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]

A list of abuses

I saw the following list of problems with the US legal and law enforcement system, which taken individually may not appear to be major issues in terms of it being a “systematically unjust” country, but which taken together do tend to suggest there is a big problem. This is mirrored to a certain extent in other countries, such as here in the UK.

qualified immunity;
LEO unions;
LEO militarization;
inadequate civilian oversight;
plea bargains;
victimless criminal statues (e.g. drugs, sex-work, immigration);
occupational licensing;
civil asset forfeiture;
eminent domain (esp in re gentrification);
unaccountable fines & fees, and quota-based policing;
private prisons;
FISA Courts; and
no-knock warrants.

That is a good list for radical classical liberals and small-government conservatives to get to deal with.

46 comments to A list of abuses

  • Snorri Godhi

    A good list as a basis for discussion.
    I note with approval that “institutional racism” is not in the list.
    Just today i read an article that provides strong evidence against the notion. (H/T Instapundit.)

    As for the list: there are some items that are definitely big issues:

    qualified immunity
    LEO unions
    no-knock warrants
    civil asset forfeiture

    I note that the last 2 items have a direct negative impact on people, while the first 2 items have an indirect impact.

    Some other items seem to require more discussion.

    LEO militarization

    Current events suggest that some capability for counter-insurgency can be helpful. (Unless the National Guard can be called in at short notice.) The trouble is when military capabilities are used as a matter of routine.

    plea bargains

    This problem, as i understand, is more complex than most of us East of the Atlantic realize. My understanding is that it would be almost impossible to enforce the law in the US without plea bargains. But i am ready to be proven wrong.

    victimless criminal statues (e.g. drugs, sex-work, immigration)

    Not all immigration is illegal, of course. Illegal immigration is not victimless: at the very least, taxpayers have to pay for some of the expenses, especially in the US, and most especially in Blue States.

    occupational licensing
    eminent domain (esp in re gentrification)

    Real problems, but i don’t think of them as police problems.

    unaccountable fines & fees

    Not sure what you mean here.

    quota-based policing

    You mean, making sure not to arrest more Muslims than Presbyterians for pimping or sex with minors?

    private prisons

    What’s wrong with privatization?
    It should actually increase accountability, but i am ready to revise my opinion on the basis of empirical data.

    inadequate civilian oversight
    FISA Courts

    I don’t know enough about these issues to comment.

  • bobby b

    Just to play Devil’s Advocate:

    qualified immunity; A very good concept (but expanded a bit too much) that keeps progressives from engaging in lawfare against line employees in order to effect societal change that they cannot accomplish politically.

    LEO unions; You disagree that we all have an associational right to band together? If this stems from a dislike for all public-employee unions, I’ll agree, but if it’s simply the police unions you dislike, I think you’d dislike policing even more without the unions fighting to keep cops safe from the political winds. If you dislike specific rules that the unions have been able to bargain for, call them out – you might find that most of them are well-founded.

    LEO militarization; Generally, I agree, but I also know several cops who are now on disability because they went up against better-armed suspects. It’s a never-ending escalation, but we cannot afford to let cops be less well equipped than the bad guys. We just need to control the use of the equipment better. (My own Minneapolis could have used some armored troop carriers last week.)

    inadequate civilian oversight; Watch Chicago for a few weeks. Watch how Minneapolis changes this coming year. Civilian oversight is only as good as the civilians currently in control of cities. Cop bosses are generally employed at the pleasure of elected officials, so, mostly, the cops are doing what the majority of voters want them to do already. When you see a mayor displeased with cop policy, it’s usually a mayor trying to cover his own missteps.

    plea bargains; Unless we want to increase court funding exponentially, or stop enforcing laws against murder, rape, assault, robbery, and the like, we need plea bargaining. As it is, it works vastly to the benefit of defendants. Get charged (with good evidence) with Assault 1, with a guidelines sentence of ten years, but get offered a plea to Assault 2 with a three-year sentence because the courts don’t have enough courtrooms or judges to try every case? Great deal.

    victimless criminal statues (e.g. drugs, sex-work, immigration); Victimless? Never had to postpone your interview with a 13-year-old addict in lockup because he’s throwing up too hard from withdrawal? Sex work, fine. Immigration? Again, victimless? By your reckoning, I suppose tax fraud is also a victimless crime, because there’s no one specific person who is hurt by it.

    occupational licensing; Agree that it has spread too far, but I still want my electrician and doctor and lawyer to have his training proven. My hairbraider, of course, shouldn’t need a license.

    civil asset forfeiture; Agree in spades. Go to crim court if you want to claim my money was used criminally.

    eminent domain (esp in re gentrification); Already in check to a great degree as more and more jurisdictions reject the Kelo doctrine. Bush wrote an executive order banning its use federally in gentrification situations. Most states have since enacted legislation repudiating the doctrine. We still need roads, etc., though.

    unaccountable fines & fees, and quota-based policing; Not sure what this one means

    private prisons; ?? What, government can do things better than the private sector? I’ve been in both, and the biggest difference I could see was that the government guards’ union gets them far higher pay. But now most private systems also bargain with unions, so that difference is receding.

    FISA Courts; “Abuses of”, sure. “Existence of”? No way. We should seek warrants against in-country spies for foreign enemies in the public-records courts?

    no-knock warrants; Again, “abuses of”, sure. No-knock warrants have been around forever, and have their place. You need to convince a judge that evidence will otherwise disappear or be destroyed if you announce your presence before you enter in order to get one. Judges ought to be more sparing with them.

    – – –

    Whoever made your list works off of headlines, I think. We need to work mostly on abuses of these items. But then, we need to work on abuses generally.

