"What are the Limits of Police Power?" Why? Radio Episode with Guest Luke William Hunt
12:05AM Apr 16, 2020
Luke William Hunt
Jack Russell Weinstein
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Why philosophical discussions about everyday life is produced by the Institute for philosophy and public life, a division of the University of North Dakota's College of Arts and Sciences. Visit us online at why Radio show.org
Hi, I'm jack Russell Weinstein, host of why philosophical discussions about everyday life. On today's episode we'll be talking with Luke William hunt about the limits of police power.
Like most people, I enjoy good cop movie your diehards, lethal weapons and bad boys good stuff. But every once in a while I lose the required suspension of disbelief and think, Oh my God, they are killing so many people. They are breaking so many laws. The only real difference between a police action movie and superhero blockbuster is that the Avengers is a lot more honest about being a comic book. Think for a second about what it would be like to live in a society They gave free rein to these characters. How much would we pay for insurance when pursuits smashed through every car on the road? Would we let our toddlers run and play when at any moment a phalanx of squad cars would come screaming down the sidewalk to avoid traffic? How could we ever believe witnesses in court when detectives on the job lie manipulate, threaten assault and extort suspects? These movies claimed to be about crime and retribution. But they're actually a vision of what happens when we abandon the rule of law. If the only thing that keeps police officers in line is a loud mouth captain who threatens to confiscate their badges and guns, what's the purpose of the law in the first place? As Americans, we tend to think of the rules as stopping us from doing what we want. taxation is theft. We're told speeding tickets bring in revenue, safety regulations hurt businesses. These are the one sided critiques of libertarians who only see the law in terms of Big brother who emphasize what philosophers call negative liberty. Negative liberty is freedom. From obstruction freedom from being told we can't do something, and the fewer rules are imposed on us It claims the freer citizens are. But this ignores the fact that just laws actually make us more free taxation support medical research and progress, giving us healthier and more fulfilling lives. speeding tickets, protect our children from reckless drivers and help us manage our own narcissistic impatience. safety regulations mean we don't have to or lose our lives, our health and our limbs for a simple paycheck. Human beings without laws live in chaos, and chaos never leads to progress, chaos degenerates. In other words, even if we accept the fact that the bad boys and the lethal weapons get the bad guys, the people in their jurisdiction are still significantly less free, because they're being regulated by law enforcement without limits. Citizens are well off as long as the police are looking at someone else. The moment they look at them, it's all over. Because the suspects in these stories aren't protected by the rules of evidence. Or the standards of due process. Even the innocent can't win. These are movies of course, and real life law enforcement work is heavily regulated in ways the fictitious police could never imagine. Yet the film still describe the ethos of American police and revealed the distrust many of us have come to feel for our law enforcement. A friend of mine who's a police officer in Austria, once lamented to me how much he envied American police who had so much more latitude than he did to be aggressive. He felt like all he ever did was take notes and that he had to be in constant control of himself. To a certain extent, he's right. The American legal system is designed not to regulate police activity, but to articulate which regulations can be skirted. As we'll discuss on today's show, what the police operations manual clarifies is where and when police can use their discretion. In the last month, I've had two very direct dealings with Grand Forks police, and the first one I was the victim of a crime and the second I was a witness. I'll be pretty direct when I tell you that I felt much safer and more respected as a witness. It was clear that as long as I was abused to the police, they treated me well. But as a victim, especially someone who's self advocated, when I did not think they were handling things correctly, I was bullied and disregarded. As a witness, I was valued for enhancing political power as a victim who stood up for himself, I compromised this power, so they finished with me as quickly as possible. Today's episode is ultimately about that power. We will discuss the ways in which police clash head on with individual freedom, the ways in which law enforcement and our free society benefit one another, as well as the ways they don't. We'll be doing this from a political philosophers perspective, not from an ethicist. So we won't be asking whether particular acts are moral or not, whether it's okay for the police to eavesdrop and trap or even break the law. Instead, we'll examine when and how the system gives them permission to do so. We are citizens in a democracy and we want to be free, but we also need to be protected sometimes from ourselves. The police are necessary And often they're very good. But they're only either of these things when we grant them authority. The hardest questions to ask them are as much about us as about them. When should we be surveilled? When should we be goaded? When should we be punished? And perhaps most important, what kind of people would we be if the police weren't around at all? And now our guest, look, William hunt is an assistant professor in the Department of Criminal Justice at Radford University in Virginia. He's a former FBI agent and the author of the book The retrieval of liberal policing, which was actually just released yesterday, Luke, congratulations on the milestone and welcome to Why.
Hey, jack, thanks so much. It's a pleasure to be here. This is such a cool show. And I'm thrilled to be a part of it.
How's it feel to have the book out all that work? Now? Finally, something to hold in your hand?
Yeah, it's a it's a big load off. It's been a long time coming. It's been, you know, four or five years of work. And so it's that feeling of as you know, you know, getting the book in the mail and holding it in your hands, it feels like it's finally concluded and you can kind of take a breath and move on to something else.
Well, I really enjoyed it. And I'm super excited to talk about it. And actually, the whole time I was reading it. I was wondering, you are a former FBI agent. How much of the book is written by that part of you? How much of the book is the FBI agent in action?
Yeah, that's such an interesting question. And I guess, you know, one thing I'll start out by saying that, you know, really what I'm feel fortunate about is to have had some of these experiences. So, you know, going back to law school, and then I worked for a year with a federal judge after that. And then it's it was after that clerkship with the judge that I went to the FBI. And, you know, I don't look back at those things as accomplishments, but just sort of rich experiences. And so when I got around to moving into academia It was certainly with those experiences as mine. So I think I wrote the book, you know, with this scholarly persona as a professor, but I definitely drew on those experiences because, you know, to be, you know, perfectly frank, they made a big impression on me. They, they really formed some of these questions that I address in the book. And and so it was definitely in that spirit sort of writing as a philosopher who had some sort of different life experiences that that sort of led to this book.
