Daily Archives: July 21, 2012

In Defense of Guilt: Double Jeopardy and Pleading the Fifth

….nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself….

Today most Americans nominally familiar with the law accept as a settled matter that the above two provisions from the Fifth Amendment of the Constitution are some of the essential linchpins in the machinery of American justice. But many citizens more familiar with the legal system and specifically with criminal law, or even those who more closely follow sensational public trials like those of O.J. Simpson and Casey Anthony, have come to question the wisdom of permitting only one prosecution of an accused party or of allowing the accused to remain silent during a trial intended to be a discovery of the truth.

Undoubtedly state prosecutions at times, particularly in high-visibility cases, are driven more by politics than by any evidence beyond a reasonable doubt. And criminal trials cost the state and often the accused many thousands or tens of thousands of dollars.

But the virtue of sparing those few citizens who were in the wrong place at the wrong time the anxiety and the expense of a second criminal defense must be weighed against the immorality inherent in denying a victim full justice and in failing to protect the community from an active criminal offender. Prohibiting a second prosecution against a previously accused person, even when compelling new evidence establishes probable cause or guilt beyond a reasonable doubt, surely places a check against rogue prosecutors well ahead of the securing of truth, public safety and victim justice.

Furthermore, if the criminal legal system were altered, such that state prosecutors were no more — where only the evidence itself, as gathered by law enforcement and as reviewed by a trial judge, could determine whether or not the accused would ever stand trial — once, twice, or ten times — then the case against double jeopardy would fall apart.

So who would play the role of the prosecutor at trial?

We the People would. We as jurors would, under the direction and with the assistance of the presiding judge, conduct an examination not only of the accused but of the victim and/or of the witnesses to the crime, of the witnesses for the defense, of the public officials involved in the criminal investigation, and of any witnesses who stepped forward in the name of truth.

Then, rather than being an adversarial system with competing and contradictory theories of the case, our criminal justice system would become a more impartial, apolitical, interactive machine of justice.

But there it does not end. For how do we, as active jurors, get to the truth of the matter when the accused presents no defense or offers no testimony?

First, under this system the evidence must already be sufficient, as evaluated by a criminal trial judge, to establish probable cause for arrest and trial. The principle, therefore, of affording the accused a presumption of innocence seems deluded. He would not be put on trial if a judge — and not even the presiding judge — had not previously found his innocence in significant doubt.

Second, the accused would have no defense counsel to speak for him — unless he were ruled incompetent by the judge prior to trial. No alternative theory of events could then be presented except by the defendant himself. Should the accused refuse not only to testify but refuse, even with the aid of the court, to present any defense at all, then the jury would include this in their deliberations, while determining his guilt or his innocence.

The accused could not be forced to testify; but his silence ought to be interpreted as one sign among all available evidence of his guilt in the case. Whether jurors take it as such would be entirely up to them. But to ask them to suspend their judgment here is to ask them to assume that a competent, honest man would sit silently under examination by his fellow citizens, refusing to aid in a search for the truth in the wake of a crime, for fear that the evidence trail might lead mistakenly back to him.

An innocent man need only recall the truth. Finally, the adversarial system and its competing theories from the prosecution and the defense councils would no longer deter us from a finding of facts and of the truth. And the jury, who often perform this function today, would still decide the verdict, only now only a simple verdict of “innocent” or “guilty.” The presiding judge would retain the discretion afforded by law to determine the class and the degree of the crime, as well as the sentence imposed.

Such a reformed legal system would not only aid in the search for truth, by including our voices in the examination of facts and witnesses; but it would cost the state and the accused far less to do so. No longer would ours be a system tilted toward a defense of the guilty, as a fail-safe against the potential abuses of the prosecution. It would finally be a criminal justice system tilted toward the victims, toward the innocent, and toward the truth.

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The Nation-State: Law, Punishment and Immigration

 Earth is such a beautiful world of finite resources, a stately mother who bestows unto humanity no special guarantee of survival. Alone and subjected to nature’s laws, we humans are really quite vulnerable, almost helpless, whether pitted against the elements and any animal rivals in search of our daily sustenance or pitted against one another for continued control of it.

When just two people combine together to take what a lone human owns, they will undoubtedly have it. Thus human history is marred by large collective wars for territory — for control of the scarce natural resources that sustain us. And so our individual rights have been partially or wholly subsumed by state systems, which compel contributions from their citizens — though ideally only to the extent necessary to ensure life — and a dignified life — to all its contributing members.

For government itself is failure: the failure of a free people to act responsibly and with mutual consideration absent the imposition of an intervening, third-party authority. The only good government, then, is a government that weans the People from itself, teaching the greatest majority to respect one another absent any third-party intervention, teaching them to exercise force only in true self-defense or in defense of the truly innocent.

