The Legal System -- Black & White or Shades of Grey?

Nerissa

I was just talking with someone about a case where a couple of teenage boys are looking at possibly 10+ years of jail time and a sex offender label for basically acting like teenage boys. Apparently, they smacked a couple of asses and copped a feel or two.

Now, I'm all for punishing them, but 10+ years in jail PLUS sex offender label? Who does that benefit? In many ways, it waters down the impact of the whole "sex offender" label by giving the same stigmas to these kids, who can still be taught that their behavior is wrong, as to truly dangerous individuals.

Upon reflection, I think extremes like this are probably due, at least in part, to the fact that our legal system, at least in the US, doesn't handle matters of degree very well. We have "X offense gets Y punishment" and whether you committed X offense is a binary decision. There are some gradients (manslaughter vs 1st or 2nd degree murder) but it's still for the most part a black and white situation.

In some ways, I think this is probably necessary in a country as large and disparate as the US, because it closes loopholes, removes some of the "good old boy" factor, and ensures that the people who are actually a danger are punished. However, it also removes the common sense factor, which in an ideal world would make the punishment actually proportional to the crime.

Too bad we don't live in an ideal world.

Someone (I think japan?) was telling us in IRC a while back about the UK system, where there are two tiers of laws. There are laws handed down by the UK parliament, which have legislated, set penalties, and there are laws made by the individual country, where the penalties are a matter of precedent and common sense on the part of the judge.

In the US, I suppose this would be implemented as a matter of federal / state distinction. However, would it work? I suspect not. I think there are too many areas of our country where we cannot trust the common sense of our judge / jury to issue appropriate penalties for things like sexual assault or hate crimes (I'd rather this didn't digress into a discussion of whether or not "hate crimes" ought to be a separate class of crime deserving separate punishment -- in any case, the label still applies to a type of crime that I'm afraid in many areas would be treated less seriously than they deserve).

So... how much do you trust the legal system? Would a common sense approach work in the US, or are we doomed to trying to fit a world with infinite shades of grey into a black and white mold? What would be the requirements for a common sense approach to actually work? (I suspect a much smaller and more homogeneous population than the US has, or will likely ever have) For those not in the US, how does your legal system compare?

Thanatos

There are a lot more options presented by our legal system here than you're offering, Nerissa.

Let's say, for instance, that I decide I want to kill a guy. So, I wait until he's asleep. I then break into his house, pour gasoline over a bunch of stuff, and set it on fire, killing him. What have I done? I've committed first-degree murder.

However, say that it turns out the guy was sexually abusing me and my ten brothers, and the police had done nothing about it. The prosecutor can then decide what to do about it. I have not just committed first-degree murder. I have also committed: arson, burglary, trespassing, vandalism, malicious mayhem, second-degree murder, manslaughter, criminally negligent homicide, destruction of property, criminal mischief, and who knows how many other crimes. The prosecutor has the option of charging me with any, all, or none of these crimes. This is what's known as "prosecutorial discretion." You usually only hear about when it's being abused one way or another, and it's usually abused to charge people with ridiculously harsh crimes that they only technically meet the definition of.

I mean, really, it's not that hard to accidentally meet the technical definition of a crime. Say I'm in California, and I'm 18 years old. I want to have sex with my 17-year-old girlfriend, and I see that the realtor for the house next door has left a key under the mat. I use the key to open the door, and we go in and have sex on the floor. Now, most people would say that what I'm doing is "trespassing," a pretty minor offense. However, technically, I've just reached the definition of "burglary," because I trespassed in order to commit another crime, so even though the two crimes are probably violations (having sex with someone under 18 as an adult, but within a year of my age, and trespassing), technically I've committed a misdemeanor, possibly a felony.