Were there times when you were writing a sentence or a paragraph and you heard your colleagues voices in your head saying, whoa, there fella or you know, right on kid you tell him I mean, does that that experience echo in in the self exploration?
I think so. I mean, you know, when I go back to my, my time in the FBI, there, were clear parts of that job that I that I was troubled by, not so much because the FBI was breaking rules or doing things that were sort of immoral and corrupt or anything like that at all, I think they're, they're good people, civil servants who are serving our country. But I definitely felt like the scope of the power was was troubling, sometimes in the amount of power I had as an FBI agent. And I also feel like that, you know, that was not always recognized or maybe ever recognized from my colleagues know that that's a bad thing. It's just that I felt a little bit isolated and thinking about these things. And perhaps that was, you know, one thing that led to my eventual departure for philosophy, academic philosophy.
Did you ever find yourself acting the philosopher in the FBI even before you were, I guess, officially signed One Did you? Did you think in certain ways that you now recognize as part of the discipline to do? I don't know, engage in a critical analysis in a way that we see on the paper but may not have been par for the course for someone in the job?
Yeah, I definitely think that's the case. And so a couple so so one superficial example. And then I'll get to a more substantive example. So, you know, when I was clerkship for federal judge, a clerk for a federal judge, I was going through the application process for the FBI, it took me about a year to get in. And I didn't think I would make it I thought I'd wash out. And so I was simultaneously studying for the GRT. So I could, you know, try to go to grad school if I didn't get an FBI. So this has always been in the back of my, my head, but when I did get into the FBI, there are a couple of, you know, examples that I've that have stuck with me, you know, that one of the first things that I was assigned to do as a new FBI agent, fresh out of Quantico. There was A murder on federal lands. And there was a body on federal lands and we had jurisdiction. And it was night when this was discovered. And so as sort of the the new person I was assigned to go to the crime scene, and until the morning came when we had, you know, lights and we could do the forensics and everything I was supposed to sort of watch or I guess, guard, the crime scene and the victim's body. And so that was my first experience sitting in a truck in the mountains at night with a shotgun and a dead body. And at the time, the book I had carried with me I knew it was going to be a long night was the denial of death by Ernest Beckett, which if you know the book, you may know the book, it really it addresses these questions of, of mortality and how it drives human nature. And so I that you know, that moment, I think You know, this is probably not normal for an FBI agent to have these interests. And I continued with that, and and as I, you know, went on with FBI my career and began to get, you know, a little more experienced as an agent. My philosophical interests continue to grow. And they shifted from those sort of existential angsty questions, which I, to be honest, I still have we, perhaps we all do, but they definitely shifted more towards these social and political questions. And, you know, the the two things that stick out at me are this one. Of course, I was thinking about the victims in the crimes I investigated. Of course, I was that's the priority. But also, as an FBI agent, I was working so much with the defendants that the perpetrators, and also informants who had a lot of baggage and crimes on the history and I found myself for some strange reason. It's felt strange to me at the time, having compassion for those people, and having compassion for the way the system treated them the power we had over them, especially the informants that we sort of had jammed up. And and that was a philosophical question that I thought was a little bit unique. And then not not everyone was thinking about I'm not saying that, you know, no FBI agents consider that. But, but that was something that really sparked in me, hey, maybe there's something you want to explore in more depth.
You know, that's really interesting, cuz a few years back when President Obama was in office, and he was nominated for the Supreme Court, there was a whole discussion about empathy and the role of a judge. Do you think that compassion and empathy are necessary requirements for people in law enforcement or do you think that it tends to get in the way?
I think it should be. I mean, So if that's it, that's a tough question because there's there's no doubt that law enforcement, we don't want to paint this as a, as a touchy feely profession to use that phrase, because you are put in a situation that's very high risk, high stress dangerous, both to yourself and to others. And so we want to acknowledge that, but at the same time, when we're dealing with people, when we're dealing with informants, who we are putting in dangerous situations, and formats, who are not trained to be law enforcement officers, and it could themselves be hard, when we're dealing with people we have indicted and arrested and are going to have their lives destroyed. And to be sure, in part, for things that they did voluntarily. I think it's important to not lose sight of the fact that, you know, look, these people are human too. They haven't lost their humanity and in my view, and I think in the The sort of the tradition we find ourselves in the the liberal view liberalism, they have dignity. And I think it's important to recognize that and I think that could perhaps, you know, rectify some of the issues we have in policing today when we sort of lose sight of that dignity that all people have,
you know, you use the word liberalism, and and the general populace thinks of it in terms of Democrats and Republicans. But when Ron suffers, talk about it, we talk about it in terms of a system that prioritizes individual rights. So almost all republicans and almost all democrats are liberal in that sense. What made you interested in thinking about policing from the political perspective from the liberal perspective, as opposed to, for lack of a better term, the sort of current events II approach, we've got a couple different questions in advance from crystal and from Laura Expressing real solidarity with folks like the Black Lives Matter movement and the sense that that people have no power against the police. And and this is the discourse we're a part of, but you're looking at it from a different angle. And so what attracted you to the political institutional structure approach, as opposed to the cultural clashes stuff that we're that we're that we see on the news every day?
Yeah. Yeah. So So exactly what you said, I certainly don't mean anything about contemporary politics, Liberal Democrat or Republican, conservative, that sort of thing. It's definitely a political philosophy. And the reason I took that approach, or one reason is this. You know, when we look at a lot of these issues that are in the media today, these just horrific tragic incidents, about say police brutality, or you can go back You know, decades to say something like the Rodney King case, which is just horrific and awful. And, you know, in my view that is so obviously wrong and immoral, those sorts of actions by the police. And I don't know that there's a lot of philosophical work that needs to be done there. If you have a question about whether that wrong, that's wrong, I think we're just going to be at an impasse. And now, that said, that doesn't mean that's not important. There are these very deep sort of questions about policy and should we train change Law Enforcement Training, so have a better understanding of the sort of issues they'll face and be more considerate to the community that they're serving? So those are all important issues. But in terms of a philosophical question, you know, I really think it comes down to how norms have changed, you know, or in other words, sort of what's acceptable and what's not acceptable. Recent years and decades, have we shifted as a culture as a society too far away from our core, that limits the scope of police power, so that some of these situations, these encounters should have never happened in the first place, because the police have vastly too much discretion, too much power to break the law as a as a way to enforce it. And I think those are very deep and difficult philosophical questions. That, to be quite honest, are are under theorized.
