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Comment by adim86 | Hacker News Reader

Something I think about is why is the American Justice system designed the way it is. Like a commenter said below it is a legal game. Why?

These are peoples lives, why is this system gamified? Why is it not a truth-seeking system? I am probably naive and don't see the full picture of all of this but it is confusing to me. The United States is known to be the country with the highest number of its citizens in prison. With a burdened legal system and little funding, why does this continue to be so? I find the barrier of entry to prison in the US very low compared to other countries I have lived in and visited. What are the advantages of this? I find this all very absurd.

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The theory is two sides produce the absolute most convincing argument they can, and an independent arbiter - the jury - decides between the two arguments. As both sides can freely choose their representatives, they can change if their guy isn't doing a good job. And as the jury has heard the strongest possible arguments, they've heard all the information the two sides believe they need.

If you're accused of being gay in 1880, a randomly selected truth-seeking arbiter might be very anti-gay as that was the median opinion in society at the time - or even subject to political pressure. Only by having free choice of who represents you can you get someone who isn't biased against you.

Of course, that's only the theory. How well it works in practice, particularly with under-funded public defenders, is a different matter!

There are so many holes in this theory it is no wonder it doesn't work at all in practise

Good news then, we use competing systems to determine a solution in several facets of society (e.g. politics at every level, almost everything related to countries, governance in the public and private sectors). The minute someone comes up with a better system with less "holes" it will be quite the human revolution.

There are different systems in use today. In many other countries, judges/prosecutors are charged with much more of a "figure out the true facts of what happened; do justice" role than they are in the US system.

https://definitions.uslegal.com/i/inquisitorial-system/

Is there evidence to suggest that those systems are more effective at finding the truth, or delivering justice?

That is a subjective question. I would argue things like paying for lawyers, paying your court fees even if you win (US system), and bail, cannot be an effective way to achieve true justice because they are all biased towards the rich.

Surely you don't think there is no better or even alternative system to the trainwreck that is the US justice system? I'm not arguing to get rid of courts i'm arguing to change the way they are run. I don't see how this needs to be a revolutionary idea.

What makes you characterize the US justice system as a "trainwreck?" Also, which existing justice system would you point to as a better example?

> The theory is two sides produce the absolute most convincing argument they can

It's clearly not the absolute most convincing argument, seeing as the US legal system has rules regarding the admissibility of evidence, which may disqualify certain arguments.

It's like free market capitalism applied to the legal system.

The police is supposed to be a neutral party in this system, I believe a lot of these failures stem from the police failing this role.

It strikes me that the problem isn't the gamification so much as the fact that it's a case-closing system. The primary motivation of the prosecution isn't to solve cases, it's to close cases as quickly as possible by finding someone to pin the blame on and lock up. One piece of evidence totally exonerates the defendant but they'll be otherwise easy to convince a jury to lock up? Suppress the evidence and move on.

We need to find a way to change the motivation of the prosecution such that they want to actually solve these cases, regardless of how long it takes.

"Suppress the evidence and move on."

How about automatic criminal charge for withholding the evidence?

Agreed. Additionally, open&unsolved cases shouldn't be a metric that's considered a ding against prosecutors/police. Open & unsolved is far better than closed with an innocent person behind bars.

Who would prosecute it? The prosecutors are the ones committing the crimes here.

Different prosecutors? One possibility would be to make prosecutorial misconduct at the state level a federal crime.

But those different prosecutors would also be doing this kind of misconduct. This is a systematic issue. They would not be able to sustain the same rate of conviction if they acted ethically.

Is that really true? I definitely have the (subjective, not backed by research or real familiarity) impression that Federal prosecutors hold themselves to a much higher standard than most state/county DAs.

Regardless, you're right and it can't be prosecutors all the way down. Ultimately if you're wronged by the Federal government you probably have to accept some kind of civil liability. Granted the US government isn't great at doing that either, but I think that's a different, largely unrelated problem.

A prosecutor that withholds evidence in a felony proceeding could be guilty of a felony in most states, and in nearly all states would be suspended or disbarred even in states where withholding evidence is not a crime.

(In nearly all US jurisdictions where it is a crime, it matters whether the withheld evidence would have affected the outcome of the trial (i.e., is "material") as it is generally not a crime to withhold non-material evidence.)

> I find this all very absurd.

I do too, and many citizens of the Soviet Union thought of that the same with "guilty no matter what" mentality dominating Union's legal system.

Unlike in USSR, American judges don't join their past clients in the gulag if they disagree with prosecutors. Why do they do it then?

Being 'tough on crime' is a surefire way to get re-elected.

Which raises a follow-up question: Why on Earth do Americans elect judges and prosecutors?

Exactly. And they also elect sheriffs.

Not all judges are elected, some are appointed. Same with prosecutors, it’s usually only the top one that’s elected.

It gives you an opportunity to select the type of community you want to live in. Some elections are partisan and some non-partisan. If you’re in an liberal county you have the option to select a liberal candidate and vice versa. I doubt a very liberal or conservative community would want to be stuck with someone with opposing views.

> It [elections] gives you an opportunity to select the type of community you want to live in.

I'm curious: how does that work out in practice? Do folks in the USA typically live in the type of communities they'd like to live in?

I’d like to think so but it’s a gradual shift. The county I live and grew up in was very conservative 10+ years ago, lately it’s been more liberal (but not as liberal at the state level). If you would’ve told me in the early 2000s the county would vote Democrat in the 2016 elections I wouldn’t have believed you.

People have told me they want to move out of my county because it’s becoming too liberal, whether they actually do it or not is up for debate. Mostly cranky old people, family included.

