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Comment by nimbius | Hacker News Reader

Disclosure: I am a former felon, convicted and sentenced for assaulting a carjacker. pro-tip: never take the public defender.

My question about this whole discussion is this: Whats the point. If prisons are designed as "correctional" facilities, which many good ones are, then you'll obviously move past being a felon and improve your life. If you keep a secret list of people you know have been convicted of a felony, you're tacitly admitting you either dont believe in prisons as an effective tool for correction, or you're looking for something more sinister...biblical retribution

And lets be honest, being a former felon IS a scarlet letter in the US. employers can discriminate against you, housing can discriminate against you in renting and in homeowners covenants, and you can be denied public services like disability and food stamps in some states. Former felons cant vote without a lengthy and expensive process of reinstatement.

Yes, i get that teachers, doctors, and police are certainly important positions, but again, the list. If you're just keeping it as part of their personnel and noting certain positions they shouldnt hold out of an abundance of caution in the face of an indeterminate outcome from mental rehabilitation or incarceration, then perhaps keep it secret. Use it as a blacklist if thats whats required for certain positions. however If you're just looking to shield felons from the inconvenience of incarceration or criminal charges, then reconsider it.

View on HN

You're really describing the other half of the same issue. The larger picture is that while the private sector is treating any conviction as a permanent black mark, the good old boys club is doing the exact opposite.

I do agree that a serving your sentence should mean that your sentence has been served, as opposed to continuing lists and restrictions after you're supposedly "free". But if we're going to allow that mark to continue in some form indefinitely, then it should have more effects on people in true positions of trust (eg police) rather than fewer!

This pattern of double standard rights erosion is happening across the board. Police enjoy "Garrity rights" whereby they can actually exercise their 5th amendment rights, whereas a private employee can be compelled to testify against themselves under threat of being fired. Someone who works for the government retains their freedom of speech protections, whereas a job in the private sector can be easily lost due to doxxing by an online lynch mob.

Ultimately, this two class system came about because rights were codified only as protections from the government, as there is no simple way to draw a line between freedom of association and negative consequences. But given that we've gotten to the point where the vast majority of the population must hold down a job, this needs to change with respect to the general labor market.

I was looked it up:

In United States law, the Garrity warning is an advisement of rights usually administered by federal, state, or local investigators to their employees who may be the subject of an internal investigation. The Garrity warning advises subjects of their criminal and administrative liability for any statements they may make, but also advises subjects of their right to remain silent on any issues that tend to implicate them in a crime. (See Kalkines warning concerning federal employees.) [0].

The Kalkines warning is an advisement of rights usually administered by United States federal government agents to federal employees and contractors in internal investigations. The Kalkines warning compels subjects to make statements or face disciplinary action up to and including dismissal, but also provides suspects with criminal immunity for their statements [1].

[0] https://en.wikipedia.org/wiki/Garrity_warning

[1] https://en.wikipedia.org/wiki/Kalkines_warning

> Someone who works for the government retains their freedom of speech protections, whereas a job in the private sector can be easily lost due to doxxing by an online lynch mob.

Doesn't this have more to do with the prevalence of unions in the public sector?

No, I don't think so. The US government(s) isn't allowed to punish employees for speech outside of work because of the first amendment.

Google suggests that this is the supreme court case that set that precedent: https://en.wikipedia.org/wiki/Pickering_v._Board_of_Educatio...

That case seems to be about school teachers.

My Dad was a mail carrier for a time in the US. According to his union newsletter, he did not all the full free speech rights outside of work as an average citizen. He was not allowed to talk about work conditions outside of work. He also did not have the right to strike.

I could have the details wrong, this was in a newsletter I read in the 1980s. Oddly, I remember exactly were I was sitting when I read this.

While the case was brought be a teacher the ruling was not limited to teachers.

Can't speak to what your union told your dad. There are some limitations about speech related to work, but that sounds like a more extreme version than I'm aware of being upheld. Can speak to laws about striking even less.

point being teachers are not federal US Government employees, they work for a subdivision of the state. A ruling about teachers seems like it might be not too relevant to Federal workers.

This web pages links to a PDF with a handy flow chart from the ACLU outlining when Federal employee might have restricted speech https://www.acludc.org/en/know-your-rights/know-your-rights-...

It seems hard to tell, given that private sector unions tend towards being at large quasi-governmental corporations. Unions do add difficulty to the firing process, which seems like it should be enough to fend off the employer firing you simply based on not wanting all of the harassing phone calls. But if management and union management still want to go through the process of firing you for what you said, then a government employee would still have the defense that doing so would violate their rights.

The prevalence of public sector unions itself is actually a good example of the trend I'm talking about though!

If you're such a screwup that even your union wants you gone, you'll lose your job, period. Whether it's public or private doesn't matter. Very often the job of a union rep or union legal counsel is to ensure a soft landing. Source: interned with a police union's legal counsel.

One thing to keep in mind about police officers and similarly situated government employees is that maintaining credibility as a court witness is a fundamental requirement of the position. A police officer who's credibility can be easily attacked on the stand has substantially diminished capacity to perform their duties. Part-and-parcel of being any kind of law enforcement officer is testifying to collected evidence on the witness stand.

While the government technically can't retaliate directly for not testifying against yourself in an administrative hearing, failure to be fully forthcoming in such an investigation demonstrates a lack of candor which in turn could be used to impeach you as a witness. If the government has evidence of lack of candor and sufficient motivation to get rid of you, you better start searching for a new job.

Another problem that plays into this is that the US prison system isn't built with "correction" in mind but punishment. So while an ex-con may have been punished, there is no assumption that they've actually changed as a person. Punishment is seen as a deterrent, not a correctional measure.

>"Ultimately, this two class system came about because rights were codified only as protections from the government, as there is no simple way to draw a line between freedom of association and negative consequences."

Can you explain what you mean here by the dichotomy of "freedom of association" vs "negative consequences"?

I mean freedom of association where each party goes their own way, versus unavoidable negative consequences aka punishment.

If I say something you don't like, then we all generally agree you can stop associating with me.

If I say something the government does not like, then we all generally agree they cannot do something to me as a consequence - as the inescapable authority means it would be a punishment.