  • Nico

    Regarding FISC, the situation before we had FISC/FISA was much worse than the current situation — essentially no controls. The FISC is a rubber stamp, but a) leaves a paper trail, b) could be reformed to be less of a rubber stamp. We’re not likely to end the surveillance state, but we might be able to impose more controls on it.

    As to the rest:

    – LEO unions

    There should be no public sector unions. Even FDR agrees (well, at least as to public sector strikes, but the implication is no collective bargaining for the public sector, which leaves unions with only one job to do: funnel contribution monies to the Democratic Party, and this they should not do, which then would leave them with no jobs to do).

    – no-knock warrants

    No-knock warrants should only ever be allowed for confirmed hostage situations. 911 calls should not be considered confirmation as long as SS7 continues to be utterly unauthenticated.

    – civil asset forfeiture

    Civil asset forfeiture is clearly unconstitutional. The SCOTUS recently ruled as much, but applied that only to the Federal government, though it hinted it might be incorporated against the States. The court, as usual, likes to go slow.

    The victims of civil asset forfeiture are generally the poor. And it exists to pay the salaries of police, of which we have too many (as in too many to pay via tax hikes) courtesy of Bill Clinton.

    – LEO militarization

    A terrible thing indeed.

    – inadequate civilian oversight

    A trivial matter of political will to structure oversight in such a way as to overcome the social pressure to protect police.

    – plea bargains

    These used to be rejected by the courts. Then Prohibition happened. As Snorri Godhi says, the courts would grind to a halt without plea bargains, but that would be a good thing: it would force prosecutors and judges to prioritize their dockets, which would automatically lead to victim-less crime laws going unenforced, which might lead to their reform. You might have small fines for prostitution, marijuana, etc. instead of jail sentences.

    – occupational licensing

    That’s a State-blessed racket. Start by allowing multiple bar associations, multiple medical associations, multiple hairstylist associations, etc., all allowed to license members.

    – eminent domain abuse

    Thanks, SCOTUS. Thanks a lot. There has been much eminent domain “reform” in the States, but most of it merits the scare quotes as it’s no reform at all.

    I’d add that Freedom Under the Law of the Land is meaningless if defendants are not free to ask for jury nullification, or if judges will not instruct juries that they have a right to acquit for any reason they like. In the U.S. this was a right for ~100 years, then the SCOTUS (thanks again) reversed about ~120 years ago.

  • Nico

    @bobby b:

    LEO militarization; Generally, I agree, but I also know several cops who are now on disability because they went up against better-armed suspects. It’s a never-ending escalation, but we cannot afford to let cops be less well equipped than the bad guys. We just need to control the use of the equipment better. (My own Minneapolis could have used some armored troop carriers last week.)

    The National Guard has those. If things are so bad that you need armored personnel carriers, it’s time to call in the National Guard.

  • Nico

    @bobby b:

    Whoever made your list works off of headlines, I think. We need to work mostly on abuses of these items. But then, we need to work on abuses generally.

    I don’t know if JP took some of this from my list on that other thread, but I do (lately not as much, but I used) read a great deal about the law, from places such as SCOTUSblog, the old Volokh Conspiracy, Ann Althouse, and others.

    Plea bargains were not a thing before Prohibition, at least that’s my understanding (if you want I’ll go find a link for this). What happened? We created more crimes. I wonder just how many rapes, murders, etc. would go unprosecuted if we had no plea bargains. They’re certainly not the majority of crimes charged. And I wonder whether we’ve lost the ability to have good old jury trials. And I wonder what would happen if every public defender started demanding jury trials for all their defendants… would the judges tell them to fuck off? Surely not. The system would collapse, and I wonder why it hasn’t happened. I lie, I don’t wonder. The cities would fire those public defenders. Doesn’t this possibility ever keep you up at night?

    Meanwhile in Chicago they’ve greatly increased the number of detectives in the police force and so they went from a ~25% murder case clearance rate to ~50% clearance rate — that’s essentially doubling the courts’ load right there, but also really embarrassing: why have so much police and so few detectives that crimes go unsolved by default? (I’ll have to ask my wife for a link for this — this I didn’t know until I learned it from her a few days ago.)

  • Nico

    @bobby b:

    private prisons; ?? What, government can do things better than the private sector? I’ve been in both, and the biggest difference I could see was that the government guards’ union gets them far higher pay. But now most private systems also bargain with unions, so that difference is receding.

    Certain things must not have a profit motive involved (or it must be minimal, as in like public sector salaries). Certainly judges should not be employees of corporations. Ditto prosecutors. With police the lines start to blur (think private security companies; rent-a-cops). Prisons? There have been insane scandals involving private prisons bribing judges and prosecutors to fill them, so we, the public, have no faith in private prisons.

    Moreover, we, the public, should want government to be very selective about how it spends our monies. Law enforcement (including prisons) should be a high priority. PC projects of the day should be low priorities. But our representatives love to spend our money on things they should not, and if this puts pressure on the governments’ finances which should lead to cutting those expenses, not to outsourcing important government functions. Reducing prison costs because of more popular or PC expenditures means, ultimately that we mistreat prisoners, or release them too early, or worse. So I see private prisons as a symptom of a much more serious problem.

  • Ferox

    Right now, while race-hate mobs roam the streets of burning cities, issuing their farcical demands for this and that, is not the time to be having a discussion about changes to be made in the police philosophy.

    Right now is the time to be shooting looters and arresting every member of any lynch mobs that attack bystanders.

    Later, when all the fires have been put out and all the newKlan sh*theads are in cells, it will be an excellent time to talk about the things that need to change in the way policing is done.

