We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Samizdata quote of the day

The entire point of having a legal system, rather than vendetta, is to make justice depend on public principle, not on private feelings. Those feelings ought not to influence legal decisions at all. At present, victims and their families are urged to express strong emotions about verdicts and sentences in a way that encourages them to cultivate vindictive malice, since forgiveness is (rather strangely) much less popular. This habit is deeply injurious to them personally, as well as to the legal system, and it ought surely never to be allowed to influence the courts.

- Mary Midgley

39 comments to Samizdata quote of the day

  • Sunfish

    And here I was, apparently with my head in the wrong place, thinking that an act isn’t much of a crime if there wasn’t a victim who was harmed or at least threatened. Therefore, it seems to me that the victim’s suffering is at least a little relevant. If a sentence is to match the severity of the crime, then there is a relevant difference between “It was an inconvenience” and “it fracking ruined my life.”

    With no information on context, I’m guessing this has at least a little connection with the habit (in US courts) of allowing crime victims to address the judge after verdict but before sentencing. Admittedly, Midgley herself probably wasn’t thinking about the Colorado Crime Victim’s Bill of Rights, but I imagine that most people today would apply her statement to the legal situation in the link.

    As far as allowing victims to address the court before verdict, the rule AFAIK has always been “only if they have something to offer, which is actually relevant.” “My baby was a good kid and now he can’t feed or wipe himself” might be relevant to establishing how serious a vehicular assault was, but it’s not important in determining who was driving the car and how reckless or drunk the driver was.

  • Steevo

    Yes well put Sunfish. Its one angle emphasized here: the defense.

    Instead of the victims’ feelings cultivating vindictive malice how about dissuading foolish sympathies for some very bad people and consequently, injustice.

    “Forgiveness” is not the same for every crime. Its not so easy to expect when a couple of guys break into a home and rape and beat a family member.

    I don’t know when victims can testify but what is reported in the press is usually the more heinous crimes at least in America where the victims have a chance to face the accused. Nothing wrong with that.

    “This habit is deeply injurious to them personally”… I think there are some problems with presumption here.

    Her concept of justice based on public principle can be vague and uncertain. I mean how can you be assured to put a finger on what prevails and even if you could, would it then be right for justice to be determined?

  • Paul Marks

    If the Judges and other such get it into their heads that they are somehow a class of super humans and that the beliefs of ordinary people do not matter, then ordinary people will reject the system – and will be right to do so.

    If you want to avoid the vendetta and the lynch mob – then have courts that reflect the beliefs of the public, not courts that urinate on those beliefs. For if the public can not get justice (as they understand it) in the courts, they will turn to other means.

    “But the judges and other high people understand the principles of justice better than ordinary folk”.

    I am not sure this was ever true, for example it was judges who tried to enforce the supposed “law” against “engrossing and forstalling” (i.e. the wholesale trade) long after Parliament got rid of all statutes in this area. Parliament repealed the statutes in the late 18th century (on the advice of Edmund Burke), but judges were still producing demented rulings to the mid 19th century (till a special Act of Parliament was passed to stop them).

    These days we have such absurdities as the “legal fiction of the invitee” in which the legal officials (judges and other such) just made up a doctrine that if an intruder is injured on one’s property one has somehow “invited” him and is therefore has a civil responsibility for his injury. Lon Fuller (supposedly a “conservative” legal thinker) actually pointed to this doctrine as a good example “judge made law” – something in its favour.

    Even in commercial law (where the Common Law evolution was supposed to have produced good things) what actually happened was that Chief Justice Mansfield imported a lot of the procedure and principles of the law merchant private courts into the Common Law courts (in the teeth of opposition), because he did not like the way that disputing parties were avoiding the government law courts.

    However, perhaps it was true that in the past judges (trained in the tradition of the Common Law – via the Inns of Court and practice) understood the principles of justice better than ordinary folk. But it is certainly not true now – these days judges are drawn from lawyers who have been trained in universities (i.e. taught a lot of crack brained nonsense), and they are promoted through the system because they support the nonsense they have been taught. Even such things as contract law (sometimes considered as the last stronghold of the “individualistic” conception of law are under “social” attack every day in the universities – and the products of these places end up sitting on the bench).

    Of course Parliament often produces absurd statutes – but trusting judges to strike them down (sorry “interpret” them away) is not the way to deal with that.

    I fully support constitutional limits on the power of government – but such limits should be clear and easy to understand (i.e. a matter that a jury [for all the imperfections of juries] can deal with – not matters for the endless twisting and turning of “interpreting” judges).

    As for the “nulification” of statutes in criminal matters – again that is a matter for juries (who, contrary to the what the lawyers say, are there to deal with both fact AND LAW) not for judges.

    For example, if a statute lays down a manditory death penality for stealing an apple it is for the jury to declare the accused “innocent” (so he avoides being executed) NOT for the judge.

    If judges are going to get involved in matters of what the law SHOULD BE – then they will have to be elected. And elected in open contests (not rigged “non partisan” or limited candidate contests).

  • Jacob

    I think nowadays judges mostly favor the criminal over the victim and hand down ridiculously lenient sentences. That’s because the criminal had a difficult childhood, and such crap, which is, as Paul said, what they teach in the universities.
    Time for the victim to be heard too, in the name of restoring a balanced approach, i.e. – balancing in the judge’s mind the crap they bring from university.

    To sum up: our problem is too lenient sentences, not too harsh ones (supposedly caused by the victim’s emotional appeal).

  • guy herbert

    Some dispiriting responses. Particularly Jacob’s which picks up on the same social hysteria that Midgley is criticising.

