Rationality & Criminal Law: Some Questions
The following will explore a couple of areas in which I feel that the criminal justice system of many Western countries might be deficient, from the standpoint of rationality. I am very much interested to know your thoughts on these and other questions of the law, as far as they relate to rational considerations.
Moral Luck
Moral luck refers to the phenomenon in which behaviour by an agent is adjudged differently based on factors outside the agent’s control.
Suppose that Alice and Yelena, on opposite ends of town, drive home drunk from the bar, and both dazedly speed through a red light, unaware of their surroundings. Yelena gets through nonetheless, but Alice hits a young pedestrian, killing him instantly. Alice is liable to be tried for manslaughter or some similar charge; Yelena, if she is caught, will only receive the drunk driving charge and lose her license.
Raymond, a day after finding out that his ex is now in a relationship with Pardip, accosts Pardip at his home and attempts to stab him in the chest; Pardip smashes a piece of crockery over Raymond’s head, knocking him unconscious. Raymond is convicted of attempted murder, receiving typically 3-5 years chez nous (in Canada). If he had succeeded, he would have received a life sentence, with parole in 10-25 years.
Why should Alice be punished by the law and demonized by the public so much more than Yelena, when their actions were identical, differing only by the sheerest accident? Why should Raymond receive a lighter sentence for being an unsuccessful murderer?
Some prima facie plausible justifications:
Identical behaviour is hard to judge—perhaps Yelena was really keeping a better eye on the road than Alice; perhaps Raymond would have performed a non-fatal stabbing.
The law needs to crack down harder when there are actual victims, in order to provide the victims and families a sense of justice done.
This could result in far too many serious, high-level trials.
Trial by Jury; Trial by Judge
Those of us who like classic films may remember 12 Angry Men (1957) with Henry Fonda. This was a remarkably good film about a jury deliberating on the murder trial of a poor young man from a bad neighbourhood, accused of killing his father. It portrays the indifference (one juror wants to be out in time for the baseball game), prejudice and conformity of many of the jurors, and how this is overcome by one man of integrity who decides to insist on a thorough look through the evidence and testimony.
I do not wish to generalize from fictional examples; however, such factors are manifestly at play in real trials, in which Henry Fonda cannot necessarily be relied upon to save the day.
Komponisto has written on the Knox case, in which an Italian jury came to a very questionable (to put it mildly) conclusion based on the evidence presented to them; other examples will doubtless spring to mind (a famous one in this neck of the woods is the Stephen Truscott case—the evidence against Truscott being entirely circumstantial.
More information on trial by jury and its limitations may be found here. Recently the UK has made some moves to trial by judge for certain cases, specifically fraud cases in which jury tampering is a problem.
The justifications cited for trial by jury typically include the egalitarian nature of the practice, in which it can be guaranteed that those making final legal decisions do not form a special class over and above the ordinary citizens whose lives they effect.
A heartening example of this was mentioned in Thomas Levenson’s fascinating book Newton and the Counterfeiter. Being sent to Newgate gaol was, infamously in the 17th and 18th centuries, an effective death sentence in and of itself; moreover, a surprisingly large number of crimes at this time were capital crimes (the counterfeiter whom Newton eventually convicted was hanged). In this climate of harsh punishment, juries typically only returned guilty verdicts either when evidence was extremely convincing or when the crime was especially heinous. Effectively, they counteracted the harshness of the legal system by upping the burden of proof for relatively minor crimes.
So juries sometimes provide a safeguard against abuse of justice by elites. However, is this price for democratizing justice too high, given the ease with which citizens naive about the Dark Arts may be manipulated? (Of course, judges are by no means perfect Bayesians either; however, I would expect them to be significantly less gullible.)
Are there any other systems that might be tried, besides these canonical two? What about the question of representation? Does the adversarial system, in which two sides are represented by advocates charged with defending their interests, conduce well to truth and justice, or is there a better alternative? For any alternatives you might consider: are they naive or savvy about human nature? What is the normative role of punishment, exactly?
How would the justice system look if LessWrong had to rewrite it from scratch?
Looking at the comment thread here, it seems to me that many commenters are unaware, or at least fail to remember, that in the U.S. and Canada, and presumably many other Anglospheric common law jurisdictions, well over 90% of criminal cases are these days resolved by plea-bargaining and never reach trial.
This is an essential feature of how the criminal law system works today—the whole infrastructure of criminal courts would be overwhelmed to the point of collapse if it actually had to provide jury trials for more than a tiny minority of all defendants who get convicted. In the contemporary socially atomized and thoroughly bureaucratized society, in which law has become complex, vast, and abstruse to the point where it’s completely outside the intellectual grasp of the common person, trial by jury is little more than an ancient historical relic. Focusing on juries as a central issue of the modern criminal law makes little more sense than focusing on the monarchy as a central factor in the modern U.K. government and politics. Of course, jury trials provide good material for movies and TV shows, and like in many other things, folks who haven’t had any personal experience with the system tend to mistake what they seen on TV for reality.
The true backbone of the contemporary American criminal law are the discretion of the police and prosecutors to investigate, arrest, and bring charges, and the subsequent plea-bargaining procedure. You can still insist on a jury trial, but the system has developed to the point where prosecutors can wield threats that will nearly always make it safer to plea-bargain. They can crank up the list of charges to the point where even with a very small probability of being found guilty, the probabilistic expected penalty is higher than what you’re offered to plea-bargain for—and even if you’re innocent, it takes a good and very expensive lawyer to reduce this probability to a negligible level. Not to mention that if things reach trial, cops and prosecutors are sometimes—and arguably quite often—willing to use very dirty tricks, up to an including perjury and faked evidence.
All this is not necessarily bad. Honest cops and prosecutors may well be more accurate in determining guilt than typical juries—but any realistic analysis of the system should focus on them as the central decision-making agents on whose accuracy and honesty the quality of the system hinges, not juries.
Most hands of poker are decided without showing the cards. Does that make the cards irrelevant? Of course not; everything that happens is conditioned by the probable outcome if there were a showdown, as judged by the players in the hand. Changing one player’s hand could change everything, even if no one else ever sees it.
A change in the way verdicts are reached will be much more powerful, being seen by both sides. Therefore even if nothing is done about the plea bargain system (and something should be done), the key to the game is still the “showdown”.
I think cops and prosecutors are better at identifying perpetrators and even more accurately criminals; the problem is not all cops and prosecutors are honest, and of course even honest people make mistakes.
I do not think though, that 12 amateurs hashing over a mountain of evidence and statements are better or fairer than one person who is skilled at such a task.
So in a sense, I think the current system is “ok”—that is it is a terrible system and the only thing worse is any other system that has been tried (in large societies). The specter of a jury trial sets the stakes for everyone and does help keep cops and prosecutors honest to a significant degree. No prosecutor can have a losing record in jury trials and expect a long career, so they also have incentives to make deals or to dismiss cases that they don’t have the stones to try.
jhuffman:
That, however, is a double-edged sword. It also gives the prosecutor a strong incentive to use every dirty trick available to ensure a guilty verdict should the defendant refuse to enter a guilty plea. Since the cops typically have at least some incentive to cooperate with the prosecution, this can stack the deck heavily against a defendant who can’t afford a super-capable defense lawyer.
This is especially problematic considering that forensic labs are hardly a paragon of pristine scientific objectivity—they are run by the cops, after all, and base their work on lots of questionable “science”. Moreover, according to the stories I’ve read from defense lawyers, the truth of police testimony is normally taken for granted by juries, unless the defense can muster overwhelming evidence to the contrary.
Overall, it seems to me that unscrupulous prosecution supported by the police has a very good chance of railroading any defendants who can’t actively prove their innocence (and even those often won’t be able to pull it off without a very good and very expensive lawyer). Therefore, the net influence of the prosecutors’ incentives to win jury trials on the quality of the system is questionable.
Before discussing justice from the standpoint of rationality, we need to agree on the goals of justice. Are they to prevent crimes, to punish those convicted, to provide relief to the victims (monetary, by injunction, or by feeling vengeance has been done), to ensure laws are implemented, or to create other second-order effects on society by being seen to enforce moral standards? And how should these goals be balanced?
In my opinion, the main contribution a group of rationalists could make to criminal justice reform is to point out that, under certain plausible assumptions about goals, some policies are strictly counterproductive.
For example, most academics who use quantitative studies to investigate the effect of jail sentences find that jail time increases recidivism rates. In other words, putting someone in jail makes them likely to commit more total crimes over the rest of their life as compared to simply being released immediately. This is one decent paper on this topic that isn’t behind a paywall; Professor Ian Shapiro at Yale University can refer you to more recent, more damning papers. If you believe this evidence, it follows that pushing long jail sentences to cause specific deterrence is flat-out irrational, and should be discontinued.
Likewise, jail time is highly unlikely to “make victims whole,” nor does it seem especially well-suited to this task. I am not aware of any evidence showing that victims claim, in surveys, that having criminals in jail makes them more whole, let alone that said victims enjoy objectively healthier, happier, or more successful lives when perps are in jail. The Athenian system described in one of the other comments here, in which prosecutors (or perhaps even victims) propose a punishment, seems like it would strictly dominate a strategy that basically said “let’s put X in a box and force him to do nothing.” Making people do nothing, at best, causes nothing to happen. To me, at least, this seems like the sort of insight that is available to rationalists and useful to the outside world even if we can’t agree on how to trade off one goal against another.
Jail sentences are hurtful as they are now; but we also have the option of changing the jails themselves. The constraint of “keeping people outside normal society” allows for many variations.
As one example, there is the idea of penal cities, for convicts not considered immediately dangerous to other people (i.e. not serial murderers). They could perhaps use a hi-tech method of tracking and monitoring all inmates to provide an experience both more pleasant and more productive than ordinary jails.
Also, are you aware of studies like the ones you describe for countries other than the US? I often hear anecdotal evidence on the net about US jails being specially bad in many respects.
Currently, the Constitutional prohibition against “cruel and unusual punishment” prevents most U.S. judges from imposing “creative” sentences.