Those are the two extremes. The middle is a grey area based on power dynamics. For example, someone says something their employer does not like. If they are let go but can simply find another job, then we can argue that employer is merely exercising free association. If they're from a more rural area and get blackballed at every employer in the area, then that effectively constitutes a restraint on speech.

I actually have thought about this sort of thing for a while. Personally, I think that forcing private entities to have more responsibility as they become more powerful is the way to go. Although, I'm not a civics expert by any stretch of the imagination.

Some companies have significantly more power than some governments in existence, so why shouldn't they have to act as if they were in fact a government. So, for example, if a mom and pop wants to fire someone because they don't like what they're saying, then more power to them. They don't have very much power, so their ability to defacto infringe on rights is limited. On the other hand, if Walmart doesn't like what I'm saying, then they have to give me 1st amendment considerations because of their vast amount of power.

The other side of this is that if you're running a small business and don't have the power to deal with employees who are acting in bad faith, then your business might actually tank. However, Walmart has got the resources to deal with employees who aren't just exercising their 1st amendment rights, but who are actively malicious and hurtful. Walmart can rotate the schedules or transfer people to another store or create a special position where the problem is sufficiently isolated. And Walmart can do all this without breaking a sweat.

This of course doesn't fix the "what happens if everyone hates you in a small rural area" problem. Theoretically all the entities in a rural area are going to have sufficiently low amounts of power AND proving collusion is going to be basically impossible (not to mention do you really want to force two people to hang out with a third just because there's only three people in an area and technically the two people have a high relative power base).

One way to fix this is a social safety net. If things like healthcare and the ability to pay rent are not dependent on employment, the worker's effective right to free speech and the employer's right to freely associate are both preserved.

Makes sense, thanks for the clarification.

Unfortunately, based on the vocal political opinions of my relatives, I suspect that many, perhaps even most, voters do see the "correctional" system as primarily about retribution. Local and regional politicians continue to run and win on the "tough on crime" platform even in places where it makes very little sense. Before there can be reform, people have to want there to be reform.

People want to believe that crime has an easy answer -- namely, being "tough on crime" -- and until they realize that their efforts to impede reintegration increase recidivism far more than they discourage crime, the criminal justice system will be about "corrections" in name only.

There is a school of thought that the thing we should strive to minimize are first time offenders, this goal leads pretty naturally into a correct assessment that extreme punishment is a valid approach.

I take issue with that goal though, I think we should reduce the chance of future crimes from both criminals and people with no prior history in an effort to minimize the harm done to everyone - this is where I see a reason to fully forgive people. If someone could assure you (and be genuine in it, without strange conditions) that they would never commit another crime, then the only reason left to punish them is to demonstrate to society that the crime they committed is unacceptable - and that means you aren't punishing someone to teach them a lesson but to teach everyone else a lesson, if you could make it seem like they were punished but let them live a normal life that would work just as well (assuming they were actually hidden from view)

> voters do see the "correctional" system as primarily about retribution

I think suspect many people see it as neither primarily vindication nor primarily correction.

Rather, they see it as prevention.

The worse the punishment, the less proclivity the population will have toward criminal acts.

Or so the reasoning goes.

> see the "correctional" system as primarily about retribution

I generally refer to American prisons as "penitentiary" for this reason. Of course there are scenarios that require 3 life sentences (e.g. serial/psychopathic killers), but they really are rare.

I agree with you regarding the zeitgeist, but I strongly disagree with the content of it. IMO a person understanding their actions (thanks to reform) and regretting them, for life, seems like a more vicious form of revenge or retribution. I'm not sure how I'd feel if I were a victim, but I'd like to think I could maintain that thought process.

> Of course there are scenarios that require 3 life sentences (e.g. serial/psychopathic killers), but they really are rare

This is mostly a problem with "sentence stacking" in U.S., which I absolutely think is not the "right balance" for punishing someone in a society. Not to mention how much it's been abused by prosecutors who "throw the book" at the people they want to make an example and essentially force them into plea deals, just so the prosecutors can score another "win."

The mindfulness exercise for me is to think about people who have wronged me -- real or imagined -- and to forgive them. Just take all of the negative emotion about someone, realize that the emotions aren't helping anything, and just let it all go.

There's a difference between wanting prisons for rational reasons: deterrence and reform are useful. But if you're just wanting bad things to happen to bad people, how much can you really trust your own interpretation of "bad"?

This is an academic position, borderline offensive to those who have been deeply wronged. (edit: I'm not antagonizing the commenter, just indicating how this could be perceived as offensive from a different perspective)

"Hey - this man raped, tortured and then murdered your daughter, just let it go man, no point in hating on that dude!"

Second - proportional punishment is justice.

Some people cannot be reformed. Should they be in jail forever?

Many people who commit crime are in fact not criminal at all. Many, many people are 'caught up in the moment' unlikely to do such a thing ever again.

Should they go totally unpunished just because the likelihood of recidivism is near zero?

I don't think so.

The greater the crime, the greater the punishment, and hopefully we can catch the 'good kids' early enough to steer them clear.

While I do see and, to some extent, feel the need for justice to inflict negative consequences on wrongdoers, my overall preference is for the system to work towards preventing harm to society.

> Some people cannot be reformed. Should they be in jail forever?

With the caveat that it depends on the crime, yes. If someone is shoplifting a candy bar once a month, it's not worth it to lock them up forever. If they're killing someone once a month, then yes. Somewhere in there is a (big) grey area where the cost to society vs their actions have an equal value.

> Many people who commit crime are in fact not criminal at all. Many, many people are 'caught up in the moment' unlikely to do such a thing ever again.

It's not about if they're "criminals" or not. If they cannot control their behavior and are likely to keep losing control (causing damage to society), then they get locked up.

It's worth noting that locking someone up in a place that prevents them from doing damage, but isn't necessarily unpleasant, is reasonable too. Assuming a good mental facility, putting someone in it because they are a danger to society even though they don't want to be... in theory that's how things work now and it's a good one.

I really don't judge people for siding with penitentiary because it's part of a cycle: people want vindictive justice, the system upholds vindictive justice and politicians campaign for it, people learn that vindictive justice is the only solution. It's like trying to argue decriminalization of marijuana in the 1960s: people simply haven't started considering other options.

More and more I'm starting to believe that crimes are a "disease." Addiction (and locking up of addicts) is a common debate, but a lack of education can be "treated" and "cured" too. So can discipline and motivational problems. There are some problems that cannot be treated (they definitely exist), and those should be dealt with differently.

