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When the based regime takes over, mass disbarment of probably 75% of defense attorneys needs to be a priority. They know they’re getting guilty people released and they think that’s just great. Anyone affiliated with the Innocence Project deserves prison time.
Bizarre comment. Is the suggestion that defense attorneys should make their own ad-hoc judgements about who they think is or isn't innocent and put more or less effort into their defense accordingly?
Yes, actually that’s pretty much what I’m suggesting. Putting up a spirited defense to help a guilty person escape justice is a bad thing. I am not accusing all public defenders of intentionally committing acts which they believe to be immoral; I’m saying that the moral hazard created by forcing them to do this is a terrible thing. I cannot understand what value is created for society when a defense attorney concocts elaborate arguments and exploits loopholes in order to stop somebody from being punished for something that person did.
I actually agree with this, though not with most of your crimestop opinions, but I have a gentler solution to the moral damage done by the public defender system:
Replace DA offices and PD offices with "Public Criminal Law" offices. Lawyers are assigned essentially at random as prosecutors or defenders for any given case.
Right now, becoming a PD is joining the Washington Generals, you're going to lose, all the time, you're at best there to keep the government honest, while the rest of the courthouse has a slight tendency to view you as a speedbump and an obstacle. It attracts only certain temperaments. Becoming a DA conditions you to view the criminals as slime, grist to the mill, just a case number to get through.
Make them switch sides, constantly, and you'll get higher quality defense with a better relationship to the cops and judges. You'll get DAs who are less high handed, because they might find themselves on the other side next week.
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Because there's no way to let a defense attorney do it only for innocent people and not for guilty people, and there's substantial value in providing protections to the innocent.
There's also another problem: If the attorney is not supposed to put up a defense for a guilty person, that means that the defense attorney needs to decide guilt, making him essentially a judge. There are good reasons why judges and defense attorneys aren't the same thing.
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I'm sorry, but you sound like a young man who has just discovered that the justice system is not perfect, but you have simple and obvious solutions that no one in the history of American jurisprudence has thought of before. If only they would listen to your common sense solutions!
There are several reasons defense attorneys put up a spirited defense:
Contrary to your belief, no, they don't always "know" their clients are guilty. They might believe it, they might strongly suspect it, but sometimes innocence is actually a possibility, even if an unlikely one. And our legal system is built on the premise that "reasonable doubt" is enough to acquit, and it's better to let ten guilty men go free than to imprison one innocent man. You might disagree with these premises, but then you have to convince everyone else; it's not something no one has actually put thought into.
If they do know for a fact that their client is guilty, they are actually not allowed to make arguments contrary to fact. (They can't claim the defendant wasn't there if they know he was.) In that case, they still can require the prosecution to prove guilt beyond a reasonable doubt. That is because the state has enormous power, and requiring the state to prove you are guilty, not just "know" it because "it's obvious," is one of the few things preventing people from being casually railroaded by malicious cops and prosecutors (which still happens even with all these safeguards).
I strongly suspect the probability of that happening not bothering you is because you know who would be railroaded more often than not, and you think that would be a good thing because you have openly stated you don't really care about the procedural ethics or truth valence of any particular charge against
blackcriminals as long as they get got for something. But most people don't share your values or your eagerness to unleash the full power of a police state, with your confidence that that power will mostly fall on your despised outgroup.Convincing people is precisely what I am attempting to do! I’m well aware that you don’t think I’m doing a very good job of that. I’m well aware that my position is very much a minority one, both on the Motte and in American society at large.
And it’s not as though I haven’t acknowledged counterarguments throughout this discussion and others. I just ultimately believe, after thinking it through and examining the arguments, that my position is correct. It was not always my position! Again, as you know, I used to be extremely pro-civil-rights! Justice William Brennan was a major hero of mine. When I took a constitutional law class in college, I was consistently the one arguing for the most expansive protections for defendants possible! I’ve been persuaded away from that position over time, but it’s not like I don’t understand the arguments for it.
