Trial by Jury, a Hallowed American Right, Is Vanishing
nytimes.com
nytimes.com
And the US has started to demand extraditions of people as fugitives, even though they've never set a foot on US soil and their company falls under a completely different jurisdiction. See Kim Dotcom.
If you ask me, that's crazy. Then again, for someone living in the US it's probably just normal. Anyway, if you wear a tie and are white, there's not much to worry about in the US ... unless you're some sort of leftist hacktivist or reverse engineer a device you've purchased or develop p2p software, of course.
...or any citizen activist, really. The citizen journalists who broke the Planned Parenthood story last year were indicted with "tampering with government records" for faking identities so they could go undercover.
And two years ago, a story broke that the IRS was targeting certain nonprofits because of their names and political leanings.
Nobody has been held criminally accountable or 'overzealous' prosecution in either case. There was one early retirement (not even officially a resignation) after the IRS scandal.
+ If by "the Planned Parenthood story" you mean the allegations of selling body parts from fetuses, the story was fake from the get-go and the "citizen journalists" [sic] edited their recordings to push their right-wing agenda. [0]
+ Contrary to what right-wing conspiracy theorists claimed, the IRS wasn't targeting conservative nonprofits specifically; it was looking at other characteristics based on keyword searches. [1]
[0] http://www.cnn.com/2015/10/19/politics/planned-parenthood-vi...
In the first case, prosecutors were waging political battles with at best tangential tick-tack charges. In the second case corruption (even bipartisan corruption!) was ignored, again, for political reasons.
If you want more examples, the mayor of Houston subpoenaed sermons of pastors a couple years ago as part of a political witch hunt. Thankfully, there was some political rebuke afterwards, but, again, no criminal charges were filed in the aftermath after that abuse of power.
In all cases, the punishment is entirely political, so it's clear that there are no consequences to this sort of injustice if the action is politically popular enough. The point of the Bill of Rights is that there are some things that are wrong, even if they're popular.
The penalties in the American justice system parallel the pricing of medical care and the rationale used to justify them is the same as well.
# Health care :
"WTF?! My 1-hour doctor's visit came out to $18,000?!"
"Nah don't worry! Nobody actually pays that amount. The doctor just put that there as a starting point when negotiating with the insurance company!"
# Criminal justice:
"WTF?! The penalty for stealing a loaf of bread is 10 years in prison[1]?"
"Nah don't worry! Nobody actually serves that amount. The prosecutor just put that there as a starting point when negotiating with your legal representation!"
[1]: I have no clue what the actually penalty would be, and it would vary state by state, but you get the idea.
Like rape, for example. Germany just made it illegal: http://www.independent.co.uk/news/world/europe/rape-law-germ...
and
if you wear a tie and are white, there's not much to worry about in the US
The first of these claims seems to contradict the second.
s/tends/seems/
The US (at the federal level...I don't know if this happens with state/local charges too) uses a completely brain dead algorithm for coming up with the maximum penalty used in Department of Justice press releases announcing indictments which results in a great exaggeration in most cases.
The article "Crime: Whale Sushi. Sentence: ELEVENTY MILLION YEARS" [1] has a good explanation of this.
> See Aaron Schwartz.
(Swartz, not Schwartz) Here's an article that looks at how actual sentences are calculated, as opposed to how press release sentences are calculated, as applied to Swartz: [2].
> And the US has started to demand extraditions of people as fugitives, even though they've never set a foot on US soil and their company falls under a completely different jurisdiction. See Kim Dotcom.
You make it sound like this is something new and/or that it is just the US that does this. In fact, it is old and common. In general if you do something against the laws of country A affecting people in country A, from country B, and those things are also against the law in country B when directed against B's people, and A and B have an extradition treaty, it is quite common for A to request extradition from B and for B to agree.
Contrary to popular belief on the Internet (not meant to imply that you have this belief...I'm speaking generally here), the US is not the only country with copyright laws or whose copyright laws criminalize large scale commercial infringement. The acts Dotcom is charged with and for which the US is requesting extradition are acts that are also illegal in New Zealand.
[1] https://popehat.com/2013/02/05/crime-whale-sushi-sentence-el...
[2] http://volokh.com/2013/01/16/the-criminal-charges-against-aa...
You mean being charged for the crimes you are accused of? Are there countries where crimes are 'buffet style' where once you commit a bad one you might as well commit a whole bunch because the single crime covers the rest?
That's also the reason why the US has almost 25% of the world's prison population and the highest percentage of prison inmates per capita of any country in the world, with a growing tendency. People in the US are not inherently more criminal or violent than elsewhere, the US sense of justice is just very special and not shared by the rest of the world.
No it's not. The US has the world's highest prison population for two reasons you didn't list. 1) repeat offense violent crime in inner cities, which is what the majority of inmates are in for. 2) The war on drugs, which is directly and indirectly responsible for most of the crime in the first reference, to go along with the substantial prison population that is there for only drug offenses. There have been numerous studies done on the US prison population and it does not mostly consist of people in there on trumped up charges and wildly exaggerated sentences (and yes that does exist very obviously), it mostly consists of repeat violent offenders.
> with a growing tendency
Shrinking tendency in fact. The total US prison population peaked several years ago and is now declining and is set to decline dramatically over the next two decades as the war on drugs is ending. If your theory were correct, the US prison population would still be spiraling upwards at the old rate.
Look at the typical outcome WRT prison time of a felony car theft in the USA vs, I donno, Chile.
And, while not quite answering what you're asking, it's useful to look at how other countries deal with multiple offences.
In England a person accused of one crime can ask for other crimes to be "taken into consideration". (TIC).
This gives them the opportunity to have a clean slate when they've served their sentence (thus supporting rehabilitation); it gives police a better detection rate; it gives victims some small amount of comfort to know that the person who offended against them has been caught.
The sentence for one offence and a bunch of TICs is longer than one offence by itself, but short than if each TIC was prosecuted as a separate offence.
There have been some problems with the system, but these tend to be vigorously investigated.
