"In the history of Western culture no legal system has ever made a more valiant effort to perfect its safeguards and thereby to exclude completely the possibility of mistaken conviction"
Reminds me of a law that was repealed recently in Germany.
They wanted to "reopen" cases where people were already found not guilty, when new technology would find new evidence.
In one case, a murderer was found not guilty, and later they had DNA analysis that would have proven his guilt. The new law would have put him behind bars.
However, the federal constitutional court repealed the law, as the constitution forbids to convict someone two times for the same crime. They said legal certainty was more important than finding the truth.
That is called "double jeopardy". It is explicitly prohibited in most legal systems. Even where it isn't explicitly prohibited, it's generally assumed as a basic principle (like innocent until proven guilty).
It's basic: if someone can be retried because of new evidence, the prosecution will introduce a little bit more evidence (probably evidence they intentionally held back!) after each acquittal, and try them again.
The Americans in particular take it much further than some do; here in Canada the prosecution can appeal from an acquittal due to legal error in the decision; the prohibition on double jeopardy only applies to the entire process as a whole, after a final verdict including appeals. In the USA, a verdict issued by a jury, even at the first trial, is generally final and cannot be appealed even for reasons of legal error, while a guilty verdict can be appealed. American pluricentric power does create an odd circumstance where you can be tried twice in practice, though. If the federal government prosecutes someone for a crime, and fails to convict, if it was illegal under state law, the state government can try again under state law, or vice versa.
The USA still has a form of double jeopardy. Under our dual sovereignty system, federal and state authorities can both prosecute a defendant for the same underlying crime.
There is that "factual innocence is not a reason to let the convict goes, because somehow magically knowing an innocent person is in prison makes justice system more trustworthy" supreme court gem.
There should be obvious difference between "minor new development" and "major new finding". Likewise, there should be obvious difference between "potentially innocent person is in prison" and "prosecutor wants new attempt situations.
> There is that "factual innocence is not a reason to let the convict goes, because somehow magically knowing an innocent person is in prison makes justice system more trustworthy" supreme court gem.
Is that for real? It sounds positively Cardassian.
Dukat: "On Cardassia, the verdict is always known before the trial begins. And it's always the same."
Sisko: "In that case, why bother with a trial at all?"
Dukat: "Because the people demand it. They enjoy watching justice triumph over evil every time. They find it comforting."
I'm not sure precisely what supreme court gem you're referring to, but just to be clear, double jeopardy only applies when a jury finds a person innocent. People who are found guilty can potentially have a new trial if new evidence comes to light.
In 2020 or January 2021 the federal Supreme Court affirmed the execution of a convict when it was demonstrated that their court appointed attorney had ignored exculpatory evidence that the accused had been elsewhere at the time of the crime. The process was considered more important than the result.
There was a lot in the headlines at the time and though this made the news other things quickly drove it “off the front page” (don’t know what metaphor we should use for that expression these days).
The case you're referring to is Herrera v. Collins, 506 U.S. 390 (1993). The relevant excerpt is in Justice Antonin Scalia's concurrence [1]:
> There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.
...
> With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon.
Note: In the excerpt above from source [1], Snopes removed a page break and inserted a comma (mistake?). Keep that in mind when using ctrl-F in source [2].
The Supreme Court's ruling (6-3) was that someone who was already convicted for a crime but later makes a claim of new evidence of innocence is not entitled for a new judicial trial [2]. In simple terms, there's no guarantee to a new trial after the fact, and the burden on the courts would be too much anyway. Scalia's concurrence went further and asserted that executing someone who was convicted in a procedurally proper trial but was actually innocent is not "cruel and unusual punishment" (by the standards of the past 200+ years of US history, which supposedly involved plenty of executions of innocent people convicted in proper trials) and is not a violation of due process.
The majority (including Scalia) weren't in favor of executing an innocent person, they were just arguing that the convict making the new claim of innocence can't count on the judicial system. The majority, including Scalia, points to the only option being seeking executive clemency/pardon, i.e. request the governor/president to evaluate the new evidence of supposed innocence and hope that the governor/president agrees - or at least reduces the sentence [2]. A request for clemency is outside of the scope of due process.
> Herrera is not left without a forum to raise his actual innocence claim. He may file a request for clemency under Texas law, which contains specific guidelines for pardons on the ground of innocence. History shows that executive clemency is the traditional "fail safe" remedy
[page break]
> for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion.
From the convict's perspective, "no new trial, but you can ask for a pardon" is cold comfort, but not necessarily a dead end.
> Four months after the Court's ruling, Herrera was executed. His last words were: "I am innocent, innocent, innocent. . . . I am an innocent man, and something very wrong is taking place tonight."
People who become agents of the correctional system are not selected for their independence of thought, or openness to deviating from protocol.
Those are, in fact, actually qualities that are grounds for dismissal in selection processes for law enforcement; the on ramp of the corrections pipeline.
Any philosopher finding themselves in the System's custody may as well, despair. Before the Law, not even God's mercy will stay the wheels of Justice as she's wrought.
It's hard not to read SCOTUS's argument as selfish. The zeroeth amendment of every legal system is "the people shall not waste the judge's time", and apparently it comes even before "we let 10 guilty men go free to save 1 innocent man".