My outgroup here is “individuals with long criminal rap-sheets, including multiple felonies.” These are not normal upstanding middle-class people who get roped up unjustly and at random. Do you genuinely think, based on anything I’ve said, that I’d be happy to see some respectable black guy with a wife and a mortgage and a full-time job get snatched up by police and railroaded for a crime some white junkie committed? No, I wouldn’t, and that doesn’t happen. The people who would get expedited through the justice system under my proposed regime would be people who have conclusively demonstrated their inability to participate in a non-criminal manner in society.
Fair enough. I will tell you one of the reasons you fail to convince me: because even though I am not a member of the black criminal underclass that you want to put a boot on, I have seen what people like you and your compatriots have said they would do to me and mine just for being your political opponents. In your hypothetical police state that doesn't have to care about civil rights or reasonable doubt, I have no illusions that it would only be junkies getting the boot. No, don't tell me that as a respectable law-abiding white guy I would be safe; I don't believe you.
Happy? No, but I think if that were the price for putting more junkies away, you would be okay with it.
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Because, obviously, the very act of the attorney defending them in front of the judge and/or jury is the process by which we arrive at a conclusion of whether that person did in fact do it in the first place. We can be more confident in knowing that someone did do something precisely because someone has done their very best to defend them, and if the defense attorney can't furnish any convincing arguments there probably aren't any. How are we supposed to determine what arguments will be 'elaborate' or 'loopholes' and which will not be in advance of the arguments actually being made to someone?
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This absolutely misses the point of what attorney is supposed to do. The criminal system is based on the fact, that everybody has right to their own attorney. In a sense attorney is there not to only represent the defendant, but also to defend the whole system of justice. Let's say we have "obvious" murderer, but the prosecution used the most heinous tactics such as beating confession out of him, planting evidence or manipulating and threatening witnesses. In such a case it is the prosecution fault that they mishandled the case and the defendant was let go. Similar with any other issues, such as claiming insanity etc. In such a case it is a problem of stupid experts or laws that let these people out, it is not a problem of attorney that he used such loopholes.
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This started as a reply to @monoamine's comment here but I'm posting here for greater visibility.
I do not think that this is "Based". To be "Based" is to have a base, be grounded, firmly planted, to reject the world of wishy-washy postmodernist bullshit (deconstructionism, moral relativism, etc...) in favor of the hard and the fast. That is unless you're going for the alternate etymology where "based" is a reference to freebasing and you really meant to say "When the crackhead regime takes over..." which tbh also fits.
Its a common error amongst wishy-washy postmodernist to conflate "rejects postmodernism" with "retarded and anti-social" and thus there is an inclination to label any anti-social idea as "based". Our justice system was designed as an adversarial system for a reason. Don't go looking to tear that fence down before you demonstrate that you understand why it was built.
I'm reminded, once more, of De Maistre- to be counter-revolutionary is not to be in support of an opposing revolution, but to be opposed to the revolution.
I mean, yes, progressive attitudes towards the rights of the accused are retarded and antisocial. But the reaction to them has a very real question of 'based in what?', which is a real way of asking 'are we sure this isn't even more retarded and antisocial?'
The right should seek to build off of what has worked before. We should put a son upon his father's land, not burn the shire in the hopes of building something new.
Agreed on all points.
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But I’m appealing to a model of justice that has recurred over and over throughout history. I’ve referenced England’s Bloody Code before. Whatever else you want to say about it, it did a phenomenal job of reducing crime. The inquisitorial system is very lindy, even if not in a specifically American context. And someone like Nayib Bukele (see my flair) is demonstrating that the type of justice I’m advocating can work in a 21st-century context.
We're talking about the system famous for pickpockets working the crowd of the hanging of a pickpocket, right?
Lindy, yes, but lindy doesn't mean "good".
This sounds bad until you compare it with how much worse levels of criminality were in England before this. Banditry basically disappeared in the country by the end of this period.
No doubt! I’m anything but a doctrinaire conservative. There’s plenty of lindy practices and beliefs I’d be happy to consign to the dustbin of history. I was responding, though, to a post which accused me of conjuring fanciful hypotheticals rather than building on existing time-tested practices that worked. I submit that my ideal model of justice is very much built on proven practices from the past.
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I think this is the first time I’ve seen someone accuse Hoff of postmodernism. Or of being wishy-washy, for that matter.
FWIW the comment started as a reply to someone else but still...
