The Ethics of Pharmaceutical Pricing

I don't think I'm alone in having noticed in my own country – as well as throughout that part of the developed world where states run reasonably expansive publicly financed health service schemes – an increased political and general societal problematisation of the costs of new pharmaceuticals.* The background to this increased focus is doubtlessly complex, but four aspects stand out as especially relevant explanatory factors. First, there is the generally splendid public health situation in these countries, with ever increasing average life expectancy and declining morbidity rates at the population level,** but with the side-effect of more and more of this increase being effected by reparative treatment of chronic, aging-related health problems, rather than primary prevention of basic health problems. Second, there is the next step in pharmacological development strategy, whith drugs targeting more and more specific and limited groups of patients and conditions, as a side-effect also providing treatment for extremely rare and serious diseases which have before been a dire fate to bear, with very limited treatment opportunities (many of these monogenic diseases which have been virtually untreatable). Third, there is the increased focus on rationality and ethics of public spending and the organisation of health services, effecting a greater transparency, control and regulation of the assessment, introduction and prioritarisation of new treatments. Fourth, there is the pricing policies of pharmaceutical companies, in extension reflecting the chosen expectations of return on investments of their owners. This post is about the fourth of these factors.

In most discussions of public policy in this area, this fourth factor is and has for a long time been treated as an immovable state of nature. There are three basic reasons usually presented in favour of that stance: First, commercial businesses have to be assumed to act as commercial businesses and strive to maximise profit for their owners, and are – in fact – in most jurisdictions required by law to do so. Second, if pharmaceutical companies would not be allowed to act in this way, they would soon be deprived of investor capital (as this would move to more profitable areas), and this would cripple the development of new drugs. Third, states are not capable of taking on the task performed by pharmaceutical businesses today; if they would, the result would soon be either an even worse cost crisis, or declining development and production. I think that the third argument is worth some critical discussion, especially in some areas of particular societal importance – such as vaccines – but in the present context, I will let it stand unquestioned for the sake of discussion. That is, I assume in the following that states are indeed dependent on private business solutions to have an effective development and production of pharmaceuticals.

But what about the other two arguments? Lately, these have been questioned in the context of debates in several countries about the pricing of a drug called Soliris by its manufacturer Alexion, targetting the rare and very serious hereditary disease Atypical hemolytic-uremic syndrome, or aHUS. In several countries, agencies responsible for assessing the evidence base, cost-efficiency and priority of new drugs have expressed serious complaints about the high price (here, here, here, here). In several of these cases, the national health services have eventually chosen to introduce this drug any way, in order not to have heavily burdened patients caught in the fight between health institutions and drug companies. But the change of tune with regard to pharmacological companies is notable, and raises the more general question of the plausibility and validity of the two arguments above.

I will claim that, given that the thesis supposed to be backed up by the arguments is that national health services, governments and related agencies have no reason to apply normative (ethical or political) judgement regarding the pricing of pharmaceuticals, my assessment is that while both arguments are plausible (as in likely to be true), they are invalid (as in not supporting the conclusion). I will support that claim with two arguments, one ethical and one political, and then sign off by pointing to some complicating factors that I think are mostly overlooked in health policy debates.

1. Even if commercial companies lack moral obligations, their owners don't
It may be debated to what extent commercial companies have moral obligations and, if so, which these are. Most countries have set up a system where, in Milton Friedman's famed words, 'the business of business is business' – that is, beyond keeping to the limits of criminal and necessary civil, and administrative law, commercial companies are not to mind about anything else than meeting the profit expectations of its owners. Based on this, a company may, of course, chose to abide by one or the other moral judgement, but only to the extent that it is thought to be a sound commercial strategy as defined above. Also, while thus using business only for its expected good outcomes of business (usually increased productivity of goods and services), a state may take political action to compensate for its bad side-effects, e.g., with regard to public health. In recent decades, this 'separation thesis' regarding the obligation of commercial companies (to maximise profits for its owners inside the realm of the law) has been questioned as both increasingly irrelevant (due to globalisation, which enables companies to move freely between jurisdictions in an amoral manner, thus emptying the content of the requirement to abide by the law) and for its inability to reply to increased arguments coming from the area of business ethics, corporate social responsibility and political philosophical observations that the separation thesis assumes a demarcation between the realms of business and that of basic public concerns which is simply not to be had.

However, even if we would grant the idea that companies have no other moral obligations than meeting the profit expectations of their owners inside the realm of the law, it doesn't follow that national health services, governments and related agencies have no reason to apply normative (ethical or political) judgement regarding the pricing of pharmaceuticals. This since the separation thesis does not in any way undermine the claim that owners of businesses have moral obligations and ethical reasons to behave considerate towards other people beyond what the law may require. Or, it may do so in the first instance, as many owner's are institutional business parties (banks, funds, and so on), but at the end of the day, there will be actual and quite ordinary people, and these have the same moral obligations as anyone else. In fact, it would seem that the whole idea of the separation thesis rests on the assumption of a well-functioning society within which businesses may operate, and a core part of such a society is that people act decently towards one another. This implies, e.g., the recognition  of basic and reciprocal civic obligations of due diligence, duty of care and general consideration to other people – all stretching beyond what is strictly required by law. Just start to imagine what walking along a street in a city would be like absent such basic cultural arrangements in place. Likewise, imagine a society were no individual assisted another in need according to such principles. I take it that no one would disagree that we hold these sort of moral obligations to one another. However, if we do, these don't just magically disappear if we happen to open a shop or purchase some company stock. Even if not required by law, as owners of businesses, we are still bounded by ethical considerations to other people, e.g., to care for those in dire and undeserved circumstances.***

