Realistically don't most western countries have a hybrid?
In common law countries virtually everything (criminal) as been defined by statute and hardly anything is at common law. And in civil law countries judges still heavily rely on precedent to aid in interpreting law.
> And in civil law countries judges still heavily rely on precedent to aid in interpreting law.
The US and the UK are different in one other aspect compared to most Continental countries, more exactly in the fact that they had had a "democratic" and fair judicial system for at least the last 200 years, so there's plenty of cases from which to create "fair" precedents.
For comparison, my country (in Eastern Europe) has been a Communist dictatorship for 50 years, and it would be a little strange to judge a present complaint based on cases judged in the past by communist-controlled judges. The same goes for countries like Italy (which had Mussolini and the fascists rule them for 20+ years), Germany (the Nazis), Spain (Franco), Portugal (Salazar) and so on.
Plus, in this discussion I'm more on Thomas Paine's side against Burke's, the past has no intrinsic "value" stored in itself, the common law comes from the "dark ages". I know Napoleon is still pretty much hated in the Anglo-Saxon world, but in imposing his judicial code he was on the more enlightened side of things.
IIRC this actually happened, albeit on an individual basis: When prosecuting communists in the 50s and 60s in Western Germany, some judges considered the defendant to be a repeat-offender if they had been convicted of being a communist in the Third Reich.
To be fair, while Nazi Germany wasn't exactly democratic and there was a lot of politics in how laws were applied, being a communist activist was illegal both under Nazi German law as well as under West German law (in the 50s and 60s anyway).
The reasoning was less that someone had been convicted "earlier in this country" but that they had been convicted before at all, indicating they've literally done the same thing before and gotten punished for it.
If you buy into the logic that repeat offences constitute a more severe crime, it's sensible to take prior offences into account even if they were persecuted under a different jurisdiction.
Of course the idea that "resistance against the state" under the Nazi regime could serve as a prior offence seems ludicrous but let's not pretend the persecution of communists during the Cold War was fairer than the persecution of political undesirables before (though the punishment was obviously different).
>If you buy into the logic that repeat offences constitute a more severe crime, it's sensible to take prior offences into account even if they were persecuted under a different jurisdiction.
But Nazi Germany wasn't a state under the rule of law, so it's questionable whether someone convicted by one of its courts was really guilty of the crime they were accused of. I.e. the different jurisdiction wasn't trustworthy, so its verdict should have been ignored.
I think main difference is that some people get more sympathy from jury and better chances to get away with crime. In continental law judge tends to be more fair.
For example black receive higher sentences for drug related crimes. Women commits 30% of all murders but are 10 times less likely to be convicted.
Also in continental law sentences are shorter and more reasonable; 8 years for murder etc.
EDIT: we actually have sentences for murder 10 years to lifetime. It depends on case.
Before laughing too much at the European idea of justice, think of the absurd sentencing that regularly happens in the US: A "60 Minutes" story some years ago reported that a California man was sentenced to life in prison for shoplifting two double-A batteries. Yes, life for a pack of AA batteries.
He was a twice convicted felon who had already served his time but got mandatory life for a third crime, even a misdemeanor like shoplifting, under California's three strikes law.
> Before laughing too much at the European idea of justice, think of the absurd sentencing that regularly happens in the US: A "60 Minutes" story some years ago reported that a California man was sentenced to life in prison for shoplifting two double-A batteries.
Note that this is not something that "regularly happens in the US", it seems to be an illustration of a failure mode of California's particular implementation of a "three strikes" law under Prop 184 of 1994, which was abnormally severe (not requiring the third felony strike to be "serious or violent", as most three-strikes laws in the US do) -- and it seems to be a seriously misremembered one, at that, since even when this version of three strikes existed in CA, it still required the third strike to be a felony.
Also, this rule was changed to align CA's three strikes implementation with the common rule requiring the third strike to be a "serious or violent" felony in by Prop 36 in 2012 (which also provided a process for after-the-fact sentence adjustment for those sentenced under the old version for a third strike that would not have been subject to the enhanced sentence under the reformed version of the three strikes.)
Thank you for the insightful reply. However, I am not misremembering the story about the AA batteries. There was something in the original story about the third crime automatically getting elevated to a felony. So, yes, it needs to be a felony, but a minor third crime gets elevated to a felony.
I can't find the original 60 Minutes video, but here's a partial transcript of the episode (search for the word "batteries"):
And a book that recounts the same incident. The author is a Senior Fellow in Criminal Justice at the University of Southern California, so I assume he knows what he's talking about and has checked the accuracy of the story.
Actually, your transcript refers to a provision which elevates any theft (not any crime), with a prior theft, to a felony. This is a separate rule that predates and operates separately from the three-strikes law. (Though, obviously, before the reform to three strikes requiring the third felony to be violent or serious, had an interaction with it: but the conviction was, itself, a felony independently of the three-strikes law.)
I think you are right, it seems perfectly reasonnable to me (French) while the comments like "he could kill 10 people in his lifetime" seems ludicrous.
Sure when a low-life kills your children with cold blood and get away with it for 8 years, I would like to see your reaction after murderer goes out of jail and smiles at you.
The purpose of the legal system is NOT to offer retribution to victims. Making the murderer suffer won't bring back your kids. It will accomplish exactly nothing, in fact.
It won't accomplish anything for the victims' relatives, that's true. But other people will feel safer knowing that at least some percentage of children murderers are locked out for good.
It's not about making the murderer suffer either, it's about preventing future crimes. When you have cancer, you don't kill cancer cells because you want them to suffer. You kill them to prevent them from killing you.
If harsher penalties were the solution to preventing serious crimes, you'd think the death penalty would have fixed that, right?
Turns out the only thing harsher penalties do (beyond a certain threshold) is make it more likely for crimes to escalate because there's no point restraining yourself (if it means leaving witnesses) if you're already going away for life / going to be murdered by the state anyway.
