People v. State

fairly undermining public confidence in the administration of justice
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The Philosophy and Practice of Law and Liberty

August 27, 2011 By: John Kindley Category: Darian Worden, Gerry Spence, John Regan, Ken at Popehat, Matt Brown, Presumption of Innocence, Prosecutors, Vincent Bugliosi

The above was the original subtitle of this blog, before I changed it sometime back to “Fairly Undermining Public Confidence in the Administration of Justice.”

But you know who really excels at illuminating the philosophy and practice of law and liberty? Matt Brown, relative to whom I’m a piker. I want to highlight here a couple paragraphs from his latest post.

First:

When you judge evidence as it’s presented, you’re seeing things through a filter. You’re relying on your preexisting opinions, and those are often opinions the judge and jurors do not share. You can’t read minds, so the best way to convince your audience is to build your position from nothing. When every person experiences the birth and growth of the point you’re trying to make, that’s when you have your best chance of getting them to agree. Inserting your judgments only dilutes your effectiveness.

This struck me as in line with my citation of Vincent Bugliosi’s account of his successful defense of a murder defendant in And the Sea Will Tell in countering what I perceived as Mark Bennett’s unfair assessment of John Regan’s assertion that the only reliable way to win for a criminal defendant is to have evidence devastating to the prosecution’s case and to downplay its significance until closing argument. (I acknowledge, however, that it’s not entirely clear what John Regan meant, as I later noted in a comment on his blog.)

Second:

In the moment, what you notice may be better than what you were seeking. Even if it isn’t, at least you noticed it. You certainly aren’t missing anything. Your perspective is likely closer to that of the people you’re trying to convince, and your presentation isn’t going to come off sounding like biased ramblings from a nut job. When judgment is necessary, like when you hear something objectionable, you’ll be quicker to realize it and voice your position. There’s no drawback.

Having been recently called a “nut job” myself, this paragraph in Matt’s post also made my ears perk up. Take, for example, my recent strongly-stated counter-intuitive affirmation that “Prosecutors should never lose,” because they have no business prosecuting anything other than “slam-dunk” cases (since the requirement of “proof beyond a reasonable doubt” requires nothing less), and every loss is an indictment of either their judgment or their competence. I stand by the proposition that “Prosecutors should almost never lose.” After all, Spence and Bugliosi managed that feat in their respective prosecutorial careers, and if not every prosecutor can be a Spence or a Bugliosi, they can at least be expected to win at least, say, 90% of their trials. If they’re not, and assuming they’re competent, they’re probably convicting a lot of innocent defendants in the trials that they do win.

On the other hand, another former prosecutor whose judgment I respect, Ken at Popehat, has suggested that the standard I’ve proposed is probably “unworkable.” Imagine a hypothetical murder case in which the evidence demonstrates a 95% likelihood that the accused is guilty. But damn — that leaves a 5% chance that the accused is innocent, and faces life in prison for something he didn’t do. Furthermore, sending the accused, a possibly innocent man, to prison for the rest of his life isn’t going to bring the murder victim back. Nevertheless, it’s probably too much to expect the prosecutor, faced with the victim’s family, to dismiss the case against the accused based on a 5% likelihood that he is innocent. And pity the poor jury. This is a case that indeed could go either way.

This not-so-hypothetical scenario highlights a fundamental problem with the extant criminal justice system: the jury is expected to evaluate whether the 5% likelihood that the defendant is innocent amounts to “reasonable” doubt as to his guilt, all the while being kept in ignorance of and having no say in the consequences for the defendant if it determines that the 5% likelihood that the defendant is innocent doesn’t amount to “reasonable” doubt. Would it be “reasonable” for a person to take a bet in which he has a 95% chance of winning $100 and a 5% chance of losing $500? Yes. Would it be “reasonable” for a person to take a bet in which he has a 95% chance of winning $100 and a 5% chance of losing $5,000? No. The reasonableness of the bet depends entirely on the consequences of “losing,” or being wrong.

