Social Justice — Kantian Paradigm
The United States Supreme Court made a judgment in 1976 to allow the fifty states to reinstate capital punishment if they wish to. The state that has put the most convicted criminals to death is Texas. A New York Times article in October, 2011, points out that in his 11 years as Texas Governor, Rick Perry — a candidate in the Republican Party for president of the United States — there have been 236 people put to death through capital punishment. Although the governors in Texas do not have a firsthand role vis-a-vis decisions about who dies in Texas’ capital punishment cases, Perry made one very controversial decision in 2004. He refused to commute the death penalty for a man that was diagnosed with paranoid schizophrenia, even after the parole board (a very conservative group of hard-liners) voted “unexpectedly to commute” Kelsey Patterson’s death sentence (Sontag, 2011).
In fact the U.S. Supreme Court has banned the execution of mentally retarded, Sontag explains in the article, and certainly serious paranoid schizophrenia is a form of retardation. The jury in fact ruled Patterson incompetent to stand trial. So why did Perry authorize the killing of a man who had to be gagged with duct tape in the courtroom because he was wildly out of control.
The Kantian Paradigm in this case is interesting because Immanuel Kant believed that certain kinds of actions (being a liar, murdering someone, stealing from someone) was prohibited, and that stood even in instances where the action might bring about “more happiness than the alternative” (Sacramento State University) (csus.edu).
If killing is wrong, then Rick Perry violated Kantian ethics. Yes, Patterson killed two people that got him on death row to begin with, but he is not a sane person, and cannot be judged along with others who commit heinous crimes but are ruled fit to stand trial. Kant argued that a person’s acts — are they good or evil acts — depends not on the consequences of the actions but rather on the motivation of the actions. What caused Rick Perry to decide to put a severely mentally disabled person to death — what were his motivations in doing so? There could be no doubt that Patterson was incompetent mentally. He in fact lived in an “elaborate delusional universe,” Sontag writes in the Times. Patterson believed that some kind of remote control device had been implanted in his body when he was 6 years old, and that “…his name had been inscribed in a registry of ‘hell pledges’ kept behind the counter of a local store, Cavender’s Boot City” (Sontag, p. 5).
In the Kantian Paradigm, the “Formula of Universal Law” states that one should act only on that maxim through which you can at the same time will that it should become a universal law [of nature].” It seems unlikely that putting to death a severely disturbed, mentally disabled person is the kind of activity that any responsible person would want to become a universal law. If that were to become a universal law, mercenaries could justify going into mental hospitals and killing all those who are mentally disabled.
For Kant, the moral worth of an action can only be determined by examining the motivation of the action. In Perry’s case, his rhetoric during various Republican debates seems to indicate he is motivated by his own need to seem like a tough governor, a hard line far right wing attitude that he believes will get him votes from conservatives like the “Tea Party” group. He stated in a debate in Simi Valley, California: “In the state of Texas, if you come into our state, and you kill one of our children, you kill a police officer…you will face the ultimate justice in the state of Texas, and that is, you will be executed” (Sontag, p. 3). Perry more accurately could have added, “whether you are mental stable or severely mentally handicapped you will be put to death if you kill someone in Texas.” Of course if Perry denied that he had put a man to death that was mentally incompetent, that would be a lie, and Kant’s view was if a person lies, that person is saying it is always permissible to lie, for anyone, anywhere, for any reason.
Law & Social Justice — Conflict Theory Paradigm
Without going deeply into the conflict theory it can be said regarding the basic concept of the conflict theory that Rick Perry fits quite well with reference to his callus decision to put to death a man that is clearly incompetent. That is, the criminal justice system favors the rich, the powerful, and social elites, according to Florida State University (fsu.edu). The policies devised by the powerful — politically powerful in this context — keep the poor and those that don’t have much in the way of social resources from upsetting those that do have social resources.
In conflict theory legal rights of less fortunate people can easily be ignored, because the poor don’t have high-priced lawyers to assure justice under the constitution. It does seem true that the “little guy” — people without means and lacking political clout — gets punished very severely for petty crimes (pushing drugs can get you 10 years in federal prison) while some business crimes are not treated so harshly. An interesting example of this paradox is pointed out in Psychology Today (Barber, 2010).
The little guy in this case, the person that conflict theory claims always gets the short end of the stick, was the sucker in the most recent financial meltdown on Wall Street and across the nation. Banks used “fraudulent loan vehicles that were designed to make mortgage holders default,” Barbara writes. Banks then bundled up junk mortgages into “investment grade” bonds with the “collusion of corrupt rating agencies.” This was a gamble on the part of Wall Street and bankers across the country which led to the loss of household wealth, the recession worldwide, the loss of “tens of millions of jobs” and yet, Barber correctly states, “no successful charges have been brought against the banks or Wall Street firms who precipitated the collapse.”