You know, you anticipated what was going on in the back of my head while you're talking? Because there was a question I was gonna ask much later in the show, but I think it's really relevant. Now. You said to you that some of these tragic situations were just obviously morally wrong, and there's not a lot of philosophical work to be done. I'm incredibly sympathetic to that. At the same time, there are people for whom it's more controversial what it means for something to be obvious is not entirely clear later on. Or I should say, when we talk about police discretion, there's the standard, that that will often get cited, what a reasonable person is going to judge what a reasonable officer is going to judge, and what a reasonable person is, is also going to fluctuate. So I guess the question without jumping too far ahead is, is the fact that you think it's obvious, idiosyncratic, or is there a standard for lack of a better term standard, obvious that sort of analogous to a standard of reasonable, right, because we can say, in a court of law, a reasonable person wouldn't do this, or a reasonable police officer wouldn't do this. There are people on the fringes who might disagree, but there's a general sense of what reasonableness is. Is it the same philosophical problem, I guess is what I'm asking is, is that just is there a way too. Is there a way to make obvious and reasonable objective in a useful way? I guess that's the question I'm going to make is, is that is there a way to use this terms obvious and reasonable, in Objective enough way that it's really useful for policy and for procedure?
Yeah, it's such a such a difficult question. And I think this a lot of this comes down to policy. And one thing about this is, and this is where I think a lot of people are troubled, and I have some some worry about this, too, is that the use of force policies for law enforcement officers are extremely broad and extremely permissible. And so the argument in favor of that is to protect the officer, right? So they're in these high stress situations, and they don't, I guess the policy in the law doesn't want them to second guess themselves so they become the victim of you know, being shot. by a perpetrator. On the other hand, and I mentioned this, you know, in the book, it's very difficult to have a son or daughter killed by a police officer on justifiably and so there is this question about, have we gone too far in terms of what's reasonable and what's permissible? And I don't know that I have a magic answer to that. But I will say this, you know, when there are situations in which you have someone who is submitted, and you continue to use force on that person who has submitted or when you use force that has been banned by your department, because you think that's the only thing you would that will subdue a person or when you have someone that you are pursuing who is walking away from you, but there is no possible tactical advantage that could be Going to, but you decide to use deadly force and shoot them in the back. Those are the kinds of cases that I think we can probably find some common ground on, because those do seem wrong. And I think it comes down to training really, can we train these officers better in those situations to deal with that stress a little more effectively? On the other hand, push back the other way. You know, if you see a quick move up from someone in a car, and you can't identify a gun, I mean, I don't know what you can do other than to sort of your your reasonable judgment and a lot of times a police officer is going to be held, have us justify force in that kind of situation. But it's a tough it's a tough issue. I don't know that I have a policy answer.
You said something in passing that really stuck with me from the book, although you you presented it slightly differently in the book. You said in the book that you're talking about. The stress that a police officer experiences and you say, it's very difficult to be a police officer. But it's also very difficult to have your kid killed unjustifiably by the police. And I actually thought that was a tremendously pithy and powerful way of sort of neutralizing the impasse that we reach when someone says, oh, but a police officer is very hard. That's a very hard job. And in the process, you're talking about two different models of policing. And I wonder if you talk a little bit about the philosophical decision that we make when we define what a police officer is, but between the use of force model which you just mentioned, and the social peacekeeper or keeping the Kings peace, the that you offer an interesting history of that. What's that decision and why is it important?
Well, I think this is an important issue for a couple of reasons. And I'm going to get to those different roles. But one thing I'll say is this, and this gets a little bit back to the policy issue. You know, there's This phenomenon in society today it's fairly new, I think, where we believe or, and police agencies believe that one role of the police officer is that they are warriors. And so when you think warrior, you might think of soldier, it's kind of analogous to the military. And I think that that is a confused understanding of the police role. And that that is perhaps part of the problem is that we are training people to view themselves as warriors, because, in fact, you know, the police role is is certainly not limited to law enforcement. There are these other roles, and it's about serving the community in a variety of ways. So, so one example you know, police are emergency operators. They assist people who are in emergency situations until other resources can come. They are social peacekeepers, they assist in domestic situations where for is not required. And then as you suggest sort of this social peacekeeper model. What that means is it's the basic idea is that police are there for a variety of reason they have this holistic role of serving the piece of the state in a way that is consistent with legitimate use of discretion. Not in some sort of context of being a warrior out to, you know, do battle with the community, because these are our community members. And I think that's one thing that we could sort of focus on is emphasizing these other roles beyond this law enforcement warrior model.
To what extent is it fair to think of police as agents of the government enforcing the current order? And to what extent is it fair to think of them as sort of separate I'm not sure how to phrase the question as a separate unit or whose job is to deal with what's in front of them, and what needs to be dealt with in order to maintain a certain kind of just day to day operations. I mean, how, you know, if I see the president, if I see a legislator, if I even see the mayor of the city, it's hard to distinguish them from the government as a whole. But yet, when I see the police officer, I don't think of them as, as a government agent, I think of them as I don't know that the whole monitor, so to speak, is that is that a false division?