Description of the system: http://www.cps.gov.uk/legal/l_to_o/offences_to_be_taken_into...
Description of one example of a problem with the system: http://www.bbc.co.uk/news/uk-england-london-26793254
In a lot of countries, this is considered a single criminal act. You might have broken numerous laws, but you would wind up with one charge, with the others more circumstances of your guilt and punishment. You'd only get another charge if you left the place and committed a different criminal act.
In the US, however, it is quite possible for you to get charged with numerous crimes. Breaking and entering, destruction of property, some sort of hacking law (for the security system), and a drug law or two, including possession of a controlled substance (or dealing a controlled substance). All of the charges would have their own penalties and fines, though they may be part of the same criminal proceeding.
>Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
What you're referring to is the original meaning. There are other principles of interpretation in the US judiciary. The Supreme Court has shifted from the original meaning, given that there are some restrictions on capital punishment (mostly based on age and mental handicap). Most of that development has been from the mid-80's to today.
However, to further address your point, I don't think the meaning is obvious from the text. In particular, the word "cruel" in relationship to "punishment" is not obvious to a layman.
A constitution is not a codification of objective facts but of principles and processes for resolving disputes between people. To my mind it seems more likely that "cruel and unusual punishment" means "any punishment cruel and unusual according to community standards" than "this specific list of punishments".
No, but I also don't think a textualist interpretation of the 8th amendment proscribes only a fixed set of punishments that existed in 1789. Words like "arms" and "punishments" denote categories--kinds of things grouped by shared characteristics. Someone in 1789 would be amazed by the technology of a modern shotgun, but would perceive it shared all the characteristics of what they thought of as "arms."
Likewise, hydraulic presses did not exist in 1789, but someone from the time would have recognized putting a convict's appendages in such a machine as sharing the characteristics of what they thought of as "cruel and unusual punishment."
But the death penalty did exist in 1789, and it wasn't considered a cruel and unusual punishment. So you're not just talking about fitting new things into existing definitions, but changing the definitions themselves to include things that were previously excluded.
Its not a changing definition when the ordinary definition of a word refers to circumstances which are subject to change.
No, I'm not making any normative statement about what laws should be. I'm pointing out a fairly direct reading of the plain language actually adopted in the 8th Amendment. Which, in any case, was drafted and ratified by Americans, and so, whatever interpretation of it is correct, is not an example of the law under which Americans are governed being up to anyone but Americans.
Original intent is historically how the constitution has been been interpreted by courts, at least once ambiguity in the plaintext has been found.
Original meaning is a modern approach propounded most famously by Justice Scalia.
The difference is that original meaning focuses on the definition of words and phrases as understood at the time of drafting or ratification, and in the relevant context in which they're used, regardless of intent or purpose. It's like an abstract version of plaintext but which is supposed to overcome (with a suitable amount of handwaving) the deficiencies of a plaintext, literalist approach. Original intent, by contrast, focuses on what the drafters or legislatures thought the law would accomplish. The literal meaning and the original meaning are both strong evidence and often dispositive, but they're hardly exclusive.
Original meaning is supposed to be a more concrete examination, less susceptible to contemporary political prejudices and likely to be more consistent over time. But I think in actuality that has proven false. Language is far more flexible than Scalia and similarly-minded jurists believe. Lawmakers regularly write statutes that either rely on judicial precedent, or that put the onus on courts to decide material issues, especially when ambiguity and plausible deniability is politically expedient. Certainly there are indisputable examples of this in the constitution. For these and many more reasons, the functions of a judge simply cannot be reduced to such mechanical approaches. And they probably shouldn't be.
Many of the drafters of the constitution were lawyers. Most were versed, more or less, in the common law. The drafters used common law phrases; many of which had _already_ undergone an evolution in their meaning and application; many of which were de novo inventions of English courts altogether. They clearly used ambiguity to their advantage when reaching consensus on clearer language was difficult or inconvenient. So we'd be naive to think that their view of the common law was of a static, unchanging approach, or that they didn't expect courts to take license.
Scalia would probably admit much of that. (He certainly admitted some of that in his many essays on the subject.) But in his view even if the drafters wanted courts to use traditional approaches to statutory interpretation, that's been a failed experiment. In his view, preservation of the higher ideals of the constitution, like separation of powers and democracy, demand that courts use original meaning, even if it subverts original intent in the particular.
I disagree with Scalia roundly. But whether you agree or disagree or fall somewhere in the middle, the fact of the matter is that original meaning is a very modern approach. By contrast, only extreme proponents of thea "living constitution" can be considered wholly modern; in some understandings "living constitution" is just a recognition and embrace of the reality of constitutional interpretation and application. Scalia's application of original meaning changed so much over the decades that he's a prime example of the inherently dynamic nature of the business and the rules it produces.
Nonetheless, I suppose we could say that his arguments have effectively shifted the "Overton window". Scalia managed to convince even ardent liberals like Ginsburg that traditional approaches to constitutional interpretation used during the 18th, 19th, and much of the 20th centuries were inappropriate. That there was a need to "return to the text", as-if courts somehow had ever ceased doing that. Scalia often made unfounded or poorly researched historical claims, and most jurists have already internalized much of it. Scalia is hardly unique in having that effect; I spent half of law school using Google Scholar and other historical databases disproving various historical claims in legal decisions and treatises. Most people don't even realize that there were multiple transcriptions of old decisions, and sometimes they conflicted. Which one was put into a legal treatise was sometimes the real inflection point in the law, not the legal opinion itself.
But his effect is unique, I think, in shifting the entire judiciary to the right. Usually such things are a mixed bag from a political perspective.
Or, you know, the real meaning has not stood the test of time, and we should not hold centuries old texts as holy scriptures, like fundamentalists who try to hold close to the "original" intent?
Those guys (always guys) also had slaves and did "cruel and unusual punishments" to them on a whim, for another example...
[1] I oppose the death penalty as it is used today. Making an example of psycho serial murderers is pointless, because it's not like that conduct can be deterred.