> and are likely to keep losing control (causing damage to society), then they get locked up.

Exactly, this is the caveat that I briefly mentioned. There are four functions of prisons [according to me]:

1. Penitentiary: execute justice on those who have harmed society. The victims may feel a sense of justice before the perpetrator is released, or executed. I've succeeded at petty revenge in the past and felt worse about the situation, so I really don't think this works.

2. Correctional: rehabilitate those who have harmed society. The perpetrator must feel a sense of remorse before being released.

3. Protective: lock the perpetrator away forever. Ideally figure out how to provide them with a meaningful life behind walls. The perpetrator is too dangerous to other individuals in society.

4. Psychiatric: lock the perpetrator away until some mental/medical condition is resolved. This could be for their own protection (suicide), or the protection of others (insanity). If the medical condition cannot be resolved (i.e. psychopathy) then society needs to be protected from this individual.

Correctional services seem to be foreign to most people, as so few countries implement it. Norway's mostly successful correctional system[1] changed my mind, but at one point correctional services definitely was a foreign concept to me. If others continue to believe that penitentiary is the answer after I've made my point, then I have failed at making my point.

"Living with guilt" vs. "dying/prison as the easy way out" has often worked, so far as getting people to at least think about alternatives, even though I don't exactly feel that way about the situation.

[1]: https://www.businessinsider.com/why-norways-prison-system-is...

Viewing it as a disease is fine, but then crime should be viewed as a communicable disease, both in the sense that seeing someone commit (and get away with) a crime increases the likelihood that you'll do it, and also because the disease does not only harm the host but also those around them. Normally we quarantine people with communicable diseases when possible, which ends up looking a lot like prison…

What a good point! Thanks for the food for thought.

I disagree on the locked away for forever on insanity charges. People who loose permanently there freedom should have all rights and ability that are non-threatening. Means no physical freedom but a online presence for example.

But I mentioned that with "meaningful life."

I get what you're saying, and I have some sympathy for it. But the thing is that I'm a Christian, so my moral code simply does not allow those feelings to become actions. Vengeance belongs to the Lord, alone. (Yes I am aware that other people interpret it differently, this applies to basically every topic. This is my interpretation.) The moral story arc of the New Testament is that proportional punishment is not justice. If people hate me for sticking to my moral code, fine.

I hate to make arguments like that in a place with so many gray tribe members, but I feel like you could approach the same ideas with utilitarian arguments. It's not hard to make an argument that we should punish recidivism chance = 0 offenders to provide deterrence. But then the goal cannot be lowest crime, but the most efficient society.

It's not 'vengeance' it's 'justice'.

While agree that Compassion and Forgiveness is way higher in Christianity than Justice ... Justice is still part of living an orderly and civic life, which I think Christians would be compelled to do.

But yes, it's complicated.

First stone's yours :P

My next question is "what is justice?" but maybe when we're getting this far into philosophy it's time to time to stop.

> Of course there are scenarios that require 3 life sentences (e.g. serial/psychopathic killers), but they really are rare.

No, not of course. The concept of multiple life sentences is farcical. The scenarios which warrant them aren't just rare - they're nonexistent.

If you believe someone should be imprisoned for life then fine, you can defend that position. But giving someone multiple life sentences is a mastabutory exercise which has no practical effect.

They're only going to live the rest of their one lifetime. Give them the one life sentence and be done with it. Life sentences are idempotent - there is no effect to adding more of them together, so it's entirely spurious to do so.

>But giving someone multiple life sentences is a mastabutory exercise which has no practical effect.

The point of multiple life sentences is that they are sentenced individually for each crime. This is such that in the event one of the crimes is overturned/overruled/evidence shows they didn't do it they'll still be serving life for the other two.

It very much has a practical effect.

https://www.nolo.com/legal-encyclopedia/why-judges-hand-mult...

See my response to the other comment.

> But giving someone multiple life sentences is a mastabutory exercise which has no practical effect.

That's not necessary true in a system with early release where release eligibility is based on the original sentence.

Heck, even in a system without that, if there is a possibility of one the verdicts later being nullified or the associated sentence altered, there is a potentially signficant practical difference.

My response to that is sentencing - and likewise appeals and nullifications - should be considered holistically according to all related convictions.

If we're being honest about the legal zeitgeist, judges are not piling on multiple life sentences because they're trying to shore up a wall of convictions, like some kind of sentencing severability clause. They do it because it's flashy and the mob likes it. That there exists a kernel of grounded benefit in it after the fact doesn't make it less ridiculous, because it's an absurdly inefficient way to handle nullifications.

> My response to that is sentencing - and likewise appeals and nullifications - should be considered holistically according to all related convictions.

> If we're being honest about the legal zeitgeist, judges are not piling on multiple life sentences because they're trying to shore up a wall of convictions, like some kind of sentencing severability clause.

No, they are doing it for a number of reasons, including early release calculations; which is why they aren't doing it in the US federal system which doesn't have early release on parole, and does use holistic sentencing with the aggregate maximum sentence of crimes in the same proceeding as the outer limit, but sentencing usually determined by a complex holistic formula based on various factors surrounding the crimes under the federal sentencing guidelines.

"The scenarios which warrant them aren't just rare - they're nonexistent."

Ok - make 'life sentence' actually 'life' i.e. 80 years, give it out for the most serious crimes, and that might work.

"there is no effect to adding more of them together, so it's entirely spurious to do so."

For mass murdering psychopaths, there may be 'no difference' in 1 or 80 years.

So by your logic 'they won't reform so skip prison'?

No - punishment is a perfectly normal and reasonable reason to put people in jail.

People who have been transgressed understand this usually better than others.

If this list were only comprised of felons who later became cops, that would be one thing. But it seems like a lot of it is crimes committed while being police, some even in the course of their duties as officers:

> The list includes cops who trafficked drugs, cops who stole money from their departments and even one who robbed a bank wearing a fake beard. Some sexually assaulted suspects. Others took bribes, filed false reports and committed perjury.

You can say that should be a separate list, and sure — I can get behind that. I certainly don't like the idea of the justice system being retributive! But it seems clear that there is data on this list that should be released in the interest of public safety.