Well, you know that that's a good question. And so one thing that I think you sort of you touched on, I mean, sort of beyond I think it is, I think it is false in some sense, because beyond even the roles that I've mentioned, You know, a police officer or an FBI agent, they do a lot of sort of bureaucratic government things, right. So they do a lot of paperwork, they do a lot of typing, they do a lot of sitting in cars and watching things. It's not this sort of movie Action Pack thing. And so in a lot of ways, they are making sure that, you know, the red tape is where it needs to be. And they are definitely in this part of this bureaucratic institution. But I mean, I guess if you want to take a step back and look at it a little bit more philosophically, the way I view it, and maybe this is not what everyone view but, you know, we're part of this collective experiment, right, where we, we see to the state, certain liberties that we have in exchange for certain rights and, and one thing that's great about being in a place like the United States or another sort of liberal constitutional democracy, is that we have the security right. That's why we formed this collective that goes back to the social contract and I View the police as the entity that we've kind of entrusted to take on that role on our behalf. Now it's evolved and changed over the years. And so that's one big facet of what it means to be part of a society like this. And they have to balance that with their bureaucratic mission. So I think it's a little bit of both of what you said,
when we come back from the break. I want to try to take these abstract questions and apply them to some of the examples that you used in the book. I also want to talk about the standard of dignity and agency and this concept of personhood, that is so important and I think that will help us sort some of this out but for now, you're listening to jack Russell Weinstein and Luke William hunt on why philosophical discussions but everyday life, we'll be back right after this.
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You back with why philosophical discussions about everyday life. I'm your host jack Russell Weinstein. I'm talking with Luke William hunt about the limits of police authority and his political philosophers approach to how we deal with police and the actions they engage in every day. And a couple days ago, it's the last week of classes at the University of North Dakota and I was talking to my students about this episode coming up and I was talking Talking about this sense that Americans have. And then I know from the police officers that I know personally, that there's a little flexibility with breaking the law. I've been in cars and I've talked about this on the show before with police officers who've who've sped significantly faster than the speed limit and then got pulled over. And then we're let off the hook and other ways that police look after one another. and Canadian student raised her hand and said that she objected to that vision because she is from a very a family with a lot of different police officers in Canada. And she said that in Canada, the notion is that the police have to be the most law abiding, and that they're the least willing to break the laws and the least willing to fudge and that sort of made me wonder and contrast. The experience I had with with my friend in Austria, who's a police officer, what she says about Canada, what what I think about the United States and I wonder and look i guess i We'll ask you, to what extent are police manifestations of the culture that they're in. So Americans like to push boundaries, we like to break rules. So the police are going to push boundaries and break rules. austrians are very much a rule following people and so their police are going to follow rules Canadians, there's a sense of and we'll come up with this word in a minute, dignity amongst the Canadians that they like to hold themselves as more moral than the United States at minimum. And so there is this moral authority that that that the police may want to impose upon themselves, our police just mirrors of the culture that they find themselves in.
I think to a certain extent, that's true. You know, I I'm, I'm definitely sympathetic to some of this. These ideas about the police are, you know, really want to protect their own and give each other breaks. You know, I don't want to paint with too broad of a brush because I I do want to reiterate that I think, you know, most people serving in law enforcement are good people who are doing their best. But what I think it comes down to kind of to your point in a place like the United States, I think the police are afforded vast discretion to do so many things that seem a little bit vague in terms of whether that should be, you know, consistent with their role and consistent with the rule of law. And yeah, that probably does lead to this view that they have sort of this this vast amount of power that they can wield sometimes for personal use. So I do think that's an issue that's important to discuss.
Is, is the perception about the FBI the same as the perception about police, local police, because, you know, even the movies when they have FBI agents, the FBI agents are very buttoned down people, they're often indistinguishable from one another. They're much more authoritarian in the sense that they're, they're much more willing to take orders. You very rarely see movies about rogue FBI agents, right? The the closest we have The X Files, right. And so to what extent is what we're saying about police officers, limited to the state police and the county police, the sheriff's and local police and to what extent can we be talking about the FBI as well?
Yeah. So so great point. And I think there are some some profound differences between state local and federal law enforcement. You know, just to take a obvious example, you know, state, local police are going to be engaged in interacting with the public much more so there's much more likelihood of these questionable encounters, and that kind of thing, FBI, not so much, much more long term investigations. You know, we don't Covered beat, we did. I didn't cover a beat or anything like that. On the other hand, I do think that these principles can apply across the board. So when you talk about something like discretion, now, the FBI is going to use a different kind of discretion usually then, you know, the state police, the State Police is going to make a decision about who to pull over for speeding, you have to use some discretion there. The FBI on the other hand, there may be, you know, more discretion about what sort of sophisticated undercover operation to engage in how many millions of dollars are going to be spent on this particular target, and how many laws are going to be broken in order to sort of accomplish that particular law enforcement mission. So different issues and different scope, but the principles are still there still issues of discretion, still issues of, you know, consistency or not with the rule of law.
So you use this phrase in passing again, How many how many laws are going to be broken in the process and in the book you spent a lot of time talking about what you call Oh ay ay ay ay ay. Otherwise illegal activity, which is a great phrase. And in the process of that discussion, you talk about confidential, human sources, informants and all that sort of stuff. And I want to start the practical end of the conversation by bringing up an example that that you used that I found particularly shocking because we're used to people informing on their drug dealers, we're used to people wearing wires, we're used to those sorts of things, but you tell the story of a woman who is facing a very significant prison sentence and that she's offered a deal they're I guess they're trying to get someone for soliciting prostitutes or something. And she is offered the deal that it if she gives this guy oral sex, and then spits up on a table. issue so that the there can be biological evidence, she will be a candidate for a more lenient sentence. And I found that shocking in every level, because it never occurred to me that something like that would ever happen, perhaps that's not Eve. And then you have a ruling from judge Posner, who's very, very well regarded federal judge as justifying it and saying it's not very much different from putting someone around drug dealers where they might get beaten up. So what's going on in that case? And how is it even possible that that's legal? Yeah, that you would sort of force someone to engage in prostitution in order to give them a lighter sentence.