Those "arguing the words on the page are so sanctified" I take for you to mean are originalists/textualists. Most people in that camp are not against the death penalty.
Bigger picture, the words on the page DO overturn the results of the democratic process. The US holds the Constitution as its highest law, and any law implemented (democratic process) cannot conflict. If it does, meaning the (unelected) judiciary interprets the law that way, then it is invalid. But that's viewing checks and balances only one way. The executive and legislature (both democratically elected) also check the judiciary - they appoint the Federal judiciary and confirm, respectively. Those appointed judges may choose to interpret the Constitution in a more modern context, while others may stick to originalist thought. What I think you're missing is that it is the prerogative of the judiciary to choose how to interpret. There is nothing in the Constitution itself that mandates originalism, pragmatism, or anything in between, and given our system of government the only place to specify such a thing would be in the Constitution itself. It wasn't there in the beginning and we've made no such amendment. And we probably wouldn't, because judicial independence is a very important principle.
No, that's the perspective I am saying is backwards. Originalists/textualists just think the words on the page are the words on the page. If the words proscribe certain things then so be it, but otherwise, democracy controls. It's the "living Constitution" folks--who are generally opposed to the death penalty, who think the "spirit of the document" transcends the words on the page and overrides democratic decisions. They're the ones elevating the Constitution to holy writ, not the textualists.
> There is nothing in the Constitution itself that mandates originalism, pragmatism, or anything in between
No, it's logic that mandates you interpret the meaning of the words on the page by what they would've meant to those who wrote the words. Only in the highly political context of Constitutional interpretation is this even a debate. Meanwhile, folks who study Shakespeare are going back to not only the original meaning, but the original pronunciations of the words to fully understand the text.
Er, no. While that's the marketing spiel for textualism (the words in a legal enactment, including the Constitution, mean what the words mean in their ordinary meaning), its very much not for originalism, which focuses not on the meaning of the bare words, but of the meaning-in-original-context of the words (including looking to things like legislative intent.) While textualism and originalism are often held by thinkers of similar political backgrounds (both approaches are frequently associated with the political right) and people purporting to follow them often come to very similar conclusions, they are quite different philosophies.
> If the words proscribe certain things then so be it, but otherwise, democracy controls.
Neither originalists nor textualists tend to think that the Constitution is a document under which everything which is not prohibited is allowed; quite the opposite, in fact.
> Neither originalists nor textualists tend to think that the Constitution is a document under which everything which is not prohibited is allowed; quite the opposite, in fact.
We are talking about state law here. States are not governments of enumerated powers.
Legal documents tend to rely far less on puns and rhyme than does entertainment.
That is incorrect.
>No, it's logic that mandates you interpret the meaning of the words on the page by what they would've meant to those who wrote the words.
Only if you think the original meaning is what governs today. Obviously many others do not, hence the mix of people you see on the Supreme Court today. Arguing that there is one and only one correct way (because "logic dictates" or whatever else) is an ideological argument on theories of constitutional interpretation. It's an ongoing and lively debate if you're into constitutional law.
Even the ones that aren't "originalists" (textualists aside) tend to view that the original meaning governs, they just tend to believe that the original meaning itself of many important provisions incorporated sensitivity to changing external context than the people that label themselves "originalists" do.
That's a circular argument: "The meaning of the words to the people who wrote the words doesn't matter because we don't think the original meaning is what governs today."
> Obviously many others do not, hence the mix of people you see on the Supreme Court today.
I think that's actually a bit of a strawman of the "living Constitution" position. If I write a letter that is read 100 years from now, it would be absurd to say that what my words "mean" should be interpreted in any way other than how I would have understood them. Clearly, very smart people would not subscribe to a patently absurd idea like that.
Instead, I think they subscribe to the idea that the meaning of the words on the page isn't the be-all end-all. That the framers intended the independent judiciary to exercise discretion within the general bounds of the Constitutional text.
Which was the point of my original post upthread: it's not really unclear what the text "means"--we just disagree about what to do with that information.
That's not circular. That's pretty much exactly what you do when you take a balancing approach to conflicting interests. Some part of the original meaning is often tossed out. It happens a lot in Speech cases, and (in my opinion) is happening more frequently with 4th Amendment cases.
>I think that's actually a bit of a strawman of the "living Constitution" position.
Maybe.
>Clearly, very smart people would not subscribe to a patently absurd idea like that.
It doesn't matter what we think very smart people would or wouldn't do. The constitution means what the Supreme Court says it means, and the justices themselves are free to interpret however they wish. The current bench contains a variety of approaches, some fairly divergent from originalism, which it sounds like you prefer.
At this point you're probably a little bit surprised to learn that I do ascribe to originalism as my preferred approach to constitutional law. I can appreciate the other approaches, but there's the slippery slope of making the constitution fit whatever it is that we're trying to accomplish today, and at that point we might as well be like the British again and have no written constitution. Constitutional positions aside, though, I'm not a huge fan of capital punishment, whether or not the 8th amendment permits it (it does).
This is a strong point, and probably the best I have heard it put.
You two are now arguing about which side is better represented by a particular strawman. Both of you seem to be assuming that "the other side" is far more monolithic than realistic.
Exactly. Old those BS "needs to be interpreted" Amendments and old laws are really problematic (including the "well-armed militia thing"). Law should be clear, not some divine (or "founding father") decree that gets interpreted according to the whims of those in power.
In only a few generations the world (and US society specifically in this case) has changed quite a bit from when this stuff was set down. If it was very specific but tied to the prevailing attitudes and situations of the 1700s or 1800s, it would be like a "lite version" of the folks arguing that we should be following biblical law or sharia law as written hundreds or thousands of years ago.
There needs to be at least some room for interpretation and adaptation in order to avoid a system of law that does not reflect the actual people subject to it.
He has great meals, internet access, healthcare, video games, internet, porn, he can marry. A music room.
Scandinavian justice is a failure.
