The origin of the law of torture: A cautionary tale
daviddfriedman.substack.com
daviddfriedman.substack.com
Reminds me of a law that was repealed recently in Germany.
They wanted to "reopen" cases where people were already found not guilty, when new technology would find new evidence.
In one case, a murderer was found not guilty, and later they had DNA analysis that would have proven his guilt. The new law would have put him behind bars.
However, the federal constitutional court repealed the law, as the constitution forbids to convict someone two times for the same crime. They said legal certainty was more important than finding the truth.
Nevertheless, this loophole gives guilty people plausible deniability, since the system can never be sure to find the truth.
Innocent = "We, the jury, are certain the defendant didn't do it."
Not guilty = "The prosecution did not convince us, the jury, that the defendant did it."
And because our criminal justice system is not set up to establish innocence, only to check if there's enough evidence to prove guilt, we don't use the term "innocent" for decisions.
It's basic: if someone can be retried because of new evidence, the prosecution will introduce a little bit more evidence (probably evidence they intentionally held back!) after each acquittal, and try them again.
The Americans in particular take it much further than some do; here in Canada the prosecution can appeal from an acquittal due to legal error in the decision; the prohibition on double jeopardy only applies to the entire process as a whole, after a final verdict including appeals. In the USA, a verdict issued by a jury, even at the first trial, is generally final and cannot be appealed even for reasons of legal error, while a guilty verdict can be appealed. American pluricentric power does create an odd circumstance where you can be tried twice in practice, though. If the federal government prosecutes someone for a crime, and fails to convict, if it was illegal under state law, the state government can try again under state law, or vice versa.
https://www.france24.com/en/20170830-france-reacts-dutertes-...
There should be obvious difference between "minor new development" and "major new finding". Likewise, there should be obvious difference between "potentially innocent person is in prison" and "prosecutor wants new attempt situations.
There was a lot in the headlines at the time and though this made the news other things quickly drove it “off the front page” (don’t know what metaphor we should use for that expression these days).
Is that for real? It sounds positively Cardassian.
Dukat: "On Cardassia, the verdict is always known before the trial begins. And it's always the same."
Sisko: "In that case, why bother with a trial at all?"
Dukat: "Because the people demand it. They enjoy watching justice triumph over evil every time. They find it comforting."
> There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.
...
> With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon.
Note: In the excerpt above from source [1], Snopes removed a page break and inserted a comma (mistake?). Keep that in mind when using ctrl-F in source [2].
The Supreme Court's ruling (6-3) was that someone who was already convicted for a crime but later makes a claim of new evidence of innocence is not entitled for a new judicial trial [2]. In simple terms, there's no guarantee to a new trial after the fact, and the burden on the courts would be too much anyway. Scalia's concurrence went further and asserted that executing someone who was convicted in a procedurally proper trial but was actually innocent is not "cruel and unusual punishment" (by the standards of the past 200+ years of US history, which supposedly involved plenty of executions of innocent people convicted in proper trials) and is not a violation of due process.
The majority (including Scalia) weren't in favor of executing an innocent person, they were just arguing that the convict making the new claim of innocence can't count on the judicial system. The majority, including Scalia, points to the only option being seeking executive clemency/pardon, i.e. request the governor/president to evaluate the new evidence of supposed innocence and hope that the governor/president agrees - or at least reduces the sentence [2]. A request for clemency is outside of the scope of due process.
> Herrera is not left without a forum to raise his actual innocence claim. He may file a request for clemency under Texas law, which contains specific guidelines for pardons on the ground of innocence. History shows that executive clemency is the traditional "fail safe" remedy
[page break]
> for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion.
From the convict's perspective, "no new trial, but you can ask for a pardon" is cold comfort, but not necessarily a dead end.
[1] https://www.snopes.com/fact-check/scalia-death-penalty-quote...
[2] https://supreme.justia.com/cases/federal/us/506/390/ https://supreme.justia.com/cases/federal/us/506/390/case.pdf
https://en.wikipedia.org/wiki/Herrera_v._Collins#Subsequent_...
Those are, in fact, actually qualities that are grounds for dismissal in selection processes for law enforcement; the on ramp of the corrections pipeline.
Any philosopher finding themselves in the System's custody may as well, despair. Before the Law, not even God's mercy will stay the wheels of Justice as she's wrought.
https://www.cnn.com/2019/06/17/politics/supreme-court-double...
It’s not rare for someone to be found guilty after having been found not guilty once, and sometimes even twice.
https://www.nicolaporro.it/uccise-il-padre-per-difendere-la-...
In the US (to take a reference) only convictions can be appealed, in Italy the prosecution can also appeal if the accused has been acquitted. Once the appeals have been exhausted however the principle applies
It's a weaker guarantee but it's incorrect to say that it's missing entirely
The Swedish Supreme Court can reopen cases when there are new evidence, through there are some restrictions. The new evidence/circumstances need to be significant enough that if it was already known during the first trial, then the outcome would most likely been different. There also need to be a good and valid reason why the new evidence was not presented during the first trial.
