, struggling, and forgotten Americans.” He admits there is something unfair about punishing children for the actions of their parents. But he said that fairness for American citizens was his first priority. He explained, “Before we ask what is fair to illegal immigrants, we must also ask what is fair to American families, students, taxpayers and job seekers.”

Trumpian morality applies compassion and justice in a limited nationalistic way. This fits with the president’s America first agenda.

Moralists have often criticized this kind of nationalism. The goddesses of justice and compassion are not national deities. Morality universalizes.

Justice and compassion extend across borders. The goddess of justice is blind even to national identity claims. And the “mother of exiles” – as the Statue of Liberty has been called – opens her arms to the world’s homeless and huddled masses, yearning to breathe free.

ANY RESOLUTION WILL REQUIRE US TO THINK CAREFULLY ABOUT THE NATURE OF LAW AND MORALITY.
IT WILL ALSO REQUIRE US TO REFLECT ON WHAT IT MEANS TO BE AN AMERICAN.

It is not surprising that American religious leaders responded with dismay to Trump’s announcement. The U.S. Conference of Catholic Bishops condemned Trump’s decision. The bishops wrote, “Today’s actions represent a heartbreaking moment in our history that shows the absence of mercy and good will, and a short-sighted vision for the future.”

Mercy and good will are the heart of the ethics of compassion. The bishops extend this globally, applying the commandment to love one’s neighbor in a universal direction.

Trump and his supporters reject this view of morality. They also discount the religious critique of this policy. Steve Bannon, Trump’s former chief strategist, said that limiting immigration was a matter of “national sovereignty.” He also said that the Catholic church has “an economic interest in unlimited immigration,” suggesting that the church wants immigrants to fill pews and coffers.

The president and his supporters have also claimed that Obama’s Deferred Action for Childhood Arrivals program was unconstitutional. They want Congress to take action. But hundreds of law professors, governors, and other legal and political leaders have argued that DACA is constitutional.

The constitutional question is related to the moral question. Does our legal system require strict impartiality and blind justice or does it permit discretion and compassion? Is the Constitution a system that puts America first and focuses only on questions of national sovereignty? Or are there values in our constitutional system that point in a more cosmopolitan direction?

These are not easy questions to answer. We disagree about religion, morality, and the Constitution itself. These conflicts run so deep that they may never be resolved.

But any resolution will require us to think carefully about the nature of law and morality. It will also require us to reflect on what it means to be an American.

http://www.fresnobee.com/article172036532.html

Justice, Mercy, and the Death Penalty

Ballot offers choice between justice and mercy

   Andrew Fiala

Fresno Bee 2012-10-06

Proposition 34 aims to repeal the death penalty in California, while replacing it with life imprisonment without parole.

Those arguing in favor of Prop. 34 claim that abolishing the death penalty will save money which can be used to pursue criminals. The election booklet clarifies this focus on law enforcement by saying, “we cannot let brutal killers evade justice.” The argument also claims that abolishing the death penalty will ensure that innocent people are not executed.

Opponents of Prop. 34 argue that without the death penalty, murderers would indeed evade justice. That argument claims, “Proposition 34 lets serial killers, cop killers, child killers, and those who kill the elderly, escape justice.” The argument then describes a number of cruel and brutal murders.

This points toward some deep moral issues.

Justice appears to require an equivalence between crime and punishment. The retributivist idea of “eye for eye, life for a life” may have developed as a way of restraining the desire for revenge. Consider, for example, the ancient Greek story of Achilles. When his friend was killed, Achilles went on a rampage, slaughtering every Trojan he could find. Achilles defiled the body of his friend’s killer and ritually murdered a dozen Trojan prisoners. From the standpoint of “life for life,” Achilles’ revenge was unjust.

The “life for life” ideal may establish a duty to execute. Immanuel Kant once argued that even if society were to collapse and the prisons were to be dismantled, we would still have a moral obligation to kill every murderer awaiting execution. For Kant, we have an obligation to the murder victim — and to the murderer himself. People should be given what they deserve. If murderers deserve to be killed, we ought to deliver justice, even if it is inconvenient or expensive.

An alternative to retributivism is an ethic of mercy. When we show mercy, we give people less than what they deserve, perhaps because we feel compassion to them. The ethic of mercy is associated with Christianity, with Jesus recommending that we “turn the other cheek” rather than taking an “eye for an eye.” The Catholic Bishops of California have argued in support of Prop. 34, connecting it with a larger “pro-life” view. The California Catholic Conference website explains: “we consistently proclaim the intrinsic worth and the God-given dignity of all human life, whether innocent or guilty.” They claim that if society can be protected from violence through the use of life imprisonment, this is preferable to killing the murderer.

This points us toward the question of protecting society and the deterrent effect. The question of deterrence is a complex one, depending on a variety of psychological and social factors. Are murderers rational? Do they value their own lives enough to engage in cost-benefit analysis, weighing the risk of punishment before they engage in their crimes? There is no proof that the death penalty, as currently employed, has a deterrent effect on a murderer.

One reason for this is the infrequent use of the death penalty. The November election book explains that since 1978 about 900 people have been sentenced to death. But only 14 have been executed. When you are more likely to die on death row of natural causes than to be executed, there is not much reason to fear a death sentence.

If we really want to deter crime, we may need swifter and more certain system of execution. But opponents will argue that this could lead us to execute some innocent people, who are protected by the lengthy appeals process. For deterrence to work, we might want to return to public executions–public hangings or the guillotine. The spectacle of a brutal execution may in fact scare people away from crime. But our current practice emphasizes the painless killing of lethal injection.

This brings us back to the question of justice and mercy. We no longer cut off criminal’s heads or hang them in public. Why not? Perhaps we are simply squeamish about doing what justice requires. Maybe we just don’t like to see blood — even when we believe that it is justly spilled. Or perhaps we are convinced that mercy and compassion are important values. We’ll see whether justice or mercy wins out in the November election.