Clemency is a wonderful tradition, but I get the impression that those who hold that power tend to view it as purely prerogative with no moral obligation. Which is too bad, because it certainly is meant to be justice’s last resort.
The Swedish Supreme Court can reopen cases when there are new evidence, through there are some restrictions. The new evidence/circumstances need to be significant enough that if it was already known during the first trial, then the outcome would most likely been different. There also need to be a good and valid reason why the new evidence was not presented during the first trial.
New DNA technology has been the cause for such trials. Last year a person was found guilty of murder after 26 years, after being acquitted from a lack of evidence.
Although my first reaction is to support the idea of being able to retry cases when new evidence emerges, I can see the pitfalls if this were applied in a real-world justice system. There would have to be some pretty big barriers to overcome to prevent abuse (on the usual suspects, the poor and/or people the police/politicians just don't like) and then more rules to make sure those barriers themselves aren't used as loopholes by the truly guilty. I think it could be done, but its just as likely they do it in such a way to maximize state power without checks or balances.
Isn't it common to be able to re-open court cases? That (technically, legally) sidesteps ne bis in idem (aka double jeopardy), but it requires that substantial new evidence is brought. So basically it adds that barrier, and the barrier becomes higher for every new attempt.
No, it's not common to reopen court cases if the jury finds a person innocent. You can certainly reopen court cases where someone was found guilty, but that's not double jeopardy.
Innocent = "We, the jury, are certain the defendant didn't do it."
Not guilty = "The prosecution did not convince us, the jury, that the defendant did it."
And because our criminal justice system is not set up to establish innocence, only to check if there's enough evidence to prove guilt, we don't use the term "innocent" for decisions.
Even that article refers to the fact that the same principle applies in Italy too, though it's interpreted differently.
In the US (to take a reference) only convictions can be appealed, in Italy the prosecution can also appeal if the accused has been acquitted. Once the appeals have been exhausted however the principle applies
It's a weaker guarantee but it's incorrect to say that it's missing entirely
> the constitution forbids to convict someone two times for the same crime
He wasn't convicted, which means the reason he isn't convicted for the first time now is because he is not allowed to be convicted twice. That doesn't make sense to me.
>> That raises an obvious question: If they saw the problem with torture, why did they continue to employ it?
I was part of a lecture covering a case where US police had tortured out a false confession. The prof asked a Canadian student if such a thing would happen in Canada. "No. The RCMP wouldn't bother. If they need a confession they would just forge one. Forgery is much easier than torturing someone."
>In 1215 the fourth Lateran council rejected the religious legitimacy of judicial ordeals and banned priests from participating in them. Over the next few decades most European countries abandoned their use.
I'm not sure if this is true. There was definitely trial by ordeal in the 16th and 17th century.
Wikipedia suggests that although they still sometime occurred, they had become quite rare in Europe, which seems consistent with the blog post. The fact that they were forbidden by the Catholic church certainly supports this.
> Priestly cooperation in trials by fire and water was forbidden by Pope Innocent III at the Fourth Lateran Council of 1215 and replaced by compurgation. Trials by ordeal became rarer over the Late Middle Ages, but the practice was not discontinued until the 16th century. Certain trials by ordeal would continue to be used into the 17th century in witch-hunts.
He didn’t mention that the plea deal doesn’t care if you are innocent and even if you are innocence and are found innocent you might do 3 years in jail awaiting trial (bail is for wealthy people)
t was held that the law of preventive detention is not unconstitutional since it has no objective criterion for ordering preventive detention, and instead relies on the executive’s subjective judgment. This viewpoint is based on the fact that preventive detention is not punitive, but rather preventative, and is used to prevent a person from engaging in actions that are seen to be harmful to specific goals that the law of preventive detention aims to regulate. As a result, preventive detention is based on suspicion or expectation rather than proof.
For American commentators, this is a Commonwealth holdover from British Colonial jurisprudence (Australia, NZ, India, Pakistan, Bangladesh, Malaysia, Singapore, South Africa).
Should be done away with, but it most likely won't be as long as Indian Law and Order concentrates more on "Order" and less on "Law".
Also the chronic lack of Judges in India is a major issue impacting bail.
This is clearly the best justice. Believe me. We have triumphed over evil like nobody has seen before. I believe it’s a rough situation over there. There’s no question about it. The past does not have to define the future. It’s idealistic, it’s wonderful, it’s a beautiful thing.
Need to amend the amendment about a speedy trial to be about how fast you get the trial, not about whether the government intended to make it slow or not. If they can't do it quick, you get RoR.
This is somewhat true but it’s a reminder of how far out it was: the Bush administration had to invent a new theory of executive privilege to authorize it, did it outside of the country because they knew it wouldn’t be accept by a real court, and then they still felt the need to “accidentally” delete the tapes.
Yes. What nonsense the whole of the legal system is. And people think it is about justice. If justice occurs on account of the legal system, its a happy accident, not by design!
This attitude prevents real progress, and results in additional injustice. The legal system is imperfect, and very flawed in some respects. The way forward is to understand the mechanism, and improve it, relentlessly. In the end it's a human institution and will be flawed, but that's all we have - humans all the way down.