The real problem in this country is that as long as you've got a significant lobbying group, your punishments don't even come close to meeting the crime. Take the recent coal-mining collapse in Utah: there have been reports that they were using a horribly illegal, unsafe method for extracting the coal. Why would they do that? Because the fine doesn't even come close to what they save by using that method to extract the coal. What would make more sense? You multiply your odds of catching a company doing something you don't want to do by the average savings that the industry gets by doing it, and set that plus more as your minimum fine. So, if they save an average of $100,000 per offense, and you have a 5% chance of catching them, the fine should start at two million dollars or more. In reality, if it's a group with an industry with pull, it sometimes won't even exceed the amount they save.

japan

Nerissa wrote: »

Someone (I think japan?) was telling us in IRC a while back about the UK system, where there are two tiers of laws. There are laws handed down by the UK parliament, which have legislated, set penalties, and there are laws made by the individual country, where the penalties are a matter of precedent and common sense on the part of the judge.

Yeah, that was me. I was talking about the Scottish Common Law system (emphasis mine):

Wiki wrote:

Many Scots laws are simply part of the law of the land. For example, murder and theft are not defined in statute as offences, but come under common law. This has sources in custom, in legal writings and in previous court decisions. Unlike in English law, the use of such precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent.

The principles of natural justice and fairness have always formed a source of Scots Law and are applied by the courts without distinction from the law.

There are some weird quirks too:

The Scots legal system is unique in having three possible verdicts for a criminal trial: "guilty", "not guilty" and "not proven". Both "not guilty" and "not proven" result in an acquittal with no possibility of retrial. The third verdict resulted from historical accident, in that there was a practice at one point of leaving the jury to determine factual issues one-by-one as "proven" or "not proven". It was then left to the judge to pronounce upon the facts found "proven" whether this was sufficient to establish guilt of the crime charged. Now the jury decides this question after legal advice from the judge, but the "not proven" verdict lives on. The "not proven" verdict is often taken by juries and the media as meaning "we know he did it but there isn't enough proof". The verdict, especially in high profile cases, often causes controversy.

Thanatos

English Common Law forms the basis for most of our statutory laws over here, outside of Louisiana.

japan

Faggot 2 wrote: »

English Common Law forms the basis for most of our statutory laws over here, outside of Louisiana.

English common law differs from Scots law in that the decisions that establish precedent guides the application of the law, rather than the principles that gave rise to the decision. The Scottish system is more flexible, and the Judiciary under the Scottish system have much greater discretion over certain matters than in the English system, most notably over sentencing and the necessary criteria to deliver a guilty verdict.

For example, a Scottish judge can elect to accept the majority decision of a jury, rather than a unanimous one, as a guilty verdict.

EDIT: I've just noticed. Has Tube been renaming at random again?

AngelHedgie

Then there's the issues of mandatory sentencing guidelines and no-tolerance laws. These take the ability for the judge to use discretion away. And some of these are insane - for instance, in many urban areas the penalty for carrying a small amount of drugs can be significantly higher than the penalty for a larger amount (this came out of the crack epidemic.) Luckily, voters are starting to realize that these laws don't work, and are opposing them.

Then there's stuff like Tulia, but that may be somewhat off topic here.

Thanatos

AngelHedgie wrote: »

Then there's the issues of mandatory sentencing guidelines and no-tolerance laws. These take the ability for the judge to use discretion away. And some of these are insane - for instance, in many urban areas the penalty for carrying a small amount of drugs can be significantly higher than the penalty for a larger amount (this came out of the crack epidemic.) Luckily, voters are starting to realize that these laws don't work, and are opposing them.

Then there's stuff like Tulia, but that may be somewhat off topic here.

Keep in mind that if you're guilty of carrying a pound of marijuana, you're probably also guilty of carrying less than an ounce of marijuana.

Nerissa

AngelHedgie wrote: »

Then there's the issues of mandatory sentencing guidelines and no-tolerance laws. These take the ability for the judge to use discretion away. And some of these are insane - for instance, in many urban areas the penalty for carrying a small amount of drugs can be significantly higher than the penalty for a larger amount (this came out of the crack epidemic.) Luckily, voters are starting to realize that these laws don't work, and are opposing them.

Then there's stuff like Tulia, but that may be somewhat off topic here.

But to what extent is a judge's discretion desirable?

Yeah, there are an awful lot of good judges out there. One of them pseudo-adopted me in college and let me live with his family for a couple of summers and for several months when I was looking for a job just out of grad school. (This had nothing to do with him being a judge, btw.) These are the men and women we want shaping our justice system, and yes, in many cases their hands are tied when they come up to a case where the intent of the law was obviously different from the case at hand.