    The point about criminal law is that it is not a contest or a balancing of the interests of the criminal and the victim. Most people here would, as Sunfish says, regard a victim (or in the case of inchoate offences, a target) as a necessary requirement for conduct to be criminal. (I’d add it is not sufficient.) But the experience of the victim doesn’t inform us greatly about what should be done with the perpetrator. (This case is the occasion of Midgley’s remarks. Please note that the account, along with most of the British media, stupidly mis-represents the legal reasoning, which has nothing to do with so-called “human rights”.) Nor ought the emotional aura of the crime affect the burden of proof, which is what is being increasingly advocated by populist politicians.

    It is not just vendetta culture we have to fear, but the formalisation of the lynch-mob. Paul appears to me to be saying that the law should act on popular predjudice: in order to avoid the lynch mob, it should do the lynch-mob’s bidding.

    Intensity of feeling is inversely correlated with rational judgment. The popular view of almost everything is wrong. If it were not, Samizdata would be superfluous.

  • Paul Marks

    To be fair to a point that the post may be making – justice should not depend on a “display of emotion” in the court room.

    For example, some years ago a Judge gave a leniant jail term to two rapists (it was the so called “Vicarage Rape Case”), he justified the low jail terms in part by saying the victim did not seem to have suffered very much – he decided this by the calm behaviour of the victim in court.

    A victim should not need to scream and cry in order to get justice – and nor should their family.

    A statement of the facts should be enough to get justice – i.e. full punishment for the criminal.

    Although (of course) the defence started this with longer and longer appeals of “mitigating circumstances” (“my client was a victim of being brought up in a high rise flat” – or whatever), so the person who the crime is committed against (or their family) has to “return fire” (as it were) or see the criminal walk out with a light punishment.

  • Sunfishj

    Paul Marks:

    If you want to avoid the vendetta and the lynch mob – then have courts that reflect the beliefs of the public, not courts that urinate on those beliefs. For if the public can not get justice (as they understand it) in the courts, they will turn to other means.

    Justice is a pretty ethereal concept. For the time being, I’d settle for judges just following the law rather than trying to grasp concepts like “justice.” I imagine if I lived in some places I’d feel different, but where I am now our legal code is about 90% okay. Not perfect, but not beyond repair.

    A friend of mine had a case a year or so ago: A guy beat the crap out of his wife and then ran. Colorado law requires that, in cases of domestic violence, if the officer can identify a predominant agressor and has probable cause to support an arrest then the officer SHALL arrest him, and SHALL apply for an arrest warrant if an arrest is impractical. The officer went and applied for an arrest warrant as required. And in spite of our mandatory-arrest/mandatory-prosecution statute, AND the statute authorizing judges to issue arrest warrants, the judge rejected the request.

    The legal requirements for the warrant were all met. This was not a close call. Even Judge M said it wasn’t. He just mis-understood a part of state law. State law prefers a summons over a custodial arrest for misdemeanors, but allows for arrests when a failure to do so would increase the danger to the public or when the suspect is likely to disregard the summons. This suspect had a history of failures to appear in other cases, and they were all in the warrant affidavit

    If judges are going to pull that crap, then suspects will have mysterious accidents when they beat women with male relatives.

    Steevo:

    I don’t know when victims can testify but what is reported in the press is usually the more heinous crimes at least in America where the victims have a chance to face the accused.

    In Colorado, the victim has a right to be present at the “critical stages” of the criminal process. The same statute allows them to make statements to the Court about the impact that a crime has had on their lives, prior to sentencing. The idea is, this will cause the Court to actually consider their suffering in determining sentence.

    At the other stages, the victim doesn’t have an automatic right to participate. Witness lists are submitted to the judge by the two opposing sides, and ultimately the judge decides who testifies. If he scratches a witness, it’s usually after one side moves to exclude that witness and a hearing on that motion: an example would be an “expert” witness who, in the motions hearing, was shown to not actually be competent to give the opinion asked of him. Or, in the case of our victim, he may just not have anything to offer that’s actually relevant. The whole point of a criminal trial is to get the jury to decide, beyond a reasonable doubt, “did he or didn’t he.” If a victim can’t offer anything relevant to that question, then it’s perfectly proper to not put him on the stand during the trial.

    Jacob:

    To sum up: our problem is too lenient sentences, not too harsh ones (supposedly caused by the victim’s emotional appeal).

    Harsh sentences appeal to my instinctive notions of justice, sure. However, in practice I don’t really care how harsh the sentence is. If the criminal spends his five years playing cards and watching TV on the couch, even if he’s living it up that’s still five years that he’s not able to prey on others. Although making prison a sucky experience makes sense as a deterrent to others.

  • Robert the Biker

    The problem seems to be liberal justices treating the victim as an irrelevance, almost an embarrasment.
    Cant have them bleeding all over the floor and upsetting peoples ideas of social justice after all; dont you realise it’s your own fault you were mugged? If you hadn’t had more than this poor misunderstood yoof he wouldnt have been jealous of you; its your fault entirely.
    The Vigilance Commitees only form when the Law is seen as ineffectual or corrupt.
    I would suggest that in this country, they are long overdue.

  • Jacob

    Some dispiriting responses.

    Seems you have some abstract notions about what a justice system should be. Maybe in some abstract world, these notions are implemented.

    Meanwhile, in this world, does it seem to you reasonable that the murderer in this case, Learco Chindamo, should go free at age 27, after serving only 12 years of a life sentence ?

    I think the victims should be allowed to appear in court, to influence justices on the sentence (after the verdict of guilty or not guilty was determined). I think, that in principle, the suffering of the victim should be an argument in the sentencing, not only the “circumstances” of the criminal. I don’t see why not. Justice is, after all, punishment, prevention, and revenge, all in one.

  • emdfl

    I suspect that if “feelings” vanished from courtrooms, a lot of liberally orientated judges would no longer be able to be function.

