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Thoughts on https://www.youtube.com/watch?v=USkEzLuzmZ4 https://www.youtube.com/watch?v=USkEzLuzmZ4? You've argued over the years that the justice system is in

Thoughts on https://www.youtube.com/watch?v=USkEzLuzmZ4 https://www.youtube.com/watch?v=USkEzLuzmZ4? You've argued over the years that the justice system is in fact a justice system, not merely a legal system. In other words, you believe it's mostly fair. I feel like I'm probably misrepresenting your position. But the overall point is that many of your comments carry a tone of "Well, there's a logical basis for why the courts work this way." I've been trying to square your experience with anecdotal evidence, which seems to universally agree that the system is stacked against you. Those who go to court with a public defender are doomed. In case you happen to enjoy that video, there's another on bail: https://www.youtube.com/watch?v=IS5mwymTIJU https://www.youtube.com/watch?v=IS5mwymTIJU One of my worst fears is being accused of some kind of crime, like cybercrime or anything else. I've seen how HN and Reddit treat the accused. I've done it myself: I know that the point of an indictment is to indict someone, yet when I read FBI testimony stating that the founder of Silk Road hired hitmen, I start to feel differently about him. https://news.ycombinator.com/item?id=15414170 https://news.ycombinator.com/item?id=15414170 As cheesy as it sounds, I care about being honorable. I'd never engage in ransomware or embezzlement or anything else, let alone hurt anybody. But I know that if someone were to accuse me of those things, people would automatically think less of me, regardless of whether I did it or not. And that's why it's terrifying. Especially for those without money. So I thought I'd ask you to please justify this system. Fundamentally, morally: is it sound? The fact that 95% of cases end in plea deals, and that N% of that subset didn't commit any crimes -- should we feel ok with that? Yet on the flipside, it seems to work, and we seem to live in a pretty decent and free society. I'm not sure how much or little we should credit the courts for that. The reason I'm asking you in particular is because you're one of a few people on HN with enough experience to give a thoughtful answer. You've been involved with it, and you know the territory.

