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.
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...
>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
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.
For example, battery and murder will generally merge, but a breaking and entering leading up to the homicide will not.
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.