As with most problems, the solution is simple.
- Everyone has to use a public defender for all cases, civil and criminal.
- The public defender is chosen by lot, using simple mechanical dice, which citizens can inspect and which are inspected by the equivalent of the Las Vegas Gaming Commission.
- Any case of tampering is an automatic life sentence without parole.
- Everyone has the right to a jury trial if they choose and juries are told about jury nullification.
- No pleading, all cases get a trial.
- End cash bail and all monetary penalties for criminal cases, since they make some crimes not crimes for the rich.
The US system currently gives justice only to the rich because only they can afford proper representation. The US has the highest incarceration rate in the world, because most crimes are never tried, they are plead out. As a result, US prisons are full of people who are probably innocent, because it’s not worth going to trial and risking far harsher sentences.
A system which requires assembly line trials is putting too many people in prison. Most crimes are victimless, and no one should be in jail for them. If you can’t run the system fairly, with actual trials, the system needs to be changed.
BUT the most important part is simple: It is a specific case of the general rule that no one should be able to use power or money to buy a better version of anything which matters — health care, education, security theater, justice, etc.
The second elites have to use the same lawyers as you do, pay the same, and are subject to the same rules, and can’t game it, the system starts working.
Elites must never be allowed to avoid any part of the common experience that matters. They can fly first class, but not on their own jets. They must go through the same security lines as everyone else. They can buy a private room at the hospital, but not jump the queue for care or get better care in any way that matters medically. They cannot send their children to private schools or over-funded local schools (because of local property taxes).
When elites are subject to the same roulette as ordinary people, things become both fair and good by default. When they can opt out, everything they’ve opted out of goes to hell.
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Dan Lynch
Good suggestions, Ian.
“Everybody in, nobody out.”
Chuck Manson
@Ian Welsh
And by extension the easiest way to fix society is to make sure that:
Everyone lives in identical living quarters
Everyone eats the same food
Everyone is paid the same amount
Everyone has to do exactly what the boss man says
Anyone who tries to deviate from the above is brutally punished
Yep. Make everything like a Super Max prison and all your problems will be fixed.
But do not take my word for it. Listen to an expert like Thomas Pikkety:
https://www.theguardian.com/books/2020/aug/31/thomas-piketty-refuses-to-censor-latest-book-for-sale-in-china
So great was the communist disaster that it overshadowed even the damage done by the ideologies of slavery, colonialism, and racialism and obscured the strong ties between those ideologies and the ideologies of ownership and hypercapitalism – no mean feat
Ché Pasa
In the United States, “law enforcement” is equated with the police, not the courts. Lord knows, the court system is badly screwed up and largely corrupt, and would have to be completely overhauled to represent justice rather than injustice, but police are (mostly) not employees of or directly accountable to the courts — except as defendants.
Your suggestions for reforming the court injustice system are sensible. Are they do-able? They would be if justice were the desired outcome, but clearly it’s not.
Ian Welsh
Oh, wow, Manson sure is a smart one.
hunkerdown
> Elites must never be allowed to avoid any part of the common experience that matters
I believe you\’re calling for nothing less than the elimination of class systems generally, of leisure classes in particular (pace Veblen, leisure is a lot of work), of privilege as a concept, and (perhaps) the very technologies of rule, products of billions, maybe trillions of human-years of development and refinement. I don\’t disagree, but that\’s a hell of a tall order and they\’ll fight to everyone\’s death to keep the system in place that grants them their entitled state of exception to norms and their liberty to inflict debts and trespasses on others.
Here is human political economy, stripped down to the plumbing and foundation. The paper\’s authors explore an interesting and very useful extension of a primate coalitions model to explain human class systems and the conditions of their apparently spontaneous formation. It\’s all about looting the majority to a subsistence level and, wherever there is enough loot to make a class system profitable, always has been.
Importantly, the model reflects the usual real-world dynamics of class systems, including the fundamental dynamic of the underclass, whose payoff is generally near break-even, needing persons, communities, and their resources to defect from the elite in order to upset the balance of forces in the underclass\’ favor and win structural or payoff concessions. In this light, consider something like 2016 \”deplorables\” and 2020 \”wokeness\” as a fortification between the subsistence class and lower elites, deployed to counter just such a realignment of persons and resources. But the model also hints at several other factors that a sufficiently coordinated, situationally-aware, and aligned underclass, chronically under-resourced and unable to simply walk out of Mordor, could conceivably apply to spoil the loot and cause class alliances to reassort, with the costs and fallout that entails for the entire class system.