I was at a dinner in Denmark, speaking to this guy next to me for a while. My brother later pointed out this guy had murdered someone just a couple of years ago, served a light sentence and was now in a half-way house.
I was revolted.
I'd suggest that in many cases - criminals can be readily reintroduced into society without much intervention. Some therapy, the fact they know they are being watched, blocking them from triggers etc. - and they likely won't rescind ...
But is it moral to allow someone who murdered your children on the streets without punishment because Scientifically we can establish that they are highly unlikely to kill again?
Europe is in some ways morally corrupt, as America is in others.
Anders Brevik should be executed, it is the moral thing to do.
I would not advocate torture, but if found out someone were torturing him, I would have no sympathy.
Contrast that to the American system wherein a lot of people are executed and we know that many of them were innocent.
It seems basic justice is difficult to hand out ...
As far as 'trial by jury' - I'd rather a trial by a judge - ore better - a panel of judges... because one of them always has an agenda.
You say Scandinavian justice is morally corrupt. How? Why do I care about a person who's not going to kill someone in the future? If anything, I care about intervening before someone commit a crime so that it won't be too little too late.
There are thousand of things to focus our attention and time on that has nothing to do with criminal intent. Cancer and heart attack will cause harm and kill you without any moral intention. These are worth spending money and time on, not some harmless humans.
If all humans can be rendered 'scientifically' unable to murder even a fly without attendant system of prison and punishment, why do we care about revenge so much?
http://www.gallup.com/poll/165626/death-penalty-support-lowe...
I don't know what it is, but Americans - especially the Bible Belt voting bloc (for lack of more nuanced regional targeting) - feel not only "just" in passing judgement on others, but divinely so, and therefore questioning them is questioning God. It's scary. (It's also the same voting bloc backing Trump. We could chat all day about misappropriated rage and the decline of financial stability and the middle class, but the result of decades of it is where we are now.)
Also your comment about Americans feeling like divine judges comes off as a touch hyperbolic, and if that's your experience you must live near some pretty extreme Christians.
It's not just them. Take a look at what reddit has to say about "the Bible Belt voting bloc"
People in in homogenous cultures are quick to write off those outside it. The "flyover state trailer trash" who live among like individuals have a hard time recognizing the legitimacy of opinions held by "suburban millennials" but the latter group has just as hard a time recognizing the legitimacy of any opinion held by the former.
There was a news story about compus carry at state schools in Texas (IIRC) on reddit a few days ago. It was a perfect example of this. Tons of people saying that the sky is falling with occasional locals saying that the law change just makes the status quo legal.
People have a very, very hard time objectively considering things that aren't common in their societal niche aren't.
Yeah, but the US is shaped by the Old Testament morals of puritan religious nuts who left Europe...
And will he eventually be out after is 'non life sentence'?
They executed SS Officers for much less.
I suggest in some cases the death penalty may be warranted.
Yeah, so?
They are bad because they don't care much for revenge or they didn't punish hard someone who killed many people?
As if having him die in some electric chair will bring those people back?
If anything, that's even more Christian (in spirit) than the Old Testament "eye for an eye" US mentality.
And if anything else, this treatment helps show Brevik for what he is, a lone loony who hurt innocent people -- as opposed to some "martyred" killer in a society that itself hypocritically kills people too.
And maybe this mentality is part of the reason why those "progressive Europeans" have way less Anders Breviks, whereas in the US there's one born every minute...
Executing Brevik is not 'revenge', it is justice.
He deserves to be executed.
I'm not generally a supporter of capital punishment, but it is blatantly immoral that he should live an almost normal, healthy life after his mass crimes.
Someone who killed could himself be killed, etc.
Everyone who takes revenge calls it "justice".
The typical pattern in most of Europe is that a life sentence means you serve N years (with N being determined at the time of sentencing, either by law or by the court, often from a range of allowed values). After N years, you can apply for review, and may be released if the reviewing body decides that further incarceration serves no legitimate penological interest. If release is denied, at some later time (how "later" is determined varies from country to country), you can try again, and so on until you eventually get released or die.
The European Court of Human Rights has an interesting factsheet summarizing their rulings on life sentencing cases from around Europe here: http://www.echr.coe.int/Documents/FS_Life_sentences_ENG.pdf
There's a concept in American criminal law of lesser included offenses (https://en.wikipedia.org/wiki/Lesser_included_offense). To simplify, a lesser included offense contains the same, but fewer, elements as the greater. (Murder might necessarily involve a battery, therefore battery is a lesser included offense of murder.)
When charged with the more serious crime which includes a less serious crime, you would not be charged with each and every lesser included offense, but rather they merge together into a single charge. This has another implication as well: if the jury decides that the prosecution has proved the elements of a lesser included offense but not the charged offense, you could be found guilty of the lesser included offense, even though that lesser offense was only implicitly charged.
In your example, the elements of breaking and entering and theft may not line up so simply: if each of them contains an element the other does not, (and B&E and theft do not line up) they could indeed be charged separately, because the law says that that element should also be punishable. Attempted ____ is a lesser included offense of whatever crime the person was attempting, but conspiracy is not, because we decided as a society to punish more strongly planned criminality.
In the shooting, Forcillo fired two volleys, one while Yatim was brandishing a knife and another volley after he was incapacitated on the ground. The jury found that the first volley was justified, whereas the second volley was not. However, it had been successfully argued that the first volley killed Yatim, and so Forcillo was convicted of attempted murder and not murder.
For example, battery and murder will generally merge, but a breaking and entering leading up to the homicide will not.
I think the bigger issue is that our sentences can be insanely long. In Germany you can get parole after 15 years even for murder. In New York, embezzling $1 million can get you 25 years in prison.
A rich person who can afford to hire good lawyers. If the DA is offering 2 years for a case that could go 60 then the case is not strong.
The one area I would fight even if not rich is if I was accused of a sexual crime. In the USA this is a life sentence either way. The choice is between spending your life in jail if found guilty or living under a bridge if you plea.
> We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary, and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel, and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged.
