Friday, November 07, 2003
I mentioned the contents of my previous post to a friend of mine (The same guy who suggested that the US should threaten Middle Eastern countries with nuclear oblivion if home brewed Islamic terrorists do something really bad.) Anyway, he agreed with me and proposed this solution.
A justice system (one were there no notion of culpablity) could be structured around the notion that what sentence is given out is given out for more or less the sole purpose of curtailing future criminal acts. As such, two people who committed the same crime would not necessarily receive the same sentence. For example, if it is determined that car thieves under the age of 18 are less likely to re-offend than car thieves over the age of 18, then all things being equal, car thieves under 18 should be sentenced less harshly. When I told him that such ideas would have far ranging consequences, he looked at me and smiled. “I know. It might mean, for example, that a woman would be sentenced for less time than a man for exactly the same crime and that is just the tip of the iceberg”
He also noted that various crimes would also have to be taken off the books. For instance, there would be no room for first degree murder, second degree murder and manslaughter on the books. As it was prior to the 1950s, there would only be murder. The overt act would be sole basis on which crimes would be defined.
He managed to convince me that there were real advantages to this. This is one of the examples that he gave. Say a 23 year old alcoholic man, with numerous convictions for assault and propensity for violence when drunk, gets drunk, gets into a fight and kills a man. Under the current system, this man would be likely be treated less harshly than a 60 year old house wife, with absolutely no history of violence, but who carefully carried out the murder of her husband of 35 years for shacking up with a younger woman. He claims, and I agree, that there is every indication that the man poses a much greater threat to society than does the women. The only thing, he claims, that speaks in favor of sentencing the woman to a longer sentence is this: There was no premeditation in the former case and as result you are not going to deter anyone from doing a like act by taking on some extra years. There is, however, premeditation in the later and as a result tacking on some extra years may have some kind of deterrent affect.
Lastly, although he stressed that there was no reason for punishing all people in the same manner, he said that under such a system there would be no barriers to finding someone guilty. A person’s ability to form intent would be irrelevant in determining guilt. The ability to form intent would only ever be a factor in the sentencing portion and even then it would be no guarantee of leniency (as in fictious XYY cases the converse could be true). There would be no reason to treat teenagers, children, people with mental defects and the “criminally insane” any different in determining guilt.
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A justice system (one were there no notion of culpablity) could be structured around the notion that what sentence is given out is given out for more or less the sole purpose of curtailing future criminal acts. As such, two people who committed the same crime would not necessarily receive the same sentence. For example, if it is determined that car thieves under the age of 18 are less likely to re-offend than car thieves over the age of 18, then all things being equal, car thieves under 18 should be sentenced less harshly. When I told him that such ideas would have far ranging consequences, he looked at me and smiled. “I know. It might mean, for example, that a woman would be sentenced for less time than a man for exactly the same crime and that is just the tip of the iceberg”
He also noted that various crimes would also have to be taken off the books. For instance, there would be no room for first degree murder, second degree murder and manslaughter on the books. As it was prior to the 1950s, there would only be murder. The overt act would be sole basis on which crimes would be defined.
He managed to convince me that there were real advantages to this. This is one of the examples that he gave. Say a 23 year old alcoholic man, with numerous convictions for assault and propensity for violence when drunk, gets drunk, gets into a fight and kills a man. Under the current system, this man would be likely be treated less harshly than a 60 year old house wife, with absolutely no history of violence, but who carefully carried out the murder of her husband of 35 years for shacking up with a younger woman. He claims, and I agree, that there is every indication that the man poses a much greater threat to society than does the women. The only thing, he claims, that speaks in favor of sentencing the woman to a longer sentence is this: There was no premeditation in the former case and as result you are not going to deter anyone from doing a like act by taking on some extra years. There is, however, premeditation in the later and as a result tacking on some extra years may have some kind of deterrent affect.
Lastly, although he stressed that there was no reason for punishing all people in the same manner, he said that under such a system there would be no barriers to finding someone guilty. A person’s ability to form intent would be irrelevant in determining guilt. The ability to form intent would only ever be a factor in the sentencing portion and even then it would be no guarantee of leniency (as in fictious XYY cases the converse could be true). There would be no reason to treat teenagers, children, people with mental defects and the “criminally insane” any different in determining guilt.