I think it\’s just because I\’ve been reading a lot of Bichler and Nitzan lately, but sabotage seems to be woefully neglected as a weapon by most popular movements that fail and deserves study by every dissenter.
dbk
Very, very interesting. As Dan Lynch noted, I too favor the principle of “Everybody in, nobody out” (e.g. Medicare for All, Social Security, public schools, etc.).
While we’re indulging in these justice-inspired thoughts, why not a uniform federal code of penal justice, one which would standardize charging criteria/penalties/sentences and which would abolish the death penalty?
somecomputerguy
Is this social design principle the best supported one? I am trying to think of better one. Is it sufficient by itself? Is the central problematic of social design controlling elites? What extant society does this the best or most comprehensively?
Chuck, how will we get the boss man to take on the self-martyring burden of ordering everyone around, if he is paid the same?
BlizzardOfOzzz
Ian’s idea here sounds pretty good to me, although I don’t know much about the legal system. Enforcement is always the question mark, though, isn’t it? How do you stop the rich and connected from using their money and connections?
I know that Ian has endorsed “everybody in” for other areas too. It could work out for some services like airlines that are naturally heavily regulated by the government: the government could mostly ensure that no one is cheating the system by flying privately. Although, presumably, there would be a trade-off there in that prices would go up and poorer people would not be able to fly.
It gets much dicier with other goods like, let’s say schooling. It comes to a point where the only way to enforce it is tyranny, because you have to make sure that the well off don’t live in close quarters, which involves dictating where people can live, or bus their children miles away. You also have to ensure that no one can hire private tutors, which involves close monitoring of their expenditures.
I must admit that the current virus hoax and its effect on schools, would tend to support the “everybody in” model. If affluent people were unable to send their kids to private schools, could the public schools get away with staying closed? Maybe not. But the downside of everybody being forced into the same system is that there’s no room for preference. That would work out if everybody agreed more-or-less, but becomes very oppressive when people have radically different ideas on how they want their kids educated.
I come back to Belloc’s “Servile State” a lot. His thesis was basically: property, or slavery, those are your two choices. That is, you must either have strong property rights with widespread distribution of property, or forced labor. His thesis was that the people who support communal property would by their efforts inadvertently advance slavery. I think he is right, but we will get to see his theory put to the test.
BlizzardOfOzzz
(Sorry, my last paragraph reads as kind of a non-sequitur — did not tie it in well. But I have rambled enough.)
krake
As a thought experiment, sure.
Application? Until the guillotines are shined, buffed and polished for storage again, it ain’t gonna happen.
krake
“Property or slavery’ is, like most strict either/or propisitions, a strained and one might argue, distracting, simplification. For example – and this is not endorsement – a Georgist or distributionist model might allow for personal property, but not land or real capital accumulation.
Ian Welsh
The leisure class doesn’t matter in this particular formulation. They can buy all the crap they want, as long as none of it matters.
Finland has one of the best education systems in the world.
They did not aim for that, they aimed for a system which treated people equally (not the same, equally.)
The proposition is simple:
1) there are some things, like justice and healthcare which should not be rationed by power or money.
2) when elites can opt out of systems they run, somehow those systems run like shit.
krake
Mr Welsh,
I just don’t see how the wealthy are opted in while still 1) wealthy and 2) in control of food, jobs, housing, and through their proxies, the commons, such as they remain.
S Brennan
Nice stuff Ian but, more fantasy than reality. Yes, we can all dream of better days ahead but the old leadership credo applies:
1] This is where we are.
2] This is where we need to go.
3] This is how we are going to get there.
Willy
The old riddle of power. Can’t live with it, can’t live without it. Can’t live with it because the wrong element coalesce and ruin it for the others. Can’t live without it because the wrong elements coalesce and ruin it for the others. So we try to school people These Basic Things 101 and find they only want to understand just enough to then try to ruin it for “the others” (however it is that they’ve come to define “the others”). The remaining others call me a nihilistic fool.
So I try to school people in Good Folks and Bad Folks 101 but find that they’ve already made their minds up about who’s good or bad folks.
So I suggest looking for those peoples, nations and things where they’ve had some success at keeping their powerful reasonably integrous, with reasonably good results for most others. But I’m finding that this is risky behavior.
Chicago Clubs
Everything went to hell as soon as we stopped taking people who thought they should be in charge out into the jungle and clubbing them to death.
