Continuing my series of alternative responses to the New York Times column, The Ethicists, looking at the consequences of one’s actions instead of imposing values on others, here is a take on today’s post,”Can I Hide My Beliefs During Jury Selection?”
I live in a Midwestern state that has the death penalty. I am scheduled to be a juror for the first time in March, and I’m afraid I will face a difficult ethical choice if I am selected for a capital case. Though I consider myself an atheist, I was brought up Quaker and still hold dear many of those values — nonviolence, a belief in the goodness of each person, peace and simplicity, to name a few. I believe that the death penalty is inherently wrong, unethical and unjust. Should I be put on a capital case, I am considering hiding my beliefs to improve my odds of selection so I can subvert an unfair system. I know it is unethical and possibly illegal to lie to the judge and lawyers, but do the means justify the ends in order to save a life? NICO
My response: This letter exemplifies the bankruptcy of talking about ethics as an abstract concept instead of focusing on how your actions affect others. In the same letter the person names things she (I think Nico is a female name) values, talking about ethics and justice, then two sentences later she says she wants to do something unethical. People have ways of thinking highly of themselves while compartmentalizing what they think isn’t really them.
There’s no absolute measure of ethics. If there was, you’d use it instead of asking other people. All you get is their opinion, because that’s all there is.
This person feels what she is doing is wrong and is looking for justification to feel better. She doesn’t realize that she’s giving away her ability to solve the problem herself by abdicating her responsibility to think through the issues for herself based on her values. Despite what her letter implies, no amount of other people telling her what’s right and wrong will give her perfect clarity. Ultimately she has to figure these things out for herself. Even if other people give her ideas that help her, she still has to conclude things for herself.
I suggest that she’ll help herself more in the long run by developing the skills to figure things out for herself than by having other people answer questions she finds too challenging. It’s like learning to fish versus getting a fish.
Personally, I would consider the consequences of my actions. Among other things, she’s incredibly unlikely to face a capital case, in which case this whole question is an abstract issue. If she’s asking for others, they have different values. If she’s asking for herself, other issues will be relevant in the real case that would affect her answer. You can’t get around that this case is abstract. If you want to follow it out it goes something like this: you know you’re lying if you lie, which you probably feel is wrong, but you don’t know you’ll make a difference… even if you make a difference, you’re undermining a law created by a somewhat democratic system you basically agree with… but what about unjust laws?… what if everyone ignored laws they felt like… but some do… and what if I’m willing to accept to consequences… but maybe the system of a jury of peers is designed to account for people doing what I’m thinking of doing…
There’s no conclusive answer. No matter how she prepares, she’s only going to be able to do what she thinks is right at the time. When you face having to choose between two comparable values, the way to prevent second-guessing yourself is to understand yourself better, especially how you choose and how your emotional system works, because how you feel about it afterward is what you’re worried about.
Asking for others to decide for you only undermines your knowing thyself.
The New York Times’ response:
Kenji Yoshino: My understanding is that you can be challenged for cause for claims in either direction: for saying that in all cases you would oppose the death penalty or in all cases you would vote for the death penalty. Those kinds of categorical claims seem to be disqualifying for jurors, so this individual is right that his would most likely be an act of civil disobedience. The thing that makes this really tricky is that I generally don’t want to take a categorical stand against civil disobedience. We have a long tradition in this country — like “Letter From Birmingham Jail” — that says an unjust law is no law at all. But one requirement of civil disobedience is that it be open and notorious, that you are willing to take your licks for disobeying the law. In this instance, that would be impossible, because if the person tried to be open and notorious about his civil disobedience, he wouldn’t be allowed to engage in the disobedience. He would be struck from jury.
Amy Bloom: Right, he would just be lying.
Yoshino: Exactly. The outcome here is not that hard for me as a matter of ethical intuition. Juries are there to make collective and composite judgments with sincerity and honesty, and if you believe that the law is wrong and that the death penalty is a violation of the Eighth Amendment or the death penalty is bad policy, there are ways of expressing that view other than engaging in dishonest or potentially illegal behavior.
Bloom: Yeah, “Tell the truth and work for change” would be the strongest ethical recommendation I could make. I was also struck by how the letter writer is an atheist but still believes in these Quaker values, and there didn’t seem to be any contradiction between atheism and those values, part of which would be wanting to carry on the Quaker tradition of working for change. What about you, Jack?
Jack Shafer: Well, I consider a variation of this question every time I’m called to jury duty and assigned to a drug case. It has happened to me twice in Washington, D.C., and once out in Seattle. So when they’re picking jurors, the judge asks if there’s any reason the juror can’t deliver an impartial verdict, and I raise my hand and approach the bench and say: “I can’t send somebody to jail for selling illegal drugs, because I’ve taken illegal drugs, and it would be the height of hypocrisy for me to vote to convict. And so if you put me on the jury, I will have to exercise the nullification role of the juror to vote for acquittal no matter what.”