  • RAB

    I did Law in the early 70s as I have mentioned before.
    We bought a copy of Smith & Hogan and learnt what was a criminal offence and a list of penalties for those offences.
    Murder for instance was a life sentence, and back then and though not an actual one, murderers spent a lot longer in jail than today.Now a combination of sentencing policy and socialist do goodery via the Probation service, whos sympathies have lain firmly with the criminal, for as long as I can remember, result in Chindamo’s derisory jail term.
    Now the point for me here is that all us Law students back then were taught that it all depended on the facts. Chindamos facts are that he did the crime and he’s just about to finish doing the time. Er that’s it folks! Where is all this extra judicial spite comeing from?
    Deport him they cry! What to Italy? Shit I wish someone would deport me, I love the place! His facts are that he left Italy when he was six. I have spent more time there than he has.
    Besides under EU law cant he just come straight back in again?
    Also you have to remember the times we students grew up in. It was alternative society time. We were hip, switched on radicals, out to right the wrongs and injustices of this world!
    Well those who stayed the course are now high Court judges and radical lawyers like Michael Mansfield. Or are running the Crown Prosecution Service ( a political not a legal entity) and populate Chambers like Cherie’s Matrix.( Spookily prescient name given the movies eh?)

  • Counting Cats

    I am sorry, but the perpetrator must be punished based on the the crime, not on the suffering of the victim.

    In any acceptable legal system the scale of punishments must be known beforehand, for them to be determined after the fact, based on how successful the victim is in touching the heart of the judge, makes the law even more arbitrary than it now is.

    My understanding is that in breaking a law in the UK, the offense is against the Queen, not against the victim. After the offense is committed the victim becomes just another player in the system.

  • RobE

    Back in the 1950s there was a gameshow in the States called “Queen For A Day”. The contestants, all women, came on and told their hard-luck stories to the audience, who then voted on which contestant had the most miserable and path life. The winner was then crowned “Queen For A Day”.

    Allowing the testimony of victims and their nearest and dearest to influence the extent of a sentence is not a million miles away from Queen For A Day. The more you’ve suffered from the crime the bigger the payoff in the sentence.

    The thing that’s being forgotten here is that justice, at least in the Anglo-American context, is not done on behalf of the victim. It’s the State that investigates, tries, convicts and sentences – on behalf of the State. Sentencing is not the State exacting justice as a proxy for the victim.

    As such, justice must, if it’s to be fair and blind to externalities, be utterly rational, free from emotional influences. The introduction of victim testimony that’s intended to influence the sentence can only undermine that rationality and impartiali.ty

  • Jacob

    I am sorry, but the perpetrator must be punished based on the the crime, not on the suffering of the victim.

    Then why are the judges hearing about the “harsh circumstances” of the criminal’s life before sentencing? If no sentimental appeal is proper (and I agree), then the criminal’s life story should be banned also. That is – he and his lawyer should not be permitted to plead for a reduced sentence.

    The introduction of victim testimony that’s intended to influence the sentence can only undermine that rationality and impartiality

    So is introduction of “hard life” pleas on behalf of the criminal.

    to make justice depend on public principle

    What the writer means: “to make justice dependent on the currently fashionable view that I support (rights of criminals…)”.

    I would favor banning sentimental victims’ pleas if we had a problem of too harsh sentences handed down. This opposite is the case.

  • Jacob

    “the offense is against the Queen, not against the victim.”

    The Queen being supposed to act on behalf of the victim, which is her subject and under her protection.

  • Jack Olson

    It is not the purpose of law to ignore the suffering of the victim of a crime. To prevent if possible, alleviate when necessary, what a crime victim suffers is the whole purpose of criminal law. To say that a judge should ignore what victims of crime have to say about their plight is to forget why we have laws in the first place. It is to put the defendant, who has the right to testify in his own defense and to have his say even after sentencing, above the victim, whom the court declines to hear from.

    Justice will not be fully served until those who haven’t been victimized are as outraged as those who have. The alternative is simply to demonstrate how bravely one can endure other people’s suffering.

  • Godfrey Wind

    Bit of a false dichotomy in these responses. One side says “Take the victims’ feelings into account so that sentences are tougher”, and t’other side says “The law must be absolute, regardless of our views on tough sentencing”. The one-size-fits-all solution is clearly to introducer tougher sentencing across the board as an absolute rule.

  • Midwesterner

    In the US at least, the law has two separate purposes and mechanism re victims and perps. Criminal law is intended to protect society from criminals through punishment and incarceration. The situation between the victim and the perp is also addressable through civil court. These are two separate processes with different goals and different rules. I believe they function completely in parallel in most states.

    A well known case is the OJ Simpson murder trial, in which he was found ‘not guilty’ and OJ Simpson’s civil trial which was for damages which being civil was based on a different standard of proof. And which he lost.

    I do not believe the victim’s should have ‘pain and suffering’ influence in criminal sentencing. In deciding what crime has occurred, sometimes yes. But not as a parting shot sentence amplifier. I also think follow up civil actions against criminals by victims should be more common. I expect that view is unpopular here, but perhaps not.

  • 6th Column

    I did not know that about US law and it seems strange to me that someone can be found not guilty in a criminal court and guilty in a civil one. It seems contradictory. I had always assumed that someone would be either found guilty or not guilty when judged by a jury?

    I feel that, as defendants who are found guilty are permitted to use emotional argument to attempt to reduce a sentence, victims should be permitted the same opportunity.

    Every crime is different and affects each victim differently. For example, the theft of £100 from a wealthy person will have little affect upon them. The theft of £100 from a pensioner whose only income is the state pension, could cause real hardship and possibly cause that person to go hungry or be without heating. Are we really saying that the perpetrators in each crime have committed equal offences?

  • Midwesterner

    An advantage of separating the criminal and civil penalties is that they serve different functions. The criminal penalties are on behalf of public safety. It is for protection and prevention. I do not think defendants should be “permitted to use emotional argument to attempt to reduce a sentence”. Bringing any of this into a criminal case simply replaces laws and evidence with a histrionic rewards system.