The people on the sideline saying it's all pointless are not only obstructing those doing actual work, they benefit from the legal system - the work of all these people and generations working toward justice - without contributing their share.
You say its pointless standing on the sideline obstructing, whereas I think trying to save a system that cannot deliver justice by design is a waste of effort.
Let me know when your relentless effort yields improvement.
It does, unquestionably, and it has, for generations. That's where all the justice you have now comes from, and every day I see improvements. Just as an example, most cities have stopped prosecuting marijuana possession offenses.
Not enough, not quickly enough, but that's because you're not helping.
At this point, I think it has less to do with a belief in a complete gun ban, which seems an absurd thing to even contemplate.
It's more that absolutely nothing is done at all. Not even Sandy Hook produced any change whatsoever. A prominent argument was that the entire thing was a fake for the purpose of banning guns, tacitly admitting that reality did merit some kind of change.
So at this point it's more of an indicator that politics has utterly broken down. We can't meaningfully discuss a limit case such as you bring up, because the answer is predetermined. Between a Supreme Court composed two-thirds of candidates vetted to allow no gun restrictions of any kind ever, and a set of checks and balances in the Congress that requires a super majority for any legislation, the argument is permanently decided in favor of "doing nothing". Not just on this issue but on every issue.
Compared to that worrying about Zombie George III reimposing the Stamp Acts doesn't seem much like worrying about.
How do I relate this, from your prespective they do nothing to fix an obvious issue. From their prespective it has nothong to do with guns and are so absolved from responsibility, they are only acting in reaction to a threat to their lawful rights.
Its unfortunate that you are left with only reactionaries to offer alternatives, because by nature they are predisposed to telling you to pound sand. We could have a more healthy relationship with guns, I think it starts with acknowledging the role pharmaceutical drugs and investigating their effects more publically. I would also support any kind of community work in teaching responsible firearm operation, and more generally promoting high ethical standards of conduct in everyday life.
That said, the safest place I inhabit is work, with its fences, badge readers, and security guards. The second safest place is at home, with cameras, alarms and locks. Paying administrators over security guards is a gross mismanagement of government money.
The supreme court, stacked or not, has no bearing over gun ownership, nor does congress. "Congress shall make no law […] the right to bear arms shall not be infringed." supercedes both of them.
This isn't true under current US jurisprudence: if a law that infringes on a fundamental constitutional right can be shown to be narrowly tailored to, and the least restrictive means of achieving, a compelling state interest, then it passes strict scrutiny and is considered constitutional.
Except they have great sway over definitions. They dictate what "arms" actually means. They dictate whether that word includes entire classes of weapons. The court currently protects only guns, but a small reinterpretation of "arms" could easily expand it to include bladed or explosive weapons, both of which are not currently protected. Does the 2nd cover flamethrowers? SCOTUS gets to make that decision.
The current scope of "arms" does include most conventional weapons but intersects with other boring regulatory considerations, especially at the State level. Anyone that can buy a gun can also fill out the paperwork to buy or manufacture much heavier weaponry. Most people don't because exercising the right is a headache. You can't drive a main battle tank on a public street or store a surface-to-air missile system in your backyard for basic infrastructure, zoning, and safety reasons that have nothing to do with the weapons per se. Small arms present much less of a practical safety or nuisance risk regardless of type, the same as any firearm.
The paperwork required is the trivial part. I have friends that, essentially for a laugh, filed for and received every Federal approval required to acquire basically the entire range of conventional weaponry. It had a similar level of scrutiny as applying for Global Entry at the airport. If you exercised this, you still need to comply with all the industrial regulations that apply to non-weapons with similar properties, which is expensive and inconvenient.
>> The current scope of "arms" does include most conventional weapons but intersects with other boring regulatory considerations
If those other conventional weapons were covered as "arms" under the 2nd, then those other boring regulations don't matter. The fact that those regs even exist is because so many weapons are specifically not covered as arms. I can own an AR-15. I cannot own a switchblade. I can own a 9mm semiautomatic, but I cannot own a small pen gun. I can own a short shotgun (coachgun) but I cannot own a crossbow in New York. Walk into a Nevada store with a handgun on your hip or an AR over your shoulder and nobody will bat an eye. But carry a sword and you will be arrested. It was only a couple years ago that laws banning "chain sticks" were struck down. SCOTUS has consistently narrowed the 2nd to only protect guns. Most ever other weapon is open for whatever reg the government wants to enact.
Amusingly the well regulated militia subordinate clause makes it very clear that the 2nd amendment is explicitly intended to protect “weapons of war.”
Sadly, since the Dick act, Congress has defined “well-regulated” as “yeah, whatever.” Nevertheless, since that was Congressional intent it satisfies the well-regulated requirement.
Why did you start with the first phrase of the first amendment, redact the rest of that amendment and the beginning of the second, and then misquote the remainder?
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Grammarians have been puzzling over this text for many years.
Grammarians have been puzzling over this text for many years.
It would help if someone could find another phrase in the Bill of Rights that refers to, or even alludes to, the primacy of the rights of the state (whether "Congress" or a collective state-sanctioned "militia") over those of the citizenry.
