NationStates Jolt Archive

Is the public at large too stupid to understand procedural justice? This is my question to you, as part of said public at large.

From wiki:
Procedural justice (http://en.wikipedia.org/wiki/Procedural_justice) refers to the idea of fairness in the processes that resolve disputes and allocate resources.

Substantive justice, on the other hand, is often regarded as 'true' justice. As in, you commit a crime, you are punished for it. How you GET to that point (being punished for your crime) is not as important as the fact that said punishment happens.

It's easy enough to point at a case and say, 'Look, he's guilty'. It's even easier to decry an acquittal when all the facts point to guilt. Often, the media, and the public, will complain about 'technicalities' in these cases, with the general intimation that 'technicalities' (ie: procedural issues) prevent justice from being done.

Yet procedural justice, things like due process, or the prevention of unreasonable searches and seizures at the hands of the police, etc, are considered fundamental to common law judicial systems.

What are YOUR thoughts on the interplay between substantive justice and procedural justice?

Is the public at large too stupid to understand procedural justice? This is my question to you, as part of said public at large.
No, we are very intelligent, and only make decisions after weighing all the evidence, rational thought, and not a little soul-searching.

From wiki:
Procedural justice (http://en.wikipedia.org/wiki/Procedural_justice) refers to the idea of fairness in the processes that resolve disputes and allocate resources.

Substantive justice, on the other hand, is often regarded as 'true' justice. As in, you commit a crime, you are punished for it. How you GET to that point (being punished for your crime) is not as important as the fact that said punishment happens.

It's easy enough to point at a case and say, 'Look, he's guilty'. It's even easier to decry an acquittal when all the facts point to guilt. Often, the media, and the public, will complain about 'technicalities' in these cases, with the general intimation that 'technicalities' (ie: procedural issues) prevent justice from being done.

Yet procedural justice, things like due process, or the prevention of unreasonable searches and seizures at the hands of the police, etc, are considered fundamental to common law judicial systems.

What are YOUR thoughts on the interplay between substantive justice and procedural justice?
tl;dr

Perhaps to highlight the issue even more dramatically...

Procedural fairness would disallow a confession gotten through torture.

Substantive fairness (assuming the guilt was real) wouldn't care how the confession came about.

No, we are very intelligent, and only make decisions after weighing all the evidence, rational thought, and not a little soul-searching.

tl;dr

That was fucking brilliant :D

Thank you :)

Oh it's very simple. We like substantive justice because it's black and white and deep down, most of us are bastards whose idea of a perfect world is just killing them all and letting the deity of choice sorting them out.

Procedural justice sounds more like gaming the system where the guilty get off because someone forgot to cross a T and dot an I...

... Unless of course it's US in the hot seat, at which case you better believe we love us some procedural justice and will scream bloody murder if those Ts ain't crossed perfectly.

No, we are very intelligent, and only make decisions after weighing all the evidence, rational thought, and not a little soul-searching.

tl;dr

If we could give rep points on this board I would give you rep points but we can't give rep points here or else I would give you some but I can't.

We cannot be certain of substantive justice without procedural justice, that would be my view.

... Unless of course it's US in the hot seat, at which case you better believe we love us some procedural justice and will scream bloody murder if those Ts ain't crossed perfectly.

That's often how I explain it to people...when it comes to some heinous crime it's easy for people to complain about the process (just send the bastard to jail already!) but do we really want to live in a place where the cops can essentially do whatever they want, whenever they want, and you have no recourse if what they do ends up in you being charged for something? Do we really want to get rid of juries, or burdens of proof?

Would we really be okay with the planting of evidence as long as it led to a 'just' conviction? Really? Even if we were the targets of such 'planting'?

Procedural Justice is a tool, a methodology that allows us to refine our pursuit of Substantive Justice.

One approaches the other asymptotically. One will never perfectly render the other, but its a worthy goal to try.

Unless the suspect is a black guy. 'Cause, you know...

I think this is why we have minimums and maximums, to preserve some level of balance between the two. The idea of "yes you committed a crime and need to pay for that, but we can consider aggravating and mitigating factors to determine just how much you should be punished".

I mean, from a technical perspective, picking the pocket of someone and stealing 5 bucks because you can, and stealing a 5 dollar loaf of bread because you're starving are, theoretically, the same crime. And from some sense of justice, should be punished equally. On the other, maybe we should allow some leverage here.

