Tag Archives: Criminal Law

The Stupidity Inquiry

There’s a National Geographic show called “Locked Up Abroad,” reenacting stories from people who got captured, arrested, or kidnapped overseas.  It makes a pretty good drinking game to watch and try to identify the precise Stupid Decision that led to each victim’s imprisonment.

Most episodes involve someone who foolishly tried to “make a few bucks” selling drugs in a place where laws seem unreal or tenuous.  By far the closest I’ve come to failing to identify the Stupid Decision was the first episode I saw, featuring a couple teaching high school in Chechnya.  Kind and sympathetic, yes, but still an obviously Stupid Decision; within two weeks of their arrival a band of rebels (predictably) captured the couple and held them for ransom for over two years.

Discussing a crim law moot court today I realized that a similar inquiry shadows the American criminal justice system.  When granting the presumption of innocence, prosecutors need as a two-pronged question: 1) Did this person actually commit this crime?  and 2) What did this person do to get arrested or otherwise attract these allegations?

Many procedural protections help innocent people escape conviction based solely on the second part of that inquiry.  But the fact remains that both sides of the debate have to ask who the defendant insulted, and how.

Sometimes the second prong becomes obvious, as when a prosecutor has to ask: Well if he wasn’t there burying bodies, why was he there?  Other times that second prong stays subtle: If this witness didn’t name defendant because he’s guilty, why would witness finger him anyway?

It seems a little daft to approach situations asking yourself “Will this seem obviously stupid in hindsight,” rather than asking the more popular question, “What’s the right course of attack?”  Which brings to mind that episode of The Office where painfully non-self-aware Dwight Shrute tells his boss that the best advice anyone’s ever given was “Don’t be stupid.  Changed my life.  Whenever I am about to do something, I stop and ask myself: Would a stupid person do this?  If the answer is yes, I don’t do that thing.”

Abroad the question is (slightly) more nuanced, but in crim law it’s sometimes so obvious.  Baiting an enemy to retribution, really?  Trying some drug that renders people impervious to pain from being on fire?  Really?

Would a stupid person do this?  Is this so inelegant a question?  There’s something to be said for pausing to take account of the circumstances.  If, on assessment, something turns out to be stupid, DO NOT DO THAT THING!


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For whom the bell tolls

Quotes from The Virginia School.

Strident libertarian-cum-crim professor and criminal defense attorney talking about how we put such a huge number of practically-innocent people away, to the equally-enormous detriment of The System:

“This happens time and again. I will get a call in the middle of the night from the defendant’s wife. And she always asks the same question:

Why is my husband locked up, for so many years, after not having done practically anything wrong?

And I’m harsh with these women, because I understand the system. I always tell the wives:

Your husband did do something wrong. He sat back and failed to fight this broken system when he had the chance. He complacently watched a broken system flounder. And so now it’s all come around, and now we know for whom the bell tolls. It tolls for him.”

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Corporal Punishment: Shock and Law?

I heard a great lecture this evening from a professor suggesting that we start employing a “shock and awe” approach to public law.  Rather than hide our criminals away for ever-expanding imprisonment, we should revert to the old system: Hurt them, embarrass them, scare the crap out of them.  Use a cheaper, more public method of deterring crime, rather than just locking criminals up in places where they get stronger, angrier, and more connected.

Hard to argue, no?  The talk came from an eager, young-ish professor establishing the scope of his argument.  He spent a long time mired in racial ramifications — it is more racist to keep black criminals shackled, hidden from society, or whipped, in full view, to discourage their brethren from repeating their crimes? — and hardly touched the “capital” element necessarily a part of any incremental capital system.  In fact, probably the most illuminating part of the talk was when he defended reimplementing chain-gangs by telling us that the only reason we did away w/ chain gangs in the first place was because Union leaders demanded it.

