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Do You Trust the System?
Let’s play a little game. Imagine for a moment that you’ve been accused of a crime. As a good citizen, you go through the motions…arrest, bail, arraignment, hire the best damned lawyer you can, assist in preparing your defense, etc. You are a model prisoner during your short stay beneath the court house, unlike certain district attorneys lately in the news. The charge is a serious one, and the evidence is dicey; however, the crime you’re accused of is an emotional hot button issue.
Through the process, the prosecution has blown right past every opportunity to do the right thing, consider the whole situation, and dismiss the charges. After all the preparation work is done, a deal is offered which you reject, immediately and with obscenities, because you’d rather go to prison than impugn your own character and tarnish your integrity by taking the easy way out. A deal is a lie. Always. Your life is not a used car over which to haggle.
The day of trial approaches. Your attorney will make no guarantees, but he assures you that your chances of acquittal are better than average. The evidence isn’t great for the prosecution, and he has some tricks up his sleeve that should really help. Your family and friends stand with you. Everyone who has heard of the situation is dumbfounded that such an asinine travesty has been carried so far. And yet: fear.
Imagine you’re in this situation. We are a nation of laws. We have a system designed to impartially, and as fairly as possible, determine guilt or innocence. As a right-thinking (and -leaning) person, you’ve placed a lot of stock in the system to do its job and get it right as often as is humanly possible. These are all fine words and ideas, but now it’s your life, your liberty in jeopardy. Do you trust the system?
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The State exists as the last-stop for when private measures fail. And the State has the right to coerce.
Right now if Steve hurts Bob, Bob usually gets NOTHING. Steve gets some kind of punishment. But this is not justice at all.
The wronged party should be compensated by the wronging party. That is normal justice. The State exists to ensure that normal justice is done.
We seem to mostly agree that the system is broken. Whether by design or use is probably a great debate to have some other time. But, back to the original question: now that your [expletive] is being ground in its gears, do you have any chance of surviving whole? Do you dare risk a little hope that everything will turn out ok, that your life will not be utterly ruined?
True, and how did it get there? Assuming that at one time the system properly limited powers, how did it become the current system we have? How did we get a system of limited powers in the first place?
Virtuous people (not angels) wisely implemented a system with safeguards. That system has become lost and/or corrupted because of the people in the system. Stated another way, there is not a stark people/system dichotomy. They are interrelated and affect each other.
My initial comment was an (admittedly terse) attempt to say that I’m more concerned about the fact that immoral or unjust people inhabit the justice system than I am concerned about the justice system we have. That’s not to say that the system couldn’t be improved; your idea of a tort system is an interesting possibility. However, even that system wouldn’t work with the wrong people in power (see Pharisees).
-E
That is sometimes true, but restitution is often part of the sentence if the victim can establish a monetary value. Also, nothing prevents the victim from bringing a tort action in civil court, a case which may be much easier to win given the criminal conviction. In most cases, though, collection of the judgement is very difficult.
It is now, because we are set up to make everything criminal. But historically, THIS was justice. The tort is the crime. And if there is no tort, then why is something criminal???
None of this is my idea, or remotely new. It is classic justice. And it is also core libertarianism. Many of the things that the criminal justice system nails people for are victimless crimes. And when there IS a victim, the victim is usually always a loser. In what world is that “fair”?
Not sure how that follows – in a tort system, freedoms such as those in the Bill of Rights can be locked in.
My gut reaction? No. Nobody in the system is paid to get to the truth, except jurors, who are regrettably easy to manipulate.
Thank you. I was trying to figure out how to phrase my response, and you did a great job of saying it much more concisely.
I don’t automatically trust an entire class of anything.
I’m open to the notion that many criminal cases could just as well be disposed of civilly. But in the system you advocate, how would an indigent person, or even a hard working middle class person, prosecute a tort committed against them? Take a simple assault case in which the victim’s memory is hazy because he was beaten so badly. Say he is making enough money to get by, but has no time or resources to investigate what happened, let alone the ability to take time off work for a trial. Wouldn’t this lead to a huge disparity among classes in seeking justice, and wasn’t that an ancient problem?
This is depressing, but in a related vein, I sometimes reflect that this is one of the great benefits of “respectability”: it makes you harder to railroad. As an educated middle-class mom with no criminal history, I’m very “respectable” by totally conventional standards. If a police sergeant finds some tenuous evidence possibly linking me to a violent crime, he’s not going to say, “Ah, that makes perfect sense! Get that lunatic behind bars!” No, he’s going to double-check his facts and move cautiously. Other people, I suspect, are much more vulnerable in that regard. Not at all fair, but I’m pretty sure that’s how the world works.
With a jury you have a chance and I will say a good one if the facts are on your side.
The process itself is devastating, getting the story to the jury is difficult, exacting and depends on your lawyer,
but yes you do have some hope with a jury to be found not guilty.
Rachel, I believe you have convinced yourself of a fantasy. Respectability may get you a lower bail, but it will not relieve you of needing it. Once something is said the system moves almost of its own volition. To prevent rule by man bureaucracies have enacted rules and procedures that remove humanity from the equation. Those with the power to stop it lack the will or the motivation to do so. The system is a machine. The process is the punishment.
This is exactly right. The system is designed to win cases not discover the truth.
Agreed. Somebody mentioned the Duke Lacrosse team prosecution as an example of prosecutorial zeal. It’s worth noting that nobody would have dreamed of accusing them of rape if they hadn’t been drunk as skunks, hiring strippers, and shouting racial slurs.
-E
Is that a realistic scenario? How often are charges limited? I was under the impression that prosecutors routinely make as many accusations as possible so that jurors feel they are being fair when they support only some of the charges.
