> You made a mistake, there were consequences - but once that's over, you ought to be good as new.
The consequences for being found guilty of a crime are more nuanced than this suggests, although not so much in the US which is very focused on vengeance.
Let's take an example a sentencing example I sat in on:
The man had forged paperwork purportedly showing he'd paid a bunch of money for supplies, because he had already written a fraudulent claim for a large tax refund for his business, and the tax office wrote back asking for evidence of this expenditure. That was his last chance to say "Oops, that was er... a mistake" and maybe get a fine, once he decided "I'll just forge the paperwork" he was doomed to go to prison.
Item 1 on the court's agenda was to tell Companies House that the guilty man must not direct any companies. Never (unless a successful application is made to reverse this, which is unlikely) can this man serve as director or secretary of any type of company again. In his family business this means a son will now run the company - why? Because the freedom to direct a company is not essential and we evidently can't trust this guy to do so because he purposefully lied to the tax authorities. He doesn't need to "earn" that back, let somebody trustworthy do it instead.
The guy also got some months of prison time, after the court had reassured itself that this would not leave any dependants destitute -- no point sending one guy to prison only to have his kids turn to crime to get food right? But the fervent hope of the court is that this results in him being _reformed_ and no longer breaking the law.
We can also disqualify people who commit electoral fraud from participating in elections. Oh two government employees conspired to stuff a ballot for a $500 pay off? They're not just going to prison for a little while, they will also have a lifetime ban on standing as candidate in any election and from participating in any way, including as an ordinary voter. No more democracy for you motherfucker.
As to "eternal" punishment, in countries that don't have the Death Penalty (all of Europe for example) what else should we do with unrepentant murderers? Anders Breivik for example still expresses the belief that murdering a bunch of young volunteers was the right thing to do. We obviously can't be like "OK Anders, you've served your time, don't kill anybody else" because that's exactly what he'll do. So he will most likely spend the rest of his life in a cell - periodically psychologists will assess him, say nope he's still dangerous, and he'll stay behind bars.
> It's entirely with regard for justice. That's the goal.
Your ends may be laudable but your means are immoral. The ends do not justify the means.
> You're concerned with conviction of something harmful. The harm they committed was in the other crimes. They should evade punishment for that because they managed to hide it well?
You say they're evading punishment "because they managed to hide it well" but the fact remains that you were never able to prove they actually did anything worthy of being punished for in the first place. Don't you see the obvious error in that? The only thing you actually know is that their financial transactions were not documented to your satisfaction. In effect you're demanding that they prove their innocence, whereas in a just system one is innocent until proven guilty.
> When you are charged with a crime, even if you can prove your innocence, generally your day to day life suffers great harm that can be considered a punishment for daring to do what ever got you charged with the crime in the first place.
Or for daring to do nothing at all, in the case of mistaken identity or a straight frame job. I mention this out only to say your points here are correct, but the situation is actually much worse than you portray.
> When you're innocent you think that your innocence means something. It doesn't. Discount it and move on. ... If you're guilty ... no idea how to help you.
Not sure how to read that. Is this consistent?
I'm not trying to bait or anything. Judicial institutions aren't about some objective truth somewhere out in the universe. Best case scenario is that their processes provide stability. (The nice, good governance kind of stability, therefore creating legitimacy, being predictable etc.)
I can therefore fully understand the first part. No idea why they chose to return to the question of guilt again later in their comment.
It wouldn't change a thing in the usefulness of their advice.
> They should have either pardoned everyone who was convicted under these laws, or none of them. Favouring one man because of his historical significance is creating a two tier justice system.
Does that actually work, though? I gave this some thought today, and I wondered what the ramifications were for having to unpick 100s of years of perhaps other law and cases and convictions, including those where maybe a prior conviction under the act led to X led to Y... and then there is all the conjoined case law. This naive guy suspects it is not as simple as it sounds.
> The piece of the puzzle that you're missing is that people commit crime, and if they find out why they got in trouble with the law, they'll know which behavior triggered it and will learn to avoid that behavior.