On the other hand, I'd just prefer to fix the social problems we have already, so crime is never a necessity, then we can just avoid the question more or less all together.

That's often how I explain it to people...when it comes to some heinous crime it's easy for people to complain about the process (just send the bastard to jail already!) but do we really want to live in a place where the cops can essentially do whatever they want, whenever they want, and you have no recourse if what they do ends up in you being charged for something? Do we really want to get rid of juries, or burdens of proof?

Would we really be okay with the planting of evidence as long as it led to a 'just' conviction? Really? Even if we were the targets of such 'planting'?

the view is always easy from the cheap seats. It's the "will never happen to me" perspective. Cops and prosecutors don't go after innocent people, so if the cops arrest you, you must be guilty. And since you're guilty you should pay. We don't have to worry about these people's rights because...well, they're criminals. If they weren't criminals, they wouldn't have gotten arrested.

Just a hindrance to your ever so friendly public servants...

...like me :)

But seriously, the application also applies to administration in a broader whole, in the US Goldberg v. Kelly and Mathews v. Eldridge both explored procedural and substantive due process. In the Goldberg case, for instance, Goldberg was on welfare, and was pulled off by officials and given a hearing at a future date. The plaintiff argued that if the welfare was suspended, he would not be able to make the hearing because he didn't have the resources to make it, and thus was being deprived of Procedural due process.

Similarly in Mathews, the plaintiff was pulled off of Social Security, as a Doctor determined him to no longer be disabled and was not offered, as unlike the Goldberg case in which the determination to remove Goldberg from welfare was an evidenciary decision, Mathews was removed from Social Security as a result of a technical decision. It also developed the Mathews test:
1. The interests of the individual in retaining their property (i.e., benefits), and the injury threatened by the official action
2. The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication
3. The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;

I think this is why we have minimums and maximums, to preserve some level of balance between the two. The idea of "yes you committed a crime and need to pay for that, but we can consider aggravating and mitigating factors to determine just how much you should be punished".

I mean, from a technical perspective, picking the pocket of someone and stealing 5 bucks because you can, and stealing a 5 dollar loaf of bread because you're starving are, theoretically, the same crime. And from some sense of justice, should be punished equally. On the other, maybe we should allow some leverage here.

On the other hand, I'd just prefer to fix the social problems we have already, so crime is never a necessity, then we can just avoid the question more or less all together.

Aren't you the people that established the death penalty for mixing fabrics?

Aren't you the people that established the death penalty for mixing fabrics?

don't even ask what we do if my ox falls into a hole in your lawn.

Procedural Justice is a tool, Oh yeah? And Substantive Justice is all up in your grill calling YOU a tool. Whatcha gonna do about it, huh? Tool? Yeah, that's what I thought. Punk ass motherfucker!

a methodology that allows us to refine our pursuit of Substantive Justice.

One approaches the other asymptotically. One will never perfectly render the other, but its a worthy goal to try. Oh, um. Ok, sorry about that.

Unless the suspect is a black guy. 'Cause, you know... Do you think that procedural justice is more there to protect minorities? Serious question.

I think this is why we have minimums and maximums, to preserve some level of balance between the two. The idea of "yes you committed a crime and need to pay for that, but we can consider aggravating and mitigating factors to determine just how much you should be punished".

I mean, from a technical perspective, picking the pocket of someone and stealing 5 bucks because you can, and stealing a 5 dollar loaf of bread because you're starving are, theoretically, the same crime. And from some sense of justice, should be punished equally. On the other, maybe we should allow some leverage here. Wouldn't substantive justice flying solo have some amount of proportionality built into it thought? So in the first instance, the punishment should match the kind of crime it was, ditto for the second crime...rather than some one-fits-all-theft-under sort of punishment? Do we really need procedural protections in place if we can find proportional substantive justice?

What I mean is...say we found out about the crime because a cop was having a bad day and randomly decided to stop a punk-ass teenager...serached them for shits and giggles, found the stolen money or the loaf of bread(assuming it would be obvious that it was stolen)...if we could still guarantee that this 'crime' would be dealt with proportionally, what's wrong with letting cops randomly search people? I mean...if you've done nothing wrong, you have nothing to fear...