A guy in my apartment complex was pulled over on suspicion of DUI. He had the flu at the time was never given a sobriety or BAC test. (He’s also an immigrant from South America, which probably doesn’t help around here.) However, until his hearing before the judge, he had to have an ignition sobriety lock installed on his car which requires him to take a breath test when he starts up and then periodically, or else it slows down and stops.
I’d count that as pretty “creative”, and not something I thought was even done anywhere (unusual). And it gets into “cruel” territory since the guys that install it are lax about the battery quality of the device putting you at a huge risk of being stranded.
(yes, that means I made a new acquaintance and hit it off well enough to drive around with him, blah blah blah)
NOTE: I don’t know US law at all well, I don’t know how the passage is currently interpreted, I just know how I feel about the concept in and of itself.
There’s good reason IMO to ban “cruel and unusual punishment”
But “cruel and unusual” is as worded, very specific. For a punishment to be “cruel and unusual” you must answer yes to both the following:
is the punishment cruel?
is the punishment unusual? (imprisonment can be quite cruel, but it’s common)
If a law was passed stating that from now on a multitude of crimes were to be punished by the flaying of the left foot of the perpetrator; this would be cruel. It would not, however, be unusual, because it would be being applied to many people convicted of many crimes. This degree of consistency gives at least some deterrent value to the punishment.
If a judge sentenced someone to the flaying of their left foot, with no other changes in our society going on, that would be cruel AND unusual. It would not serve as a deterrent, because people wouldn’t expect to be tried by that specific judge.
I suspect ‘usual’ there meant not “done frequently” but “according to usage or custom”.
English is generally ambiguous on these matters, when one tries to translate it into more precise logical terms. In the US version of this:
We can read the last clause as “Cruel and unusual punishments shall not be inflicted.” But it is ambiguous in common use whether this outlaws punishments that are both cruel and unusual, or if it outlaws both cruel punishments and unusual punishments.
Historically, the Supreme Court has interpreted merely cruel punishments as violations of the Eighth Amendment (According to Wikipedia) but I’m not sure about ‘unusual’.
IANAL.
Sure, but it’s just case law, and it’s not necessarily the most popular bit of caselaw, either. If you could actually convince the public that creative sentences were desirable, you could probably get the US Supreme Court to suddenly ‘discover’ that cruel and unusual punishment is referring only to, e.g., “disproportionate” punishments or “outrageous treatment that shocks the conscience.”
It only follows if you focus on deterring convicted criminals from recidivism. How about deterring people from becoming criminals to start with?
Are you saying that “pushing long jail sentences to cause specific deterrence” should be discontinued (which makes sense, if the specific deterrence is deterring recidivism), or that “pushing long jail sentences” should be discontinued? (which doesn’t follow—you have only provided evidence that long sentences don’t fulfill the goal of deterring recidivism, not that it doesn’t fulfill any other goal)
There may be some other sort of penalty that would both deter recidivism and also deter people from beginning criminality. Corporal punishment, for example.
Great question. Here are my answers:
Protect society by preventing and deterring crime, both in the specific case of the person being prosecuted and others.
Preventing crime includes doing so by preventing bad actors from being around other people who they could kill or maim or whatever other bad thing they like to do.
When possible, make victims whole.
I don’t believe in punishment as valid, but making victims happier has substantial value. So from a societal point of view, I want punishment to have a specific purpose; part of that purpose may be giving victims a sense of justice.
“Ensuring laws are implemented,” strikes me as a second-order question; we want laws to be implemented fairly and equitably to achieve the above goals. Uniform sentencing for similarly-situated bad actors is something that accomplishes crime prevention.
Make more total utilons for society.
(I’m a prosecutor; that doesn’t mean I’m right about any of this.)
Off-topic, but I’ve been dying to ask a prosecutor this: what’s your take on qualified immunity? I don’t understand the rational basis for it; is there something I’m missing?
I can think of a few things that I might change about how trials are conducted in the United States.
Suggestion 1: Don’t have the jury in the courtroom as the trial is taking place. Instead, make video recordings of all testimony and show them to the jury after each witness’s testimony is concluded. And if a lawyer or witness makes a statement that the jury is not supposed to hear, it can be removed from the tape instead of the jury hearing it then being asked to ignore it. Also, allow the jury to review the tapes during deliberations, so they don’t have to rely on memory alone.
Suggestion 2:
Allow jurors to question witnesses, but only indirectly. After the attorneys are finished questioning a witness, ask the jurors to submit in writing any questions they would like to have the witness answer, have the attorneys from both sides read the questions, and then give both attorneys the opportunity to question the witness further. If a question is relevant and legal to ask, it will likely be in the interest of one of the sides to ask it, and using the attorneys as intermediaries seems like it would make juror-directed questioning less likely to lead to problems with inappropriate questions. (I don’t know if this would actually work or not, though.)
Here’s a bit of information on juror-submitted questions.
Suggestion 1 seems pretty cool, but it has practical downsides. You also can’t watch the jury as an attorney; sometimes those reactions are helpful in fact-giving.
The jury can get readback or playback in criminal trials with redactions for disallowed questions and testimony. So that’s already in place—jurors frequently ask for readback.
Suggestion 2 is allowed in California, a relatively new development, and it’s done exactly like this. Trial judges can allow or disallow such questioning. In short trials (1-3 days), I’m not sure if there’s a substantial benefit, but I tend to like them. In long trials, I think they are great and work great.
As a related observation, one apparent bias that reflects the status considerations in the modern Anglospheric world in an interesting way is that while drunk driving has come to be considered as a heinous crime, the even more dangerous practice of driving sleep-deprived attracts no significant attention. It’s not even that much of an enforcement problem—if “sleepy driving” became as much of a public attention-grabbing buzzword as “drunk driving,” I’m sure our best technical minds would be up to the task of devising effective field tests for sleep deprivation, to be administered along with breathalysers.
I upvoted this to start with, then changed my mind. The statistics I’ve seen make alcohol clearly the leading cause of fatal car accidents.
Where did you get your data? I haven’t been able to quickly find a chart comparing car accidents in general by cause (e.g. alcohol- vs. cell-phone- vs. fatigue-related).
Also, how do you define “dangerous”? There are various measures we could use (total cost of crashes based on repair costs, total fatalities, risk increase per trip, etc.) and perhaps the two causes compare differently on different measures.
Finally, what the heck does “status” have to do with this, as opposed to merely “public perception of the importance of a given issue”?
Some people claim that most crashes involves sleep deprivation, but I agree with Vladimir that we have no idea.
What is suggestive is two studies of one hour differences in school start times (americans drive to school at 7:30 at age 16). One compared Virginia Beach to Chesapeake. Better was when Lexington changed its start time. The student crash rate went down 16%. The state rate went up by 8%, so these are very volatile numbers and this could be data-mining. Also, day light savings causes crashes to spike. What’s great about the school studies is that they’re about practical interventions and not just assigning blame.
Morendil:
My comment probably wasn’t clear enough—I didn’t claim that sleep-deprived driving is a more frequent cause of accidents than drunk driving. I merely meant to say that it can pose even greater danger when it happens, and that it does happen often in practice. I would surely be far more dangerous on the road after a sleepless night than with a BAC of double the legal limit, though admittedly, there are probably people who handle sleep deprivation much better and alcohol much worse.
Now, obviously, there are no systematic data on how frequently it actually causes accidents. People who get into accidents won’t just go ahead and say that they were at fault for driving tired and sleep-deprived, and nobody will check them for this, unlike for alcohol. So we have to go by extrapolating from personal experience.
Another significant data point is that professional drivers are strictly regulated in this regard, with the rationale that sleep-deprived driving is extremely dangerous. I’ve never seen anyone challenge this consensus.
The latter follows from the former. In North America, drinking alcohol is a fairly low-status activity (except perhaps for some sorts of connoisseurship, but even that is limited only to certain social circles). Drinking enough to cause any sort of impairment is considered extremely low-status. Thus, cracking down on drinking and driving is easy to sell as a winning political move in these times when promoting safety is among the most important strategic patterns in politics. In contrast, the image of industrious folk who rise early, work hard till late, and have no time for the lazy luxury of a good night’s sleep, invokes much more positive and high-status associations, even if their drowsy commutes impose as much danger as if they were drunk.
As another status-related observation—but note that this one is speculative and meant more as a suggestion for thought than a definite conclusion—it seems to me that the global trend for changing the nature of drunk driving from a peccadillo to a serious offense, even in places where boozing is looked upon much more favorably than in the U.S., is, like many other global legal and social trends, driven by following what the Americans do. Thus, it’s a reflection of the global high status of the U.S., which has been among the principal forces in the course of world history in recent decades.
Like so many other status-related “explanations” this strikes me as a just-so story with no actual predictive power and no ready base of facts to check it against. For instance, the sayings in France “la France qui se lève tôt” (the early rising part of the country) and “la France d’en bas”) (the bottom tier) are nearly synonymous in political discourse. It’s hard to see that as a high status association.
Cracking down on drunk driving is easy to rally support for because—just as you said—doctors check for blood alcohol levels every single time a crash sends someone to the hospital. Facts are readily enrolled in support of the cause, whereas they remain more obstinately neutral in the case of non-professional fatigue.
This IMO is a much more fruitful line of inquiry than “status” if you’re genuinely interested in explanations for the dynamics of “hybrid” controversies where both nature and society play significant roles. I’ve found the writings of Bruno Latour a clear and effective antidote against simplistic thinking on such issues (see his The Berlin Key for a series of short pieces that illustrate his approach). Some of his stuff is apt to give Alan Sokal a smug smile, I’ll grant, but more of it is quite incisive.
Morendil:
One prediction is that advocating a more severe crackdown on drunk driving will elicit general approval, and may well be a good tactic for a politician, whereas advocating a forcible crackdown on sleep-deprived driving will make people think you’re a weirdo, no matter how good evidence you can show for the harm caused by it. This seems consistent with reality, as far as I see. If tomorrow a study appears making an airtight case that sleepy driving is actually as harmful as drunk driving in practice, do you think the government will rush to make it a criminal offence and start a project for devising practical field tests for sleep deprivation to be issued to cops along with breathalysers?