    If you have the conversation now with a burning city being held over your head, it is tantamount to kneeling in front of the jeering mob and begging for forgiveness for the color of your skin.

  • Nico

    @Ferox: Well, I’m not going out to shoot rioters. I could, trust me, i could, but as long as my State has a functioning and responsive National Guard, I won’t even think about it. That means I have time to think about other issues, and some of us have to think of those issues.

    Regardless of the rioting and looting, there are issues with the U.S. (and UK) justice system that have pissed me off for a long time. If the Left gets to complain about the problems they ostensibly have with our justice system (note well: the only problem they have is that they aren’t in charge as dictators), they I get to complain about the problems I have with it.

    If you have the conversation now with a burning city being held over your head, it is tantamount to kneeling in front of the jeering mob and begging for forgiveness for the color of your skin.

    Nonsense. I’m not having this debate with them, I’m having it with people who aren’t rioting, and I’ve wanted to have it.

  • bobby b

    “And I wonder what would happen if every public defender started demanding jury trials for all their defendants… would the judges tell them to fuck off? Surely not. The system would collapse, and I wonder why it hasn’t happened. I lie, I don’t wonder. The cities would fire those public defenders.”

    I was a public defender – contract, not staff, the same thing without the health plan – and we had this discussion many times.

    And it always ended the same way – plea bargains worked in our favor, every time. If the state can’t try you in some specified time – the “speedy trial” requirement – it had to let you go free. The pressure works entirely one-way – against the state.

    We could easily have demanded trials for all of our clients and shut the system down temporarily, but the state would likely respond by a temporary massive increase in funds and would suspend all civil court proceedings and put all judges and courtrooms onto the criminal calendar, and our clients would get trials. And, since the vast majority of our clients actually did the things they were accused of, they would then suffer the greatly increased sentences that plea bargaining let them avoid.

    (And, we would likely have been fired – NOT for disrupting the system, but for making all of our clients suffer the much longer sentences than they would have received under a plea. The two branches – prosecution and public defenders – are indeed both state functions, but they are separated far up the food chain, and no prosecutorial pressure would ever result in a PD being fired for doing a better job of defense. That was always a jealously-guarded separation.)

  • bobby b

    Nico
    June 11, 2020 at 9:03 pm

    “Certain things must not have a profit motive involved . . .”

    I had clients in both public and private prisons. Generally, they preferred being in the private ones. More comfortable, safer, better facilities . . .

    And they’re substantially cheaper than the public ones.

    Google the CCPOA – the California Correctional Peace Officers Association – the CA guards’ union. They have huge political power in California, they get amazing salaries for their members, and they routinely lobby for things that increase imprisonment in the state and thus keep their membership up. The private sector has no such lobbying clout.

  • Nico

    @bobby b:

    Google the CCPOA – the California Correctional Peace Officers Association – the CA guards’ union. They have huge political power in California, they get amazing salaries for their members, and they routinely lobby for things that increase imprisonment in the state and thus keep their membership up. The private sector has no such lobbying clout.

    We touched on that above. Both, the private and public sector have shown the ability to corrupt the system. Public sector employees should have no collective bargaining. This is now being rectified, slowly, nationwide.

  • Nico

    @bobby b:

    I agree that plea bargains work well for most defendants. Do we have such high load because we have too many crimes, or punish too many crimes too harshly? You might know this very well.

    That said, purposeful overcharging happens. The Aaron Swartz case still rankles. A few bad apples really do ruin the system. Carmen Ortiz can rot in hell. BTW, this household donates to the Innocence Project — there’s a lot of bad prosecutin’ in the U.S., so I’m not sure how few of these apples are bad.

    That’s another thing:

    – DAs and AGs should be appointed at all levels — never elected

    – judges should never be elected, except maybe for State Supreme Courts in the Wisconsin hybrid appointed/elected model

    – being or having been a prosecutor within the past four years should be a disqualifier for elected public office

    – being or having been a Senator should be a disqualifier for being elected President, curable only by having also been a Governor or Vice-President

    I very much dislike it when prosecutors use perp walks to get attention and then get themselves elected. Rudy Giuliani, I’m looking at you.

  • Fraser Orr

    bobby b
    FISA Courts; “Abuses of”, sure. “Existence of”? No way. We should seek warrants against in-country spies for foreign enemies in the public-records courts?

    I’m curious on your thoughts on this. We are supposed to have an adversarial system, so I don’t understand how this can be countenanced. Surely the simple solution is to have a defense attorney in court who advocates on behalf of the target of the warrant (obviously without communicating with the target since it is clear we do need to be able to issue warrants without informing them.) How does this work in regular proceedings where, for example, the cops want a warrant to spy on some domestic human trafficker or embezzler? I thought there would be someone there to represent him blindly. Why are foreign spies any different?

    It just seems to me that any system that is supposed to be a check on power that approves requests 99% of the time is a meaningless rubber stamp, not an effective check.

  • Nico

    @Fraser Orr: Espionage is secret, yeah, so that means the adversary may not find out about it. If you spy on citizens within the normal legal framework, you need a wiretap warrant or alike, and that will become evident if ever the targets of wiretapping are charged. If you spy extra-legally, well, then no one better find out because then you get into fruit of the poisoned tree territory. But terrorism! So we say well, that’s too bad, we’re gonna spy anyways — maybe we can’t charge people (that’s how you solve the adversarial issue), but hey, we can stop attacks, and so on. But we want privacy protections too, because we don’t trust the spies to play by the rules! Well, … and that’s how we got a FISC. That’s roughly the idea anyways.