rayiner 9y ago
> You've argued over the years that the justice system is in fact a justice system, not merely a legal system. In other words, you believe it's mostly fair. To the contrary, I think it's incredibly unfair. But probably for different reasons than you do. For example, thousands of people every year are sentenced to an average of over six years in prison for possessing a firearm as a felon. It's "fair" in the sense that the error rate for those convictions is almost certainly negligible, because proof only requires showing possession and a fact that's a matter of public record. But in my opinion the crime and the sentence are unfair: we shouldn't take away the rights of people who have served their time, and six years is a sentence more appropriate for murder than possession of anything. I think the under-funding of public defenders is a travesty. But most public defenders will admit that most of their clients are guilty, and they spend most of their time ensuring their clients plead to the right charges and get a fair shake at sentencing. It's "fair" in the sense that the system mostly convicts the right people (except at the margins, which is why public defenders should get more funding) but it's "unfair" in the sense that sentences are too long and many of these crimes shouldn't be crimes. > One of my worst fears is being accused of some kind of crime, like cybercrime or anything else. You should be afraid! Take, for example, 18 U.S.C. 1001, which makes almost any sort of false statement vaguely related to the federal government a felony. It's "fair" in the sense that there is almost never any doubt that the accused made the false statement in question (either in a recorded interview with an FBI agent, or in in writing in some official paperwork). But it's "unfair" in that it's often used to trap (or, more often, threaten) people who only did something marginally wrong. E.g. lying to a federal agent to conceal a workplace affair. > Yet on the flipside, it seems to work, and we seem to live in a pretty decent and free society. I'm not sure how much or little we should credit the courts for that. That's a really fundamental question. I think the way to look at it is to look at what happens in places without enforcement of certain kinds of conduct. E.g. sex crimes in rural India or Pakistan. Why do victims plead for enforcement of the laws on the books in such situations? Partly retribution. Probably not really deterrence--even with enforcement, the odds of getting caught are so low that there can't be much of a real deterrent effect. The biggest value of punishing crimes is, in my opinion, creating social norms. The overwhelming majority of people aren't "good" or "bad," but they will readily follow social norms that are visibly enforced. The primary benefit of putting people in prison for robbery thus is showing everyone that it's conduct that is so unacceptable that we put people in prison for it.
- fjsolwmv 9y ago
  Why do you say "probably not deterrence" and then write a paragraph arguing in favor of deterrence?
  - rayiner 9y ago
    Usually what people mean by deterrence is the idea that people won't commit crimes because of the fear of punishment weighted by the risk of getting caught. I don't think that has much real effect, because the risk of getting caught is generally low. I'm talking about something somewhat different, which is that we use punishment of certain conduct to reinforce (or to establish) the social norm that the conduct is bad and shameful. Take something like sexual harassment. Overt sexual harassment was much more common in the 1980s than today. One could hypothesize that this is because we started punishing sexual harassment by firing people for doing it. That begs the question: would men sexually harass their coworkers if there was no risk of punishment? Most men would say no. But are men today just better people than men 40 years ago? Probably not. Rather, what we've done through punishment is create a social norm. In most people, violating a social norm creates negative feelings even in the absence of punishment. What I'm describing is like deterrence, but different in important ways. Classic deterrence suggests a rational calculus: if the benefit is greater than the punishment weighted by the risk of getting caught, people will engage in the behavior. That suggests that you can decrease crime through harsher sentences and more aggressive enforcement. But that doesn't square with observed reality: in many European countries, for example, the maximum sentence for murder is only 15 years, but people commit far fewer murders than in the U.S. If you view the point of the criminal justice system as establishing social norms, then the length of punishment and aggressiveness of enforcement matter a lot less. So long as both are enough to clearly establish the social norm, that's sufficient to discourage ordinary people from engaging in the undesirable conduct.
    - speedplane 9y ago
      > If you view the point of the criminal justice system as establishing social norms, then the length of punishment and aggressiveness of enforcement matter a lot less. The more basic type of deterrence is a strong justification for our justice system, but your point that it also exists to adjust social norms is excellent, and often not considered. You referred to prosecutors, but it's not just the government that doles out social norms... Back in the 1950s and 60s, civil rights leaders would drive from town to town defending black people accused of crimes. They were great lawyers, but due to a variety of reasons (the big one being racism), they lost case after case. The vast majority of their cases actually. Even though they lost many cases, the very fact that these well spoken lawyers were representing people of color started setting social norms. They were fighting back. They cross-examined white witnesses, and showed everyone was entitled to a good lawyer, and that the word of a white person could not be trusted any more than a person of color. The point is that courts are often used as a vehicle for larger social change. It's generally free to engage (minus your time), you get an public audience, you get agents of the state to make official pronouncements (e.g., the judge, jury, prosecutor), and even the accused and lawyers get to say their bit in a (relatively) safe environment.