On the other hand, I'd just prefer to fix the social problems we have already, so crime is never a necessity, then we can just avoid the question more or less all together.
Communist. Shut it.

don't even ask what we do if my ox falls into a hole in your lawn.

...that sounds so dirty.

Come to think of it, Leviticus probably has something to say about your "ox" falling into a "hole" in his "lawn," too. ;)

Aren't you the people that established the death penalty for mixing fabrics?

Ugh.

Please, the jew jokes are OH so hilarious, but could you not dirty up my thread with their endless banality, please?

Do you think that procedural justice is more there to protect minorities? Serious question.

I think it serves to protect any who may be at risk for discrimination in the application of the law, not just minorities, but all those with less wherewithal.

Moreso, though, I think procedural justice serves to protect the law itself, or more centrally, its credibility. The law gains efficacy when it polices not only the populace, but itself. By being willing to apply restraints, policies, and even penalties to its own agents, it gains the potency of trust, or at least the attempt thereof.

Would we really be okay with the planting of evidence as long as it led to a 'just' conviction? Really? Even if we were the targets of such 'planting'?
That's the problem though, a number of people would, as long as it ain't them, or anyone they know. It's easy to harden your heart and say, "They must be guilty of SOMETHING, else they wouldn't be here" (Port guns...) when you do not know, nor ever will know, these people. And again, it's must easier to see the world in a black and white way where those are the bad guys, and they should be smited and these are the good guys, and they should do the smiting. The actual shades of gray that exist in the world is rather messy and the idea that we need to keep the system fair, which means complicated, in order to adjust and acknowledge those shades of gray seems to be... hmm... causing miscarriages of justice.

Ugh.

Please, the jew jokes are OH so hilarious, but could you not dirty up my thread with their endless banality, please?

But, there are only like three other threads where I could be doing it instead!

Fine. Your thread, your call.

Neo Art was doing it worse than me...

Ugh.

Please, the jew jokes are OH so hilarious, but could you not dirty up my thread with their endless banality, please?

geez, who jewed in your cornflakes this morning?

I think it serves to protect any who may be at risk for discrimination in the application of the law, not just minorities, but all those with less wherewithal.

Moreso, though, I think procedural justice serves to protect the law itself, or more centrally, its credibility. The law gains efficacy when it polices not only the populace, but itself. By being willing to apply restraints, policies, and even penalties to its own agents, it gains the potency of trust, or at least the attempt thereof. So, to paraphrase the famous quote in R. v. Sussex..."Not only must Justice be done; it must also be seen to be done."?

Yet isn't it also true that procedural justice can actually harm the credibility of the judicial system when the public feels, as it did in the original OJ case, or in the Rodney King debacle...that procedures or 'technicalities' actually interfered with justice being done?

Is it just that procedural justice is misrepresented or misunderstood? Or is there some validity to the criticism?

geez, who jewed in your cornflakes this morning?

Good point, but due process is a spectrum, isn't it? Doesn't it have to take into account the burdens of providing process in contrast with the risk of to the interests involved?

But, there are only like three other threads where I could be doing it instead!

Fine. Your thread, your call.

Neo Art was doing it worse than me...
Danke.
geez, who jewed in your cornflakes this morning?
Shut it.
Good point, but due process is a spectrum, isn't it? Doesn't it have to take into account the burdens of providing process in contrast with the risk of to the interests involved?
You amuse me greatly.

So, to quote R. v. Sussex..."Not only must Justice be done; it must also be seen to be done."?

Yet isn't it also true that procedural justice can actually harm the credibility of the judicial system when the public feels, as it did in the original OJ case, or in the Rodney King debacle...that procedures or 'technicalities' actually interfered with justice being done?

I think enough people are vocal on that point that it is pervasive, perhaps even majorative. But I'm of the camp that would rather 3 guilty go free than 1 innocent be punished.

Part of it, I think, may be perspective. When one is the accused, one may be gifted with a striking new appreciation of the ways "technicalities" not only protect the innocent, but make sure that the State, the most powerful actor in this drama, is playing by its own rules.


Is it just that procedural justice is misrepresented or misunderstood? Or is there some validity to the criticism?