Feral Finster
Something similar could be said for bringing back The Draft.
There would be a lot less enthusiasm for War Without End, if the offspring of people of influence and authority might get shipped out to Iraq or whatever, and a non-negligible possibility that those offspring might not come back in one piece.
someofparts
According to what Chris Hedges has learned from teaching classes in prison and getting to know the inmates, they are actually punished if they insist on a jury trial instead of pleading out. Those guys get longer, harsher sentences as an example to the others.
Krake – As much as guillotines have an undisputed old-world charm, they just aren’t practical when one has as many rat-spawn malefactors as we endure. I think firing squads are the only practical measure. I would also like to see big nationally televised trials like Watergate. Let’s have days and months of putting these monsters in the docket and then let those they have harmed take the stand and testify.
krake
someofparts,
conceded
StewartM
End cash bail and all monetary penalties for criminal cases, since they make some crimes not crimes for the rich.
Holding a person a prisoner before a trail is punishing them before conviction. It should be only done in the rarest of cases. If a person is deemed enough of a flight risk or a safety risk to be held, the state then assumes the responsibility of maintaining a person’s property and paying their bills, and compensating them for lost income (you could have upper limits on this for the super-rich) and moreover their employer must take them back if acquitted.
As for fines, scale them. A $100 traffic fine for me might be $10 or $20 for a low income person (an annoyance but payable), but that same fine would be $1000, $10,000, or $100,000 or more for up the income scale. Moreover, the fines are donated to charity, not to the government and certainly not to the police departments, so the state has no financial interest in finding anyone guilty. Courts and police departments should be entirely funded by taxation; there should be no court costs so that if you are innocent you pay NOTHING.
And need it be said–the vast majority of crimes should not require prison or jail; and if these are required, home arrest allowing people to keep their jobs and such is preferred. The idea should be to deter and punish, but not to destroy people.
gnokgnoh
I sort of really like Ian’s post, except it misses some critical distinctions or clarifications.
Civil and criminal. Litigants on civil cases don’t get public defenders, they get legal aid or pro bono lawyers.
Lawyers. Japan has 1 lawyer for every 9,000 citizens; France has 1 lawyer for every 5,000 citizens; the U.S. has 1 lawyer for every 300 citizens. This makes a huge difference in how our justice systems function.
Plea negotiation. Most civil and criminal justice is often referred to as dispute resolution. For civil, the best dispute resolution is a settlement between the parties, not litigation. For criminal, the best dispute resolution is a settlement (plea negotiation) between the state (the people) and the defendant (the offender), not litigation (third-party adjudication – a judge). The reason that settlement is better is because there is give and take on both sides and not just a win/lose scenario. Unfortunately, in a criminal case, it means the defendant must admit guilt. The equivalent in civil cases is that the defendant admits some level of liability.
Fines. Fines as a punishment were crafted as a reform, an alternative to incarceration. Think about traffic cases or low-level misdemeanors. The vast majority of criminal cases are these types, by far. Rich people are most often caught up in this net, far more than for serious crimes. How would you like to sanction someone who violates traffic laws or other low-level laws? What about shop lifting. Jail? Almost every major city in the United States now is moving to non-arrest for all non-violent misdemeanor and traffic cases. In other words, no jail. This is a good thing. Most sanctions on non-arrest cases are a fine and some type of community service, with conditions during a period of probation with no supervision. Fines are almost always waived for indigent defendants. They don’t hurt rich defendants much, but no one is really interested in putting them or poor people in jail.
I watched a superintendent of a local school district in Maryland at a sentencing for a guilty plea for third offense driving under the influence. He went to jail for six months with the gnashing of teeth and tears in the courtroom from family members and teachers in his school. He wanted a break because of his “standing in the community.” He did not get it.
While Ian’s propositions are born of legitimate frustration, the justice system is not quite the system the media portrays. The worst condition by far in the justice system is systemic racism, the disproportionate treatment of racial and ethnic minorities. His propositions address the rich/poor divide which is related but much less of a problem.
Regarding the rich, the oligarchy has had the law changed to make their corruption legal. In most cases, they cannot even be prosecuted, or they have stripped the regulators of all resources.
S Brennan
Exactly Feral Finster;
“Something similar could be said for bringing back The Draft…There would be a lot less enthusiasm for War Without End, if the offspring of people of influence and authority might get shipped out to Iraq or whatever, and a non-negligible possibility that those offspring might not come back in one piece.”