    The civil system is where the actual consequences to the victim are best addressed.

    As for the OJ case, there is a different standard of proof for a capital conviction verses an asset forfeiture. The criminal case did not find him innocent, it merely found that the case was not proven to a degree necessary to execute or imprison him for life. The civil case did not have to meet that difficult test and was able to find the probabilities high enough to warrant a settlement to the family of the victims.

  • Sunfish

    I did not know that about US law and it seems strange to me that someone can be found not guilty in a criminal court and guilty in a civil one. It seems contradictory. I had always assumed that someone would be either found guilty or not guilty when judged by a jury?

    In both cases, the trier of fact is routinely a jury. The difference is:

    In a criminal case, the People of the State of Colorado charge that the defendant has violated some specific provision of the criminal law. The People (as represented by the prosecutor) are required to prove each element of that violation beyond a reasonable doubt. The jury will hear the testimony of the witnesses put before them and then receive instructions from the judge[1] as to the law, the definition of “reasonable doubt,” etc. They then simply return a verdict of “Guilty” or “Not Guilty.” All “Not Guilty” means is that some part of the allegation has not been proven beyond a reasonable doubt. It doesn’t mean actual innocence. Proving innocence will often require proving a negative, a logical impossibility. The jury is then excused.

    The judge will then determine sentence, in accordance with the applicable statute. For instance, in the misdemeanor assault I used as an example above, the presumptive range in this state is 6-18 months in the county jail and/or $500-$5000 fine. In practice, the sentence given will be far less than the minimum: the upper limit is binding (usually) but there’s a lot of wiggle room with the lower limit. However, this is done by the judge: Juries are only part of the sentencing process in capital cases in my state. (A death penalty case has what’s almost a second trial, where the prosecution has to prove that certain aggravating factors apply to justify the death penalty. The defense argues that certain mitigating factors cancel out the aggravating factors. Again, the jury decides.)

    A civil case, on the other hand, is brought by some aggrieved party against the defendant. The plaintiff must prove to the jury (typically to a simple preponderance of the evidence) that he suffered some harm that the defendant caused or at least that the defendant had a duty to prevent and failed. In the O.J. Simpson case above, the prosecutor failed to convince the criminal case jury, beyond a reasonable doubt, that Simpson had intentionally, knowingly, recklessly, or through criminal negligence, caused the death of the two victims. Goldman’s attorney, however, did convince the other jury, by a preponderance of the evidence (a MUCH lower standard) that Simpson had wrongfully caused the death of the victims.

    After such a finding of guilt, the court then orders the defendant to pay damages to the plaintiff to “make the plaintiff whole.” The court may also issue an order barring the defendant from certain conduct in the future. The court can also sometimes order additional punitive damages be paid. The jury can be involved in assessing damages in civil cases, but I’m unclear on what their role is: in my profession I try to stay away from civil court.

    There’s another critical difference: in the US, certain rights apply to the defendant in criminal matters, but not in civil matters: A criminal defendant can demand a speedy trial (in my state, the trial must begin 180 days from filing of charges unless the defendant waives), is entitled to free legal representation if he’s poor, can demand a trial by a judge without a jury (in most cases), can refuse to testify and refuse to make statements and have the jury instructed not to hold his refusal against him, etc. Civil defendants have none of these rights.

    What really complicates things for people overseas is the fact that we have a Federal court system, and then each of the fifty states has its own system of laws and courts. (Remember: each state is supposed to be at least somewhat sovereign). Now, the differences between them is limited in criminal matters, as all have to meet at least the Federal level in respecting the rights of the accused. However, the differences in civil laws can be dramatic. By way of analogy, I guess it would be like comparing Scotland to the rest of the UK, if not more so, since AIUI even Scotland has to deal with the Home Office, which we don’t have.

    Now, did any of that make sense?

    [1] With all respect to Paul, who I do respect, I really don’t want to have the “jury nullification” fight tonight.

  • John McVey

    Every crime is different and affects each victim differently. For example, the theft of £100 from a wealthy person will have little affect upon them. The theft of £100 from a pensioner whose only income is the state pension, could cause real hardship and possibly cause that person to go hungry or be without heating. Are we really saying that the perpetrators in each crime have committed equal offences?

    Hell yes. The crimes are NOT different. It is the same actual criminal act with the same motive and same intended outcome for the perpetrator. It ought be punished the same way, irrespective of what differences in value loss there are to different victims.

    You do realise saying otherwise means suggesting that a prostitute’s being raped is less of a crime than a normal woman’s being raped? Or that such a suggestion would give a green(er) light to going after richer or less ‘socially desirable’ victims? The ultimate end of that road is the hateful practice of determining justice on the basis of the fashionable sociopolitical goals of the day, where individual victims are nothing more than convenient props for that purpose as and when it suits the powers that be. This destroys the principle of rule of law in favour of the old evil of rule of men. Let’s not go back there again.

    JJM

  • Paul Marks

    If judges are just going to “follow the law” in criminal cases then sentences are going to have to be mandated – i.e. what the punishment for an aggression is to be will have to be laid down in statute (this is not something I am happy with – but see later).

    For example, if judges (with more “education” than common sense) are going to let child rapists walk (or just given them a few months) because they think that wanting to rape children is a “sickness”, then the judges are going to lose the respect of the public – and that is not the fault of the public.

    All the attacks on the evil “Fascist” Bill O’Reilly (a man whose politics, whilst not “Fascist” are certainly VERY different from mine) for expossing judges for doing what I mention above (in several States) should not obscure the fact that after the ritual attacks on O’Reilly have been made by the local newspapers (in the United States newspapers are almost always “in the tank” for local liberal elites) it is EVENTUALLY admitted that it was the evil O’Reilly (with no legal training at all) who got the facts of the case right and the “learned judge” who got them utterly wrong.

