Amen. As an genuinely innocent person who just plead to 5 years probation with time served after finding out his options were appeal ineffective council while sitting in prison starting the subsequence week on 10 years no parole in protective custody or accept the plea in the next ten minutes per judicial order (not even prosecutor order), well I can tell you the effective torture leading to a duressed confession even in open court is real when you got a bad judge who is working with both counsels to railroad you for a reelection campaign of the prosecutors boss and judges friend in a big town.
Appeals aren't real when you have to file them from prison and they write the pleas do you can't appeal them either. The system is a joke.
What we really need, since the plea isn't going anywhere, is to legislate away the trial penalty or formalize it as something like "max twice the plea offer" as well as remove all language preventing appealing the plea.
Yes I'm in a bit of shock right now, this post hit so close to home giving the timing.
There's also the mental torture of the extended criminal investigation and trial process; frequently years long, and one that multiple people have described to me (both victims and accused) as being worse than the original crime (in the case of victims) or the supposed punishment (in that of those accused). Exposing victims to torture takes things further even than the medieval Chinese. And I find it difficult to explain, or justify.
It serves to dissuade people from putting themselves in risky situations, I suppose. Maybe it also slakes the thirst to hurt and control people that motivates some to seek employment as police officers, prosecutors or judges - and which changes in the judicial process have made difficult to quench in more old fashioned ways. Sadism will find a way.
> There's also the mental torture of the extended criminal investigation and trial process; frequently years long, and one that multiple people have described to me (both victims and accused) as being worse than the original crime (in the case of victims) or the supposed punishment (in that of those accused).
So would you favor going back to the 18th century system of twelve to twenty trials a day, mostly without lawyers?
Maybe a total period for investigation, trial and sentencing of not longer than half of any likely sentence for the crime being investigated, on average. A modest proposal.
Blackstone referred to the process of a jury deliberately finding a defendant guilty of only a lesser, non-capital, offense as "pious perjury." I don't think the piece you linked to makes it clear, but a lot of people were convicted and then pardoned, a pattern I discuss in the chapter on 18th c. England of my _Legal Systems Very Different from Ours_.
Traditional western societies have an additional perverse incentive in that if you die immediately after repentance you have a better chance of going to heaven. Justice systems have always been the primary manufacturers of criminals, whether it's in terms of who is punished or who is not punished. Similar dynamics exist around the right to remain silent, which is more likely to be exercised by someone savvy than someone naive and innocent. The amount of information you get from an innocent person will tend to exceed that you get from a guilty one, and from there it's just a matter of hallucination, confusion, or malice to punish the innocent.
In Florida, in a domestic violence case, the offender is immediately jailed. Then the woman gets to decide if the offender is to be released. Since often, charges are dropped…
Today the process is the torture AND the penalty, all rolled up in one big ball. It would help if we repealed about 90% of the current criminal laws. And prohibit the 'stacking' of multiple charges to use as leverage to force a plea.
That I think is an excellent point. I noticed the point in the essay about one year being written off as time served... so the defendant has been rotting in jail for a year, losing job, income, time with family, freedom, all before being convicted of anything. If found guilty, they don't lose any more, but if found innocent, how do they get that year back?
Well, yes. Now, admittedly at some point you have to say "Look, I know you are going to miss your dad, but he killed a half dozen people so he needs to go away," but when it comes to the period before a conviction happens one should absolutely avoid doing more damage ahead of doing justice. I suspect that is the entire purpose of writing in a right to a speedy trial, because it is too easy to make the process the punishment, not just to the accused but to everyone related to them.
Yes. But when was the last time you saw a "speedy trial"? Well, maybe a quick guilty plea bargain. It was never a "justice system" and now has become less so.
FWIW, in my hometown several decades ago, a guy I knew well had a fairly speedy trial. He had stabbed his brother-in-law in the heart with a paring knife, killing him.
This was shortly after public defenders became required. Late 60s or so. "Jake" got a PD and told him 1) He wanted a speedy trial, 2) he wanted to testify in his own defense, and 3) he wanted the trial right there in his small (population about 15,000) home county.
The PD was horrified by all 3 and tried to talk Jake out of it. Nope.
So the trial went forward about 4 months after the killing. Jake testified that he was peeling potatoes when his A-hole b-i-l said something mean and stupid to Jakes' wife (his sister) and Jake went to punch him in the chest, forgetting he had a knife in his hand.