rayiner 9y ago

> You've argued over the years that the justice system is in fact a justice system, not merely a legal system. In other words, you believe it's mostly fair. To the contrary, I think it's incredibly unfair. But probably for different reasons than you do. For example, thousands of people every year are sentenced to an average of over six years in prison for possessing a firearm as a felon. It's "fair" in the sense that the error rate for those convictions is almost certainly negligible, because proof only requires showing possession and a fact that's a matter of public record. But in my opinion the crime and the sentence are unfair: we shouldn't take away the rights of people who have served their time, and six years is a sentence more appropriate for murder than possession of anything. I think the under-funding of public defenders is a travesty. But most public defenders will admit that most of their clients are guilty, and they spend most of their time ensuring their clients plead to the right charges and get a fair shake at sentencing. It's "fair" in the sense that the system mostly convicts the right people (except at the margins, which is why public defenders should get more funding) but it's "unfair" in the sense that sentences are too long and many of these crimes shouldn't be crimes. > One of my worst fears is being accused of some kind of crime, like cybercrime or anything else. You should be afraid! Take, for example, 18 U.S.C. 1001, which makes almost any sort of false statement vaguely related to the federal government a felony. It's "fair" in the sense that there is almost never any doubt that the accused made the false statement in question (either in a recorded interview with an FBI agent, or in in writing in some official paperwork). But it's "unfair" in that it's often used to trap (or, more often, threaten) people who only did something marginally wrong. E.g. lying to a federal agent to conceal a workplace affair. > Yet on the flipside, it seems to work, and we seem to live in a pretty decent and free society. I'm not sure how much or little we should credit the courts for that. That's a really fundamental question. I think the way to look at it is to look at what happens in places without enforcement of certain kinds of conduct. E.g. sex crimes in rural India or Pakistan. Why do victims plead for enforcement of the laws on the books in such situations? Partly retribution. Probably not really deterrence--even with enforcement, the odds of getting caught are so low that there can't be much of a real deterrent effect. The biggest value of punishing crimes is, in my opinion, creating social norms. The overwhelming majority of people aren't "good" or "bad," but they will readily follow social norms that are visibly enforced. The primary benefit of putting people in prison for robbery thus is showing everyone that it's conduct that is so unacceptable that we put people in prison for it.

fjsolwmv 9y ago
Why do you say "probably not deterrence" and then write a paragraph arguing in favor of deterrence?
- rayiner 9y ago
  Usually what people mean by deterrence is the idea that people won't commit crimes because of the fear of punishment weighted by the risk of getting caught. I don't think that has much real effect, because the risk of getting caught is generally low. I'm talking about something somewhat different, which is that we use punishment of certain conduct to reinforce (or to establish) the social norm that the conduct is bad and shameful. Take something like sexual harassment. Overt sexual harassment was much more common in the 1980s than today. One could hypothesize that this is because we started punishing sexual harassment by firing people for doing it. That begs the question: would men sexually harass their coworkers if there was no risk of punishment? Most men would say no. But are men today just better people than men 40 years ago? Probably not. Rather, what we've done through punishment is create a social norm. In most people, violating a social norm creates negative feelings even in the absence of punishment. What I'm describing is like deterrence, but different in important ways. Classic deterrence suggests a rational calculus: if the benefit is greater than the punishment weighted by the risk of getting caught, people will engage in the behavior. That suggests that you can decrease crime through harsher sentences and more aggressive enforcement. But that doesn't square with observed reality: in many European countries, for example, the maximum sentence for murder is only 15 years, but people commit far fewer murders than in the U.S. If you view the point of the criminal justice system as establishing social norms, then the length of punishment and aggressiveness of enforcement matter a lot less. So long as both are enough to clearly establish the social norm, that's sufficient to discourage ordinary people from engaging in the undesirable conduct.
  - speedplane 9y ago
    > If you view the point of the criminal justice system as establishing social norms, then the length of punishment and aggressiveness of enforcement matter a lot less. The more basic type of deterrence is a strong justification for our justice system, but your point that it also exists to adjust social norms is excellent, and often not considered. You referred to prosecutors, but it's not just the government that doles out social norms... Back in the 1950s and 60s, civil rights leaders would drive from town to town defending black people accused of crimes. They were great lawyers, but due to a variety of reasons (the big one being racism), they lost case after case. The vast majority of their cases actually. Even though they lost many cases, the very fact that these well spoken lawyers were representing people of color started setting social norms. They were fighting back. They cross-examined white witnesses, and showed everyone was entitled to a good lawyer, and that the word of a white person could not be trusted any more than a person of color. The point is that courts are often used as a vehicle for larger social change. It's generally free to engage (minus your time), you get an public audience, you get agents of the state to make official pronouncements (e.g., the judge, jury, prosecutor), and even the accused and lawyers get to say their bit in a (relatively) safe environment.