I think it may be misunderstood in a broad sense, but I have no doubt there are many, too many, specific cases where a skillful defender (and/or perpetrator) makes distorted but successful use of the protections within procedural law.

Its an ongoing process, I truly do like the word "refinement" as applied here. It hopefully gets better, but there is far yet to go.

I think enough people are vocal on that point that it is pervasive, perhaps even majorative. But I'm of the camp that would rather 3 guilty go free than 1 innocent be punished.

Part of it, I think, may be perspective. When one is the accused, one may be gifted with a striking new appreciation of the ways "technicalities" not only protect the innocent, but make sure that the State, the most powerful actor in this drama, is playing by its own rules. Woowoo...so, the state as a powerful actor, and the fundamental reality that there is a power imbalance...this is the argument made by many proponents of procedural justice. The argument that the state has unlimited resources and can steamroll you...and procedural protections are the only thing that stop that from happening.

Yet it seems to me that quite often, there is enormous sympathy out there for the 'state', as though the state is often seen as a sort of underdog. Poor cops who fucked up an investigation, resulting in a case being tossed out of court...prosecutors on the wrong track having to withdraw charges, or acquittals being returned because the slick defence lawyer charmed the jury...

It just boggles my mind that people can not stop and think about just how powerful the forces arrayed against an accused truly are, in comparison to the accused's ability to mount a defence. Most defendants are NOT millionaires who can bring in $10,000/an appearance expert witnesses etc. Where is the common man's sympathy for the common man?

No, we are very intelligent, and only make decisions after weighing all the evidence, rational thought, and not a little soul-searching.

tl;dr
:hail: :D

Oh it's very simple. We like substantive justice because it's black and white and deep down, most of us are bastards whose idea of a perfect world is just killing them all and letting the deity of choice sorting them out.

Procedural justice sounds more like gaming the system where the guilty get off because someone forgot to cross a T and dot an I...

... Unless of course it's US in the hot seat, at which case you better believe we love us some procedural justice and will scream bloody murder if those Ts ain't crossed perfectly.
This.^

We cannot be certain of substantive justice without procedural justice, that would be my view.
But also this^

Because of:

I think it serves to protect any who may be at risk for discrimination in the application of the law, not just minorities, but all those with less wherewithal.

Moreso, though, I think procedural justice serves to protect the law itself, or more centrally, its credibility. The law gains efficacy when it polices not only the populace, but itself. By being willing to apply restraints, policies, and even penalties to its own agents, it gains the potency of trust, or at least the attempt thereof.
This.^

There. That was easy. :D

You have this down to a science, Mur'v :D

Woowoo...so, the state as a powerful actor, and the fundamental reality that there is a power imbalance...this is the argument made by many proponents of procedural justice. The argument that the state has unlimited resources and can steamroll you...and procedural protections are the only thing that stop that from happening.

Frankly, I think there's some truth to that. I'm not saying all prosecutors are overzealous, or callous to the accused, but there is a non-zero number of people wrongly convicted, and procedural justice is an attempt to reduce that number. Prosecutors and police enforce rules; part of that is obeying them.


Yet it seems to me that quite often, there is enormous sympathy out there for the 'state', as though the state is often seen as a sort of underdog. Poor cops who fucked up an investigation, resulting in a case being tossed out of court...prosecutors on the wrong track having to withdraw charges, or acquittals being returned because the slick defence lawyer charmed the jury...

It just boggles my mind that people can not stop and think about just how powerful the forces arrayed against an accused truly are, in comparison to the accused's ability to mount a defence. Most defendants are NOT millionaires who can bring in $10,000/an appearance expert witnesses etc. Where is the common man's sympathy for the common man?

I think the common man, probably myself included, habitually associates the self with the "innocent". The accused are, I think reflexively, often removed from that cognitive category. Thus, we detach ourselves from them, they become rendered as "other"...until its us.

I hope Neo Art didn't wander out of the thread, because his observations will be vastly more cogent and experienced than mine.

But he's Jewish, so he's probably putting a Christian baby in tupperware for lunch tomorrow.

Yet it seems to me that quite often, there is enormous sympathy out there for the 'state', as though the state is often seen as a sort of underdog. Poor cops who fucked up an investigation, resulting in a case being tossed out of court...prosecutors on the wrong track having to withdraw charges, or acquittals being returned because the

This is my biggest pet peeve. No one likes to see the guilty walk, but in our system, you actually have to prove something. If the cops beat a confession out of you (happens in Chicago more than Id like to admit) or the Prosecution is incompetent and its witnesses consistantly contradict each other, well, sometimes thats life.