There don't seem to be any such phrases, which lends a lot of credence to those who argue that the preface to the Second Amendment is just that -- prefatory, with no functional or prescriptive aspect whatsoever. The Bill of Rights is simply the wrong place to look for rules that grant, rather than restrict, governmental authority.
I have a pet theory which tends to annoy both major sides (not necessarily a sign of quality, but an interesting property) and it rests on three facts:
1. In the beginning everything in the Federal Constitution--and all the amendments--were understood to be only a restriction on the Federal government.
2. Many restrictions on the federal government were created out of states' concerns about it "going bad" and trying to ensure their own autonomy was protected.
3. The Second Amendment was drafted during the Articles of Confederation, at time when every state was required to support their own state-militia with arms/materiel, including guns-on-wheels that could be pulled by a horse, and the legislature had to appoint the upper-ranks.
So in combination, I argue the Second Amendment was wrongly "incorporated", abusing its original legislative intent of preserving a degree of state military autonomy. So on one hand, that means individual states can impose much stronger restrictions if they want, and on the other hand the federal government can't complain if your state lets you tow around a flak-cannon behind your truck.
Perfectly reasonable in my book. Honestly for me its less important the guns themselves, ive never owned a functional firearm in my life, its everything else that gets regulated along with it. I remember doing some surface research on building a drone with an IR camera and basically every solution had low FPS, digging into it, the federal government restricts the sale of IR camera chips capable of producing high resolution/high fps, its a 'weapons technology'. Encryption is considered a weapons technology too, your ability to freely communicate over the internet plays second fiddle to the interests of the national security state. The idea that the government can restrict something on the basis that it could be used to create a weapon is the problem, that is insane.
Why do we pretend that organizationally we exist in the same environment as when they penned the constitution? The people were the militia, and a free state implies the freedom of the people, not the government.
Except for the first two centuries after that was written the Supreme Court didn't interpret that section to mean anything goes. In particular, in 1939 it upheld a federal ban on sawed-off shotguns (United States v. Miller). It was not until 2008 when in District of Columbia v. Heller they said the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia.
> What about gun ownership (oh thats the nerve), its easy to assume things will be better when guns are banned, but what is the actual game theory in the balance of power between a people and their government when the people are stripped of their ability to defend themselves from an oppressive government?
While this has surface appeal, this theory of "gun ownership as bulwark against oppression" falls apart when you examine both how the US still manages to exert power over its populace and how democracies where guns are much harder to get continue to function just fine.
>> the US still manages to exert power over its populace
Self-oppression. For all the fearmongering, the US population is clearly able to install random people into high office and rewrite the rules as they see fit. Both Obama and Trump are clear evidence that you don't need to be from established political families to gain power. Literally any idiot can be elected should the people want them. Many are.
Another indicator is the rate of citizen un prisons. The laws on gun ownership doesn't prevent the US government to have high rate of citizens incarcerated [1]. On the other hand, US is a state of law, and in theory, US incarceration does not come from oppression but from justice and written laws [2]. Now even though gun ownership might be one way to garanty that US remains a state of law, it is not obvious that it is the only way. If US was not a state of law, I would not be comfortable that GAFAM companies gets their own armies, as in the funny dystopian novel Jenifer Government [3].
Obama's father was Kenyan, his mother from Hawaii, his maternal grandfather a US army Sergeant. That's about as far away from American political power as one can get and still be qualified to run for office. It's proof that any plebian from the peripheries of America can rise to be president. Conversely, Trump stands for the fact that anyone with the right combination of anger and money can usurp and then bend the political system to their will. There are many doors to power in the US, which is the whole point. Oppressive countries are not organized that way.
So Obama is "proof of democracy" (and I assume "not angry") and Trump wasn't elected but "usurped" power (from the every-man Neocons who haven't since stopped causing chaos and trying to jail him?) because he was "rich and angry". Tell me if I missed anything in this anti-democratic storybook narrative.
> Dare I say, people should engage that part of their brain with everything (...) What about the monetary system, surely we could all take a step back and anaylze the mechanics of a system that plays a 50% role in all economic transactions
This is a great way for one to learn about Moloch - the by far greatest threat humanity is facing. Moloch is the personified generalization of all multiplayer games, where the payoff matrix looks like this:
| v Reward / Choice > | X | Y |
|------------------------+----------+-----------|
| For myself, short-term | good | bad |
| For all, longer-term | very bad | very good |
Problems for which, invariably, approximately everyone chooses X, often knowing that they too will suffer the very bad consequences with everyone else.
Moloch is the common core of all the big problems humanity is facing, problems we seem unable to solve - surveillance economy, inequality, climate change, you name it.
Unfortunately, recognizing the presence of the ancient demon's namesake, and realizing the gravity of the situation, kind of kills the mood - which is why most discourse on those topics is rather unsophisticated and dominated by those who don't, as you put it, "engage this part of their brain", whether because they don't know how to use it, or because it's more fun/profitable to not do it.