What’s interesting about the super-corporal system is that it’s been done.  Pirates — not desperate Somalians shanking cruise ships, but the Pirates of yore, of marque and reprisal — treated wayward sailors brutally, and made sure to leave one alive to tell the tale.  In 2003 we dropped a series of bombs over Baghdad so severe as to instill the fear of becoming China’s parking lot into the hearts of every Jihadist.  Both instances required something more than flyover attacks.  Pirates struck deals with Great Britain.  Guantanamo speaks for itself.  Obviously brutality does not deter enough on its own.

I’m less interested with implementation and feasibility.  What captured my attention was the professor’s constant, didactic emphasis on retribution.  Victims want to punish.  Society wants to punish.  Imprisonment doesn’t scratch that retributist itch because no one goes to visit her attacker.

Would caning really offer a better alternative?  Prof. Bibas focused on the hurt aspect of things — we want to see perpetrators suffer.  But isn’t notoriety more critical?  Brutality is much less effective than certainty.  While an economist may weigh a 2 percent chance of incurring devastating pain equal to a 90% chance of very little pain, recidivist criminals are beyond an economist’s calculation.  It won’t happen to me, goes the thinking; and besides, what’s the worst that can happen?  My cousin was in the hoosegow and he came out w/ a tattoo, huge new muscles, and new friends.

We are past due for public law reform.  If a five-year sentence doesn’t work, and a ten-year sentence doesn’t work, it’s not fair to experiment with a fifteen-year sentence on the taxpayers’ dime.  Our occasional capital system limps along absent corporal support, but an incredmental corporal system would require functioning capital punishment.  If we’re going to look to the world, let’s not look to nations on decline or to the eminently-popular Philippine caning to guide us.  And, for god’s sakes, let’s have a conversation about social order without resorting to paternalist racial archetypes!


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No Federal Hate Crime?

Converted Muslim kills a soldier outside of an Army recruiting center, then pleads not guilty to all state (Arkansas) charges, including hate crime charges.  The interesting thing is that there’s no federal charge yet, and officials seem hesitant to press federal charges at all.  The assailant claims he shot the soldier “because of what they had done to Muslims in the past.”

An FBI-led joint terrorism task force based in the southern United States has been investigating Muhammad since he returned to the United States from Yemen, a law enforcement official said. The suspect had been arrested and jailed in Yemen at some point for using a Somali passport, the official said. The time of that arrest was not immediately clear.

I know it’s much more interesting to investigate the meaning of torture, but at the risk of being unpopular let’s consider what it means not to charge this man with any federal crimes.  Was this a “terrorist act”?  Even if it was not an overt act of terrorism, he killed an American soldier for being an American soldier.  Killing is killing, but this man killed someone in his official capacity as a national officer, paid with federal tax dollars to protect the national public.  Even if this wasn’t terrorism, this act was clearly federal in nature.  

Even federalism arguments totally fail here.  Framers squarely rejected the idea of state level militia and opted instead to pay a national Army.  This was the result of a huge amount of negotiation and several sub-compromises to install this agreement.  There is no state nature at all to an act against a soldier.  “Terrorism” maybe fails, but that makes this an act of war.  Which also fits a federal (not state) crime.

Link to story.

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America’s Death Penalty: In the Neighborhood of “Developing” Nations

America’s death penalty is not in a prestigious neighborhood.  It’s the US and a bunch of “developing” (or, um, waning) nations.  I’m not necessarily in favor of capital punishment, but it’s easy to make an argument that this is the only efficient punishment available in the criminal system, where the alternative is to subsidize criminals’ live w/ tax dollars.  So those countries that rely more on a criminal system rather than just private law have likely fallen back on this when the jails are filled w/ marginally less serious crimes.  Death penalty is one more efficient alternative than tax subsidies for criminals — another is to drop the centralized regulation, let justice fall into private hands, and accept that some areas simply fall outside the gov’t penumbra.  Small gov’t, private law, no death penalty.  Done.  



Daily Dish w/ death penalty comparative statistics.

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