I think it comes down to the principle of "Better to let 1000 guilty walk free than convict one innocent". Some of us are consistant. But most people are fine with convicting that one innocent as long as that innocent isnt them, and are incapable of seeing how the system that sometimes lets the guilty offis protecting them immensly.

But he's Jewish, so he's probably putting a Christian baby in tupperware for lunch tomorrow.

Blood libel ftw.

I'd like to hear from people who do understand procedural guarantees, that would prefer substantive justice not be so fettered. I know there are people like this on NSG...

That's often how I explain it to people...when it comes to some heinous crime it's easy for people to complain about the process (just send the bastard to jail already!) but do we really want to live in a place where the cops can essentially do whatever they want, whenever they want, and you have no recourse if what they do ends up in you being charged for something? Do we really want to get rid of juries, or burdens of proof?

Would we really be okay with the planting of evidence as long as it led to a 'just' conviction? Really? Even if we were the targets of such 'planting'?

Who says that justice has to be dispensed by the police? Check the scripts of numerous Western cowboy movies.

We have numerous sheriffs in those movies holding off the lynch mob, while he upholds procedural justice, while the mob cries for substantive justice (hell, there's not even a confession, they just think he's guilty!).

Procedural fairness would disallow a confession gotten through torture.

Substantive fairness (assuming the guilt was real) wouldn't care how the confession came about.

It's a tricky one - these safeguards are there for a reason. But if some crooked cop managed to get very compelling evidence, but from a breach of one of these safeguards, to finally convict a serial rapist and murderer (where there is no other available evidence incriminating this man), it would be very sad if the court disqualified the evidence and the man could go free, even though he was obviously guilty. Fortunately, I would imagine such a case would be incredibly rare.

Who says that justice has to be dispensed by the police? Check the scripts of numerous Western cowboy movies.

We have numerous sheriffs in those movies holding off the lynch mob, while he upholds procedural justice, while the mob cries for substantive justice (hell, there's not even a confession, they just think he's guilty!).

While ‘mob justice’ or vigilantism is a sexy concept in US mythology and media, it’s generally understood that it’s not the sort of system anyone in the new West actually wants.

So who says justice has to be dispensed by the police? We, as a society, have made our preference abundantly clear.

While ‘mob justice’ or vigilantism is a sexy concept in US mythology and media, it’s generally understood that it’s not the sort of system anyone in the new West actually wants.

So who says justice has to be dispensed by the police? We, as a society, have made our preference abundantly clear.

What about conditions where there is no time for niceness and fairness and procedural justice? Say, in cases of self-defense, where there is an imminent threat to your life?

By defending yourself, possibly with lethal consequences, are you not serving as judge, jury, appeals court, and possibly executioner?

And can you stop mob justice? It may not be desireable, but can you stop it?

It's a tricky one - these safeguards are there for a reason. But if some crooked cop managed to get very compelling evidence, but from a breach of one of these safeguards, to finally convict a serial rapist and murderer (where there is no other available evidence incriminating this man), it would be very sad if the court disqualified the evidence and the man could go free, even though he was obviously guilty. Fortunately, I would imagine such a case would be incredibly rare.

It should be pointed out of course that procedural guarantees vary greatly from nation to nation...in Canada, prior to the implementation of the Charter of Rights and Freedoms in 1982, substantive justice was considered much more important than procedural justice. In fact, almost NO evidence would be excluded regardless of the manner in which it was discovered...including confessions procured through torture. Even still, our procedural protections are considerably weaker than what you’ll find in the US, which is somewhat on the extreme end of the spectrum in favour of procedural protections. The Canadian courts can find that there have been fundamental procedural violations, yet will not automatically exclude that evidence unless doing so would bring the ‘administration of justice into disrepute’. Of course, that is a socially contextual concept...and Canadians tend to have much more respect or trust in authority than our southern neighbours...which is not necessarily a trait I admire in ourselves.

Point being...cops can still get away with some pretty egregious behaviour in certain cases in spite of procedural protections...and some have argued that the police have in fact simply become better at masking their violations.