And who got punished in this financial mess? The little guys, the homeowners who had to foreclose, the workers who lost their jobs due to the recession caused by Wall Street. And on top of it, the federal government bailed out the banks that had cheated on their customers. From the Marxist perspective — from which conflict theory is largely derived — when modern capitalist societies are controlled by a few (bourgeoisies) that control production, banks, and the technologies, everyone else is “reduced to the lot of being wage laborers.” That isn’t to say that Patterson is one of those unfortunate souls that got burned because of banks’ arrogance and immoral / unethical manipulation of home loans.
However, the conflict theory paradigm fits Perry perfectly; he is the elite power person as a politician, which shows in the fact that he appointed over 900 of his top political campaign donors — and some of their spouses — to government posts in Texas, according to reports. As recently as August, 2011, Perry appointed Dan Friedkin, who is chairman and CEO of the Friedkin Group, to become the head of the Texas Parks and Wildlife Commission. The Friedkin family (including Dan and his father Thomas) have contributed more than $700,000 Perry’s Texas state campaign organization called “Texans for Rick Perry” (Murphy, et al., 2011).
The “radical criminology” branch of the conflict theory holds that the powerless will be monitored very closely while the rich and politically powerful seem to get away with unethical behaviors in a routine manner. Federal law limits the amount of money that a candidate can receive, but Texas does not limit the amount of money that an individual may give to a “nonjudicial candidate,” Murphy explains. Perry in fact hands out “tax breaks, contracts and appointments to his strongest supporters and the businesses they own,” Murphy explains. Craig Holman, with the consumer watchdog organization “Public Citizen,” calls Perry’s political activities “pay-to-play politics at its worst” (Murphy). In addition to putting mentally disabled men to death, Perry keeps his presidential hopes alive by receiving cash and doling out government favors. If he were to be elected, and that’s a long shot, one can only imagine all the federal power he would have to give appointments in turn for cash contributions.
Law & Social Justice — Rawlsianism Paradigm
Rodney G. Peffer, professor in the Department of Philosophy at the University of San Diego, offers a view of Rawlsianism that can be linked quite seamlessly with the Rick Perry article both in Perry’s membership in the elite political money genre, and in Perry’s decision to put a mentally deranged person to death through capital punishment.
Social and economic inequalities are to be justified “if and only if they benefit the least advantaged consistent with the just savings principle,” Peffer explains. Further, the physical well-being of everyone should be respected and there should be a guarantee that a “minimum level of material well-being, including basic [human needs], must be met by society, Peffer posits, explaining his view of Rawlsianism. The functions of a human being are important to respect, and basic liberties including: freedom of speech, assembly, thought, movement and other rights should be respected, Peffer continues.
Moreover, freedom from arbitrary arrest and seizure should be the rule of law. These are items that are written into the U.S. Constitution, so they should be familiar to all educated Americans as well. First of all, what about freedom from arbitrary governmental decisions to put a man to death who is delusional? And did the social inequalities benefit the least advantaged in the case of Patterson? Not at all. The social inequalities thanks to Perry — who has a way of rewarding those that give him hundreds of thousands of dollars to be a politician, but looks the other way when a delusional handicapped person is about to be killed legally — are looming very large. And yet Perry continues to campaign as though he is truly qualified to become president of the United States, when there are very serious questions related to his abilities, to his brand of politics, to his payoffs for the campaign dollars he receives.
Due process is part of the Rawlsianism paradigm. Did Patterson receive due process? In spite of the U.S. Supreme Court’s ruling that mentally disabled persons are not to be put to death in any state, Perry turned the other way and apparently needed to appease the conservatives that put him in office and pay him handsomely for his brand of politics. What is due process?
According to the U.S. Constitution, due process refers to how laws are enforced, and why they are enforced. It applies to immigrants that are undocumented, it refers to citizens that vote, to corporations, and it should have applied to Patterson, who while being severely disabled mentally, is still (was still) a citizen. In the 5th Amendment to the Constitution, due process alludes to the federal government and the courts of the government along with the agencies of the government. In the 14th Amendment to the Constitution, due process is protected in regards to state governments and agencies and courts.
This is where Texas comes into the picture. When an unreasonable law is passed, or a law is disobeyed (as it was in the case of Perry allowing Patterson to be put to death), due process makes that ruling unconstitutional. In fact in the Roe v. Wade abortion decision the High Court ruled the Texas law violated due process that in the first trimester, it is unreasonable for the state of Texas to interfere with a woman’s right to an abortion.