So how does one discharge these moral obligations in the role as owner of commercial enterprise? Well, since the enterprise itself – a company – works according to the main principle of realising the profit expectations of the owners, the lever available to an owner seems to be exactly these expectations. That is, the material outcome of the duty of the company towards its owners being discharged can be manipulated by the owners' communication into the company structure of what level and rate of return on invested capital is being expected. This creates ample room for an owner to have ethical reasons to adjust such expectations in view of reasons beyond those of "pure business". Transferred to the case of pharmaceuticals, this line of reasoning results in the conclusion that, to the extent that this is required by our normal set of ethical reasons to be considerate towards each other, an owner of such a company has a reason to decrease his or her expectation of return on invested capital, whether in terms of level or rate. In both cases, such an adjustment will enable the company to adjust its pricing downwards without defaulting what it owes its owners. To be true, such a reason need not always be available, but in the case of drugs for very serious diseases, it seems quite reasonable to claim that it does. Note also, that the reasoning can be applied also to argue against withdrawing investment, thus diffusing the argument that reducing profit margins to enable lower pricing would effect investment flight. Maybe it would, but it still holds that investors should not thus flee a slightly less profitable investment that would mean meeting one's general moral obligations to other people. I made this argument myself, in the Swedish debate around Soliris.

In conclusion, the idea that there are sound and valid normative (ethical) claims to make with regard to the pricing of effective drugs for very serious diseases holds up to scrutiny. The (assumed) facts that "the business of business is business" and that (potential and actual) owners of pharmaceutical companies do as a matter of fact not currently seem to act in accordance with their moral obligations (maybe partly because these have not been recognised) do nothing to undermine this claim. Owners of pharmaceutical companies owe it to very sick people to adjust their profit expectations to enable more modest pricing, and potential owners owe the same people not to withdraw from investment due to this obligation.  

2. States owe their citizens not to be money pumps
The second argument does not target individual people in their role as (potential) owners and investors, but rather state institutions in their roles as counterparties in business negotiations. This argument is entirely independent of the first one, and will hold up even if the former would be shown to be somehow faulty. The argument does, however, assume that pharmaceutical companies are behaving more or less according to "the business of business is business" pattern, with owners who as a matter of fact do not moderate their expectations on return on invested capital as they should. Should owners start to behave more in line with their moral obligations, the validity of the present argument will be undermined (although it is still sound).

The behaviour of pharmaceutical companies with regard to pricing of drugs as just sketched means that they try in every instance to find an optimal equilibrium between the price per sold item and the number of items sold. This is the reasons why the so-called "list price" of new drugs is in most cases much higher than the price eventually paid by public health services; the company sets an exaggerated price as it expects a negotiation where the price will be decreased in light of consumer demand, as expressed by the public agencies doing the state's bidding. In my own country, where up till recently, this bargaining has been undertaken by each single county government (responsibly for its health care service region), companies have thus been very savvy at, insisting on commercial secrecy around the agreed price, play all these counties against the middle to maximise bargaining outcome. From a political ethical standpoint, to have state or county agencies – and ultimately tax payers – thus being allowed to be played for suckers is simply unacceptable. For what it means is that the state – in view of the never ever ending demand for health care – allows commercial parties to milk its treasure chest dry. In more technical sense, the state thus allows itself to be what experts on economic bargaining rationality and game theory call a money pump – someone who applies a bargaining or game theoretical choice strategy that systematically leads to a losing position, albeit each single move may appear winning, given the circumstances.**** The argument that one should avoid such strategies (technically, to avoid dutch book strategies) has given raise to the discipline of dynamic choice theory, and is a standard motivation, e.g., for why it is irrational to apply decision strategies that make one succumb to blackmail – as each concession of a black mailer's demands (no matter of well motivated in the single instance) makes it rational for the blackmailer to continue the blackmail and increase the demands. In the case of negotiations about the price of pharmaceuticals, the state or responsible public agency becomes a money pump by being overwhelmed by the reason to accept the offered price presented by needs of single patients, and thus not considering the option of declining the offered product as a live option. Just as the blackmailer in the analogous situation receives increased reasons to continue the blackmail and up the stakes, the pharmaceutical companies are thereby reinforced in their reasons in terms of business logic to increase prices even more, and thus increasingly bleed the public health services budget.

I take it that everyone agrees that a state and its agencies owe it to their people to avoid such positions. As a matter of fact, since the rationality of avoiding being a money pump is so basic, this would seem to hold even on the super-thin libertarian idea of the state as a security business enterprise of its citizens (which I take most people would want to go beyond). But to do that, the state has to create a bargaining situation where the counterparty counts a declining of its offer as a live option to be calculated with. And to create that situation, the state needs to actually decline offered services also when they are necessary to meet important needs.If they don't, the companies will not view such a declining as a live option, and will thus be motivated to increase the stakes. Now, this does not necessarily mean that it is in case of effective orphan disease products such as Soliris, where the most urgent need for such demonstration of actual bargaining power is called for. Rather, one would find it more acceptable to decline state subsidising of treatments for far less serious, albeit more widespread conditons, although that may not harvest much of political popularity. But if the state never says "no" to anything, the money pumping result will eventually affect the entire public health service supply, and it is not unlikely that before long the willingness of citizens to fund very expensive treatments for conditions that strike only very few will falter as a result. Moreover, as more and more drugs for all sorts of condition (many of which will not be as extreme as aHUS) can be expected to become "orphan" in the sense of targeting only very specific patient groups, or add only very minor therapeutic effects (and often considerable side-effects) to serious conditions which are inevitably killing patients very shortly (as is the case with many new cancer medications), the fact that the targeted condition is either rare or very serious cannot by itself be a disclaimer from applying a rational bargaining strategy that also takes into consideration therapeutic effect, cost and opportunity costs in terms of what other treatments to other conditions may may be funded by the same money.

In any case, however, the many difficult priority setting issues which follow from the state and responsible agencies thus taking its responsibility to citizens are handled, the fact remains that the state does have such responsibilities. As much as society has reasons to allocate resources to be able to offer its members publicly available health care services, it has strong obligations to the very same members not to unnecessarily waste these resources. Avoiding the money pump position in relation to pharmaceutical companies seems like an elementary part of performing that duty.