It should be pointed out of course that procedural guarantees vary greatly from nation to nation...in Canada, prior to the implementation of the Charter of Rights and Freedoms in 1982, substantive justice was considered much more important than procedural justice. In fact, almost NO evidence would be excluded regardless of the manner in which it was discovered...including confessions procured through torture. Even still, our procedural protections are considerably weaker than what you’ll find in the US, which is somewhat on the extreme end of the spectrum in favour of procedural protections. The Canadian courts can find that there have been fundamental procedural violations, yet will not automatically exclude that evidence unless doing so would bring the ‘administration of justice into disrepute’. Of course, that is a socially contextual concept...and Canadians tend to have much more respect or trust in authority than our southern neighbours...which is not necessarily a trait I admire in ourselves.

Point being...cops can still get away with some pretty egregious behaviour in certain cases in spite of procedural protections...and some have argued that the police have in fact simply become better at masking their violations.

I find this surprising in light of all the hype I hear on this forum about how much the US legal system sucks, how bad the US is, and especially during the Stephistan days, how great the Canadian legal system is.

What about conditions where there is no time for niceness and fairness and procedural justice? Say, in cases of self-defense, where there is an imminent threat to your life?

By defending yourself, possibly with lethal consequences, are you not serving as judge, jury, appeals court, and possibly executioner?

And can you stop mob justice? It may not be desireable, but can you stop it?
The law is rarely about stopping anything...it is about reacting to what has happened. 'Deterrance' is not actually the stated intention of most laws.

Self-defence is written into the commonlaw, and has been upheld again and again in almost every system of laws in existence. It is not accurate to label this as a violation of procedural justice. You are not judging someone's guilt, or passing judgment on them...you are protecting yourself. If you DID calculatedly take the time to judge someone's guilt, pass judgment and sentence upon them, resulting in their death...well, you'd likely have satisfied the mens rea and actus reus of first degree murder.

Procedural and substantive justice in a case of self-defence resulting in someone's death would apply to your actions after the fact, evaluating whether they were appropriate, proportional, and justified.

The law is rarely about stopping anything...it is about reacting to what has happened. 'Deterrance' is not actually the stated intention of most laws.

hence why law sucks - it's not much good to a murder victim, and you can't undo being raped, no matter how many years the perpetrator gets

I find this surprising in light of all the hype I hear on this forum about how much the US legal system sucks, how bad the US is, and especially during the Stephistan days, how great the Canadian legal system is.

That's because people don't generally really understand the legal system in place in the country in which they live.

Although one could argue that there is more substantive (real) justice in Canada than in the US...however when it comes to the protection of civil liberties, I have developed great respect for the domestic actions of various US organisations...in matters OTHER than gun control.

The optimal justice system is exclusively compensatory rather than punitive.

That's because people don't generally really understand the legal system in place in the country in which they live.

Although one could argue that there is more substantive (real) justice in Canada than in the US...however when it comes to the protection of civil liberties, I have developed great respect for the domestic actions of various US organisations...in matters OTHER than gun control.

Don't you have a Constitution, where civil rights are enumerated to some extent?

hence why law sucks - it's not much good to a murder victim, and you can't undo being raped, no matter how many years the perpetrator gets

Yes. Law sucks because it does not do what it never intended to do in the first place...which is stop crimes from happening.

Or perhaps, law makers understand that words alone won't stop people from doing harm to one another, and that is why we have other systems in place (including education) to try to deal with the causes of crime.

Laws simply govern how we deal with various situations...you need to understand the reactive nature of law before you start complaining about it. Your argument is akin to blaming a mammogram for not preventing breast cancer.

Don't you have a Constitution, where civil rights are enumerated to some extent?

Yes we do, in particular, the Charter of Rights and Freedoms. Yet just like in your country, there are various rights being balanced, and competing issues at stake. Always, there is a balance sought between individual liberties and communal needs...in recent years in the US, the 'need' for security has resulted in the sharp degredation of certain fundamental civil liberties. There are no bright line rules in constitutional interpretation that prevent such things from happening...quite often popular sentiment or philosophies of the time influence how constitutional principles are going to be applied when balancing rights.

The optimal justice system is exclusively compensatory rather than punitive.

Monetary compensation for murder, no jail time needed?