Another prediction is that if a prominent and reputable individual publicly admits to drunk driving, it will stir up controversy and damage his reputation—whereas if he instead tells a true story that involves him driving sleep-deprived in a manner that can be shown to pose a similar level of danger, this won’t raise any significant number of eyebrows. This also appears to be true. (For example, imagine what the reactions to a post like this would be if it involved drunk driving instead of what appears to be a reckless episode of sleep-deprived driving.)
However, in practice, the issue of drunk driving is given enormous public attention and the evidence for its harmfulness, though abundant and relatively clear, is often exaggerated (just look at the often ridiculous definitions of “alcohol-related” accidents in the commonly presented statistics). The evidence for harm from sleep-deprived driving might be less abundant and systematic, but the issue is given near-zero attention in comparison, which is way out of proportion even when we account for the scantiness of the evidence. Something other than a comparison of the available evidence must be invoked to explain this discrepancy.
“Something other than a comparison of the available evidence must be invoked to explain this discrepancy.”
Yes, but what leads you to think that a status-based explanation is helpful here? The two predictions you listed are both perfectly compatible with many non-status-related hypotheses. For example, it’s quite plausible that one meme happened to get a head start.
Hypothesis: Driving-while-drunk is a much bigger deal now than it was several decades ago, and it maintains its prominence primarily because of momentum: people keep talking about it because “everyone’s talking about it”. In order for driving-while-sleep-deprived to hold the same position, it would have to climb up that same hill, and the necessary PR work and/or meme pool churn hasn’t caused that to happen yet.
That, however, is not really an explanation, but merely a statement of what has happened. Why did one issue get a head start, and why is it being talked about in a self-reinforcing way, and the other not?
It seems clear to me that there must be something about these two behaviors that makes people react to them differently, independent of any objective evaluations of their dangerousness. But what is it? I honestly can’t find a better explanation than the associations people have with each behavior, where status considerations play an important role in shaping their response.
Another significant clue is that regulations intended to curb dangers from sleep-deprivation are brought and enforced against truckers, but not against medical residents, who regularly get behind the wheel after working 30-hour shifts (and not to even mention treating patients under such sleep deprivation). Do you believe that the dramatically different treatment of these professions has nothing to do with their status?
I agree that the differential treatment between professions is stronger evidence of status having an effect.
However, if I understand what you’re saying correctly, I don’t think this statement makes sense:
Alone, not being able to find a better explanation for something than X isn’t good support for X being the explanation. There needs to be significant positive evidence in favor of X, or there’s no reason to choose it over “Ayedunno” (aka the null hypothesis).
You’re right, of course. This statement certainly wasn’t well formulated. I do see significant positive evidence, however, even if the case isn’t airtight.
A less strong and more limited claim would be that the different treatment of these issues is—to some extent that can’t be determined exactly but is definitely significant—due to the fact that alcohol impairment evokes extraordinarily negative associations in the North American culture, which biases upward the amount of attention given to problems that involve this factor, as well as the intensity of public condemnation of people causing such problems, relative to similar problems that don’t involve this particular factor. It seems to me that this claim is evident from the facts mentioned earlier.
Saying that the cause of bias is that drinking is low-status is basically a shorthand for the above long-winded statement, with the added claim that the negative view of alcohol is to a large degree status-related, and that the apparent indifference towards certain dangerous behaviors similar to drunk driving is strongly reinforced by the fact that cracking down on them would mean condemnation and meddling into the lives of lots of high-status respectable folk. I agree that this latter point is harder to justify, and my personal view of it is influenced by personal observations and experiences that are hard to translate into formal written arguments.
A head start is sufficient to answer the second question. It is also at least as much as an answer as ‘status’. In both cases more detail is required. I am not taking a position here myself but if I wanted to find reasons for a ‘head start’ I would look at behvaioral trends at the time where this issue became a problem. Were people getting drunk or depriving themselves of 30 hours of sleep more often?
Literally, “The France that lifts itself early” and “The France of the base”?
Not quite. “Se lever” in this context directly means rising, as in rising from bed, “en bas” is a direction, literally “below”.
But any time alcohol is involved in a fatal car accident, it will be identified as ‘the cause’, regardless of whether the accident would have happened anyway, or would not have happened if some other factor had been fixed.
If it were the case that drunk driving was fairly common and it was only slightly correlated with higher incidence of accidents, I would still expect folks to blame accidents where the driver was drunk on the alcohol.
You’re right, I was careless in speaking of “cause” when I really mean “present in a larger proportion of fatal car accidents than any other measured risk factor”.
In my neck of the woods,
This relies on a method for estimating the “base rate” which isn’t disclosed, but if correct this seems on its face to support the causal inference. By comparison, from the same study,
This is a report by professional accidentologists, and in France at least there is serious pressure on everyone involved to do a thorough job of analysis and reporting. Every single accident involving physical injury (severe enough for police to be involved) is reported in detail by the police on the scene on a standardized form which is then filed for central aggregation.
Reduction of driving related fatalities has been a major political objective in the past few years—moreover, one that is showing actual results. There are few enough instances of such efforts bearing fruit that this exception is worth noting. So, at present I have no particular reason to believe that sleep-deprived driving is “more dangerous” than drunk driving and that the focus on the latter reflects anything other than an appropriate evaluation of the relative safety gains.
I might change my mind if I came across a specific critique of the methodology used to collect accident data and likely causal factors.
I do wonder if ‘sleep-deprived’ is even suspected / reported in someone who is also drunk. I would imagine that a lot of drunk drivers are also sleepy, and I’m not sure you’d notice the symptoms of sleepiness and not attribute that to the alcohol.
You’d have to look closer at the statistics, I suspect that the clustering of fatalities would give a fairly clear picture: for instance, an altogether too frequent type of DUI fatality is young adults driving home from a night out, dancing and drinking, in the wee hours of the morning. Obviously fatigue is a factor on top of alcohol, but it’s not clear that anything would be gained by counting those as “sleep deprivation related accidents”.
I suspect that a kind of Pareto analysis is what’s really called for in limiting the costs of traffic accident; you want to target, not generic causes (e.g. speeding or drunk driving or fatigue) but specific clusters of behaviours that account for disproportionate numbers of accidents. If you can stamp out driving-home-drunk-and-tired-from-nights-out behaviours, you’re already reducing the total fatality count by a lot. (This is precisely how traffic safety campaigns have been organized lately here.)
Oh, and I forgot to address this part:
I’m not at all sure how sound these statistics are. What I usually see are claims that a very high percentage of the total number of car accidents are “alcohol-related.” However, whenever I try to find out how exactly an accident is determined to be “alcohol-related,” the definitions turn out to be murky and spurious, or even outright ridiculous. For example:
So, these people take the percentage of all fatal accidents in which not everyone happened to have flat-out zero BAC, and later use this number as if it represented the percentage of fatal accidents actually caused by drinking. This is obscene even by the usual standards of lying by statistics.
I think you can get some useful insights into the reasons why punishments might differ based on moral luck if you take an ex ante rather than an ex post view. I.e. consider what effect the punishment has in expectation at the time that Alice and Yelena are deciding whether to drive home drunk or not, and how recklessly to drive if they do.
Absent an extremely large and pervasive surveillence system, most incidences of drunk driving will go undetected. In order to acheive optimal deterence of drunk driving, those that do get caught have to be punished much more. While drunk drivers will face different punishments ex post, the expected punishment they face ex ante will be the same. If there are in fact factors that make your drunk driving less dangerous (less drunk, more skilled driver, slower speed, etc.), these will decrease the expected punishment.
So basically, the ex ante expected punishment for a particular dangerous act does not differ based on moral luck. Ex post punishment does differ, and that is a cost, but the countervailing benefit of not having a costly and intrusive surveillence system outweighs it I think.
Notes:
This is the second time I’ve linked this recently, but Gary Becker’s Crime and punishment: An economic approach is a very useful way to think through these issues.
This argument applies much less in the attempted murder / murder case, because the chance that an attempted murder is caught and prosecuted is much higher, probably even higher than the probability a murderer is caught (because the victim usually has lots of relevant information).
For the purposes of this comment, I considered drunk people to be rational actors. They are not, but this is a nonissue, because drunk selves are only allowed to exist at the discretion of sober selves.
Further, it’s plausible that if you had a ‘budget’ of N prison places and M police officers for drink-driving deterrence, the most effective way to deploy it would be to arrange for a highish probability of an offender getting a short prison sentence, plus a low probability of getting a long sentence (because we know that a high probability of being caught has a large deterrent effect, and also that people overestimate the significance of a small chance of ‘winning the lottery’).
So the ‘high sentence only if you kill’ policy might turn out to be an efficient one (I don’t suppose the people who set sentencing policy are really thinking along this lines, though).
But people also play Martingale systems on roulette. These have a good chance of going well, and a small chance of going really, really, badly. So people don’t just overestimate small chances. I think they tend to overestimate the probability of events that benefit them, but this may depend on whether they are in near mode or far mode. If they were in far mode they might begin to fret more and more about the small probabilities.
Juries were originally taken to know something about the relevant events. The modern form of jury trials is a weird hybrid of inherited practices and contemporary political ideals. Like most legal phenomena :-)
That modern juries are inexperienced in criminal matters could be a positive feature. Judges may be jaded by constant exposure to narratives of crime. In wealthy countries, serious crimes are exceptional events. Jurors have reason to pay attention to narratives of such events.
Further, legal experts worry about naive juries being swayed by irrational considerations. This might draw expert attention to cognitive biases, and result in institutional steps to avoid them. Legal experts may be less willing to concede that they themselves are biased. Eliminating juries might mean less expert consideration of hazards to good reasoning in criminal trials.
I think it might be useful to focus on how juries decide cases. For example, juries could be told to hold off on proposing solutions. The jury’s group dynamics could be tweaked to promote rational discussion, perhaps by allocating jurors specific roles in the discussion (eg “your job is to tell the group if they’re assuming something that might not be true”, “your job is to look up information in the transcript and see if we’re remembering it correctly”).
I disagree that it’s a positive feature: when juries see each case with inexperienced eyes, they become wildly inconsistent in terms of how informative they regard the various pieces of evidence, and can much more easily be bullsh**ed by charismatic lawyers.