3. Where we are in all of this
In conclusion, there are two separate arguments for the existence of valid and sound normative reasons to apply to the pricing of pharmaceuticals by commercial companies. Both assume only a very minimal idea of ethical and political reasons, which should be acceptable across most otherwise competing ethical and political positions and ideologies. However, there is an interesting dialectic between the arguments, hinted at when I wrote above that the second argument gains in validity to the extent that the first argument is ignored by the acting parties – owners of and investors in pharmaceutical companies. But who are these owners? As pointed out, in the first instance they are probably mostly banks, investment and holding companies, funds and so on, but at the end of the line there will of course be actual people (who hold the ethical obligations claimed in section 1 above). Some of these will, of course, belong to the fabled 1% of repugnantly rich, but most of them won't. In fact, most of them will be like you and me, people who has a bit of insurance, a bank account, a small slice of a pension fund (no matter how modest), loans, maybe even some stock. And even if our possessions of this sort are very modest, we are benefiting from a public health services system, which include funds where the capital to pay for and subsidise pharmaceuticals and public health care investments is stored and managed, and we may even be due for a bit of minimal public pension from funds equally so taken care of to be able to deliver what was originally promised. In other words, we who gasp at the indecent pricing of pharmaceutical companies are the very same people who in section 1 above were claimed to have moral obligations to lower their expectations of return on invested capital. In view of the apparent fact that this seems to imply that most people have to lower their pension-, insurance, savings- and welfare demands, one may quite plausibly doubt our collective capacity to effect such an adjustment, no matter how persuaded we are of its rationale on a theoretical level.

Therefore, as in so many other cases, the most rational solution would seem to be the second one: to press the reasons for the state and involved public agencies to apply effective and rational bargaining strategies against the pharmaceutical companies. Of course, to have effective such systems, it is rational to abandon the subsidiarity system, where each county government make their own bargain, and centralise the process nationally. But that's only the first step, of course, as the same logic tells us to accept multinational bargaining cartels, possibly across the entire EU. That will probably have quite a bit of bite, although it will also necessitate difficult issues of health care policy priorities, due to the need of sometimes actually saying no to the offered goods. Moreover, it will, as in so many other cases where we are unable to do collectively what we should be doing together, force us to accept the concessions (in terms a lowered returns on investments, savings, pension fund, insurance benefits, what have you) we were obliged to accept by ourselves, but failed to do.
  

*) There is, of course, a comparably much more pressing issue about the cost of and access to pharmaceuticals in developing and/or economically deprived settings. This issue has attracted the attention of ethical reflection for a long time, and there is a rich debate addressing its many levels to dip into for whoever feels like it – just make some searches using "orphan drugs", "orphan disease", "ethics" and "access to healthcare in developing countries", and you're set.

**) Granted, there is also in many of these countries stark health inequalities. However, if we plot the curves from the start of these modern health policies at the beginning of the 20th century, even the worst of worst-off groups of today come out considerably better. This is not to say that inequalities of the present are unimportant or that it shouldn't be a priority to decrease them, and to lift the worst off even higher (it should!). But the point remains that also the worst off of today cannot be made much better by primary prevention, but will also need the same shift to expensive reparative treatment of basically incurable conditions and mere aging. 

***) The qualification of "undeserved" is inserted merely to silence objections based on considerations of desert.

****) The classic "money pump argument" regards only the case when such a strategy is the result of a choosing party entertaining intransitive or "cyclical" preferences, and used to motivate why a rational actor must avoid such preference structures. However, the argument apparently rests on the assumption that being "pumped of one's money", as may result in this instance, is a general fault to be avoided by a rational actor, no matter the explanation.

Video: The Philosophy of Hate Crime: Concepts, Values and Tensions in the European Context

As some may have noticed, from time to time I have posted materisls and ideas coming out of a European research project on hate crime policy of which I have been a part. The project When Law and Hate Collide is now officially over, but material will keep coming out throughout this as well as the next few years. For instance, at the moment, me and my philsopher colleague in the project, David Brax, are in the process of preparing a special issue on the philosophy of hate crime of the cross-disciplinary research periodical Journal of Interpersonal Violence, to appear in 2014, and earlier this year, we made public our report on the philosophy of hate crime, available open access for online reading and download by clicking the link above.

Now you can also view online videos from the final conference of the project, held in Brussels, January 29, available via youtube here, and the presentation of our philosophical perspective, The Philosophy of Hate Crime: Concepts, Values and Tensions in the European Context, is embedded for direct viewing here below (the slides are not very visible on the video, so these can be downloaded separately via the link above)!



All earlier posts connecting to this project, including videos from earlier symposia on the philosophy as well as psychology of hate crime, are here.

COP-17: Brazil, China, India, South Africa and USA Wearing the Dunce Cap, Europe the Jester's

Some of you may know that this has happened to become a bit of yearly feature – me commenting on the latest climate policy debacle happening as clockwork this time of year. Earlier posts are here and here. Sources for getting to know about the outcome of this year's COP are here, here, here, here, here, here (last three international, more below).

To summarise, the outcome of COP-15 in Copenhagen in 2009 was nothing except that everyone agreed to keep meeting and that having a climate change policy deal capable of stopping the increase of the global mean temperature at 2°C is an important target. In Cancún last year (COP-16), not even that happened, since Bolivia declined to sign on to continued talks. What did happen, though, was a sort of thing that ended up as the main product of this year's talks, namely agreement not on any policy, but on the practical structure of continued talks. In the COP-16 deal, this agreement was restricted to the way of handling the most difficult questions of all, namely the distribution of the costs of climate change policy (emission reductions as well as adaption to inevitable natural changes); which is planned to be dealt with through a special fund.