Rawlsianism also involves the good of self-respect. And how can a state in the U.S. have a sense of self-respect when its governor pockets hundreds of thousands of dollars from his political contributors — in return for plum government positions that help the elite and the rich and the powerful — to further his political career, and on the other hand authorize the death of a man who is clearly disabled mentally? The legacy of Rick Perry has not been written as of yet regarding his desire for the highest office in the land, but it would seem a long shot. Maybe while he is fully aware he won’t be elected, he sees personal profit and prestige in the fact that he ran for office. He is also eligible for the basic liberties that are part of Rawlsianism — that is, the freedom to run for “and hold political office” and the right to “free political speech…”
Law & Social Justice — Libertarianism Paradigm
Since Libertarianism, among other things, refers to a basic moral principle, and relates to the moral duties that humans owe to others, an alert reader can see this raises a question about Rick Perry’s moral decision to pull the trigger on a mentally disabled person. The Stanford Encyclopedia of Philosophy explains that libertarianism opposes laws that restrict private sexual relationships between adults, and opposes laws that restrict the person use of drugs, so it seems to be a progressive movement. The Libertarian Party however boils it down to a more practical philosophy. People are free to do as they choose, as long as others are not harmed.
And so governor Perry was free to do as he believed he had the right to do, and basically handed Patterson the death sentence. But wait, Libertarianism says as long as “you don’t harm the person and property of others,” and in this case there was harm done to a human being, albeit that human was not in possession of all his faculties. Liberals are libertarians on social issues and conservatives cling to libertarianism on economic issues.
Respecting the rights and property of others is key to libertarianism, and while this paper is not supposed to be engaged in defining the paradigms — just relating them to the article in question from the New York Times — the Stanford definition leads to additional links with the issue of Rick Perry. Stanford insists that libertarianism can be advocated as “a full theory of moral permissibility, but more often it is advocated as a theory of justice. That theory of justice is in two parts. One, humans have moral duties that are owed to our communities, our neighborhoods, our families. And two justice is related to the “morally enforceable duties” that all humans have. What was Perry’s moral duty when it came to a man on death row who actually believed that some space alien planted a machine inside of him and controls him?
In the New York Times article Jeff Blackburn, who is chief counsel of the Innocence Project of Texas (this group advocates for prisoners that are wrongfully accused), says that Perry approaches criminal justice issues like a lay person instead of a judge or prosecutor. In that sense, Perry stays open-minded and, Blackburn asserts, “willing to embarrass the system, unless of course, it involves the death penalty” (Sontag, p. 2). When it comes to the death penalty, “Rick Perry has a profound mental block,” said Blackburn. “The death penalty is part of our fine state’s religion; it’s somewhere up there with football. To oppose or weaken it would be like playing with dynamite, and Rick Perry, a quintessentially political person, is not going to blow himself up” (Sontag, p. 2).
Part of Libertarianism that resonates with people is that it stands for the absence of forcible interference (didn’t Perry forcibly interfere with a High Court ruling?) with the rights of others. And it should be reported in this paper what Perry said when he explained why he rejected clemency in upholding the execution of Patterson; “No one can guarantee this defendant would not be freed to commit other crimes were his sentence commuted” (Sontag, p. 2). That is a patently absurd statement to make, given that Patterson would not become eligible for parole under Texas law until he was 74. It is not like allowing him to serve a life sentence in some institution was going to allow him to be back on the streets. Libertarianism addresses moral permissibility, and justice, and moral duties; and on all of those counts Perry can be counted as having either avoided or violated the tenets of the paradigm.
How can a man who has been elected three times as governor of Texas make statements that are so off base when trying to justify putting Patterson to death. This is also a governor that interfered with the commission created by the legislature, a commission that looked into the execution of Cameron Todd Willingham. Perry replaced the chairman of the commission with a prosecutor who delayed the investigation for over a year, Sontag writes (p. 3). Willingham was accused of complicity in the deaths of his three daughters in a house fire; but there was a last minute report from a respected arson expert that “cast doubt on” Willingham’s guilt. Perry had Willingham executed anyway, and again, delayed the investigation into the Willingham issue by inserting his own political crony into the commission. He had the liberty to do that, under Libertarianism, but he did not have the moral right to do it.
Law & Social Justice — Utilitarianism Paradigm
The concept of utilitarianism is that morality relates to the maximization of utility for all parties that are affected by a given decision. What is considered decision that can create or offer the “greatest good” is the one that should prevail. Did Rick Perry share the greatest good among the greatest number of people in his decisions?
First of all, Perry vetoed a bill passed by the Texas legislature that would prohibit the execution of mentally disabled people. That opened the door for him to put Patterson to death. Secondly, he basically decided he was doing the greatest good for society by having Patterson executed. Thirdly, when he refused to delay the execution of Willingham — notwithstanding the fact that a reputable arson expert cast doubts on whether Willingham in fact set the fire on the house where his daughters died.