As a matter of fact, the best way to prevent crimes is actually preventing crimes. Figure out why people commit crimes, then try to fix that. E.g. if you stop treating addicts as criminals you can solve their underlying psychological/social problems and they don't end up robbing people to pay for drugs.
Problem is, there always will be murderers, abusers and thieves. Preventing crime is the right thing to do, but I don't think it is the answer for determining right degree of punishment if a crime is committed.
Okay, consider this: you're talking about punishment.
What, exactly, is the point of punishment?
Are you trying to prevent future crimes? Great, we're actually talking about crime prevention and severity of punishment is a red herring (because we actually need to consider punishment as merely one option among many).
Are you trying to satisfy victims? Okay, but now you're saying the punishment basically serves as a synthesised substitute for mob justice -- so why pretend there's anything humane about it at all?
Are you trying to deter other would-be criminals from doing the same? Great, we can actually measure the effectiveness of that empirically (spoiler: it's not great) and adjust punishments accordingly.
Or we can just build more prisons and put more people in jail (or murder them if we really don't like them) because that has worked out so well in the US.
Actually that absolutely is one of the stated purposed of state justice. This also has the benefit of preventing private vendettas, if the victims feel the criminal has been punished enough.
In Europe, that is not true. The stated purpose of the justice system is that of deterrence. Exerting justice for the reason of revenge is nothing more than catering to the lower instincts of people and that is very much at odds with a civilized society. If you really believe that people are locked up so that the victims feel better, you have watched too many bad American TV dramas.
Well, it is widely documented in introductory criminal law courses as a part of the three Rs (removal, retribution, retaliation) or in more accessible material such as
Accomplish something? Oh yes it does! It served to attenuate the absolute day by day anguish of living with the fact that the murderer who blotted out the existence of the person you knew is set to enjoy a new life out of prison while their victim continues to rot. It also solves the potential for recidivism.
That is not at all how it goed. If someone mills all your children they gets a much higher sentence. It all depends on what you killed or what you stole. (Stealing two AA batteries vs stealing 10 million dollars with years of planning) But you don't get 5 years or more in prison for driving under influence.
If 8 years changed nothing, 15 years likely won't change much. Then you can say "but we can put him for life !", so just kill him then, same result except he won't suffer. (also French)
Show us the example where a person has killed multiple children and got an 8 year sentence.
Perhaps you should look at the US system where rich privileged kids can drive drunk, kill other passengers and avoid prison because of 'affluenza'.
The US prison system is corrupt, racist and run for the benefit of prison companies and if you don't realise that then perhaps you have been living under a rock.
The thing is, murders of kids by strangers are so extraordinarily rare and horrific that people talk about them for decades afterwards, but that makes them a bad precedent to build your ideas of justice around.
Kids are far more likely to be killed by their parents or step-parents.
If it isn't premeditated, it isn't murder. Perhaps the more accurate term is "premeditated killing" in which the outcome is premeditated. But in murder only the act must be premeditated, not the consequence. Punching someone and thereby causing their death is murder, you don't need to be trying to kill someone in order to murder them, but it isn't a premeditated killing.
At least in the UK, "murder" requires a proven intention to kill. Your example of a punch killing a person would fall under "manslaughter by unlawful and dangerous act" but not murder.
The ultimate goal of prison is to reintegrate people in the society. It fails at the moment miserably also because people consider the prison as a way to prevent people to come back to the society.
Your comment and the one to whom you respond show these two points of view. It is interesting that at the moment in the US you have more a "keep the criminals away from the society" point of view and in Europe "try to reintegrate them".
You left out perhaps the most important part: "...in the most cost-effective way possible," where cost includes repeat offenses, taxpayer money, the opportunity cost of lost productivity, destroyed families (multi-generational effects), etc.
I think this is an important point. These costs are amongst the many things a judge should (does?) weigh up in sentencing. If she gets it wrong a sentence may be reviewed (made more harsh or lenient as appropriate) on appeal. However when sentencing is politicised, such as with mandatory sentences the judge's "judgement" is taken out of the equation. It may be appropriate to give a guy life for stealing batteries when a bigger picture is taken into account but that should be for the professionals (i.e the judiciary) to decide rather than politicians looking to buzz frightened people into voting for them.
the point is that the "european" view is that you prevent crime by trying to help people who committed a crime rather than by punishing them.
Too harsh a punishment often only succeeds in putting someone in a position where they are even more likely to break the law.
E.g. you catch someone for smoking pot, and they get civil service and have to visit social support/psychologist/whatever.
This might not do any good but it might do some.
If you send them to jail for 5 years, they it's basically guaranteed that they will get out being in a much worse position than they were before, and more likely do commit crimes.
> The ultimate goal of prison is to reintegrate people in the society.
I don't understand that. If we're worried about criminals' integration with society then we shouldn't put them in prison. Prisons exist to separate people from society.
In America this is true. Prisons exist to punish criminals and to protect society from them. In more civilised countries, this is not the case. Prisons' ultimate goal is to rehabilitate the prisoners to the point where they can be reintegrated into society. Instead of focusing on making life unpleasant and treating people like animals, they have more of a focus on educating them and treating them so that they do not commit crimes again.
This can't be the correct way of thinking of the prison system. A person should not be sent to prison for the sole purpose of suffering for the crime which they committed. There is a reason people call a prison a correctional facility. The point is to correct the problems in their character that caused them to commit such a crime. If you isolate them from the world it's no wonder they would eventually commit a crime again. Because they have no idea how to fit into society. And then we just have another person to take care of while they don't do anything to contribute to society.
By this logic, I can just murder anyone I like, and then demonstrate that I won't do it again.
After that, no reason to keep me in prison any more right? It's not like the dead person or their family count for anything - it's all about me and the government's budget. Yeah?
Serious question: what the fuck is wrong with you? This Puritan "let's murder and torture people for their sins" approach is not working. Criminals are humans.
Yes, it's not about the dead person. They're dead.