The jury took less than an hour to acquit him (mostly under the "We all know the 'victim' and he needed killin'" unwritten provision of the law).
There was no one in the county, I think, who didn't believe that justice had been served.
Well, yes, unfortunately the right is written down but rarely protected. That was kind of the point, that one year plus pre-trial confinement is a really bad thing.
It's bad even if you're not in jail and out on bond or whatever. Trials, well, charges really, have become not much more than a prolonged game of chicken, where the Judge typically gives the prosecution an advantage.
> That raises an obvious question: If they saw the problem with torture, why did they continue to employ it?
I suspect the answer is that restructuring their system to not require torture would have required them to punish defendants who hadn't confessed, and that would be unjust.
Mentioning torture during investigation and trial, but not as a punishment?
Legal systems other than ours, right now, include Singapore, famous for flogging minor convicted offenders. Arguably, a flogging is more equitable than prison, or fines. A high-wage earning shoplifter imprisoned for a few years loses a lot more than a hobo, who might actually find prison an improvement in circumstances. A high-wage earning offender can pay the fine more easily than the hobo, but both suffer equally from nine lashes. There are obviously refinements to the basic concept, but at present US prisons are rife with physical abuse from both sadistic guards AND other prisoners. Maybe having a professional flogger with good control over his instrument of torture putting the felons back into society a week later... maybe torture is better?
The real problem seems to me to be when to stop? The guy gave you a place where the loot is hidden, turns out it was false. Did he know the real one, it didn't he?
Torture him again, get another one, false. Again? When to stop? If it's a set and known number, it's a matter of giving out three fake answers in quick succession.
So, the real problem with torture seems to be, when to stop?
That being said there may yet be a use-case: torture them to death and check the info they gave you after: you can clear their name or declare them the culprit post mortem.
Amen. As an genuinely innocent person who just plead to 5 years probation with time served after finding out his options were appeal ineffective council while sitting in prison starting the subsequence week on 10 years no parole in protective custody or accept the plea in the next ten minutes per judicial order (not even prosecutor order), well I can tell you the effective torture leading to a duressed confession even in open court is real when you got a bad judge who is working with both counsels to railroad you for a reelection campaign of the prosecutors boss and judges friend in a big town.
Appeals aren't real when you have to file them from prison and they write the pleas do you can't appeal them either. The system is a joke.
What we really need, since the plea isn't going anywhere, is to legislate away the trial penalty or formalize it as something like "max twice the plea offer" as well as remove all language preventing appealing the plea.
Yes I'm in a bit of shock right now, this post hit so close to home giving the timing.
There's also the mental torture of the extended criminal investigation and trial process; frequently years long, and one that multiple people have described to me (both victims and accused) as being worse than the original crime (in the case of victims) or the supposed punishment (in that of those accused). Exposing victims to torture takes things further even than the medieval Chinese. And I find it difficult to explain, or justify.
It serves to dissuade people from putting themselves in risky situations, I suppose. Maybe it also slakes the thirst to hurt and control people that motivates some to seek employment as police officers, prosecutors or judges - and which changes in the judicial process have made difficult to quench in more old fashioned ways. Sadism will find a way.
> There's also the mental torture of the extended criminal investigation and trial process; frequently years long, and one that multiple people have described to me (both victims and accused) as being worse than the original crime (in the case of victims) or the supposed punishment (in that of those accused).
So would you favor going back to the 18th century system of twelve to twenty trials a day, mostly without lawyers?
Maybe a total period for investigation, trial and sentencing of not longer than half of any likely sentence for the crime being investigated, on average. A modest proposal.
That period would include any possible appeals, of course.
Depends on the country and case. In the UK for example, in the 18th century most people just got off in the trial too:
https://staffblogs.le.ac.uk/crimcorpse/2016/03/14/getting-away-with-murder/
So yeah, while prison conditions were horrendous, that would have been an improvement.
Blackstone referred to the process of a jury deliberately finding a defendant guilty of only a lesser, non-capital, offense as "pious perjury." I don't think the piece you linked to makes it clear, but a lot of people were convicted and then pardoned, a pattern I discuss in the chapter on 18th c. England of my _Legal Systems Very Different from Ours_.
http://www.daviddfriedman.com/Legal%20Systems/LegalSystemsContents.htm
Traditional western societies have an additional perverse incentive in that if you die immediately after repentance you have a better chance of going to heaven. Justice systems have always been the primary manufacturers of criminals, whether it's in terms of who is punished or who is not punished. Similar dynamics exist around the right to remain silent, which is more likely to be exercised by someone savvy than someone naive and innocent. The amount of information you get from an innocent person will tend to exceed that you get from a guilty one, and from there it's just a matter of hallucination, confusion, or malice to punish the innocent.
