A few rough, random and spicy thoughts on crime, justice and justice systems that I've been chewing over

Even bad people need friends

Everyone except me seems to think it’s a scumbag move to give a character reference to a court for someone convicted of one of The Bad Crimes (Murder, Rape, Kidnapping, etc.) Periodically, there will be a scandal because this or that politician or celebrity wrote a character reference for someone accused of grievous crimes.

First of all, the idea that those convicted of such crimes should stand before the court Homo Sacer- with no attempt to highlight their own good qualities or redeeming features, is strange. There are gradients of wickedness- big differences- even among those who have done awful things. The defense has a right to highlight their positive attributes, and people who have evidence to contribute should do so. Someone might be going to jail for many years but only rarely will someone be sent to prison forever, so the question is exactly how many years. It is good that the court have relevant information on an overall character, and it is bad to deny the accused whatever limited succor their past good deeds entitle them to.

To give a character reference to a rapist or murderer isn’t to assert that they’re not a scumbag- it’s to explain that you had positive experiences with them and that there are positive aspects to their character. The obvious truisms apply We are all multifaceted- the line between good and evil goes through every person etc. etc.. So long as these statements are honest, making sure the court has that information is a service to the public. Far from being a poor reflection on someone’s character, speaking up by one who is hated by everyone is courageous and typically carries no rewards and many dangers.

In general, I don’t think the demand that people stop associating with the guilty is reasonable or just, and I take it this is an example of that broader attitude. I don’t think bad people should have no friends. I suspect this reduces the chances of their rehabilitation. I also regard it as not too dissimilar, say, to denying them food. Of course, no particular individual is obligated to associate with the very bad, but no one should be punished for doing so.

The idea of being disavowed by everyone who knows what one has done and pushed to the edge of society is sometimes called social death. I am opposed to the social death penalty for much the same reason I am opposed to the death penalty. I believe in the dignity of humanity. I suppose when I stopped believing in God, I stopped believing that humans were made in his image, but I never stopped believing they should be treated like they are.

I also have a somewhat more abstract worry about the idea of a “social death sentence”- the demand that those convicted of very wrong acts undergo a kind of social internal exile. It has been suggested that the real death sentence makes criminals more ruthless- more likely to kill their victims, and more likely to use threats to cover up their actions, etc., etc. I think I personally know of many cases where pretty ruthless behavior has arisen from the incentives created by a social death sentence.

In three cases over my life (quite a lot!), I have seen pairs of people I know accuse each other of abuse or sexual assault. Assuming, as seems likely, that one of the pair was lying and the other telling the truth, I can’t help but wonder if this situation arose, at least in part from a culture where A) To be found to have done such things threatened a social death penalty B) The gap between someone having made the accusation that a X had done Y, and X being held by the community as having done Y was very slim, making counter accusations the only effective defense against having one’s name erased from the book of life etc. Of course, it’s hard to see what the alternative is particularly in a group that, while it constituted a ‘scene’ was ultimately a network of friends. People generally don’t want to associate with people who have done horrible things to their friends, so what exactly an alternative model to the localized social death penalty is in a social circle setting I’m not sure. What I do know is that the mutual accusations certainly were a regrettable outcome, and one likely to deter people from telling others about awful things that had happened to them.

More generally, a lot of talk on the subject of very bad actions has the air of people trying to identify groups who deserve infinite scorn so they can enjoy pouring out that scorn, and showcase their virtue in doing so. At best, it’s a bit sad, at worst, it suggests deep and dangerous flaws.

Abolitionism versus “doing the hard work”

Somewhat expanding on the above, it really bothers me when people who call themselves abolitionists, at the first sign of someone who has actually done something undeniably wrong basically just want to get rid of them. In extreme cases, this manifests itself in so-called prison abolitionists who support just killing anyone who has done something over a certain threshold of wickedness. I worry that prison abolitionism acts as a mental block that stops people from thinking about the hard issues of justice, and we see this when confronted with obvious wrongdoing, the abolitionist simply reverts to maximal rage.

Skepticism of punishment- not in the sense of thinking that most of those punished have done nothing wrong, but in the sense of recognizing that there are real wrongdoers and wanting to punish them as little as possible is such a rare attitude. Most people who think they’re skeptical of punishment just convince themselves that what was done wasn’t so bad. In many cases, this is indeed true, and it is admirable to notice that not all of those punished by society did anything terribly wrong, but recognizing that someone did something terribly wrong, knowing that something must be done, but also still wanting them to be part of the human community is rare.

I think I’ve finally realized what’s going on. A lot of people think that to forgive X is to excuse X- is to come to see X as is in some way ‘defensible’ even if it is not right. But to think this is to miss the whole point of mercy in the deepest sense to be merciful is not to excuse, it is to refuse to exclude utterly, despite the presence of the inexcusable.

