Comments on: The Law in the Real World

By: Shannon Love

Shannon Love — Wed, 11 Feb 2009 00:45:14 +0000

John Burgess,

Fix the system so that there are exceptionally few screw-ups and maybe capital punishment can be justly applied

I don’t suppose you could convert “exceptionally few” into a number a number of some kind? It’s kind of hard to reach an amorphous goal.

By: John Burgess

John Burgess — Wed, 11 Feb 2009 00:23:21 +0000

If we believe that it “better that ten guilty men go free rather than one innocent man be punished”, then the principle should be even more applicable to capital punishment.

Screw-ups happen, innocent people get convicted, bad prosecutors do bad things, smart lawyers can defeat lawyers with the truth on their side. Kinda sucks to be the innocent guy when they stick the needle in your arm, even if the truth will out sometime in the future. Most families I know would rather have a family member still living rather than a cash settlement with the state.

Fix the system so that there are exceptionally few screw-ups and maybe capital punishment can be justly applied. Under the current regime, I’d rather not have executions done in my name.

By: Lexington Green

Lexington Green — Tue, 10 Feb 2009 21:12:47 +0000

“Isn’t that the job of the attorneys?”

Attorneys cross-examine the experts, and they do so with the advice and direction of their own experts. I have seen experts reduced to rubble. I have done it myself. That is precisely what is the supposed to happen. The experts are tested in open court under cross-examination. The jury decides who it believes. Of course, most cases settle before trial. Part of the calculus is the relative strengths of the experts.

By: mishu

mishu — Tue, 10 Feb 2009 20:39:07 +0000

Educating juries, now. That might do something.

Isn’t that the job of the attorneys? Aren’t they supposed to educate the jury as to *why* the scientific evidence is valid or invalid? If attorneys don’t have a foundational understanding of the evidence, how can jurors trust that their argument is valid or not?

By: Lexington Green

Lexington Green — Tue, 10 Feb 2009 16:51:33 +0000

As with any proposed, substantive change in government policy, the mere fact that the status quo is bad is no reason to (1) do anything, or (2) do any particular thing. All changes to government policy have unintended consequences. All changes to government policy have costs associated with making the change. Long standing practices may be bad, but very substantial reason to think some particular change will make a significant and positive difference is the only reason to make any particular change. Criminal prosecution and criminal procedure is a very deeply entrenched part of our legal system and general culture. There is no known system which is very good. It is a continuum of bad and worse. I do not agree that lots and lots of people are victimized by pointless prosectutions, just as I don’t believe there are masses of frivolous lawsuits on the civil side, because the opportunity costs of bringing them are too high. There are occasional abuses, some of them spectacular, of course. Abusive prosecutors should be defeated in elections. The public, however, may like the conduct of what some people consider to be abusive prosecutors. If so, that is a problem of democracy. Taking the selection of these people out of the democratic process will likely make it worse, not better. We will have ideologically motivated prosecutions rather than populist and opportunistic ones.

The main thing we could do to improve the system would be an orderly, step-by-step, wrapping up of the war on drugs. We should start with making marijuana a legal, regulated, taxed product like alcohol or tobacco. Let major companies turn it into branded products sold at liquor stores to people with valid ID over age 21. Give it five years. See what happens. If all Hell breaks loose, don’t go further. If we basically medicalize rather than criminalize the problem, that is an improvement. Further steps could then be considered.