New DNA technology has been the cause for such trials. Last year a person was found guilty of murder after 26 years, after being acquitted from a lack of evidence.
I was part of a lecture covering a case where US police had tortured out a false confession. The prof asked a Canadian student if such a thing would happen in Canada. "No. The RCMP wouldn't bother. If they need a confession they would just forge one. Forgery is much easier than torturing someone."
I'm not sure if this is true. There was definitely trial by ordeal in the 16th and 17th century.
> Priestly cooperation in trials by fire and water was forbidden by Pope Innocent III at the Fourth Lateran Council of 1215 and replaced by compurgation. Trials by ordeal became rarer over the Late Middle Ages, but the practice was not discontinued until the 16th century. Certain trials by ordeal would continue to be used into the 17th century in witch-hunts.
This is clearly the best justice. Believe me. We have triumphed over evil like nobody has seen before. I believe it’s a rough situation over there. There’s no question about it. The past does not have to define the future. It’s idealistic, it’s wonderful, it’s a beautiful thing.
Plus, this is usually pre-crime detention so there is no crime, no case, no enquiry, no courts.
Its fun
https://www.legalservicesindia.com/law/article/5001/5/Preven...
Another nice thing
t was held that the law of preventive detention is not unconstitutional since it has no objective criterion for ordering preventive detention, and instead relies on the executive’s subjective judgment. This viewpoint is based on the fact that preventive detention is not punitive, but rather preventative, and is used to prevent a person from engaging in actions that are seen to be harmful to specific goals that the law of preventive detention aims to regulate. As a result, preventive detention is based on suspicion or expectation rather than proof.
https://blog.ipleaders.in/extending-protections-accused-ligh...
Should be done away with, but it most likely won't be as long as Indian Law and Order concentrates more on "Order" and less on "Law".
Also the chronic lack of Judges in India is a major issue impacting bail.
The people on the sideline saying it's all pointless are not only obstructing those doing actual work, they benefit from the legal system - the work of all these people and generations working toward justice - without contributing their share.
Let me know when your relentless effort yields improvement.
Not enough, not quickly enough, but that's because you're not helping.
The core assertion that offering a lesser punishment in exchange for cooperation is a form of “torture” strikes me as an extreme exaggeration.
> The American legal system found a less expensive alternative. Like its medieval predecessor, it substituted confession for trial. The medieval confession was motivated by the threat of torture. The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted.
Being manipulated by the cops into a fake testimony is torture. Having the cops fake evidence and their testimonies to harass you is torture. Remaining days in a room with lights on all day, shit all over the walls in a freezing cold or hammering hot, without access to a shower or better clothes, that's torture.
And that's when you're lucky. The less lucky ones have months or years of pre-trial detention, sometimes in isolation (which is a well-studied form of torture) before they can even defend themselves.
Yes.
> ut yes, offering a definitely innocent person that was abused by the System the choice between two forms of punishment is some form of "torture".
If you classify everything you don't like as " some form of torture", then sure you have a point.
But we don't do that. We don't know for sure that someone is innocent. All we can do is go through the process that we have.
It's beyond hyperbole to suggest that any and all you lements of the justice system is a form of torture.
A basic principle of any civilised society is "innocent until proven guilty beyond reasonable doubt". I will not waste time explaining why this is important.
Complaining that all elements of a justice system is a form of torture is like unironically using the term "stare rape": you're trivialising the real term in pursuit of winning points in an argument.
Just because I pointed out that such a practice is not, in fact, any form of torture does not mean that the practice is not unduly burdensome and unfair.
This is looking at it backwards. It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence.
That distinction makes a difference.
The way the author looks at it is like how the government look at spending cuts. "Last year my budget went up 20% and this year it's only 10%, so you're cutting my spending by 10% next year??".
There is no difference in the way you seem to suggest.
If you don't think you can, then you take the lesser punishment.
If you think you can beat it, you decline it because the better choice is "no punishment at all".
It's part of a larger manipulative pattern.
Since you can increase the penalties for jury convictions to absurd levels, like the USA has done, even a "lesser" plea bargain punishment can still be more punitive than most nations' jury conviction punishments.
Plus, as the length of a jury conviction punishment increases, the threshold at which one's willing to risk a jury trial has to go up, thus pressuring people into taking plea bargains they might not under another country's judicial system.
What? Juries follow the law and the prescribed punishments. Maybe you're thinking of civil penalties?
But your response misses the point entirely. How can a prosecution threaten a longer sentence when they don’t determine it?
They do determine it in plea guilty process, actually. That being said, what they primary do is to manipulate charges - they add or remove charges to get the sentence they want. That process has nothing to do with what you actually done or not done. Charges are made big if you want trial. Charges are small if you accept plea guilty.
For practical purposes, prosecutors are key decision makers.
Of course, there's the chance you're found guilty although noone would dare say you committed the crime (Leonard Peltier), or the chance that you'll submit to much harsher punishment than what was decided by the judge (Georges Ibrahim Abdallah). But even when you're white and you're not facing a political repression case, there's a good chance pleading guilty for a fine and a suspended sentence looks better than spending a whole year in jail awaiting the trial that will exonerate you.