I sometimes wonder about radical methods for altering a person’s character to make them more benificient- future drugs, neurosurgeries, etc. Most people, when I tell them this, suggest it is a dystopian nightmare. I guess in a way it is, but it seems like it might be less nightmarish than our current system where a surprisingly long list of misdeeds generally means someone will never be welcome in the human community again. If we really buy the argument- and I think we should- that no one should be beyond redemption, and in as far as it is possible, nothing should ever be lost forever, then perhaps in some cases the only way to fulfill that should is technological. To take a gravely serious case- can you imagine a way that someone like Chris Watts could in any real sense part of the human community again without some kind of alteration? Quite sensibly no one would be likely to take his statements of reform seriously otherwise. I find the absence of such a measure sad it is terrible when anyone is no longer part of the human community.

Of course, if such a measure existed, then even if it weren’t actually compulsory it might become de facto compulsory for those who wanted to reintegrate, but I tend to think that’s worth the cost, given how dreadful the state of moral exclusion is. My greatest fear is such technologies being used to create social compliance among the harmless, but I don’t think this should affect our evaluation of the justice of using these technologies in and of themselves.

There’s not enough work on the ethics of psychological-alteration generally.

The right not to be convicted for bullshit

Often people pose specific rights claims against certain prosecutions- e.g. a right to sexual privacy protects homosexual acts between consenting adults, a right to religious freedom means you can’t prosecute me for practicing my religion, etc.

Yet there are always cases that we see where this or that person is convicted for something they shouldn’t be convicted for but not in violation of any specific right. Often this comes when the legislature passes a silly law on the promise that of course it will only be used with the greatest discretion, and then some fuckwit cop or prosecutor misuses it.

Consider the NSW consorting law if you want an example:

Consorting laws allow police to charge people simply for associating with someone [previously convicted of a crime] who is named in a warning, even where there is no unlawful intention or criminal purpose. The material in brackets was added by me.

Parliament promised it would only be used with the greatest of discretion etc. etc to stop organized crime etc. etc. etc.. it was immediately used by some cop against a poor sod with a criminal history and an intellectual disability who was hanging out with his also previously convicted mates who he had known from primary school. First case ever, as far as I can recall. Even more shameful than the cop’s behavior in my view, was the magistrate’s cooperation in giving a custodial sentence.

Parliaments aren’t going to stop passing stupid laws. I suggest that even when one is trying very hard to make a good law not prone to technical violations, one can fail. I suggest any specific system of rights will not cover certain cases. Further, it seems to be an awful injustice to be convicted of a serious crime for doing something that just isn’t that bad. It’s morally worse than punishing someone who didn’t actually do it by mistake, because at least in such a case society has the defense of an honest mistake.

Here’s what I’d do. A right, present in law, which either a judge or jury can invoke:

The right not to be convicted for a crime where almost any reasonable person would find that conviction unjust, and the right not to be punished in a way that almost any reasonable person would find unjust.

This, to me, is the ur right at criminal law, yet I have never heard it asserted explicitly. It often seems like what people are reaching for through the concept of jury nullification.

In practice, this looks like a power to nullify a case on the basis that reasonable people would not assent to that application of the law. For juries, this is jury nullification, but for judges, such a power has not yet, to my knowledge been proposed. Often judges (and juries!) make torturous arguments and decisions about law and facts in order to avoid getting an unjust result, but much rests on whether or not you get a judge (or jury) willing to do that.

Such acquittals, at least when made by a judge and not a jury, would need to be reviewable, as acquittals on the basis of law rather than fact are in most jurisdictions. Exactly what the standard should be for overturning such a finding on appeal, I’m not certain. When such an acquittal is made by a jury it should I think, require a majority, but not unanimous support.

I recognize that, for some, this power will seem likely to be abused, especially by judges, but so long as there is the possibility of appealing any such acquittal, I don’t see it as any more sweeping than the already enormous powers held by judges. The evil it aims to remedy of absurd convictions for serious crimes caused by innocent or largely innocent behavior is severe and pretty common at least in an absolute sense.

I think it would have some salutary effects. At the moment, there is very little to discourage prosecutors from pursuing cases where the evidence is strong, and the law was clearly broken, but the action wasn’t malicious. The terror of the embarrassment of such a finding would put some useful fear into them. If the magistrate had had the option of rejecting this application of the law because it was stupid, or the appellate judge had been able to reject this application of the law on similar grounds, the prosecuted (who was eventually released on somewhat torturous legal reasoning) might have gotten justice quicker. Better, parliament might have put some more thought into writing the law in such a way as to avoid the embarrassment of that finding, or the police prosecutors might have thought twice.

Obviously there are a lot of implementation issues [does this mean the jury will have to be able to review a wider array of evidence than they might otherwise, etc. etc.] I don’t think these are serious enough to sink the idea. I also think a measure like this restores the democratic purpose of juries. I am much less interested in the ordinary person’s view of the factual minutiae than I am in the ordinary person’s view of justice, and if the jury is meant to act as a check on the potentially tyrannical state, this seems the way to do it.

There is a chance parliament might react to this law as follows: “This is great! Now we can criminalize everything and let the courts sort it out!” but I think countermeasures to prevent this are possible. The crucial thing is that it must be seen as an embarrassment to the lawmakers, anytime such a finding is made. I can imagine that this might interact badly with highly politicized judiciaries, like those in the United States, but politicized judiciaries are a much broader problem.

Why don’t more people know about this

Short bleg (please read)

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