Topic: Government & Politics

Ethics Priorities in the News: Balancing Utilitarianism and Absolutism
(6/22/2008)

As a general rule, the United States has a utilitarian outlook and culture. We accept (well, most of us) the unequal distribution of wealth that results from capitalism because the system promotes maximum effort, competition, wealth and productivity. We embrace (again, most of us) a majority-rules approach to government despite its marginalization of minority views, because it seems to work better than the alternatives. But utilitarian systems can be dangerous unless they are limited by some absolutes, and these are provided by the Constitution. Absolutism means no exceptions, and when an absolute principle of U.S. law stops us from taking an action that seems wise, just and necessary, critics and pundits scream. But absolutism itself, ironically, serves utilitarian ends in such situations. It protects the integrity of the laws, and avoids an erratic situational system that would provide little certainty or guidance. Three recent situations illustrate a point that has many variations and degrees.

· The District of Columbia, a model of urban government waste and incompetence for decades, has just been ordered by the courts to reinstate 17 police officers who engaged in conduct that would normally guarantee a career in public transportation, waste removal, or anything that isn't law enforcement.

But the disgraced officers, fired by the city for offenses like lying, falsifying documents, taking bribes and fighting on the job are back at work and getting their pay checks because the D.C. police department failed to meet deadlines in the disciplinary process. Under D.C. regulations, the department must make an official determination within 55 days after notifying officers of charges against them or after the officers request hearings. It didn't, so the officers get to go back on the job, where they can lie, fight and take more bribes. But as absurd as this seems, it is unquestionably the right result. If the city is allowed to fudge its due process duties when it wants to fire an employee, there would be no way for an unfairly accused individual to challenge an unfair or erroneous job action. It is ridiculous that the District government has to be forced to put bad officers back on the street, and undeniably hard on D.C.'s residents, who are already burdened by a miserable school system, perpetual crime, drug problems and chronic governmental corruption. But the law is the law, it is a valid one, and a law that isn't enforced provides no protection or guidance.

The scary part is that the District appears to have a flat learning curve: the Washington Post reported that 200 similarly unfit officers had to be reinstated in the 1990s. Nonetheless, the result isn't unethical. The administrative deadlines are neither unreasonable or unnecessary. Due process is an absolute principle. The incompetence of the city is the ethical problem here.

· Example two: The Scoreboard has discussed the horrible case of Lori Drew, the ethically-challenged mom who helped her teen-aged daughter set up a fake MySpace account in order to trick the daughter's estranged high school friend into believing that a cute high school boy was interested in her. The Drews, as planned, then had the fictional cyber-beau dump the young girl, posting that "the world would be a better place without you." Humiliated and heart-broken, the girl, who had a history of depression, hung herself.

The mother's conduct was despicable and outrageous, but there is no criminal law on the books that covers such an incident. Undaunted, and probably egged on by community outrage, U.S. Attorney Thomas P. O'Brien indicted Mrs. Drew anyway, saying: "Any adult who uses the Internet or a social gathering Web site to bully or harass another person, particularly a young teenage girl, needs to realize that their actions can have serious consequences." There is no argument against that sentiment. But O'Brien's indictment is based on the the Computer Fraud and Abuse Act, which was passed to punish hackers who break into computer systems and steal financial, health and government information. It has no provision encompassing what Lori Drew did, which has been dubbed "cyber-bullying" and "cyber-assault." The thin, thin legal theory is that Drew broke the anti-fraud law by posting false information about the nonexistent Josh Evans. Really? As the Washington Post pointed out in an editorial, this theory could dictate the indictment of millions of Americans who post inaccurate profiles of themselves online or post angry responses in on-line arguments. This was not the intent of the law.

Not all crimes have laws to cover them, and because we recognize the danger inherent in law enforcement that is based on the gut feelings of officials, no matter how justified, rather than duly considered and passed statutes, our system requires that before a person can be punished, there has to be an existing law that adequately describes what he or she has done wrong. In this case, there isn't. The absolute principle applies, and the public will have to find other ways---civil damages, shunning---to punish Lori Drew. The indictment won't stand up in court, and shouldn't. Bringing the indictment is ethically wrong, even though seeing Lori Drew avoid punishment is infuriating.

· Finally, we have the decision of the Third Court of Appeals in Austin Texas ordering that the children removed from the polygamist compound in Eldorado had to be returned to their parents in the absence of convincing evidence that they had been abused. At first glance, this bow to the rule of law may be the hardest to swallow of all. In fact, it shows the perfect balance of ethical systems.

In April, every child at the Yearning For Zion Ranch in Eldorado was taken into custody after someone called a hot line claiming to be a pregnant and abused teenage wife in the compound. She has yet to be found, and authorities are investigating whether the calls were a hoax. But caught between doing nothing when there seemed to be a significant threat (and getting clobbered by public opinion and the media) and taking action that was on shaky legal grounds, the state decided to take no chances with the welfare of the children. Texas child-protection officials argued that the sect forced underage girls into marriage and sex with older men while training boys to follow in their footsteps when they became adults. Five girls at the ranch had become pregnant as young teens. But the appeals court disagreed, ruling that the state acted without proper proof in raiding the ranch and taking the children away on an emergency basis without first getting a court order, saying:

"Even if one views the Fundamentalist Church of Latter Day Saints belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse ... there is no evidence that this danger is 'immediate' or 'urgent…Evidence that children raised in this particular environment may someday have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal."

The court further said that while more than 440 children were taken into custody, the state failed to show that any more than five of the teenage girls were being sexually abused, and offered no evidence of sexual or physical abuse against the other children. The state was wrong, the court said, to consider the entire ranch as a single household and to seize all the children because some parents there might be abusers.

It is hard to disagree with the court, which knows that any action approved in the law can serve as precedent later. It has to uphold the absolute principle that before something as intrusive as taking a child away from its parents occurs, the state has met all legal requirements of proof and imminent harm. But this is a case where the state's action was as ethical as it was contrary to the law. It had to return the children, but it would have been difficult if not impossible to ensure that they were not being abused without removing them in the first place. The Texas laws didn't anticipate large communities of illegal polygamists, and the Eldorado group seemed poised to exploit a loop-hole even bigger than the one that will let Lori Drew escape prison. But unlike the Drew case, all the harm hadn't been done yet. The decision to move on the ranch and take the children was both courageous and ethical, and though the children are now being returned, the sect has already announced that it is changing its ways. This time, at least, the court's absolutism and law enforcement's utilitarianism worked together perfectly

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