It's also not about the family of the dead person. They've already been harmed.
It's not about you, it's about preventing future crimes. If you've been turned into a productive member of society, great -- everyone's off better now. If you haven't, the system has failed society (not just you).
Heck, there's a good chance prison isn't even the best solution for you personally. Most likely you need actual counselling or you're facing social problems. Containment is the last resort.
You don't fix bugs by hiding them -- you fix them by figuring out why they happened in the first place and determining how to decrease the likelihood of them happening again.
EDIT: In response to the killed throwaway: if you kill someone "in the heat of the moment" and it's not self-defence or anything else we consider acceptable, of course there's still a problem in need of fixing: self control. If you kill a man because he sleeps with your wife, no matter how betrayed you might feel, it's still a problem with how you act on those feelings. But this is only visible if you stop thinking "what is an appropriate punishment" and start thinking "why did this happen" and "what could have prevented it".
Do you think there should be no punishment at all for murdering someone?
You've talked about giving criminals help so they don't reoffend.
What do you do with someone who has absolutely no social or personal problems, is a productive member of society, but kills a man in passion because he's sleeping with his wife?
There's nothing to correct there. It's probably not likely to happen again, so he doesn't need any correction.
If I could recommend an interesting film to watch, go see Michael Moore's Where to Invade Next. You don't have to watch the whole thing, but try to find the part where they talk about the Norwegian prison system. And then look for the part where a father who lost his son during a massacre of about 60 children explains his thoughts. It's absolutely heartbreaking to watch. He explains that he doesn't want the criminal to suffer and rot in prison. Instead, he want's the rehabilitation center to help the man so that he can ultimately become a benefit to society. I can't even begin to understand how difficult it would be to say that after such a loss, but I think he was correct in doing so.
My belief is that the society failed to correctly educate the man who eventually became a criminal. I don't think people are born with such desires.
Brevik attacked an event held by the youth movement of a far left political party in Norway so the father (who I assume is also far left) reacting/coping that way is unsurprising.
That's not something to lionize though. Pretty sad all around. There's no great wisdom there, just a leftist coping method employed by the father, similar to what a religious person would do.
Good point, although I didn't mean to lionize the father.
I don't think it matters if the father was left, right or center. Whatever the basis, he made a decision that will ultimately benefit society (which is the main goal, right?). Whatever the political stance, we areasociety. Meaning the basic idea, which is that everyone contributes so that the whole benefits, should be of utmost importance.
The youth movement in question cannot really be considered far-left, except maybe by American standards. They're the youth wing of the establishment party in Norway, namely the Labour Party. We do have proper far-left parties, though.
Besides, I don't think you need to be particularly leftist or religious to cope this way. These ideas of forgiveness and rehabilitation permeate Norwegian (even Nordic) society, and are mostly secular these days. In fact, quite a few Norwegians will tell you that they consider harsh punishments «gamaltestamentleg», i.e. only fit for reactionaries who look to the Old Testament for prescriptions on how to handle things.
This is where I find the Norwegian prison system interesting. It seems their prisons are just pretty remote "villages" more like monasteries where the prisoners work together. ASFAIK they are much more successful in rehabilitating people back into society than countries with more traditional prisons.
Exactly, the tv show Oz by Tom Fontana covers the subject entirely. When Tim McManus tries to build a micro-society to prepare convicted fellows to live in a real society, it shows how it's very hard and that many disciplines such as psychology, sociology, philosophy... are very much needed.
So jail them for life because -- you know -- they could maybe do something illegal?
What reasoning is this?
Why not have a only "for the rest of your life" punishments? You know, a thug being a thug, probably born like it. Won't ever change those people. Better lock them up, put them away. /s
Juries have a rather minor role in criminal justice. Far less than 1% of crimes ever get to a jury. There are some US jurisdictions where the only cases that ever get to a jury are those with mandatory life and/or death punishments that preclude plea bargaining.
Even amongst those who want to go to trial on lesser charges regularly opt for a judge rather than jury.
In France, juries are involved only for cases defined as "Crimes" (the American equivalent would be felony, but it's much more restrictive), such as murder and rape, especially violent thefts and war crimes. And even in these cases, their role is much less important than in the US for two reasons :
* the 6 jurors (9 in appeal) decide the case alongside 3 professional judges whose influence is often decisive during the jury's deliberation (and in any case they always carry 3 votes)
* there's no need for an unanimous decision: 6 votes are necessary for any conviction (8 in appeal)
To paraphrase Malcolm Gladwell: the only situation in which you're better off being tried by a jury is when you're actually guilty. If you're innocent, bad luck.
> Common law: some of the laws are based on customs, which means that things are against the law and can be punished because they have been punished by judges in the past.
US and UK courts help develop the law through the precedents they set in their judgements. Law is not just a product of the legislative process and statute, but also of case law developed by judges. Common law often leaves a lot of the details of implementation to judges, and judges are also left to interpret and establish the law when an unforeseen case comes to their court that the legislative process did not deliberate over. If a higher court establishes a precedent for punishment then a lower court might cite that precedent as part of their legal reasoning of why they are bound to a particular punishment, and an appeal can be made against that judge if it is found they don't follow precedent. If you read a formal judgement you will usually find references to case law created by previous judges scattered throughout a judge's argument.
Edit: As an example maybe look at the recent popular case of Oscar Pistorius in South Africa in which a major contention has been the interpretation of case law by the judge to decide the appropriate category (murder vs manslaughter) and punishment for the killing of Reeva Steenkamp.
But is there an actual modern-day example? Like, someone was punished for picking strawberries out of season because it's against common law even though there is no legislative law.
It's sounds to me like this situation no longer arises -- everything has been written down as a law.
New precedents are created all the time. Just look at the US supreme court which is a court with the primary responsibility of establishing case law precedents when lower courts disagree on statue and case law. They recently legalised gay marriage (I'd say good outcome based on bad reasoning, but whatever) and made it impossible for the US states and their courts from blocking gay marriage due to the precedent set as the highest court. Lower courts can now prosecute against states and officials that try to block it. The only thing that could override that ruling at this point is a constitutional amendment.