Thursday, November 06, 2003
In order to be found guilty in our system one has to have a guilty mind. It is for this reason that young offenders, children, people with mental defects and the criminally insane are given lesser sentences or no sentences at all. They are deemed not as capable of understanding all our some of the consequences of their actions. It is also for this reason that people found guilty of manslaughter receive a lesser sentence than people guilty of first degree murder. And finally, it is for this reason that people of Native decent are to be treated more leniently by the courts. In the eyes of the law makers, the social environment is a mediating factor and must be taken into account when sentencing Native Canadians.
One problem with all this is roughly as follows. Rather than being able marshal the full weight of the sciences in its efforts to curb future criminal acts, our legal system is undermined by some of them. Indeed, the social sciences, in so far as they are, as any first year professors will tell you, deterministic, are like little factories producing ready made mitigating factors.
Now, when defense attorneys use one of these ready made mitigating factors, the response of many people is to jump up and to do what amounts to denying the validity of these areas of study. “His childhood had nothing to do with it. He knew exactly what he was doing and he chose to do wrong.” This response is neither legally sound nor rationally convincing. Worse still, it takes the focus away from the true source of the problem, i.e., the notion of culpability. There is no better demonstration of this than the XYY chromosome defense and the decision to have the courts treat Native Canadians more leniently.
Used in the 1970s the XYY argument is in its most basic form this. Males with an extra Y chromosome are inherently violent and thus are not criminally responsible for their actions. The defense failed, but only because the defense was based on bad science. In theory is could have worked. In our legal system, it is possible that someone could be found not guilty because they are inherently violent.
As for Native Canadians, the powers that be looked at the crime figures and saw that Native peoples commit an unusually large number of crimes and have a higher rate of recidivism. They, rightly, concluded that their social environment had something to do with it and in a highly controversial decision decreed that Judges must consider the social environment when sentencing Native peoples. Put differently, their reasoning was this. The social environment predisposes Native Canadians to commit a greater number of crimes, hence high crime rate, and because they are so predisposed Native offenders are not as culpable and therefore should be sentenced more leniently. This is, indeed, consistent with our current understanding of culpability, but needless to say it seems just, well, ass backwards. If someone is more likely to re-offend, or commit some other crime, than it only seems reasonable to give them a stiffer sentence and not a lighter one.
(0) comments
One problem with all this is roughly as follows. Rather than being able marshal the full weight of the sciences in its efforts to curb future criminal acts, our legal system is undermined by some of them. Indeed, the social sciences, in so far as they are, as any first year professors will tell you, deterministic, are like little factories producing ready made mitigating factors.
Now, when defense attorneys use one of these ready made mitigating factors, the response of many people is to jump up and to do what amounts to denying the validity of these areas of study. “His childhood had nothing to do with it. He knew exactly what he was doing and he chose to do wrong.” This response is neither legally sound nor rationally convincing. Worse still, it takes the focus away from the true source of the problem, i.e., the notion of culpability. There is no better demonstration of this than the XYY chromosome defense and the decision to have the courts treat Native Canadians more leniently.
Used in the 1970s the XYY argument is in its most basic form this. Males with an extra Y chromosome are inherently violent and thus are not criminally responsible for their actions. The defense failed, but only because the defense was based on bad science. In theory is could have worked. In our legal system, it is possible that someone could be found not guilty because they are inherently violent.
As for Native Canadians, the powers that be looked at the crime figures and saw that Native peoples commit an unusually large number of crimes and have a higher rate of recidivism. They, rightly, concluded that their social environment had something to do with it and in a highly controversial decision decreed that Judges must consider the social environment when sentencing Native peoples. Put differently, their reasoning was this. The social environment predisposes Native Canadians to commit a greater number of crimes, hence high crime rate, and because they are so predisposed Native offenders are not as culpable and therefore should be sentenced more leniently. This is, indeed, consistent with our current understanding of culpability, but needless to say it seems just, well, ass backwards. If someone is more likely to re-offend, or commit some other crime, than it only seems reasonable to give them a stiffer sentence and not a lighter one.
Saturday, November 01, 2003
MAD (mutually assured destruction) worked pretty well during the cold war. The problem is that the game is now changed. Terrorists seem posed to find away around the US's nuclear umbrella. Nuclear deterrence will not work, it is argued, because the guilty are not associated with any one state and terrorists do not fear death. To make matters worse, terrorists rightly sense that the US has spent its military, economic and political wad rebuilding Iraq.