If I'm reading this article correctly, this isn't just about past convictions, but cops who were convicted of crimes on the job, as well as former cops and those "who at one time had tried to become a cop".

Furthermore, the Attorney General is trying to argue that simply being in possession of this list is a crime. But given that the article says some of the convicts are still working as cops, I think that it is important to the public interest that this list be seen and reported on. Not necessarily to be printed out in its entirety just to shame every name on the list, but to find out which departments have failed to vet their police officers. Just because the government keeps a list doesn't mean that they do a good job of checking against it, especially when it might be up to each individual agency to do the checks themselves.

... you're tacitly admitting you either dont believe in prisons as an effective tool for correction ...

Can one not believe they are effective while also hedging that, for example, perhaps the rate of recidivism remains slightly higher than the crime rate of everyone else? It doesn't seem like it has to be a binary, correction can be effective without being perfect.

Going from there, it's not hard to imagine a world in which ex-felons (is that the right term?) are considered perfectly hirable, but worth just a little extra oversight in exceptional circumstances.

Someone in the article makes the same argument as you are making here:

‘To the extent the public wants that to be public record, I can understand that,” said Rains, who is leading a legal fight to block the release of officer disciplinary records under the new law.

“Why don’t we make that known for everybody?” Rains said of convictions, pointing out there’s no broad disclosure for lawyers, doctors, teachers and other trusted professionals.’

The key difference is that none of the other ‘trusted professionals’ have arbitrary leeway to detain you under suspicion on the street. The dynamic between police and the populace is not even remotely equivalent to any of these other types of professions and to equate them is an outright false equivalency.

Well, I believe that all criminal arrests, trials,convictions and sentences are public records in the US. So in theory, given lists of police officers -- and lawyers, judges, doctors, teachers, or whatever -- you could create such databases.

In practice, it'd be a pain. Because you'd probably need to request records from, and perhaps visit, individual courts.

What's different here is that these are personnel files. Do we want all personnel files to be public records? For lawyers, doctors, teachers, or whatever? For lawyers and judges, that'll never happen. Would you want your personnel files, from everywhere you ever worked, to be public?

The difference, again, is that police are not only public servants, but also have been entrusted with a position of extreme authority (and in-the-moment life-and-death decision-making) over everyone else, which is fairly unique to their profession. We have hired them to uphold and enforce the law. If they break the law themselves, especially if they do so while abusing their trusted position as police officers, they cannot be trusted with that job.

From there the question becomes: do we trust the hiring process for police to blacklist former cops who have abused their position? Based on the article, we should not, because it mentions several officers who still have jobs despite their misdeeds.

Given that, the public not only has the right to see this data, but should absolutely demand continuous public access to this data, as the existing system is clearly not trustworthy, and requires public oversight.

And yes, feel free to consider the same policy for lawyers, doctors, teachers, or whatever. Maybe we should require personnel records for some other professions to be public, maybe not. But it seems clear to me that for police officers, this data needs to be public.

By that argument, it's judges that we ought to be worrying about.

Yes, but in a different way. A cop can shoot you on sight and in many cases get away with it, even if it wasn't justified. They have immediate life-or-death authority over people.

Judges can make a bad or corrupt ruling, but, at least until you get to SCOTUS, you always have the ability to appeal. And there's no immediacy; an incorrect decision by a judge will never leave you dead a matter of seconds later.

Isn’t this actually just a list of public servants who have publicly been convicted of crimes? This is not their “personnel file”

It's not all "public servants", just police. And sure, it's not entire personnel files, but it's a sensitive part of personnel files.

So hey, I'm not normally so friendly toward police. Back in the day, one of my favorite songs was MDC's "Let's Kill All The Cops".[0,1]

But I've mellowed. As I've gotten older, and less of a pain in the ass, I've found police to more than not be helpful. One state cop even helped me to change a flat tire. Maybe I reminded him of my dad.

Mostly, though, I feel strongly that we all deserve privacy. And I don't think that public shaming is a good approach for dealing with such low-level "public servants" as police. Seriously, a bad cop will maybe fuck over maybe 100 people per year. But a bad judge could fuck over maybe 1000 per year.

And what about bad state attorney generals, governors, presidents or Supreme Court judges? That's where to focus, I think, on better public access. When considering the tradeoff between privacy and public accountability, the key factors are power and authority. The potential to do damage to the public interest.

0) https://genius.com/Mdc-lets-kill-all-the-cops-lyrics

1) MDC = "Magnus Dominus Corpus", "Millions of Damn Christians", "Millions of Dead Children", "Millions of Dead Cops", "Missile-Destroyed Civilization", "Multi-Death Corporations", etc [alphabetical order]

Wait, you were prosecuted for defending yourself from a violent attacker?

You can end up being the one punished in all kinds of scenarios where you're the wronged party initially.

If you are too vigorous in defending your property, you can be charged with assault, which I'm guessing is what happened.

Perhaps, but the very nature of carjacking is that it's a violent crime against you, not just your car. Yes, the end object for the criminal is stealing your car, but many carjackings have resulted in severe injuries or death for the victims, which is why it's actually legal in South Africa to have flamethrowers mounted on your car to protect yourself from them (!). These crimes should be treated as attempted murders, and I have a hard time imagining how someone can be "too vigorous" in defending their very life from someone who is actively trying to murder them.

I think in general, once you're no longer in danger anything you do to the attacker becomes assault instead of self-defense.

Depends strongly on the jurisdiction. Some states are "duty to retreat" states. Some are "stand your ground" states.[1] Big ongoing controversy over this, because it affects when it's legal to shoot somebody.

[1] https://en.wikipedia.org/wiki/Stand-your-ground_law

IIUC - and I'd be interested to be corrected if I don't - the difference between "duty to retreat" and "stand your ground" is all around what happens while you still (reasonably?) perceive a threat to be present. If you're confident that you are safe, and you (say) shoot someone in retribution, you're guilty even in a stand-your-ground state. At least theoretically - what can actually be shown at trial is possibly another question.

This is much discussed on gun sites. If you shot someone trying to steal your car, in some states you would probably not even be charged, while in others you'd go to prison. An intro for Texas.[1]

[1] http://www.kcbd.com/2018/12/27/experts-discuss-texas-state-l...