Professional juries (so long as they kept a distant relationship from the judge and are composed of a different group of jurors each time) would gravitate towards a consistent—and probably more rational, evidence-law-adhering—standard for guilt, and for the relevance of the different types of evidence. This would make the results less capricious and more entangled with the defendants’ actual guilt.
I very much like the idea of giving jurors specific roles.
I think telling people to hold off on proposing solutions would be very difficult to get to from current systems, for example the Knox case seemed to center entirely on the prosecution proposing a solution. If you stopped that, it would have a powerful but also partisan effect on cases where unlikely things did actually happen.
ETA: another good juror role might be someone to make sure they only consider legitimate evidence. (i.e. that was presented but not dismissed)
Regarding the determination of punishments, fans of game theory should find interesting the system of classical Athens. Here’s a description from a lecture transcript:
It went horribly wrong in Socrates’s trial...
...because Socrates suggested unreasonable “penalty”. No system can be immune to philosophers.
I’m currently researching the rationality of criminal trials, though my focus is on evidence law. The current adversarial system does have some advantages:
An adversary system creates incentives to bring information before the court. Parties want to win. In particular, the defendant has a direct interest in avoiding punishment. Defendants can help themselves by pointing out flaws in the prosecution case. In general, an adversary system rewards parties who put arguments and evidence before the court.
However, this can include bad arguments and emotive but irrelevant evidence. This makes procedural decisions on what will or won’t be considered at trial very important. Flawed procedures might allow a rhetorical free-for-all or exclude informative advocacy.
The prosecution bears the burden of proving guilt beyond reasonable doubt. Discharging this burden means finding witnesses, taking photos of crime scenes, engaging forensic scientists, and so on. The prosecution normally has better investigative tools to do this work. Allocating the burden of proof in this way therefore helps to bring relevant evidence before the court.
Here are some things we could change:
Currently, evidence can be excluded for technical reasons. For example, evidence gathered in breach of a defendant’s rights is normally inadmissible at trial. So, there may be strong evidence of guilt, but the defendant may nonetheless be acquitted.
This is probably about recognizing (legal) rights, and eliminating reasons for prosecutors to breach rights. Much of the Anglo-American criminal law is about being fair to defendants—only convicting when the proper standard of proof is met by the proper means.
An alternative approach would be to allow such evidence at trial, and severely punish investigators who breach rights. This would avoid some technical acquittals where the evidence supports conviction. However, a reluctance to punish high-status investigators means this approach could just result in more breaches of rights.
Forensic investigations could be conducted by neutral groups. There could be certified investigators. Parties could pass questions and suggested lines of inquiry to these investigators. These investigators could be responsible for leading evidence—presenting a narrative of the relevant events via witnesses and physical evidence. Parties directly involved might then be able to cross-examine the investigators and their witnesses, to test the suggested narrative for flaws.
This would gain some impartiality in forensic investigation. Currently, forensic investigations are normally linked with the prosecution case, and are informed by the prosecution’s theory of what took place. With a suspect in mind, confirmation bias can skew the conduct of such investigations. Alternative explanations may be too readily rejected.
Imposing a third party between collection of evidence and arguments at trial could help to mitigate this risk. It could even out the forensic resources available to parties. However, it might decrease the speed and efficiency of investigations.
Haha. Neutral groups. In a role that requires status, wields power and people have an enormous motivation to influence them. That is going to work.
Quite.
How well do we think judges do in this respect?
How well do we think the French system does in this respect?
At least where they are allocating tasks among interested parties, Anglo-American trials seem relatively savvy about human nature.
Too much fictional evidence to really judge… but I say extremely well, all things considered. Overt bribes seem to be at least discouraged. That’s a good start.
Totally. “Advocate” rhetoric really gets on my nerves but there is no way I would trade it for fake neutrality. Where there is some low hanging fruit is in raising the bar on what rhetoric the advocates can get away with. That is, add logical fallacies and the most popular bullshit rhetorical gambits used in trials to the list of things that can be formally objected to. Many of these are objective enough to safely put in the hands of a judge.
What if you allowed the convicted person to sue the investigators? That mitigates the reluctance to punish investigators—or at least, the reluctance to begin proceedings against the investigators.
The convict could sue to get X years deducted from his sentence, and the investigator would have to serve a percentage of X depending on the egregiousness of the breach.
IIRC, the reason the exclusionary rule came about in the first place was because the previous system of suing police officers who introduced improper evidence didn’t work—it’s hard to do that when you’re imprisoned, and, as billswift pointed out, juries are reluctant to rule against police. In order to make this work you’d need much larger changes to the system to go along with it.
Riiight! Police who wrongfully kill are rarely even tried; do you really think there is any possibility that those conducting illegal searches or manufacturing evidence would be punished?
Ceteris paribus, I would think that the lower gullibility of judges would be entirely overwhelmed by the effects of increased corruption. Take the corrupt judges in Pennsylvania that were all over the news last year, for example. The difference in accuracy between a jury and a judge pales in comparison to this sort of thing; that’s fine if corruption is proportionally more rare than that accuracy gap, which is probably true if most cases of corruption are uncovered.
But if you look at the story of those Pennsylvanian judges, they did a miserably bad job of covering their own tracks, and it still took four years for anyone to notice. If we’re only catching the incompetent corrupt judges, then either only incompetent judges are corrupt, or we don’t have an accurate picture of how much corruption there actually is.
It’s oft-repeated but nevertheless true: power corrupts. Because jurors serve infrequently, for one case at a time, and have little individual power, it’s much, much harder to buy off or otherwise influence a jury. I think that if we want to improve our justice system, we’d be best served by applying closer scrutiny to positions that act as bottlenecks of authority—judges, prosecutors, and anyone involved in jury selection.
Granted, that’s all predicated on maintaining a justice system that looks approximately like our current one.
Totally true, and it’s also unfortunate that this is just the kind of scrutiny that is hard to get in place. Apparently those with authority don’t like to implement systems that scrutinize authority. Even those without authority don’t like to scrutinize those with authority. Because those with authority don’t like people that scrutinize them!
Also note that the power of juries has become more and more limited, by way of discouraging knowledge of jury nullification, and by not letting the jury know what punishment a guilty verdict will lead to.
But jurors are subject to intimidation. I’m not sure of the situation in the rest of the world, but in Ireland this is currently a significant problem for some (mostly gang- and drug-related) trials.
EDIT: in designing an ideal system maybe we can assume that good legislation and procedures make this problem go away.
If jurys are not taken from a preselected pool of specially trained people, they are highly susceptible to common forms of rationality failure. This can in no way be conciliated with “innocent untill proven guilty”. Therfore, the jury system as implemented today in the US can not be called “just” in any common meaning of the word.
A single judge who can sentence someone to any punishment without accountability is too powerful. That too could not be called “just”.
One possible solution would be to separate the trial from the sentence. One judge would then preside over the trial and regulate the interaction of prosecution and defense with the witnesses. From this trial an anonymized record is then passed to a different judge or group of judges who evaluate the evidence and formulate the sentence.
I don’t think this opposition is so absolute, though, between on the one hand wanting there to be a large pool of unpredictably assigned judges, and on the other hand wanting them to be familiar with the relevant law. For instance, given that there exists such a thing as a license to practice law, perhaps juries could consist of randomly selected lawyers, instead of randomly selected people-in-general. If I were more awake right now I could probably start poking holes in that idea, but I do think it at least serves as a counterexample to that dichotomy.
An important point is that people have to feel that the punishment is connected to the consequences. If drunk driving was punished as harshly as killing when driving drunk, questions would arise such as: “does the life have no value?” or “if I am already driving drunk, does it make no difference whether I kill somebody?”. People punished for killing in such cases would feel that they are punished for breaking the law, not for actual killing. Of course if people were perfect bayesians all these objections would fade away, but we are not.
This is connected to the testability. Our risk estimates are often badly wrong, and to base the justice on something regularly wrong seems not to be a good idea. When bad consequences are punished, one can end in jail just by having bad luck, but at least the biases and prejudices of the judges (in ideal case) play no role. If, on the other hand, risky behaviour was punished, then we would have a system possibly more consistent with theoretical consequentialist ethics, but far less objective.
By the way, the intuition which tells us that a wrongdoing has to be punished more severely if there are actual bad consequences is, I believe, an adaptation which prevents punishment based on biased risk estimates.
I was in an exchange here a while back about this question. Komponisto and I basically agree that a trial, whether the guilt is decided by a judge or jury, should work like this:
For a conviction, they (jury or judge) must find that the odds of guilt meet some specific, high threshold, such as 100:1 odds.
They should be allowed to incorporate any relevant Bayesian evidence (such as “probability that a random person committed this crime”)
But there should be a list of exceptions to the above for cases where cognitive biases significantly distort the evidence (i.e. their sex life, their religion, hearsay, etc.) or where the society has made a conscious decision that something shouldn’t matter or be presented, irrespective of how informative it is (i.e. race/gender of the accused, illegally gathered evidence, stuff endangering national security, etc.).
Retain the adversarial system, but require each side to present (and the jury be trained in) a causal/Bayes network indicating what they think happened and how strong each piece of evidence is within that net.
The jury should be required to construct their own diagram (possibly borrowing from one side) and determine the weights of each piece of evidence with it, and then use it to compute the posterior of the defendant’s guilt, which can then be compared against the guilt threshold.
This last one is important because it will clarify the presence of any poor inference on the part of the jury. While the jury can just fudge the numbers to match their “gut feeling”, they cannot do so without assigning unreasonable evidence weight somewhere in the diagram, allowing the public to see if the jury wasn’t thinking right. (“Whoa, you gave eight freaking bits of evidence toward guilt in a homicide case because the defendant “dresses like a slut”???)
Beyond that, where I may or may not agree with komponisto, I think the justice system should also have these properties:
Be continuous rather than binary: For at least some cases, it shouldn’t be all-or-nothing, but the compensation paid to the alleged victim should vary with the probability of guilt the jury finds.
Also, punishments should be amplified by the inverse of the recovery rate (basically, the rate at which that crime is solved), with the extra compensation going to a victims’ fund to pay those for whom no suspect is ever caught.
