On-Topic Justice and (our) humanity

[Kulindahr]

You and the Court assume a policy that the guilty should not confess. That is not the pupose of the provision. It prohibits REQUIRING the accused to testify against himself. Not because confessing is bad but because requiring it or forcing it is bad. Obviously confessing is a good thing because it brings more certainty to the criminal system, and frees resources for uncertain cases. The Warren court changes reflect an unconscious anti-establishment or libertarian bias, that sees it as a good thing when crminals get off on technicalities, when they beat the system. Only in that sense is it bad for criminals to confess.
I think the Constitution is clear: All legislative power is vested in Congress.

No, we both assume a legal principle from the time of the Framing: better that a hundred guilty walk free than one innocent be punished. Thomas Jefferson once magnified it, saying it would be better that a thousand guilty walk free than one innocent be punished.

And yet you and other so-called "conservatives" lament that a system in which one in ten or even one in five convicted people are innocent!

All the Court did was take a deeply held principle from the Founders seriously. It's just too bad that they didn't write that principle into the Constitution in the first place.

 

[Benvolio]

No, we both assume a legal principle from the time of the Framing: better that a hundred guilty walk free than one innocent be punished. Thomas Jefferson once magnified it, saying it would be better that a thousand guilty walk free than one innocent be punished.

The Founding Fathers plainly did not want that "principle" to be a grant of legislative power, since they reserved all legislative power to Congress. Advising the guilty to remain silent does not protect the innocent it protects the guilty while overburdening the criminal system.

 

[rareboy]

And they were quite right to do so, since anything said to an officer of the court becomes testimony should they wish it.



I see your point. They could have ordered Congress to draft legislation which would cover the gap -- but perhaps they decided that since the instructions they composed were not likely to be adopted or the legislation Congress might come up with would be insufficient, they would shortcut the process and issue their own.

OTOH, the Constitution is not very clear about how much authority they do have when correcting situations, there's no way to gauge this.

I guess that if you subscribe to three branches of government being equal...there is a fair amount of latitude.

 

[bankside]

If the opposite of poverty is justice, then Obamacare is the first step in the right direction. Obama's tax policy of undermining Boener's tax policy is the next step.

The justice system used to be "duel at dawn" but that is clearly just barbarism. It was removing the self-serve component of "justice" that got us this far. The fact that governments do it wrong is actually an improvement over the self-serve approach, because that means justice is now subject to public scrutiny such as in this thread.

The next step is to eliminate the death penalty.

 

[Kulindahr]

If the opposite of poverty is justice, then Obamacare is the first step in the right direction. Obama's tax policy of undermining Boener's tax policy is the next step.

The justice system used to be "duel at dawn" but that is clearly just barbarism. It was removing the self-serve component of "justice" that got us this far. The fact that governments do it wrong is actually an improvement over the self-serve approach, because that means justice is now subject to public scrutiny such as in this thread.

The next step is to eliminate the death penalty.

A major step that's needed is the elimination of government profit from prosecuting people. Fines for committing crimes is a relic of "the divine right of kings", and should be ended or at least reformed so that the people levying the fines get no return from it. Best solution: all fines for crimes go against the national debt.

Then the burden of court costs has to be taken from the innocent: any court costs, attorney fees, etc. for a person found innocent should be borne by the state. The court-appointed attorney system needs serious reform as well; in many jurisdictions, the cost of the attorney is charged to the accused anyway, regardless of innocence or guilt.

 

[Kulindahr]

Neither is the criminal justice system free. Indeed, the price of freedom in dollars is exorbitant, yet it is itself priceless.

Building a system of mental health care that could take all the mentally ill currently stuck in jails would save money in the not-too-long run.

 

[Benvolio]

Building a system of mental health care that could take all the mentally ill currently stuck in jails would save money in the not-too-long run.

Housing the mentally is probably more expensive even now since they get some degree of care by people with training. If mental hospitals were required to take the mentally ill dangerous criminals they would need to become very much like prisons.

 

[bankside]

When the justice system is a theatre catering to the mob's prejudices so that the "actors" can do well at the next election, it says a lot for the Commonwealth practice of appointing judges instead of letting popular opinion hold sway.

How many people voting for judge-actors and prosecutor-actors even understand mens rea?.

 

[palbert]

Those thinking of institutionalizing the mentally ill should revisit O'Connor v. Donaldson, which set stringent safeguards for the rights of the mentally ill. It will not be an easy task.

See http://www.justusboys.com/forum/thr...-Possibility?p=8590472&viewfull=1#post8590472

 

[Benvolio]

How many people want dangerous people with diminished capacity out on the street? Perhaps there will come a time when it will be possible to ascertain mental illness accurately, predict accurately the probability of future violence or crime, and reliably cure or control it. Until then, there will be little support for making diminished capacity or mental illnessa defense.

 

[Kulindahr]

Housing the mentally is probably more expensive even now since they get some degree of care by people with training. If mental hospitals were required to take the mentally ill dangerous criminals they would need to become very much like prisons.

End the anti-liberty falsely-labeled "war on drugs" and we'd have plenty of space.

 

[Kulindahr]

You could correct indifferent prosecutors who cannot tell or cannot care to tell mens rea from diminished capacity.

Diminished capacity is treated as evasion, which is taken to indicate guilt. Thus it's easier to convict the mentally ill.

 

[Kulindahr]

When the justice system is a theatre catering to the mob's prejudices so that the "actors" can do well at the next election, it says a lot for the Commonwealth practice of appointing judges instead of letting popular opinion hold sway.

I could go for a professional judgeship, subject to citizen recall but not chosen by vote.

 

[Benvolio]

If only jury nullification were a more widely known concept.

The most frequent form of jury nullification happens when the jury disregards the instruction that proof of guilt must be beyond a reasonable doubt.

 

[Kulindahr]

Kulindahr didn't say streets.

Thanks for paying attention to what I actually said -- making up things someone thinks I said or should have said seems to be a common hobby here lately.

 

[Kulindahr]

The most frequent form of jury nullification happens when the jury disregards the instruction that proof of guilt must be beyond a reasonable doubt.

Yep. Jefferson, Washington, Franklin, Adams would all be anguished. That legal maxim, in Jefferson's version, should be on the wall of every jury room in the country:

Better a thousand guilty walk free than one innocent person be punished.

 

[Kulindahr]

^^^

Then again, due process in the 5th and 14th amendments are understood as of 1895 to mean presumption of innocence. Juries cannot nullify the US Constitution, but they often do.

As do prosecutors and judges when they play games with the law.

 

[Benvolio]

Thanks for paying attention to what I actually said -- making up things someone thinks I said or should have said seems to be a common hobby here lately.

No one said that you said streets. Don't get paranoid on us.