This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
Oregon Goes To The Purge
Some quick background: the Eight Amendment of the United States Constitution guarantees a right "to have the Assistance of Counsel for his defence" in some criminal trials at certain stages of the trial. There's a whole lot of complexity of where and how that applies, but for those who can't afford a lawyer of their own, for covered crimes, the state eventually evaluates whether the defendant is indigent, and if so appoints a public defender, eg @ymeshkout. But this is neither glamorous, fun, well-paying, or even particularly safe work, so there is seldom a glut of people jumping up and down to do that job.
In 2019, a group called the Sixth Amendment Center was commissioned by Oregon state to review the public defence office, and their final report was highly critical, highlighting heavy workloads and huge pressures to close cases with as few hours as possible. Public defenders in Oregon began (or more cynically, were, given the 6AC report) lobbying for changes to their maximum caseloads and reimbursements, and while it's not accidental that their solution would have involved getting more pay for less work, this eventually did get a cap on maximum cases and some additional funding, targeting an estimated 30ish full-time employees added to 400 then-present. During COVID, a combination of increased juggling of cases due to the slower pace of concluding trials, varying treatments of different classes of crime, (and interpersonal issues) only added to the matter; case backlogs became the norm, instead of a rare exception.
In this case, the jailed plaintiffs argued that they were facing the court without competent counsel, or being held indefinitely before trial, due to the lack of indigent defense available. In several cases, they were arraigned and/or had bail hearings without having seen a defense lawyer.
And as a result, the federal judiciary will be letting them loose on the streets, with a pinky promise to arrest them harder should they reoffend.
That title isn't entirely fair. While the original district court injunction required jails to free anyone who'd been jailed seven days without an attorney, the order was later revised to exclude those "charged with murder and aggravated murder", or who have their release revoked, or who fired their own attorney. And at least theoretically, non-jail custody is still on the table, such as GPS monitoring or probation check-ins, though the majority opinion's logic about their effectiveness ("The dissent does not explain why any of these standard measures would fail") is not the most compelling.
But with the class certification, this applies to all jailed defendants within the state of Oregon and the court not-so-subtly invites further such preliminary injunctions from other states in the 9th Circuit ("The State of Washington is facing similar problems and consequences"). While the initial class claims 'only' a little over a hundred defendants presently jailed, the injunction itself is prospective, binding all future criminal prosecutions, with the corresponding impact on any police or prosecutor interest in bringing such charges.
There's some obvious system failure/'sleepwalking into disaster' problems, here: the opinion jabs at the dissent near its end with "Consistent with the Sixth Amendment, Oregon could solve this problem overnight simply by paying appointed counsel a better wage. It is Oregon, and not the district court, that created this crisis." The dissent points out in turn that yes, Oregon could pay appointed counsel more, and if that would solve things overnight, why not order that instead?
((Because the current plan involves increasing pay and additional hiring of almost five hundred new public defenders over the next 6 years, which would double the public defender full-time staff, while absolutely no one retires, moves away, or leaves public defense. Hilariously optimistic and too late!))
But this genuinely is the sorta thing that can be solved, but probably not in any magic wand sorta way. Six years is a pretty unrealistically optimistic pace for the hiring of five hundred public defenders, but if they'd started in 2019 and then put a stricter limit on caseloads, we'd at least be a lot closer to an actual fix, and even recognizing the benefit of hindsight looking back and seeing 'public defense bill with strong bipartisan support derailed over climate change bill that did nothing' is kinda morbid. It's hard to get good numbers on how many public defenders work different classes of cases, or even what classes of cases fall under each category, but it's also hard to believe that there's been a great focus on optimal allocation of present public defense resources.
I guess this is someone's idea of solving it? Which points, perhaps, to a more critical problem than even the "sleepwalking into disaster" bit: even if someone else does respond, you might not like their response.