    “But judges must have discretion on punishment” – only if the judges are not going to play clever games and forget about the public (Lord Denning had choice words about judges who forget that are not a different species to the men and women in the villages and towns of England).

    On the matter of reporting “legal reasoning”, often this “reasoning” is full of holes and is based upon absurdities. A classic example is the famous (and endlessly cited) civil case of Brown versus Topeka School Board (1954). Now I am not in favour of segregated schools, in fact I am not in favour of governent schools at all – but some of the “reasoning” in Brown was not worth the name.

    For example, it was stated that studies had shown that the self esteem of black children was undermined by going to all black schools – that this was shown by black girls playing with white dolls.

    Now first of all social science “studies” and other such should have had nothing to do with a legal case (I am sure Guy Herbert would agree there, and rightly so). The case should have been about whether or not the 14th Amendment to the Constitution of the United States forbid or did not forbid segregated government schools (assuming that the 14th Amendment was correctly ratified in the first place, which it was not – but that is another story). However, black girls in mixed schools were MORE (not less) likely to play with white dolls – so the “studies” were up the river without a paddle anyway.

    I would agree with Guy that judges should try not to be influenced by displays of emotion (either way – i.e., for example in criminal cases, not by the criminal and his supporters with their hard luck stories, any more than by the family of the victim of the aggression), but if they are going to be “upholders of the law” they should not play at being “social scientists” – they will only become objects of contempt (and rightly objects of contempt) if they do.

    Before anyone makes the point, British (or rather English or Welsh – I am not familar with what goes on in Scotland) legal people are very much going down the road of judge-as-policy-maker (so the American example of Brown is relevant), and if the judges want to get into politics they are going to be judged (no pun intented) by the public on political grounds.

    On the specific point of the Human Rights Act: This Act is so vague (and is based on the vague European Declaration on Human Rights – so, contrary to Mr Cameron, just getting rid of the Human Rights Act does not get rid of the problem), that I can not attack the judges for getting into policy – they do not have much choice (due to the vagueness of the Statute and the vagueness of the Declaration on which it is based).

    The government has set up training sessions for judges and other such on the Human Rights Act – but this displays the problem (rather than solving it) as it should not be the business of government to train judges so they come up with the “right understanding” of Acts of Parliament – such statutes should be clear (without special “understanding”) or should not be passed at all.

    Teaching legal folk to have the “correct understanding” and to “interpret in the light of the correct values” smacks of only people with the “correct” POLITICAL opinions being allowed on the bench – and if that is the way of it, then judges should be elected (and in an open process).

    As for what Guy said about my own comments – he misunderstood what I said (fair enough, our minds work so differently that communication between us is always very difficult).

  • guy herbert

    The ultimate end of that road is the hateful practice of determining justice on the basis of the fashionable sociopolitical goals of the day, where individual victims are nothing more than convenient props for that purpose as and when it suits the powers that be.

    Precisely. A road which, in Britain at least, we are a long, long way down already, with various varieties of thoughtcrime and categorically constructed victims, including a crimes which are deemed to happen if a third party attributes a particular status to a victim (Link).

  • Godfrey Wind

    For example, the theft of £100 from a wealthy person will have little affect upon them. The theft of £100 from a pensioner whose only income is the state pension, could cause real hardship and possibly cause that person to go hungry or be without heating. Are we really saying that the perpetrators in each crime have committed equal offences?

    Extraordinary question! Obviously either crime, if unpunished, will equally reinforce the perpetrator’s belief that he can get away with such things again in the future. The objective is to deter, so you must not consider the social/economic status of the present victim, but that of countless potential future victims. As you don’t have access to that information, you can do nothing other than be consistent.

  • But it’s a bit different if the state itself is the one punishing a victim in a secret court which does not adhere to norms of evidence. It happens here in the UK- a lot. Children are being taken into care not because they have been harmed but because a social worker says there is a risk of “Emotional Abuse”.

    It’s the ultra secretive Family Court system. Much has been said about those children who should have been taken into care but weren’t and died as a consequence- Victoria Climbie and Balthous Galtricia. It sounds ironic but had they been white (and adoptable) they would have survived, albeit not at their homes but adopted.

    Fact. If you come to the attention of Social Services for whatever reason (like asking for help!) and you have a child that is adoptable (which in practice means white and under 3) then the odds are your child will be taken into care and adopted. A worse scandal than the Satanic rituals case nearly 20 years ago. That child will bring in at least £50,000 to the council in a payment from the Government if adopted. It’s all about the money.

    I know because I am involved in such a case- in fact I’d be probably breaking the law if I mentioned details. Not because it would identify the children (adoption agencies and magazines can freely publish their names and photos!) but because it might expose the dubious practices used by Social services- eg such as forcing school teachers to lie, splitting marriages) to get the children.

    I spoke to Ian Josephs, a Monaco based individual whose website http://forced-adoption.com gives advice to mothers whose children have become victims of the state. He gets 2-3 new enquiries a day! He advises people to be their own advocates because its a cosy number for solicitors and barristers- child care and they don’t like to win against social services as they’ll lose business!

    This sounds so far fetched doesn’t it. Under our noses? (How could they do it without us finding out- like Concentration camps in Hitler’s Germany)- well Camilla Cavendish in the Times has also been following this:

    Camilla Cavendish(Link)

    There is tons more on the web but Forced Adoption(Link) is probably the best.

    David

  • Paul Marks

    One (of several) negative things. that I would admit to, about public opinion having weight in a legal process is rich people being found guilty of various things (such as tax evasion) that an objective examination of the evidence shows they were not guilty of.

    Normally a jury will be whipped up by the press and and by the prosecution with various nasty things the rich person has (supposedly) said or done – that are not relevant to the case.