    Most people, myself included, don’t care that much if my government spies domestically provided they don’t get to use any of that material for legal investigations and prosecutions, and no back-reconstruction of evidence either. Them’s the rules. Well, that’s going to require controls, because we all know that the FBI and DoJ and DEA and ATF and so on will not be able to help themselves, and a FISC-like entity is part of that. The only alternative is no domestic espionage, but… that seems politically and even technically infeasible, not least given how easy it was for so much espionage infrastructure to get built out without the public’s knowledge, and also given espionage alliances like the five eyes. Problem is that effective controls are also infeasible, naturally enough (surprise!). And so here we are.

    At least in a large enough abuse, like the Obama Administration’s espionage on Republican candidates’ campaigns (Trump’s was not the only one!), and especially the continuation of that after the transition(!!), it is essentially impossible to keep the secret for too long. Not much comfort though: most citizens are not presidential candidates, and if Hillary! had won, well, it might have taken decades for the truth in that case to come out. And even this awful scandal doesn’t seem to be slowing down the leviathan.

    So we’re kinda stuck. What can I say. It sucks. If you’ve got any ideas, let the world know.

  • bobby b

    Fraser Orr:

    I was always a bit bemused by the furor over this particular aspect of the FISA court controversy, because it works just like it does in normal court.

    Search warrants are dealt with explicitly in the Fourth Amendment:

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    It doesn’t have to be an adversarial process because it’s not determining anyone’s guilt. It merely allows one to go out and bring back some information for further court use.

    So, in both normal and FISA systems, a cop walks in to a judge’s chambers and hands over his written affidavit (warrant app) setting out how there is a fair probability that a search will result in evidence of a crime being discovered (i.e., probable cause), and detailing how the cop got that information, and will then swear to that affidavit being true. If the judge has no reason to question the cop – cop hasn’t lied to the judge in the past, basically – and if the judge agrees that the cop’s affidavit does constitute probable cause, the warrant is signed and filed.

    Note that the adversarial system still allows that warrant to be fought at a later stage, if there are any later stages (meaning, if criminal charges are actually brought against anyone.) If a defense lawyer can show that there really was no PC existing at the time the cop swore to it, the warrant and all resulting evidence is thrown out. Oh, and that cop gets no more warrants from that judge, because he just made the judge look stupid.

    Because it’s a non-adversarial process, I’d guess that that same percentage – 99.9% – of all normal non-FISA warrants get approved, too. I didn’t think that was a big deal in the FISA stories. The adversarial system still allows the defendant to keep the evidence from being used against him later.

    So far as I can tell – I know little about FISA court process – where the system falls down (if it does in fact fall down) is in the lack of opportunity or need for anyone to go back after the fact and disprove PC in a FISA warrant. In those cases, it seems to me that the warrant isn’t normally sought with the goal of bringing charges against anyone so much as they’re brought simply to gain information. Whereas I can contest a warrant to search my home in my later trial on whatever I’m charged with as a result of that search, a FISA warrant ends with fewer actual Defendants, and more simple systemic information. So, the judges get less feedback when a cop lies to them about PC, and that personal knowledge of individual cops is really the biggest killer of warrant applications in normal court. If that makes sense.

  • Johnathan Pearce

    Just to play Devil’s Advocate:

    Indeed, Bobby.

    Ferox: Right now, while race-hate mobs roam the streets of burning cities, issuing their farcical demands for this and that, is not the time to be having a discussion about changes to be made in the police philosophy.

    There is never a “time” to discuss these things. The enemies of liberty and order are always pulling the “now is not the time” line to address this or that. Let’s start taking the intellectual fight, rather than defaulting to the iron fist mode.

  • Meanwhile in Chicago they’ve greatly increased the number of detectives in the police force and so they went from a ~25% murder case clearance rate to ~50% clearance rate — that’s essentially doubling the courts’ load right there, but also really embarrassing: why have so much police and so few detectives that crimes go unsolved by default? (I’ll have to ask my wife for a link for this — this I didn’t know until I learned it from her a few days ago.)

    So what you’re saying is “If I want to murder someone I should arrange for that to happen in Chicago”. Got it.

    no-knock warrants; Again, “abuses of”, sure. No-knock warrants have been around forever, and have their place. You need to convince a judge that evidence will otherwise disappear or be destroyed if you announce your presence before you enter in order to get one. Judges ought to be more sparing with them.

    Sure, no-knock warrants have their uses and are justified, but of late they’ve been more abused than used (e.g. the murder of Breonna Taylor). Rand Paul has introduced a bill to get rid of them entirely, but I doubt this will get any traction.

    Rand Paul introduces bill to end no-knock warrants

  • Deep Lurker

    LEO militarization is a relative concept. It’s a matter of LEOs being exempted from the anti-weapon laws that apply to the rest of us. Police with Glocks are not militarized if private citizens are not prohibited from carrying them too, but are militarized where the law prohibits or heavily restricts Glocks with special exemptions for LEOs. Likewise with AR-15s, select fire M16s, and full-auto Thomson submachine guns.

    Or at the extreme trivial end, handcuffs. Having handcuffs ‘militarizes’ the NYPD because there’s a city ordinance that prohibits handcuffs with a special ‘except for cops’ exemption.

  • llamas

    bobby b. wrote:

    ‘victimless criminal statues (e.g. drugs, sex-work, immigration); Victimless? Never had to postpone your interview with a 13-year-old addict in lockup because he’s throwing up too hard from withdrawal?’

    Meanwhile, in the adjoining cells, dozens of citizens face the prospect of having their liberty taken from them for years, maybe decades, simply for partaking of a substance which harms nobody but themselves. A kid throws up for a day or two vs years of life stolen forever from people who harmed nobody but themselves. Tough calculus.

