Sentencing Shift Gives New Leverage to Prosecutors … After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties. Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court. “We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.” – NY Times
Dominant Social Theme: Western justice, and especially American justice, is on the wrong track. Changes must be made. The system needs to be nudged. It’s basically OK, but it needs an “adjustment.”
Free-Market Analysis: Part of Western mainstream media propaganda is the “limited hangout.” And the Internet era – the Internet Reformation in fact – is forcing such limited hangouts on a variety of fronts. Whether it is global warming, central banking or criminal justice itself, mainstream media is reluctantly offering revisionist texts that would never have seen the light of day a few decades ago.
This article on the criminal justice system (see excerpt above) is a case in point. It delineates what has gone wrong with American jurisprudence in some detail, and is surprisingly effective in doing so. But like so many articles in this era of “limited hangout” it comes to no real conclusion. It provides a problem but not a solution. It gives us a sense of the difficulties inherent in what has evolved but trails away, leaving us to believe that “changes” should be made without knowing what those changes are.
How bad is American jurisprudence? Well, according to the article, laws – especially at the federal level – are so plentiful and offer such severe outcomes that what was once considered “justice” is now merely horse-trading. Almost any offense can net 20 or 30 years and the system is predisposed toward guilty verdicts if a case actually goes to trial (though fewer and fewer do).
This is not surprising given the system is entirely unbalanced, with legislators, judges, police and prosecutors all on the state payroll. There is an overwhelming bias in the system to create new and more Draconian laws and ways to punish people who disobey. The system is set up to produce such outcomes. Here’s some more from the article:
Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places. Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12.
The decline has been even steeper in federal district courts. Cases like Florida v. Shane Guthrie help explain why. After Mr. Guthrie, 24, was arrested here last year, accused of beating his girlfriend and threatening her with a knife, the prosecutor offered him a deal for two years in prison plus probation. Mr. Guthrie rejected that, and a later offer of five years, because he believed that he was not guilty, his lawyer said.
But the prosecutor’s response was severe: he filed a more serious charge that would mean life imprisonment if Mr. Guthrie is convicted later this year. Because of a state law that increased punishments for people who had recently been in prison, like Mr. Guthrie, the sentence would be mandatory. So what he could have resolved for a two-year term could keep him locked up for 50 years or more.
The decrease in trials has also been a consequence of underfinanced public defense lawyers who can try only a handful of their cases, as well as, prosecutors say, the rise of drug courts and other alternative resolutions. The overloaded court system has also seen comparatively little expansion in many places, making a huge increase in plea bargains a cheap and easy way to handle a near-tripling in felony cases over the past generation …
“Legislators want to make it easy for prosecutors to get the conviction without having to go to trial,” said Rachel Barkow, a professor of law at New York University who studies how prosecutors use their power. “And prosecutors who are starved for resources want to use that leverage. And so now everyone acts with the assumption that the case should end with a plea.”
Here at DB we are occasionally accused of providing critiques of modernity without offering any solutions. So let us – like Richard Nixon – be very clear. The solution to much of the problems of Western society, including the insanity of its current judicial system, is a return to common law.
Notice, we have not capitalized common law. There is Common Law – as developed in Britain – and this sort of Common Law is threaded throughout American and British jurisprudence, even in the modern day.
We are interested in lower case common law. This sort of law was, in a single word, PRIVATE.
It was law as practiced by clans and tribes for thousands, perhaps tens of thousands of years, and involved a decision by the individual himself to seek justice. And that justice was provided by a series of third-party mediators or in some cases was determined by violence – duels or vendettas. “Modern” justice as we know it today has only evolved in the past 200 years or so – really, in the past century.
Today’s justice involves numerous questionable concepts in our view. There is the idea that the individual who has committed a “crime” (which is whatever legislators decide it is) must pay a “debt to society.” Of course there is no such thing as “society.” There are surely agglomerations of individuals – citizens – but the idea that individual citizens feel inconvenienced when someone they do not know drives through a red light is surely questionable, to say the least.