    So a defence such as “but this lady has paid all the taxes she was legally required to pay” does not carry the day.

    A strong judge should dismiss a case for which there is no evidence- but (when public opinion has been whipped up) this is a hard thing to do. As is even shutting up a lawyer or witness when their remarks have no relevance to the case.

    More generally a lawyer must be aware that the “facts of the case” do not speak for themselves – and the real fight is for the hearts and minds of the jury.

    For example, the prosection in the infamous Pottle and Randle case (where two C.N.D. activists wrote a book about how they had helped the traitor George Blake escape from prison to return to his K.G.B. masters) refused to talk about “political things”, simply confining himself to the “facts of the case”.

    Thus ignoring the fact that the whole issue was political and that the defence was based on George Blake being a good chap (“working for peace”) and therefore helping him escape from jail being a good thing.

    Of course the judge should never have allowed any such defence, but if a judge does allow it such a defence must be countered (just as a defence lawyer whining on about how much his client has suffered in life, the “mitigating circumstances” line, must be countered by the victim or victim’s family explaining how they have suffered – explaining to the judge that just because they are not screaming or crying it does not mean they have not been hurt by the crime).

    I do not know whether the prosecution lost the case on purpose (as some people claimed at the time), but they might as well have done.

  • Jacob

    Paul,
    Why don’t you open a new thread entiteled: “atrocious verdicts”.
    Bring one example and let the commentariat add their’s.

  • Kim du Toit

    “A victim should not need to scream and cry in order to get justice – and nor should their family.

    “A statement of the facts should be enough to get justice – i.e. full punishment for the criminal.”

    Yup, it should, and they shouldn’t.

    Returning to the real world for a moment, however, I should point out that this recent custom came about through a variety of circumstances, especially because of murder — where the victim doesn’t have their day in court, but the State does.

    What has happened over the years is that judges have erred more on the side of the criminal when it comes to passing sentence — and the more lenient the judge, the lighter the sentence. (The growing number of mandatory sentences for various crimes is further evidence of this — because the judges were abusing their latitude, showing too much leniency to the criminal.)

    Furthermore, the accused is almost always portrayed as a “good person” (except for that one leeetle rape thing) and the courts are full of sorrowful relatives not only of the victim, but also of the criminal.

    And this is why I don’t have a problem with the relatives of the victim — or the victims themselves, if they survive — having a chance to tell the world of all the consequences that have flowed from the criminal actions of the guilty party.

    Two things happen: the judges are made fully aware of all the bad things that have happened (no small thing, see above), and the public is also made (officially) aware of same.

    So when Larry The Liberal Judge gives a rapist a two-year suspended sentence, the public can know exactly why it’s time to vote this scumbag jurist out of the justice system (remember, we elect our judges Over Here).

    In the U.S., we operate on the principle of complete openness, where the more information we have, the better for all in the long run.

    Making public all the consequences and ripple effects of a crime falls into this category.

  • Paul Marks

    Jacob – it would get too depressing, and I get down hearted a lot anyway (I must remember that if I ever want a reduced punishment for some crime I commit).

    RAB – Article 29 of the new “treaty” (really the old Euro Constitution) once someone is legally in one State of the E.U. he or she will be legal anywhere else (this is an old idea for them). I was reminded of this point by Mr Booker’s article in the Sunday Telegraph today.

    Civil and Criminal.

    Yes two different standards of proof – beyond all reasonable doubt (criminal), and balance of probabilities (civil). So Mr “O.J.” was NOT found “guilty” by the Civil court – he was found “liable” (“responsible”).

    The French have the same standard of proof for both civil and criminal cases – which leads to the false English notion that in France the “burden of proof” is on the accused to prove his innocence. This is not so, there is no burden of proof (in the English sense of beyond all reasonable doubt) in French law.

    Odd though it is, I prefer the our system on this point.

    In a civil dispute it is one party against another, not the state against an indivdual (well that used to be the case – these days it is often the state using the civil law principles against individuals and private enterprises but “do not get me started” on that), but in a criminal case the full weight of the state comes down against the accused.

    The state (the Crown) should have to prove its case beyond all reasonable doubt.

    As for the purpose of the criminal law.

    Well once fines used to go to the victim or the victims family, but even in late Anglo Saxon times the King started to take a share.

    This has helped lead to the conclusion that the crime is “against the Crown” or against “the Queen’s peace”, but the Common Law has never fully done away with the idea that the crime is against the person who been aggressed against.

    The difference between a crime (in the old sense of a crime – not the modern sense where anything that is against a criminal statute is a “crime”) and a civil tort being (basically) the guilty mind.

    For example, if I bump into you by accident on the street and you fall into the road and are killed that is NOT murder – although (if I was not looking where I was going…..) I MAY be liable for a civil tort (say I deprived your wife and children of income by my carelessness).

    However, if I bumped into you on purpose in order to drive you in to the path of on comming car to kill you – then I am guilty of murder.

    What is the difference?

    Not the bump, not the car, and not your death.

    The difference is my intention – my guilty mind.

    It is often the guilty mind that is the difficult thing to prove.

    What was my intention?

    What would a “reasonable man” have assumed to be the result of an action (if it was proved that I did indeed do something on purpose).

    Am I a “reasonable man” (this is more modern line and the defence can have a field day – “my client had no idea that shooting the little girl 16 times and then jumping up and down on what was left of her would kill her – this is because of his mental state which is….”).

    Oddly enough if I could only make one change to the law of England and Wales it would be a very old idea.

    I would define in law what is meant by a speedy trial (a right that is supposedly upheld by such things as the Charter of 1100 and the Great Charter of 1215). Scots law has traditionally done this (and Glasgow has been a large crime ridden city for centuries – so it is not that “we can not avoid having people rot on remand because we live in a modern urban environment”) – but in England and Wales innocent people can rot “on remand” for ages before comming to trial (it is not true that all innocent people get bail).

