On Justice and Systems

The January Public Forum debate topic — which, as far as I’m concerned, would both be better as a Lincoln-Douglas topic and is certainly better than the Jan-Feb LD topic — reads like this: “Resolved: In the United States, plea bargaining undermines the criminal justice system.”  Ordinarily this would be boring because of course bargaining undermines justice by letting criminals barter for less justice.  But this isn’t really about justice but rather the criminal justice system.  And that makes it really quite interesting.

There’s some controversy about plea bargaining as Wikipedia notes, which we’ll get to in a moment looking at an affirmative case.

Starting with the negative case, though, the core of the case is focusing on the justice system. One of the key points of our system is the Fifth Amendment which means, in short, that plea bargaining is necessary to get information out of criminals to either convict them or implicate their cohorts.  How big is this?  Well, pause for a bit to watch these highly educational videos:

And now you know why to not talk to cops.  But we do want criminals to talk to cops, whether to implicate cohorts or simply save society the trouble of a trial by jury — with 85-90% of criminal cases being settled through plea bargain rather than by trial by jury.  And we want this, because, turning that number around, we do not want to put together the fiscal or human resources — the judges, the juries, the lawyers — necessary to have a criminal justice system that can give everybody their rightful trial by jury and day (or several) in court.  Put another way, plea bargaining is structurally necessary to the functioning of the criminal justice system in the United States and is thus not undermining it.  But above and beyond that, our rights and personal protections and civil liberties ensure that the agents of the state and government must figure out how to deal with, sans coercion or torture, the person to get the information they have in their head.  In theory, anyway — it was a better theory before the 21st century.

For the affirmative, in addition to the Wikipedia article linked to above, there are two ways that the criminal justice system, which relies upon plea bargaining to stay functional, is being undermined by plea bargaining:

  1. The prosecution knows that upwards of four out of five cases do not go to trial by jury, and they’re already strained for resources.  So what they’re going to do is push the prime suspects towards pleading guilty and reassure them that if they’re going to be one of those exceptional cases that does insist on trial by jury then they’re certainly going to be facing everything that the state can dig up to throw at them.  This is common:  “We think you did such-and-such.  If you accept responsibility for your actions, then we’ll only charge you with such.  Otherwise, we’re going to charge you with such-and-such and you’ll have to take your chances with a jury of your peers.”  Thus, people who didn’t actually do what the prosecution is expediently accusing them of may accept guilt just to get back out of the criminal justice system in a timely fashion.  The officer in the video above said it happens: people confess to whatever just to get out of that little interview room.  So the expediency of plea bargaining is resulting in wrongful convictions, even if only because people who are guilty of something aren’t guilty of what the prosecutor is pressing them on (with the flip-side being an over-zealous prosecution of those who don’t confess).  But beyond that…
  2. It is a plea bargain.  Instead of convicting a criminal who is guilty of such-and-such of such-and-such, the prosecutor tells the state that they’ve got a done deal and conviction on just such.  Which is great and necessary to the functioning of the criminal justice system, but how do you suppose the victim or victim’s relatives feel to know that a criminal could violate and destroy their rights and be actively not prosecuted to the full extent of the law?  Their faith in the criminal justice system — which is clearly labelled, however incorrectly, “justice” — is shaken.  As a voting citizen, their faith in the strength of our state and our democracy is shaken.  And when enough people disbelieve in the power of the criminal justice system to successfully prosecute, to the full extent of the law, criminals, we end up with bullshit like Guantanamo Bay because our citizens don’t believe that we’ve got enough justice here to deal with criminals.  (And if you’re paying close attention, you should notice that I’ve already dropped the “innocent until proven guilty” frame of mind from this point.)  So, and this strikes me as a stunningly good point for the affirmative, the criminal justice system is undermined by the way plea bargaining leads victims and observers to believe that justice has not been delivered to the system such that they cease supporting it.