The issue of jail should be less coupled to the issue of compensation and guilt. Whether someone is jailed should be determined by how dangerous they are expected to be, as judged by some insurer, whether or not they are found guilty. Whether they should pay compensation or be punished should be determined by causal culpability, whether or not the accused is generally dangerous.
This decoupling is most important for cases like drunk driving or accidental homicide. If it’s something that the accused is unlikely to do again, they shouldn’t be jailed, but they should have to pay compensation anyway to those they hurt. In cases of drunk driving that don’t hurt anyone, the evidence that the person drove recklessly while drunk should be fed to their liability insurer, who can then update the risk assessment of the insured.
While the rest of your post is interesting, this is an absolutely terrible idea to the nth power. If I’m some rich dude, I could totally murder my wife, so long as I convince the jury I won’t get married again. And “whether or not they are found guilty” basically means you could jail anyone you feel like off the street, provided you can convince an insurer that they’re dangerous. Since they’ll be in jail, your insurer has an incredibly outsized incentive to judge people as dangerous, since we can never really observe the outcome if they’re wrong about dangerousness, but they lose money if they’re wrong about safety. I actually just noticed that “guilty or not guilty,” or I’d have been tempted to open with it in all caps followed by a long string of ?’s and !’s.
Much more significantly, you overestimate the efficacy of monetary damages and rewards, particularly in a society with vastly different levels of wealth. Rich people may well be able to commit crime with (even greater) relative impunity under this system: fining Bill Gates a few million dollars for each person he kills is not really going to affect him. Of course, Gates probably isn’t a sociopath, but I bet there’s a fair number of them at high levels of income, and they’d only have to pay a fine when they got caught. Even more importantly, actual current criminals are currently extremely broke, which is why they’re criminals: they have very little to lose. Fining them is not going to work out efficiently.
The idea of being continuous rather than binary exists to some degree, though it’s discrete. In civil law, there are things like “contributory negligence”—if ACME is 75% responsible and the victim is 25% responsible, ACME pays 75% of the damages awarded by the jury. In criminal law, there are degrees of crime or simply different crimes. A jury that can’t convict on the grounds of first-degree murder may convict for manslaughter, for example. A more continuous spectrum would probably lead to a greater exercise of prosecutorial power, since you could kind of throw things at the wall and hope the jury thinks he’s a bad guy.
I could go on for a while, but my need to criticize has been sated for now.
I think they could make more general inferences than that.
I think I might have been unclear about how it would work. In order for someone to be jailed, you wouldn’t have to convince just one insurance company; you’d have to convince them all, even (appropriately capitalized) mutualist agencies the person belongs to. Insurers wouldn’t have any more power to put you in jail than they currently have to prevent you from driving: they can only decide whether their company will insure you, not whether all companies will refuse to insure you.
As I imagine it, jail wouldn’t be something anyone specifically imposes; it emerges out of the combination of your high estimated risk level and your inability to afford insurance except when confined to a secure facility. (And, of course, depending on the society, insurance could be subsidized out of tax revenue so that the poor aren’t automatically locked up. In a way, governments already vouch for the poor, it’s just that they don’t pay out to any victims.)
Except for the very dangerous, it wouldn’t make sense to have arbitrary imprisonment, given competition in the insurance market and ease of entry by non-profits.
As for the rich: setting up the right incentives so that they don’t abuse others with (relative) impunity is a problem under any system, no matter how much it relies on jails. Even if jail is a possibility, they have far more resources with which to manipulate the justice system.
Someone extremely rich who has also revealed willingness to commit serious crimes is that much more dangerous and would have to consent to far more restrictions to buy insurance or set up a valid insurer. The cost is not just compensation paid, but in being regarded as a greater risk in direct proportion to their higher wealth.
Edited to fix some phrasing and change the excerpt I was using in the first quotation.
… and we could offer those imprisoned a chance to earn the required money through a system of gladiatorial combat! If you win enough fights and survive the rest then you will have a chance to earn your freedom! Some people may even elect to sell themselves into the system to cover their existing debts and secure their family financially. Good old fashioned capitalism at play!
Methinks you vastly underestimate how game-able such a system would be. On the most obvious side, both the wealthy customer and the insurance company must necessarily price insurance based not on the probability of criminal acts, but on the probability of being caught for criminal acts. This vastly reduces the cost of insurance for a wealthy criminal, but likely not for a poor one.
Moreover, your system is essentially saying that everyone should by default be locked up unless they can exceed some approved-of threshold for safety. Who sets this threshold? Who prices crimes? While our current system may offer unfair sentences or criminalize activities that should be legal, at least you can avoid dealing with the system by following the rules. In the one you propose, you can’t; you’re in prison if whoever sets up the rules decides you exceed some rather arbitrary threshold.
I admit the idea is clever, but it seems extremely unlikely that any detailed system structured around it would generate a society that a significant number of people would find more desirable to be born into.
That’s unfortunate. Who wants to guess how a poor criminal will manage to pay for insurance?
I like this idea in principle, but it seems like it’d be pretty impossible to make work in practice.… would victims of crimes where no suspect is ever caught have to go to court to prove that they had actually been the victim of the crime? If so, how would that work? A trial with a John Doe defendant? And if not, wouldn’t it massively incentivize people to file false police reports claiming victimhood?
I basically agree here, though it should be noted that determining exactly how the compensation should vary with the probability would be a difficult problem. (You certainly wouldn’t want it to be directly proportional; I would after all shudder to think of the LW “verdict” imposing a sentence of (0.35)(26) = 9.1 years on poor Amanda Knox.)
I think I agree, provided that what you mean by the “rate at which the crime is solved” is the length of time it took for that particular case to be solved, and not some sort of average for crimes in the same “category”.
I may end up agreeing with the underlying idea here, but as it stands, I’m confused by this. Most people view jail as punishment; do you not?
(In theory, really, the whole notion of punishment probably ought to go out the window, and legal remedies should be designed only with the purposes of compensating victims and preventing future offenses. Of course, there may not be much practical difference, since this would still presumably involve things like e.g. locking people up in institutions, etc.)
Uh… what? You do get a lesser charge if you avoid killing anybody. What’s more, you actually called attention to that fact before, and are trying to argue that it’s morally wrong! So, basically, one of your arguments against X relies on an incorrect assertion that not-X. I wanted to call this “begging the question”, but it’s probably the wrong nomenclature; the pattern of argument is just extremely weird.
I can see the confusion. Essentially I was pointing out that the law is blind to things like “I’m a good drunk driver,” except in the case of this moral luck issue.
For instance, there is (thankfully) a principle in force that you cannot, with a dead body at your feet, say “I was just trying to kidnap him.” So one crime committed accidentally in the course of another crime gets punished almost as severely as if it was intentional. But drunk driving is only punished severely in the special case where somebody happens to die? Where is the rationale?
Edit: Almost as severely, but not just as severely.
Hmm—is that right? What about http://en.wikipedia.org/wiki/Manslaughter …?
What about the felony murder rule?
That is, in countries that have it, if you were attempting to commit a violent felony (like kidnapping), which results in a death, it’s upgraded to murder, even if accidental.
Right you are. Edited.
The article is saying that you can’t affect your sentence by showing skill at drunk driving, other than by using the (very indirect) evidence provided by showing that nobody died as a result.
I think it’s a sound point, given that the question is about identical behaviour giving different sentences.
If you’re told that two people have once driven over the limit, that A killed someone while B didn’t, and nothing more, what’s your level of credence that B is the more skilled drunk driver?
Pretty high, actually. Drunkenness is a red herring here. Let’s put it another way: if you’re told that A once killed someone accidentally while B didn’t, what’s your credence that B is better at friggin’ not killing people accidentally? You seem to imply the credence should be low. Why on Earth? I say it’s pretty high, because A has demonstrated a very low level of said skill.
I am not sure. Let’s say that each person has h(is/er) own “killing rate” R, which tells the probability of killing somebody accidentally during a year, and characterising how good is (s)he at not killing people. We have some distribution P(R) in the population, which should be taken as the prior distribution for any person. Now, given that the person has killed (K) this year (and never before), h(is/er) posterior distribution is clearly P(R|K)=P(R)P(K|R)/P(K), where P(K|R)=R by definition and P(K) is the probability to kill with any rate, which is integral of P(K|R)P(R)dR, and that equals to R0, the population average killing rate. For the actual person’s posterior average we get R=(int R^2 P(R)dR)/R0, which is (V0+R0^2)/R0, where V0 is the variance of the prior distribution, so the change from the prior R0 is of order V0/R0.
Now, we can plug in some real data, which I can’t supply, but the point is that how strong evidence an accidental killing presents isn’t clear and depends strongly on the width of the distribution P(R). If all people were almost equally good at not killing accidentally, then the fact that a person has killed says almost nothing except (s)he, and more so the victim, had simply bad luck.
I have assumed that R are small and we can disregard multiple killings in a year and similar effects.
Edit: math corrected
Well, I think your drunk-driving skill are only a factor to the extent that you’re more likely not to get caught; but I doubt that if you had some kind of evidence of being an excellent drunk-driver, it would help you to get a lower sentence if you’d cause an accident anyhow.
In Japan, the conviction rate is about 99%. (Many criminal defense attorneys go their entire career without ever having a client being found innocent.) This is widely attributed to the facts that Japan uses bench trials and that prosecutors are expected not to bring cases to trial unless they are certain to win.
It might also partly be due to Japan’s approach to confessions:
From the Japanese conviction rate, we can conclude that the trials are meaningless. This is, I think, rather different from other civil law countries. But what this means is that the accuracy of the system is in the hands of the police and prosecutor, not the judge. Juries are obviously very different from judges, but police are not so obviously different (they are both professionals employed by the state).
So one should ask if the overall effect is different from other civil law countries and whether this is due to formal differences or informal ones. My impression is that the overall effect is a much higher closure rate, but I haven’t seen numbers.
Nope, I was wrong. Only half of Japanese murders are prosecuted. page 9
Douglas_Knight:
That observation mostly holds for the U.S. too.