Yeah, yeah, that's that's such a troubling case. And I guess to take a step back, this is one of the big concerns that philosophical and Turns out I always had because as a as an FBI agent, like most law enforcement officers, I had to was required to handle informants what the FBI calls a confidential human source. And we have informants for all sorts of reasons. Some people just want to help. But like the case, you mentioned, many informants, help the FBI or the law enforcement, State Police, whoever, because the law enforcement agency has leverage on them. In other words, they know that this person then format did something wrong. And they can hold that over their head and say, Look, you need to help me, so I can help you. Right. And that's a common practice. And what I was concerned with was how vast that power is how you can just get a person to do almost anything you want. And in the case you mentioned, it doesn't get more egregious than that. This woman had the police had leverage over her and the police wanted her to gather evidence. On this other target, you know, and that was the way to do it, and she agreed to it. And so why was this justified, Judge Posner basically said this, he said, Look, this is a bargain. You know, we we value bargains, we value the freedom to contract in this society. And she agreed to do that, in exchange for the possibility no guarantee of a more lenient sentence. And so, I saw that and perhaps like you, I was shocked. And why I think this is a problem is because of this. We all respect contracts in a society like the United States, we respect, voluntary chores and that sort of thing. But there are limits, legal and philosophical limits to these sorts of bargaining processes. And in the case you mentioned where the woman's been, you know, asked to engage in oral sex for exchange for leniency. There seems to be something procedurally wrong with that. Was that a real choice on our part? If your option is do this very, you know, sort of awful act that you don't want to do, or go to jail for a long time? Is that a real choice?
Well, and this is what I struggled with, because isn't there a sense that the moment you're in police custody? You can't consent to anything? Right. I mean, there's been a couple instances in the last few years of women who claimed that they were raped by police and the police all say, Well, no, they agreed to it, they wanted to it and the argument against that is that a woman in custody that anyone in custody can't consent, the whole idea of consenting is absurd in that context. So how is it that someone like judge Posner could say she agreed to it, if the whole circumstance precludes the possibility of free agency and consent isn't that that's, I guess I bring this up because for those folks who aren't used to discussion about liberalism. in a free society, the ability to consent and the ability to be a moral and political agent is the heart of what it means to be a person. Right? So it doesn't violate that fundamental personhood that we think is necessary in a free society.
I think that's right. And I think it's only there's just this facade of consent in the case like that. So it's kind of like this situation. I mean, if if someone comes up to you on the street, and says, you know, late at night, and they said, you can either give me your wallet, or I'm going to shoot you. Well, that's technically I mean, you might say that's a choice, but that's no choice or no consent in any real sense of the word. And I think that's the case in the case with a woman who engaged in the sex act that's not morally binding consent. There's a deficiency in that consent, and that's a very well known proposition, and for the life of me, I don't understand why judges have not pushed back on this free rein to do within formance. What police want under this facade of it's a bargain. I think it's a tremendous, tremendous philosophical problem. You quote
a philosopher named Edina Schwartz as as declaring that there is a market for human liberty, right in in this circumstance. And that's exactly what it sounds like. It sounds like how much will the police push to get what they want in exchange for freedom is that is is the goal. And I guess I should ask you, because this is what it looks like, is the basic procedural goal to push as far as you can until the person pushes back? Or is there a standard a stopping point where you can't ask someone to do something past or is it so relative, that all interactions between the authorities and a person like this is just where the person decides to push back
I think it's more the latter, that it's it's almost like the Wild West in some sense. And here's the reason for that. So now, you know, we have to always keep in mind that the FBI is different than state police and the State Police is different than the local police. And then within those categories, huge differences across the United States and sort of these different agencies, and they're all going to do these things differently. Most of these places, though, engage in the use of informants, and so you have these widely varying standards. But for the most part, if you have consent, you're going to be able to get the format to do what you want them to do. Now, there are going to be an examination of, especially in the FBI, and which has more more checks on the extent to which a source may be put in a risky situation. But it's very difficult to assess that. And so let me give you one quick example. I talked about this case in my book to the police use a 23 year Old, fresh out of college psychology graduate to engage in an undercover sting in which she's supposed to buy cocaine, ecstasy pills, large amounts and an illegal handgun from two convicted felons. And the reason that she agrees to do this is because the police have some leverage on her. She was caught with marijuana and some other pills, and so she was facing, you know, some significant jail time. So in addition to the sort of lack of consent, there, you might say that these informants don't have an understanding of what they're getting themselves into a 23 year old, fresh out of college student. But the police took precautions. They did what they could to mitigate the risk, but in the case of buying these drugs and guns that inform it ended up being shot and killed by the gun she was sent to buy. And so the point I'm trying to make is This, if we have on the table, using informants to engage in sex acts using young, newly graduated psychology students to make these large scale drug and gun buys. No, I don't think there is much of a limit in any realistic sense with respect to the police's discretion to do this kind of thing.
This example touches close to home for many of our listeners, because we had an instance in 2014, where a young man in wahpeton, North Dakota, Andrew Sadik, was used. It is believed by the police to try to get his drug dealer and he was killed in the process. And so, as a community, we're very, very aware of this. And it seems to me that this sort of thing violates the fundamental reciprocity of the social contract that when you have a social contract, you give something you give trust, you get security back, you give permission, you get Sort of law and order back. How important in assessing the legitimacy of these police actions is something like reciprocity. And where does security fit in in that discussion?
Yeah, that's a good question. And so what you know, when we when we have a society like this, where we give up some of our rights in exchange for other rights, you know, one of those big things we gain from being in a place like the United States is security. We don't have to go out and hunt down people who harm us ourselves. We have entrusted the police to do those things. And because we are at a stage or a historic point in society, where almost all of that has been passed along to the state, the police, we've entrusted them to do that. I find it to be a huge affront to that, right, when we use informants in this way to basically pursue a Secure the state themselves. And the reason that it's so egregious in my mind is because there's that lack of consent. But above and beyond that, you know, you might think that, look, there's something about the substance of these kinds of agreements that are just wrong to putting people at risk, putting them in a situation where they're going to engage in a sex act. That's not for pleasure. There's something about the dignity of those situations, the dignity that the state ought to promote in those situations. And I think that's a good reason to suggest that some not all but some of these uses of informants should be off the table should be considered unjustified from the start, because they are inconsistent with this reciprocity of providing security, promoting moral agency and of promoting and respecting one's dignity.