I think it'd be pretty hard to argue today that offers of leniency have not "substantially increased" the likelihood, indeed the occurrence, of false guilty pleas. For example, here is another recent New York Times article about low quality drug tests leading to guilty pleas, which describes one county discovering, in an unchecked email inbox, hundreds of old lab notices failing to confirm those tests, ultimately leading to convictions being overturned - all guilty pleas:
http://www.nytimes.com/2016/07/10/magazine/how-a-2-roadside-...
http://nymag.com/thecut/2016/06/stanford-swimmer-brock-allen...
We're distracted by issues like 'Black Lives Matter' - which have some merit but are also potentially divisive ...
When it seems there are some pretty low hanging fruit for improvement in this country.
If BLM wants to go after something, it's not bad cops - it's this insane part of the US justice system.
BLM was founded to deal with issue of lack of accountability for a variety of things which kill black people, which is a much wider issue than "bad cops" (especially if you mean, "bad" in the sense of perpetrating violence.) And its mission is much broader than even that, now.
In fact, the event which was the direct trigger for the formation of BLM was Zimmerman getting off for killing Trayvon Martin.
BLM's gotten a lot of attention in the context of police shootings, but that's more because those are the only issues where the media is paying attention to them, not because its their sole focus.
BLM in Toronto, given special status at the Pride parade - blocked the parade and demanded that Police not be allowed to attend next year, and held the entire parade hostage until a doc was signed indicating as much.
This is pretty offensive to most people for a lot of reasons.
This was by far their highest profile action in Canada, and I would argue it 'defines them' - policy, actions etc. far more so than whatever might exist on their 'homepage'. Whatever their 'manifesto' is, it's just something that a very tiny number of them happened to agree to at one point in time and happens to sit in their web page.
All of these movements have granules of authentic concern ... and given that bit of authenticity (because there is surely some police violence), I think sometimes it gives them cause to think that whatever is said and done 'in the name of' is somehow just.
I for one - think that overly aggressive policing is a symptom, not a cause, of deeper social problems, though I'll admit that their is surely a degree of circular feedback going on.
A crazy justice system that hands out 20 year sentences for light first offences - which subsequently adds to social decay - I think is a more of a systematic problem than overzealous policing.
Is there anything stopping a judge (other than time/resource availability) from doing this unilaterally?
Time and resource availability is the whole reason plea bargains happen to begin with.
Even if you hire more judges and build more courtrooms, going to trial may not help unless defendants get good lawyers who can spend a lot of time on their cases. These are not hallmarks of public defender offices in states with budget woes (i.e. almost all of them).
When a defendant changes their plea from guilty to either not guilty or no contest pursuant to a plea offer, a Judge always hears the offer and has the authority to accept or reject the offer. Moreover, pleas are evidentiary hearings so evidence of mitigating/aggravating facts can be introduced to help the judge make their decision. Typically, the facts will be limited to simply enough to establish there are facts sufficient, that if true, would result in a conviction). However, if the Judge has a problem with it (thinks the sentence is to light or to heavy) they will usually request evidence to justify the deal.
In addition to what people typically think about when they hear plea (defense and prosecutor working out a deal), often times the two parties can't come to an agreeable deal, and the defense will opt for an open plea to the court, essentially bypassing the prosecutor's offer and asking the Judge for exactly what they want, and then allowing the Judge to again make the final decision based on the evidence offered at the plea hearing.
I see a considerable amount of apathy towards serving in a jury. Why is it seen as such an inconvenience? I can understand if it causes financial problems, but I've seen jury dodging at all levels.
When it comes down to it, if you were accused of a crime wouldn't you want people who cared on the jury? If so you must serve on the jury and must do it dutifully.
How? Locally the system is a random lottery based on a pool of drivers license registrations. A standard mantra against voter-ID laws is that pool of poor people is highly challenged to obtain ID (which in reality is false, its just a mantra), so if anything there should be a statistical lack of unemployed people not a surplus. WRT scams and cons I guess you'd have fewer people lying about being members of the fully informed jury association or otherwise trying to avoid service, and that aversion to lie should make the system inherently fairer, so again no problem?
Choosing people interested in fact-finding could theoretically be zero-sum on a jury except that random people are not charged with crimes. In this same class, and it may be different now compared to 10 years ago, it was said that 90% of defendants plead out, and of the 10% of defendants who go to trial, 90% are convicted. Criminal justice resources are stretched thin, and it's in no one's interest to throw out a dragnet and haul in a bunch of iffy cases.
This lecturer also said most pleas and convictions resulted from pretty obvious evidence. It's not Atticus Finch or Perry Mason. It's not even Night Court. If a case isn't a slam dunk, the prosecution won't bring charges. So being charged is tantamount to guilt.
That's a nice story. In reality, it takes more resources to solve hard cases, so they won't get solved. Instead, some random poor bastard will get charged and will plea out.
Because you lose a day (at least), you are not compensated, you may get tied up for an extended time if you get selected, and most of those of us on this forum would get dismissed during jury selection. So, it's basically a hugely disruptive waste of time.
At the very least, if you simply made jury selection such that the prosecution can't dismiss jurors, that would A) make being on a jury less wasteful and B) help rebalance the power between the well-funded prosecutor and the poorly funded public defender.
HN answers:"Maybe, LEOs are subject to the same imperfections as every other human on the planet, it's really goanna depend on the specific situation"
Prosecution requests dismissal, defense counters, judge agrees with prosecution, HN reader is dismissed.
Prosecution asks the same question to some random middle aged woman "sure, I guess it's more important, police officers are always supposed to be trustworthy.
Judge face palms, steam is coming out of the defense attorney's ears, prosecution is smiling from ear to ear. Prosecution requests the juror, defense requests dismissal, judge rolls eyes and accepts.
First, tech people often have a much larger store of baseline knowledge than common people. Neither lawyer wants this as you are bringing your own knowledge of what is "true" into the jury and the lawyers can't override this.