In a just criminal justice system the jury would be empowered to limit the consequences of its own possible error, and thereby to ensure, or create, at least by its own lights, the “reasonableness” of its own verdict in light of whatever residual doubt it might have as to the defendant’s “guilt.” In the above hypothetical, for example, where the jury is only 95% confident that the defendant is guilty of murder, it might impose a 10 year sentence (presumably determined by the maximum number of years the jurors were able unanimously to agree upon). Such a decision might have little to do with “punishing” the defendant, who after all could be innocent (although it’s likely that the decision would have been influenced by regard for the feelings of the victim’s family), and more to do with public safety, which is arguably the primary purpose of the criminal justice system. In a just criminal justice system this empowerment of the jury would extend beyond correcting for any residual doubt as to whether the defendant in fact committed the crime with which he’s charged to also correcting for any residual doubt as to the defendant’s culpability and future dangerousness to society, independently of whether he in fact committed the crime charged.

The State, of course, is the principal impediment to the evolution of a just criminal justice “system.” As Darian Worden writes today at the Center for a Stateless Society, in a post titled “Justice Without the State”:

I’m always happy to see anarchism being discussed honestly in public forums. So I was pleased to see E.D. Kain’s article at Forbes, Criminal Justice in a Stateless Society (21 Aug 2011).

Kain describes his reservations about anarchism and wonders “what would replace our criminal justice system in a stateless society?” As an anarchist — one who believes in maximizing individual liberty and wants no person to rule over another — I’d answer hopefully nothing. The criminal justice system is in fact criminal. The outrages committed by the criminal justice system are consequences of the power relations fostered by the state.

Sure, some states act less destructively than others, and some politicians are less tyrannical than others, but state power is ultimately limited by what those in charge think they can get away with. Politicians, economic elites, bureaucrats, and enforcers come to believe in their authority and believe that other people should respect their authority. For those who don’t, there are innovative and profitable ways to subdue them so they can be taken in chains to a cage.

The criminal enterprises of the state should not be replaced, but instead displaced, by cooperative alternatives. This may seem like nitpicking, but to me it emphasizes the differences between authoritarian and anarchic functions. Authoritarian systems command obedience to those on top through force, threats, denial of alternatives, and encouragement of conformity. This is their primary function, and anarchists do not intend to create anything to replicate this function.

Instead, anarchists tend to believe in the ability of people to establish rules as equals, to work out consensus and compromises, and use violence only as a last resort. This is how social relations work on a basis of mutual benefit rather than power politics.

This is not the place to fully theorize about anarchist justice systems or fully describe precedents, but I’ll scratch the surface. A precedent Gary Chartier mentions in his excellent book The Conscience of an Anarchist is the merchant’s law of Medieval Europe. Courts established voluntarily within the merchant community made decisions based on standards that had evolved over time. Another precedent is found in Terry Anderson and P.J. Hill’s work on how American settlers handled disputes in the Western frontier, which was not nearly as violent as Hollywood would have you believe.

Of course, these are precedents, not examples of anarchy, but the fact that they were able to arise from under situations of government-approved violence might make them more remarkable.

In general, people tend to prefer to not have much violence in their daily lives. I’m not talking about movie violence or even fighting sports, but violence that is an active danger to life or impediment to living. Where is there pervasive violence in today’s world? Usually at the bottom end of power imbalances.

In powerful countries, it’s where the least powerful people live that drug wars are fought most vigorously and police most become an occupying army intent on scoring points for the precinct’s statistics. In countries where most people have few options, they are more likely to risk everything for messiahs of violence or see life as a cheap expenditure. Oppression breeds further crime.

Where people have the opportunity, they agree on rules and expectations pretty frequently and set up mechanisms for dealing with rule breakers. If there is a demand for something, people will find a way to fill it. A reasonable level of safety is broadly desired, and who wants child molesters, serial murderers, and the like around anyway?

