Justice for All

[Deepbluediver]

I originally intended to post this before Christmas, but I got busy and everyone seemed to have other things occupying their attention.

So lately there has been a lot of talk about the police and law enforcement, but I'm also interested in the second half (or middle third, if you want to included prisons in the chain as well) of our criminal justice system- the courts. Between reading various things including the news, The Law Webcomic, and cracked.com's articles about drugs, murder, child abuse, and rape, I've been wondering if there weren't changes would could make to our system to try and improve the outcome of criminal cases.

Technology for investigating crime and enforcing the law has drastically improved since the days of tough Irish-men with billy clubs paroling the neighborhood on foot, as has the resources criminals themselves can employ when committing crimes. But the system we use to determine who is guilt and who is not-guilty is pretty much the same as it has been for the last century at least (AFAIK). New laws have to be interpreted and sometimes supreme courts or the equivalent change the way a law or rule is implemented, but we still rely on judges and juries of citizens to make the final call(s). I believe system works, mostly, but just because something doesn't need fixing doesn't mean it can't be improved. Other people might disagree of course, and believe things are irreparably broken and we need to redo the entire system from the ground up.


I invite anyone to talk about anything related to this process that they have knowledge of or that is a concern to them, and how it could be changed. I tend to favor discussions about real-world problems and solutions to Tailsteak's higher-minded philosophizing, but I'm open to just about anything here.

Possible examples include- the jury system itself, including selection, and if it's the best method to use. Would professionally trained, full-time jurors have a better outcome, rather than lay-people, for example?
When you get a case that's emotionally charge but light on evidence how do we stay objective?

What about the differences between criminal and civil law? The barrier to "proving" something in a civil trial is lower than for a criminal case; it's more like determining if something is probable than if you're certain.

How about various outcomes, such as the fact that even when controlling for other factors, people of some races seem to end up convicted and serving longer sentences than others.

Feel free to talk about the war on drugs and how you might reconcile different restrictions with a government's obligation to protect it's citizens, possibly even from themselves, and how it relates to the law.

What about evidence in a case, such as eye-witness testimony or the effect of shows like CSI apparently making juries believe that its' far easier to "prove" exactly what happened than it actually is. How can we properly educate people without biasing them?


etc etc etc.
The things I brought up are all thoughts that have crossed my mind at one point or another, but I'm throwing open the floodgates to anything anyone wants to bring up, pretty much.

[Nepene]

I think the main thing is needed is more recording devices. Every police officer should have a video camera recorder, every civilian should be able to get a wire to record crime. Record everything. Then evidence isn't an issue.

Also, the police need to be able to work harder. As such, paperwork should be delegated to clerks who watch their recordings and young lawyers who will do anything for a job.

[Deepbluediver]

I think the main thing is needed is more recording devices. Every police officer should have a video camera recorder, every civilian should be able to get a wire to record crime. Record everything. Then evidence isn't an issue.

Also, the police need to be able to work harder. As such, paperwork should be delegated to clerks who watch their recordings and young lawyers who will do anything for a job.

I can support all of that, but it feels more like law-enforcement, while I'm more interested in phase 2 of the process. Suppose you get a cop who hauls in a guy who he roughed up. The cop claims the suspect resisted arrest, the suspect claims he had his hands up when the cop tackled him. Both claim videos taken by the cop's body camera, the store's security camera, and the phones of 17 bystanders will validate their version of events. How do you go about picking a group of people to arbitrate this decision? That's the kind of thing I want to explore.

[Nepene]

I think the main thing is needed is more recording devices. Every police officer should have a video camera recorder, every civilian should be able to get a wire to record crime. Record everything. Then evidence isn't an issue.

Also, the police need to be able to work harder. As such, paperwork should be delegated to clerks who watch their recordings and young lawyers who will do anything for a job.

I can support all of that, but it feels more like law-enforcement, while I'm more interested in phase 2 of the process. Suppose you get a cop who hauls in a guy who he roughed up. The cop claims the suspect resisted arrest, the suspect claims he had his hands up when the cop tackled him. Both claim videos taken by the cop's body camera, the store's security camera, and the phones of 17 bystanders will validate their version of events. How do you go about picking a group of people to arbitrate this decision? That's the kind of thing I want to explore.