Then there is the idea that the state itself should enforce “laws” and mete out punishment. This, too, is a modern excrescence, one that has evolved in the past century or so as laws have become more plentiful and arcane. The law enforcement industry in the West and especially in America is a logical outcome of this sort of evolution.
The entire system is increasingly irrational and dysfunctional, but that has not slowed its expansion or its increasingly totalitarian hallmarks. Eventually, it will break down entirely. Common law – some sort of private justice – shall spontaneously re-emerge. In the meantime, millions of lives are spoiled and families ripped apart by an increasingly monstrous and obscene modern system.
Powerful interests have created the system as it is. In fact, the erasure of private justice – clan and tribal – is one of the most fundamental acts of the Anglosphere power elite. It is one of the reasons that the great central banking families seek to eradicate the world’s remaining tribes – such as the Afghan Pashtuns and Pakistani Punjabis – because alternative judicial methodologies continually threaten what has been created as well as what has purposefully been thrust down the proverbial memory hole.
Of course, many may object to the idea that modern justice is a kind of dominant social theme. But we can detect plenty of manipulations. Not only is modern jurisprudence a meme, it is one that is going global with the expansion of international courts. And we are old enough to remember the craze in America for TV “Westerns,” which featured over and over the idea that citizen (private) justice was irrational and that only state justice featuring a duly appointed sheriff was rational and trustworthy.
Public state justice – as opposed to private justice – didn’t just occur. Like central banking or global warming, it’s been cultivated over decades and put in place by the usual culprits: think tanks, mainstream media, universities, legislatures and of course, civil and military police.
We’ve often predicted that modern Western justice will be the last meme to crumble as the Internet Reformation continues to make profound changes in the way people view their lives and society. For now, many (most) people literally cannot conceive of a system of private jurisprudence. “Wouldn’t that involve different outcomes for different individuals?”, they ask. This is a kind of ironic question, given the horse-trading that takes place – as the Times article shows – but nonetheless it is asked.
In fact, though it is difficult to believe for many raised on TV police programs and a steady diet of media fodder regarding “justice for criminals,” life itself does not provide much “justice.” Justice in the West, and generally, tends to be capricious and arbitrary.
It is an industry and subject to the laws of supply and demand, with those tasked with enforcing “justice” seeking to convict as many as possible regardless of fairness or even provable guilt. Since it is initiated and imposed by the State, Western justice is bound to be inefficient and unreasonable. How could it be otherwise?
For all these reasons, we have a made a point from time to time to remind those who are gracious enough to stop by here that there is an alternative to the insanity of modern jurisprudence. There is an entire mechanism of private justice – admittedly it includes violence or the threat of violence – that has been worked out over thousands of years and which served people well until very recently.
Vendettas and duels, for instance, are seen as impossibly uncivilized in today’s civil society, but there was a reason for them. The idea that one might be subject to revenge “unto the seventh generation” made the contemplation of criminal activities a somewhat intimidating task. And societies that included dueling within the ambit of the social contract tended to be extremely polite. There was a reason for extended courtesies; people didn’t want to get shot.
The eradication of private justice – the ability of people to decide whether they wish to seek out “justice” for a perceived or real injury of some sort – is one of the great triumphs of the Anglosphere. In just about 100 years, the powers-that-be have vastly expanded penal systems around the world and removed the concept of tribal and clan justice from Western civil society.
The elaborate system of Western jurisprudence that has been developed over the last century is going to undergo significant revision at some point. The vast penal colonies that it develops – especially in America – are simply too expensive. Enforcement and incarceration of millions for decades is not feasible in the long term, unless one wants to return to a kind of slavery – terribly inefficient of itself.
It is a fact that the West’s (and America’s) judicial system is an outcome of a fiat-money system (see other article this issue) and not the result of any logical necessity. Until recently, the ability to print endless amounts of money has fueled the growing totalitarianism of law enforcement. But with the breakdown of the current dollar-reserve economic system, there will be numerous significant changes in the way societies operate and crime is defined and prosecuted. For the West, and especially for America, these changes cannot likely come soon enough.