    On the militarization of the police – having been a copper myself, I take a divided view on this, which splits along the line of equipment vs people.

    I have no problem with police departments having extensive weaponry and equipment, including equipment which is more at home in a military setting. Occasionally – very rarely indeed – such equipment is needed and its use is entirely justified. The problem with this sort of equipment is the sudden willingness – nay, eagerness – with which it is put to use for purposes for which it is entirely unjustified in the context of policing a civilian population.

    And that’s a people problem. It’s more than 25 years since I did this work, but even then, I could recognize the problem a mile off. For me, there were maybe a dozen markers that, singly or in combination, tagged an officer as being one with (IMHO) entirely the wrong mindset for civilian policing. They included such things as ‘bloused’ boots, high-and-tight or Mohican-style haircuts, leg holsters, military decorations worn on police uniforms, military rank insignia used as police rank insignia, mirror shades, excessive amounts of ammunition prominently displayed, body armour worn over clothing, ‘tactical’ gloves, and so forth. In the intervening time, as I understand, the paramilitary mindset has been greatly expanded as a result of training and a culture that teaches cops that violent death is always right around the corner and they have to be constantly prepared to deploy overwhelming force to save their own lives – all this as crime rates have fallen dramatically and it’s actually never been a safer time to be a cop. They need to work on their driving, much more than they need to worry about being the victims of violence.

    That’s the mindset that leads to continual escalation along a continuum of force and violence which only ever ratchets up, not down. And this is why we end up with large mobs of coppers, heavily armed, beating down doors in the middle of the night to arrest somebody for low-level drug dealing – and, more and more often, breaking down the wrong door to shoot the wrong people.

    Regarding plea bargaining, you wrote:

    ‘Get charged (with good evidence) with Assault 1, with a guidelines sentence of ten years, but get offered a plea to Assault 2 with a three-year sentence because the courts don’t have enough courtrooms or judges to try every case? Great deal.’

    Sure. Now, as you’ve been a public defender, I know you’ve seen this, so perhaps will comment on an alternate scenario, which goes like this:

    Get arrested and charged with CSC1, which carries 10 to 15 years of State time, based on the unsupported word of a cute, white 17-year-old, because the prosecutor is up for re-election and wants all the brownie points he can get with law-and-order voters, and then offered a plea down to CSC3, six months in the County jail, with the not-so-subtle understanding that if you don’t take the deal, you’ll rot in the County jail for longer than that, and lose your home, your job and any prospects you might have left in life waiting for the wheels of justice to grind – and they will grind slowly. And all for a he-said-she-said case that might go either way at trial – but trial is 9 months and $150,000 away. Seem like such a good idea to you?

    We had a case around this way, a couple of years ago now, where the father of a special-needs child was accused of molesting the child based solely on the claims of some bone-in-the-nose ‘facilitated communication’ practitioner. Not a jot of actual evidence, and much of what was claimed could not hold up to simple scrutiny, and yet the guy was tangled up in the CJS for the best part of 5 years. It cost him about-everything he had, as well as his marriage and his entire future. He was offered multiple plea deals, rejected them all, and was finally vindicated. Should he have taken those ‘good deals’?

    Plea bargains work rather well for the factually-guilty, not so well for the factually-innocent. So what you’re proposing is that we tailor our system to make life easier for the guilty. Hmm. I’ll have to think on that for a while.

    For the rest, I think we’re pretty-much on the same page, so will let that go.

    llater,

    llamas

  • Nico

    @llamas: Great examples of plea bargain abuse. This is why I said that DAs should never be elected, and should not be eligible for elected office for some time. We have too “awesome” a tradition of perp-walking and such as a way to burnish an elected official’s popular standing. That sucks.

  • Douglas2

    • Private Prisons: Most of what I see against them is propaganda from the usual suspects: Anti-incarceration generally, unions of employees in state-run prisons, and anti-immigration enforcement in the cases where private facilities have been used to hold those thought to have entered/been-trying-to-enter the US illegally.

    But there is also the corruption in Pennsylvania about 10 years ago where as I recall the prison companies were paying off judges in order to get more convictions and prison sentences: https://en.wikipedia.org/wiki/Kids_for_cash_scandal

    • quota-based policing:
    I’m pretty sure what is meant here is that performance targets for individual officers require them to have a certain number of ‘stops’, a certain number of citations issued, a certain value of fines collected, etc. should be eliminated.
    It’s long been perceived in the US that one is much more likely to get traffic tickets for minor things in the last few days of the month as officers seek to achieve their monthly quota. And such fines (and fees) can be a substantial part of the budget income for towns and courts.

    Examples:
    https://www.governing.com/news/headlines/illinois-will-stop-ticket-quotas.html

    https://www.stltoday.com/news/local/govt-and-politics/lawmakers-put-cuffs-on-missouri-ticket-quotas/article_1719835b-21ef-5c4d-a48e-62d77c8e3adc.html

  • bobby b

    llamas:

    Re: plea bargaining.

    I don’t think your crimsex example does anything for the plea bargaining problem. I think you’re addressing the problems we have with the current hysteria over sexual offenses.

    Let’s assume your 17-year-old vic is complaining, instead, that the defendant burgled her apartment. She has no proof a crime was committed, she can point to no verifiable damage or loss, she has no evidence that the defendant had anything to do with the burglary – she just claims “he entered my dwelling and stole something.” That’s the sum of the case the police present to the prosecutor.

    It gets dropped ASAP. No prosecutor is going to trial with that case.

    But she offers the exact same level of proof about a CSC allegation, and the prosecutor takes it to trial, and the jury might even convict.