The biggest problem is people saying this, that we're unable to succeed. They are serving our enemies - spreading despair is so obviously a bad idea that it's a fundamental of psyops (not that the parent is doing psyops; my point is that it's what an enemy would do).
And it's false; it's transparently false if we examine the evidence for a moment. History is filled with people sacrificing themselves, widely, for the greater good. The simple example is warfare, but lots of people have low-paying or lower-paying jobs because they want to do good, contribute to the world.
It's good news - the news is actually good (I know that totally violates social norms to say!): The good people far outnumber the bad, they have the power, the ability; human nature is on their side; they just need to wake up and get going - stop sitting around pop-theorizing about despair - and many of the worst problems will be solved.
> What about gun ownership (oh thats the nerve), its easy to assume things will be better when guns are banned, but what is the actual game theory in the balance of power between a people and their government when the people are stripped of their ability to defend themselves from an oppressive government?
Funny, the French seem to have no trouble standing up against their government while the armed US nuts seem ever so compliant. Maybe it isn’t the guns.
Everything in france is going according to plan, having people rioting on the streets isnt necessarily something the government is trying to prevent, it gives them the political cover to enact totalitarian laws...which is precisely whats happened there.
I like and appreciate your viewpoint. I push back on your stance on gun ownership. How does your view change when governments control weapons as powerful as nuclear weapons? How does this tilt the balance of power when ordinary citizens only have guns? Does this require a rethink?
I consider “but ordinance” a red herring. One need only observe the recent history of US military adventurism to show that a sufficiently determined insurgency with light arms and minimal training can take literally decades to surpress even with probably numerical superiority.
The US government is unlikely to carpet bomb its own territory even after hypothetically sliding into tyranny because it would presumably want territory to rule afterwards. What is left is intense urban fighting which we’ve seen in Iraq or wilderness fighting in poor terrain like Afghanistan. It doesn’t end quickly so the cost is a deterrent.
As ive said in other comments, I think the their power is foundationally based on propaganda. I think censorship resistant methods of communication and other cypherpunk tools are probably more relevant in the day to day of fighting government overreach; I just think guns are something of a prerequisite for that process to work. Yes, there is always the possibility that the government starts nuking citizens for challenging their power, which is why it is important that any revolution takes place peacefully.
I wouldnt suggest anyone willingly enter an armed conflict with the government for a variety of reasons. For example, you are likely being played, after Maos revolution all the revolutionaries got sent to the hills to be worked to death. Another one would be your own information horizon being manipulated, youve just walked into Gretchen whitmers office thinking there is a huge militia ready to follow in your footsteps, you only need to light the match! Violence sucks, blood calls for more blood and errodes the social fabric; there are USSR officials still collecting pensions in exchange for getting out of the way. Or we could get nuked.
So yes, it does require some more forethought than "weve got guns so we are just going to fight the government", however there already exists an understanding of this, evidenced by the fact that they are only catching the mentally stunted in entrapment schemes.
Guns are not an assurance that you can kill more people than someone with bombs to win a slice of land, conceptually. Any number groups have an interest in a stable economy and a cooperating population. Bombs dont build or maintain infrastructure (eg farming). Guns ensure a population can manage to disrupt individual police actions. This modern guerilla gunplay has never had to become more sophisticated because of the efficacy in resisting day to day oppression (depending on your definition). The US in Vietnam, everyone in Afghanistan, Israel with Palestine. Bullets are dangerous enough to influence history, as with nuclear weapons. Same but different.
As if governments want to bomb the source of their power: taxpayers, and their seizeable assets.
They will do so in war as denying it to their enemy, but not with M.A.D. So ordinary people having guns has nothing to do with war, except as a deterrent.
Also, what is the game theory when an armed faction of the people gain the ability to overthrow a democracy and install a king, or at least, can credibly threaten to do so?
Generally speaking armed revolution ends with the revolutionaries getting the short end of the stick, they were the keys to aquiring some measure of power, but are no longer useful for a régime focused on controlling its new territory. Following that a constitution and new edicts arise that cement state power while providing a thin vernier of legitimacy.
As far as an armed group in the united states doing that, I think we are a long way off from that. Although I would say democracy is structurally flawed, so long as the american public believes the foundation myth of their representation holds, no such thing is possible. The easiest way then to prevent an armed revolution, is to provide better transparency to elections. You dont even really need to make the elections fair; for instance im pretty sure republican voters will go on accepting that their civil and economic rights are trampled on; Democratic voters will go on accepting disfunctional criminal justice, healthcare, and education systems; so long as we arent playing games with who and how votes are tallied and what level of transparency we have over that process. Breaking that cycle, where the vast majority would really rather unwittingly vote away prosperity, requires a different type of revolution.
Or how about overthrow a King and install a democracy?
The game theory is that it is likely that most of the time successful Revolutions are backed by powerful opposing States or quasi-States. Any others get squashed, but likely most often don't get off of the ground to begin with.
Perhaps a more interesting study is just to look at things more incrementally. For instance is a slightly more heavily armed population likely to enjoy slightly more rights, or fewer? Should I be optimistic about my rights if I move to a more heavily armed state or region?
That would be interesting. I think you'd have trouble finding enough incrementalism to provide meaningful data. But a place to start might be in European nations that only allow hunting guns.