This year, nothing more about this fund was said (such as how it is going to become filled with money), but a similar empty institutional form has been set up for the entirety of the continued process, planned to lead to an agreement on emission reductions in 3 years. In short, instead of yearly meetings at the highest levels, there will be a committee that will work for almost 3 years to tailor an agreement and a new COP-meeting in 2015 where, hopefully, the committee can present a substantial deal about climate policy rather than meeting policy that all countries are willing to sign on to. This is the "roadmap" that is presented as the success of COP-17 in Durban.

As, usual, if the expert commentators are to be believed, this agreement, is full of ambiguities, grey areas and explicit holes, but that goes with the territory of international agreements. However, what it effectively does is to reduce the number of opportunities for the global community to actually agree on something with any chance of reaching the goal of no more than 2°C increase of the global mean temperature from three to one. After 2015, experts advise us that we will have to start calculating with more drastic average global temperature increases even if very effective policies for reducing greenhouse gas emissions are eventually put into motion. Now, the 2° target, it must be understood, is not in any way magical or set in stone. In fact, some claims it to be a much too allowing goal. Moreover, the target is rather a range than an exact temperature, since the climate models necessarily embody rather drastic uncertainties. But the 2°C is of importance for two reasons. First, it is one of the very few substantial things about climate policy that the global community has been able to agree on. Second, it approximates the limit of our empirical knowledge from the past and, thus, our basis for prediction, preparation and adaption in face of the various changes that increases of the global mean temperature bring. A bit simplified, beyond 2°C, what we have is basically mathematics and fantasy – something that is amply illustrated by the predictive models in climate change research. Our ability to prepare for whatever will be coming – and thus to be capable of reversing the process without considerable higher cost to human life and well-being – becomes drastically weakened. So, seen in this light, the bare bones of COP-17 is that such a prospect has become 66% more likely by agreeing on one attempt to agree rather than three.

Now, if any politically minded person reads this, he or she will probably protest. The reasoning above ignores that the model of yearly meetings at the highest level has a solid record of failure, and that the Durban roadmap means that a committee will be working for three years before the next meeting. This is a big different to the situation where initiatives were left to individual countries or leagues of such. They will say: the basic problems – the unwillingness of high emission countries to commit to the needed reductions and the unwillingness of rich countries to face the fact that if they do not pay for the needed measures, no one will – necessitates that whatever proposal is presented at the next meeting is well worked out in the eyes of all sides and parties. I accept this logic of the pragmatics of politics, but I am skeptical about the conclusion. In fact, when not having the spotlights of the world stage on them, isn't it even more likely that high emission countries will continue to press even more heavily the rest for more concessions and rich countries do the same to less rich ones? Then, when the result is on the table,  all that will remain is the window-dressing that makes it look OK in the eyes of the public, while under the shiny surface mostly expressing short-term and, in this context, petty national interests. In short, committee, fine – but let's speed up and have one working while keeping on having at least one high-level meeting every year to ensure public and critical scrutiny the whole way!

Looking at things from that angle, however, implies a standpoint that fit most politicians pretty bad. It means, for example, acknowledging that this year's COP meeting, just as the former ones, was a massive failure. Not, as this commentary from UK Energy Secretary Chris Huhne tries to spin, a series of successes. Why is this so repugnant to a politician? Well, basically, because of two things. First, in the current situation, where the unholy CO2 emission alliance of Brazil, China, India, South Africa and the USA, are allowed to keep bullying the rest of the world, everything that is an avoidance of total disaster is possible to hold out as success. This is what the statements of Secretary Huhne and a whole band of European politicians are illustrating today. The presence of the climate policy boogeyman (i.e. above mentioned countries) is used to make oneself appear as a hero when, in fact, what has occurred is that one has let oneself be pressed one more notch in the shortsighted game of chicken played by these countries. In this game, apparently, Europe and the rest of the Kyoto-protocol signing countries are allowing themselves to become what game theorists know as money pumps – someone who is applying a strategy that makes one systematically vulnerable to making deals that sum up to a loosing position, while one's counterpart is systematically winning, although each singular deal may look like a winner. Giving in to blackmail (which is, effectively, what Europe is doing in the climate policy negotiation game) is a prime example.

On a larger scale, what is achieved by the Eurpean (plus Canada and Japan) strategy is the following: Brazil, China, India, South Africa and the USA can go hone from Durban, as they could from Copenhagen and Cancún, telling their people that all is well and that they needn't worry. They don't have to tell them that they need to change their expectations to future material growth, the price of energy or anything like that. Why not? Because they have ample evidence that they can press other countries to pay all those bills the day when they arrive. In effect, we may expect no, repeat no, preparation on the political home-fronts of these countries for a climate deal in 2015 which implies making actual concessions and taking on actual commitments. This, I claim, is the main result of the strategy of the EU and the rest of the world in Durban. So ask yourself, how likely does a substantial climate policy deal in 2015 look in that light?

Good work, Europe!

Videos from The Philosophy of Hate Crime Symposium.

As some of you may recall, in a post earlier this fall, I shared videos from a symposium arranged by a project I'm working in on the basis for European hate crime policy, and informed about a 2nd symposium on philosophical issues actualised in that context that we arranged here in Gothenburg. Even earlier I have made a few posts on issues actualised by the project (on the relation between hate crimes and human rights and on the role of prevention in a sound hate crime policy) and pointed to many more at the blog of my colleague David Brax.

We are now happy to be able to share videos of almost all of the presentations and attached discussions that took place during the Philosophy of Hate Crime Symposium, arranged by David and me at the University of Gothenburg a few months ago. As I myself fell ill on the 2nd day, you will only see me appear in the introduction, but David does a splendid job of holding together by himself what was originally our shared presentation on such short notice in the last video below.