And what if the evading service punishments mean no political office or profits from war…bye bye bye Clinton, Cheney, Bush, Obama, Hillary, Trump, Bernie, Biden and Harris…
Hello Tulsi Gabbard? Yeah babe it’s me, you know, the old DNC…now..now girl don’t hang-up, ’cause like you know..I need ‘ya baby, I need you bad..like right now…no really, Hillary meant nuth’in to me and that Harris bitch..who needs her when I could have the real deal…what…oh baby…please don’t say stuff like that me.
nihil obstet
As I understand it, our rulers set up a highly litigious society. You can protect people against harm caused by negligent products or services either by serious regulation (as in Japan or France) that restricts negligence or decry burdensome regulation, specifying that if you’re harmed, you can just sue for damages. The U.S. lawmakers chose to regulate the society through lawsuits rather than through government requirements. This has the happy result of allowing rich people to be negligent about the safety of poor people for profit. And in case any ordinary person has the time and sufficiently deep pockets to carry out a lawsuit, the law limits punitive damages to something much less than the company can make by continuing the negligence and of course limiting the liability of corporate shareholders and managers.
As our police have been substituted for effective social policy, so have our courts.
gnokgnoh
nihil obstet, exactly.
European and civil law systems prefer statutory and regulatory restraint over companies to litigation in the justice system as a means to limit bad behavior or harm. Case law is law established by litigation, not regulation. Litigation and the use of case law as precedent, in lieu of statutory law, will ultimately never constrain powerful actors.
Hugh
I don’t know how this would work with people like Trump who do not see litigation as a means to resolve conflicts but rather as a weapon, to drag them out as long as possible and wear out the other side. I also wonder how many times the jury pool would have to be increased to accommodate trials. How would all those in the pools be compensated? The companies where they work, etc.?
Dermot M O Connor
Chuck Manson, nice job with the psychological projection/censorship.
Freud would have loved you.
S Brennan
“As I understand it, our rulers set up a highly litigious society” – Nihil Obstet
Apparently Nihil; had you taken a moment to research your prejudices, before pontificating, you would have found your conjecture to be pure sophistry. But hey, it’s a political year in the US, so bullshit aweigh.
“Here’s a graph showing the number of attorneys as a share of the US population [since 1880]”
https://angrybearblog.com/wp-content/uploads/2017/03/attorneys-as-a-pct-of-US-pop-20170322a1.jpg
bruce wilder
I cannot conveniently cite or quote the work, but I recall historical research that established that
1.) lawyers as a profession predominated in the National Assembly of the French Revolution and among the prominent advocates and operatives of Revolution
2.) the number of lawyers in France declined substantially between the highly litigious late years of the ancien regime and the late Napoleonic era with the Code in effect.
Nathanael
Does not fix problems caused by dirty corrupt DAs. Have to have a system for having someone *else* (i.e. not the same DA or his buddies) prosecute crooked DAs.
nihil obstet
Everyone would profit if I were less entertained by engaging really strange interpretations of facts. But I succumb to temptation: “Oh, lookee, lookee! Late seventies deregulation begins, percentage of lawyers rises!!!”
There are, of course, lots of other issues that lead to kids seeing the law as a good, middle-class profession that allows them to live near home as white collar jobs bleed out from rural/small town areas.