>what is the actual game theory in the balance of power between a people and their government when the people are stripped of their ability to defend themselves from an oppressive government?
What is the actual reality that says now there's a "balance of power" between the people and their government in the US?
How did people or groups challenging it with their guns (or even peacefully) because they thought of it as an "oppressive government" fared?
Reasonably well, all things considered. There are something like 20+ million ar-15s in america, were american gun owners considered an army it would be the largest ever conceived of with no close second; perhaps here you will find the reason you enjoy more liberties than someone living in china or north korea.
And I never said it was fair, I said it was a balance; the balance is very clearly biased towards the government, but they do not enjoy such power for complete and violent subjugation. They rely instead on propaganda, I would argue that is the foundation of their power in fact; the creation myth of our government, that the public interest is represented, keep a critical mass unwittingly subsurvient.
Guns do not make an army. Should 20 million AR-carrying Americans rise up, the "government" would be the least scared. The day after they stormed all the state houses, they would fractionize and turn against one another.
>Reasonably well, all things considered. There are something like 20+ million ar-15s in america, were american gun owners considered an army it would be the largest ever conceived of with no close second;
And how would those ar-15 bros would fare against an organized, professional army, with training, logistics, and coordination, not to mention air support, tanks, and the state on its side?
Not to mention most of those millions of gun owners would need to be on the same side to begin with, to count together.
>perhaps here you will find the reason you enjoy more liberties than someone living in china or north korea
I doubt it, First Amendment aside, European countries are freer than the US in more substantial ways (for starters, they don't have the kind of kafka-esque over extention of the law in the US, or the biggest ratio of prison vs general population, SWAT-ized trigger-happy police, and so on), and they don't have guns at home, except the ocassional shooting rifle.
> And how would those ar-15 bros would fare against an organized, professional army, with training, logistics, and coordination, not to mention air support, tanks, and the state on its side?
Depends on the terms of engagement and the makeup of the professional army.
Are ar-15 bros going to effectively take and hold territory? Maybe on a temporary basis, there's a lot of potential objectives that are regularly barely defended. But it's pretty easy to roll out the national guard or whoever to flush people out if desired.
Can ar-15 bros be a significant problem for occupying forces? Almost certainly yes.
If you wanted or needed to remove this group or their weapons from a territory, it's going to be a major challenge, and highly disruptive to the other occupants, and that's going to inspire more people to take up arms. This is insurgency 101.
FWIW, there are tens of millions of former US military in the civilian population. Once you've been trained you don't really lose it, you just become rusty. In this scenario the AR-15 bros would have a logistics advantage because they start from a state of decentralized resources, whereas the military does not. The US government does not have remotely enough military equipment to control the geographic size and distribution of the US. In a large-scale domestic conflict, the ability to produce more equipment also comes under great risk.
The government doesn't have a safe harbor they can operate from in a civil war, particularly one that has no clear geographic split. This severely curtails the use of heavy ordnance due to the importance of not killing the uninvolved populace, since that would only encourage them to also question the legitimacy of the government.
As a practical matter, it is not possible to control the US via military force short of indiscriminately murdering most of the population, and a domestic military force doesn't even have that as a realistic option. Everyone knows this, so this is a deeply unserious scenario and the government would avoid precipitating it at all costs.
You are so secretly obsessed with the thought of a civil war you have taken to projecting your views on others. I never said american gun owners were an army, nor did I suggest an armed insurrection. It is merely a bulwark against the most extreme forms of government oppression. The cost of a more overt version of oppression of the american public is too high for the government to entertain. Regarding anything the government does, if they cant do so quietly, then they must do so through propaganda, and if they cant garner enough public support then they back off.
The american public has no guns, only the occasional shooting rifle. Did I do it right? You do not distinguish between freedom and liberty, those liberties are at times suspended. Things are definitely not ok in the united states, but thats not what guns are there to stop at this stage of our political system. The most valuable tools in the day to day are encryption and censorship resistant systems.
You mean like the US did Native Americans in early 20th century, or the Japanese-Americans in WWII? Or seggregation between blacks and whites?
Or like the fact that the US has the largest prison population (percentage wise) than any western country, by a huge factor? And where over a million people are convicted of felony per year?
There is nothing logically inconsistent with saying disarming the native population was a tactic used to further subjugate them, as an example. Racially motivated violence has almost unilaterally been the causal result of insufficiently armed minorities. Im all for letting non violent offenders out of prison.
US history is full of the government oppressing and murdering citizens. And yes, there's also many armed rebellions. Precisely zero of them have overthrown the US government.
You have successfully identified the growing and confusing discomfort I have had with HN, without knowing myself its basis.
I hope we can evolve into a community that is consistently curious and thoughtful about consequences of policy decisions in various game-theoretical concepts as you describe.
Have you ever faced custody and pre-trial detention? It's hard to imagine until you've gone through this. But yes, offering a definitely innocent person that was abused by the System the choice between two forms of punishment is some form of "torture".
Being manipulated by the cops into a fake testimony is torture. Having the cops fake evidence and their testimonies to harass you is torture. Remaining days in a room with lights on all day, shit all over the walls in a freezing cold or hammering hot, without access to a shower or better clothes, that's torture.
