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.
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.
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.
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.
I think they could make more general inferences than that.
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,
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.
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 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.
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.
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?
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.
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.)
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.
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”.
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
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.)
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.)