If this were the real explanation though, then it would mean that the vast majority of criminals go free, since in the real world there is rarely “slam-dunk” evidence. Though one could certainly make a good case for this being morally justifiable (“better 1000 guilty men go free than 1 innocent man go to jail”), it seems to me highly implausible that this is actually what’s going on—the crime rate would be sky-high if criminals knew they would almost certainly never be punished. In reality, Japan’s crime rates are rather low.
So to my mind, a 99+% conviction rate is, in and of itself, proof of a highly flawed system, as there are really only two ways to explain it:
Most criminals go unprosecuted
Many innocent people get sent to jail
And the latter seems much more likely.
kodos96:
I don’t know much about the specific example of Japan, but generally speaking, this comment isn’t necessarily correct. In a culturally homogeneous and tightly-knit society, in which strong traditional norms covering all aspects of life are taken with great seriousness and individuals normally don’t spend much time in isolation and anonymity, it can be very hard to commit a crime without leaving slam-dunk evidence. Moreover, in such societies, it may be that only a vanishingly small number of people would be capable of committing a crime and lying convincingly about it when questioned later by authority figures.
To what extent the contemporary Japan has these characteristics, I don’t know, but I’m pretty sure that it has them in a greater measure than, say, the U.S. I also don’t know if there could perhaps be some other aspects of their culture that have similar implications for the issues of crime.
Therefore, even if it’s true that Japanese courts are nearly always agreeing with prosecutors doesn’t by itself mean that the system is worse than the American one by either metric. We would need more concrete data to make such judgments.
I’m absolutely not an expert (I’ve never even been to Japan), but this really doesn’t sound like modern Japan to me, at least based on what I’ve absorbed from pop culture.
More so than the US, sure—but the US is an anomaly when it comes to cultural heterogeneity. Lots of countries with western-style legal systems have a similar level of cultural homogeneity to Japan, but don’t see this same phenomenon.
From what I’ve read, the idea is that the prosecutors, who tend to work with the same judges over and over, know what level of evidence it takes to convince them to convict, so they can accurately predict the outcome of each trial before it happens and, if they think they might lose, simply don’t bring the case. (In other words, “certain to win” doesn’t imply “slam-dunk evidence”.)
Interesting.
The first question that comes to mind though is how do they come to know exactly what level of evidence a given judge requires to convict, if they virtually never see an example of the judge not convicting?
It could be that the whole system operates according to established rules, whether formal or informal, that are acknowledged by everyone involved. The prosecutors have to satisfy a certain well-defined bureaucratic procedure when preparing the case, and the judge merely rubber-stamps their papers if this job has been done correctly. Many things in all sorts of bureaucratic institutions work this way, and if the people involved are highly conscientious and not suffering from significant perverse incentives, the results may well be far from terrible.
Well, one way would be to ask the judge.
From the Japanese conviction rate, we can conclude that the trials are meaningless. This is, I think, rather different from other civil law countries. But what this means is that the accuracy of the system is in the hands of the police and prosecutor, not the judge. Juries are obviously very different from judges, but police are not so obviously different (they are both professionals employed by the state).
So one should ask if the overall effect is different from other civil law countries and whether this is due to formal differences or informal ones. My impression is that the overall effect is a much higher closure rate, but I haven’t seen numbers.
There’s one easy step I’d add for jury selection that would likely go a long way to helping. Add in tests to see if potential jurors are more likely to convict someone who is ugly. And have those people thrown out of the jury pool (part of me wants to have them shot but obviously that’s not actually a good result). There’s a lot of evidence that many jurors are more likely to convict people they find unattractive. See this article (I don’t unfortunately have access to the study in question at the moment). The good news is that the evidence suggests that this is very much dichotomous behavior with any given person either paying a lot of attention to looks or almost none. So getting rid of the people who are using looks will go a long way to solving the general problem.
Why just test for and throw out people subject to that particular bias? What about people biased against women, men, or various racial or ethnic groups as well? (We ask potential jurors about these biases, but we don’t test for them. We just trust them to tell us if they’re biased.)
And on that note I’ll add that the rational action for a potential juror is to signal bias that will cause them to be rejected and not subject to further interference with their life.
Unless you want to be a juror, in which case the rational action is to not signal bias.
A biased prior may be quite rational. We should insist that jurors start from a statistically justifiable prior of guilt for cases taken to trial in each particular reference class (crime,race,sex,...)
If you’re too unbiased, you’re not rational.
There’s a problem with choosing reference classes, though. Do you consider the person’s name? The clothes they’re wearing that day? The way they walk?
So the government or the courts will be responsible for maintaining the official guidelines, saying things like “blacks are X% more likely to commit crimes, and if you disagree you can’t serve on a jury”? Yeah, that’s going to work.
I can see how you were confused, but I have a habit of making statements like “we should insist people believe X” without meaning that I favor enforcing actual laws mandating belief in X (because, as you suggest, it’s icky and impractical). What I meant is: I encourage people to behave rationally by believing X, and would like them to further encourage others.
Also, I suppose that if done well, such an instruction to jurors would be good. It’s not “blacks are X% more likely to commit”, it’s “of blacks brought to jury trial, they’re X% likely to be guilty on average” (or “they’re X% more likely guilty than all people brought to jury trial”, if you prefer, but that’s less informative.)
Either you have a way to actually get most people to believe in X, or the jury system fails in that respect.
There’s also room for bias in the selection of the reference class used. (All the numbers that follow are random.) A long-haired blonde man is brought to trial. On the one hand, men are 10% more likely than average to commit violent crime. But on the other hand blonde men are 13% less likely than average. But then, this is a truck driver, and they’re 25% more likely than average. But then, he grew up in Boston, and only 37% of accused Bostonites are convicted. But then...
To be precise, they’re X% more likely to be found guilty on average. Which is not the same, in a relevant way.
Suppose you think there’s unfair bias against long-haired people in the courts today. If you use today’s statistics for conviction % of long-hairs accused, then you may perpetuate that bias. But where else do you get your prior?
I definitely don’t think the method of picking a single reference class is a good one. Many overlapping big and small classes aren’t a problem if you reason correctly.
Re: what if conviction rates are drastically unfair? That’s a good point. It’s definitely possible to prove that some people who were convicted are likely innocent (but not all of them, just those with e.g. exonerating DNA evidence). I suppose I assumed that the false-guilty rate in the US is less than 10%, but knowing that the false guilty for some privileged class (let’s say attractive white folk) is significantly lower, would mean that “X% likely to be guilty when tried” could only come from “X% found guilty when tried” after adjusting as much as possible for the difference in false-guilties and false-innocents.
I agree with you that it’s difficult to reason correctly. I’ll still encourage people to do so.
I doubt you’d have any jurors left if you remove everyone who is subject to any bias.
I think it would be more effective to obscure the features of the accused during the trial.
Yeah, that seems like a valid point. We also have tests that have been developed that will work for some racial issues. There are Stroop interference tests that detect racism pretty well.
This is a fairly classic problem, well-presented. There’s a credible argument to be made for treating them the same, but I don’t think it’s a utilitarian argument.
For these purposes, we can assume that the driving was within normal DUI parameters. The situation gets much easier for people going the wrong way on the freeway, or going 115 on surface streets; they’re murderers. It’s also easy to justify very, very long sentences for very bad driving that kills.
So, the question is why this is treated this way, for which we have an answer:
Yep, that. There’s been more harm done.
Sure, prison time (as opposed to jail time) for every person who gets a DUI would be a deterrent. But it’s not a good use of societal resources. You’re putting teachable people in prison, useful people. And you don’t have the gain of victims’ families coming in exchange for that.
There’s real utility in having some sense of justice to the family, friends, and community when people are extinguished.
I’d further note that the driving matters for sentencing. If you’re at a .10% BA (and you shouldn’t be; for a 170-pound guy, that’s five or six beers in an hour) and you change lanes without looking and spin out the car next to yours, killing the driver, you can expect things to go better than if you’re at a .22% and run a light in a school zone at 80 and kill someone.
The sentencing will be far less—but still different—in those situations if you don’t hit and injure anyone; the first guy gets pulled over with no collision, and in my jurisdiction, he’ll get 2 days jail (fake jail—plenty of ways to avoid) and fines and fees of a little over $2K. The second driving pattern is going to get you 90 days in jail, at least. (Recidivists get more.)
Let me add another another wrinkle: Megan, at the same bar with Alice and Yelena, drives perpendicular to the two and hits another pedestrian. Alice’s victim’s family want Alice to be incarcerated forever, while Megan’s victim’s family wants her to get off with a warning, and none-too-stern a warning at that. I think this should matter some, though Megan’s got to do some significant time, and Alice isn’t going to get incarcerated forever.
On the jury issue, I’m not sure there’s a better way, but the only ways I know from experience are judges and juries. Juries are not suckers; the joining of 12 is often better than one really smart person. The jury system works pretty well; I’ve been burned (on a couple of occasions severely) by jurors wandering off the reservation, but for the most part, juries do a very good job. Judges usually do a good job, too.
Some LW’ers would doubtless make excellent jurors, but some would not; Judge Judy Sheindlin gets most of her cases right because she reads people well and she has a long history of hearing the same lies, which she catches very quickly. Lack of socialization skills may lead to trouble as a juror. Some of the proposals on this thread would lead to substantially less accurate verdicts; not everyone is going to get excited about math.
The problem with leaving it with the pros is that some degree of corruption would be inevitable. There would be more efforts to go toward particular fact-finders. (The somewhat parallel efforts to screen juries with challenges of various sorts are different—jurors aren’t well-known to the parties—and are, IMO, a very good idea; people who criticize peremptory challenges are seldom people intimately familiar with the system.)
The current system works surprisingly well; outlier-bad results get a lot more press than the many good result. Remember, the McMartins were acquitted and Scott Peterson got convicted.
That’s not to say bad results don’t occur, and certainly not to say that questing for improvements—even, or perhaps especially, marginal, incremental improvements—isn’t a very good thing.
Finally, one statement you make, “the evidence against Truscott being entirely circumstantial,” implying that such evidence must therefore be weak, is mistaken as a matter of logic. Circumstantial evidence can be far more devastating than direct eyewitness evidence. I’ve prosecuted plenty of circumstantial evidence cases (one of which got some national press), and if you think about it, you’ll see that such evidence can be crushing. Fingerprints are circumstantial evidence. Standing in a pool of blood with the victim at your feet and a gun in your hand is going to cause people to think you shot the victim. And rightly so.