The way around this, a friend of mine argues, is to change the balance of power calculations of everyone in states, where terrorists thrive, reformers included. According to him, this will require some radical rethinking. 911 he says has all but eliminated the possibility of another Afghanistan. The threat now is more likely to come from terrorists that have set up shop inside countries allied with the US (e.g., Pakistan, Egypt and Saudi Arabia) and Iran, where a large segment of the population is sympathetic to the US. In other words, in addition to everything else, existing alliances and potential alliances stand in the way. This he says must be ignored. The following must be made clear: If terrorists, that thrive in these societies, succeed in carrying out an attack that kills hundreds of thousands of Americans, one or more of these societies will be facing a nuclear winter.
It is only when you spell out the consequences of a major terrorist attack that the key players will readjust their calculations. When I pressed him for examples, he quickley but tententivley mentioned the following examples. Faced with nuclear Armageddon, the reformers in Iran might decide that they must act sooner rather than later; they no longer have the luxury of waiting for the conditions to be just right. He also noted how many experts feel that Egypt has cut a deal with Al Qaeda and it is for this reason that Egypt has suddenly disappeared from Al Qaeda's list of evil doers. Looking down the barrel of a gun, perhaps Egypt does not cut such a deal and decides it must for the sake of national security go to the trouble of cracking down big time on the Muslim Brotherhood , radical clerics et al. )
Now, I am sure even Osama would be stunned if someone told him, "poison LA's water system and we will irradiate Mecca for all time." However, such a plan does, of course, have a few short comings. For one, there is this thing called oil. Radiation and oil extraction do not mix and OPEC, among other things, would be likely to implement a ban that would make the 1973 oil embargo look like a closing out sale. For another, unlike during the Cold War, there would be inevitably be a significant time delay between when the US was attacked and when it responded. It is one thing to lunch a full fledged attack when missiles are minutes away from hitting Washington. It is another thing altogether to spend a month picking up the pieces with the help of the rest of world and then going on to lunch an attack on a government, who while apathetic, hardly sympathize with the attackers
(0) comments
The way around this, a friend of mine argues, is to change the balance of power calculations of everyone in states, where terrorists thrive, reformers included. According to him, this will require some radical rethinking. 911 he says has all but eliminated the possibility of another Afghanistan. The threat now is more likely to come from terrorists that have set up shop inside countries allied with the US (e.g., Pakistan, Egypt and Saudi Arabia) and Iran, where a large segment of the population is sympathetic to the US. In other words, in addition to everything else, existing alliances and potential alliances stand in the way. This he says must be ignored. The following must be made clear: If terrorists, that thrive in these societies, succeed in carrying out an attack that kills hundreds of thousands of Americans, one or more of these societies will be facing a nuclear winter.
It is only when you spell out the consequences of a major terrorist attack that the key players will readjust their calculations. When I pressed him for examples, he quickley but tententivley mentioned the following examples. Faced with nuclear Armageddon, the reformers in Iran might decide that they must act sooner rather than later; they no longer have the luxury of waiting for the conditions to be just right. He also noted how many experts feel that Egypt has cut a deal with Al Qaeda and it is for this reason that Egypt has suddenly disappeared from Al Qaeda's list of evil doers. Looking down the barrel of a gun, perhaps Egypt does not cut such a deal and decides it must for the sake of national security go to the trouble of cracking down big time on the Muslim Brotherhood , radical clerics et al. )
Now, I am sure even Osama would be stunned if someone told him, "poison LA's water system and we will irradiate Mecca for all time." However, such a plan does, of course, have a few short comings. For one, there is this thing called oil. Radiation and oil extraction do not mix and OPEC, among other things, would be likely to implement a ban that would make the 1973 oil embargo look like a closing out sale. For another, unlike during the Cold War, there would be inevitably be a significant time delay between when the US was attacked and when it responded. It is one thing to lunch a full fledged attack when missiles are minutes away from hitting Washington. It is another thing altogether to spend a month picking up the pieces with the help of the rest of world and then going on to lunch an attack on a government, who while apathetic, hardly sympathize with the attackers