But there are also areas where a less-than-honest judge would let someone guilty of a serious crime get off with the proverbial slap on the wrist for a variety of reasons (family/ friend, bribe, fellow Klan member, etc.) if they could get away with it.

Would it be possible to trust the legal system to actually punish offenders in ALL jurisdictions without mandatory sentencing guidelines?

Thanatos

Nerissa wrote: »

AngelHedgie wrote: »

Then there's the issues of mandatory sentencing guidelines and no-tolerance laws. These take the ability for the judge to use discretion away. And some of these are insane - for instance, in many urban areas the penalty for carrying a small amount of drugs can be significantly higher than the penalty for a larger amount (this came out of the crack epidemic.) Luckily, voters are starting to realize that these laws don't work, and are opposing them.

Then there's stuff like Tulia, but that may be somewhat off topic here.

But to what extent is a judge's discretion desirable?

Yeah, there are an awful lot of good judges out there. One of them pseudo-adopted me in college and let me live with his family for a couple of summers and for several months when I was looking for a job just out of grad school. (This had nothing to do with him being a judge, btw.) These are the men and women we want shaping our justice system, and yes, in many cases their hands are tied when they come up to a case where the intent of the law was obviously different from the case at hand.

But there are also areas where a less-than-honest judge would let someone guilty of a serious crime get off with the proverbial slap on the wrist for a variety of reasons (family/ friend, bribe, fellow Klan member, etc.) if they could get away with it.

Would it be possible to trust the legal system to actually punish offenders in ALL jurisdictions without mandatory sentencing guidelines?

How much good have those mandatory sentencing guidelines done with regards to people who have connections so far?

Raggaholic

People also have to realize that there are tons of jurisdicitonal issues that come into play when discussing crime and the law. A Federal Charge is not the same as a state charge and a charge in California is not the same as a charge is Michigan. Hell, even application of the law between counties differ.

I've said all that to say just because one particular case may sound funny/crazy, you can't possibly hold it out on some indictment on the legal system as a whole.

deadonthestreet

japan wrote: »

For example, a Scottish judge can elect to accept the majority decision of a jury, rather than a unanimous one, as a guilty verdict.

A unanimous jury is not required in some state courts as well.

Also, mayhem is the best common law crime.

nexuscrawler

keeping in mind in many states the judge can simply set aside the jury's verdict and rule for himself if he has reasont ot believe they committed jury nullifciation or ignored the laws.

deadonthestreet

If any of you are interested in mandatory sentencing, and some of the problems that arise from it, check out this article:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=978282

You can download a full PDF from there (though it is not the final published form of the article).

Hachface

nexuscrawler wrote: »

keeping in mind in many states the judge can simply set aside the jury's verdict and rule for himself if he has reasont ot believe they committed jury nullifciation or ignored the laws.

Really? I was under the impression that jury nullification is well within the jury's rights, even though judges don't like it much.

deadonthestreet

Once a jury acquits you, you are free.

A judge can overturn a decision in a civil case, though.

Or a judge can say you are not guilty even if the jury says you are.

It's called a judgment n.o.v.

an_alt

In Canada, there's been a increased desire for mandatory minimum sentences because there's a public perception of judges being far too lenient in sentencing. I'm sure most Canadians don't believe in the "throw away the key" mentality of the American justice system, myself included, but allowing too much discretion to judges can cause problems as well.

BubbaT

Faggot 2 wrote: »

AngelHedgie wrote: »

Then there's the issues of mandatory sentencing guidelines and no-tolerance laws. These take the ability for the judge to use discretion away. And some of these are insane - for instance, in many urban areas the penalty for carrying a small amount of drugs can be significantly higher than the penalty for a larger amount (this came out of the crack epidemic.) Luckily, voters are starting to realize that these laws don't work, and are opposing them.

Then there's stuff like Tulia, but that may be somewhat off topic here.

Keep in mind that if you're guilty of carrying a pound of marijuana, you're probably also guilty of carrying less than an ounce of marijuana.