There's a little bit to quibble about on the logic of the decision itself, most notably as to whether the delays so far were unreasonable enough to require, or that the court hearings so far 'matter' in a way that the Eight Amendment counts -- it's very far from clear that bail hearings would have looked that different with counsel present, given the defendants. There's a lot to be said about motivations: no small number of the actors here are pretty hard on the 'eliminate cash bail' train, and a few want that as part of "limiting the reliance on the formal criminal justice system for low-level, non-violent offense". I can't find direct calls to Defund the Police by the less reputable orgs involved, but I also haven't exactly gone searching.
On the other hand, just because they're bad in other ways, doesn't mean that they're wrong here. There's little to recommend the phrase "The court required Mr. Owens to waive counsel at that hearing in order for the court to consider releasing him". While many of the plaintiffs face potential sentences exceeding their likely time in jail before trial, the mere possibility of pre-trial time served exceeding a sentence -- of 'sentence first, verdict afterwards' -- makes an absolute mockery of the justice system.
Even if we were to presume the majority of these jailed plaintiffs guilty (which we're not supposed to do, and there's a slim chance may even be incorrect), there's a bigger problem where thousands of indigent defendants who were released on various bails or supervisory custody already, for court cases that will happen whenever the state gets around to actually having two sides, which means a sizable fraction of those cases probably won't happen. Witnesses will age out or become unavailable or their memories unreliable, doubt increases, chain of custody for physical evidence becomes increasingly tangled, so on. There is actually a federal statutory public interest in a speedy trial, and it's there for a reason.
There are even some dumb culture war matters. People following the Trump trial in New York were trying to game theory out timelines approaches for federal appeals and kept getting stuck on Younger abstention. Here, definitionally, all jailed plaintiffs were in the first stages of a state prosecution and thus unable to get relief in a federal court, but the Ninth Circuit has given a delightfully fast answer to that: Younger is already screwed when it's Important, "even assuming all four factors set forth... are met".
I mean, letting them loose kind of is the legal thing to do under the circumstances.
I think this kind of situation probably calls for a declaration of emergency, though, or failing that opening the floodgates on gun control and self-defence so that robbery becomes a "die horribly the third time you try it" proposition. If you re-enact the Wild West you'll re-enact vigilance committees, and if you can't avoid that the best option for governmental legitimacy is to get the hell out of their way.
More options
Context Copy link
I think the costs on society for a criminal trial are likely high:
I find the system to pressure defendants into guilty pleas by threatening them with much longer sentences if they insist on their constitutional right to trial by jury abominable. Giving them a discount of 10% of their sentence if the case is clear-cut as a cost saving measure might be reasonable, but any more than that seems silly. If your suspect is guilty of a crime which will earn them ten years, don't offer them a plea deal for three years, just drag them in front of a jury. And if you have reasonable doubts that they are guilty of the ten year offense, don't threaten them with it.
I would be surprised if the public defenders cost more than a third of the expected total costs of a criminal trial. (In fact, I think that there is an argument to be made that the prosecutor and the defender should receive roughly equal compensation -- both are experts which will require a similar amount of time to familiarize themselves with the case, and paying one side more than the other will skew the results.)
If a state can't afford a separate prosecutor and judge, it can't afford a justice system.
If a state can't afford a defender, it can't afford a justice system.
I've got a copy of Stuntz's The Collapse of American Criminal Justice, so one big issue immediately comes to mind. The problem is that however good this might sound, and however abominable threatening longer sentences for exercising one's right to a jury trial may be, we're just not able to do this.
It's hard to get exact numbers, because most the data is on plea bargains as a fraction of convictions rather than of defendants, so you need to find the overall conviction rates — and thus acquittal rates — to compute that, and it's somewhat harder to find (and varies from state to state). But for the Federal government, you've got plea bargains at 98% of convictions, combined with a (2012) 93% overall conviction rate, to give something like 91% of all Federal criminal defendants pleading guilty. For the states, these numbers are a bit lower, something like 95% of convictions; which, for example, Texas, with an 84% average conviction rate (higher for misdemeanors than felonies), gives approximately 80% of all criminal defendants pleading out.