    Of course I understand that this is just a fantasy of mine.

    As Guy Herbert could explain far better than me, in the modern world we allow people to rot in jail without even CHARGING them – so asking for a speedy trial is asking for the Moon.

    These days even confessing to what one has not done (a good way to at least end waiting for trial) will not work – as one is not sure what one should be confessing to (there being no charge).

    Almost needless to say the people waiting for trial are treated as the lowest of the low in prison. I am not sure how those who are waiting to be charged are treated (they did not exist when I worked in the prison service).

  • Paul Marks

    For those thinking “but only terrorists will be treated like this” – you wait and see.

    I can still remember when people said that asset grabbing would “only be done to Mafia people”.

    Once the state has a new power it tends to get used (eventually) on all sorts of people.

  • Tedd McHenry

    There seems to be a presumption by some commenters that victim statements will lead to stronger sentences. But is there evidence to support that? It seems to me at least equally likely that the effect of such practices is to allow the court to feel that justice has been served while still providing the same sentences.

    Count me in the “keep emtions out of convicting and sentencing” camp. If I’m ever accused of a crime I want the trial to be rationally and dispassionately conducted. I want this because I will probably be not guilty.

    When I’m the victim of a crime I want the same thing. I’m only interested in four things from the sentencing process: deterrence of the specific person convicted; general deterrence by the example of the convicted person; protection of the public (by incarceration where warranted); and, to the extent possible, reform of the convicted. None of those things requires my (or anyone else’s) emotional input. I do not want my personal, emotional recovery to be part of the trial process. I will deal with that in my own way, much as I would if the accused were never found in the first place.

  • Paul Marks

    I am not wildly interested in three of the things that Tedd McHenry mentions.

    Prisons do not tend to “reform” people, and “deterrence” can be used to justify just about anything (including death for stealing an apple).

    I do not know whether a certain punishement “deters” crime – and I do not really care.

    Punishment is a matter of justice – a person has committed a crime and they must be punished in proportion to the crime they have committed.

    “But that means punishment is revenge” – well in a way yes, although it is decided upon by someone who is not directly involved in the crime (neither the victim or the victims family or friends).

    This is because (as the original post implied) we tend to be “biased in our own case”, i.e. we may inflict unjustly harsh punishments on those who have hurt people we love.

    A just punishment is one that is in proportion to the violation (the crime) itself, not more than the crime.

    However, sometimes common decency demands that punishment be LESS than the crime.

    For example, if someone has tortured various people to death the law should not demand that he himself is tortured to death (or killed and his heart started again – so that he can be killed an equal number of times to the number of people he killed).

    On the contrary, execution should be as quick and painless as possible (and there should only be one execution – not start the heart up again and….). Odd though it may sounds a proper executioner is not a sadist – nor is he even unpopular with the prisoners (if you know you are going to die you want someone who is going to do a professional job, and someone who treats you with respect – “how can you treat respect people you are killing”, one can actually).

    “But I oppose the death penality on grounds of common decency”.

    Fair enough, many people do, – however I wish they would show equal conern about prison conditions.

    Being raped and tortured by other prisoners should not be part of punishment. Nor is it inevitable.

    For example, only a few years ago rape was unknown in British prisons.

    One of the great things done in the 19th century was the improvement in prison conditions.

    Certainly there were mistakes (such as the early 19th century policy of not allowing prisoners to see other people at all in certain prisons – a policy that was abandoned because some prisoners went mad), but over the 19th century prisons went from places of rape, torture and murder, to places of basic decency.

    This is not a “Merry England” myth. Prisons really were basically decent places at one time (particularly when one considered all the violent criminals who were there).

    There was one person per cell, and all cells were visible from the centre of the prison (they were built in layers, in hollow sqares or rectangles [or other shapes] – with some prison warders in the middle space at all times, and “doing the rounds” of the various layers as well).

    As recently as the 1950′s the nurses from St Barts in London (the oldest hospital) used to go to the main women’s prison every Christmas to sing to the prisoners. There was no need to move the prisoners at all – they could all see the nurses from their cells (just as the people normally in the space the nurses were occupying could see all the cells).

    The new main women’s prison was built like a hospital (lots of out-of-the-way rooms and distant areas) – suicide rates exploded.

    Prisoners must have their private space (their cell – which must not be shared), but they must also be seen at all times by those in charge of the prison (otherwise the staff will not be in charge of the prison very long).

    Prisoners should not be left in dark out-of-the-way corners (where they will fall into dark thoughts) and they must NEVER be together without lots of staff present and in control.

    “But will all this reform prisoners” – most likely not, the same house breakers and so used to come back again and again. “Will it deter criminals” – I do not know.

    But at least the prisoners will not be killing themselves, or abusing and killing other prisoners. And, as you say, whilst they are in prison they are not out committing other crimes.

  • Midwesterner

    Paul, a couple of friendly amendments offered to your comment?

    My opposition to the death penalty is not one of moral right and wrong. It is a question of “Do we trust the same system that gives us social security, Amtrak, medicaid, campaign finance reform, ad infinitum, to have the power to kill people?” To which my emphatic response is “Hell, No!”

    I was raised in a state (Illinois) were prosecutors running for higher office were known with the help of law enforcement officers, to frame unpopular people for capital crimes. In my home county (a Republican one) the prosecutor framed one guy for the death penalty because he was already a petty (er) criminal and they thought nobody would know or care. The county spent a taxpayer’s fortune keeping their people out of prison. That high standard of proof and very expensive lawyers is what saved them. I haven’t heard if there are civil suits against the county and its officers.

    After the pattern became more generally apparent, the governor commuted all death penalties to life in prison.

    My other observation is about the prisons you describe (the old ‘fashioned’ kind), it seems to me that there is a definite benefit to society in that it would break up the ‘crime university’ that most prisons have become.