The mention of the crack epidemic makes me think he was talking about the disparity in penalties for small amounts of crack vs large amounts of powder cocaine. The federal mandatory minimum for 5g of crack is the same as for 500g of powder.

Azio

I think the US approach to drug and sex crimes is criminally retarded, and I really hope we don't go down that road just because of some right-wing assholes who think we're "too lenient" in our sentencing.

an_alt

I'll agree with you on that one Azio, but I don't hear the right wingers pushing too hard on that subject. Violent crime seems to be the hot button.

However, I wouldn't mind mandatory jail terms for those convicted of non-paperwork related firearms offences. Actually, now that you mention it, some pretty high profile sexual assaults have resulted in very short sentences as well.

AngelHedgie

Azio wrote: »

I think the US approach to drug and sex crimes is criminally retarded, and I really hope we don't go down that road just because of some right-wing assholes who think we're "too lenient" in our sentencing.

Let us take New York as an example of how this is fucked up. Pretty much everyone in the areas most impacted (NYC, mainly) agrees that the state's Rockefeller-era drug laws are draconian, and need to be repealed. Hell, the guy who sponsored them now supports repeal. But the city only has a bit of influence at the state legislature, and the upstate areas are good old "law 'n order" folks who see the laws as a good way to "clean up" the city. The result is even though it's pretty much agreed by the people who see the effects of these laws that they need to go, the assholes upstate stop any attempt to fix them.

Azio

Honestly the only change that I think needs to be made to the system we have today is a 5 year minimum sentence for any violent crime involving a gun. And even then, there should be plenty of room for exceptions if the judge deems it necessary, because minimum sentences are bullshit

redx

in contrast, I think damn near everything about the american system needs fucking.

Retarded drug laws.
prisons as rape factories where criminals just become more antisocial and better criminals.
huge disparity between the 'justice' delivered to the rich and poor.
-due to poor free advocacy, unfair mandatory minimums and a panoply of other sources.
all the retarded copyright nonsense
The theft of basic rights in the name of security
Top to bottom corruption, and the politicization of the justice department.

honestly... I don't really know of much that it does well. Much that does not need to be changed.

ege02

The biggest problem with the legal system, as I see it, is the problem of unequal representation.

Rich people can afford good lawyers who can basically get them out of all but the most serious of crimes. Even then, their sentences will be drastically less because the lawyer is good.

Kalkino

like was said - mandatory sentences are the real problem here - a judge should have the discretion to make a judgement call about how long each person should be punished. Saying each incidence of X crime is worth 10 years in jail is just fucking stupid, it takes no account as to the circumstance.

Kalkino

and every system rewards the connected or rich, how can you design a system that doesn't?

remove all discretion! but then you have the issue of people getting punished well out of proportion of their crimes.

face it, rich or connected people always get a better deal, you will need robot judges and police to change that

redx

like, you know how drunk driving charges work in florida?

If you get busted, and you are poor, they throw the book at you. You go to jail and don't get to drive for a good long while, if not longer


If you get busted and can afford a lawyer, you pretty much automatically get the first 2-3 plea bargained down to reckless driving. You get probation for a while, and that's about it.

it's totally fucking retarded. I can't even count how many people I know down who have been charged with it, and those are the only two results I've ever heard of.

I know one guy, that had a lawyer and ended up in jail for a month on his third charge in 4 years, but he is out driving again, and he drinks and drives almost every day.

yeah... that's a system that fucking works.

Fandyien

It's depressing what the legal system does to people caught up in it at an early age. At 17, at least five of my contemporaries and friends have spent time in some sort of detentional facility and almost everyone I know has caught at least one charge. Most people learn their lesson and are at least discouraged from blatant illegal behavior, but some people become incredibly jaded and frustrated. A short stint in juvie can really leave you disillusioned for years.

It's been pretty depressing watching friends slide down that slippery slope.

Kalkino

Show me a system where the rich or connected don't get a better deal. Its human nature sadly

Couscous

Kalkino wrote: »

Show me a system where the rich or connected don't get a better deal. Its human nature sadly

Soviet Russia? You really didn't want to be connected to Stalin because of the occasional purges.