Thus, if something like one out of every nine Federal defendants who would currently take a plea deal insisted on a trial, you'd double the number of trials. If half of them did so, the number of trials would increase sixfold. (Similarly, one quarter of Texas plea-takers choosing trial to double trials, and half choosing juries would triple the court cases.)
Our systems already strained, overloaded, and prone to long delays with just the load it has now. I can't see any path to the vast expansion that would be necessary if any significant fraction more insisted on their day in court.
Now, the usual answer many people give to this issue is that we need to find a way to reduce the load by charging fewer things as crimes. While you might get some traction there at the Federal level, the problem is then that there isn't really all that much of the "Three Felonies a Day"-type offenses. Even the "mere drug possession"* cases make up a much smaller fraction of convictions than many people think. The bulk of felonies remain things like murder, assault, theft, rape, etc. that pretty much every society criminalizes. In this very example, we're already seeing many offenders of this sort being "let loose on the streets" — can we really picture even more "legalizing crime" than we already have?
Yes, that's exactly the point — with the crime rates of the current American population, we really can't afford a traditional Anglo-American justice system.
This is a point I've been talking about online for years. When you look at things like police per capita, police funding, prisoners per capita, and then set them against violent crime per capita, and compare internationally, the US winds up an unusual outlier — because we, pretty much uniquely, combine the police force of a wealthy "first world" nation… and the crime rates of a "third word" one. On the prisoner/crime ratio, we come out as locking up less of our criminals than many European nations… it's just that we have a crime rate many times higher. On Wikipedia's list of intentional homicide rate per 100,000 people (a proxy for violent crime in general), the United States sits right between Zimbabwe** and Yemen. It's four times higher than in France, over five times higher than that of the UK or Finland, eight times that of Germany, and thirty-two times that of Japan.
To change our current situation, we're looking at radically reforming and vastly expanding our entire justice system (and associated expenditure), or else the population either turning to non-state methods of addressing crime.
* It's my understanding that in many cases where an individual is convicted and sentenced for just illegal drug or gun possession, it's because they were also charged with other, more violent offenses and pled down to those — the plea bargain going in that direction because crimes of possession are the easiest, relatively, to prove in court — thus making the odds of losing in court the highest, and the value for the defendant of pursuing a jury trial the lowest — while the other charges would likely involve attempting to elicit testimony from victims and witnesses who live in communities where "snitches get stitches" and such.
** Where, recently, police were reportedly driven from a police station by goblins.
More options
Context Copy link
More options
Context Copy link
It seems like a widespread problem in the US that public defenders get paid like shit, even though most of them have huge loans from law school. Or more generally: the people who need a lawyer the most are also the people least able to afford one.
A federal government program that pays off law school after 10 years as a full-time public defender (and covers most interest in the meantime) seems reasonable. Or just a scholarship for people with high LSAT scores that covers full tuition in exchange for x years of service, with clawback provisions.
As gattsuru mentioned - this program does exist on the federal level. The problem with it is that (A) there is a question of whether it will still exist in 10 years when you need all your debt forgiven, and (B) the $150-250,000 it ends up forgiving is frankly peanuts compared to the $225,000 starting annual salary BigLaw firms are offering. So, you could go work as a Public Defender for $70,000 a year and by year ten maybe break six figures in exchange for what can be called a single lump sum payment of $250,000 - or you could go work at Dewey Screwem and Howe for $225,000 a year and in a decade be making half a million a year.
So while Public Service Loan Forgiveness (PSLF) does attract people to prosecutor and public defender's offices (myself, to name one), it will struggle to attract the highest qualified law students who graduated from the top law schools. BigLaw slots are generally limited to the top 20% or so of all law students in the country, so it's not drawing away everyone, but it is drawing away the vast majority of the classes at Harvard, Yale, and Stanford, and the top 10% of everyone in the top 50 law schools in the country.