A free society would encourage better behavior by opening numerous opportunities for self-improvement and social cooperation. Sure there will always be people who appear irredeemable, but how many would there really be? More importantly, how can they be treated and possibly re-integrated into society while they are kept from harming the rest of us? Anarchy offers numerous options for experimentation, in contrast to the state which offers a politically-entrenched machine which profits from suffering. Anarchy allows different arrangements to compete for popular support without the benefit of entrenched power or the political limiting of options. Government compels acquiescence.

Anarchy, where there are no rulers, is both a laudable goal for personal relations and a workable model for a peaceful, prosperous society. I hope E.D. Kain and interested readers further explore the theory and practice of anarchism. It is not a perfect option, but it is certainly a better option than anything that states will give us.

4 Comments to “The Philosophy and Practice of Law and Liberty”


  1. Of course, to buy into Worden’s argument, you have to start with an assumption that people are basically decent, that left to their own devices they will treat others with decency and restraint, that when they believe they have a troublemaker in their midst, they won’t leap to conclusions but will apply more exactlng standards than the criminal justice system pretends to and will then treat the malefactor with restraint and gentleness.

    All that strikes me as a lovely fantasy. Alas it also strikes me as a fantasy that bears almost no relationship to real people and to actual human psychology.

    The myth of the golden age, of the Biblical Eden or its non-Biblical analogues, is myth not merely because the lion didn’t lie down with the lamb (unless it was sated with having eaten the lamb’s mother and was lying atop junior to preserve it from competing predators) but because the prelapsarian world presumes prelapsarian people – and they never were.

    The Hobbesian conception of the natural state as “nasty, brutish, and short” isn’t primarily a function of a lack of amenities and modern appliances. It’s a reflection of human nature.

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    • John Kindley says:

      It’s sort of a chicken or the egg question. Worden argues that crime occurs disproportionately at the “bottom end of power imbalances.” But the State has its origin in such power imbalances (i.e., in conquest and confiscation), and is designed to reinforce and perpetuate those imbalances.

      I wonder how “nasty, brutish, and short” the life of the Native American was prior to the arrival of us Europeans, although I know it certainly wasn’t Eden. Probably not nearly as “nasty, brutish, and short” as life in the inner city today, despite all the benefits and interventions conferred by the State.

      How better to know human nature than to look inside one’s own heart? If I look inside, I indeed see pride and greed, the seeds of criminality, but I also see that I know better. I don’t think if I lived in a “natural state” of relatively balanced power I’d be one of those who’d consciously and purposefully conspire with others to conquer and confiscate, who’d be willing to kill and enslave others, to commit crime, for the sake of my own greed and pride. I hope, though, that I’d be more than willing to conspire with others to defend myself and others against such predations. And I agree with Worden that most people are like this: “In general, people tend to prefer to not have much violence in their daily lives.” The trouble is that some people are willing to commit violence, to conquer and confiscate, to commit crime, for their own ends, and from this the State originated. The question nevertheless persists: who outnumbers whom, in both numbers and conviction? Have we learned anything? The State is a manifestation of our instinct for predation, not its cure.

      I was intrigued by something Sheldon Richman wrote a while ago: “Unless you want world government, you’re already an anarchist. We’re just haggling over the level.”

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  2. Many of those native Americans (and this is the second time, at least, you’ve alluded to their more wholesome life than ours) were (by choice) constantly at war. They fought over territory. Some tortured. Some lived in rigid hierarchical societies. And despite the guy on the cliff with the tear running down his cheek, they were not the great husbands of the land we’ve mythologized them into.

    None of that even begins to justify what we did, but a bit of honest appraisal goes a long way.

    You’re assuming that power relationships and fear and greed wouldn’t exist (or would be happily channeled away somehow)absent fairly rigid political structures because people basically want to help each other and given the chance won’t adopt vigilantism and will be overwhelmingly respectful and careful despite some natural drive in the opposite direction.