What dignity In liberal theory is a technical term. So what do you mean by dignity? And why is it so important to this? political context? Right? It's not just I got really drunk last night and embarrassed myself and I lost my dignity. It's something much more substantive than that. So what what do you mean by dignity?
Yeah, yeah, that's a good question. And dignity is, it's kind of a messy concept, because it does have a lot of meanings. I mean, on the one, and on the one hand, you could think of it and, and, you know, people having some sort of, intrinsic inherent worth. So the, we'll have to talk about old philosophers, but Emmanuel Kant takes that sort of view. And so in light of our sort of unique human ability to reason and be rational and and be autonomous, we have this you know, fundamental value, and we shouldn't be used as a means to an end we should be an end ourselves. And so what might that mean, for the police? Well, perhaps we shouldn't use an informant. as a means to a law enforcement and we should treat that person as an end as someone with dignity that can't be just wielded as some sort of instrument for the police. The other way you might think of dignity though there there are other conceptions, you might think of dignity as having some kind of social status. So for example, you know, you think about historically, aristocrats, you know, the aristocracy, they had this very high right ranking social status, so they had this dignity of their rank. Now, of course, we don't think that way today. But in the liberal tradition, I think you can make a claim that we view all people as having a equal legal and social status, equal legal and social high rank that protects them from being used and treated differently from others. And so by dignity to sort of sum it up in a nutshell, I think it comes down to a moral view about one's intrinsic value. value or worth their fundamental fundamental worth. And then on the other hand, an equal social status that they have that shouldn't be denigrated in society.
And this goes back to the the current events, stuff that we were talking about earlier, the the Black Lives Matter. protests were where they're arguing that the low status of minorities in this culture is what allows the police to try to tread all over them, that this this sense that we are not recognizing that all people of all color of all races of all creeds are have equal status, that what the Black Lives Matter folks are trying to point out is that there really is this low status, and not to equate the two. But prostitutes also in our culture have very, very low status. And so this woman, I don't know the background of this woman who was asked to perform oral sex, but if she weren't even suspected to be a prostitute, then they would be much more comfortable. Without using her as an instrument and taking away her humanity. So this notion of dignity in both forms have already has already permeated the discussion. And it makes me ask also about Kant talks also about autonomy and freedom. And that leads us to another subject that you spent a lot of time in the book on about entrapment, and how much the police can manipulate people in order to commit crimes they may have already or may have committed or may not have committed otherwise. Would you talk a little bit about the scenario in Las Vegas, that you talked about in the book where the police pose as as drunk people and who that targets and why?
Yeah, yeah, so that's a that's an interesting case. And so in this case, I think it was I think it was Reno. Very close, though very similar. And there was a problem in Reno at the time. I believe this case was in the 80s. And you had A lot of sort of lower level petty theft. And the issue was, you know, you have these people in the casinos, you know, winning big, they come out a little tipsy, and you have, you know, the tourists being sort of robbed and and that's what that's not good for business right? You don't want the casinos owners don't want there to be a fear that their customers are going to be robbed because that's going to be bad for business. And so what the police did they engage in this sort of very sophisticated operation in which they put an officer on the street who looked like what you might think of is the epitome of casino tourists. You know, I guess he had his I don't know Bermuda shirt on and he had a fanny pack out. Yeah. Yeah, exactly. And, and he had also though, interestingly, he was kind of, you know, drunk on the ground, and he had hanging out of his pocket, you know, some winnings I mean, like, cashier's check, or something, I don't know, some cash, something like that. And so The officer had a earbud a radio and when someone who fit the right profile walked by this person on the street, another officer would say, hey, pull out your money. And let's see if they grab it. And if someone walked by and they didn't fit the profile, they would radio and say, Hey, hide your money. This isn't the right profile. And you can imagine that that raised many concerns about how the police are selectively targeting some groups over others. And, you know, that raises a host of issues. So one issues of discrimination. And two, should the police be spending their time constructing crimes in this way, or should they be doing something else? And the way I the way I approach this is if you look at look at something like and I'm going to come back to the entrapment but if you look at something like The stop and frisk law, like, you know, New York City's had a strong program on that, where you can come up to someone and stop and frisk them. If you're suspicious of crime, that's constitutional. There's case law that allows that to happen. But what's not constitutional is if the police target people for discriminatory reasons, that's when it becomes off the table. And the same is true for that case in Reno, when you're doing things for reasons that are unjustified, you're treating people differently. I think that's where we have to draw the line.
As a philosopher, I was super excited reading that because in addition to these sorts of issues, which I had some familiarity with, you make the argument that entrapment actually involves metaphysical questions, and that's, that's the philosopher's paydirt, right, so we'll talk a little bit about how entrapment is actually a metaphysical choice and what that reveals about why entrapment may not be justifiable?
