Suppose that a particular right is both worthy of judicial support and in need of it. The details of codification take on an importance equal to that of the right itself, because the final draft is responsible to the entire legal system as well as to its own message (e.g. laws governing illicit drugs and parole boards).
To whatever degree possible, that code must draw into its wording the following attributes, even if for some rights, justice is left incomplete by virtue of portions of the sought right’s co-obligation being excluded from code:
- Intelligibility both to the general public and to those entrusted with its enforcement.
- Avoidance of subtle messages which encourage what is being criminalized.
- Ease in ferreting out those to be tried without compromising the case as brought to trial.
- Establishment and maintenance of trust in the legal system to adjudicate indiscriminately matters of guilt and innocence.
I. Compare these two laws:
- (Actual) Drug possession is the crime of having one or more illegal drugs in one’s possession, either for personal use, distribution, sale or otherwise.
- (Hypothetical) Suppose instead possession of a drug were legal, but accepted as evidence that, since the drug is worth less than nothing, its possessor had basically contributed (financing, seclusion or otherwise) to racketeers in the illicit drug industry. With that evidence RICO (Racketeer Influenced and Corrupt Organizations Act)or CCES (Continuing Criminal Enterprise Statute) charges are brought.
- Intelligibility comes easily with either statute since possession is something we have all understood since our first rattle.
- The current law subtly attached value to illicit drugs even beyond their price. After all some are willing to risk years in prison for what would already cost them lots of money. Merely because the drug trade attaches value to their product, why must the legal system confirm that near sightedness. The alternative does not.
Currently the drug is confiscated to keep this prized item away from the public. The alternative would confiscate it merely as evidence without concern for exactly how worth or worthless it may be. Journalism has been breaking away from such messages but has a way to go. First there was $1,000,000,000 in heroin, then heroin with a street value of $1,000,000,000. Perhaps someday it will be heroin with an addicted market value of $1,000,000,000.
- In either case, ascertaining possession can run into the Fourth Amendment’s protection from unreasonable search and seizure. When police profile towards a possible search, they face those who respect a privacy blended in with those who respect a cache.
- In some cases, discovering who exactly possesses the illicit drug strains trust in the legal system. This alternative would inherit all that.
II. Compare these sentencing approaches in limiting a particular crime:
- Focus on discouraging repetition by the criminal him or herself.
- Disrupt the enticing effects that seem to come with successful crimes.
- Get out from between the convicted and a personal encounter with the results of his or her crime.
Many parole boards blunder in imagining that it is all about (1). They feel uncomfortable in retaining someone whom they believe to be contrite to the point of being of no danger to the public. Other boards realize that the sentencing and the sentence itself will be watched by some who are too naive to avoid the same pitfall. They recognize a need for something else (2), but to promote the laws effectiveness, they affect an empowerment which is lacked and isn’t even necessary.
Instead a social contract must be recognized as having existed, so that together with (1), an adjunct or minimal sentence would allow and insist that a prisoner actually restore good standing in society by undoing some damage done by the crime’s being misconstrued (2). The thrust of this (3) is to keep parole boards out of the process until they can no longer snatch defeat from the hands of a successful sentence: that is until a modicum of the crime’s future, negative impact has been neutralized. Any sense of being punished must redound to the crime and the choice to commit it.
Furthermore, jurors would be less likely to misconstrue the directive, “innocent until proven guilty,” because (3) brings attention to all those innocents with similar needs that might be seduced into crime by an acquittal. (e.g. Casey Anthony acquitted of murder and manslaughter July 5, 2011). Instead of “innocent until proven guilty,” not knowing should be a requirement for serving on a jury; and the voting should be between innocent, guilty and too uncertain. In the final vote too uncertain means innocent, and would coordinate with the current directive. This less distorting approach would not play with people’s beliefs.
III. Proving motive is part of many cases, but can be overdone. Compare the following takes on a motive for the commission of a crime.That as generally accepted by the public.That as perceived by the criminal, him or herself (perhaps as 1). An underlying motive that led to 1 and 2, and then disappeared in the distraction which they provided.In a court of law, one motive towards conviction suffices; but to fathom and unravel the commission of a crime, everything counts, perhaps putting us on a fool’s errand. For example:Bernard Madoff:
- Financial greed.
- Financial and temporal greed: The crime began as a cover up: he had made some inopportune investments with client money and could not imagine further reversals. What he embezzled to cover up his misjudgment was nothing next to what he would embezzle to cover up the crime itself. People often do things for more than one reason. My guess is that he would have given up the posh fulfillment of his financial ambitions in a heart beat; if it hadn’t been part of his facade or, of course, had there been a heart to beat and be there to share his lonely cell.
- Who knows.
A history of personal difficulties which became fixated on Representative Giffords and her policies.
- Political issues with Representative Gabrielle Giffords and her handling of them. Gaining a platform on which to express those policies.
- He was fighting a losing battle with people who, much as I now do, interpreted him but with incriminating tales pinned as on a donkey. The quest may itself be a part of the problem, so that in a pragmatic sense, there really were no motives.
IV Miranda Warning: Judicial genius or horrific English
Most nations got this right but we (the USA) did get it first. Could this warning have been any more intimidating and basically inane than it is with its overbearing presumption of guilt: “anything [said] can and will be used against [the defendant] in a court of law.” Was this what Earl Warren’s majority had in mind? Does its veiled threat awaken a suspect to prize the moment or simply intimidate him or her into the distractions of despair?
V The Fifth
To the credit of this country’s founding fathers, this is how the fifth amendment was worded to protect us from self-incrimination: “No person shall . . . be compelled in any criminal case to be a witness against himself . . . .”
This has been interpreted to allow for witness’s refusal to testify when such testimony may incriminate him. The the tenor of most refusals is of incriminating evidence held back:
“I refuse to answer on the grounds that it may tend to incriminate me.”
What is there were no such crime, but merely an intrusion upon fifth-amendment privilege by an overly zealous attorney.
“I refuse to answer on the grounds that my words might be misinterpreted as to incriminate me.”