Texas is the sole exception to this rule, at least when it comes to laws (but there's a separate question of how laws are enforced in other states... in some places, the sheriffs might look the other way in practice, and it's easy to fudge). It has nothing to do with stand-your-ground.

SYG by itself only removes the duty to retreat in the face of danger if you can. It does not allow to use lethal force when you're not in danger, merely to prevent a commission of a crime.

That's still a question of defense of property, though, right? You may be able to shoot someone to stop them from stealing your car. You can't ever shoot someone because they tried to steal your car. The circumstances in which a self-defense justification extends to property presumably also differs per-state, but it's not the same question as "stand your ground".

It's maybe worth noting that "defense of others" is often also a thing.

I think some people like you here are not understanding what "carjacking" is. This isn't simple car theft; it's a violent crime where attackers frequently use weapons to force people out of their car and take it. Victims are frequently killed or injured in the process. It isn't like someone breaking into your car when you're not in it. Carjacking is a really scary crime.

The discussion, since about 5 posts up, has been about what is and is not a part of "stand your ground" - carjacking is only vaguely, incidentally relevant anymore.

Yes, in a carjacking, the victim likely has reason to fear for their life. At some point, that ceases to be true. Actions taken after that point (... in those circumstances where actions can be taken by the victim after that point) are what was under discussion.

(I did read Animats' "If you shot someone trying to steal your car [...]" as referring to more general auto-theft - if it was meant to refer specifically to car-jacking then amend my earlier comment to "That's still at least a question of defense of property [...]")

IANAL, but I think you are allowed to respond “in kind” to an assault, or attempted crime against you.

For example, if someone points a gun at you, you are legally allowed to draw your own weapon. The response was “in kind”, i.e. the same level of force. It’s different if someone pointed a gun at you, then you pointed one back at them, they ran, and you shot them in the back. In this scenario, it would be retaliation, and you could be criminally prosecuted for that.

Okay, but the presence of an attacker implies you are in danger (from the attacker) and thus are justified to assault them until they leave or are no longer willing/capable of assaulting you back.

If you can't safely defend yourself then, why not just become a criminal yourself? You already might become one sooner or later due to circumstance, so just turn to the dark side and start jacking cars! (This is sarcastic, do not turn to the dark side and start jacking cars!)

Also, pro-tip, outside of the US it's also not always legal to claim self-defense for any levels of violence. In a lot of countries (including Canada) the correct response in a situation like this is to -leave-, abandon the car to the carjacker and call the police from safety. Possessions aren't worth your life.

This line of reasoning is insane to me. For the most part, police act as a deterrent against crime, not as an actual barrier. Police tactics are geared toward making them more of a deterrent, making their presence felt by everyone around as much as possible. So calling the police because you've just been robbed is not likely to achieve anything (I've had two cars stolen, and in both cases the police never achieved anything).

If police aren't a deterrent from car theft (as carjacking is a pretty common crime), then we are encouraging that behavior by doing nothing and calling the cops. Conversely, if the average person, during an attempted carjacking, opened fire on the attacker, it would be a major deterrent. There would be almost no repeat offenders (I have been shot at, and it is terrifying).

The police are almost never around to intervene in a crime in progress. They show up in the aftermath and investigate what happened, gather evidence, and eventually may refer a suspect to the prosecutor for charges.

Agreed. Their main value is as a deterrent presence, a chilling effect on criminal conduct. They do gather evidence, etc, but the vast majority of their work is driving around and being seen.

I mean, the other line of reasoning is insane to me. If you can safely escape a situation why should you risk escalating and possibly getting shot yourself?

Report the item as stolen and move on with your life.

Because that requires you to be able to judge whether it's safe for you to escape or not, while under significant stress, and with the consequence of making the wrong choice being your limb or life. And then a bunch of people sitting in a comfortable room will carefully go over the evidence and your statements, and decide whether you decided correctly.

And all that solely to spare the attacker the consequences of his choices. I'd rather err on the side of the victim here - they didn't choose to be in that position, they were placed in it by actions of the attacker.

Note that this all only applies when the person defending themselves is in a position where they reasonably believe that they're in danger. It's generally not legal to defend your property with lethal force in US, if you are not endangered yourself; the sole exception is Texas.

Hrm, and yet in this discussion there are quite a few examples of people glorifying defending themselves with a weapon or lethal force. It is romanticized in the US and that's going to tip the balance on whether someone will preserve themselves or attempt to "take justice into their own hands". I think judges are in the position, and have generally proven quite able, to rule on cases where someone was legitimately uncertain if there were other options, but it's also a bit scary how glorified responding with force seems to be.

In my country of birth, there are quite a few cases where people are convinced on "excessive force used in self-defense" even in situations where they were literally being shot at. So no, it's not at all a given. I'd rather not have that possibility.

A more important question is why. We're discussing a situation with a premise that we have already firmly established that the victim was violently attacked, or had a credible threat of the same (if we haven't, then it's not self-defense by legal definition). At that point, why would you accommodate the attacker at the expense of the victim, so long as victim remains threatened (again, if they're no longer threatened, then it's legally not self-defense)?

I often hear truisms such as "every life is valuable", but that goes both ways, and there's no way to avoid judging the relative value of victim's life versus the attacker's in this situation. Since it was attacker's choices that create this contradiction in the first place, I believe that they're fully responsible for it - i.e. the victim has no obligations whatsoever to think about the attacker's safety, only about their own and that of bystanders. Which means removing the threat by the most efficient way possible, rather than the most humane towards the attacker. Once attacker is no longer a threat, then considerations of the value of their life etc are back in force, because it's no longer at the expense of danger to someone else.

If somebody tells you "your money or your life," it's pretty obvious that the safer option is to give them the money.

> If somebody tells you "your money or your life," it's pretty obvious that the safer option is to give them the money.

Safer for you, right then (unless you, you know, actually need that money, for food). Unsafe for all of their future victims, whom you have just chosen not to help. This is true for the same reason that evolution and game-ification works... Applying positive feedback to an action increases the likelihood of that action being performed again. By giving in, you choose not to stop them, and communicate to them that what they are doing is okay.

How about not trying to steal my things? I'm glad to live somewhere where I can react with over-the-top force to defend my possessions.