If the civilian is alive it's doubtful the law will do anything about the cop, beyond perhaps giving him a paid vacation and therapy to get over his actions. If it does, it will likely be due to public pressure based on media whimsies.

To actually arbitrate that in a fair way you'd first have to remove police immunity to prosecution when they fail to follow the law.

[Deepbluediver]

If the civilian is alive it's doubtful the law will do anything about the cop, beyond perhaps giving him a paid vacation and therapy to get over his actions. If it does, it will likely be due to public pressure based on media whimsies.

To actually arbitrate that in a fair way you'd first have to remove police immunity to prosecution when they fail to follow the law.

Some aspects of the law don't always apply to police in the performance of their duties, such as arrest which if a normal citizen did it would probably be kidnapping, so I assume you mean things that they aren't required to do or when they act excessively? But AFAIK they don't have any legal immunity, it seems to be more of a cultural or societal thing. The cops in both the Brown and Garner cases went before grand juries, and both declined to press charges.

This kind of issue came up before- grand juries seem to love to approve indictments....except in cases where a policeman is being charged. Even that isn't absolute, such as in another recent New York case, but statistically there is a huge gap. We, that is a jury of our peers, seems to indicate that they prefer use of force from cops to potential violent criminals, not just once or twice but repeatedly.

So what I'm asking is- if you feel this system is unfair, what would you change about it? It doesn't have to be just cops- I'm sure we've all heard stories of the wealthy or celebrities that get sweetheart deals, which judges throw the book at regular folk to prove they aren't soft on crime.

[Nepene]

If the civilian is alive it's doubtful the law will do anything about the cop, beyond perhaps giving him a paid vacation and therapy to get over his actions. If it does, it will likely be due to public pressure based on media whimsies.

To actually arbitrate that in a fair way you'd first have to remove police immunity to prosecution when they fail to follow the law.

Some aspects of the law don't always apply to police in the performance of their duties, such as arrest which if a normal citizen did it would probably be kidnapping, so I assume you mean things that they aren't required to do or when they act excessively? But AFAIK they don't have any legal immunity, it seems to be more of a cultural or societal thing. The cops in both the Brown and Garner cases went before grand juries, and both declined to press charges.

This kind of issue came up before- grand juries seem to love to approve indictments....except in cases where a policeman is being charged. Even that isn't absolute, such as in another recent New York case, but statistically there is a huge gap. We, that is a jury of our peers, seems to indicate that they prefer use of force from cops to potential violent criminals, not just once or twice but repeatedly.

So what I'm asking is- if you feel this system is unfair, what would you change about it? It doesn't have to be just cops- I'm sure we've all heard stories of the wealthy or celebrities that get sweetheart deals, which judges throw the book at regular folk to prove they aren't soft on crime.

I mean that the police should face prosecutions for both when they make up a new law or grounds for a law and arrest someone, and if they exceeded the normal limits of force assigned by law they should face prosecutions.

http://www.policemag.com/channel/patrol ... onnor.aspx

As noted here, the police do have laws protecting them- even if they make up a law, like arresting people for driving away from a store in a manner they see as suspicious, they are still free to use deadly force if from their point of view they can convince you that it was a good idea.

Anyway, once you're willing to acknowledge and not ignore the current law I am happy to continue this discussion. If you're not willing to admit the existence of that caselaw I see little point in continuing.

[Deepbluediver]

Anyway, once you're willing to acknowledge and not ignore the current law I am happy to continue this discussion. If you're not willing to admit the existence of that caselaw I see little point in continuing.

Ok, whoa, chillax there. I'm not omniscient and I'm not an expert in criminal law- my previous post (all my posts, in fact) have the addendum of "as far as I know". I'm happy to read any link anyone gives me that can expand my own knowledge.

I mean that the police should face prosecutions for both when they make up a new law or grounds for a law and arrest someone, and if they exceeded the normal limits of force assigned by law they should face prosecutions.
http://www.policemag.com/channel/patrol ... onnor.aspx
As noted here, the police do have laws protecting them- even if they make up a law, like arresting people for driving away from a store in a manner they see as suspicious, they are still free to use deadly force if from their point of view they can convince you that it was a good idea.