One of the more nice things that I noticed when watching this footage right through was how surprisingly well it captures the atmosphere and spirit at what was a bona fide research workshop, rather than a public engagement event put together for that particular purpose. What you see is an example of what goes on in the laboratory of a research unit in the humanities and social sciences, basically. Welcome to take a peak!

1. Anthony Mark Cutter & Christian Munthe: Introduction to When Law and Hate Collide


2. Paul Iganski: How Hate Hurts: The Moral Philosophical Basis of Hate Crime Laws 



3. Barbara Perry: Moving Beyond "Hate" Crime 



4. Neil Chakraborti: Targetting Vulnerability - A Fresh Set of Challanges for Hate Crime Scholarship 



5. Heidi Hurd: Criminalizing Hate, Criminalizing Character



6. Mohamad Al Hakim: Hate as an Aggravating Factor in Sentencing 



7. Antti Kauppinen: Two Kinds of Expressive Harm 



8. David Brax: A Tentative Philosphical Framework for Hate Crime Policy Across the European Union

The Philosophy of Hate Crime Symposium

On Monday and Tuesday the coming week, I and my colleague David Brax, will be hosting the 2nd European hate crime symposium, arranged within the EU project When Law and Hate Collide, on the theme The Philosophy of Hate Crime. The program of the symposium can be viewed here (click pic to enlarge):

During the two days of the symposium, a hand-picked collection of international scholars and experts on the underlying philosophical and ethical issues actualised by the phenomenon of hate crimes and the challenges of designing hate crime policy will present their views. They will, furthermore, discuss with us in the project basic such issues related to the challenge of designing an overarching European hate crime policy with regard to criminal law, monitoring, prevention and public awareness. The symposium will be documented by the University of Gothenburg TV and audiovisual department, for eventual broadcasting through Swedish TV and the internet.

During the symposium, you can follow the action on twitter, using the tag #H8Crime

While waiting for that, it may be of some interest to watch some of the footage done at our first symposium, held in Strasbourg this spring. Below, you find some of the presentations plus a part of the roundtable discussions we had with interested members of the European Parliament (this video has some image damage at the end, but the sound is clear all way through).

1. Anthony Mark Cutter & Keiran M Bellis: Introduction and overview of the European hate crime situation

2. Paul Iganski on what is bad about hate crime

3. Paul Gianassi on the UK law enforcement approach to hate crime

4. Alke Get on German hate crime policy

5. Nathan Hall on what hate crime is and may be

6. Sylvia Lancaster on the Sophie Lancaster hate crime case, and the issue of the scope of hate crime policy

7. Excerpt from roundtable discussion of hate crime, policy concerns and research needs with members of European Parliament

Approaches to Preventing Hate Crime

This piece connects to two former posts (here and here), actualised by my participation in the project When Law and Hate Collide: Perspectives on Hate Crime, meant to produce a basic ethical, theoretical and factual framework for harmonising various aspects of European hate crime policy. My Swedish colleague in the project, David Brax, also has a series of posts linking to this project at his blog, Brax on Philosophy.

My former post was about the concept of hate crime – or, since the term "hate" is not really a good one: bias crime as many are starting to call it – and how it connects to the concept of human rights. That post, like so many opinion pieces connecting to hate crime, suffers (at least a bit) from a tendency to be seduced by the word "crime". This word makes us immediately think about criminal law-making, court proceedings, police-work, punishment, and so on. And those aspects of a policy addressing the phenomenon of hate crime are, of course, important. However, if you think that hate crime is a serious matter – serious enough to motivate special legal provisions, at that – you should in fact be more interested in another aspect, namely, what a good preventive policy related to hate crime should look like.

Now, since I am a philosopher and ethics researcher, what I have to say about this will not be very hands on or immediately practical. It will, however, be of interest for those pondering more concrete preventive issues connecting to hate crime and possessing the qualification for doing that in a good way. What I will do, is to set out four different approaches to how one may go about pondering such issues – within what theoretical frames and assumptions the development of preventive hate crime policy strategies may proceed. I will present four such frameworks for preventive thinking in this area, and then conclude by pointing to some important ways in which these frameworks connect and may promote each other.

1. Effective General Crime Prevention
As explained in my former post, hate crimes are not a special type of crime. Hate crimes are ordinary crimes with an additional element: the occurrence of the crime is connected to some sort of factor signalling that the perpetrator commits the crime in conjunction with holding or expressing a particularly biased or disparaging attitude or view towards the victim in virtue of a perceived membership of this victim in some particular social group. This immediately implies that an obvious strategy of prevention as regards hate crime is to effectively prevent crime in general.

Now, many people believe that there is a connection between retributive responses to crime and the occurrence of further crime, and that may very well be so. At least in the individual case, if a perpetrator of a crime is sentenced to imprisonment for some time, this person will not have much opportunity to commit further crime while locked up (at least not outside of prison). However, it is also well known that such retroactive individual prevention strategies are a rather minor part of the tools available to a society that wants to reduce crime rates. Philosophers of law and punishment have often pointed out that, as a matter of fact, such reduction is probably most effectively reached by simply de-criminalising some of the most common crimes. While this is a logically valid point, I will, however, not consider it further here, since it so obviously misses the point about crimes that they are considered crimes due to some reason; for instance, that they tend to seriously harm people. Still, the philosophical point helps us to see that there are other ways of thinking about crime prevention than merely reflecting on fitting responses to people who commit crimes. Instead of becoming caught up by the individual case, where the idea of prevention is practically applicable only once we know that we are dealing with a person to some extent likely to perform a criminal act, we can think about prevention on a more overarching scale, in terms of general factors that appear to be linked to the general frequency of crime in a society.