Because if you don't do anything, the thief will have their actions validated. That theft will no longer be an isolated, one time occurrence... It will be their new full time job. That means that they are much more likely to end up robbing someone again, be it you, a close relative, a loved one, a person who can't afford to "move on with their life", as you said. I'm trying very hard not to use the word "sheeple" here, but you haven't left me many options. If the average person protects themselves, then the group or community, on average, will be protected.

Because sometimes you only have seconds or milliseconds to decide how best to potentially save your own life and/or the lives of your family.

Sometimes "safely escaping" is not something you have the time or option to even consider.

It's simply about the human right to defend one's own life.

You mean, "If you think you can safely escape".

>>Conversely, if the average person, during an attempted carjacking, opened fire on the attacker, it would be a major deterrent.

It would also be a major incentive for the carjacker to carry a gun and possibly use it.

Well, bring it on I guess. I can't imagine wanting to live in a world where it's illegal to defend yourself from thieves.

I would think the incentive is that they don't want to die for a car or they don't want to commit a crime someone will actually investigate (a murder).

>>I can't imagine wanting to live in a world where it's illegal to defend yourself from thieves.

It's not illegal to defend yourself, but it might be illegal to defend your property, yes. I think it's an complicated moral question whether or not it's fine to shoot someone stealing your TV, but there are lots of practical reasons I think it's probably best to have it generally not be legal.

Technically you already do. Most jurisdictions around the world impose a duty to retreat, often quite strictly. The United States is an exception, largely an artifact of our frontier history and Wild West lore.

There's a reason why the United States is such a violent country, and one of the most violent where law & order haven't broken down. I'm not saying I disagree with your sentiment that one should be given some liberties in meeting aggression with aggression. It's how I feel, too. (And I'm not shy around guns, FWIW.) But that feeling was nurtured by our violent culture. In most other countries people don't feel a compunction to buy a gun or otherwise arm themselves after being burglarized or carjacked. A predisposition to resort to violence isn't universal, not among developed nations, not even for defense. That took me awhile to wrap my head around, but IME (Ecuador, Mexico, Malaysia) it's true, even in countries with significantly more violent crime than we have.

>There's a reason why the United States is such a violent country, and one of the most violent where law & order haven't broken down.

The big problem I see is the easy availability of guns, which has turned into an arms race of sorts. So victims (such as for carjacking, the subject here) have very good reason to fear that attackers are armed with deadly weapons, and so many people want to carry guns themselves to defend against this, and so the criminals carry guns too.

In other developed nations, there's generally no easy access to guns, so a victim doesn't have such a large reason to fear for their life. The worst thing they have to worry about is usually being stabbed with a knife, which is generally much more survivable. So these countries generally have much less deadly crime, though they have more petty street crime (pickpocketing or purse-grabbing for instance).

Countries where they have more violent crime like Mexico, El Salvador, etc. are ones where law and order really have broken down, and these aren't "developed nations" either; poverty and crime are both rampant there.

The problem with gun control in a country that already has a high number of weapons per capita, as well as a constitutional right to carry them, is that people will refuse. No one likes to be helpless, and the manufacturing technology is pervasive. But what if we made all guns illegal, and the US citizens actually complied? End result: only criminals will have guns. That is a problem the police cannot possibly cope with. As a carjacker, I would feel way more comfortable in this situation.

With regards to guns, I agree. We're a violent society that suffers violent crime and a violent response to crime. And I don't know how to untangle things other than to first appreciate the complexity of the situation.

I just think it's important to understand that ours is a rather unique culture. Arming oneself is a reasonable response given our cultural values, and I support Americans' right to own firearms for self-dense (albeit with more regulation than commonly required). I hesitate to say it's reasonable in light of our violent crime. Middle-class Americans suffer very little violent crime. The ones who suffer the most, such as in inner-city ghettos, are communities that most vociferously support gun control and the most skeptical of self-defense arguments. But in any event most other cultures take a polar opposite view--that even aggression in self-defense is to be disincentivized--and I appreciate that it's also reasonable.

The major disincentive to this is that if they do and get caught, the penalties are far more significant. In fact, many laws specifically demand harsh penalties for merely carrying a gun while committing a crime, not even for using it.

They already carry guns, or at least some form of weapon. No one mugs someone without knowing they have overwhelming force. Knowing that the person you're about to rob is likely to have a gun, and is likely to use it against you, makes you consider safer forms of employment. It's not like they only have to steal one car... It has to be regular or it's unsustainable, and if you are regularly getting shot at while trying to carjack... You won't be carjacking for long!

In all likelihood, the carjacker is already armed. No one tries to mug someone without an advantage. But assuming they are not, it forces the carjacker, who is a human being, to wonder if his/her line of work is worth having some crazy asshole open fire over some stupid car. Most people would say no, and the ones who decide it is worth it, they won't last long if half of the jobs they pull end up with bullets coming their way.

Not possibly use it, assuredly use it. They wouldn't hesitate. Why risk themselves by giving the victim a chance to respond, if they're prepared to use deadly force in the first place?

I used to study martial arts a fair amount. I have been warned that in many places use of that knowledge to hurt someone can be seen as "escalation" -- in other words escalating a simple fist fight to something involving weapons.

It's tricky and I think many people's idea of what they are and aren't allowed to do in a violent confrontation doesn't match the law where they live. I've had a few close calls in my life. I once had a couple of incredibly drunk guys try to mug me. I think... they were so drunk that they could barely stand up, so I laughed and walked away. Another time someone in Paris tried to pickpocket me. I put his hands back in his own pockets and told him not to touch. I've never seen someone run away so fast... But these kinds of things could have ended in a very different way and I suspect I would have been blamed.

I was brought up similarly and do know how to defend myself in a pinch but... I'd only resort to it if I thought the situation was going to inevitably going to end in violence, which usually only involved intoxication, most people trying to steal something don't want any trouble either - it's only those guys who went out looking for a fight or who are intoxicated to the point of not being able to let things go that I'd consider in that category where I am legitimately fearing for my life and have no alternatives.

It's just like burglars, if you come home and your door is broken and you hear sounds inside then just move a safe distance away and call the cops, there's no need to charge in rambo style.

Never conflate "what is legal" with "what is moral" or "what is rational". Doing so will make so sorely disappointed.

You absolutely will, because very few people's personal moralities align with our societal ethics. Laws _generally_ align with what we have found to be ethical, but they lag behind and there are plenty of cases where they've diverged.