I read this whole thing, and as far as I can tell, no one is saying the police are allowed to just make up laws. What they are allowed to do is detain people who they believe are acting suspiciously. Whether or not that's a thing that should be allowed depends on your opinion of law enforcement, but I believe that a majority of people in the united states prefer that police tend towards being proactive in preventing crimes than in merely cleaning up the mess.
The author seems to support the current status quo, given the summation in his final paragraph: "Our society would benefit from listening to Rehnquist's opinion rather than listening to community activists, protesters, or ill-informed politicians who see issues in black and white instead of seeing the issues from the standpoint of objective reasonableness. After the dust settles in Ferguson, we may have new case law or we may have affirmation of a 25-year-old decision that started with a quest for a bottle of orange juice."

I also went and read the original text of the decision: http://law.uark.edu/documents/Bailey-Cr ... Connor.pdf
Which includes lines like "Determining whether the force used to effect a particular seizure is "reasonable' under the Foruth Amendment requires a careful balancing of "the nature and quality of the intrusion on the individual's Foruth Amendment interests" against the countervailing governmental interests at stake. ...Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion of threat thereof to effect it."



Anyway, I believe either we're getting off topic or you missed what topic I was aiming for in the first place- the use-of-force for police debate has been done to death in other threads. I'm more curious about what happens AFTER that. Suppose you get whatever changes to the law you want, how do you go about prosecuting people? Or defending them from prosecution? If you where in charge of that case you linked, what would you ideal process be for selecting a jury to try the officers for assault or excessive use of force? That's the kind of thing I was looking to discuss.

[Nepene]

You've previously shown a quite selective reading habit, and do so here.

I read this whole thing, and as far as I can tell, no one is saying the police are allowed to just make up laws. What they are allowed to do is detain people who they believe are acting suspiciously.

They can 'detain' and potentially kill people for behavior they deem as suspicious. Do you disagree with this? Do you not see having the right to arrest, imprison and execute people as a law?

This is something that happens a lot in the UK. People are frequently arrested or beaten up for photographing police in the public say, a legal activity, and use some made up accusation against them like being too tall and that tallness being threatening.

http://www.theregister.co.uk/2009/07/15 ... ographers/

Whether or not that's a thing that should be allowed depends on your opinion of law enforcement, but I believe that a majority of people in the united states prefer that police tend towards being proactive in preventing crimes than in merely cleaning up the mess.

Can you see a clear route where a policeman, who wants to not be arrested and is willing to fudge the truth, could be charged if they beat up or killed someone, assuming they are free to 'proactively' prevent crimes like being too tall, resisting arrest, terrorism, all that?

Do you have any polls or such that say that the majority support proactively arresting people for crimes they haven't done? Minority report thoughtcrime stuff.

If you change the law so that it's now illegal for the police to execute people for made up laws or to beat them up in an unnecessarily harsh manner you can have mandatory sentencing guidelines leading to automatic sentences for police that do certain things. Remove freedom from the hands of the judiciary. You can also use non local courts to charge people to avoid local bias, and avoid deceiving lawyers and saying that they have to decide a case at an indictment.

You can also have court

[Deepbluediver]

You've previously shown a quite selective reading habit, and do so here.

Maybe you should try and be better at explaining what I'm supposed to be looking for then.

As I said, I'm willing to read anything you ask me to, but that doesn't mean I'll come to the same conclusions you did.

I read this whole thing, and as far as I can tell, no one is saying the police are allowed to just make up laws. What they are allowed to do is detain people who they believe are acting suspiciously.

They can 'detain' and potentially kill people for behavior they deem as suspicious. Do you disagree with this? Do you not see having the right to arrest, imprison and execute people as a law?

This is something that happens a lot in the UK. People are frequently arrested or beaten up for photographing police in the public say, a legal activity, and use some made up accusation against them like being too tall and that tallness being threatening.

http://www.theregister.co.uk/2009/07/15 ... ographers/

The police are NOT allowed to do whatever they want- the standard stated was that they have to act reasonably given circumstances. And the question then becomes (and this is the point I was really hoping to discuss at the start) who decides what is "reasonable"?

