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I think one thing that’s very important is that the judicial system needs to be perceived as somewhat “fair” in that the punishment should fit the crime, AND th

by atty 6y ago

I think one thing that’s very important is that the judicial system needs to be perceived as somewhat “fair” in that the punishment should fit the crime, AND that factors such as race, status, wealth, etc should not bias the outcome. As someone living in the US, it’s quite obvious our system has a lot to be desired in this area, especially when comparing outcomes amongst different ethnicities or wealth classes. But there is an ideal we reach for that our rules should treat every individual equally regardless of their place in life. Giving judges and juries even more latitude than they have already would completely shatter that. I’d also point out that, given historical context for such methods, anyone giving strong support to this sort of “justice” system really does need to hear the quote that didn’t really come from Einstein :) “Insanity is doing the same thing over and over again and expecting different results.”

pdonis 6y ago
> there is an ideal we reach for that our rules should treat every individual equally regardless of their place in life. Giving judges and juries even more latitude than they have already would completely shatter that. Such a claim might be valid for crimes such as murder, where we would indeed expect sentencing to fit the crime and not to be adjusted for certain individuals because of factors irrelevant to the crime. But most cases aren't like that. Most cases involve civil disputes between parties based on non-repeatable individual circumstances that don't lend themselves to one-size-fits-all, bright-line rules the way criminal prosecutions usually do. In cases like that, if there's going to be fairness at all, it has to involve judges and juries exercising non-repeatable individual judgment based on the non-repeatable individual circumstances of the case. Yes, there will be legal principles involved that could apply to many cases, but there will always be unique aspects to the facts of an individual case that can only be assessed by human judgment.
- eyelidlessness 6y ago
  “Most” is perhaps an expression of your experience. The actual most that objectively happens is such routine banal minor infraction enforcement and intrusive stops that affect a minority of the population that it’s understandable that you can’t see it or maybe even quantify it but it’s constant and it affects “case based” judgement severely. Many people under this kind of jurisdiction are already facing potential lifetime sentences before they’re adults.
  - pdonis 6y ago
    > The actual most that objectively happens is such routine banal minor infraction enforcement and intrusive stops that affect a minority of the population No, this still isn't "most" of what the legal system deals with. It's a large fraction of what the criminal legal system deals with, but most legal cases are civil, not criminal. That's why I took the trouble to draw the key distinction between those two types of cases. As far as criminal law is concerned, the way to minimize police harassment of citizens for no good reason is to minimize the things that are crimes. For example, the war on drugs is insane: there is no reason to criminalize mere possession of a drug. Just that one single change would drastically reduce the number of people the police can harass (and just freeing all of the people who are currently in jail for non-violent drug possession would drastically reduce the number of people in jail--and a disproportionate fraction of those would be poor and minorities, exactly the people we want to give more protection from police harassment). But there are many, many other laws on the books that could be eliminated on similar grounds: they criminalize behavior that shouldn't be criminalized and the laws can't possibly be enforced as written, so the end result is to give the police a much larger selection of excuses to harass people when they feel like it. But this "fix" for criminal law doesn't work by fixing how the system deals with cases that are before it (things like reducing the variation in sentencing); it works by eliminating a huge set of cases altogether--the system no longer even sees them because the system is no longer criminalizing acts that shouldn't be crimes. The problem is that a similar fix doesn't work for civil cases, precisely because there is no simple way to draw bright lines to separate disputes that should be dealt with by the legal system and disputes that shouldn't.

by atty 6y ago

pdonis 6y ago

> there is an ideal we reach for that our rules should treat every individual equally regardless of their place in life. Giving judges and juries even more latitude than they have already would completely shatter that. Such a claim might be valid for crimes such as murder, where we would indeed expect sentencing to fit the crime and not to be adjusted for certain individuals because of factors irrelevant to the crime. But most cases aren't like that. Most cases involve civil disputes between parties based on non-repeatable individual circumstances that don't lend themselves to one-size-fits-all, bright-line rules the way criminal prosecutions usually do. In cases like that, if there's going to be fairness at all, it has to involve judges and juries exercising non-repeatable individual judgment based on the non-repeatable individual circumstances of the case. Yes, there will be legal principles involved that could apply to many cases, but there will always be unique aspects to the facts of an individual case that can only be assessed by human judgment.

eyelidlessness 6y ago
“Most” is perhaps an expression of your experience. The actual most that objectively happens is such routine banal minor infraction enforcement and intrusive stops that affect a minority of the population that it’s understandable that you can’t see it or maybe even quantify it but it’s constant and it affects “case based” judgement severely. Many people under this kind of jurisdiction are already facing potential lifetime sentences before they’re adults.
- pdonis 6y ago
  > The actual most that objectively happens is such routine banal minor infraction enforcement and intrusive stops that affect a minority of the population No, this still isn't "most" of what the legal system deals with. It's a large fraction of what the criminal legal system deals with, but most legal cases are civil, not criminal. That's why I took the trouble to draw the key distinction between those two types of cases. As far as criminal law is concerned, the way to minimize police harassment of citizens for no good reason is to minimize the things that are crimes. For example, the war on drugs is insane: there is no reason to criminalize mere possession of a drug. Just that one single change would drastically reduce the number of people the police can harass (and just freeing all of the people who are currently in jail for non-violent drug possession would drastically reduce the number of people in jail--and a disproportionate fraction of those would be poor and minorities, exactly the people we want to give more protection from police harassment). But there are many, many other laws on the books that could be eliminated on similar grounds: they criminalize behavior that shouldn't be criminalized and the laws can't possibly be enforced as written, so the end result is to give the police a much larger selection of excuses to harass people when they feel like it. But this "fix" for criminal law doesn't work by fixing how the system deals with cases that are before it (things like reducing the variation in sentencing); it works by eliminating a huge set of cases altogether--the system no longer even sees them because the system is no longer criminalizing acts that shouldn't be crimes. The problem is that a similar fix doesn't work for civil cases, precisely because there is no simple way to draw bright lines to separate disputes that should be dealt with by the legal system and disputes that shouldn't.