More options
Context Copy link
Some similar programs exist in many states and federal law, albeit with a few additional requirements. They have downsides -- they unavoidably attract younger lawyers with less trial experience -- but they're better than not having the programs.
There are increasing efforts to increase pay (eg, see the costs analysis assumptions for the Oregon bulk expansion).
But the money is only one side of the problem: public defense remains extremely unglamorous, unfun, unpleasant, and often unsafe work. Ymeskhout can point to clients who've stalked their public defenders, and it goes up pretty quickly from there.
More options
Context Copy link
More options
Context Copy link
It's too bad reading the law isn't a more popular option for people to enter into the legal profession. Would provide both a huge boost in manpower available to assist with high time things like public defense and eventually create a larger pool of attorneys with more relevant experience to make a trial system work.
More options
Context Copy link
More options
Context Copy link
In general, I think there is some respect for both Federalism and separation of powers more broadly that would prevent a Federal Court from mandating such a thing, not least because it would be unclear what would fund it.
From a reach perspective, telling Oregon that it cannot jail people except consistent with (their view, I disagree, obviously) of the Constitution is the most clean judicial remedy. This is much like the prison-conditions litigation in other States -- the courts cannot build and administer more prisons, so the only thing they can do for overcrowding is give the State a cap. (Strained analogy, but you get my point).
This might be the plaintiffs' downfall. This Court absolutely loves procedural rulings.
More options
Context Copy link
Sixth. The eighth is cruel and unusual punishment. The sixth amendment provides the right to "have the assistance of counsel for [ ] defense."
More options
Context Copy link
I have essentially no sympathy for the government. This is a problem of their own creation. "Yes your honor, we failed our constitutional obligation to ensure criminal defendants have adequate representation but the correct remedy is we can hold these people in jail forever until we get around to fulfilling that obligation."
Maybe.
Alternately, the problem is that civilization is unravelling. The systems in place that work when incidents of crime similar are to Japan break down quickly when the incidents of crime approach that of Haiti. You can't scale a system of public defenders in response to exponential increases in criminality.
I looked up the county I grew up in old FBI statistics. There were 0 to 1 murders a year. These days it's over 100. Per capita it probably hasn't changed as much as that might imply as the population grew a lot. Even so, it began having some serious issues with crime that didn't come out in the wash of "per capita" hand waving.
It would be nice if we got a Bukele that would re-civilize our cities, but I'm pretty sure the felon, aspiring felon, and felon sympathetic demographic has just grown too strong. Can't think of any other reason so many cities have adopted policies of "decriminalizing" theft and lesser assaults.
I don't understand the problem. If your population grows by a factor of 100, you will need to raise the number of policemen and lawyers also by a factor of 100, which you should be able to do because the number of taxpayers also increased by a factor of 100.
The population did not grow by a factor of 100.
Also, the pipeline of qualified candidates to maintain civilization does not grow as fast as unchecked 3rd world immigration, even if the bureaucracy could grow at that pace. 3rd world behavior fills the gaps.
More options
Context Copy link
More options
Context Copy link
Welfare state + ageing population -> reduced resources for anything else, including law & order and defence (ironically, what a classical liberal would regard as close to the entire purposes of the state).
More options
Context Copy link
Many of our criminals aren't so dumb as to tattoo their criminal status on their skin.
A whole lot of them are dumb enough to make their membership in criminal gangs public in other ways, like social media posts and rap songs.
But we can't even criminalize gang loitering, see Chicago v. Morales. Mere membership is likely going to be a protected First Amendment right to association. Bukele doesn't have this problem.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
Not without having them parade through the US Capitol building first.
I don’t get it. What’s the connection, here?
He's suggesting they'd be in prison if they were right-wing protesters rather than random criminals.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link