There seems to be this perception amonst rationalists that the "based" option is by definition the most aggressively retarded and anti-social one and that is what I am trying to push back against as futile as it may be.
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I mean this is the same guy who believes that John Wilkes Booth was a progressive, so I think he might be suffering from a serious case of whatever Hlynka suffered from, which renders the sufferer unable to recognize distinctions between the various alternatives to American-style Christian conservatism.
No, I called him a "democrat" though to be fair those terms are becoming increasingly interchangeable.
And then in this comment you explicitly said that you were suggesting that he was also a left-winger. I don’t know how much more clear you could have been in this conversation.
Again, i called him a leftist and a democrat. You're drawing your own associations
In 1865, the Democrats were the right-wing party.
Is that supposed to be a disagreement of some sort?
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What do you think is the difference between a leftist and a progressive?
I think the thing that makes a progressive "progressive" is an axiomatic belief in "Progress". Ie a belief that current year is special and need not be beholden to the rules and realities of prior years.
I think that while not all leftists are progressive, almost all progressives are leftists. There are conversations and compromises that a sincere conservative can have with a sincere leftist that cant be had with a sincere progressive and that is the benefit to drawing the distinction.
Once upon a time there was a progressive faction in both the Republican and Democratic parties just as there was an explicitly Christian/Social conservative faction in both parties but as the Democrats became more explicitly progressive the realities of a two-party system encouraged the Republicans to become more explicitly conservative to pick up newly alienated conservative democrats.
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I already explained in another comment that I believe the adversarial design of the American justice system made sense in an era where it was far more difficult to ascertain guilt. No video, no photography, no DNA, not even things like fingerprinting. Unless the police literally caught somebody in the act, they had to rely almost entirely on witness testimony and extremely rudimentary investigative techniques. Under such constraints, it’s very understandable to impose an adversarial model, to balance against the natural unreliability and possible ulterior motives of witnesses.
In the 21st century, it is incomparably easier to ascertain guilt based on far more solid evidence. My contention is that this obviates the need for adversarial justice in the case of most crimes.
Now, there are of course types of crime where the inquisitorial model is still inappropriate. The kangaroo courts that sprung up on college campuses to adjudicate rape accusations are a great example. Rape, at least of the “date rape” variety rather than the “prowler pouncing out of the bushes” variety, is inherently far harder to assess because the physical evidence nearly always accommodates multiple competing explanations. The physical evidence establishes that two people had sex, but rarely indicates whether that sex was consensual in the moment or not. In that scenario, adversarial justice is preferable. For a robbery caught on camera, or a murder where the killer’s fingerprints are on the knife and his DNA is on the scene? What is there to argue about? Why is a defense attorney necessary? What do we gain by pretending that going through the (expensive, time-consuming) motions is valuable?
How do we determine which among every criminal charge meets the bar for sufficient evidence not to have to undertake a formal adversarial trial? Should every charge have a pre-trial in which it is decided which kind of trial is required? Who would have the final say in such a pre-trial? Would it itself be adversarial?
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The purpose of a defense attorney is not to get the accused acquitted at all costs. Their purpose is to help the accused navigate an extremely stressful environment. That can include, for example, encouraging the accused to take a plea deal in the case of overwhelming evidence. There's a reason the vast majority of cases do not end up in trial.
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We live in a world where allegedly hard evidence like audio and video is becoming increasingly trivial to fake and DNA evidence remains only as trustworthy as the Lab.
I dont think the ulterior motivations nor the inherent unreliability of the human animal has changed at all.
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We have an adversarial system of justice; that's part of the system by design. If your based regime has an inquisitorial system instead, you might as well make a thumbscrew and rack your banner.
An adversarial system is manifestly retarded when guilt or innocence can be easily adjudicated by viewing photo/video evidence, and/or by assessing DNA/forensic evidence. Leave the adversarial justice system for the much smaller percentage of crimes wherein guilt is genuinely in dispute, or where evidence is genuinely incomplete, as judged by a professional panel of disinterested parties.
You are not the first person to suggest that it is "easy" to decide guilt or innocence in almost all cases and it's just those pesky tricksy civil rights technicalities getting in the way of justice.