Sometimes a law-enforcement agent is accused of a crime

Whether or not that's a thing that should be allowed depends on your opinion of law enforcement, but I believe that a majority of people in the united states prefer that police tend towards being proactive in preventing crimes than in merely cleaning up the mess.

Can you see a clear route where a policeman, who wants to not be arrested and is willing to fudge the truth, could be charged if they beat up or killed someone, assuming they are free to 'proactively' prevent crimes like being too tall, resisting arrest, terrorism, all that?

Yes. He is brought before a jury of his peers, who agree that he acted excessively.
http://www.wsbtv.com/news/news/local/ju ... ces/njXP8/

Do you have any polls or such that say that the majority support proactively arresting people for crimes they haven't done? Minority report thoughtcrime stuff.

I suspect most people would disagree with that kind of thing, but there are specific legal differences between arrest and detention: http://criminal-law.freeadvice.com/crim ... ention.htm

And yes, it seems like people do in fact support short detentions, at least in some circumstances: http://www.newsday.com/news/new-york/po ... -1.6316830

If you change the law so that it's now illegal for the police to execute people for made up laws or to beat them up in an unnecessarily harsh manner you can have mandatory sentencing guidelines leading to automatic sentences for police that do certain things.

1) It's already illegal for police to execute someone. Not every death is an execution, and very few of them are the desired outcome.
2) If you accuse someone of being excessive, you then have to convict them. Who gets to make this decision?
3) What "certain things"? And again, who decides that the penalties are?

The whole reason we have the judge-and-jury system in the first place is that writing laws to cover every conceivable situation and circumstance is nigh-impossible, so we rely on the judgement of individuals to adjudicate each case based on more general guidelines.

Remove freedom from the hands of the judiciary.

How much and in what ways? This especially goes against most of the existing precedents of our criminal justice system. It's not hard to find evidence of cops who face serious danger and violence in their job; how few people get to decide the fate of an officer who responds to a situation with force? What kind of prior experience should they have?

Now, although this might surprise you, I would support changes to the system that make it less likely or less easy for cops to arrest, detain, and harass people or at least provide compensation later down the line for the trouble they caused if the person in question is released without charge or conviction.

You can also use non local courts to charge people to avoid local bias, and avoid deceiving lawyers and saying that they have to decide a case at an indictment.

These are things that you can already do. You also want to avoid deciding cases at the accusation.
A lot of your ideas seem to be "the current system, but instead with outcomes that I like".


The whole point of law-enforcement is that there needs to be a law to enforce, including that which governs cops and their interactions with civilians. You can't just say "go out and keep people safe, and we'll decide if we liked the way you did it later".
The reason (AS FAR AS I UNDERSTAND IT) that we give police a large degree of discretion in how to handle these situations is because we, as a society, believe that most people are inherently decent individuals, that the cops have far more training and practice than the rest of the population when it comes to law enforcement, and that there is a world of difference between picking apart someone's split-second decision with the twin advantages of time and hindsight.

Google estimates there are about three-quarters of a million cops in the U.S. And if you go looking for it, you can find more specific data on the outcomes of certain stops: http://www.nyclu.org/content/stop-and-frisk-data

It the vast majority of cases, a stop or detention ends peaceably, with no lasting harm to either party and relatively little inconvenience. If you want to change the system, you should think about ways it can be done that continues this trend, as well as maintaining the historically low crime-rates that people enjoy and benefit our society. The trick, IMO, is getting the balance right, and getting people to agree on where we set the sliders between freedom and safety.

[Nepene]

And yes, it seems like people do in fact support short detentions, at least in some circumstances: http://www.newsday.com/news/new-york/po ... -1.6316830

"However, 58 percent want the practice modified and improved, 19 percent think it should stay as is and 20 percent want it abandoned, according to the poll conducted Oct. 15-19 by Penn Schoen Berland."

The poll didn't actually say that.

Anyway, every time I've debated you this selective filter on the evidence has appeared. I regret it every time. Bye.