Yeah. So a really interesting question. So first of all, when someone is in trapped, that means that they make that defense, they say, look, yeah, I did this crime, but I was entrapped by the police, and therefore, you know, I should be acquitted. And if they meet the defense of entrapment, they are acquitted. They're not, they're found not guilty. So the predominant test for entrapment, and at the federal level, at least, is what we call the subjective test. And what that means is, when someone is arguing that they are entrapped, the judge in the jury, whoever is deciding, they have to decide whether the person was predisposed to commit the crime. So in other words, they have to decide whether even if the police had not induced them or acted, that person would have committed the crime anyway. So what that requires the jury to do is to imagine a counterfactual situation. They they have to imagine a possible world in which the police did not Not act, but the person committed the crime. So that is the sort of artificial exercise that we are asking our judges and juries to go through. And that's a metaphysical question. Because when you think of something like a possible World War One, it's not the actual world. It's not what happened, the police did induce you. So we're trying to imagine a world in which something is different. What is the nature of that world? How do we make sense of that logically? Now? That's the metaphysical question, but I think it leads to much more practical, concrete views. And so once you once you raise open that door of a counterfactual possible world, you might think, well, we can all agree that there are sort of certain, you know, possible things that could have happened. But then when you get to the epistemic, epistemological question, in other words, what can we know about things that didn't happen in the actual world, remember, entrapment? That's based upon a standard of beyond a reasonable doubt. So how are these judges and juries stating, with that kind of certainty? What someone would have done in a possible world in which the person didn't act? Okay, say that's not enough for you? Well, what about the ethical question? You know, if we're saying someone's predisposed to commit a crime, that seems to suggest that we're not treating them as a responsible, rational agent, who can, you know, make decisions and a variety of situations and those situations might impact what they do. So that seems to be a problem. The final issue with this sort of counterfactual predisposition model is this. When we focus an entrapment on what's in the mind of the defendant, in other words, whether they're predisposed to engage in a particular act, that that's problematic because it takes our attention away from what the police are doing. We're looking As the person and what could or could not have been in the mind, rather than whether the police's actions were reasonable, whether they're reasonable, investigative tactic, whether they should have broken the law to construct that undercover sting scenario. And so I think it makes much more sense to think of entrapment in terms of judging the police on whether their actions were reasonable, whether rather than judging the person on whether they were predisposed to commit a crime.
It's really interesting because, again, as you say, this predisposition suggests that the person is almost robotic, that they don't have a choice at all and that and that they were just going through their programming. But exactly, if that's the case, then you can't, they can't tell the difference between right and wrong, and then they're legally insane. This also, this brings up something my students have heard me talk about for years, especially when I teach philosophy law, which is how angry I get when I hear judges say things Like or politicians say things like we should give a person, a harsher sentence to send a message to all of the other people. And that's bizarre in a free society. Because what it's saying is first, you are not going to punish someone for something they did, you're going to punish someone for something that someone else did. But actually, you're not even going to punish someone for something someone else did. You're gonna punish someone for something that someone else would have done, but ended up not doing because you punish the first person. So in other words, you're punishing someone for a crime that someone else didn't do. Right and Right, exactly. It's that same bizarre gymnastics, which makes it metaphysical because it's entirely speculative when it's supposed to be about reasonable doubt and about whether or not proper procedures were formed. And I'd love right I mean, and of course, this is going to be February is gonna be our 10th birthday for why radio and this is one this is why I do why because the idea that entrapment is an ethical issue. Yes, I get that. But the idea that it's a metaphysical issue really, lets us see how deeply ingrained these philosophical problems are, and that we take them for granted, even though we make metaphysical decisions all of the time.
Do you think that that if you brought this problem the problem of entrapment and possible worlds, to your your old colleagues of the FBI, would they take it seriously? Or is or would they not be interested in this kind of discussion? I mean, obviously, some that's that's personality and who you bring, but sort of institutionally, is there a culture and a place to bring this kind of abstract objection?
I don't think there is. I don't think the possible possible world discussion would go over very well. With with mild law enforcement colleagues and You know, and to be fair? Well, I think the possible world angle is great. And I agree with you. And I think it also leads to these more practical issues. Because once you open that door of counterfactuals, and possible worlds, you had this epistemological question and so on. And I I though, this is maybe, you know, one concern I have, I think in in law enforcement, you're really, and maybe this is good. I don't know, I wish it was a little more questioning. You're very much focused on the mission. I mean, if you have an undercover operation that you're trying to work on, and I was a part of those and big sting operations and that kind of thing. You're just trying to head off an entrapment defense, right? So what you have to do is when you're engaging in, you know, these undercover stings and using informants, you have to build that evidence of predisposition. You have to say, you know, through recordings, hey, this person has discussed this kind If thing in the past or they've engaged in similar behavior, your only concern is building a case. So when it does go to trial, you can lay out why this person should be construed as a predisposed person.
This, of course, though, invites us to ask about the methods in which this profile right we all know now from pop culture, the idea of the FBI profile, that that the means by which we gather that evidence. The other big topic of the book is about surveillance and you you have a discussion I think of cats versus us where someone has a reasonable expectation of privacy in a phone booth, you talk about another where there's GPS tracking, we've talked a little bit about how surveillance also involves these philosophical questions and this question again of reasonableness and privacy, and and how that all fits in and why this is the third prong of of the places where you think that we need to reconsider the authority of the police.
Yeah, well, and on the issue of surveillance, so one thing, one reason that I wanted to talk about that is because it's just, it's such a timely issue. I mean, you know, just to think about, you know, you know, recently in recent years, things like the Edward Snowden leaks, and just sort of some of the issues that have come to light. So that just alone suggests how norms and you know, what's we should and shouldn't do as a society have changed. But the big thing about surveillance for me the philosophical question is, a lot of times we get caught up in these questions about privacy, right? You know, that that sometimes is an amorphous concept. And I think the reason that I find the focus on privacy a little bit difficult is because norms of privacy have changed a lot in recent years. So you think about this in terms of social media. There's everyone who's been to a Facebook page or a Facebook account knows that there's a lot of oversharing. We know that people use their smartphones, and they understand that they're being tracked by various private entities and organizations. And so what I think the philosophical issue is when it comes to surveillance really comes back to this notion of discretion. And when it's permissible for the police, the state to sort of get into that, that sphere of our lives. And so again, what I try to focus on this book, as is the discretionary aspect and and then it's that's really the focus and not so much defining what privacy is and is it
so let's talk about that, because that'll help us tie all of the threads together. is the goal to minimize discretion is the goal to educate operatives so that they have better discretion. Or is the goal to do something else? that that that keeps discretion on the forefront? And maximizes it? Right? I mean, to what discretion is the pivotal issue here. So what's your goal? And what do you think we need to do when it comes to thinking about discretion with law enforcement and how it connects to what it means to be free?
discretion is necessary, and I think society and it's, it's pervasive. And you know, if you just go back to this very basic issue of, you know, the person speeding, you can't arrest everyone for speeding. So discretion is discretionary is is necessary. I think the question for me, comes down to articulating the scope of discretion and the limits of discretion, right.