In Florida, in a domestic violence case, the offender is immediately jailed. Then the woman gets to decide if the offender is to be released. Since often, charges are dropped…
what is the chinese book with the wise judges?
I'm not certain but I think it is Hegel, Robert E. 2009. True Crimes In Eighteenth Century China: Twenty Case Histories.
Once again, I find myself grateful to live in this time and this country.
The country where 1 in about 300 people is convicted as a fellon every year with bullshit DA railroading them? Did you read the post?
Yes. Did you read the post? It was worse in the past.
Yes, did you understand the post, plus the fact that historical knowledge goes beyond what's in the post? It wasn't.
Really, when in the past was the justice system better? Please educate me.
Today the process is the torture AND the penalty, all rolled up in one big ball. It would help if we repealed about 90% of the current criminal laws. And prohibit the 'stacking' of multiple charges to use as leverage to force a plea.
That I think is an excellent point. I noticed the point in the essay about one year being written off as time served... so the defendant has been rotting in jail for a year, losing job, income, time with family, freedom, all before being convicted of anything. If found guilty, they don't lose any more, but if found innocent, how do they get that year back?
Are you assuming someone besides the accused (and their family) cares about that?
Well, yes. Now, admittedly at some point you have to say "Look, I know you are going to miss your dad, but he killed a half dozen people so he needs to go away," but when it comes to the period before a conviction happens one should absolutely avoid doing more damage ahead of doing justice. I suspect that is the entire purpose of writing in a right to a speedy trial, because it is too easy to make the process the punishment, not just to the accused but to everyone related to them.
Yes. But when was the last time you saw a "speedy trial"? Well, maybe a quick guilty plea bargain. It was never a "justice system" and now has become less so.
FWIW, in my hometown several decades ago, a guy I knew well had a fairly speedy trial. He had stabbed his brother-in-law in the heart with a paring knife, killing him.
This was shortly after public defenders became required. Late 60s or so. "Jake" got a PD and told him 1) He wanted a speedy trial, 2) he wanted to testify in his own defense, and 3) he wanted the trial right there in his small (population about 15,000) home county.
The PD was horrified by all 3 and tried to talk Jake out of it. Nope.
So the trial went forward about 4 months after the killing. Jake testified that he was peeling potatoes when his A-hole b-i-l said something mean and stupid to Jakes' wife (his sister) and Jake went to punch him in the chest, forgetting he had a knife in his hand.
The jury took less than an hour to acquit him (mostly under the "We all know the 'victim' and he needed killin'" unwritten provision of the law).
There was no one in the county, I think, who didn't believe that justice had been served.
Well, yes, unfortunately the right is written down but rarely protected. That was kind of the point, that one year plus pre-trial confinement is a really bad thing.
It's bad even if you're not in jail and out on bond or whatever. Trials, well, charges really, have become not much more than a prolonged game of chicken, where the Judge typically gives the prosecution an advantage.
> That raises an obvious question: If they saw the problem with torture, why did they continue to employ it?
I suspect the answer is that restructuring their system to not require torture would have required them to punish defendants who hadn't confessed, and that would be unjust.
Mentioning torture during investigation and trial, but not as a punishment?
Legal systems other than ours, right now, include Singapore, famous for flogging minor convicted offenders. Arguably, a flogging is more equitable than prison, or fines. A high-wage earning shoplifter imprisoned for a few years loses a lot more than a hobo, who might actually find prison an improvement in circumstances. A high-wage earning offender can pay the fine more easily than the hobo, but both suffer equally from nine lashes. There are obviously refinements to the basic concept, but at present US prisons are rife with physical abuse from both sadistic guards AND other prisoners. Maybe having a professional flogger with good control over his instrument of torture putting the felons back into society a week later... maybe torture is better?
I still don't get it.
The real problem seems to me to be when to stop? The guy gave you a place where the loot is hidden, turns out it was false. Did he know the real one, it didn't he?
Torture him again, get another one, false. Again? When to stop? If it's a set and known number, it's a matter of giving out three fake answers in quick succession.
So, the real problem with torture seems to be, when to stop?
That being said there may yet be a use-case: torture them to death and check the info they gave you after: you can clear their name or declare them the culprit post mortem.