    Remove the plea bargaining opportunity from the example and you see that your defendant is no better off. Prohibit plea bargaining in this example. Now, he can only go to trial and roll the dice. He still faces the injustice of a system that will convict him on almost no evidence, merely because it’s a sex offense. The opportunity to plead guilty to some lesser-included and maybe limit his risk is all that he’s lost.

    You might say that he is forced to confront a horrible choice when he gets the chance to plead out – and he is. But that horrible choice isn’t what is really harming him – it’s our current willingness to destroy someone on bare allegations simply because a sex offense has been alleged. If the case really was about burglary, and the defendant didn’t do it, he’d probably be willing to go to trial and risk a higher sentence – because the state has to prove its case, and it presumably can’t, and juries don’t reach to convict people of burglary like they do rape.

  • Nico

    @bobby b: Yes, in the current climate of crimsex hysteria, as you put it, plea bargaining is on net best for the defendant today, and there’s little hope of directly addressing that hysteria. But removing the electoral dynamic from the prosecutor’s motivation would help. Sure, the prosecutor would still feel pressure to bring cases they know they should not, but they would not themselves be the source of that pressure.

  • bobby b

    ” But removing the electoral dynamic from the prosecutor’s motivation would help.”

    I really go back and forth on this one.

    I do agree that letting judges and prosecutors go out and pander for votes doesn’t get us the best choices, especially as Soros loads up his various PACs specifically to affect those races. You can see the results of this as, all across the country, Soros-financed prosecutors drop charges against all rioters.

    But I also have a real problem relying on the sorts of people who might get the opportunity to appoint judges and prosecutors. Today it might be my friend. Tomorrow, it might be Hillary.

    In the end, be they dumb or not, I have to fall back on voters. We just need to work to elect the right people.

  • Paul Marks

    There is nothing on this list that the Democrats and the Government Bureaucracy (but I repeat myself – for they are the same thing) are going to fix.

    For all his faults, and I worked AGAINST him in the Primaries of 2016, President Donald Trump is the only real resistance to bureaucratic powers of the government – local, State or Federal.

    It is not what I wanted – but it is so.

  • Ferox

    There is never a “time” to discuss these things. The enemies of liberty and order are always pulling the “now is not the time” line to address this or that. Let’s start taking the intellectual fight, rather than defaulting to the iron fist mode.

    I don’t really regard myself as an enemy of liberty or order, but whatever.

    My point in saying that was the same point I would make if, in response to some Islamic radicals threatening to cut the throats of some cartoonists, it was suggested that it was a good time to talk about the propriety of outlawing unflattering depictions of religious figures in the press. In other words, maybe a discussion to have someday, but absolutely not when vicious mobs are threatening mayhem in order to induce that very conversation.

    Incentives matter, even for race-hate mobs. Teach them that their lynch tactics are effective and you will see more of those tactics soon enough.

  • Nico

    @bobby b: Appointed judges and DAs will probably be biased in political cases, but maybe not in run-of-the-mill cases, while elected ones will be biased in both.

  • Nico

    @Ferox: This is not us kneeling to BLM. This is us upset at abuses of power, and we were upset at them long before BLM was a thing. Moreover, they don’t want our solutions, and they don’t want any solutions that don’t involve communism. You need to make some distinctions.

  • President Donald Trump is the only real resistance to bureaucratic powers of the government – local, State or Federal.

    Sure, I would prefer the Americans elect a Philosopher-King*, but failing that, electing the Court Jester who simply frustrates the will of my enemies is close enough.

    * – …and wasn’t that meant to be Bullshit Obama, the great African-American saint of the modern world?

  • Ferox

    You need to make some distinctions.

    I do make distinctions. BLM doesn’t care about any solutions at all; their complaints are a pretext to burn, loot, pillage, and lynch.

    But Samizdata hasn’t posted an entry about the right of citizens to defend themselves from mobs using lethal force whether or not the state forbids them to do so, and hasn’t said anything about the absolute statistical reality of race and crime (in the US, at least) which the BLM race-hate movement is exploiting to ginn up violence; instead, this is the moment they choose to talk about reforming the police – in the same instant when the pillaging mob is demanding that the police be defunded or abolished.

    I guess I am wrong, and it’s all a coincidence. So I apologize. But it has at least a bit of the scent of placating the Visigoths by bringing out your gold …

  • bobby b

    “But Samizdata hasn’t posted an entry about the right of citizens to defend themselves from mobs using lethal force whether or not the state forbids them to do so . . . “

    I think we all agree that we do have a right, or claim the intention at least, to defend ourselves from physical harm, that some places allow us to exercise that right, and some places do not and will punish us for doing so. What more can be said on that topic?

    “. . . and hasn’t said anything about the absolute statistical reality of race and crime (in the US, at least) which the BLM race-hate movement is exploiting to ginn up violence . . . “

    Can’t say it any better than this guy did.

    ” . . . instead, this is the moment they choose to talk about reforming the police – in the same instant when the pillaging mob is demanding that the police be defunded or abolished.”

    And a good portion of that discussion concerned why we don’t need such reform beyond firing the trogs.

    “But it has at least a bit of the scent of placating the Visigoths by bringing out your gold …”

    Have some faith. Many will bring out our lead.

  • They came for gold, but all they got was lead.

    Noice.

  • Eric

    This problem, as i understand, is more complex than most of us East of the Atlantic realize. My understanding is that it would be almost impossible to enforce the law in the US without plea bargains. But i am ready to be proven wrong.