    I think that’s nonsense. I’m not favoring the political structures we have. I favor much less government in some areas (and probably more in others), but given free rein it’s our worst instincts that would control. Lord of the Flies. The Lottery. Hobbes. The Terror. Human sacrifice. Jump in where you like.

    3
    • John Kindley says:

      I think you’re overstating a bit my assumptions and my estimation of human nature.

      Here’s an interesting article regarding “vigilantism” in the context of the UK riots: http://www.wendymcelroy.com/news.php?extend.4162

      Re: the Injuns. Yeah, it wasn’t Eden, like I said. And did I refer to them once before in another post? I’m sorry. It’s just that when somebody starts talking about the state of nature that’s the closest example that comes to mind. I’ll have to read up on my Injun history. Some of them were constantly at war? Some tortured? I’m glad we civilized citizens of the United States of America have outgrown all that. Admittedly, my knowledge of the Injuns is all second-hand. Sorry if I’ve quoted the following before. I’m a man of few books.

      “Mr. Jefferson, for example, remarked that the hunting tribes of Indians, with which he had a good deal to do in his early days, had a highly organized and admirable social order, but were “without government.” Commenting on this, he wrote Madison that “it is a problem not clear in my mind that [this] condition is not the best,” but he suspected that it was “inconsistent with any great degree of population.” Schoolcraft observes that the Chippewas, though living in a highly-organized social order, had no “regular” government. Herbert Spencer, speaking of the Bechuanas, Araucanians and Koranna Hottentots, says they have no “definite” government; while Parkman, in his introduction to The Conspiracy of Pontiac, reports the same phenomenon, and is frankly puzzled by its apparent anomalies.

      Paine’s theory of government agrees exactly with the theory set forth by Mr. Jefferson in the Declaration of Independence. The doctrine of natural rights, which is explicit in the Declaration, is implicit in Common Sense;2 and Paine’s view of the “design and end of government” is precisely the Declaration’s view, that “to secure these rights, governments are instituted among men”; and further, Paine’s view of the origin of government is that it “derives its just powers from the consent of the governed.” Now, if we apply Paine’s formulas or the Declaration’s formulas, it is abundantly clear that the Virginian Indians had government; Mr. Jefferson’s own observations show that they had it. Their political organization, simple as it was, answered its purpose. Their code-apparatus sufficed for assuring freedom and security to the individual, and for dealing with such trespasses as in that state of society the individual might encounter – fraud, theft, assault, adultery, murder. The same is clearly true of the various peoples cited by Parkman, Schoolcraft and Spencer. Assuredly, if the language of the Declaration amounts to anything, all these peoples had government; and all these reporters make it appear as a government quite competent to its purpose.

      Therefore when Mr. Jefferson says his Indians were “without government,” he must be taken to mean that they did not have a type of government like the one he knew; and when Schoolcraft and Spencer speak of “regular” and “definite” government, their qualifying words must be taken in the same way. This type of government, nevertheless, has always existed and still exists, answering perfectly to Paine’s formulas and the Declaration’s formulas; though it is a type which we also, most of us, have seldom had the chance to observe. It may not be put down as the mark of an inferior race, for institutional simplicity is in itself by no means a mark of backwardness or inferiority; and it has been sufficiently shown that in certain essential respects the peoples who have this type of government are, by comparison, in a position to say a good deal for themselves on the score of a civilized character. Mr. Jefferson’s own testimony on this point is worth notice, and so is Parkman’s. This type, however, even though documented by the Declaration, is fundamentally so different from the type that has always prevailed in history, and is still prevailing in the world at the moment, that for the sake of clearness the two types should be set apart by name, as they are by nature. They are so different in theory that drawing a sharp distinction between them is now probably the most important duty that civilization owes to its own safety. Hence it is by no means either an arbitrary or academic proceeding to give the one type the name of government, and to call the second type simply the State.”

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