But within any society, our selfish drives, both to exercise unearned influence over others and to garner unearned favor from those already in possession of influence, are a constant — an extension of human nature itself. And these darker, anti-social aspects of our human nature are compounded by our own DNA, evolution’s engine of diversification; which works so tirelessly that, even within the family unit, two perfectly lovely parents might have two wonderfully kind children and one perfect SOB of a child.

Why is this relevant? The family may be viewed as a DNA-microcosm of the greater society: No matter how lovely the society and its rules or how peaceable the citizens and their leaders, born into their midst, just as in families, will be an equivalent ratio of individuals who delight not in following an orderly, voluntary, peaceable system but in bringing chaos and misery to such a system and to its participants — then in hoarding everything for themselves.

Thus we have need of laws, of law enforcement, of courts of law, and of prisons. A benefit of this legal state monopoly upon force is the freedom it provides most citizens to be productive in specialized areas, leaving the police and military, i.e. the specialists, to provide for the protection of all of us. Most people in fact don’t want to live in a state of hyper-vigilance — in a tension-filled, every-man-for-himself world. And they prefer not to know everything about everyone around them, let alone to be known fully by all others: they want to relax and enjoy life more.

Just look to third-world and otherwise underdeveloped countries, where law enforcement is non-existent or subject to private bribery, as examples of the alternative. Little or no industry forms there, because progress hasn’t yet made it past one of the very first, critical stages of a modern civilization: the energetic broad demand for a universally accepted, impartial law.

If this nation were instead of a melting pot an isolated Amazonian tribe within which most citizens shared the same familial genes, such that helping any member would be helping oneself in a Darwinian sense, an organic, unwritten common law might be feasible. But in our modern world, where very different sorts with very different interests and impulses are brought into constant contact and conflict, and where no material/ego/DNA benefit accrues to the one for cooperation with the other, the only jurisprudence subject to more abuse than our poorly written laws would be one with no written laws at all.

Such organic “lawlessness” would leave open wide a defense that since one cannot know unwritten law and its consequences prior to violation; or since its interpretation and application depend upon the jury or the judge or how previous, similar acts were interpreted and the law applied; one cannot be charged with willfully violating such law. Law is therefore subjected to subjectivity — much as we now rely upon the Supreme Court’s subjective interpretations of the original intent of the Founding Fathers.

Even in sea-bound England, where rights are protected without an actual constitution, the trends are toward strife between cultures with differing legal traditions and toward a fight against the EU. There is no modern, collective, organic understanding of law.

Here is yet another justification for a system of direct democracy like this one which fragments the national body into its smallest political units, our voting precincts. In so doing, the largest number of communities, more than ten thousand of them, may enjoy the greatest freedom to determine their own local laws and ordinances — each serving as a sort of proving ground for the rest of the nation.

It then becomes necessary via a strong constitution to explicitly preclude the worst sorts of local ignorance and provincial laws, e.g. a precinct’s abolition of the requirement that children be schooled at all; the lowering of local educational standards below a level necessary for basic functioning outside of that community; a denial of citizenship rights to non-residents or to productive members of a local community; undue leniency toward violent offenders or those who neglect and abuse the truly innocent, i.e. children; or the wholesale legalization of psychotic substances, the users of which might adversely affect neighboring communities.

Without specific, authoritative, constitutional prohibitions, the state of the state that organically develops is most often disorder, followed by bitter struggle and then an imposition of rigid , fragile order (see Egypt, Iraq, Syria, etc.). Consenting adults ought to enjoy the greatest possible freedom to live alternative lifestyles and to design unique local environments — right up to the point where they even marginally do so at the expense of children — of their physical safety or of their fiscal futures.  Hence, constitutional law, more difficult to alter and universally applied, must be written.

This constitution includes a requirement that all able-bodied prisoners labor no less than forty hours per week, eliminating the moral perversion of allowing convicted criminals to rest behind bars while honest, hardworking citizens pay for their incarceration. Perhaps if such drains upon society were forced to wake up and work at five o’clock in the morning and made to work all day, they would then return to prison far less frequently and find a traditional forty-hour work week a little less disagreeable.

It was a scramble for resources throughout history that has led to a huge international stalemate across most of the globe. The smaller states of the world today benefit from the invisible protective shields of the larger states, who extract wealth from the former in exchange for checking the ambitions of the latter. But that underlying scarcity of resources and our inability to share them that made states necessary in the first place remains. So the ideal state is the least possible compromise of individual rights necessary to ensure the rights of all.

And the ideal state of geopolitics, so long as human nature retains its darker aspects, would be one where all law-abiding persons are free to travel among nations, states, and precincts; free to settle wherever they wish; and free to work wherever they settle. But this would only be a possibility where each nation’s government affords all law-abiding citizens the same, minimal level of benefits; and each acts as a sieve, filtering out the criminal element among the world’s population, thereby leaving the rest of us to enjoy our own productive, private lives.