> I have a hard time imagining how someone can be "too vigorous" in defending their very life from someone who is actively trying to murder them.

You're assuming the person's life was in danger continuously throughout the incident.

If an attacker is using a deadly weapon in the commission of a crime, that seems to indicate that the victim's life really is in danger continuously, as long as the attacker is armed.

Not necessarily.

AFAIK the common case where your logic falls apart is when an attacker takes flight. At that point, it's really hard to argue (under the law of every country I've ever lived in, including the US) that your life is in danger.

If they run away while still holding the weapon in a ready position, you could reasonably argue that, and there were cases when people did, and convinced the jury.

And I think it's reasonable - why should you try to guess whether it's retreat or merely changing position? And even if it's retreat, it doesn't mean that they won't shoot back as they do so (indeed, "fighting retreat" is a military term). The whole point of firearms is that they can do harm at a considerable range, after all. If the attacker wants to make their intention to stop being a threat clear, they can drop the weapon. If they don't, I'd rather err on the side of not second-guessing the victim.

"In war, the victors write the history." I can see how this would apply to the above situation.

Yes, this is why I'm saying it's the "common" failure case, rather than the absolute failure case.

To illustrate, there are very few cases in US law where you can shoot someone in the back.

>To illustrate, there are very few cases in US law where you can shoot someone in the back.

Unless you're a police officer. Then it's generally OK, and at worst you'll get suspended or maybe fired.

> Perhaps, but the very nature of carjacking is that it's a violent crime against you, not just your car.

It is possible to use excessive force in response to a threat that would justify some force in self-defense, which supports prosecution for assault or similar crimes.

> These crimes should be treated as attempted murders

The generally are not factually attempted murders, and if we just decide to willy-nilly ignore the actual elements of crimes in deciding how acts should be prosecuted, then, well, it's hardly possible to stand firm that the case you are complaining about shouldn't be prosecuted as assault. Or genocide. Or conspiracy to commit wire fraud. Whatever.

I would imagine this quote had something to do with that:

> pro-tip: never take the public defender.

I don't think taking somebody's property is an attempted murder, nor is mugging.

You sound like someone who's never had a gun pointed at your face.

If cooperating with the aggressor leaves you alive, and not as an accident, it wasn't attempted murder.

It might be violent, immoral, terrifying, and any number of other things, but if the intent wasn't that you end up dead (even if there was a serious risk of that happening), it's not attempted murder.

It's a bit more complex than that, because (in most of the United States) intent becomes irrelevant once there is an actual death.

If you bring a gun to a mugging and it ends up killing someone - even if it went off accidentally - it's considered first degree murder. No matter what your intent, you willfully created the circumstance that led to someone's death.

https://en.wikipedia.org/wiki/Felony_murder_rule

From a purely technical legal perspective, robbing someone with a gun isn't attempted murder until they get shot, and then it was premeditated willful murder.

You're using 20-20 hindsight. That if you lead with is a big if.

> You're using 20-20 hindsight.

No, I’m not.

Obviously, the victim won't often be able to tell with any certainty (except with some idea after the fact) whether it was attempted murder.

That the difference may be hard to perceive from a particular viewer's perspective doesn't mean that the difference doesn't exist.

You're talking about intent, but the parent poster is talking about reasonable belief.

In US courts, the latter is (generally) what matters for self-defense claims. Courts don't expect victims to have perfect knowledge of a situation.

So in a certain sense, US courts recognize that things like armed carjackings should be treated as attempted murders.

> You're talking about intent, but the parent poster is talking about reasonable belief.

I'm talking about “attempted murder”, which is a crime defined by intent, and is entirely irrelevant to self defense analysis, where legality of the threats action only matters to the extent of it being unlawful, not as to what particular law is violated.

> So in a certain sense, US courts recognize that things like armed carjackings should be treated as attempted murders.

No, they don't, they recognize that the specific identity of the crime or other violation of the law involved on the part of the attacker is generally immaterial to self-defense analysis, which isn't “armed carjackings should be treated as attempted murders” except in the sense that it is also “simple assault should be treated the same as genocide” or “tortious, but non-criminal, battery should be treated the same as torture”.

In other words, if you don’t get shot, it wasn’t attempted murder.

If I am in the desert, and have only 1 litre of water, and someone takes it by force, they may have just killed me. If I need my car to support myself financially, and it is stolen, my life might well be ruined. Regardless of what the law states, if someone tries to damage my livelihood, for whatever reason and in whatever way, I am morally justified in damaging them to protect myself, and in doing so I stop them from repeating that damaging behavior in the future. This, generally, makes the world a better place to live in, as long as you don't engage in predatory behavior.

You're only morally justified in a proportionate and necessary response.

If your boss fires you, that's a pretty real threat to your livelihood. Is that attempted murder? Are you going to respond by assaulting him?

Any time you think the world is black and white, you're wrong.

You might have reason for last water, but not for stolen car. Stolen car is not sure death nor attempted murder. Even if stolen with gun.

You just rationalized killing someone by refraiming his action as something more deadly as it is. Which is literally reason why these laws about limits of self defense exists.

And that's the issue. Where do you draw the line of having people take your stuff? At what point is it going to completely ruin your life to have something stolen? I draw the line at having anything stolen, because to some degree I rely on all of my property, and anyone who tries to illegally acquire it will not likely try the same again.

There is far way from "to some degree I rely on it" and "stealing it is effectively trying to kill me. The self defence laws exists literally because of people who rationalized murders with far fetched reasoning like that.

These self defense laws are loose, inconsistent, and use 20/20 hindsight instead of intent. You can believe you are doing the right thing in the moment, but still be convicted because you necessarily acted on imperfect information. You can say the same about many laws, I imagine. My point is that it doesn't matter what someone is trying to steal. They can't know what impact it will have on you; they don't care what impact it will have. By choosing to violate you, they are inherently choosing to make you an enemy, an opponent, a victim. I firmly believe that this means they have chosen to give up the protections of our legal system in favor of brigandry. I can't see how a murder can occur in these circumstances, with one party forsaking the law to victimize another... No law, no murder.

Yes, it certainly is when the criminal is using a deadly weapon to commit the crime.

>you're tacitly admitting you either dont believe in prisons as an effective tool for correction

There's a third option, namely: correctional facilities work better than nothing, but aren't 100% effective.