And if you’re lying about things, people are going to suspect of doing so for a reason. And rightly so.
[I speak for me. I’m a prosecutor, but I don’t speak for my office.]
Is it the same argument which is implicitly contained in the OP, e.i. “dangerous behaviour should be punished and circumstances which the perpetrator can’t know in advance should make no difference”?
Problem with this is that it is extremely difficult to measure the inherent danger of the behaviour. What is the probability of killing somebody when driving drunk? How to test it? Even if the killer was tested on his ability of safe drunk driving, he could defend himself that the conditions weren’t the same, as he couldn’t help himself from thinking about the punishment during the tests, which made him nervous and impaired his abilities.
This I can hardly swallow, even after the utilitarian justification. Somehow it desn’t feel fair. What I find most disturbing that under such law, revengeful people are more protected.
It’s also optimal for people who profess to be non-vengeful, since the government’s vengeance is now fully deniable. So, we should expect that at least some of the people who claim to be less vengeful are actually just pretending.… which means it might not be as bad as it seems.
I don’t understand. The less vengeful you are the safer is for criminals to attack you and the easier you become a victim. That is, if the punisment takes into acount the wishes of the victim.
Which is why it’s only safe to signal less vengeance if you have somebody else out of your direct control who’s going to do the avenging for you. ;-) It’s, “gosh, I’m full of forgiveness and love the sinner, hate the sin, but there’s nothing I can do to stop the government from locking you away.”
In fact, it’s even better than signaling vengefulness, in a way: you are not required to be individually credible in your threats of revenge. So a default-vengeful government allows even the not-very-threatening to have safety. (In that context, being forgiving may well be countersignaling: “I’m so high-status that I don’t have to pursue individual vengeance.”)
Eh, with the exception of homicide, the government still needs significant cooperation and initiative from you before they will follow through on avenging. So it really doesn’t allow you to put up the act of, “oh, I’d like to forgive, but I can’t stop them …”
That’s not always true; for instance, victims of domestic violence frequently refuse to cooperate, and police and prosecution agencies will still try to convict if possible (though doing so is often difficult without cooperation).
I think that’s backwards. US police are much less likely to prosecute domestic violence without the cooperation of the victim, compared to other crimes. But there are fairly recent laws in some jurisdictions requiring them to prosecute without cooperation.
The victim still has to make the complaint, and cooperate with the police that one time. Even for this crime, it’s notable how much you have to do on your part to “get the avenger in action”.
Yes, they often withdraw cooperation later, but the victim still can’t use the excuse of “hey, I can’t stop them”, at least not right after being abused. If you don’t want the abuser to suffer, just don’t report it to the police. You certainly had choice about whether you reported it to them.
I don’t know if there are statistics on these things, but I’d imagine that some of the time, a neighbor or someone nearby who hears or sees the crime is the one to report the crime to the police. Still, you’re right; it’s certainly less likely that the crime will be prosecuted if the victim doesn’t cooperate.
Those statistics show that the more people their are nearby who hear or see the crime the less likely it is that the crime will be reported.
I don’t know if there are statistics on these things, but I’d imagine that some of the time, a neighbor or someone nearby who hears or sees the crime is the one to report the crime to the police. Still, you’re right; it’s certainly less likely that the crime will be prosecuted if the victim doesn’t cooperate.
I don’t know if there are statistics on these things, but I’d imagine that some of the time, a neighbor or someone nearby who hears or sees the crime is the one to report the crime to the police. Still, you’re right; it’s certainly less likely that the crime will be prosecuted if the victim doesn’t cooperate.
I don’t know if there are statistics on these things, but I’d imagine that some of the time, a neighbor or someone nearby who hears or sees the crime is the one to report the crime to the police. Still, you’re right; it’s certainly less likely that the crime will be prosecuted if the victim doesn’t cooperate.
I smell some misunderstanding here. I have said that I disagree with the principle that the victims could partly decide the severity of the punishment, because the vengeful are better protected. When you had reacted
by “it” you had meant what? This system, where the victims are directly responsible for a part of the punishment, or the opposite, where only the government decides?
Agree. Vengeance is essentially the carrying out of an implied threat. Combined with credible signaling this is exactly what a rational agent can be expected to do.
No one in this thread seems to consider the idea that less vengeful people actually gain utility in this system by way of less vengeance.
I don’t mean to say that this is a strong argument—I’m not a very vengeful person but I’m certainly only willing to put up with a very small chance of being murdered compared to how strongly I hold that conviction—just that I feel that the “perverse” (if you like people who are less vengeful!) incentives should be weighted against satisfying people’s preferences.
I have considered this, but I have spoken about protection, not utility. Some people may prefer less revenge, but somehow I think we need social mechanisms which prevent the criminals from abusing this situation.
To illustrate my intuition, imagine a situation where a thief breaks into a house and steals an equivalent of 100€ (it is the thief’s first crime). Afterwards he is caught and is tried. Now, the house owner at the trial testifies that he we cannot afford having such dangerous thiefs roaming around, that the amount was low but once you are a thief you are forever a thief and in the future there will be much more money stolen, and so that he wants the thief to be imprisoned forever. Such attitude makes me sympathise with the thief and I really don’t want the victim’s preferences even partially satisfied. I don’t want to support unreasonable vengefulness.
Sure but adding on or subtracting say 10% from the sentence would make both a more vengeful and less vengeful victim feel empowered and somewhat satisfy their preferences without leaving too much room for those sorts of abuses.
I hope it didn’t sound like I was endorsing the idea that a victim should fully decide punishment. For example, the Athenian idea seems much better than that, but also a more structured approach like asking for a marginally increased or decreased penalty seems attractive to me.
Speaking about abuses, I would expect that in practice the division line between victims suggesting high penalties and those suggesting low penalties would separate the brave from the cowards, rather than the vengeful from the merciful. Thoughts about the criminal waiting in front of my home with words “you swine, you made me spend two more years in jail” aren’t for the faint-hearted.
You could somewhat mitigate that by shifting police forces automatically around prison releases and/or by creating stiff penalties for such vengeance, but I can see your point.
Probably much worse. Too many here fit the description in Hayek’s last book The Fatal Conceit.
Which is what?
Basically, misjudging the difficulty of designing a superior institution than one that is the result of an evolutionary process that (through trial and error) adapted the particular institution to the rest of society (their norms of behavior) and other institutions.
It is very much related to overconfidence bias (“I really do have a deep understanding of how society works”) and hindsight bias (“of course I would have avoided those problems other people had when designing new institutions from scratch, I’m no dummy”).
I’m not sure I agree with billswift, but I do think that the people in this thread believe they know much more about how legal systems work than they actually do (based on the comments so far).
I’m not really sure that we would change it much. The justice system looks relatively good to me, compared to the paucity of our other institutions.
Indeed. There are far fewer innocent people forced into prisons than there are innocent children forced into schools.
Or indeed social utility loss due to irrational social epistemology, overspending on war and underspending on education/science etc.
If we had to make a list of social utility losses, I think that the Justice system would be low down.
I agree. I’m not actually arguing that criminal justice is especially flawed, only that it has some very interesting flaws.
Or, well, not spending half of the GDP on existential risk mitigation...
Really x-risk mitigation is for dessert, though. There are so many failures of our society that are lower-hanging in terms of how rational you have to be to see them.
For example, the spending of $1,000,000,000,000 ($10^12) on the Iraq and Afghan wars. Just think about the good that could have been done with that money if it had gone into science and medical research. Imagine putting 1% of that money towards life-extension research—that’s $10,000,000,000. Then cry.
That is a lot of zeros. I had to count them twice on http://costofwar.com/ to make sure I got it right.
I’d say it is more “so you get to dessert”! There as a backup behind “create an FAI and thereby cure death”. (So I’m being a bit reckless and blurring my categories when I put Xrisk at 50%.)
That $10b on life extension sounds about right!
I’d say it is more “so you get to dessert”! There as a backup behind “create an FAI and thereby cure death”.
I agree totally that FAI is the single most important problem, but it is hard to see that. As far as I know, Bostrom/Eliezer noticed it as a problem about 10-13 years ago, before which not one person in the world had seen it as a problem. If our world had at least solved the easier-to-see problems, then one would have some confidence that FAI would at least be considered.
For deleted context of parent please refer to grand-aunt. (Courtesy of a bizarre bug somewhere in which every comment and PM reply of mine was being posted twice and, evidently, fast response by Roko.)
ETA: And I agree with parent.
Sure. I’d count that under “irrational social epistemology”.
Fun crazy ideas that come to mind:
1) Punishments get scaled by the judged likelihood of guilt, i.e. judge says there’s a 65% chance Bill is the killer, Bill gets 65% of the punishment.
2) All punishments become monetary fines varying by judged negative utility, i.e. Judge says murdering Joe was worth x negative utilons, Bill is fined to outweigh damage done with good.
Potential problems/thoughts: Bankruptcy? Lower bound on fines/guilt likelihood? Diminishing percieved utility of money/punishment in large amounts? How to measure negative utility of crime, positive utility of fine? How much should fine weigh compared to crime? Some/all money to victims/government/charity? Problems reaching accurate judgments? Inequality of man measured in punishment cause some complex problem? Lack of appearance of justice? Other complex effects on society?
Add your own for upvotes.
I think this would be very hard to make work as long as there remained a significant component of human judgment in determining probability of guilt. It seems much more likely that instead of working as intended, most of the time the people responsible would rationalize whatever probability of guilt would result in the level of punishment they wanted. You’d get very distorted probabilities out of this. Certainly we see that people do this from the historical cases mentioned in the article, when death sentences were required for many crimes, so juries adjusted accordingly.
“1) Punishments get scaled by the judged likelihood of guilt, i.e. judge says there’s a 65% chance Bill is the killer, Bill gets 65% of the punishment.”
Almost. There is a level of probability below which there is “reasonable doubt”. Let’s say that would be 70%. So if the probability of me being guilty is below that I go free. If the probability is above that I get the punishment in relation to the level that the probability is above it. So if my probability of being guilty is 80% I’d get 1⁄3 of the punishment.