> It sucks, but automating sharing reasons for illegal actions will be self-defeating.
Yes I changed your text from corporate "illegal" to government "illegal". We wouldn't let THAT fly in a court of law. We have rules on that, like the 4th and 5th amendment. Right to have the charges read before them; right to face their accuser; right to a fair trial; right to be secure in their houses/papers/effects
So what are the charges? "We will not tell you what you did."
Who's the accuser who said I did the thing? "It cannot be in the courtroom. It is an algorithm.
Secure in your effects? You waived them (unilaterally) in dealing with a monopoly. Too bad, soo sad.
> In this case a jury can exercise discretion and refuse to convict someone even when the law and evidence would demand it.
Right. Or (in the abstract, though there are pretty strong signs that its not the current intention in this case) prosecutorial discretion or executive pardon can be used before or after the point where the jury would get involved. There are numerous tools available to fine tune the justice of the application of criminal law beyond just the scope of its prohibitions, and trying to foresee all the low-probability future possibilities in crafting the statutory prohibitions gets you into nasty trap; you've got to find a balance. And, most importantly, not view criminal law (or any law) as a machine that produces justice automatically without considering the people involved in its application.
punishment seems to fit the crime in this case. you knew the rules, you swore to follow the rules under oath as a professional duty, and yet you broke the rules. people go to jail for a lot less. for instance not even knowing the rules.
> Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob? A lot of reasonable people think the answer to that is "yes";
No, those people are absolutely not reasonable! Those people want a magic world where we have crystal balls that tell us exactly who's innocent and guilty. That would certainly be nice, but that's not the world we live in.
It's frustrating when the guilty go free because of the rules we have in place to protect the innocent; but those rules didn't come out of nowhere. They are the result of the hard-won experience of thousands of innocent people being punished. If you remove them then innocent people will be punished again.
Correct, but you shouldn't go to jail for immoral behaviour.
> It's perfectly reasonable to see all the facts, many of which aren't permitted to be considered by a jury, and then say, "wow,these laws are messed up, they let the powerful people get away with crimes. We should change that and hold them accountable."
The IRS does this, and it's horrible, but the accountability comes in the form of an increased tax obligation and not jail time.
Going to jail for doing something that was legal, but has become illegal after the fact, isn't something that benefits anyone but the ruling class, and isn't something that I would advocate for.
> Sentencing has always had unprovable stuff considered. Your friends and family will come in to tell what a wonderful person you are, none of it verifiable and often entirely bullshit.
True, but I see a bigger problem with sentencing being based on conduct that the defendant was acquitted of. The concept is supposed to be that if you were acquitted, you didn't commit the crime.
Who said he shouldn't be punished? I simply stated that since he made restitution prior to charges being brought, perhaps that should factor into sentencing. I don't know who you're arguing against, or what you're really arguing, but it doesn't seem to have anything to do with what I've been talking about.
> Socially its way better than evading any consequences or getting a bogus sentence like case dismissal because some formality mistake.
But he is getting away without any (real) consequences. Being sentenced guilty without much punishment does exactly nothing to deter a politician from committing crimes, nor does it stop citizens from losing trust in their institutions.
> Are there any good indicators for laymen what likely punishments he would have been facing if he would have continued to trial and lost?
For federal crimes, sentencing is generally governed by the federal sentencing guidelines. [1] The application is conceptually simple -- there are guidelines for determining the offense level for each base crime, guidelines for grouping offenses (some of which just keep the most serious, some of which start with the most serious and increase based on other offenses), and guidelines for adjustments to the offense level for various factors such as actual harms inflicted, the defendants criminal history, the defendants acceptance of responsibility, and so forth, and finally guidelines to translate offense level into sentence. But the details are quite involved.
Perhaps the most important thing to note, in the federal guidelines, is that in most cases, where multiple convictions are handed down for offenses involve the same victim and the same act or transaction, or different acts or transaction as part of the same plan or scheme, the offense level is set by the single most serious count alone -- charging multiple counts of the same charge basically just increase the chance of getting a conviction.