Of course this point could be undone by the basic observation that the criminal justice system isn’t designed to deliver justice as High School debaters understand it, but rather rule of law by due process of law which must include the rights and protections of the accused.  Which would be a great point if more of our voting citizenry could think deeper and harder than High School debaters.  My personal belief — that I really would love to have shaken whenever possible — is that most of our voting citizenry really aren’t as bright as the (good) debaters and would almost certainly be distracted by a discussion of justice rather than focusing on the policy matters of the justice system.  So the point for the affirmative, in as much as we care about what the average voter thinks, still stands:  plea bargaining undermines our criminal justice system because entirely too many people in the United States are just plain dumb about public policy and systems.

But continuing on…

The negative can still push back that plea bargaining does not inherently undermine the criminal justice system; rather the mis-management of the perception of plea bargaining undermines the criminal justice system.  The simple fact of the matter is that people are getting as much criminal justice and rule of law as they’re willing to pay for (if not more) and if they can’t understand the correlation between opposing higher taxes and having a longer queue for shorter service at a public institution like a courthouse or police station, then that’s their own bloody lookout.  Which it could be if they’ve got a particularly vigilante streak in them — but we debated that last year.

And that’s all well and good, but what about the juveniles versus the adults as brought up in the LD topic of “In the United States, juveniles charged with violent felonies ought to be treated as adults in the criminal justice system”?  I believe that the topic skews heavily towards the negative.  If we say that we care about justice, and we’ll pursue justice via rule of law inclusive of the protection of rights, then we have to recognize that the job of a prosecutor with regards to violent felonies is to secure a guilty verdict, preferably against a guilty person.  And while a prosecutor may be able to pursue a conviction against a juvenile as if the child were an adult (like in California), most prosecutors would likely prefer to have the option of treating the child as a child for the simple reason that the child’s lawyer will be using childhood as a defense — as trite negative cases on this topic will — in an attempt to hang the jury on the heartstrings of somebody (who may or may not be a 43-year-old woman who never had kids of her own but oh-so-dearly wanted them).  The child’s defense attorney only has to paint the child as not deserving of the adult-sized punishment that they are certain to receive and then let the jury, a guaranteed right according to the 6th amendment, stop justice in its tracks.  Thus, in order to best pursue justice within the rule of law — which includes that darned fickle jury — we have to let the state determine what manner of charges they intend to bring against the accused, as they do today.

Which is simple but it’s also ridiculous in a value-oriented debate.  Put simply, if your problem or Ms. Wilkinson’s problem or the problem with the treatment of a person accused of committing one or more violent felonies is that it will be too severe for them, then your problem is with the treatment, not the person’s age.  And here’s where things turn upside down:  the 14th amendment features this spiffy bit of verbiage called the Equal Protection Clause.  What might be argued is that the separation of juvenile justice from adult justice is attempting to make a “separate but equal” justice which denies the adults the level of (and therefore equal protection of) the laws afforded to juveniles accused and/or convicted of crimes.  Thus, in order to comply with our laws — thus fulfilling due process and rule of law — we ought to start treating adult offenders as juveniles… which nobody in their right mind will accept, so how about we work on reforming the adult criminal justice system so that it can fit juveniles as well instead of having a semi-arbitrary age cut-off line, or be determined by the prosecutor’s confidence in getting a conviction?

So that’s the affirmative position: the system should be reformed until there’s no illicit age discrimination, such that it becomes perfectly acceptable to treat juveniles as adults hypothetically regardless of the crime.  But this suggests that there’s something wrong with the system, which there very probably is — starting with the reliance on plea bargaining in order to keep things moving at all.  A while back, The Economist published an article asserting that the USA has “Too many laws, too many prisoners.”  Crucial to this point, and bringing us back around to violent felonies, it reports that

Massachusetts is a liberal state, but its drug laws are anything but. It treats opium-derived painkillers such as Percocet like hard drugs, if illicitly sold. [For] Possession of … 200 grams, it is 15 years, more than the minimum for armed rape. And the weight of the other substances with which a dealer mixes his drugs is included in the total, so 10 grams of opiates mixed with 190 grams of flour gets you 15 years.

Thus, even if a juvenile like a 17-year-old gang member were to be tried as an adult for a heinous crime like armed rape, they could be incarcerated for less time than an actual adult who illicitly sold Percocet cut almost to the point of ineffectiveness.  And we let our laws get this way because our laws aren’t so directly determined by rule of law as much as they are by transitive popular demand.