I don't think we get many courts creating laws on picking strawberries out of season though. There would need to be an existing legal context in which strawberries picking out of season is an edge case that can be decided by case law.
Aha, so that's an actual modern-day example? An official who tries to prevent a gay marriage can be punished under common law even though there is no legislated law against officials trying to prevent gay marriage.
Yes, there is no explicit statute that says that an official can be punished for preventing gay marriage, but new case law would make this an offence and a lower court might need to establish further new case law to decide what an appropriate punishment might be for the official or state that does try to block it within the legal context of similar violations of law both in statute and case law. Basically they would get fired for not performing their duties as an official.
In many common law jurisdictions (not including my part of Australia any more, but still in many other parts of the Commonwealth), murder is a crime defined by the common law - these days, statutes set what the maximum sentence of a murder conviction can be, but the definition of the crime itself is a common law definition.
I'm not a lawyer but I have a basic understanding. In the UK case law is probably more applicable to what we call civil law than criminal law. Most things are criminalised by legislation (like French law) these days but civil law matters like the definition of the tort of negligence, contract law etc are more dependent on precedent (common law). So an example which is the basic definition of the modern interpretation of negligence is the snail in the ginger beer case [0]. This is a classic case which lawyers and quite a few other professionals study. I was taught this at Architecture School and I still get updates on cases pertinent to construction through the CPD program of my professional association. Obviously you can disappear down the rabbit hole pretty quickly when trying to figure out how precedent might apply to your particular situation. This is why you should always consult a lawyer not random comments on the internet. Also because they spend years reading this stuff it explains why they are so expensive!
[0] https://en.m.wikipedia.org/wiki/Donoghue_v_Stevenson
Scots law is more useful than the law of England and Wales in regard to common law offences as due to the long period with no separate Parliament it didn't go through the same process that England did of statute law replacing common law.
Take the Scottish Breach of the Peace which is very different from the English version. "Where something is done in breach of public order or decorum which might reasonably be expected to lead the lieges being alarmed or upset or tempted to make reprisals at their own hand, the circumstances are such to amount to a breach of the peace".
The complex sounding definition is the first thing, common law offences are more descriptive of a course of action than specifically spelling out elements. Over the years cases come along which clarify the boundaries of the offence - for instance requiring a public element, defining who counts as being public (not family members for instance).
As a former police officer in Scotland I really like Scots law. It is simple enough that people tend to understand it. It is broad enough to encompass things the legal system may not have encountered before. The UK politically went through a rough time in the 2000s reassessing stalking, Parliament passes a blizzard of legislation trying to define it but didn't need to cover Scotland as it has always been treated as a Breach of the Peace.
The big problem is that some cases can have massive unintentional consequences. Two cases that happened in fairly quick succession unintentionally prevented events in your home witnessed only by your family from being a breach. On the one hand that sounds sensible (hence why the court made the ruling) but also invalidated a breach being used to prosecute domestic abuse that didn't go as far as an assault (which again in Scotland is different from England). The Scottish Parliament had to rush through what became known as the "Statutory Breach of Peace" (Section. 38 of the Criminal Justice and Licensing (Scotland) Act 2010) in order to restore the ability to do anything.
Its a pack of fucking batteries mate. You've just ruined a guys life, the life of his family and friends because of a pack of batteries.
The enlightened thing to do would be to help him re-integrate into society so that he didn't need to steal a pack of batteries, help him get a job, go to counselling etc.
By all means give the guy a fine, or tag him. Treat him like the child he's acting like. But life in prison for a pack of batteries is a bit much.
Tagging is not rehabilitation. Rehabilitation is education, training etc, both of which cost far less than imprisonment but your private prison companies are lobbying hard for harsher prison terms and that lobbying evidently works on you.
A man's life ruined. The cost to society of imprisoning a person for life. Over something that's worth what, $5? Probably less.
I guess now every person in California pays > $5 each for his imprisonment. If he were to be properly rehabilitated not only would Californians not need to pay for his time in prison but he would contribute to California by paying taxes.
IMHO it seems the big difference between the US penal system and much of the European is that the US prioritizes vengeance whereas the European prioritizes rehabilitation.
It costs society far more to imprison him for life. If we are optimizing for cost to society then it should be possible to find at least one other local minimum between the loss to society of a $5 petty theft and life imprisonment.
I very much value being able to without having to constantly watch out for and defend myself against attacks on my person or property.
Europeans don't really care about that, neither do San Franciscans either apparently. That's why crime is absurdly high in SF and they love it. Good for them.
(Note: the following should not be interpreted as an endorsement of "three strikes" laws. I've voted against these whenever they've shown up on ballot initiatives).
But what should we do when rehabilitation repeatedly fails for a particular individual?
Throwing the person into prison for life is obviously the wrong solution, it is not proportional to the crimes committed and it's a net negative for society.
Put the person on supervised release, put an ancle monitor on the person and put the person to community work, until they become a net benefit to society.
Other solutions may apply, but at least the above is better than three strikes.
> Throwing the person into prison for life is obviously the wrong solution, it is not proportional to the crimes committed and it's a net negative for society.
That brings to mind an interesting question. Why should prison time be proportional to the crimes committed?
If the purpose of prison is rehabilitation, then shouldn't the time be however long it takes to rehabilitate the prisoner? There might be some correlation between that and the crimes committed, but I would expect that to be a weak correlation. There will be many people who are easy to rehabilitate whose first crime was very serious and many people hard to rehabilitate whose first crime was relatively minor.
Because society only works when there are some values or rules shared by the people.
Society only obeys the rule of law as long as there is some consensus that the law is fair and just. Basic fairness demands that breaking a rule should result in a punishment.