  • Sunfish

    My other observation is about the prisons you describe (the old ‘fashioned’ kind), it seems to me that there is a definite benefit to society in that it would break up the ‘crime university’ that most prisons have become.

    +1
    I saw a roll-call video of some “training” in a prison yard in California, where prisoners were training each other in gun take-aways.

    They had better training in weapons retention and disarming as inmates in a section reserved for people serving time for violent felonies, than Colorado mandates for cadets in a basic police academy. And I guess it would have been a civil rights violation to separate the “training partners,” because it did not appear that the C.O.’s particularly cared.

    “You guys have total control over the inmates’ lives. The inmates are training to KILL YOU, and right in front of your faces. What are you going to do?”

    The answer appeared to be, “nothing.” I’m not advocating torturing the inmates for that, but surely separating them to different cells, different recreation periods, or keeping them so busy on work details that they have neither time nor energy for DT training would all be okay.

    Also, I’m starting to come around to your approach to the death penalty: my state seems to have avoided Illinois’ problem. We have a better public defender system, I guess, and for some reason we have far less of a corruption problem. I’ve never heard a serious suggestion that any of our death row inmates were innocent of the crimes that put them on death row.

    The odds of a fatal mistake are small here. The price of one, though, is huge.

    WRT Paul’s statement about “older” prisons:
    Lockups here are starting to be built on a similar format again, in “pods.” The concept is, a central desk in each pod can see into every single cell in the pod. I’m not familiar with how they’ve actually worked out in practice, compared to the mazes and blocks, but intuitively I would imagine that problems would be fewer.

  • Paul Marks

    It is a valid point that why trust a government that can not deliver the mail to decide life or death.

    Although, of course, we all die (it is just a matter of when) – and is it really such an a good think to have been sent to prison for many years and then be declared innocent (rather than just be killed and end all the irritation). For myself, if I were framed for murder I would opt for execution (at once – I would refuse to see any A.C.L.U. lawyer who came to try and “save me”) rather than have years in an American prison. Life is quite bad enough without torture and abuse from a bunch of criminals.

    Of course if one is awarded a lot of money (for the years in prison) there is at least the chance of spending ones last years in reasonable comfort – whereas money is no good to the dead.

    In reality only Texas actually has a death penalty system (in most other States executions are so rare and there is such a vast delay that one is more likely to be hit by lightning), at least (if I am out of date now) one that has been “up and running” (no pun intended) for quite a few years.

    The left were very keen to dig up (again no pun intented) an innocent person executed in Texas so that the could blame George Walker Bush for it (the most popular book on athieism in Britain contains a story of how the wicked Bush [presented as a cardboard cutout evil Christian] denied a women a death row parden and mocked her as he did it – a story that loses its force when one finds out that Governors of Texas do not actually have such a parden power).

    As far as I know the left where unable to find any innocent people who had been executed under Bush in Texas.

  • Midwesterner

    I got curious and looked it up this morning. The guys they framed won a $3.5 million dollar settlement from the county. Our tax dollars at work.

    One of the three assistant state’s attorneys charged in the case one became an assistant US attorney and one became a circuit judge.

    This is excerpted from the DuPage County Bar Association’s page:

    In January, 1984, two months before his re-election bid, DuPage County State’s Attorney Michael Fitzsimmons announced he had insufficient evidence upon which to charge anyone in the Nicarico case. Later that month, Jeanine’s parents, Tom and Pat, made an agonized public plea for new information. Fitzsimmons’ challenger, Jim Ryan, criticized Fitzsimmons for the perceived failings in the handling of the Nicarico case.

    On March 9, 1984, Fitzsimmons announced that the Grand Jury had handed down indictments against Rolando Cruz, Alejandro “Alex” Hernandez and Stephen Buckley, for the kidnapping, rape and murder of Jeanine Nicarico. Despite Fitzsimmons’ announcement, twelve days later Jim Ryan defeated Fitzsimmons in the race for DuPage County State’s Attorney.

    The State’s Attorney that was responsible for continuing the prosecution went on to be twice elected state Attorney General, and ran as a Republican for Governor.

    Here are some excerpts from Chicago Tribune articles.

    There was another police detective in a different jurisdiction who was certain he had the right perp for their crime, yet Cruz et al were prosecuted 3 times at least one of those times after there was DNA evidence that somebody else had done it.

    Incidentally, in at least one report of the verdict acquitting the prosecutors and deputies, some of the jury celebrated with the defendants and even went to a restaurant with them afterwards to celebrate. If there is any truth to that, it suggests perhaps the special prosecutor dropped the ball on jury selection? An accident we would hope.

    I also found an unrelated 1999 article that pointed out that since the reinstatement of the death penalty in Illinois, equal numbers of convicts on death row had been executed as had been exonerated. 11 each. Not a good statistic.

    What really disturbs me is that if it is this difficult to get somebody acquitted when there is a confession and DNA evidence that somebody else did it, how many cases are in truth, unsolved? Had Dugan not been caught for a different crime, would ‘law and order’ have been served by leaving him loose and executing a lesser criminal? A sacrifice to the gods is all that is. “We’ll execute somebody, anybody bad, and that will make the victim’s family and the voters feel better.”

  • Paul Marks

    There is indeed “something wrong in the State of Illinois” (sorry Shakespeare). Both major poltical parties seem rotten in Illinois (although as the Republicans hold so little these days they may take the time to sort themselves out).

    Chicago has always been corrupt (supposedly the last honest Mayor was a Democrat – but a Democrat back in the 1920′s), but the rest of the State was basically O.K. – and could be again.

  • Midwesterner

    Alas, in today’s news we see it’s not just Illinois.

    These guys can’t even claim that they were trying to frame the real perpetrator. Which is a claim I’ve actually heard made.

    I just don’t trust government with the power to kill its own citizens.