Why should one not support the judicial system?

[PetrChelcicky]

I am happy that Anabaptists still shy away from becoming judges etc. But i miss a clear and reasonable theological standpoint - the religious "leaders" don't want to speak about that. Myself, I remember that I wrote about this some years ago, and I mentioned as one of the central problems the "plea bargain".
Let's go back into history. In the early middle ages, decisions about guilt or innocence were often the result of "ordeals". Thereafter they were the results of admissions (the culprit admitting that he "did it"). Which led to the practice of torture - admission got by menacing with bodily damages or if necessary applicating them (torture has survived in the military). Only with the enlightenment came the "Indizienprozess" (a trial based on the look for - more or less circumstantial - evidence), which makes the judicial process similar to the scientific process.

Now I'm just reading Paul Craig Roberts:
https://www.unz.com/proberts/in-court-c ... d-science/
Roberts says:
"97% of all alleged felonies are resolved with plea bargains in which even innocent defendants agree to a lessor charge in order to avoid the risk of a longer sentence imposed by a trial. Only the idealistically few expect a fair trial."
Here we see that the plea bargain is in fact a return to pre-enlightenment standards. The goal is an admission by the culprit and for that he must be menaced with disadvantages (if he doesn't admit) or bribed with the promise of advantages (if he admits).
It doesn't match scientific standards ( but aren't traditional standards in science going down as well?). All in all, it means the end of the enlightened era and the beginning of a new Dark Age.

[Josh]

I couldn't be a judge because I could not faithfully effect good laws and enforce justice, since I would not take personal action to convict someone which would result in his detention or execution. Yet a lawful justice must do exactly those things.

I suppose I could be an administrative law judge that reviewed applications for fishing permits or something.

[Ken]

With respect to plea bargains.

I have a very close friend from college who became a public defender and I've talked with him on this subject at length. A couple of points.

1. Crime is real and pretty pervasive. In my friends decade-long career as a public defender he estimated that out of thousands of defendants, he only ever had a tiny handful of defendants who he thought were truly innocent and cases of mistaken identity or some such. The vast majority of defendants are actually guilty in some way.

2. The main job of defense attorneys (and especially public defenders) is really just sorting out what exactly their defendants are guilty of. Prosecutors often over-charge defendants with crimes that they aren't actually guilty of, or charge them with more serious versions of a particular crime when a less serious charge is actually more appropriate. Part of that is to incentivize plea deals obviously. But it is also the tendency of prosecutors to file as many charges as might be relevant and then sort it out later. One single criminal act such as robbing a convenience store to buy drugs might violate multiple possible laws.

3. The plea process is really often just the prosecutor and defense sorting out what exactly the defendant is really guilty of and working out a mutual agreement as to what charges are actually appropriate.

4. If we were to bring all cases to trial that would probably mean we would need to expand the criminal justice system 10-fold. Ten-times more judges, 10-times more public defenders, 10-times more courthouses, etc. etc. The costs would be astronomical.

Oh, and my friend estimated that probably 90% of his cases had some connection to substance abuse. They were mostly: (1) outright drug possession or drug dealing cases, (2) petty crimes associated with drug use such as car theft, burglary, shoplifting, robbery to support drug habits, or (3) assault, domestic abuse, etc. usually fueled by drugs or alcohol.

It is only the wealthier defendants who tend to get charged with crimes unrelated in any way to substance abuse and they are generally financial crimes.

[Josh]

We have separate “drug courts” here which basically run under a different set of rules. Defendants can choose it if they want. It basically forces the person to get help instead of just throwing them in prison.

[barnhart]

PetrC, it is rare that you and I agree, but this is one of those times. I have been in prisons and know incarcerated people and their families enough to say in my judgement, the current system of plea bargains and trial by torture is an apt comparison.

Ken's points are likely accurate, but it seems a poor excuse to say we can't afford a real trial system for all the crime so we will resort to threats and "torture" and consider the victims to be acceptable loss.

[Ken]

We have separate “drug courts” here which basically run under a different set of rules. Defendants can choose it if they want. It basically forces the person to get help instead of just throwing them in prison.

For the most part, those are just for drug use and drug possession charges and maybe minor other crimes They don't apply to the many other crimes connected to drugs such as:

major drug dealing
money laundering and all the other peripheral crimes related to running a drug business
violent crimes to fuel drug habits such as robbery, carjacking, mugging, etc.
violent crimes resulting from drug habits such as domestic violence, drunken bar fights, drunk driving, etc.