Romancing The Loan
Hi Ian. Love your blog – I am a criminal defense lawyer and I have some thoughts on your law enforcement post. I certainly agree on your larger point that a functioning civil society means the rich have access to the same services as the rest of us, but some tweaks follow:
I have always espoused a massive increase in the criminal public defender system to cover everyone, but for slightly different reasons – the cutoff for poverty (where you are entitled to a lawyer) is absurdly low, while the cost for even a mediocre private lawyer is very high ($3-5k will get you a basic OUI trial and a not guilty if it’s there to be had), so for a “middle class” person making 40k (so really quite poor in most urban areas) one false accusation can lead to a new mortgage on the house even if you are ultimately vindicated. There’s nothing inherently wrong with or unqualified about public defenders because they work for cheap (me, I got a scholarship and couldn’t stomach using it to make the rich richer,) just many of the full-time ones are salaried and absurdly overscheduled to the point where they can’t spend the time your case requires. The public defender, who deals with criminal cases day in and day out, is very likely to be much better at it than most private lawyers, who’ll take on a private criminal case if you wave enough money in their faces but for whom it’s not their usual fare. They will often screw up your case horribly. Because there are so few rich people we actually investigate and punish for criminal offenses it’s already very very difficult to make a consistent living taking only the expensive cases. Here in MA we have bar advocates who take public cases at a modest hourly rate to fill in the gaps between their private ones, and the result is that the guy assigned to defend a homeless guy for knifing another homeless guy may well be the same person the rich rapist is paying 100k to. So me, I see no need to prohibit private criminal defense. Let the rich pay more for the same work, if they desire! The civil bar is different – since you choose to sue someone, having most plaintiff work be done as a % fee works out well for a number of reasons, primarily that frivolous or crazy litigants won’t find anyone to take their case because they don’t think they’ll get paid at the end of it, and that keeps most of them from clogging up the courts. Small cases where it’s only worth it in the aggregate are supposed to be addressed by class action suits, which I would favor greatly expanding. I don’t hate the idea that you should be able to request a free lawyer to help you defend a lawsuit though, along with the same reasonable fees for professionals to help you prepare that you’d get in a criminal case.
Chosen by lot sounds fine but you should, as you do, get to “roll again” at least once or twice since quality and temperament in our practice varies widely and being faced with poor representation vs doing it yourself is a terrible choice. The automatic life sentence for tampering idea is terrible – people would be accusing each other of it constantly for self-interested reasons, or it would never be prosecuted out of fear of the punishment. An automatic life sentence doesn’t even work well for murder – just ask the 14 year-old severely disabled kid that a street gang bullied into executing a man, whose case I have pending on appeal. Really though, the vast differences in lawyer quality that would lead to tampering with the lot system (at first I thought you meant jury tampering, this part is very unclear) mostly don’t exist, and the few that do can be fixed on appeal. Leaving in the ability to opt out of the system and hire private criminal defense (a lawyer of your choosing is a constitutional guarantee, after all) would remove this issue entirely. As I said, the existence of private lawyers is not the cause of the rich getting better criminal representation.
No pleading also isn’t clear – do you mean no plea bargains or no pleading guilty period? I’m ok with no plea bargains but no pleading guilty doesn’t make much sense. Even if you decriminalize stupid stuff and address the severe poverty that is the root cause of about 80% of crime (misogyny/pedophilia seems to take up a lot of the rest, sigh) the huge population means there’s actually a ton of crime that is still serious/violent enough that it needs prosecution and punishment but where the case is simple and one-sided enough that there’s nothing you can do for your client and a trial would be a foregone conclusion. In those cases there’s a reason for the judge, at least, to offer a lower sentence as an incentive not to go through it to save on court time. The reason plea bargains, with the prosecution, have metastasized into such a ball of awful is because not everyone who wants a trial gets one in a reasonable time – the speedy trial clock is tolled when your side needs more time to prepare, so people with overworked public defenders are completely screwed and faced with waiting in jail forever or pleading guilty to something they didn’t do. Moving to an hourly system with a caseload limit and implementing a “public defenders for everyone” rule would mostly fix this on its own, in other words.
I agree with ending cash bail and most fines! If we do, in the perfect dream America of my creation though, somehow start prosecuting rich people for fraud and unethical business practices an honest state or Uncle Sam should still be able to claw back ill-gotten gains.
Finally, to reward you for reading through this long comment here is my own suggestion that I think would contribute to reform: public defenders should be deputized to do the prosecution when the defendant is a police officer. It removes the conflict of interest where the DA doesn’t want to piss off the heavily armed state gang that she completely relies on to do her job going forward by tossing one of its members in prison. We know how to prosecute a case having defended them, and the police already courteously hate our guts.
Ian Welsh
Thanks for taking the time to write, Romancing.
I meant plea bargains. I take your point on mandatory life sentences, but the penalty does need to be severe: people need to be scared to do it (though the best way is to make it almost certain to be caught.)
Rolling again up to twice seems fair.
Love your idea of letting public defenders for prosecuting cops.
Lex
I don’t disagree, Ian, but the fundamental problem in the US is the war on drugs. It was always a load of racist politics and bullshit, as multiple major players in the Nixon administration have admitted on the record. It was the reason for and the funding of militarized police forces. And a huge percentage of our criminal justice system is wrapped up in it.
Ian Welsh
Yes, the war on drugs is a huge problem. But if you don’t allow plea bargains, let me tell you, it grinds to a halt overnight.