There's plenty of research in that area, feel free to look it up.
https://www.npr.org/2023/02/22/1158356619/plea-bargains-crim...
Also, the main point is that confessions based on threats are much poorer evidence of guilt than a proper trial.
Because that's not how you measure options.
If I'm collecting a debt of $1,000 from you, and I come to you and say "hey, if you pay it this week, I'll settle for only $700", would you say "This person is stealing $300 from me!"?
Of course not. You always owed $1,000. This is an offer to pay less.
Just like those charged with a crime always faced a specific punishment. If you offer a lesser punishment, it's not a threat of a harsher punishment because you always faced it, even if plea bargains never existed.
You originally claimed this:
> It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence.
The plea bargain is an offer of a "lesser" sentence, where "lesser" refers to a comparison to the trial sentence.
It is not a comparison to the trial sentence from a counterfactual world in which plea bargains don't exist.
As ajb points out, given that all US sentences derive from plea bargains, the sentence associated with a plea bargain already is the sentence that is felt to be appropriate for the crime. In the counterfactual word, you'd expect the counterfactual trial sentence to be about equal to the real-world plea bargain sentence.
That's not true. Plea bargains can be incredibly minor punishments versus the crime. Plea bargains are the flip side of the prosecutions options. If the prosecutor thinks it's a slam dunk, they have little incentive to offer a plea bargain at all - if they do, it may be a very severe sentence. If the prosecution thinks their odds of a win are low, they may offer a very lenient sentence, even for very serious crimes.
But who goes to trial comparing their outcome to other trials? A individual is looking at a specific situation - their own trial. They have no idea about the circumstances of other trials - whether defendants were truly innocent, or how much evidence the prosecution had. You may be charged with murder, and another defendant got a plea bargain of only 1 year in prison for manslaughter. But the prosecution has a rock solid case so your plea bargain is life in prison.
It's a singular decision of the defendant, usually with input from their lawyer. They'll need to determine their own likelihood of being found "not guilty" and decide if the risk is worth it versus the reduced sentence being offered.
You have no idea how prosecutors act. Slam dunk cases are pled. Most cases are slam dunks.
With plea bargains determining the sentence in 97% of cases, it isn't possible for those sentences to be felt to be lighter than appropriate. That would cause a political crisis.
> 97% of convictions are based on plea bargains
Taken together, these mean prosecutors generally don't have good enough evidence to put people away, which is the thrust of the article: it's easier to threaten someone into a confession than to have a proper trial.
Note that while you're correct about what those statements would mean in combination, refurb's statement is false. There is very little point in examining what would follow from the invented claims of someone with no idea what he's talking about.
Generally? No. Sometimes? Sure.
And yes, you could view it as a threat. That's the nature of a adversarial justic system. The same way that police will tell you they'll arrest you for standing on a sidewalk. It's often an empty threat.
It's why we provide legal services to defendants. So you can have a trained lawyer look at the evidence and tell you what you chances are of a not guilty verdict. Then the defendant can decide if a chance at not guilty is worth turning down a plea bargain.
That is police abuse tho. In a sane controlled police system, no they can not threaten you with arrest for standing on a sidewalk.
> It's why we provide legal services to defendants
Public defenders are notoriously overburdened and have massively limited resources. They are less likely to get you bail and you are much easier to be coerced when you wait in jail for months.
I think this is the right way to do treat it-- after all, people lie about all sorts of things.
The "default" is updated when you learn about plea bargain... You are now comparing options relative to plea sentence. If the best option "walk free" is uncertain even if you're not guilty (what if the other guy has a better lawyer or something) then plea sentence is the best certain option.
And prosecutors need to be careful. If they go for a more serious charge, but can't prove it, the defendant may be found not guilty when they would have been found guilty of a lesser charge (this happened to me on a jury - we found them not guilty of 1st degree murder, but likely would have found them guilty of manslaughter, but that wasn't an option).
And you example is a bit backwards: the trial happened after the plea bargain failed, so this has little effect on the threat to bring more (or more serious) charges, but even if it does: the "careful" sub-range is still measured in multiples/years, so a huge risk
And the plea bargain is what?
It’s often not that different.
You might go to trial facing up to 10 years (but your lawyer says 5 is likely) or a plea bargain to 4.
The "careful sub-range" is what affects the likely 5 number ("careful" in that it doesn't allow the lawyer to call bs on the charge and say that the likely sentence is now lower since there is a higher likelihood of not being convicted), not the not very relevant maximum of 10
A plea bargain is used to convict innocent people, by giving them a choice between a plea punishment, and the punishment of having to go through pre-trial detention and various forms of abuses before being able to prove their innocence. That the entire police-justice system works by treating you as guilty until proven innocent is crazy and is in itself a very strong sentence. That is, unless you are rich of course in which case pre-trial detention is likely non-existent and you can commit most crimes and get away with it.