It’s extremely important that the conditional probability of being punished, given innocence, is very low. Most people’s decision-making process “overweights”(*) the importance of small probabilities. For example, they prefer a sure $100 over a 0.95 chance of $110 and a 0.05 chance of -$10, even when by most measures their utility of money is essentially linear in this range.
The deterrent effect of the law, therefore, drops substantially if people start thinking “even if I commit no crime, I could very well be convicted anyway.” The psychological distance between expectations of punishment conditional on crime vs innocence can diminish by a lot, if the chance of punishment of the innocent rises just a little.
(*) Why the scare-quotes? By standard theories of utility, which I regard with some suspicion, it is wrong to weight possible outcomes non-linearly with their probability.
Rather tangential, but it seems to me that this could be highly relevant to a nasty spiral in certain marginalized groups that (probably correctly) perceive themselves as being unusually likely to be falsely convicted.
Interesting idea… of course, there would have to be some lower cutoff, else if I were judged to have committed a murder with 20% probability, I would have to serve 5 years. There might be a place for these probabilities, but I suspect it would be in the appeals process or some such.
“Make the punishment really fit the crime,” in other words.
This could be conceived; however, “an eye for an eye” has a bad reputation in jurisprudence as a principle. I am personally of the opinion that the law should be there to (1) deter criminals, (2) provide an outlet for the vengefulness of victims and families, not to “put things right.”
You (hypothetical person) are unnatractive, that raises the probability that you will commit murder or rape. You are hereby convicted and sentenced to p% of death.
For this to accommodate anything vaguely comparable to our current concept of “innocent until proven guilty,” it’d need to be something like the probability to the third or fourth power (or conceivably higher). If a hundred people were charged with murder and convicted under this standard, you’d be sending 35 innocent guys to jail for 20-40 years. If it were, say, 20%, you’d be sending 80 innocent guys to jail for about 8-10 years. Consider that currently someone is acquitted if the evidence is short of somewhere in the 95%+ range, this would lead to a vast, vast increase in the false positive amount, which is probably already somewhat high. It would, admittedly, also increase the rightfully convicted, but given our current laws, I’m not sure that’s an all-out plus.
Utility is too subjective and too easily an abused standard. Would you for example not punish almost at all if they kill an old homeless drunk with no friends if they do it painlessly enough? There seems to be an intuition that that’s not the correct response.
People who believe in property rights will also be concerned. Will this make it ok if I steal from you if I can show that the overall utility is increased based on my theft? You can make an argument that we shouldn’t do that because once that sort of attempt becomes common society will break down, so doing it repeatedly will result in negative utility overall. But in any given single instance this won’t be a problem.
Such a utility-based consideration would also lead to serious, serious problems if applied at the civil level. Businesses would basically do whatever they felt like, then hire an economist and some good lawyers to convince a trier of fact that whatever they did increased utility “on the whole.”
Is there an operational difference between
(1) the revealed preference of the judge for one party over the other party
and
(2) the judge performing a utility maximizing operation whereby he weighs the negative utility of one party against the positive utility of another party?
Why do we keep assuming that we can add and subtract interpersonal utility, as if we can measure them with the same “ruler”?
Because the consequence is evidence regarding the act.
How can you demonstrate these supposed equivalences? The actions have happened; there is little possibility of further examination for evidence how dangerous they “really” were, if that even means anything. The consequence is the primary such evidence.
Regarding Moral Luck, I would quote Alonzo Fyfe’s post:
He does argue that as we grow more capable of abstract thought we should punish based on intent to harm (or degree of negligence) rather than on actual harm caused.
Your discussion of the first moral luck justification
underplays the informational value of the actual results of the behavior. In the case of the drunk drivers, here are a few factors that influence the dangerousness of Alice and Yelena:
how often they drive drunk
how adapted their nervous systems are to a given blood alcohol level
how fast they drive
whether they drive on crowded roads or at high-traffic times
I’m sure you can think of many others. The parties involved have every incentive to hide any unfavorable evidence relating to any of these. But one fact that the legal system usually does have available is whether an injury actually occurred. Moreover, unlike the factors I listed, we know the exact magnitude of the relationship between injury and the result we care about, because that is the result we care about.
Here’s a purely descriptive explanation of how our legal system deals with moral luck, informed by research by Kahneman, Schkade, and Sunstein (pdf): people’s desired punishment depends on how angry/outraged/indignant they feel about a crime, and people feel more outraged when things actually turned out badly (e.g., when someone dies), so more serious sentences are widely seen as more appropriate when things turn out badly.
This could also be a partial justification of the law’s treatment of moral luck: one purpose of the law is to express the people’s moral values, so it should (to some extent) reflect their feelings about the wrongness of various actions and how much punishment is deserved by the perpetrators.
Yes, generalizing from fictional evidence and thinking that someone like Fonda countering the indifference, prejudice and conformity is remotely likely would be a big mistake! ;)
I’m a newbie so I will probably do some errors, please tell me.
I want to make a few points, because I am studying law and I think there are some misconceptions about moral luck and trial.
The Knox Case is a bad example of trial by jury, because Italy, a Civil Law country, uses an inquisitorial system, which is a system where there’s not a jury like in Common Law countries.
You could say that the Knox Case was judged by a Court of Assize where there is a collegium of 8 judges, 2 with a legal background and 6 from the ordinary people, but it’s nonetheless different from a trial by jury because the two experts have more influence on the other 6 than being separate from them.
Also, I can say a few things about moral luck from Italian legal doctrine point of view, I don’t know if it is similar to US penal doctrine. To say that someone is guilty, you have to go through 4 steps.
First, the crime must be a human action. Second, this action must be against the legal system. Third, the crime must be personally ascribed to the author. Fourth, you have to ponder the external conditions that may or may not found the punishment of the author.
So, to answer your question why we are not punishing the morally lucky people, I can say two things. First, the judicial system cannot punish everyone. Last, deterrence has to be balanced with proportionality, re-education and human rights. Yelena has killed someone, Alice has not.
In “Order Without Law” Ellickson discusses how we choose to have clear bright-line rules that encompass border cases we wouldn’t really like to treat like others in their category. It is a question of trading off deadweight loss and transaction costs.
I’ve heard other people argue that Fonda’s character behaved awfully in “12 Angry Men”. I can’t remember where the specific post, but a debate over it can be found from here.
I would let the rest of you work on enhancing the system for making people feel like justice is being done while i continue to analyze the system only to the extent that it allows me to minimize the risk of experiencing any unacceptable punishment.
One common theme I see in the other comments is that the justice system is just way too slow and underequipped to handle every case properly. It might be fruitful to focus on some way of making the justice system more efficient while maintaining roughly the same output as before.
I’m not a lawyer, but one possibility occurs to me: how about a time limit on each section of a trial? Similar to some debate formats: prosecution gets X minutes to introduce the case, defense gets Y minutes to respond, and so on, up to a limited number of segments which can only be extended at the judge’s discretion due to new evidence coming to light.
This would mean that complex and/or high profile cases would receive much much less time than they otherwise would, but that might be worth it if this system can be shown to nearly always arrive at the same conclusion (or, given the ideals of the US justice system, if any error tends to be in favor of the defendant).
Anyone have any data on the distribution of trial lengths? That would tell us if it would be better overall to optimize short trials to be a little bit shorter or to optimize very long trials to be short. In other words, would it be more effective overall to reduce the duration of OJ Simpson style trials to only a few days long, or to reduce breaking-and-entering trial durations by 20%?
What about making it the jury’s option to grant or deny additional time for explanation, in addition to letting them submit written questions?
I like the written questions thing, but I don’t think the jury should have the ability to grant or deny additional time, for two reasons:
Since we’re talking about an inexpert jury here (right? I know somebody proposed an expert jury below), they’ll need to be learning about the law as they go. If they have to learn about what conditions ought to mean additional time should or should not be granted, that’s taking away time and effort away that they could be using to learn about the evidence and the relevant laws.
More importantly, it would reintroduce the problem of lawyers being able to delay cases for as long as they can (which they will of course do if things look like they aren’t going their way). In a short time, it’s probably easier to convince a jury that you need more time then it is to convince them that the evidence points one way or another. I can imagine the system becoming one where extra time is granted nearly always, and the “Do you think the trial should continue?” question to the jury seen as just a formality.
Well, yeah. Most trials won’t be open-and-shut. The point is, the jury can effectively say at any point, “enough of this bullshit, we’re ready to make a decision.” Lawyers on both sides would be motivated to present their strongest evidence first, and even a jury inexperienced in intricacies of law would likely be able to recognize who’s got something to say and who’s just stalling for time.
The downside is that we remember the last things the best. So if the most important things are presented first, their importance will be partly forgotten.
It is worse when the important things are presented in the middle. We are better at remembering both the first things (primacy effect) and last things (recency effect).
I think you can get some useful insights into the reasons why punishments might differ based on moral luck if you take an ex ante rather than an ex post view. I.e. consider what effect the punishment has in expectation at the time that Alice and Yelena are deciding whether to drive home drunk or not, and how recklessly to drive if they do.
Absent an extremely large and pervasive surveillence system, most incidences of drunk driving will go undetected. In order to acheive optimal deterence of drunk driving, those that do get caught have to be punished much more. While drunk drivers will face different punishments ex post, the expected punishment they face ex ante will be the same. If there are in fact factors that make your drunk driving less dangerous (less drunk, more skilled driver, slower speed, etc.), these will decrease the expected punishment.
So basically, the ex ante expected punishment for a particular dangerous act does not differ based on moral luck. Ex post punishment does differ, and that is a cost, but the countervailing benefit of not having a costly and intrusive surveillence system outweighs it I think.
Notes:
This is the second time I’ve linked this recently, but Gary Becker’s Crime and punishment: An economic approach is a very useful way to think through these issues.
This argument applies much less in the attempted murder / murder case, because the chance that an attempted murder is caught and prosecuted is much higher, probably even higher than the probability a murderer is caught (because the victim usually has lots of relevant information).
For the purposes of this comment, I considered drunk people to be rational actors. They are not, but this is a nonissue, because drunk selves are only allowed to exist at the discretion of sober selves.