Leaving aside the fact that knowing your priors, no black person in his right mind would trust any system you find satisfactory, your system will straightforwardly give absolute power to the state, carte blanche to cops to do whatever it takes to get a conviction, a justice system on a rail, and you would endorse this because it will mean no guilty people go free.
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Japan has an inquisitorial justice system. From my understanding: a member of Japanese law enforcement decides someone is guilty and then that person is railroaded. No need for juries or any chance the judge will side with a defendant.
You’ve pointed to one of the lowest-crime societies in the world, and attempted to present it as a cautionary tale. Seems like they’re doing a ton of things right over there that we may want to consider emulating.
Japanese people are thin and healthy, in comparison to Americans. But no amount of importing Japanese doctors or hospital systems would improve Americans.
My understanding of the Japanese justice system is that it is indistinguishable from railroading and I have no reason to think it accurately discriminates between guilty and innocent. Their conviction rate exceeds 99% and most prosecutors never lose a case.
I consider that failure to run a valid criminal justice system and certainly don't want it in America. Yeah let's lock up more people and longer. But give them the option of trial by jury with an adequate defense in order to minimize the most egregious false conviction of innocent people.
The American criminal conviction rate is also extremely high, north of 90%.
Federal prosecutors only go to trial when they are really confident, so their conviction rate is higher.
Japanese prosecutors ask the judges to declare guilt and they almost always declare guilt.
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I very much doubt Japan's justice system is even one of many causal factors contributing to their low crime rate.
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Japan's a nice place, I hear.
I don't think there's any way to get there from here, though. That is to say, if you implemented their methods here, you would not get even the remotest approximation of their results.
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OK, one vote for the Inquisition.
I will note that this murder is NOT such a case. There was no photo/video evidence, nor DNA evidence. There was pretty clear evidence that he stole from the victim, but the murder conviction, while likely justified, was not so obvious.
I don’t disagree; I think a case with this level of ambiguity merited an adversarial jury trial. However, it also happened more than 25 years ago, when video surveillance was far less ubiquitous than it was now, and forensic technology was less advanced. Cases which would have merited a jury trial in 1998 no longer do, because our methods of reliably adjudicating guilt are so much more powerful. The Founding Fathers could not have foreseen the absolutely paradigm-shifting advances in criminology and technology that would exist in the future, and if they had I don’t believe they would have shackled us with this onerously pro-defendant criminal justice system.
If obvious, why would the adversarial system get to a different result?
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Video evidence is indeed quite something.
On the other hand, large branches of forensic science have operated for decades and then been revealed to be fraudulent. Bite mark analysis, burn pattern analysis, psychological profiling; @gattsuru has linked to an article about how the justice system's conception of shaken baby syndrome is based largely on fictions. This, combined with the degree to which jurors and the public generally overestimate the reliability of even valid and well-grounded forensic methods does not inspire confidence.
Justice is not, in fact, a solved problem. I'll certainly concede that it's a whole lot more solved than our decaying system can implement, though.
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Reminder that most criminal defense attorneys have nothing to do with this, their job is pressuring clients into accepting plea bargains so the court system doesn’t collapse under the sheer number of cases. Those that do private defense also mostly have nothing to do with this, their job is getting driving offenses off the client’s record when he pays the fine anyways.
This is a vanishingly small number of defense attorneys.
Right, I’m not even saying most of them have done anything morally wrong or worthy of prosecution or anything like that. I’m saying that in my ideal justice system most of their jobs would simply be obviated. They wouldn’t be needed anymore, because there would no longer be a need for trials for most criminal proceedings, and therefore no need for this whole process of haggling over plea deals. Many criminals would also not be entitled to legal representation, so there wouldn’t need to be this mass of public defenders.
Ah, you want to bring back the hanging judge. I understand. I just have qualms.
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America abolished trials as a routine part of their criminal justice system decades ago. The purpose of the trial in 21st century America is to be a Kafkaesque nightmare set up so that the incentive to avoid it correctly motivates the participants in the real criminal justice system (i.e. plea-bargaining). The fact that most states have an explicitly defined legal process for an innocent defendant to plead guilty (nolo and Alford pleas) is the smoking gun here.
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