What was the utility in Perry firing the chair of the commission the legislature set up to investigate the situation with Willingham? Was there any utility? Other than his own twisted political / ideological perspective that delaying an execution shows a weakness of political will, what was the point, the utility in his actions? Other than the need he saw to insert his own crony into that commission, was there any moral reason for his action? Hardly.
“Actions are right to the degree that they tend to promote the greatest good for the greatest number,” according to John Stuart Mill. In Mill’s argumentative style (“General Remarks”) in discussing right and wrong is applicable here in the Texas situation with Perry. Neither “…thinkers nor mankind at large” seem close to being of one mind on just what is right and what is wrong, Mill wrote in Chapter 1 of Utilitarianism.
But in Rick Perry’s world, right and wrong hinge on how it makes him look politically, and whether or not those that contribute money to his campaigns. When Patterson’s attorney Gary Hart pointed out that Patterson would never have killed the two women he killed if the Texas mental health system had not set him free after “previous assaults and hospitalizations.” And so the state of Texas, according to Hart, shared in the accountability vis-a-vis Patterson’s violent attacks on those women. He should have been confined to a mental ward because it was clear for anyone to see that he was delusional.
On the day before Patterson was to be executed, Sontag continues in the New York Times newspaper article, the pardons board voted (by Fax) 5-1 in favor of commuting Patterson’s sentence. Five to one they voted, and that was the same board that had been appointed by Rick Perry. John Stuart Mill of course was right in saying that right and wrong was still a question to be determined, that no one really had a full and thorough explanation for what is right and what is wrong.
But when a governor goes against the board he appointed, and doesn’t listen to the facts of the case, he begins to look like a man who enjoys putting people to death. A former member of the pardon board, Mr. Aycock, told the New York Times that “It was a pretty clear cast to us.” He added, “I don’t think you can determine that this man was anything but mentally incompetent. We wouldn’t have voted that way if it wasn’t.”
On the subject of utilitarianism, maybe it is Perry’s idea to take a softer stand on capital punishment now that he is running for president of the United States. For example, in 2002 Perry’s state put 33 people to death by execution. But in 2010, only 17 were put to death and thus far in 2011, just 11 capital punishment killings have been carried out in the Lone Star State. Is this a utilitarian move by the governor, to back off on the number of capital punishment deaths so he won’t catch that much flak during his run for the presidency?
There is a proposed improvement on the Utilitarian issue; according to Charles Kay, professor at Wofford College, the proposal is to make “Rule Utilitarianism” read like this: “behavior is evaluated by rules that, if universally followed would lead to the greatest good for the greatest number” (Kay, 1997). What are Rick Perry’s rules? Does he make them up as he goes along, thinking because he is a power broker from Texas he can make they up and others have to accept them?
There is a very serious moral decay in the United States of late; radio commentators and TV talking heads make outrageous, slanderous smears on the president of the United States, and when there is a town hall meeting to discuss health care laws people show up pre-trained to cause a disturbance while others outside carry weapons. American needs leadership, to do the greatest good for the greatest number of people, and American needs leaders that show by example the ethical, moral and socially just decisions lead to the greatest good in all cases.
Works Cited
Barber, Nigel. “Why white collar criminals rarely go to prison.” Psychology Today. Retrieved December 5, 2011, from http://www.psychologytoday.com. 2010.
California State University at Sacramento. “Kantian Ethics.” Retrieved December 4, 2011, from http://www.csus.edu/indiv/g/gaskilld/ethics/kantian%20Ethics.htm. 2008.
Florida State University. “Conflict Theory.” Retrieved December 5, 2011, from http://criminology.fsu.edu/crimtheory/conflict.htm.
Kay, Charles D. “Notes on Utilitarianism.” Retrieved December 5, 2011, from http://webs.wofford.edu/kaycd/ethics/util.htm.
Mill, John Stuart. Utilitarianism — Chapter 1 — General Remarks. Retrieved December 4, 2011,
From http://www.utilitarianism.com/mill1.htm.
Murphy, Ryan, and Root, Jay. “Despite Scrutiny, Perry Gives Two Donors Plum Posts.” The
Texas Tribune. Retrieved December 5, 2011, from http://www.texastribune.org. 2011.
Peffer, Rodney G. “World Hunger, Moral Theory, and Radical Rawlsianism.” Department of Philosophy, University of San Diego. International Journal of Politics and Ethics,
2.4, 2003.
Sontag, Deborah. “Perry Displays Varied Stance Toward Crime.” The New York Times.
Retrieved December 5, 2011, from http://www.nytimes.com. 2011.
Stanford Encyclopedia of Philosophy. “Libertarianism.” Retrieved December 4, 2011, from http://plato.stanford.edu/entries/libertarianism. 2002.
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