And that's when you're lucky. The less lucky ones have months or years of pre-trial detention, sometimes in isolation (which is a well-studied form of torture) before they can even defend themselves.
Pre-trail detention isn't torture. If it were, it would be forbidden in many jurisdictions. Hard isolation is different; at the very least, it is a step in the direction of torture.
>But we don't do that. We don't know for sure that someone is innocent.
A basic principle of any civilised society is "innocent until proven guilty beyond reasonable doubt". I will not waste time explaining why this is important.
I am not presupposing guilt, I am seriously wondering how you would have a working justice system that never arrests suspects.
Complaining that all elements of a justice system is a form of torture is like unironically using the term "stare rape": you're trivialising the real term in pursuit of winning points in an argument.
Define torture if you are so inclined. Regardless, the plea bargain system has been repeatedly abused to compel false testimoney from people otherwise helpless to defend themselves from a lengthy and costly legal proceeding that will leave them ruined. Its a violation of their human rights, its prohibited by the constitution, and empirically has ruined millions of people. Crimes that do not involve violence against another person or person or their property (which are logically synonymous) should not be crimes, that would lower the judicial load.
I agree with everything you said, and still disagree that Golding suspects until an appearance in court is the same as waterboarding them or pulling their fingernails.
Just because I pointed out that such a practice is not, in fact, any form of torture does not mean that the practice is not unduly burdensome and unfair.
I appreciate that view, but thats not a qualitative analysis of torture. Im not sure that it could be appropriately defined in a way that distinguishes torture from other types of violence, so maybe the word is really only useful in creating an emotional effect.
> The American legal system found a less expensive alternative. Like its medieval predecessor, it substituted confession for trial. The medieval confession was motivated by the threat of torture. The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted.
The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted.
This is looking at it backwards. It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence.
That distinction makes a difference.
The way the author looks at it is like how the government look at spending cuts. "Last year my budget went up 20% and this year it's only 10%, so you're cutting my spending by 10% next year??".
I feel like you are looking at it backwards. When the prosecutor proposes a plea bargain, it's usually because they don't have enough proof to get a proper conviction through a juge/jury, or at least it is so here in France.
A plea bargain is used to convict innocent people, by giving them a choice between a plea punishment, and the punishment of having to go through pre-trial detention and various forms of abuses before being able to prove their innocence. That the entire police-justice system works by treating you as guilty until proven innocent is crazy and is in itself a very strong sentence. That is, unless you are rich of course in which case pre-trial detention is likely non-existent and you can commit most crimes and get away with it.
Given that 97% of convictions are based on plea bargains, why would you imagine that sentencing is calibrated based on the 3% jury trials? There are obvious political incentives for this not to be the case, given how much voters are annoyed by convicts getting off lightly.
Also, the main point is that confessions based on threats are much poorer evidence of guilt than a proper trial.
> Given that 97% of convictions are based on plea bargains, why would you imagine that sentencing is calibrated based on the 3% jury trials?
Because that's not how you measure options.
If I'm collecting a debt of $1,000 from you, and I come to you and say "hey, if you pay it this week, I'll settle for only $700", would you say "This person is stealing $300 from me!"?
Of course not. You always owed $1,000. This is an offer to pay less.
Just like those charged with a crime always faced a specific punishment. If you offer a lesser punishment, it's not a threat of a harsher punishment because you always faced it, even if plea bargains never existed.
> It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence.
The plea bargain is an offer of a "lesser" sentence, where "lesser" refers to a comparison to the trial sentence.
It is not a comparison to the trial sentence from a counterfactual world in which plea bargains don't exist.
As ajb points out, given that all US sentences derive from plea bargains, the sentence associated with a plea bargain already is the sentence that is felt to be appropriate for the crime. In the counterfactual word, you'd expect the counterfactual trial sentence to be about equal to the real-world plea bargain sentence.
> the sentence associated with a plea bargain already is the sentence that is felt to be appropriate for the crime
That's not true. Plea bargains can be incredibly minor punishments versus the crime. Plea bargains are the flip side of the prosecutions options. If the prosecutor thinks it's a slam dunk, they have little incentive to offer a plea bargain at all - if they do, it may be a very severe sentence. If the prosecution thinks their odds of a win are low, they may offer a very lenient sentence, even for very serious crimes.
But who goes to trial comparing their outcome to other trials? A individual is looking at a specific situation - their own trial. They have no idea about the circumstances of other trials - whether defendants were truly innocent, or how much evidence the prosecution had. You may be charged with murder, and another defendant got a plea bargain of only 1 year in prison for manslaughter. But the prosecution has a rock solid case so your plea bargain is life in prison.
It's a singular decision of the defendant, usually with input from their lawyer. They'll need to determine their own likelihood of being found "not guilty" and decide if the risk is worth it versus the reduced sentence being offered.
> If the prosecutor thinks it's a slam dunk, they have little incentive to offer a plea bargain at all
> 97% of convictions are based on plea bargains
Taken together, these mean prosecutors generally don't have good enough evidence to put people away, which is the thrust of the article: it's easier to threaten someone into a confession than to have a proper trial.