There are several factors of this type that are well-known. One, of course, is the level of poverty, destitution, and similar conditions. Another factor that has been highlighted more recently through the book The Spirit Level, is social inequality. A further, very important factor, is the level of legal security and quality of government – the latter presently a major research theme at my university – factors which involve not only that societal systems of regulation are marked by formal efficiency, transparency, clarity and so on, but also by them being trusted to a high degree by the general population. All of these factors, in turn, point to a further one: the inclusiveness, recognition and equal treatment of a society as regards the various social groups found in it, at the same time as individuals are not as a rule treated primarily as representatives of such groups. The latter is added in order to make clear that I am not here alluding to some sort of mindless "anything-goes-as-long-as-it's-part-of-your-culture" relativism.

General prevention strategies to reduce crime that work with factors such as these become more important to consider the more a society contains people who live their lives in severe circumstances, the wider the inequality of a society is, the more of corruption and legal insecurity is pestering the lives of citizens, and the more culturally pluralistic a society is. On a European level, where wide variation in all these respects is to be found, it would thus seem that general crime prevention is, in fact, an important – if not central –part of a sound hate crime prevention policy.

2. Prevention of "Hate" or Bias Against Social Groups
The other rather obvious approach to shape a prevention strategy with respect to hate crime connects to the other defining component besides crime, the "hate" or "bias" component. If hate crimes are crimes linked to the perpetrator entertaining a biased or disparaging view against the victim in virtue of perceiving the latter as member of some social group, preventing such attitudes in the first place seems the thing to do, doesn't it? In order to become clear about what that may involve, and to what extent it should be seen as a desirable or important part of a hate crime prevention policy, we need to make some qualifications.

First, trying to prevent the appearance and occurrence of these sort of attitudes is not necessarily only about fighting antagonism or prejudice between different social groups. Attitudes of the sort in focus may very well occur within such groups – and may thus be expressed between individuals who are members of the same group. A simple example would be person A saying to person B: "you are not behaving as a member of group X should", when both are members of group X. There are a lot of examples of crimes seemingly being committed on grounds such as these, such as harassment of people who do not conform to some religious or moral rule of their culture, assaults or infringements to discourage or impede socialising or forming relationships with members of other social groups, and so on. Some of these instances may, of course, belong to the cluster of problems which hate crime policies are aimed to target, but it is not obvious that all of them do. When it comes to the attitudinal component, hate crime as a societal problem foremost connects to inter-group antagonism.

Second, we have to distinguish between two conceptually separate pieces of the attitude. One of the pieces is the attitude towards the group. The other piece is the tendency to judge individual people on the basis of that attitude due to their (perceived) group-membership. Both of these seem to be necessary in order for a hate crime to ensue. However, it would seem that a preventive strategy targeting one of these pieces of the attitude would have to be rather different than a strategy targeting the other piece. Moreover, it is far from obvious that it should be the business of society to try to influence the first piece of the attitude. Suppose for instance, that the disparaging attitude towards the group is based on certified presence within that group of some phenomenon towards which it is perfectly legitimate to hold a disparaging attitude. This could be a custom harming members of the group, a traditionally held worldview containing obvious falsehoods, or something else in that vein. While society may have good reasons to fight and prevent prejudice, this would not apply in such cases. The second piece of the attitude, seems much more apt as a target of societal action. For even if the attitude towards the group would be well-founded and legitimate, it is still a fundamental flaw to judge individuals, who may very well themselves be victims of the feature of the group that explains the dislike. Simply put, preventive policy as regards hate crime targeting the attitudinal component should focus primarily on the phenomenon of overgeneralisation occurring when people project collective patterns of behaviour on single individuals.

This line of reasoning may not look immediately acceptable to everyone. Why? it may be asked, shouldn't society care about antagonistic attitudes between groups as such? Didn't you just say above that this is what is problematic about the attitudinal aspect of hate crime from a societal point of view? Indeed I did, but what has now been added is the observation that this component is complex, and that not all parts of this complex appear to be equally important. For sure, if strongly antagonistic attitudes between different groups in society develop, this is something for society to care about. But the reason for why that is so mainly seems to connect to what may follow such a development. It is not a societal problem as such that people hold prejudiced or biased views about each other. In fact, in a liberal democracy, it would seem that one of the core values that we cherish is that we are allowed to hold whatever views about anything we want. Society has some interest, of course, to try to promote an educated and rational approach to the formation of such views (which is, partly, where action to prevent overgeneralisation and projection comes in). But we cannot escape that in the end, people will form their own opinions about each other, factually as well as morally. Society is also, of course, entitled to push this basic moral message – forming as it is the basic motivation for this society in the first place. However, as just observed, that would seem to entail primarily fighting the overgeneralisation and projection tendency, since that phenomenon runs directly contrary to basic ideas about the equal value and respect owed to each individual person. We all owe each other the courtesy of judging and assessing each other on the basis of individual features and merits - that is a basic cornerstone of a liberal democratic society, and it is indeed the business of society to promote such an attitude.

3. Prevention of the Tendency of Acting Out Prejudice and Bias
Now, if we look closely at the concept of hate crime we see that the most important feature of hate crimes is fact neither the crime nor the attitudinal component, but the conjunction of the two. In effect, I argued in my former posting that one of the most salient reasons for society to have a hate crime policy is not the presence of bias and prejudice, not the presence of crime, but the presence of behaviour where people act out prejudice and crime in the form of criminal acts. In effect, it would seem that the most apt target of a preventive strategy would be exactly that.

Such a strategy is basically about building and promoting a clear and widely embraced culture of tolerance. While we may dislike each other and hold prejudiced views about each other, there is a limit to what we are licensed to do on the basis of that. This limit is not special, it is the same limit that we are not allowed to cross for any other reason as well (such as purely selfish ones). Thus, it is defined by criminal law. However, as society becomes culturally and socially more pluralistic, instances of people stepping over these limits due to bias and/or prejudice based on group-membership becomes more and more important to address from a basic societal point of view. Again, liberal democratic ideology basically celebrates difference. Thus, it is only to be expected that intra-societal socio-cultural variation is increasing. The same effect is equally (if not more) expected when several liberal democratic countries join up to form a union, like the EU. But even then, there is a limit to how much of difference is compatible with a decent society. We may think whatever we like about other people and groups, but we may not break the law because of such thoughts. This is the minimal portion of toleration that has to be in place for civilization to endure.