The punishment is only fair if it is proportional to the offense. Therefore prison time should be proportional to the crimes committed.
I think the core difference between your views and those of the post you are replying to is that you consider the purpose of the prison system to be _punitive_, whereas the parent considers it's role to be _rehabilitative_.
While punishment for crime certainly appeals to our instincts, should we not consider more "humane", and possibly more effective crime reduction measures (rehabilitation over punishment)?
The original discussion was about alternatives to three strikes (which explicitly both of us oppose). Notice the lack of value judgement of rehabilitation vs. punishment.
Secondly we were discussing the concept of proportionality. I expressed the rationality of society's need for proportional punishment. Notice how I did not present my personal views regarding rehabilitation vs. punishment.
So far we have only established that I believe that the punishment for a crime should have an upper bound which is proportional to the offense.
Now, whether the purpose of the prison system should be punitive or rehabilitative is another discussion.
> But what should we do when rehabilitation repeatedly fails for a particular individual?
Bit of the UK currently have a persistent prolific offender strategy. There's no national clear definition of a PPO, but there are estimated to be about 8,000 nationally. (In a country of about 70m). I've seen estimates that about half these people are in prison. (One old definition of a PPO was someone over 18 who is convicted of 6 or more recordable offences in the past 12 months. But that definition is old, and people now look at the impact to the local community rather than number of crimes.)
The PPO strategy has several layers.
Offenders are identified, and provided with large amounts of support to rehabilitate. This includes education, housing support, drug and alcohol treatment, and so on. (I don't know whether it looks at undiagnosed brain injury, which are common in prisoners).
When they're in the community they are closely monitored. Any criminality is rapidly detected, prosecuted and convicted, and punishment is rapidly applied. Most of these people will be out of prison "on licence", which makes returning them to prison easier. This makes it very clear that criminal behaviour is not tolerated. Sometimes the justice system does not make that clear!
The aim is to reduce the amount of offending the person does, but also to reduce the fear of crime in the local community.
> But what should we do when rehabilitation repeatedly fails for a particular individual?
If the system that is supposed to be rehabilitating people is failing sizable classes of individuals (which is the problem -- not a very few isolated individuals -- that broad three-strikes laws, particularly the pre-reform California version, address), one might consider that the problem is with the design of the system for rehabilitation, and ask how to make that work better, rather than progressively subjecting people for whom it doesn't work to it for longer, and then giving up, the way three strikes laws and other ways of taking post convictions into account in sentencing do.
Yeah at $50k a year to imprison him and perhaps 30 years of life left that seems like a perfectly reasonable way to spend $1.5 million dollars. You could re-educate, retrain and rehabilitate him for what you would spend to. Imprison him for 12 - 24 months.
Be warned, this article has only a passing understanding of "system[s] of common law". The odd phraseology I put down to translation, but some of the specific statements are just wrong. I would say this is a wikipedia-level understanding of how systems of legal authority work.
For instance, in common law countries (ie those taking their traditions from the Brits) judges are not in fact obligated to follow rules of precedent. That's the sort of thing that a textbook might say, but the reality is that judges regularly bypass or ignore previous rulings on similar matters. Similarly, in Civil law jurisdictions (those that take traditions from the French) judges regularly rely on past rulings by respected judges. The process may not be formalized, but to say that judges no not regard previous decisions on similar matters is disingenuous. They write. They read each other;s work. They learn and share in much the same way as common law jurisdictions.
Speaking as someone working in common law jurisdictions, I'd say that the primary motivation for a judge to follow a previous ruling by a higher court is not some rule of precedent. Imho they are motivated by the likelihood of their ruling being turned on appeal. That gives them much more room in which to act. That is judicial discretion. That power is why we must respect judges and why they in turn must work to deserve our respect.
> Similarly, in Civil law jurisdictions (those that take traditions from the French) judges regularly rely on past rulings by respected judges.
You are indeed correct in most of your comment. But in France while it's true that judges read decisions by other judges, they will never ever quote another judge (except the ECHR). If for instance the Court de cassation (One of the French three (or four, or five, depends on how you count them) Supreme Courts) has said that "X has to be interpreted as Y". Lower judges will start using the sentence directly lifted from the Court de cassation decision "X should be interpreted as Y", but without quotation marks or any sort of attribution. It's a fiction that the judge came up with this interpretation by himself. Sometimes the judge will use some sort of caveat like "Il est constant que" ("It is always the case that") which is a way of saying that he is looking at precedent, without saying it explicitly.
If a judge did quote directly the Court de cassation with attribution, his decision could be appealed and be overthrown by the Court de cassation itself.
And if a judge disagrees with our Supreme Court, he will oftentimes without any hesitation "enter in resistance" (issuing decisions that go against the Court de cassation interpretation), the idea is that this is the way judges try to get the Supreme Court to change its opinion. This is also possible because he have more or less 90 judges in the Court de cassation, and turnover is quite high, so if a decision was only one or two votes in a direction (which no one knows because the votes are secret and the ratio of yays and nays also is secret), in a year, a judge or two at the court may change and the position could change.
My conclusion would be that in France we do respect precedent most of the time... but only if the judge agree with it. Our judges have a natural inclination to ignore precedent. Meanwhile in Common law countries, there is a natural inclination ot respect it... but sometimes judges disagree.
Caveat : In France, decisions by the Constitutional Council (the "Higher" Supreme Court... the Court of cassation would disagree on the "Higher" part) do create binding precedent... because those decision can change directly the text of the law. If the Council says that a sentence in a law is unconstitutional. Then the sentence is stripped out of the Code itself. Lower judges cannot therefore ignore it.
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[ 3.0 ms ] story [ 154 ms ] threadIn common law countries virtually everything (criminal) as been defined by statute and hardly anything is at common law. And in civil law countries judges still heavily rely on precedent to aid in interpreting law.
https://en.wikipedia.org/wiki/Scots_law
The US and the UK are different in one other aspect compared to most Continental countries, more exactly in the fact that they had had a "democratic" and fair judicial system for at least the last 200 years, so there's plenty of cases from which to create "fair" precedents.