So what does that mean?
So discretion is
If you have an undue amount of discretion, you cease to be operating according to rule of law principles. And let me try to explain why that is, you know, when we go back to this very philosophical idea of what it means to be a liberal society, we think of these things like treating people as free agents and autonomous agents and equal agents. And one reason or one way to sort of respect that view of people is to have them governed according to law according to rule of law principles. Otherwise, if you don't do that, you're basically govern them through the discretion of sort of government officials and government agents. And so I think that's how this all ties down to, you know, the issue of surveillance as well. So think about cases in recent years, when you have laws on the books like the Foreign Intelligence Surveillance Act, That's a federal law that governs how we can engage in surveillance of national security matters. But as we know, from, you know, the leaks of Edward Snowden and developments before and after that, we had various government officials attempting to use discretion based upon sort of a need for national security or something like that, to sort of circumvent those laws that were on the book. And that is, in part what led to this very vast surveillance that's that's going on in past years. And I think, to some extent, continues today. So if we don't sort of rein that kind of discretion in check, in other words, discretion that's going beyond the rule of law. That's my word for sort of becoming an illiberal society.
I wanna sort of conclude by asking you have a question that goes back to some of the things we started talking about in the beginning. The Black Lives Matter The the the freedom that that women have around police and other such things because as I mentioned, both crystal and Laura asked essential questions in advance about this. And Laura in particular, suggests that we can't talk about this sort of stuff without talking about the history of police and authority in the United States. And that there is she suggests a general skepticism amongst black Americans, not just because of the way they're treated now, but because of the way Africans were brought into the United States or into North America hundreds and hundreds of years ago. And so I guess the question that comes out of this is, to what extent is discretion itself bound by history and to what extent is the discretion of any given police officer or agent, really the product of his or her own experience? Is there any sense that discretion can be a collective process that is self critical as opposed to an individual process that's subject to the limits of the person who's engaging in the discretion. I mean, it's I think that recent years in history has shown us as Loras pointed out, that the police take more discretion have, you know, to have wider boundaries to treat African Americans differently than they treat white people. And that's a product of history. So, is there such a thing as collective discretion? Or is it all just individual? And is there a way again, to sort of bring back an earlier question, to have an objective standard for discretion? Or is it ultimately going to be relying on a the character of the people involved and ultimately the outcome and if it turns out That Okay, well, then the discretion was good. And if it turns out badly the discretion was bad.
Yeah, that's that's a great question. very thoughtful question from from whoever raised that. And I think it's, it's, it's true that, especially when we're talking about at the individual level, how one goes about making discretionary decisions about who to pull over who to stop and frisk is, in large part a product of that person's character, their history, the extent to which they're going to follow their training, and that sort of thing. And some of those problems are going to be just impossible to solve when you have people who are deviating from these very basic principles of treating people fairly and with an equally I think there's a policy question that helps at the individual level, can we try and do better training to help people to wield that power more effectively and more fairly, that comes down to law enforcement, training, but You know, I guess the question that I was trying was focused on a little bit more as maybe the broader one that you mentioned as well, this idea of collective discretion and and what are the principles of executive discretion and a more abstract way. And and I think it really comes down to this. We don't live in a utopia. Everyone knows that, of course. And we can assume that things are not going to go badly, because we know they go badly. So there are unhappy situations in which we have to deviate from the rule of law. And I think you see that in people like john Lott, that there are these situations where both from presidents all the way down to police in the executive branch, you have to deviate from the rule of law. But to do that, in order to do that, there are principles constraints on that. And I think the most important constraints are the priority of liberal personhood and treating people With that equal moral worth and with the dignity that I think is just a fundamental component of what it means to be a liberal society.
Well, look, there is so much more to talk about. And we are out of time. And I'm super excited that the book came out while you are an assistant professor, it means that there are decades more books that are going to that will that will illustrate all this stuff. And hopefully, we'll have you back on why to talk about the next one. Thank you so much for joining us.
Thank you, jack. It was it was a pleasure. I had a great time. Thank you so much for all the thoughtful questions.
You've been listening to Luke, William hunt and jack Russell Weinstein, and why philosophical discussions about everyday life, and I'll be back with a few thoughts right after this.
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You're back with wide philosophical discussions about everyday life. I'm your host, jack Russell Weinstein. We're talking with Luke William hunter about the limits of policing in a free society. In a certain sense, today's episode was in the words of law and order ripped from the headlines. Nothing is more relevant than the relationship between the police and the general public. But in another way, we were able to step away from the headlines to offer the philosophical point of view, the abstract approach that allows us to get past the debates of the day and ask the bigger questions. No one does. That better than Luke. By having one foot in the FBI in one foot in the philosophical world, he gives us a perspective that allows us to offer respect to both sides, and allows us to have a sense of the nuances that we couldn't have had without him. We both have tremendous respect for the law enforcement community. But having respect means knowing that they can do a better job just as citizens can be better citizens, and all of us can break the law a little less. We know that the police can do a better job and we know that when the police do a better job, we will all be better off and we will all celebrate them more. You've been listening to jack Russell Weinstein on why philosophical discussions about everyday life. Thank you for listening as always, it's an honor to be with you.
Why is funded by the Institute for philosophy and public life Prairie Public Broadcasting The University of North Dakota's College of Arts and Sciences and division of Research and Economic Development. Skip what is our studio engineer. The music is written and performed by Mark Weinstein and can be found on his album Louis Sol. For more of his music, visit jazz flute Weinstein calm or myspace.com slash Mark Weinstein. Philosophy is everywhere you make it and we hope we've inspired you with our discussion today. Remember, as we say at the Institute, there is no ivory tower.