4. Preventing the Damage of Hate Crime
Now, quite obviously, preventing the aspect of hate crime mentioned in the former section comes down to the interest of society to prevent serious damage – in that case to basic building-blocks of a decent society. However, equally obvious, this is not the only damage done through hate crimes. Hate crimes do damage also by increasing the harm to crime victims (a view pursued foremost by Paul Iganski), but also by attacking the collective confidence and security of whole communities (as argued by, e.g. Barbara Perry). Moreover, we need to consider how patterns of hate crime may create negative spirals of self-reinforcing mechanisms. At a workshop in our project in Strasbourg in May this year, one of the several members of the European parliament that we spoke to pointed to how the acting out of bias and prejudice based on group membership against individuals of the targeted group can be expected to give rise to a similar outlook in the group to which the victim belongs towards the group to which the perpetrator belongs. This is a damage of sorts that connects closely to the aspect of hate crime addressed in the preceding section. We will meet both Barbara and Paul, in addition to a number of other scholars of the philosophy and theory of hate crime and related subjects, at a workshop in Gothenburg in just over a week from now, and I'm sure that more nuances and details on these aspects will appear in our discussions.

What is interesting to note, is that these damages may by themselves be targets of preventive policy. That is, even if hate crimes cannot always be prevented, the damage they do may be possible to at least mitigate. What I want to hold out here is that such prevention may come down to two rather different things. What is more, me and my German colleague in the project, Michael Fingerle, are hypothesising that, actually, some of these different approaches may be in severe latent conflict.

Roughly, we may distinguish, first, between preventive policies aiming for damage control and policies aiming for what in public health is known as primary prevention. Damage control is about going in when the damage is already under way and mitigate it is some manner. In the case of hate crime, an example of damage control would be if, for instance, society offers special counseling and support to hate crime victims. A primary prevention strategy, in contrast, works with the aim of having all potential victims (that is, virtually everyone belonging to a group at risk) prepared beforehand. We may also distinguish between applying such strategies at the individual or collective level. In the latter case, the strategy would work with not only the (potential) victim, but with the entire group, membership of which is what explains (potential) victimisation.

Michael likes to talk about these things in terms of resilience, a notion popular in social psychology and sociology. To be resilient is, basically, to be such that even when you are under strain, you hold up and is able to continue functioning in a good way. The idea, then, is to mitigate or prevent damage caused by hate crime by strengthening the resilience of individuals and/or groups. However, Michael has pointed out that this may mean very different things.

A classic idea about resilience of individuals or social groups is that they are equipped with psychological, cultural, social and other resources that help them stand up to external threats. However, in later decades a rather different approach to resilience has emerged, where the notion of coping has come into focus. This latter notion is markedly different from the classic resilience idea. To manage strains or external threats by coping is, basically, to give in and accept. Now, what has struck us when discussing this is that this latter strategy, at least in the hate crime case, would seem to go against the former one. If you respond to external strain in the form of hate crime by continuously accept the situation and adapt you may indeed succeed in mitigating some of the damage of the crime. However, in other respects you will actually add to this damage. In the individual case, maintaining resilience through coping can end up in the situation where you never leave your home due to the acceptance of the situation that you are a potential hate crime victim. In the case of entire groups, the coping strategy becomes quite ugly, meaning basically that oppressed people accept and adapt to the whims of the oppressor. In both cases, the end result seems to be that, first, hate crime does more damage than it would otherwise have done and, second, the chance of establishing a sort of resilience where individuals and groups are less prone to be damaged by hate crimes in the first place is considerably weakened.

Since the coping approach to resilience is currently very popular, this has given rise to some concern about what sort of preventive hate crime strategies are currently being deployed across the EU. Everything said above points to the importance of such policies being anything else than short-sighted.

Now, it is probably as obvious to anyone who reads this as to us in the project that the various aspects of hate crime that may be targeted by preventive policy connect to each other in various ways. One example is the last aspect discussed, where it is obvious that ideas about preventing or mitigating damage from hate crimes needs to be considered in the light of how the attitudinal aspect and the acting out aspect may be targeted. Another example is how the first aspect (general crime prevention), if successful, would seem to provide us with a situation where all of the other aspects become less problematic.

More on the US Embryonic Stem Cell Research Policy Turn-around

Having just finished replying to a comment to my blog post yesterday on this topic, the news reached me that the US Department of Justice intends to appeal the injunction of Judge Lamberth. Today, the day after, renowned US bioethics scholar Art Caplan reacts with admirably restrained rage in a comment that fiercely attacks the argument made by Judge Lamberth, as well as giving some additional insight into what sort of gatherings, forces and petty interests are behind the suits leading up to yesterday's ruling.

So my guess was right, we have only seen the first moves in what will presumably be a long legal dance. A dance, I have claimed, that is built on hypocricy and outright foolishness - as so often when dogmatism meets real life.

US Stem Cell Legal Debacle the First Step In a Long Fight Based on Absurdity and Stupidity

Today The New York Times reported that US president Barack Obama's about one and a half year old turnaround of US policy on embryonic stem cell research has been halted by Chief Judge Royce C. Lamberth of the Federal District Court for the District of Columbia. Judge Lambert issued a temporary injunction against Obama's policy change that made federally funded research on embryonic stem cell lines legal regardless of when these lines were created. Before the change, federal funding (i.e. NIH grants) could only be granted to projects utilising cell-lines created prior to 9:00 P.M. EDT on August 9, 2001. The judge's argument for the ruling is that President Obama's policy change violates a 14 year old ban on the use of federal money for stem cell research involving the destruction of embryos. The complete ruling can be found here. US stem cell scientists have reacted with shock and the news have quickly waltzed around the world, giving quick and strong echo also in my own country (here, here, here, here, here, here, here, just to name a few), thus illustrating the importance of US policy in this area for scientists and clinicians all over the world, also in countries like my own, that allows stem cell research on the same conditions of ethical review as other types of human subject research.