So I would be absolutely clear and say that you would vote for acquittal, and you will be struck; you will not have blood on your hands this time, and if this is such an important issue to you, you need to put your shoulder to the wheel of advocacy and put your efforts there.
Bloom: Three thumbs up for “tell the truth.”
Shafer: Now, Kenji, do you think this is akin to “Letter From Birmingham Jail”?
Yoshino: First of all, my answer to that is: Nothing is like “Letter From Birmingham Jail” other than “Letter From Birmingham Jail.” I’m so tired of people citing “Letter From Birmingham Jail” when they want to not obey the law.
Bloom: Right, and this ain’t that.
Shafer: You brought it up, pal.
Yoshino: I did, I did. Mea culpa. But to get to the real question that you were asking — I do think there’s a difference in being “open and notorious” in the way you exercise your civil disobedience. You’re saying, “If you want me on this jury, this is what I’m going to do, but I have to let you know that these are my priors.” What this individual is doing is very different from that.
After years of dealing with street parking, my husband and I recently rented a spot two blocks away. This has made life notably easier for us. But we did have a rather heated conversation after I said he should not be grabbing spots in front of our building just because they are available. LAUREN, RIVERDALE, N.Y.
My response: This letter didn’t ask for anything. I’m not going to assume I know why she wrote. I was going to say I hope she learns to resolve or avoid heated conversations more, but as far as I can tell, they’re inevitable.
The New York Times’ response:
Shafer: Free parking in the commons is a right that everybody has. Just because you pay for a spot, that doesn’t mean you’ve opted out of the basic right to a free parking spot any more than you have the right to breathe regular air if you have an oxygen tank or the right to drink water from a public fountain when you have Dasani at home. What you purchased is a convenience, and like many conveniences, it’s not unethical to partake of them or ignore them.
Bloom: Of course they have the right to park in the common spaces. On the other hand, it’s a nice thing and a contribution to the greater good that you have a neighbor who is mindful of other people.
Shafer: If she cares that much, maybe she should just get rid of the car.
Bloom: Or the husband.
Many charities to which I have never contributed and have no interest in supporting send appeals in the mail containing a nickel, a quarter or even a half dollar. Is it ethical for me to keep this change, or am I obligated to spend 49 cents on the postage to send it back or else throw it in the trash? NAME WITHHELD
My response: I would be embarrassed to have asked this question. No wonder the writer withheld their name. I’m not going to spend any more time or attention on it.
The New York Times’ response:
Yoshino: I start with the legal-contract principle that says you can’t make another person your debtor without that person’s consent. So I feel that this is very unethical behavior on the solicitors’ part, saying, “We are going to guilt-trip you into giving to our charity.” The person should be able to do whatever he wants with the money.
Shafer: Kenji, is the unethical thing here the money or the guilt-tripping? Because most charities send you pictures of deformed children or leukemia victims.
Yoshino: It could be both. But the question is: If somebody gives you something of value, can you then go out and use it? And I think the answer is yes. If somebody sends you a picture of a deformed child, and you can sell that picture of a deformed child on the open market, that is also something that you’re free to do.
Shafer: That wasn’t what I was getting at, counselor. Is guilt-tripping unethical?
Yoshino: I think in this instance it is. I don’t want to say that in every instance it is, but it feels extremely manipulative. You receive this money or the picture of the deformed child, and that’s supposed to evoke some feeling in you that you need to give to this charity.
It’s particularly problematic with the money. Money has a social meaning, so if somebody gives you money, you feel as if you owe them. I’m sure there’s a lot of social-psychology literature on this that says if you give somebody a small gift, they feel the need to reciprocate, and that’s what they’re trading on. I think that is unethical. And there isn’t an obligation to respond to that form of manipulation.
Bloom: It seems to me that guilt-tripping is sort of the line of business for charities, whether they’re sending you the photo or the penny. But I wouldn’t characterize the guilt-tripping as unethical. It’s stupid, ineffective, manipulative and not nice. But no matter what you say about it, the person who gets the penny is not obligated to return it or donate anything.
Yoshino: Guilt is not the only currency in which charities can trade. There are many charities that say, “Here’s a person who was greatly helped by our charity, so let me tell about a success story, and wouldn’t you like to be part of this project?” Whether or not market psychology says that’s equally effective is a different question. But let me answer your question with another question. Jack, what would you do with the money?
Shafer: We’re all in agreement here — it’s manipulative, it’s skeezy. Where I break with you, Kenji, is I don’t think it’s unethical. What I generally do with the money is take it and give it to the next available panhandler. The person I give it to puts it to immediate valuable use, and I sort of wash my hands of the money.
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