Aaron, at the current time the charges are limited. That’s another BS maneuver of prosecutors, piling on charges at the last minute and giving jurors a smorgasbord of choices.
This has always been my primary concern. Our trial system is based on a competition of narratives, not on a search for truth. Is that more practical than the alternatives? How does this competition compare to the judicial systems of other nations?
Would I prefer to leave my fate to the decision of a single person or to the collective decision of many? The answer depends on the particular judge or jury. Either way, justice relies on good and reasonable people. Consequently, my trust would depend on the zip code in which I was being tried. If it’s a federal case, trust is impossible.
Any system, however limited, depends upon the honor of the individuals involved.
A contest of powers —be it for good or for evil, or over practical disagreements — is inevitable both within and beyond any legal system. To limit the powers of the state does not limit the reliance of citizens on intercessors, nor does it eliminate the need of force for justice. It doesn’t even negate the influence of politics. But it does leave open to prudential judgments what civil law disallows by its robotic indifference to unforeseen circumstances and competing values.
What’s the alternative? Throw your hands in the air? Over throw the system? (Second one is popular, but a really bad idea on average.)
You have a very good chance of surviving whole. That it’s even vaguely possible that you won’t is what makes a reasonable person worry, and it will exist in all high stakes situations that aren’t familiar enough to be treated with contempt.
Look at driving: do you trust ‘the system’ to keep some idiot from killing you? It lowers the risk, but bad actors will always be a threat– along with folks simply getting it wrong.
Our justice system is the worse form of justice system, well except for all the others that have been tried.
The setup failed to address one important question: Did you, in fact, commit the crime? Or does this hypothetical take place in a fantasy world where the legal presumption of innocence means we believe that everyone accused of a crime is actually innocent?
Not that it matters at all. Either way, my answer is yes. Yes, I would trust the system. I would trust the court to enforce the rules of evidence to exclude any prejudicial evidence. I would trust the jury to follow the law, and only convict if guilt is proved beyond a reasonable doubt (to clarify: that means that 12 separate people looked at the evidence and decided that they would have to be unreasonable to decide you had not committed the crime — the highest possible legal burden of proof). And finally, I would trust the courts of appeal to see that my legal rights were properly protected throughout the trial.
In short, yes. I would trust the greatest legal system in the history of the world. What is the alternative? Should we all determine our own guilt instead?
I don’t know, KP. Prosecutors do worry about bad press if they make a high-profile mistake, and juries are made up of normal humans. I think a prosecutor is easily going to recognize how much harder it will be to get a conviction for a “respectable” person without solid evidence. And if they get it wrong (and it’s eventually proven somehow), the mistake is far more likely to blow up in their face (in terms of bad press) if the wrongly convicted is a “nice” middle-class mom with young kids than if it’s some drifting drug addict or unemployed high-school dropout. Not saying respectability is a perfect shield from injustice, but I think it probably helps.
The problem is that the accused’s respectability is not admissible in court.
That’s a silly question. Of course the accused is actually innocent. However, in this particular case it becomes a matter of he said/she said. There is and can be no physical evidence. If a guilty person falls into the hands of the system we can’t be bothered to give a passing thought to the matter. The game only works with the presumption of innocence fully intact.
To further address Rachel’s assumption that past performance plays any role in this consider that the accused hasn’t even had a speeding ticket in 26 years, has held a high level security clearance for 22 years, and is specially trusted to work with the nation’s most vital and dangerous military assets. The accused lives a wholly unblemished life because it is required to maintain that trust with the nation.
Good golly, Prawn, what kind of trouble are you in??
It’s always the quiet ones…
I don’t think that this disproves Rachel’s highly plausible position. Respectability improves your odds; if you’re wanting to avoid rolling a one, you want a polyhedron with the emphasis on the polly, but you can roll a one on anything from a d4 to a d100.
It took me to 78 to get someone making precisely the comment I hoped would be made. The system’s pretty good, but you want to take every precautions nonetheless. There are some things that cannot be made safe, and the intentional infliction of harm on one’s citizens is one of those things.
I think that the competition of narratives is a way of seeking the truth. Your intuition that this is not the universal path is correct. In the European system, you often have a combined judge and prosecutor, for instance, and almost never have an adversarial setup. In China, the judges appear to be there to rubber stamp the decisions of the Prosecutor (Amy and I literally had a judge tell us that the purpose of the trial was to give the defendant the opportunity to show remorse and to beg for forgiveness, not to establish facts.)
I like the American system and believe it more compatible with conservatism and democracy (lay juries are also an American thing), but there are reasonable people who disagree.
It could also be the result of a system where prosecutorial discretion was encouraged and cases were not brought when the prosecutor felt doubt. I know that that’s been the position of the prosecutors I’ve known (including some in Washington, although to the south of KP). The UK has a much lower conviction rate, but also has dramatically fewer civil rights (no real hearsay protections, no real right to silence, very little evidence quashing for wrongful searches etc.).
It’s also partly a matter of the cases that get heard; federal courts mostly hear drug cases, and drug possession is often a pretty easy matter to prove.
I won’t go into too much detail yet (I hope to write a whole series of posts about the experience on the other side, provided my liberty remains intact to do so), but here is what I will say. I have a very angry, highly intelligent, potentially sociopathic teenage daughter whose own therapist does not believe her ever evolving tale of woe and who is more concerned with how much time she’ll miss at school with her friends than with how much destruction will be visited upon her entire family should her testimony put me in prison. The up side of all this is that my marriage has been lost and then found, I’ve not yet been evicted from either my employment or my home, my faith has been remade in ways I could never have conceived of, and should this end favorably I’ll have the posts of the year to craft here.