For comparison, my country (in Eastern Europe) has been a Communist dictatorship for 50 years, and it would be a little strange to judge a present complaint based on cases judged in the past by communist-controlled judges. The same goes for countries like Italy (which had Mussolini and the fascists rule them for 20+ years), Germany (the Nazis), Spain (Franco), Portugal (Salazar) and so on.
Plus, in this discussion I'm more on Thomas Paine's side against Burke's, the past has no intrinsic "value" stored in itself, the common law comes from the "dark ages". I know Napoleon is still pretty much hated in the Anglo-Saxon world, but in imposing his judicial code he was on the more enlightened side of things.
IIRC this actually happened, albeit on an individual basis: When prosecuting communists in the 50s and 60s in Western Germany, some judges considered the defendant to be a repeat-offender if they had been convicted of being a communist in the Third Reich.
Yes, the judges were former Nazis.
Edit: Source (German, I'm afraid): http://www.heise.de/tp/artikel/14/14361/1.html
The reasoning was less that someone had been convicted "earlier in this country" but that they had been convicted before at all, indicating they've literally done the same thing before and gotten punished for it.
If you buy into the logic that repeat offences constitute a more severe crime, it's sensible to take prior offences into account even if they were persecuted under a different jurisdiction.
Of course the idea that "resistance against the state" under the Nazi regime could serve as a prior offence seems ludicrous but let's not pretend the persecution of communists during the Cold War was fairer than the persecution of political undesirables before (though the punishment was obviously different).
But Nazi Germany wasn't a state under the rule of law, so it's questionable whether someone convicted by one of its courts was really guilty of the crime they were accused of. I.e. the different jurisdiction wasn't trustworthy, so its verdict should have been ignored.
For example black receive higher sentences for drug related crimes. Women commits 30% of all murders but are 10 times less likely to be convicted.
Also in continental law sentences are shorter and more reasonable; 8 years for murder etc.
EDIT: we actually have sentences for murder 10 years to lifetime. It depends on case.
This may be the most European thing I've ever read.
He was a twice convicted felon who had already served his time but got mandatory life for a third crime, even a misdemeanor like shoplifting, under California's three strikes law.
Note that this is not something that "regularly happens in the US", it seems to be an illustration of a failure mode of California's particular implementation of a "three strikes" law under Prop 184 of 1994, which was abnormally severe (not requiring the third felony strike to be "serious or violent", as most three-strikes laws in the US do) -- and it seems to be a seriously misremembered one, at that, since even when this version of three strikes existed in CA, it still required the third strike to be a felony.
Also, this rule was changed to align CA's three strikes implementation with the common rule requiring the third strike to be a "serious or violent" felony in by Prop 36 in 2012 (which also provided a process for after-the-fact sentence adjustment for those sentenced under the old version for a third strike that would not have been subject to the enhanced sentence under the reformed version of the three strikes.)
I can't find the original 60 Minutes video, but here's a partial transcript of the episode (search for the word "batteries"):
https://listserv.buffalo.edu/cgi-bin/wa?A2=JUSTWATCH-L;16e9e...
And a book that recounts the same incident. The author is a Senior Fellow in Criminal Justice at the University of Southern California, so I assume he knows what he's talking about and has checked the accuracy of the story.
http://www.abebooks.com/servlet/BookDetailsPL?bi=8356210389&...
And someone's letter to the Governor of California with a list of three strike convictions, a number of which are not felonies:
http://www.prisontalk.com/forums/archive/index.php/t-39951.h...
That's cultural differences for you !
It's not about making the murderer suffer either, it's about preventing future crimes. When you have cancer, you don't kill cancer cells because you want them to suffer. You kill them to prevent them from killing you.
Turns out the only thing harsher penalties do (beyond a certain threshold) is make it more likely for crimes to escalate because there's no point restraining yourself (if it means leaving witnesses) if you're already going away for life / going to be murdered by the state anyway.
As a matter of fact, the best way to prevent crimes is actually preventing crimes. Figure out why people commit crimes, then try to fix that. E.g. if you stop treating addicts as criminals you can solve their underlying psychological/social problems and they don't end up robbing people to pay for drugs.
What, exactly, is the point of punishment?
Are you trying to prevent future crimes? Great, we're actually talking about crime prevention and severity of punishment is a red herring (because we actually need to consider punishment as merely one option among many).
Are you trying to satisfy victims? Okay, but now you're saying the punishment basically serves as a synthesised substitute for mob justice -- so why pretend there's anything humane about it at all?
Are you trying to deter other would-be criminals from doing the same? Great, we can actually measure the effectiveness of that empirically (spoiler: it's not great) and adjust punishments accordingly.
Or we can just build more prisons and put more people in jail (or murder them if we really don't like them) because that has worked out so well in the US.
http://lawcomic.net/guide/?p=156
Perhaps you should look at the US system where rich privileged kids can drive drunk, kill other passengers and avoid prison because of 'affluenza'.
The US prison system is corrupt, racist and run for the benefit of prison companies and if you don't realise that then perhaps you have been living under a rock.
Kids are far more likely to be killed by their parents or step-parents.
If it isn't premeditated, it isn't murder. Perhaps the more accurate term is "premeditated killing" in which the outcome is premeditated. But in murder only the act must be premeditated, not the consequence. Punching someone and thereby causing their death is murder, you don't need to be trying to kill someone in order to murder them, but it isn't a premeditated killing.
IMHO your example of a punch would not pass this test.
[1] http://www.cps.gov.uk/legal/h_to_k/homicide_murder_and_mansl...
[2] http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/j...
Your comment and the one to whom you respond show these two points of view. It is interesting that at the moment in the US you have more a "keep the criminals away from the society" point of view and in Europe "try to reintegrate them".
Both by deterring would-be criminals, and by keeping future lawbreakers behind bars where they can't do harm.