    Plea bargains should be illegal. If the people aren’t willing to allocate enough resources to hold a trial, then the charges should be dropped. Resources are a problem for the legislature to deal with, and not an insurmountable one. Lots of other countries manage to run court systems without plea bargains. My contribution to the solution is to say not all reprehensible behavior should be against the law.

    The problem is prosecutors have an incentive to overcharge defendants in order to force a plea. Taking the deal can be the correct thing to do (from a game theory perspective) even if you’re innocent. Nobody knows how many innocent people are rotting away in jail because they thought a guaranteed three to five sounded a lot better than taking a chance on a decades-long sentence. It’s fundamentally hypocritical (and unjust) to pretend everyone gets his day in court and then arrange the system such that you have to be an idiot to actually get your day in court.

  • Eric

    In the intervening time, as I understand, the paramilitary mindset has been greatly expanded as a result of training and a culture that teaches cops that violent death is always right around the corner and they have to be constantly prepared to deploy overwhelming force to save their own lives – all this as crime rates have fallen dramatically and it’s actually never been a safer time to be a cop.

    This is the root of the problem in the US, IMO, and it’s not just training and culture. That stuff is encoded into procedures. About ten years ago someone stole a car and swapped the plates with those belonging to a friend of mine. So he’s driving down the street, gets pulled over, and all of the sudden there are a half dozen cops pointing guns at him and shouting conflicting orders. “Don’t move” and “get down on your knees” at the same time. That kind of thing. They put him face down on a hot street with his nose ground into the pavement, and left him cuffed there for a half hour while they searched his car.

    I can kind of understand it if they had some reason to believe the thief was guilty of other, more serious crimes, or if my friend was behaving in some dodgy manner. But that wasn’t the case – they didn’t have any information at all about the thief (who, of course, they never managed to find). It’s just the way all criminal stops are done in that city, and if you work there as a cop you’ll get written up if you don’t do it that way.

  • With minor qualifications, I’m with bobby b (whose information from experience is most welcome). One minor qualification is the occupational licensing issue. Precisely because it is in our interests to know that electricians, etc., are skilled, the private sector will maintain a form of FYI-licensing without need of more law than “you can’t pretend or conceal”. Another is the thought that no plea bargaining might force fewer laws so courts had enough time to try all murderers – but that is a long discussion and this is already a long thread.

    I’m also with Ferox: now is not the time for any such reform anywhere riots are happening. After their visible defeat, Trump’s re-election or whatever, by all means do anything that is in fact sensible. Meanwhile, there is no harm discussing in Samizdata – we learn and, alas, we do not make policy.

  • Nico

    @NK: Not having ideas ready for deployment when the need comes is a problem. The question of what shall we do will be asked, and Trump (and Biden, or whoever replaces him on the dem ticket) will have to have an answer. Discussing it here is unlikely to help bring ideas to Trump, but it can’t hurt, and we should assume we can have some impact on the larger debate. Moreover, this is our chance to show that we see injustices clearly, even if we agree on almost nothing with the Leninist Left (BLM, Antifa, the dems, the media).

    @John Galt, @Paul Marks:

    I too worked against Trump in the primaries. Fortunately that did not end up being the horrific mistake it could have been.

    I don’t understand the Trump dislike anymore. Yeah, he has a way of speaking that non-New Yorkers dislike (and many New Yorkers too, though many perhaps only because bad orange man bad). But so what:

    Have you noticed that the dems and media (but I repeat myself!) have set many many traps for him to fall into, and each time he’s been smart enough not to? Can you imagine Ted Cruz, or Marco Rubio, or any of the others, failing to fall for each and every trap tended for them? No, that’s flat no. Each of the others would have done much worse than merely fall for a dem trap.

    And why do the dems set so many traps for him? It’s obvious: he was going to (and did) succeed at many things he said he would do, from foreign policy to economics, to draining the swamp and so on. He had and has ideas — obvious to us, yes because they are old ideas that are known to work. The dems have no new ideas, and no old ideas known to work. The contrast of Trump’s successes with the dems’s (and other reps’) past failures was going to be much too bright for the dems to win again for many years. The had to take him down. They had to destroy the economy with unreasonable covid shutdowns. They had to try to impeach. They had to goad him into pardoning Flynn. Etc.

    Please please explain to me like I’m ten, or five, why Trump’s “court jester” style (oh? is he more jester-y than the congressional dems?) should matter anymore given all of the above, and given that the dems are so despereate that they resort to inciting riots and looting?

    And is there someone, anyone of remotely presidential stature who has elite-approved style, non-court-jester-y, and also the right ideas, the strength of his or her convictions, and the will power to see things through, who could possibly have been President instead of Trump?

    Perfection is the enemy of the good enough, yes, and also of the good.

  • Ferox

    oh? is he more jester-y than the congressional dems?

    Maxine Waters and the dimwit members of “the Squad” make Trump look like Cicero.

    Romney is more eloquent but has shown himself to be a disloyal cur with a trembling chin and a propensity to roll over and show his belly when attacked.

    So Trump is the guy … not sure who comes after but perhaps in 2020 at least we can have the entertainment of watching Maddow’s eyes get all watery on election night. Maybe more members of the Very Silly Party will howl in anguish on national TV like they did last time; that’s always good for a hearty laugh as well.

  • Ferox

    And now I see that a black man violently resisted a lawful arrest in Atlanta, seizing a taser from an officer and attempting to shoot him with it before being shot himself in response. A justifiable shoot if ever there was one.

    And the NAACP is saying he was shot for “sleeping in the passenger seat of a car”. That’s some pretty active sleeping if you can shoot a taser at someone while you are doing it.