Second, tech people often understand statistics and error. Many of us will apply a very large Bayesian to fingerprints, eyewitness accounts, etc. Even things like "He blew a 0.8 blood alcohol content" is going to get met with things like "When?". He blew it when you stopped him coming out of the bar? (likely just barely qualifies and probably within margin of error--why are you harassing this guy for 2 beers?) He blew it 6 hours later in the station? (Holy cow, how was he standing?)
Third, tech people often have very negative experiences with peer pressure and this often translates to resistance against it. My friend put it best from when he served on a jury: "I don't care if he is guilty of many other things. The government charged him with conspiracy and has not proved their case. You can't persuade me to convict--the evidence isn't there. If you want me to vote guilty, show me the evidence." Result--hung jury.
I have never served on a jury in all the time I have been called. I once watched the defense and prosecution play chicken over who was going to burn their strike to get rid of me.
Since the prosecution is all about convictions rather than justice, they want us as far away from juries as possible.
[citation needed]
Having done some study of voir dire and what people get excluded for back when I was in college, having gotten far enough in law school before deciding it wasn't what I wanted to do to have taken a trial advocacy class, and having actually not been excused, as a tech professional, the only time I've been in a jury group that wasn't excused as a group prior to voir dire, I've seen no evidence that this is the case.
> First, tech people often have a much larger store of baseline knowledge than common people.
Honestly, I don't think anyone except a certain self-important subset of "tech people" thinks that "tech people" have a larger store of knowledge than is common among professionals with similar educational requirements (and technology actually isn't all that high in educational requirements for a white-collar profession.)
> Neither lawyer wants this as you are bringing your own knowledge of what is "true" into the jury and the lawyers can't override this.
Lawyers don't want you substituting outside prejudice for the evidence presented and influencing others in the jury to do so. Neither do judges. Because, you know, this is juror misconduct.
> Second, tech people often understand statistics and error.
Leaving aside that I think there is little evidence that this is a basis for exclusion -- some "tech people" do, though IME (outside of practitioners in the sub-disciplines of technology most concerned with statistics and error, such as machine learning) not much more than lots of other professions that no one would suggest are systematically excluded from jury pools.
> Third, tech people often have very negative experiences with peer pressure and this often translates to resistance against it.
I don't think there is any evidence that "tech people" are, as a group, less susceptible to peer pressure than anyone else. And, again, resistance to peer pressure is probably not in general a negative trait in jury selection. Logically, it would just reinforce whatever positive or negative factors existed elsewhere, since it just means they are less likely to get negated under pressure from other jurors.
> I have never served on a jury in all the time I have been called. I once watched the defense and prosecution play chicken over who was going to burn their strike to get rid of me.
I can see several indications of possible reasons for that in the attitudes you present in your post (starting with the fact that you clearly and proudly stereotype people by profession) that don't relate to either greater knowledge of anything or any of the other factors you point to.
If this is not something you accept as true then you should explain why. It would not be clearly evident to me (or most of our ancestors).
Some people make a virtue out of proclaiming their humble means/ability but veer over into being unscientific. This is like the monkeys who beseech the alpha-male that they are not threats. It is a good survival mode but it isn't an objective fact. Being self deprecating is not more sophisticated than arrogance.
So if you don't accept the proposition as true I ask you to check if you really believe that, or whether it is convenient to your peers or authority figures that you hold that belief. It is hard not to notice many geeks are self immolating for no good reason, that is why I'm saying these things.
Ruling requires a list of attributes such as detachment, emotional stability, being analytical, world comprehension, deep knowledge of the past and other rigorous training. Notice that we could test for these attributes, this would not be some handwavy 'some people are better than others' tripe, this could be demonstrated with practical trials.
Tech people may or may not fit this type. I suspect they fit some of any hypothetical list but probably not all of it. As I've said before, some people do fit the type better than others. It is a sort of Platonic ideal, even the best suited human on earth doesn't perfectly fit the type.
tldr; I think if you combine a programmer, an intelligence analyst and an historian with somebody of good executive function you arrive at a very crude but still very much superior ruler than the dolts (also demonstrable every day) who run our current system.
Because it's very disruptive to the schedules and finances of those affected with limited assurances of how long those disruptions may last. If you're self employed, should you be expected to forego an income for days, weeks or months to serve on a jury? If you're responsible for children, should you then be expected to find and pay for safe, reliable, ad-hoc childcare for an undetermined period of time? Lst week a friend drove hours to jury duty only to be told once there that his service wasn't needed - nobody's was that day. He's an employee with a salary so he wasn't impacted financially, but something like this could have a very real impact on someone living paycheck to paycheck or someone who is only paid when they work.
I have great appreciation for the legal system and the trial by jury process - I've been called twice, but never selected to sit on a jury. But I believe that the system needs to address the impact that serving on a jury has on the lives of those tasked with serving.
It already does. It's called being excused for hardship. If you can prove serving is an undue burden, you get excused.
I'm not sure what you think needs to be improved.
Random people on a jury can be misled in many ways.
I recall a study that found a downward trend over the decades, juries are on average are getting stupider as lawyers get to pick and choose for nearly any reason, they have been progressively more bold I'm their selection of "sheeple" jurors, but I can't find any references for it unfortunately :-/
If you want to use begs as in "begs an answer to" then use "begs an answer to".
"The term "begging the question", as this is usually phrased, originated in the 16th century as a mistranslation of the Latin petitio principii, which actually translates as "assuming the initial point"."
Citation: http://languagelog.ldc.upenn.edu/nll/?p=2290
"[Aristotle] specified thirteen fallacies, one of which ... is "assuming the original conclusion". This amounts to arguing that "P, therefore P" ... Some medieval translator decided to translate Aristotle's "assuming the conclusion" into petitio principii. In classical Latin, petitio meant "... a request, petition". But in post-classical Latin petitio was also used to mean "a postulate" ... And principium meant "a beginning, commencement, origin" ... "the original point". From the 14th century onwards, many writers in English used the Latin term to discuss this rhetorical technique ... But starting in the late 16th century, the English phrase "to beg the question" began to sneak into use as an vulgar alternative to petitio principii."