For state offenses, sentencing is handled by state-specific rules.
>> That is a systemic problem, one which we don't have a good solution for.
There is a pretty straightforward solution. I'll leave to the reader whether or not it is a good one.
Redefine the crimes so they are easier to prove. In many cases that is going to involve moving from a mens rea (guilty mental state) of intentionally to recklessly, negligently or even eliminating mens rea altogether and just requiring an actus reus (guilty act). In some cases that might mean criminalizing more acts of omission instead of requiring proof of an overt bad act.
I want to be clear that this wouldn't be costless. It goes against much our existing framework for what makes people criminals. It would increase the chance that someone who made honest mistakes would be criminally punished. But remember Blackstone said that it is better for ten guilty men to go free than one man suffer, not one hundred, not one thousand and certainly not all the guilty men. And he was writing in an era when all felonies were capital crimes.
A small percentage of murderers getting off on technicalities is something a society can live with, even be proud of in a strange way, but when the exception swallows the rule that society is playing with fire.
> so much for the popular belief that America is soft on white collar crime.
If you are correct about the punishment, how does a single trial outcome support your claim? What about the endless fraud on Wall Street, for example? Around 2008, for example?
> Equally frustrating -- to see the guilty just walk off and laugh as it is to see the redeemed struggle having conceded their mistakes.
That of course depends on your value system. There are many that consider sending an innocent person to jail far worse than letting a guilty person walk free, and I’m sure you can apply a similar worldview here as well.
> How do we know that it's not just because he thought he was most likely to be convicted and didn't want to roll the dice?
It doesn't really matter. We want to incentivise guilty people pleading guilty mainly to lighten the load on the justice system. Being lenient to sincerely repenting people is a desirable side effect that nevertheless should not be pursued too hard.
It isn't incidental that the penalty for being accused of willfully screwing it up is quite high: having to defend oneself against a 20 million dollar judgement.
The consequences for being found guilty of a crime are more nuanced than this suggests, although not so much in the US which is very focused on vengeance.
Let's take an example a sentencing example I sat in on:
The man had forged paperwork purportedly showing he'd paid a bunch of money for supplies, because he had already written a fraudulent claim for a large tax refund for his business, and the tax office wrote back asking for evidence of this expenditure. That was his last chance to say "Oops, that was er... a mistake" and maybe get a fine, once he decided "I'll just forge the paperwork" he was doomed to go to prison.
Item 1 on the court's agenda was to tell Companies House that the guilty man must not direct any companies. Never (unless a successful application is made to reverse this, which is unlikely) can this man serve as director or secretary of any type of company again. In his family business this means a son will now run the company - why? Because the freedom to direct a company is not essential and we evidently can't trust this guy to do so because he purposefully lied to the tax authorities. He doesn't need to "earn" that back, let somebody trustworthy do it instead.
The guy also got some months of prison time, after the court had reassured itself that this would not leave any dependants destitute -- no point sending one guy to prison only to have his kids turn to crime to get food right? But the fervent hope of the court is that this results in him being _reformed_ and no longer breaking the law.
We can also disqualify people who commit electoral fraud from participating in elections. Oh two government employees conspired to stuff a ballot for a $500 pay off? They're not just going to prison for a little while, they will also have a lifetime ban on standing as candidate in any election and from participating in any way, including as an ordinary voter. No more democracy for you motherfucker.
As to "eternal" punishment, in countries that don't have the Death Penalty (all of Europe for example) what else should we do with unrepentant murderers? Anders Breivik for example still expresses the belief that murdering a bunch of young volunteers was the right thing to do. We obviously can't be like "OK Anders, you've served your time, don't kill anybody else" because that's exactly what he'll do. So he will most likely spend the rest of his life in a cell - periodically psychologists will assess him, say nope he's still dangerous, and he'll stay behind bars.
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