But they are a good thing and what Oregon should have done instead of legalizing drugs. When drugs are still illegal we can use the legal system to forcibly divert people into court ordered drug rehab and treatment as an alternative to prison. When drugs are legal that leverage disappears and society no longer really has any leverage to force people to get help.

[Bootstrap]

PetrC, it is rare that you and I agree, but this is one of those times. I have been in prisons and know incarcerated people and their families enough to say in my judgement, the current system of plea bargains and trial by torture is an apt comparison.

I agree. I think William Stuntz has written about this well.

https://www.amazon.com/Collapse-America ... 006TT3V5C/

From the blurb:

The rule of law has vanished in America’s criminal justice system. Prosecutors now decide whom to punish and how severely. Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with black citizens the primary defendants and victims of crime. In this passionately argued book, the leading criminal law scholar of his generation looks to history for the roots of these problems―and for their solutions.

The Collapse of American Criminal Justice takes us deep into the dramatic history of American crime―bar fights in nineteenth-century Chicago, New Orleans bordellos, Prohibition, and decades of murderous lynching. Digging into these crimes and the strategies that attempted to control them, Stuntz reveals the costs of abandoning local democratic control. The system has become more centralized, with state legislators and federal judges given increasing power. The liberal Warren Supreme Court’s emphasis on procedures, not equity, joined hands with conservative insistence on severe punishment to create a system that is both harsh and ineffective.

But I disagree with the title of this thread. We should push for reform in the judicial system. There must be a judicial system. The only alternative is torches and pitchforks. As a country, we need civil ways to resolve disputes. If we do not have civil ways, there will be other ways ...

What would get us out of this Kafkaesque world? More trials with local juries; laws that accurately define what prosecutors seek to punish; and an equal protection guarantee like the one that died in the 1870s, to make prosecution and punishment less discriminatory. Above all, Stuntz eloquently argues, Americans need to remember again that criminal punishment is a necessary but terrible tool, to use effectively, and sparingly.

[Ken]

PetrC, it is rare that you and I agree, but this is one of those times. I have been in prisons and know incarcerated people and their families enough to say in my judgement, the current system of plea bargains and trial by torture is an apt comparison.

Ken's points are likely accurate, but it seems a poor excuse to say we can't afford a real trial system for all the crime so we will resort to threats and "torture" and consider the victims to be acceptable loss.

We do have a real trial system and every defendant is entitled to a trial by jury and judge if they so wish. Every American charged with a crime is entitled to request a jury trial in front of their peers.

But the fact of the matter is that the vast majority of people charged with crimes are actually guilty of the crime. And the police and prosecutors have enough evidence to prove that they are guilty in a court of law. Otherwise they would likely not have been charged in the first place since prosecutors do not want to charge innocent people and they also don't like to lose cases due to inadequate evidence. Most criminals are actually pretty stupid and the prisons are full of people who dropped out of school and can barely read or write if at all. Criminal masterminds are few and far between, most criminals leave obvious evidence of their guilt.

So I honestly think it is just fine to provide accused criminals with a shortcut process where they can confess to a crime and accept their punishment. But in order for that to actually work you need to give them some incentive to do so which is done through lower sentences. Without an incentive for people to confess to crimes, no one would ever plead guilty. There is no incentive to do so.

The real issue is probably excessively long sentences and things like 3-strikes laws that end up putting people into prison for life for relatively small crimes. Rather than abandoning plea bargains, the better reform would probably be sentencing reform and then general penal reform so that prisons are more productive places for people to spend their time. And of course there are racial and class disparities in our criminal justice system as well. All of those need reform.

Relative to other countries, our justice system is pretty harsh. That is true. Relative to Biblical times it is pretty lenient. The Romans during the time of Christ were far more punitive than we are today in the US. Executions were far more common for relatively minor crimes. The criminal executed beside Jesus was a petty thief. And if criminals were not executed, the Romans often sent them into slavery to toil in salt mines or some such where they will be worked to death in a matter of months or years. This is the criminal justice system that Jesus and Paul said to submit to. And I'm not even talking about Old Testament Leviticus and Deuteronomy. I'm talking about the New Testament world. Which was the world that existed for most of human existence and Christianity up until probably the 20th Century. One only has to read Crime and Punishment or Les Misérables to conclude that 19th Century criminal justice was much closer to Roman times than today.

[Robert]

The US does not have a justice system. The US has legal system.

[barnhart]

I agree with bootstrap that the title of this thread is not a concept I can embrace even though I agree with the general concept of the opening post.