A translation from Greek into a Latin phrase, using a word with multiple meanings (and choosing a meaning that is now rather obscure, especially to English speakers who know the word "petition"); and some who translated it into English chose the more common meaning and got the wrong phrase, quite distinct from the original.
Anyone who says that "begging the question" means "assuming the conclusion" is clearly, clearly wrong.
:-)
The proportion of state defendants who receive trials has also become very small and while the Times article primarily referenced Federal jury trials, it also referred trials in general and plea bargaining has made trials an exception rather than a rule at all levels.
See the following article:
"Ninety-seven percent of federal criminal prosecutions are resolved by plea bargain. In state courts the numbers are comparable."
http://thecrimereport.org/2014/01/07/2014-01-how-plea-bargai...
--------
Former Judge John Gleeson, who in March stepped down from the federal bench in Brooklyn to enter private practice, noted in a 2013 court opinion that 81 percent of federal convictions in 1980 were the product of guilty pleas; in one recent year, the figure was 97 percent.
Judge Gleeson wrote that because most pleas are negotiated before a prosecutor prepares a case for trial, the “thin presentation” of evidence needed for indictment “is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.”
--------
It's easy to blame prosecutors, but as the upper courts have become more political, and as politics has become more insane, this complexity has been driven into the system. A great example is public corruption -- look at recent cases in New York and Virginia. There's a good probability that if a legislator had a tip jar on his desk and didn't vote until the till hit a certain level, a subsequent conviction would be overturned.
Care to elaborate on your objections? Juries exist so that it limits the ability of the State / prosecutors or defense teams from lobbying or coercing 'professional jurors'. You do not want the people who are determining if a citizen broke a law beholden / under the thumb of the state. I say this even as someone who had a jury rule against myself in a civil case that both sides (defense and plaintiff) thought that a judge would rule in my favor.
"Oh geez you've not been chosen to sit on a jury recently, your paycheck is going to be a bit short this month. Maybe if you agreed more with the prosecutors..."
I don't buy that they will inject mercy, especially if they thought about irrelevant factors to determine guilt or innocence.
Juries are unpredictable. Does that mean that they made good judgement or that they are swayed by good-sounding arguments?
Juries are allowed to vote "Guilty" or "Not Guilty" regardless of whether they think the accused broke the law. They cannot be punished by the Court. This is all expressly designed to allow Juries to correct inevitable tragedies brought about by too-literal (or too-political) interpretation of the law. I.e., mercy.
Of course that's just one experience.
If a thousand parallel operating "magic 8 balls" provides observed pragmatically bad advice, surely a random subset of a mere twelve "magic 8 balls" will not provide usefully better advice.
By analogy, if you need a team of programmers, one ineffective way to recruit would be to visit the "CS 101 intro to hello world" lecture hall of hundreds and randomly select a dozen. Obviously the team will be a smaller subset so somehow it has to be smarter?
Another common objection, often brought up in countries without juries, is that only a guilty person would desire a jury, because unlike a judge, it could be misled by appeals to emotion and faulty legal arguments.
Juries also seem to be unnecessary, because there are plenty of countries that don't use juries and have more just and equitable legal systems than countries that do.
These aren't exactly my views, but they are common objections raised against juries.
This can also be turned around to the benefit of the prosecutor. Prosecutors may pursue legally bogus charges if they are dealing with an unsympathetic defendant. Either way, juries are more susceptible to emotional appeals than legal experts--a bad thing when the law is just, but a good thing when the law is wrong.
In the jury system, juries are charged with answering questions as to the facts, and judges are charged with answering questions as to the law. It makes full use of the judge's expertise in the law as well as a small sample of society's expertise in human nature and the human experience.
> Another common objection, often brought up in countries without juries, is that only a guilty person would desire a jury, because unlike a judge, it could be misled by appeals to emotion and faulty legal arguments.
Or put another way, someone who is technically guilty, but under circumstances where conviction of the technical violation would be unconscionable.
> Juries also seem to be unnecessary, because there are plenty of countries that don't use juries and have more just and equitable legal systems than countries that do.
Without getting into the merits of the obviously subjective argument here, it's not clear that the conclusion follows even if we grant the assumption. The superior justice system of a non-jury country might be perfected yet further by introducing juries.
Naturally, some laws will need explained simply because folks never come in need of that law. Some accounting laws, for example, would need explained to non-accountants. Explaining the difference between the different levels of murder could need explained because most of us aren't murdering folks. But it seems that should be well within the confines of the system.
>Only a guilty person would desire a jury
This would simply depend on the honesty of the system. If you are wrongly accused and offered a plea deal, you might wind up going to trial if you have a non-guilty plea. Theoretically there wouldn't be enough evidence to prosecute you, but those cases make it through nonetheless. Plus there are charges such as "visiting a common nuisance" that are difficult for folks to disprove. visiting a common nuisance is generally visiting a drug dealer or other such location, regardless of your knowledge of what was going on
http://thecriminallawyer.tumblr.com/post/16202923895/interlu...
In short, you're asking jurors to take on a huge responsibility with little to no understanding of the laws they're being expected to make a decision on. In virtually every instance the jurors are left in a completely uneducated state and unable to give any proper assessment, relying basically on whatever cues they decide to pick up on instead of factual evidence. The idea of 12 Angry Men never really existed with juries and was far outside the scope of what a juror is really supposed to be doing.
The instructions are also written by a panel of judges/lawyers so they are very methodical and logical. "In order to be convicted of murder, you must find at least one (1) of the following to be true:....".
We had testimony re-read by the reporter and all the physical evidence was just given to us to rifle through. We could replay videos, etc.
Sure it's not perfect, but it's life. What in life is perfect?
-Juries are allowed to take notes. -Juries are allowed to submit questions, that are reviewed for approval by both sides' lawyers and the judge. -Juries do get a copy of the law they need to determine was violated
Criminal and civil trial instructions for juries are drastically different. Heck, trial instructions for different issues within either domain can be drastically different, too.
