Law

This Debate Would Be Over If the Other Side was Rational

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One of the tactics used by those who advocate banning privately owned firearms is that Great Britain enjoys a lower level of homicide than that found in the United States. The idea is that we could have lower murder rates, if only guns were banned.

Part of their argument is true. The US has a homicide rate about 2.5 times that of the UK.

Kevin of The Smallest Minority discusses out some painful truths about this assertion. He points out that the US homicide rate used to be much greater, but has fallen even though more states have passed laws allowing private citizens to carry concealed firearms. At the same time, the rates of all violent crimes, and all crimes in general, have been climbing in the UK even though they have been passing ever more laws restricting legal self defense.

Seems simple enough. They restrict weapons in the UK, and crime goes up. We allow more people to carry firearms here in the US, and crime goes down. Even if there are other reasons which affected this outcome (and there are), the very idea that banning guns will lead to less crime has been completely discredited. Right?

I wish!

A Vacuum of Will

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Significant piracy has been so long gone from the world that the very word “pirate” evokes only images of 17th-century sailing ships armed with blackpowder weapons. Now pirates have returned to the choke points of the world’s oceans. What has changed? Why could we deal with pirates 150, 100 or 50 years ago but we can’t deal with them today?

I think that, as with terrorism, the return of piracy indicates the collapse of international law and the liberal order it establishes. It tells us how  dysfunctional  international law has become.  

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Cowardice is Eternal

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Glenn posts about an interesting case.

Two subway workers in New York called the police when they witnessed a rape in progress, but didn’t do anything to physically stop the crime. A case brought against them was thrown out of court, the judge saying that calling the cops is all that is required of witnesses.

Glenn isn’t any too happy about the ruling. He says….

“In a previous day, in a different culture, such men would have been afraid of being called cowards for failing to help a woman under such circumstances.”

I don’t think Glenn remembers Kitty Genovese. That particular incident might not have occurred in another culture, but it certainly happened in a previous day.

Look at it this way. At least the New York residents who saw the crime called police this time around. That is certainly an improvement over past performance. Maybe, after another four or five decades, people who live in New York will even become as brave as those of us who hail from flyover country.

Those who follow the links above will no doubt note that two of the three examples are where people who were legally carrying concealed weapons confronted a crazed killer. Since New York effectively bans that sort of thing, we really can’t expect them to have the same level of civic concern. This is, I think, one of the points that Glenn was trying to make.

But also note that the last link leads to the story of two unarmed vacationers who tackled a rifle wielding gunman who was shooting at the White House. Neither of them were from New York.

The Law in the Real World

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Daniel J. Solove wrote a short essay titled “Why the Innocent Are Punished More Harshly Than the Guilty”. His position is that wrongly accused innocent people will, at least sometimes, refuse plea bargains and reduced sentence deals. Instead they will simply insist on their innocence, which will lead to harsher sentences than if they played ball and admitted guilt.

Jonathan wrote a cut-and-paste post of his own, agreeing that our criminal justice system is terribly outdated, woefully inaccurate, and completely unreliable. (Paraphrased for dramatic effect, of course.)

This set off a little back and forth in the comments. Since law enforcement is an interest of mine, I decided to chime in. My remarks soon became too large for a simple comment, so I decided it might be more useful to write a post of my own.

The first comment I want to discuss is by Shannon Love. He runs the numbers an concludes that our justice system works pretty well most of the time, but might be improved if judges were allowed to empower panels of experts to ensure that only reliable scientific testimony is admitted.

This is actually something I come across fairly regularly when someone finds out that I used to work in law enforcement. “Why don’t the cops have this piece of equipment, why doesn’t the courts do things this way?” As Lexington Green points out in his own comment, there just isn’t enough money to do everything. And there never is going to be, since expectations rise as technology increases capabilities. As the system can accomplish more, the public will demand more. And the media isn’t helping any.

Take the popular television drama CSI, where a PhD and a group of others with advanced degrees work the night shift. Just how much money does it take to lure such a dream team away from their studies, anyway? And this is just the graveyard shift! Is Stephen Hawking working the daylight hours?

Forget adding to the burden on the budget by advocating new programs. We can’t afford what is on our plate’s now.

Ginny points out that eyewitness testimony is unreliable, but she is not too crazy about living in a world that encourages us not to believe our “lying eyes.” She also thinks it might be a bad idea to get rid of it. Jonathan says “Eyewitness testimony is not reliable. Everyone knows this except, it appears, lawyers.”

It just so happens that I’ve recently discussed that very thing on my own blog. Bottom line is that the vagaries of eyewitness testimony is extremely frustrating to the professionals who choose a career in law enforcement, but it really is something the system can’t do without. The reason why is that juries always want to to listen to someone who was there, even if it is some flight of fancy. Get a criminal dead to rights, with a non-existent alibi and fingerprints all over the corpse, and you can still have a shaky case unless you can get someone to say that they saw them do the deed.

Harsh reality dictates that no one on the enforcement side of the law cares if the witness really saw what they say they saw, it only matters if the jury will believe. Educating lawyers on basic science would be pointless since their job is only to convince the jury that the science is correct if it bolsters their case, or to convince them that it is suspect if it harms their defense.

Educating juries, now. That might do something.

On that same comment, Jonathan also says “…there is a non-trivial percentage of convictions of innocent people, about which prosecutors profess unbelief even in the face of incontravertible DNA evidence.”

I’m not really sure what he means by that. If Shannon Love’s figures are correct, then only a tiny percentage of death penalty cases are overturned by re-examining the DNA evidence. Is anything less than a 100% confidence rate unacceptable?

If so, I’m afraid that Jonathan is not being very realistic. It is an imperfect world, and violent crime is usually a chaotic and frenzied act that the guilty will desperately try to deny any responsibility for. The standard of “beyond reasonable doubt” recognizes this basic flaw in the fabric of the world, and it is really the best we can do.

(I can’t say for sure how many capital cases are overturned by DNA evidence, or even how many cases have seen the evidence re-examined, because there doesn’t seem to be any statistics on this issue. Groups in favor of abolishing the death penalty claim that no one should be executed because some cases are overturned, which isn’t an argument I find particularly compelling because they like to lump in instances where someone was freed on procedural grounds. This muddies the water further, and I really can’t see any clear picture here.)

Quote of the Day

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In terms of solutions, I would advocate getting rid of acceptance of responsibility benefits. I would also advocate reforming the plea deal system so that there can’t be enormous disparities between punishments offered in a plea deal and possible punishments if a defendant chooses to exercise his or her right to go to trial.
 
I would also dramatically reform the trial process, which is not a particularly good truth-finding mechanism. The rules of evidence, for example, are based on false and long-disproven empirical and psychological assumptions. A big step forward would be reforming the rules regarding eyewitness testimony, which studies consistently show to be extremely unreliable. Certainly the studies that demonstrate its unreliability should be allowed at trial — they’re currently not. And perhaps eyewitness testimony should be excluded from trial if it is so unreliable — at least under certain circumstances.
 
We’re in the 21st Century and the law still uses slightly-updated medieval methods for determining truth. As all the DNA exonerations are showing, our criminal justice system is woefully inaccurate. It’s time we thought about how to reform and modernize it.

-Daniel J. Solove, responding to a commenter on his post, Why the Innocent Are Punished More Harshly Than the Guilty

He’s right.