Too harsh a punishment often only succeeds in putting someone in a position where they are even more likely to break the law.
E.g. you catch someone for smoking pot, and they get civil service and have to visit social support/psychologist/whatever. This might not do any good but it might do some.
If you send them to jail for 5 years, they it's basically guaranteed that they will get out being in a much worse position than they were before, and more likely do commit crimes.
I don't understand that. If we're worried about criminals' integration with society then we shouldn't put them in prison. Prisons exist to separate people from society.
After that, no reason to keep me in prison any more right? It's not like the dead person or their family count for anything - it's all about me and the government's budget. Yeah?
Yes, it's not about the dead person. They're dead.
It's also not about the family of the dead person. They've already been harmed.
It's not about you, it's about preventing future crimes. If you've been turned into a productive member of society, great -- everyone's off better now. If you haven't, the system has failed society (not just you).
Heck, there's a good chance prison isn't even the best solution for you personally. Most likely you need actual counselling or you're facing social problems. Containment is the last resort.
You don't fix bugs by hiding them -- you fix them by figuring out why they happened in the first place and determining how to decrease the likelihood of them happening again.
EDIT: In response to the killed throwaway: if you kill someone "in the heat of the moment" and it's not self-defence or anything else we consider acceptable, of course there's still a problem in need of fixing: self control. If you kill a man because he sleeps with your wife, no matter how betrayed you might feel, it's still a problem with how you act on those feelings. But this is only visible if you stop thinking "what is an appropriate punishment" and start thinking "why did this happen" and "what could have prevented it".
You've talked about giving criminals help so they don't reoffend.
What do you do with someone who has absolutely no social or personal problems, is a productive member of society, but kills a man in passion because he's sleeping with his wife?
There's nothing to correct there. It's probably not likely to happen again, so he doesn't need any correction.
So would you just let him go?
My belief is that the society failed to correctly educate the man who eventually became a criminal. I don't think people are born with such desires.
That's not something to lionize though. Pretty sad all around. There's no great wisdom there, just a leftist coping method employed by the father, similar to what a religious person would do.
I don't think it matters if the father was left, right or center. Whatever the basis, he made a decision that will ultimately benefit society (which is the main goal, right?). Whatever the political stance, we are a society. Meaning the basic idea, which is that everyone contributes so that the whole benefits, should be of utmost importance.
Besides, I don't think you need to be particularly leftist or religious to cope this way. These ideas of forgiveness and rehabilitation permeate Norwegian (even Nordic) society, and are mostly secular these days. In fact, quite a few Norwegians will tell you that they consider harsh punishments «gamaltestamentleg», i.e. only fit for reactionaries who look to the Old Testament for prescriptions on how to handle things.
What reasoning is this?
Why not have a only "for the rest of your life" punishments? You know, a thug being a thug, probably born like it. Won't ever change those people. Better lock them up, put them away. /s
Even amongst those who want to go to trial on lesser charges regularly opt for a judge rather than jury.
I.e. france and italy both have a civil law system but some crimes (murder, for example) depend on a popular jury in addition to the judge.
* the 6 jurors (9 in appeal) decide the case alongside 3 professional judges whose influence is often decisive during the jury's deliberation (and in any case they always carry 3 votes)
* there's no need for an unanimous decision: 6 votes are necessary for any conviction (8 in appeal)
Can anyone give an example of this?
Most common law was codified and modernised in the latter half of the 20th century.
Edit: As an example maybe look at the recent popular case of Oscar Pistorius in South Africa in which a major contention has been the interpretation of case law by the judge to decide the appropriate category (murder vs manslaughter) and punishment for the killing of Reeva Steenkamp.
It's sounds to me like this situation no longer arises -- everything has been written down as a law.
I don't think we get many courts creating laws on picking strawberries out of season though. There would need to be an existing legal context in which strawberries picking out of season is an edge case that can be decided by case law.
Take the Scottish Breach of the Peace which is very different from the English version. "Where something is done in breach of public order or decorum which might reasonably be expected to lead the lieges being alarmed or upset or tempted to make reprisals at their own hand, the circumstances are such to amount to a breach of the peace".
The complex sounding definition is the first thing, common law offences are more descriptive of a course of action than specifically spelling out elements. Over the years cases come along which clarify the boundaries of the offence - for instance requiring a public element, defining who counts as being public (not family members for instance).
As a former police officer in Scotland I really like Scots law. It is simple enough that people tend to understand it. It is broad enough to encompass things the legal system may not have encountered before. The UK politically went through a rough time in the 2000s reassessing stalking, Parliament passes a blizzard of legislation trying to define it but didn't need to cover Scotland as it has always been treated as a Breach of the Peace.
The big problem is that some cases can have massive unintentional consequences. Two cases that happened in fairly quick succession unintentionally prevented events in your home witnessed only by your family from being a breach. On the one hand that sounds sensible (hence why the court made the ruling) but also invalidated a breach being used to prosecute domestic abuse that didn't go as far as an assault (which again in Scotland is different from England). The Scottish Parliament had to rush through what became known as the "Statutory Breach of Peace" (Section. 38 of the Criminal Justice and Licensing (Scotland) Act 2010) in order to restore the ability to do anything.
Well by all means the enlightened thing to do would be to allow him to keep victimizing people.
The enlightened thing to do would be to help him re-integrate into society so that he didn't need to steal a pack of batteries, help him get a job, go to counselling etc.
By all means give the guy a fine, or tag him. Treat him like the child he's acting like. But life in prison for a pack of batteries is a bit much.
Yeah tag the guy and keep letting him steal from people, sometimes he'll get caught, sometimes he won't. That's a great society to live in.
I guess now every person in California pays > $5 each for his imprisonment. If he were to be properly rehabilitated not only would Californians not need to pay for his time in prison but he would contribute to California by paying taxes.