Whether the defense or prosecution made mistakes, if you're left with a reasonable doubt that the defendant is guilty (and I personally consider it the case that inept defense can cause reasonable doubt, unless the prosecution presents an airtight case - a lot of people, including most of my lawyer friends, would disagree with me there), don't vote to convict.
That is my main problem with juries. Whatever they are, they are decidedly not a jury of my peers. They are people who are selected to be as dumb and open to suggestion as possible. Effectively a popularity contest between counsel.
One day in a courtroom during jury selection should show any thinking individual that the whole process is a complete farce. Only the least capable (in general) end up on juries - and it's entirely by design.
The case in question a week-long criminal trial of a police detective who tipped off a suspected child predator of his impending arrest. The charges were obstruction of justice, abuse of power and aiding in the sexual assault of a minor.
One notable difference between jury trials in Colorado and elsewhere is that Colorado gives judges the option of allowing jurors to submit their own questions of witnesses. Much of the case hinged on an email the detective had sent the child predator, so of course the defense tried to obfuscate by throwing up smoke screens to confuse the jury.
Two of us on the jury were software engineers. We were allowed to question both the defense's computer forensic expert and the state's. We were allowed to directly examine records subpoenaed from Google, Yahoo, Craigslist and various ISP's.
A Colorado jury isn't just a silent observer, we were active participants (though we never spoke—questions were written and submitted anonymously to the judge, who had discretion on which to allow, and counsel was given the chance to object to each question before it was read aloud to the witness).
In the end, we found him guilty. And I have no doubt we were correct.
"Peers" in that case, maybe should have meant "people able to understand the technicalities", engineers and software lawyers.
I'm glad you're certain in your conclusions, but in my mind there's a worry that that kind of "back-seat testimony" makes the trial less transparent and fair.
If you think that there aren't several confident know-it-all types who never get cross-examined on every jury everywhere ever, you wouldn't make a very good defense attorney.
That said, the judges in this article come across as juvenile and thoughtless, being concerned about how boring work is without trials. How about the poor defendant who takes the plea deal even if they feel they are innocent, just because the stakes are too high? We hear a one mention of such a case, but the rest of the focus is on the poor judges and clerks who are bored or not paid enough ("my kids didn't go to camp"!).
---
> “It’s a loss,” Judge Kaplan said, “because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.”
---
> “It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested. Everything else is done behind closed doors.”
---
> Judge Gleeson wrote that because most pleas are negotiated before a prosecutor prepares a case for trial, the “thin presentation” of evidence needed for indictment “is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.” “The entire system loses an edge,” he added, “and I have no doubt that the quality of justice in our courthouses has suffered as a result.”
---
The "my kids didn't go to camp" quote is from a stenographer and was probably chosen by the reporter just to add another angle to the story.
So, there were two quoted judges bemoaning its effects on the fairness of the justice system, two talking about how their jobs are boring without trials (the quotes included below), and four that do not clearly talk about either of those.
---
> “We’d love to have more trials; most of us enjoy trials,” said Judge Alvin K. Hellerstein, who joined the bench in 1998.
---
> In April, when Judge Shira A. Scheindlin resigned from the bench after more than two decades, she said the decrease in trials was one consideration for her departure. “Trials are way, way down,” she said. “The building’s quite dead.”
But yes, you picked out some countervailing quotes--perhaps I was a bit harsh.
My jury experience taught me to not worry, the law will come to you, looking for trouble where none exists. "Not guilty, your honor."
The evidence was so poor, I later question whether the defendant was offered a deal, and he said "screw you, you know I didn't do it", and so it went to trial out of spite. Because after it was over, I felt like invoicing the prosecutor on behalf of taxpayers for wasting our money.
1. It is generally accepted as true that the number of trials per year in the U.S. is shrinking (both criminal and civil). However, the data are spotty at best. Most of the data come from the National Center for State Courts, and their data are admittedly incomplete-- to the tune of no data on a number of states at all. Nor are any of the data particularly recent. My crunching of their data puts the decline at a mere ~1.8% per year, although it may well have accelerated since their last report. How much is unknown.
2. The focus on judges lamenting the decline of trials is on one hand commendable and on the other disingenuous. The fact of the matter is that the vast majority of judges across the country do not like trying cases and put tremendous amounts of pressure on the parties to settle. These tactics range from straightforward admonishments to forcing the parties into endless mediation meetings and mandatory settlement conferences.
I am sensitive to the "piling on" of charges in criminal cases, which strikes me as a patently unfair means of getting multiple bites at the apple. For example, I helped defend a case involving a tragic killing where we succeeded in dodging a first degree murder conviction only to find that during sentencing, the defendant got an extra 20 years simply because the murder was carried out using a gun.
The law enforcement always use the words like "we took this horrific sex offender off the street" and people generally cheer up such talk. In reality the guy was merely caught peeing in some bush.
We need to stand up for the rights of drug dealers, sex offenders, suspected terrorists, victims of civil forfeiture and every other criminal because that is the right thing to do. If we start supporting "vigilante" attitude of law enforcement officials sooner or later they are going to come for you and me and no one will help us then.
Currently I see ACLU doing a good job of this at the ground level and Cato Institute doing a fine job at much higher level. But they are far too small. We need to build much bigger organizations that would do this at a larger scale.
Actually we dont have to pursue all cases. Figure out the most tyrannical cities and target their prosecutors heavily. Once you shame few of them publicly and humiliate them everyone else learns the lesson.
What's perhaps more appalling is confessions made to police and prosecutors without an attorney present. The police and prosecutors can lie about the potential sentence, even threatening the suspect's life (we'll go death penalty!), drawing out a confession, and then be under no obligation to uphold their end of the "bargain".
The bottom line is that 95% of people in our prisons did not have a trial before a jury of their peers. Some of these people are very likely innocent, but because of the nature of plea bargains, they cannot challenge their sentences.