For the real can of juvenile-law worms, let’s start with a brief refresher on the Age of Consent and then consider the sensationalist show To Catch a Predatorand then consider how much trouble kids can get in with cell phone cameras.  Lincoln County.  Eagle Point.  Lacey.  The Christian Science Monitor reports that 15% of teenage minors are involved in the creation and distribution of, what is in the United States, child pornography.  And an increasing quantity of district attorneys are convincing judges that this is a bad thing for which the children should be punished.  Where the law turns particularly strange is an asymmetrical case, as when a girl’s parents had a boy charged with felonies from sexually explicit imagery their daughter sent him, but the boy’s family declined to press (felony) charges against her for creating and sending it in the first place.  (Also worth noting in that article would be the reminder that if you’ve got somebody sending you home-made porn, it probably says more about them than how they feel about you: “Later he would learn he was one of four boys who had received snapshots from Laurie…”)

So, other then making Chuck Riley’s campaign promises to protect our children from predators apparently misguided to the point of frightening, what’s the point of this?  The point is that Juvenile Law is designed to deal with kids who are abused or neglected or doing things that kids aren’t supposed to do which are perfectly acceptable for adults — like drinking and smoking, rather than making porn per se — but it comes up wholly inadequate to properly addressing the crimes of disaffection by bored suburban kids, or crimes of aggression by the under-enfranchised kids.  There is a growing chasm between the capabilities of people and the society that they’ve constructed, a chasm that we try to bridge with our hastily proposed and voted-upon laws only to end up with an incomprehensible soup where  the sale of a pill is of potentially greater offense than armed rape, and where there are so many laws and variations on laws that it is simply inadvisable to ever talk to cops.  And that’s why we should reform our criminal justice system to the point that we’re not — and, more precisely, Ms. Wilkinson is not — uncomfortable with the notion of juvenile felons being treated as adults by the criminal justice system.  It won’t happen, of course, because the innocent have nothing to fear.  Except maybe Diane.

Update: Promptly after the last update, the Oregon Supreme Court made a ruling on child pornography and Attorney General Kroger got all huffy.  But the OSC ruling makes me feel more comfortable describing a driving point of paranoia for me:  if some kid with more technology than morals and the email address or mobile phone number for an adult who has offended them beyond their 3cm of common sense can commit the felony of creating and transmitting child pornography of themselves to the adult and then go report it to the police because it’s now in your inbox and will be downloaded and cached as part of the rendering process as soon as somebody went looking for it.  This is because all images are downloaded even if you don’t actively save the things — it’s just the way your computer, phone, whatever works.  But, for the time being, the OSC has shut down the viability of that line of attack.  This isn’t to say that child pornography isn’t hideous or that Attorney General Kroger is woefully misguided; I expect that it is, and I hope he isn’t — but when mere bits of data are so legally toxic that by the time you know you’ve got them you’ve committed a felony, then we are, on face, putting ourselves at the mercy of whoever can throw the bits at us.  And this is compounded because of the structure of the juvenile justice system, the predatory adolescent can flip the alleged power relationship (that Attorney General Kroger regularly sees, I’m sure) on its head such that the adolescents don’t even really have to try to cover their malfeasance with any more than their faux-youthful innocence.  As far as I’m concerned, the law should be a shield, not a weapon, and I’m glad that the Oregon Supreme Court has taken a step to de-weaponize it.

It is also worth noting that writing that bit just above wasn’t particularly easy because I believe Ms. Skenazy is spot-on in her report of anti-male bias, so I fully expect that you think I’m some kind of freak at this juncture.   But allow me to observe that my frame is paranoia, not perversion, and while we’re on the subject chances are that I’m more sexually conservative than your kids are and/or are going to be.  Which should have been implicit in what was written, but now we’ve got a university study to back it up.  All of this following, of course, a ban on hugging because it had allegedly been weaponized.  Which strikes me as odd because I know of a couple of kids who could’ve probably used a few more hugs than they got.