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Culture War Roundup for the week of September 23, 2024

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The US has a tradition of "punishing" prosecutorial doofusery by letting guilty criminals go rather than, say, getting the marshall to paddle the delinquent prosecutor in open Court.

This is the part I genuinely like best about the US justice system. It is a brilliant work alignment which penalizes a partisan investigative and prosecutorial system for misconduct in a way which really hurts their utility function.

If you imposed some penalty on misconduct, the result will be that people who cut corners to secure the conviction will be regarded as heroes who sacrificed their career, money, or liberty to put a murderer behind bars. With 'evidence becomes inadmissible' etc, these people are more likely to be considered assholes who ruined a lengthy team effort and enabled the murderer to get off 'on a technicality'.

But what’s annoying is that these rules shield the guilty; not the innocent who have their rights trampled.

Why do these reasons justify punishing the public for the mistakes of the prosecutor? If a guilty man gets released and then immediately victimizes another person (as so frequently happens) am I supposed to believe this is a good outcome because the prosecutor was (hopefully) chastened by this outcome? What if I or a loved one was the person who was victimized? Should I see this as worth it in order to incentivize diligence by prosecutors? Why should I have to suffer for their mistakes?

If you live in a society of laws, you are already not optimizing for preventing victimization. Our loss function is not the sum of innocent police victims and crime victims. If we gave police the powers to kill on sight anyone who they were reasonably sure was a reasonably bad person, it could well be that the number of crime victims saved would be higher than the number of innocents summarily executed by police. But such police states tend to devolve into dictatorships in pretty short order, because there is little in the way of safeguards. This frequently leads to a much higher loss of life down the road.

While it is not commonly admitted, I will grant you that the price we pay for living in a non-totalitarian society where laws impose restrictions on the state is paid (among other things) in victims to crimes which would technically be preventable if we tapped every device and abolished due process.

If we accept that this is the way society sets its priorities, then sacrificing a few more future crime victims to safeguard due process against prosecutorial misconduct just seems more of the same.

Of course, we can debate the exact boundaries for throwing a court case out. Fucking your co-council is generally not the sort of misconduct which sees the defendant walk free, but tampering with witnesses or evidence would be different.

Generally, there are some professions in society where unprofessional conduct can result in innocents losing their lives. We rely on physicians, truck drivers, electricians and so on to do their job reasonably well. The only difference with police and prosecutors is that society would technically be in a position to prevent loss of life due to their fuck-ups after it becomes apparent. But again, this is a price consistent with the priorities of a society of laws.

It creates incentives for the prosecutor not to do this. You or a loved one could also be the person who the prosecutor was discouraged from framing. Of course this is a seen versus unseen fallacy; it's impossible to see that you escaped being railroaded by a prosecutor because he was discouraged from doing so by the rules, while it's easy to see if you are victimized by a criminal who gets let go.

In part because (in the US, anyway) we prioritize innocent men going free over guilty men going to jail. Sufficiently advanced incompetence is indistinguishable from malice; sufficiently advanced malice is indistinguishable from incompetence; if a prosecutor does something sufficiently malicious or incompetent like "refusing to disclose exculpatory evidence" it creates a credible concern the accused is innocent and the prosecutor is framing him. The "what if I" question can be flipped on its head: what if you or a loved one was railroaded by the state? Obviously a single murderer going free on a technicality is bad, but a bad prosecutor prosecuting the wrong person is worse, since it casts the entire legal system into question (bad for society) and lets a single murderer go free (bad for justice and society) and potentially puts the wrong person in prison (bad for that person, at a minimum).

Now, I'm not a pro-releasing-murderers-to-kill-again guy. Obviously the goal here should be competent prosecution that

  1. doesn't prosecute innocent people
  2. does successfully prosecute guilty people

But I think there's a good reason for tossing (or, perhaps less problematically, retrying) cases if the prosecution is bad enough. ETA: I also sometimes suspect that bad prosecutors get off too easily by just having their cases tossed, so perhaps there's room to improve the status quo by creating additional negative incentives for prosecutorial misconduct.

The "what if I" question can be flipped on its head: what if you or a loved one was railroaded by the state?

The odds of this are astronomically low, even in a hypothetical state that is significantly more authoritarian than the one in which we currently live. I, like every member of my family, is a productive and law-abiding citizen. Nobody in my living extended family, so far as I’m aware, has ever been arrested, ever charged with even a minor crime, etc. There just isn’t anything about their or my behavior that would incentivize the government to go through the trouble of railroading them, not anything that could be credibly pinned on them that a government could use to railroad them or me.

Ultimately that’s the calculation that underpins my rejection of slippery slope arguments about harsh justice. It’s the same reason I reject John Rawls’ Veil of Ignorance. I know who I am, I know what my family is like, I am very confident that the risk to me and mine presented by a loosening of prosecutorial standards is extremely low, so it doesn’t worry me. Any knock-on effects created as a result of reducing the number of hoops prosecutors need to jump through are unlikely to redound onto normal citizens, but are likely to redound onto the sort of people who deserve it anyway. In other words, I do trust the justice system to keep the welfare of normal law-abiding people in mind, and to appreciate the natural disincentives against corruption and malice built into the psyche of conscientious and intelligent individuals.

Many commentators of a more libertarian bent are, I’m sure, going to implore me to consider the possibility that the current “woke” regime will use the powers I’m recommending to persecute random white men and bend the rules for guilty blacks. They’ll point to the treatment of J6 defendants, or to the prosecution of right-wing demonstrators and Twitter users in the UK and Europe.

