Nowhere357

This subject is interesting, and I've been thinking about my next move here. But I've come up blank. All I've seen are rationalizations for the current system, every one of which I understand and agree with. Meanwhile, no flaws in the proposed system have really been identified, at least not enough of a flaw for me to get a handle on.

I strongly feel that the current system is seriously flawed, and it seems to me that the majority of the severest miscarriages occur when punishment is given for outcomes that have no relation to the actions.

A clear example is the hideous three-strikes law. The outcome is the third felony (carrying very severe penalties) while the action may be stealing a hot dog (a misdemeanor, unless on felony probation).

Another example is the takings law. The outcome fits the weird mold they came up with, the action is absolutely nothing, while the crime is a marijuana plant found in your son's bedroom. And the penalty - applied without due process, btw - is the confiscation of your house.

Another example is a recent case here in Colorado, where a volunteer firefighter, driving a van loaded with volunteers, crashed on the way to one of the big fires. There were fatalities, and the cause was carelessness (if I remember correctly). The driver faced stiff penalties, but the obvious public interest in the case surely helped him escape with minimum punishment.

I can't help but wonder how the case would have resolved, if for example it was a van full of black people, on their way to a night club. Even assuming the other factors were the same - no drugs or alchohol, no criminal record - I fear that the lack of public interest could very well have led to a much more severe penalty.

The Lisl Auman story is another horrendous example of over-zealous prosecution that punishes for outcomes that have no relation to the actions taken. We constantly tweak the system to try and address legitimate problems, and the cure is worse than the disease. Because we want the getaway driver to pay for the bank robbery killings (which makes sense), now a relatively innocent and harmless women is in prison for life.

I'm sure I have details wrong in these examples, but I hope you see the point. There is something fundamentally wrong with the current system, and it seems to me that the problem stems from the fact that we punish for more then intent and action. We need to put a shorter leash on the prosecuters.

Here is an example that hits far too close to home. When my boys were 6 and 8, their sitter fell asleep on the couch. They took a bb gun and went plinking in the canal, which they had done before with supervision. After running out of bb's, they played cops and robbers or something like that. Eventually, they walked 2 blocks to the corner store, playing games all the way.

They had money for candy, and while the younger was selecting candy, the older continued the game by telling the cashier they were robbers! She knew they were playing, and said so at the trial. The gun was never pointed at her. (They had learned from me to NEVER point a gun at people or pets. Or windows.)

The cashier scolded them and asked where their mommy was. They lied and said she was in the car. The lady told them to go get their mother. So the boys left the store and walked across the street to another store. It was clear, at the trial, that they did not act in any way like they were hiding or avoiding. They just headed to the next place to buy candy.

I have no rose colored glasses on here. The sitter screwed up, and the boys screwed up. But it was very clear, at the trial, that there was no criminal intent. In fact, this was clear before the trial! The cashier and the arresting officer knew the boys were playing, as well as a couple of witnesses.

But it was local election time, the prosecuter was up, and juvenile crime was the hot-button issue. Very poor timing - he wanted a conviction for political purposes. Before the trial, I asked the prosecuter if, once he realized there was no criminal intent, he would drop the charges. I can still see the shocked expression - he was taken aback by the notion! Anyway, the boys were charged with attempted robbery, and the jury took less then 30 minutes to return with a not guilty.

Ironic to me, is the fact that the boys deserved punishment from the legal system, for disturbing the peace or something else appropriate. But the prosecuter went for the big charge, and got nothing.

If the jury had been fooled - which is often the real goal of the lawyers for either side, and was definitely the goal of this prosecuter - then the boys would have been removed from my home. Just typing this is making my adrenaline flow.

Sorry for the long boring post. But I feel better now.

Thanks Jamie, for this thread, and the other posters for their insights.

Pyrrho

A defense of the idea of punishment being partly based on outcome rather than solely on actions and intentions does not imply a defense of every law as they currently exist. I completely agree that we should change some laws, and I doubt that many would disagree with that general assertion. However, not everyone agrees on how, precisely, the laws should be altered, and, more importantly, the legislators don't agree with each other, and can have ideas that are as idiotic as any ideas can be.

Additionally, the problems you site are not caused by the fact that outcome is used in trials; the problems are caused by a variety of other matters (e.g., prosecutors wanting convictions for political reasons rather than due to an interest in justice, etc.). Absolutely none of the problems you list would be eliminated by removing outcome from consideration in determining criminal penalties. If we consider, for example, the "three strikes" laws, this is not at all based upon the outcome of whatever the third strike is, and consequently whether we consider the outcome of that action or not will be irrelevant to this problem. This case, rather ironically, is caused by the fact that the criminal justice system is given too specific instructions rather than allowing the judges and prosecutors to use their own judgment about how hard to seek punishment for the crime. Conservatives have claimed that our system was too soft on crime, and consequently they passed "three strikes" laws to force severe penalties on repeat offenders, regardless of whether the repeat offence was very important or not.

In other words, when I have defended the idea that we should consider the outcome when deciding on penalties, I have ABSOLUTELY NOT been defending other aspects of the law.

Jamie_L

Pyrrho,

On first reading of the post you re-posted, I thought it was missing the point I was trying to get at. On second reading, maybe it does get at the point. Let me try to respond to it directly.