Indeed, not everyone wants to be rehabilitated or can be, and correctional facilities are not always that great at rehabilitation.

I'm confused when you say 'former' felon. I thought a felon is someone who committed a felony. Unless your conviction was overturned, aren't you forevermore a felon, even after you serve your sentence?

"If you keep a secret list of people you know have been convicted of a felony, you're tacitly admitting you either dont believe in prisons as an effective tool for correction, or you're looking for something more sinister...biblical retribution"

Well, this would make perfect sense if we didn't have sex offender lists. Or if we didn't do things like taking the ability to own guns away from the mentally ill, even those who have committed no crime whatsoever. Or if we didn't in many places remove the right to vote or serve on a jury from felons.

I don't mean to say that all of these things are unquestionable and perfect, but it seems like there are many ways in which people generally agree that some rights can be lost and should be lost even after incarceration is over. And it's not necessarily about retribution. I think everybody knows prisons are not effective at rehabilitation.

Those aren't the same thing. Someone isn't accidentally a pedophile, or becomes a pedophile because of some mistake they made once, etc. There really isn't a way for a prison to change what their sexual preferences are, so the list makes sense. But felony convictions for crimes of necessity, passion, or lack of opportunity? Those are categorically different things.

(Of course, before someone jumps in, there are a bunch of people who end up on the list that don't deserve to be there because of backwards laws on the books or excessively aggressive prosecutors. But I'm speaking to the idea behind the law here.)

Before I accept that as truth, I want to see how things work in countries without sex offender list in term of recidivism.

The kind of sexual of behaviors that should end up on the list (because there is no possible way that it could be fixed) is probably quite limited.

"I am a former felon, convicted and sentenced for assaulting a carjacker."

And right there is everything wrong with the law. Hopefully at the very least you got a nice sense of satisfaction!

The point is pretty simple: damage control, and a refusal for change.

Society wants to discredit everyone who is a former felon (which itself is a sentence for life), and it wants to keep people who are cops from becoming a felon (those 'criminal cops' surely did worse things than 'convicted and sentenced for assaulting a carjacker'?). Supposedly because being a cop earned them credits or bonus points of some kind (I'd put my bet on that it costs society a lot of money to train cops and keep them from being dirty).

In that way, the list (of former felons) retains its value. If the State would prosecute and convict dirty cops, society may get the idea that cops (who are supposed to be a reflection of society) are less sincere than they may seem to be.

The problem can be solved pretty easily:

1) Prosecute dirty cops.

2) Stop with this 'former felon' sentence for life. Be pragmatic about people instead.

3) You'll find 'former felons' everywhere in society, including in government positions. However, felons stay in prison to serve their fair share.

4) The chance of becoming a felon will eventually decrease (it is ridiculous right now, with e.g. crimes involving something innocent as a little bit of cannabis).

Problem is, there's a lack of willpower society has to go for these steps. How can we stimulate society in the right way? I suppose one thing would be that those who are former felons like yourself open up about themselves. Put it out of the pandora's box where the light doesn't shine.

> If you keep a secret list of people you know have been convicted of a felony, you're tacitly admitting you either dont believe in prisons as an effective tool for correction

This is 100% the case. Our for-profit prisons provide a huge incentive to completely ignore things helpful for rehabilitation including education, job training, anti discrimination, and treating prisoners like humans. They are absolutely aware of how damaging that list would be to those persons.

For-profit prisons are indeed problematic for a variety of reasons, but they only comprise about 8% of the US prison system[1]. I’m just throwing this out there because the for profit prison bogeyman, while real, often takes an outsize share of the attention when discussing problems with the US justice system. There are problems that extend far beyond that small segment of the larger apparatus.

1. https://en.m.wikipedia.org/wiki/Private_prison

True; my primary exposure to the US prison system has been in Texas which certainly sees its share there.

I suppose it would be more apt to say that the fact that the justice system allows a private interest to be involved shows how corrupt it can be.

> an abundance of caution in the face of an indeterminate outcome from mental rehabilitation or incarceration

It's not about abundant caution, or the uncertain effectiveness of correctional facilities. Regardless of what programs you avail some people of, the numbers show that (knowing nothing else) choosing to trust any random convicted felon is a worse idea than choosing to trust any random person who is not a convicted felon.

I don't really know what this article is trying to imply, somehow that the list should be public (or I guess, in a more limited sense, that the AG should not be threatening the public to prevent them from having it); as far as I can tell, the records it would contain are public to begin with.

>"Disclosure: I am a former felon, convicted and sentenced for assaulting a carjacker."

I don't mean to pry but I'm genuinely curious how you received a felony for assaulting someone that was threatening you. How would that not have been considered self-defense?

"You have paid of your debt to society" is a meme like "Lady Justice is blind".

Hell you can be acquitted and still have society set against you, see the Central Park five.

I'd guess law enforcement in California would prefer there to be no list, but since there is one, want to keep it secret.

Wonderful comment. Would love if you could contact me (see profile). I have an interest in some of these issues.

what was your experience with public defenders? Just curious because you said it was a pro-tip to never take one

I think it's pretty clear to most people that the US prison system is a deterrent and provides retribution. It's not about rehabilitation.

I agree that it isn't about rehabilitation. And to a certain degree it definitely seems our system is geared towards retribution. But study after study[1] has shown that an individual's perception of the likely punishment (e.g., prison time) doesn't deter crime. Rather, an individual's perception of the likelihood they'll get _caught_ seems to be the main deterrent.

This is a really interesting & related read.[2]

[1]https://www.journals.uchicago.edu/doi/abs/10.1086/670398

[2]https://undark.org/article/deterrence-punishments-dont-reduc...

Indeed a lot of the changes in the past few decades seem to be based entirely on appeasing the public's fear.

One-strike eviction from public housing: https://en.wikipedia.org/wiki/One_strike,_you%27re_out

Expanded federal death penalty, removal of Pell Grant eligibility for convicts, mandatory drug testing for parolees: https://en.wikipedia.org/wiki/Violent_Crime_Control_and_Law_...

My understanding was that Bill Clinton and congressional democrats in the 90s felt they had to look tough on crime to appease the public and avoid losing elections to Republicans who favored similar policies.

Damn, I hope you at least killed the carjacker.

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