Judge Lamberth's ruling is the direct result of a suit against Obama's policy change made by the so-called Alliance Defense Fund, a Christian lobbyist and legal activist organisation that describes itself as "defending the right to hear and speak the Truth". One may justifiably rant about the obvious absurdity of this claim in light of the fact that the suit against embryonic stem cell research is an obvious move to stop stem cell scientists to be able to find and speak the truth about stem cells and their role in the human body and impact on human health. However, at the same time, I was not surprised by this attempt from the world (in)famous US "religious right". After all, the basic ethical stance underlying this particular opposition to embryonic stem cell research is that the destruction of human embryos involved in creating the cell lines in question equals first degree murder. In consequence, using the products of such destruction for research equals a deeply immoral exploitation on the occurrence of what people holding this view logically has to regard as mass murder of the same epic proportions as the Holocaust, Stalin's terror and the "year zero" slaughter of Khmer Rouge Cambodia.

On the other side of the hedge, however, are all those people who do not subscribe to this extreme ethical view. Pointing to the enormous potential benefits to life and health of embryonic stem cell research they claim that even if human embryos are not "things" and worth protection (none of these people claim, e.g., that embryonic stem cell research should be unregulated or exempted from the requirement of research ethical review), the research is defensible.

In effect, we may probably look forward to a long legal battle in the US, Judge Lamberth's ruling being but the first step. But in the meantime we may ask about the ethical basis both for the ban on federal funding of embryo research and for Judge lamberth's application of this ban to stem cell research.

I must be honest and declare from the outset that US policy on embryo research has always struck me as part absurd, part plain stupid (no disrespect to US federal politicians intended, the stupidity is structural). This is not because I disagree with the basic ethical view on the moral importance of human embryos described earlier. That is, I do disagree with it, but even if this view is granted as an axiom, one would, I suggest, have to agree that US policy in this area suffers from a complete lack of supporting arguments. Having been involved in the academic ethics debate about embryo research as well as the process of political debate leading to the clear legalisation of embryonic stem cell research in Sweden in the early years of this century, I have had the opportunity to think about this topic once again recently, due to new research on the ethics not of stem cell research but that of regulating stem cell research, undertaken in cooperation with Daniela Cutas, and very recently published in the book Contested Cells - Global Perspectives on the Stem Cell Debate.

So let's start with the absurdity. The idea of the destruction of human embryos being murder, and the systematic such destruction thus being a case of genocide, does not directly imply that it is immoral to use cell lines resulting from such destruction for research or other purposes. For instance, even today, hospitals and doctors all over the world are making use of the results of the Nazi freezing experiments without any representative of the US religious right raising his voice in protest. However, we may also compare to how anyone of us would react if we learned that the hospitals of our country were making use of tissue and organs for transplantation that had been produced by the elaborate murder of people in other countries in order to obtain these organs and tissue. It is, I believe, in this vein that the opposition to embryonic stem cell research has to be understood - again, assuming for the sake of discussion the basic premise regarding the moral importance of embryos. Now, what is the logical conclusion of such a piece of reasoning? Well, I conjecture, it is certainly not that the sort of policy we find in the US is justified.

Consider the Bush policy of banning the funding of research on cell lines produced after August 9, 2001. As I understand it, the result of the ADF suit and Judge Lamberth's subsequent ruling is that this is the policy that is now in effect until further legal notice. However, this policy is not supported by the ethical argument just set out. This argument makes no difference between the destruction of embryos or the use of the cell lines thus produced on the basis of when this destruction and production took place. Murder remains murder even if it occurred before August 9, 2001, and what is, in virtue of the reasoning explained above, an immoral exploitation on the occurrence of murder remains so whenever the murder is supposed to have taken place. In fact, Dr. Cutas and myself conclude, in the chapter mentioned above, the only way to square the Bush policy with the view on the moral importance of embryos entertained by its supporters would be to revise the latter so that strong moral importance is attached only to embryos that exist after August 9, 2001. The absurdity of this sort of standpoint should be obvious even to the most nutty "pro-lifer". That is, had Judge Lamberth been consistent in his ruling, he would have invalidated not only Obama's but also Bush's policy on embryonic stem cell research. His current ruling is, in effect, genuinely paradoxical.

So, over to stupidity. This point regards not only US policy on stem cell research, but its entire legal take on all sorts of embryo research. Again, I'm assuming for the sake of discussion, the validity of the view on the moral importance of embryos already mentioned. Morally speaking, embryo research is in effect genocide. If true, this is excellent reasons indeed to ban embryo research, isn't it?! Indeed it is, however, US policy is not about banning embryo research. You may destroy human embryos by doing research or any other thing, as long as you are not funding your activities through federal taxes. Genocide is OK if you pay for it yourself!! In fact, it is well known among scholars studying the ethical, legal and social implications of genetics and reproductive technology that the chief effect of the US ban on federal funding of embryo research is that all activities where embryos are destroyed are now safely out of reach of any sort of regulation within the confines of the commercial secrecy of corporations and private enterprises. In consequence, embryos are being destroyed at least as much as ever, but due to the ban even farther off from the reach of the long arm of the law than before. This is simply stupid. Especially people who view embryo research as genocide should think so - on this basis, the conclusion has to be that the ban makes a bad thing even worse. And to get away from this stupidity, the only way would seem to lead back to absurdity; claiming that embryo destruction is not murder as long as US federal tax payers don't pay for it. Again, even the nuttiest of pro-lifer should recognise the absurdity of such a claim, and thus oppose and fight the ban regarding embryo research.