    Atlanta is burning because the race-hate mob has seized on yet another ridiculous pretext to run riot. TVs will be stolen. Businesses will be burned. Whites and Asians will be attacked by mobs of cheering racists, and the media will play straight-man the whole time and pretend that this was somehow anything other than a completely justified and sensible use of force.

    The West has failed. Bring on the apocalypse. Let the darkness cover all.

  • LEO militarization is a relative concept. It’s a matter of LEOs being exempted from the anti-weapon laws that apply to the rest of us. Police with Glocks are not militarized if private citizens are not prohibited from carrying them too, but are militarized where the law prohibits or heavily restricts Glocks with special exemptions for LEOs. Likewise with AR-15s, select fire M16s, and full-auto Thomson submachine guns.

    No; it’s in no small part about police procurement of surplus military gear including armored vehicles.

  • Nico

    @Ferox: The Atlanta shooting was not justified. The guy did the things you said, which would have justified shooting him at close range, but not when he ran. There’s two issues with shooting him when he ran. First, Americans don’t like people getting shot in the back. Second, there were bystanders and it was night time, which means the officer could have shot a bystander. The officer probably had a major adrenaline rush and couldn’t reason about any of that, but it was still wrong to shoot a man running away armed with just a taser. They had his car, so they would have found and arrested him the next day.

    @Ted S.: Yes, indeed.

  • Nico

    @Ferox: Romney? Remember when the debate moderator intervened to make him look bad, and he couldn’t find his way out of a paper bag? That would never happen with Trump — the man thinks on his feet. Trump’s instincts are fantastic. Romney is much worse than a disloyal cur. He might as well have been a plant, and having been elected he would have buried the Republican party forever.

  • Dyspeptic Curmudgeon

    A lot of the problems with plea bargaining could be obviated, if the prosecutor is limited in the ‘weight’ of the offers on each side of the bargain he offers. If the DA were required to name the offence and the sentence, and was limited *to that offense* and to say no more than twice the sentence, the scales would be much better balanced.

    As it is, the DA says ‘Assault 1 and 5’ or ‘go to trial, Attempted Murder, Assault with intent to commit grievous bodily harm, Assault with a weapon, drug possession, possession with intent to deal, driving while intoxicated (cannabis) and resisting arrest, and we will take your car under “civil” asset forfeiture, oh, and 25 years’

    Hell of a choice of “equivalents”. Must be the new math.

    Most of those charges could well be bogus, but they surely affect a jury’s thoughts about the defendant. It would be a strong step forward, if the withdrawal of a charge during the trial, resulted in a mistrial, so that the defendant got a different jury, which, just as in the case of prior convictions*, they do not know about the bogus add-ons. (* Yes, I know about the problems about that).

  • Nico

    Another possibility regarding plea bargains would be to require that any charge offered must be included if the defendant chooses to go to trial, thus the jury gets to decide to convict on the “under-charge” and acquit on the “over-charge”. This would greatly even the odds for the defendant. With an offer of under-charge the defendant might feel confident about a trial, and might even demand a speedy trial.

    There are some good opportunities for improvements. We’ll have to think some of these things through to avoid unintended consequences (or at least foresee them).

  • bobby b

    Nico: If you’re bored and have some free time, look up “lesser included offenses” on Google. To a limited extent, we already do what you’re suggesting.

    Basically, if the prosecutor charges Assault 1 (the worst), but the allegations of the crime also satisfy the statutory elements of Assault 2, 3, etc., the defendant has the right to have the jury instructed about those specific crimes, and the jury can decide that the evidence shows that one of the lesser crimes is the more appropriate charge.

    Overcharging by the prosecution isn’t just a fun thing for them. It can seriously backfire.

  • Nico

    @bobby b: I’m aware that that’s done often, but my impression is that it’s done because the prosecution fears the jury might not convict of the over-charge if they feel it’s too extreme. If that’s all, then color me unimpressed.

    I’m saying that if the prosecutors over-charge to get a quick-n-easy plea deal, then the defendant must get the option of a trial with the under-charge included, that way if the prosecution really was over-charging, then the jury can flip them the finger and convict of no more than the under-charges.

    99% of all cases don’t go to trial, so I assume prosecutors (and courts) really, but really really really want those easy plea deal cases. That 99% figure implies something of an infallible prosecution machine, which frankly, is an obscene idea. Yes, obscene.

    My proposal would mean that when the prosecution has overwhelming evidence, the defendant will take the plea deal, and when the defendant really is innocent, they’ll be much more likely to want to go to trial — the jury might still convict of the over-charges, but since it can also convict of just the under-charges, it may well do that and acquit on the over-charges. That’s a chance an innocent defendant will be much more likely to want to take.

    But this won’t happen. It won’t happen because if the rate of cases going to trial even doubles to 2%, the courts will melt down.

    That’s the dirty secret here. We have built a shit justice system, one built around the imperative of convicting almost all defendants, with the implied and obscene assumption of prosecutor infallibility. It’s like this because we have not sized the courts and prosecutors according to the load a more just justice system would have. There’s a disconnect between what the public wants prosecuted and what the public is willing to fund, and that is because the public keeps voting for politicians who promise to fund things other than justice at a much higher priority than justice.

    As well, because we don’t instruct juries about their unlimited right to acquit, and we don’t allow them to be told of this, juries don’t know they can refuse to convict for lesser crimes. We’ve truly trashed the Founders’ scheme. For that matter, the UK too has trashed the Magna Carta. Without Freedom Under the Law of the Land, what do we have?

    When we fight to preserve Western Civ., one of the things we must fight for is to restore some of these jewels of the past that we’ve abandoned by accident.

Leave a Reply

You can use these HTML tags

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>