The West has historically been a tough of crime (old Wild West) place. Here’s an interesting Sheriff from Phoenix, Arizona. Joe Arpaio[1]. His tough on crime and immigration stance that made his career was also his down fall.

[1] https://en.m.wikipedia.org/wiki/Joe_Arpaio

The point that a partisan attitude matters in a legal system is horrific to me. Laws should not be interpreted in personal bias, especially not by a, supposedly, impartial arbiter.

While true that almost anyone will have some bias, it should (in my view) never be considered in the entirety of the system let alone as a starting point for the highest judge.

> I doubt a very liberal or conservative community would want to be stuck with someone with opposing views.

A conservative with a liberal judge would want the judge to be impartial to their view on politics.

Would you rather the laws and justice be determined by Religious views? Like they are in ultra-conservative Middle East or Europe in the not too distant past? Or determined by a monarch with absolute authority?

You’re being naive if you think politics don’t shape laws or justice.

What makes you think you'd be allowed to elect your judges in a country with a monarch with absolute authority or that you would be allowed to elect a gay judge in a ultra-conservative country?

As for politics in justice, I'd like to think serious questions would be asked in my country if it came to light judges let their political believes affect their decisions.

Wouldn't that happen just as much with appointed judges? You vote for a liberal/conservative councillor or mayor or state rep or governor, they appoint a judge who has suitable views, but who may not be charismatic enough to win an election.

I wish I knew enough about appointments to provide an insightful comment.

A sheriff/judge/prosecutor who has to enough of what the local populace wants to see to get reelected may very well serve the interest of justice better than a sheriff/judge/prosecutor who is beholden to organizational politics and political politics of the bureaucracy above them. This is very important in rural counties in states that are controlled by a couple urban areas and urban counties in states where more rural politics dominate state government because it allows them to have outcomes that are more just as the inhabitants of the county see it, even if they may seem less just from the perspective of the hypothetical average person in the state. Direct election of these officials basically provides a minority protection for counties that are in the minority in their state. Make no mistake, both local voters and state bureaucracy are more than capable of incentivizing non-just outcomes but putting that power with the local voters is more consistent with American values which generally prefer to have the most local level of government that can do something be the level of government that does the thing.

TL;DR if you take the view that justice is relative to the wishes of the local community then having these officials elected by the local community makes perfect sense.

Electing judges was considered a reform. It also varies from jurisdiction to jurisdiction. Obviously Supreme Court justices are appointed.

The appointment of supreme court justices in the United States looks to outsiders as though political operators do their best to stack the deck in their favor in case they ever need a get-out-of-jail-free card.

I can see that, sure. Which is better, electing or appointing judges? It doesn't seem clear cut to me that there is a good answer with those options.

As an aside, in the US, in some jurisdictions including federal, being a lawyer isn't a requirement for judgeship.

https://www.robertreeveslaw.com/blog/federal-judge/

I don't think it's that — it's that the Supreme Court has become the unchallengeable super-legislature, and thus both sides of any issue desperately want to get their guys onto the court, so that they can get the laws they wish to pass.

It's a weird sort of legislature, though. It doesn't have the ability to originate laws itself: third parties have to propose laws to it. And those proposals have to be in the form of arguments that the actual laws passed by the legislative branch are unconstitutional. Once a party has managed to phrase his proposed law in that fashion, though, the Supreme Court is practically capable of passing any law, repealing any law, revoking any provision of the Constitution and amending the Constitution in any way it wants.

It's an odd system.

That didn't use to be the case. In the last few years the supreme court appointment system has become way more political than it ever used to be. I'd argue it means that there is becoming more and more disagreement in the general public on what laws even mean. This causes politics to be inserted into the legal system because the "meaning of laws" itself has become politicized. Why this change has happened is a good question.

It's an attempt to avoid cronyism or an inherited/bequeathed type of situation. If the public doesn't like how the judge/prosecutor or any gov't position is working out, then they get the chance to replace them. For the people, by the people.

Lobbying/special interest has pretty much ruined that though.

> Unlike in USSR, American judges don't join their past clients in the gulag if they disagree with prosecutors. Why do they do it then?

Judges are meant to just be referees. Even if a judge thinks you're innocent and knows a defence you could use, they can't suggest you use it; they have to wait for your lawyer to bring it up.

Now yes, in theory, if you had an open-minded, honest, unbiased judge patiently investigate all the facts and make a decision, it would be more fair than having a highly-trained-and-motivated prosecutor "playing the legal game" to score political points against an overworked and underfunded public defender. But how can you be sure you only appoint open-minded, honest, unbiased judges?

Having the opportunity to state your own case in front of a selection of 12 random people has both a lower maximum but also a much higher minimum expected value.

Consider that “lawmakers” are almost entirely drawn from the ranks of lawyers, of course they have constructed a system that benefits their own kind.

> These are peoples lives, why is this system gamified? Why is it not a truth-seeking system?

How do you imagine a truth-seeking system would be different?

English Law (which is where the American system came from) is ingenious. It is the crown jewel of liberalism.

> These are peoples lives, why is this system gamified? Why is it not a truth-seeking system?

Which systems aren't "gamified"? Please point me to a "truth seeking system" that exists out in the world. Truth-seeking systems are an ideal.

The lawyer in this AMA, Sean O’Brien, argues for increasing the funding for public defenders. That's a smart idea. Lamenting the supposed awfulness of the system is lazy and useless.

In England however where we still have English Law very few innocent people get sent to jail. If anything the system is flawed the other way in that quite a lot of guilty people get let off. I remain puzzled why the US is as it is.

Is there an actual study on the rates of mistaken guilty verdicts on a country by country basis?

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