Well, while those things are bad, I still believe the tradeoff is still worth it. I believe that it’s more important to preserve state and law enforcement capability so that people with my politics can seize it and use it for our purposes, than it is to dismantle or hobble state and law enforcement capability to ensure it doesn’t fall into the hands of my enemies.

The odds of this are astronomically low

They might be, for you, depending on where you live, but I suspect they aren't as low as you think. I come from a background much the same as you, but I had a family member get cited for hunting with an illegal shotgun. Game warden jumped the fence onto private property to inspect the firearm (a search with no warrant or probable cause, which ordinarily would be extremely unlawful but game wardens get special dispensation to violate normal Constitutional precepts.) Did my family member have a blocker installed in the tube (the typical way of ensuring compliance)? Yes. Was he hunting with more shells than legally allowed? No. Was the warden able to force an extra shell in because the blocker was slightly too short? Yes.

The amount of "trouble" the warden had to go through to issue a ticket for ~no reason was considerable (and frankly I think he put himself in actual physical danger by jumping people's fences like that, you don't know what's on the other side) but cops and prosecutors are incentivized to "catch" people. Expanding the circle a bit wider to issues I have much less knowledge about, I had a classmate at college whose friend went to prison for rape. Girl later copped to lying about it. Did my classmate's friend get out of prison? Nope (and as far as I know there were no legal consequences for the accuser, either, but I didn't keep up with the story).

Is this all anecdata? Sure. I could pull up real data, but I think you'd claim that it was poisoned by specious anti-cop organizations. And I might not even disagree with you on that. I've even had fairly good experiences with law enforcement types, and I'm not about to go on an unhinged anti-cop rant. I just don't think police and prosecutors are really different from anyone else.

my rejection of slippery slope arguments about harsh justice

Well, I'm not arguing against harsh justice. I'm fine with executing murderers. I'd be okay if we executed more people (a lot more people). If we can be confident that the right people have been caught for the right crimes, I have no problem with harsh justice. If you want to argue that a single bad prosecutor shouldn't automatically result in release of a prisoner, that's fine – and my understanding is that it doesn't; retrials exist for a reason – but I suspect pragmatically the reason accused criminals so often walk due to prosecutorial misconduct is that past prosecutorial misconduct is an excellent way to introduce doubt in the mind of the jury on retrial. (Perhaps some actual lawyers here can weigh in.)

I do trust the justice system to keep the welfare of normal law-abiding people in mind, and to appreciate the natural disincentives against corruption and malice built into the psyche of conscientious and intelligent individuals.

I don't think that police officers – whose reporting is what prosecutors and judges rely on – are particularly conscientious or intelligent – probably on average less intelligent than college graduates. In my personal experiences speaking to people in the military and law enforcement (and related careers, such as firefighting) I get the impression or "vibe" that what you might call petty corruption is fairly commonplace. Prosecutors I would guess are probably more intelligent than police officers (law school filter) but that does not make them any less corrupt than other intelligent individuals (see the long catalogue of PhDs who keep getting busted for outright fraud despite every reason not to commit outright fraud.)

My point here isn't that cops and prosecutors are bad people. They're probably slightly better than average levels of badness. But they're people people and you can't just trust to their natural disincentives against corruption and malice.

my politics can seize it

I don't think that's how these sorts of things work. Whose politics is in control of the FBI? No, the answer isn't "woke," the answer is "the FBI." Whose politics is in control of the Los Angeles County Sheriff's Department? The answer isn't "woke," the answer (apparently) is "literal organized criminal gangs."

What I think people often fail to consider is that all power structures develop their own interests and they pursue them independent of what the people nominally in charge of them believe. And it is in the best interest of society to properly align prosecutors (and cops) to exercise basic competence, to actually catch the right people, and to avoid imprisoning innocent ones.

My point here isn't that cops and prosecutors are bad people. They're probably slightly better than average levels of badness

Cops have to be squeaky clean, so they’re probably much more virtuous than the general population of ‘males with an associates degree’(and most police have some college and all of them have police academy, so it’s probably the rough equivalent) because less virtuous people do things like experiment with drugs that preclude entering the police force.

Broadly agree, but it is worth noting that as far as I can tell past drug experimentation is not a hard bar to entering the police force, and being convicted of crimes is not a guaranteed bar to continuing to serve on a police force.

You don't maximize public benefit by hill-climbing the local righteousness gradient. You have to look at the second and third order implications of policy. A culture of prosecutorial fair play benefits the public in global ways that the earlier incarceration of some lowlife at the margin does not.

A culture of prosecutorial fair play benefits the public in global ways that the earlier incarceration of some lowlife at the margin does not.

First off, I’m not actually certain this is true. I think that a lot of this country’s jurisprudential traditions - particularly the ones introduced from the time of the Warren Court up until the present - create unnecessary and harmful obstacles for prosecutors. In other words, they make it far too easy for guilty men to walk free. I’m far more concerned about this than I am about prosecutors maliciously persecuting innocent normal Americans. You can make slippery slope arguments all you want, but frankly I think we’re so far up the “make things easier for criminals and give prosecutors more hoops to jump through and more chances to accidentally screw up” hill, and therefore so far from the hypothetical “tyrannical and capricious authoritarian hellscape” bottom - that I’m perfectly willing to overlook and forgive prosecutorial errors if it means keeping another worthless scumbag felon behind bars or on the gallows.