I don't see this being at all mitigated by our current system. It is quite possible for people to be charged with attempted murder when your intent was only to assault. It is possible to be charged with murder, when actually killing the person was not the intent. If the prosecution believes a person was trying to convict murder, then they should be trying to persue charges and punishments appropriate for murder. It seems odd to say that a lesser charge should exist, just in case the prosecuters have it wrong. One could use this to argue that we shouldn't have 1st degree murder, since the prosecuters could have it wrong about premeditation. Or maybe there should only be manslaughter, and no murder classification. Because people might be getting charged for intentions they didn't have. The current system doesn't really protect people from the problem you have identified.

Furthermore, this reasoning doesn't really apply to some of the other, non-violent crimes we've discussed. Giving someone a ticket for running a red-light, but prosecuting someone for running a red-light that results in a serious accident has nothing to do with intent. Both intents were obvious from the outcome (a red light was run). Both intents were identical. Yet the criminal result can be dramatically different. Again, the proposed system still has a number of distinctions to get at more serious crimes: wreckless driving, wreckless endangerment, various levels of moving violations, etc.

I don't see that at all. No one is proposing the creation of new classifications of crimes. If anything, I am proposing a decrease in the number of classifications. There is currently a "search" for people who run red lights and people who attempt murder. This isn't really a "search" either, it's just responding to actions taken by citizens. Police would respond to the exact same types of actions. You beat someone up, that's asault. You try to kill someone, and that's attempted murder. You actually kill someone, that's still attempted murder. Circumstances will still be examined before applying punishment. There will still be sentencing flexibility. The only difference is that people won't receive less punishment because they were lucky or incompetent.

True, but so far I don't see any objections that make the alternate system seem like it would be less practical than the current system. As Nowhere57 implies, it seems like there are cases where governments attempt to dole out heavy punishments for actions that would not get severely punished if the outcome had been different. In these cases, it does not usually appear that the government is trying to do something practical, or protect someones rights. What it appears (to me) is that they are often trying to take vengence for a wounded community because of the severe outcome. That seems to me to have great potential for miscariages of justice.

Jamie

Pyrrho

First, I have not said that the laws, as they now exist, are exactly correct.

Second, with your example of running a red light, people can run red lights under different circumstances, and some of those are safer than others. Now, it might be best to try to make these determinations more precisely than they currently are, but I'm not sure that it would work out well in practice. Right now, if whatever you do does not have any bad consequences, you get less of a punishment than if there are bad consequences. Generally speaking, the more dangerous something is, the more likely it will lead to a bad outcome, so using the outcome will give an assessment of the danger that will be accurate more often than not. Also, we often allow for a range of sentences for various offences, with the judge and/or jury being able to consider extenuating circumstances, or circumstances that make the case particularly heinous. This means that inaccuracies in the assessment of risk based upon outcome are somewhat correctable.

To make the above a little clearer, consider someone running a red light when they see that the intersection is clear, and no one else is approaching it from any direction. If they really see this, then they can't hit someone, because they are not there to be hit. That person is doing something less dangerous than someone who runs a red light without seeing that there are no other cars to be hit. This person may or may not hit someone else. We are likely to have no way of knowing whether this is the case or not unless they actually hit someone (though we might know this under certain circumstances anyway). Thus, the outcome is relevant to determining how serious their behavior was. If they hit someone, we absolutely know that it was not the first scenario. If they do not hit someone, we probably do not know whether it was the first scenario or not. In the law, people should generally be given the benefit of the doubt (because we don't want to punish people for things they didn't do). Thus, the person who does not hit someone else when running a red light should, at least generally, be punished less than one who does hit someone.


What I mean is that by creating a new system (with, as you say, fewer designated crimes), this will get people to look at crime differently. Right now, the primary focus is on what people do. With your system, I think more prosecutors will be looking for things that never happened, because what actually happens will be officially irrelevant anyway. So I think it is likely that there will be more prosecutions when one hasn't done anything wrong if we adopted your system. I think there are more than enough ridiculous prosecutions now, but I think it could get far worse.

Again, this is not something that follows logically from your proposal; it is something that I think would happen because of what people are.



You are right to say that vengeance is a part of our current system. I am NOT defending that. I am only defending using the outcome of one's actions. Defending that aspect of our current system does not imply any endorsement of any other aspect of our legal system.

Jamie_L

Pyrrho,

We've both expressed our opinions in detail now, so we're probably fast approaching the point where it's pointless to continue. So I'll try not to beat the horses that are dead. Just the ones still twitching.

Most crimes that don't cause harm are only enforced because there is a police witness, and such a witness is in a position to know many details (like how reckless the action was). This is how our current system separates speeding from reckless driving.

An action-based system can have similar flexibility in sentencing. Thus, the potential for over-punishing a misinterpretted intent is somewhat mitigated. In practice, perhaps the two systems would not be as different as either of us imagine.

Here we seem to have a fundamental disagreement. To me, an action-based system still has the focus quite squarely on what people do. In fact, I think it is more focused on what people do. What you do: shoot a gun with intent to kill. What you do: run a red light. What you do: engage in criminally negligent behavior. In the action-based system, nothing is based on things that don't happen. The outcome is still very relevant, because it provides evidence at trial. It simply isn't codified as a determinant of the crime or the punishment. Crimes will still be reported because of people doing things that are illegal. I don't see why prosecutors would go looking for crimes, or even how they would go looking.

I know. I make comments about vengence only because I feel these are the true reasons why our system is the way it is. Your arguements are persuasive, but I don't think they are necessarily universal sentiments. Lately, I feel the current system is an instrument easily (and often) used as a tool of vengence, an idea I find unsettling the more I think about it.

Thanks for the good point, counter-point.

Jamie