> Taken together, these mean prosecutors generally don't have good enough evidence to put people away
Note that while you're correct about what those statements would mean in combination, refurb's statement is false. There is very little point in examining what would follow from the invented claims of someone with no idea what he's talking about.
> Taken together, these mean prosecutors generally don't have good enough evidence to put people away, which is the thrust of the article: it's easier to threaten someone into a confession than to have a proper trial.
Generally? No. Sometimes? Sure.
And yes, you could view it as a threat. That's the nature of a adversarial justic system. The same way that police will tell you they'll arrest you for standing on a sidewalk. It's often an empty threat.
It's why we provide legal services to defendants. So you can have a trained lawyer look at the evidence and tell you what you chances are of a not guilty verdict. Then the defendant can decide if a chance at not guilty is worth turning down a plea bargain.
> The same way that police will tell you they'll arrest you for standing on a sidewalk.
That is police abuse tho. In a sane controlled police system, no they can not threaten you with arrest for standing on a sidewalk.
> It's why we provide legal services to defendants
Public defenders are notoriously overburdened and have massively limited resources. They are less likely to get you bail and you are much easier to be coerced when you wait in jail for months.
Or it means they don’t have enough resources to run a trial for every case they believe they will win.
, and so give out plea bargins to reduce the number of trials
> If the prosecutor thinks it's a slam dunk, they have little incentive to offer a plea bargain at all - if they do, it may be a very severe sentence.
You have no idea how prosecutors act. Slam dunk cases are pled. Most cases are slam dunks.
With plea bargains determining the sentence in 97% of cases, it isn't possible for those sentences to be felt to be lighter than appropriate. That would cause a political crisis.
> It's not a threat of a "more severe sentence", it's a threat of a default sentence
The "default" is updated when you learn about plea bargain... You are now comparing options relative to plea sentence. If the best option "walk free" is uncertain even if you're not guilty (what if the other guy has a better lawyer or something) then plea sentence is the best certain option.
The default sentence depends on the charges, charges depend on the persecutor, which are motivated to increase those to get the easier deal of a plea bargain, so it is exactly the much higher cost of a trial and a higher risk of a more severe sentence that is the selling point for the accused if you don't look at it backwards
But the prosecutor doesn't decide the sentence. The judge or jury do.
And prosecutors need to be careful. If they go for a more serious charge, but can't prove it, the defendant may be found not guilty when they would have been found guilty of a lesser charge (this happened to me on a jury - we found them not guilty of 1st degree murder, but likely would have found them guilty of manslaughter, but that wasn't an option).
Not really, there are mandatory minimums and various sentencing guidelines, so the judge is not doing completely random stuff independent of the charges the prosecutor brings.
And you example is a bit backwards: the trial happened after the plea bargain failed, so this has little effect on the threat to bring more (or more serious) charges, but even if it does: the "careful" sub-range is still measured in multiples/years, so a huge risk
Yes, if your made up numbers are 1 year apart, you won't see much difference
The "careful sub-range" is what affects the likely 5 number ("careful" in that it doesn't allow the lawyer to call bs on the charge and say that the likely sentence is now lower since there is a higher likelihood of not being convicted), not the not very relevant maximum of 10
It's not just "can i beat this case"? It's also, "how much will it cost me?" and "how long will i stay imprisoned for before i'm found not guilty?".
Of course, there's the chance you're found guilty although noone would dare say you committed the crime (Leonard Peltier), or the chance that you'll submit to much harsher punishment than what was decided by the judge (Georges Ibrahim Abdallah). But even when you're white and you're not facing a political repression case, there's a good chance pleading guilty for a fine and a suspended sentence looks better than spending a whole year in jail awaiting the trial that will exonerate you.
There's plenty of research in that area, feel free to look it up.
> How is offering a lesser punishment "manipulation"?
It's part of a larger manipulative pattern.
Since you can increase the penalties for jury convictions to absurd levels, like the USA has done, even a "lesser" plea bargain punishment can still be more punitive than most nations' jury conviction punishments.
Plus, as the length of a jury conviction punishment increases, the threshold at which one's willing to risk a jury trial has to go up, thus pressuring people into taking plea bargains they might not under another country's judicial system.
Juries do not decide punishments. They are often times NOT allowed to even know what punishments are (the thinking is that they would be more likely to acquit when those punishments would feel too hard for them).
> How can a prosecution threaten a longer sentence when they don’t determine it?
They do determine it in plea guilty process, actually. That being said, what they primary do is to manipulate charges - they add or remove charges to get the sentence they want. That process has nothing to do with what you actually done or not done. Charges are made big if you want trial. Charges are small if you accept plea guilty.
For practical purposes, prosecutors are key decision makers.
Reminds me of a law that was repealed recently in Germany.
They wanted to "reopen" cases where people were already found not guilty, when new technology would find new evidence.
In one case, a murderer was found not guilty, and later they had DNA analysis that would have proven his guilt. The new law would have put him behind bars.
However, the federal constitutional court repealed the law, as the constitution forbids to convict someone two times for the same crime. They said legal certainty was more important than finding the truth.