IMHO it seems the big difference between the US penal system and much of the European is that the US prioritizes vengeance whereas the European prioritizes rehabilitation.
(I totally agree with you, I just hate order-of-magnitude errors.)
Keep in mind he was only sentenced after he was caught and the store owner pressed charges.
I very much value being able to without having to constantly watch out for and defend myself against attacks on my person or property.
Europeans don't really care about that, neither do San Franciscans either apparently. That's why crime is absurdly high in SF and they love it. Good for them.
But what should we do when rehabilitation repeatedly fails for a particular individual?
Put the person on supervised release, put an ancle monitor on the person and put the person to community work, until they become a net benefit to society.
Other solutions may apply, but at least the above is better than three strikes.
That brings to mind an interesting question. Why should prison time be proportional to the crimes committed?
If the purpose of prison is rehabilitation, then shouldn't the time be however long it takes to rehabilitate the prisoner? There might be some correlation between that and the crimes committed, but I would expect that to be a weak correlation. There will be many people who are easy to rehabilitate whose first crime was very serious and many people hard to rehabilitate whose first crime was relatively minor.
Society only obeys the rule of law as long as there is some consensus that the law is fair and just. Basic fairness demands that breaking a rule should result in a punishment.
The punishment is only fair if it is proportional to the offense. Therefore prison time should be proportional to the crimes committed.
While punishment for crime certainly appeals to our instincts, should we not consider more "humane", and possibly more effective crime reduction measures (rehabilitation over punishment)?
The original discussion was about alternatives to three strikes (which explicitly both of us oppose). Notice the lack of value judgement of rehabilitation vs. punishment.
Secondly we were discussing the concept of proportionality. I expressed the rationality of society's need for proportional punishment. Notice how I did not present my personal views regarding rehabilitation vs. punishment.
So far we have only established that I believe that the punishment for a crime should have an upper bound which is proportional to the offense.
Now, whether the purpose of the prison system should be punitive or rehabilitative is another discussion.
Bit of the UK currently have a persistent prolific offender strategy. There's no national clear definition of a PPO, but there are estimated to be about 8,000 nationally. (In a country of about 70m). I've seen estimates that about half these people are in prison. (One old definition of a PPO was someone over 18 who is convicted of 6 or more recordable offences in the past 12 months. But that definition is old, and people now look at the impact to the local community rather than number of crimes.)
The PPO strategy has several layers.
Offenders are identified, and provided with large amounts of support to rehabilitate. This includes education, housing support, drug and alcohol treatment, and so on. (I don't know whether it looks at undiagnosed brain injury, which are common in prisoners).
When they're in the community they are closely monitored. Any criminality is rapidly detected, prosecuted and convicted, and punishment is rapidly applied. Most of these people will be out of prison "on licence", which makes returning them to prison easier. This makes it very clear that criminal behaviour is not tolerated. Sometimes the justice system does not make that clear!
The aim is to reduce the amount of offending the person does, but also to reduce the fear of crime in the local community.
If the system that is supposed to be rehabilitating people is failing sizable classes of individuals (which is the problem -- not a very few isolated individuals -- that broad three-strikes laws, particularly the pre-reform California version, address), one might consider that the problem is with the design of the system for rehabilitation, and ask how to make that work better, rather than progressively subjecting people for whom it doesn't work to it for longer, and then giving up, the way three strikes laws and other ways of taking post convictions into account in sentencing do.
For instance, in common law countries (ie those taking their traditions from the Brits) judges are not in fact obligated to follow rules of precedent. That's the sort of thing that a textbook might say, but the reality is that judges regularly bypass or ignore previous rulings on similar matters. Similarly, in Civil law jurisdictions (those that take traditions from the French) judges regularly rely on past rulings by respected judges. The process may not be formalized, but to say that judges no not regard previous decisions on similar matters is disingenuous. They write. They read each other;s work. They learn and share in much the same way as common law jurisdictions.
Speaking as someone working in common law jurisdictions, I'd say that the primary motivation for a judge to follow a previous ruling by a higher court is not some rule of precedent. Imho they are motivated by the likelihood of their ruling being turned on appeal. That gives them much more room in which to act. That is judicial discretion. That power is why we must respect judges and why they in turn must work to deserve our respect.
You are indeed correct in most of your comment. But in France while it's true that judges read decisions by other judges, they will never ever quote another judge (except the ECHR). If for instance the Court de cassation (One of the French three (or four, or five, depends on how you count them) Supreme Courts) has said that "X has to be interpreted as Y". Lower judges will start using the sentence directly lifted from the Court de cassation decision "X should be interpreted as Y", but without quotation marks or any sort of attribution. It's a fiction that the judge came up with this interpretation by himself. Sometimes the judge will use some sort of caveat like "Il est constant que" ("It is always the case that") which is a way of saying that he is looking at precedent, without saying it explicitly.
If a judge did quote directly the Court de cassation with attribution, his decision could be appealed and be overthrown by the Court de cassation itself.
And if a judge disagrees with our Supreme Court, he will oftentimes without any hesitation "enter in resistance" (issuing decisions that go against the Court de cassation interpretation), the idea is that this is the way judges try to get the Supreme Court to change its opinion. This is also possible because he have more or less 90 judges in the Court de cassation, and turnover is quite high, so if a decision was only one or two votes in a direction (which no one knows because the votes are secret and the ratio of yays and nays also is secret), in a year, a judge or two at the court may change and the position could change.
My conclusion would be that in France we do respect precedent most of the time... but only if the judge agree with it. Our judges have a natural inclination to ignore precedent. Meanwhile in Common law countries, there is a natural inclination ot respect it... but sometimes judges disagree.
Caveat : In France, decisions by the Constitutional Council (the "Higher" Supreme Court... the Court of cassation would disagree on the "Higher" part) do create binding precedent... because those decision can change directly the text of the law. If the Council says that a sentence in a law is unconstitutional. Then the sentence is stripped out of the Code itself. Lower judges cannot therefore ignore it.