We have a civil system for compensatory 'justice' in addition to criminal sanctions...what compelling reasons would you have for make the former exclusive?

Yes. Law sucks because it does not do what it never intended to do in the first place...which is stop crimes from happening.

Or perhaps, law makers understand that words alone won't stop people from doing harm to one another, and that is why we have other systems in place (including education) to try to deal with the causes of crime.

Laws simply govern how we deal with various situations...you need to understand the reactive nature of law before you start complaining about it. Your argument is akin to blaming a mammogram for not preventing breast cancer.

The average person in the US expects the legal system and the police to protect them.

According to Warren v. District of Columbia, the minions of the state are under no real responsibility to do so for individuals. So it's just an illusion.

The police will show up after the killing or rape, and if they're very lucky and hardworking, maybe someone will be convicted.

The average person in the US expects the legal system and the police to protect them.
Source.

Frankly I do not believe that the average person in the US is so mind-numbingly stupid as to believe that the legal system or the police can actually jump in like superheroes and prevent crime from happening.

Monetary compensation for murder, no jail time needed?
correct

We have a civil system for compensatory 'justice' in addition to criminal sanctions...what compelling reasons would you have for make the former exclusive?

Compensatory justice is the most compatible- and quite possibly the only allowable justice system - in a free, humane society where the individual and none else is sovereign.

In a free society where the individual is sovereign:

1.) There are no such things as "crimes against the public", and all justice is contractual between individuals (or more commonly, groups of individuals)
2.) The accused can be neither convicted nor sentenced without his consent.
3.) Only the victimized individual, and never a state, can bring charges against the accused

From these axioms of the free society of individual sovereignty only a compensatory justice system is plausible.

Source.

Frankly I do not believe that the average person in the US is so mind-numbingly stupid as to believe that the legal system or the police can actually jump in like superheroes and prevent crime from happening.

Anyone who calls the police is expecting them to protect them. I'm surprised you haven't read Warren v. District of Columbia.

In a previous case, Ruth Brunell called the police on 20 different occasions to plead for protection from her husband. He was arrested only one time. One evening Mr. Brunell telephoned his wife and told her he was coming over to kill her. When she called the police, they refused her request that they come to protect her. They told her to call back when he got there. Mr. Brunell stabbed his wife to death before she could call the police to tell them that he was there. The court held that the San Jose police were not liable for ignoring Mrs. Brunell's pleas for help. Hartzler v. City of San Jose, 46 Cal. App. 3d 6 (1st Dist. 1975).
[Those of you in the Silicon Valley, please note what city this happened in!]

Consider the case of Linda Riss, in which a young woman telephoned the police and begged for help because her ex-boyfriend had repeatedly threatened "If I can't have you no one else will have you, and when I get through with you, no-one else will want you." The day after she had pleaded for police protection, the ex-boyfriend threw lye in her face, blinding her in one eye, severely damaging the other, and permanently scarring her features. "What makes the City's position particularly difficult to understand," wrote a dissenting opinion in her tort suit against the City, "is that, in conformity to the dictates of the law, Linda did not carry any weapon for self-defense. Thus, by a rather bitter irony she was required to rely for protection on the City of New York which now denies all responsibility to her." Riss v. New York, 240 N.E.2d 860 (N.Y. 1968). [Note: Linda Riss obeyed the law, yet the law prevented her from arming herself in self-defense.]

Warren v. District of Columbia is one of the leading cases of this type. Two women were upstairs in a townhouse when they heard their roommate, a third woman, being attacked downstairs by intruders. They phoned the police several times and were assured that officers were on the way. After about 30 minutes, when their roommate's screams had stopped, they assumed the police had finally arrived. When the two women went downstairs they saw that in fact the police never came, but the intruders were still there. As the Warren court graphically states in the opinion: ``For the next fourteen hours the women were held captive, raped, robbed, beaten, forced to commit sexual acts upon each other, and made to submit to the sexual demands of their attackers.'' The three women sued the District of Columbia for failing to protect them, but D.C.'s highest court exonerated the District and its police, saying that it is a ``fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen.'' Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of Ap., 1981).

The seminal case establishing the general rule that police have no duty under federal law to protect citizens is DeShaney v. Winnebago County Department of Social Services (109 S.Ct. 998, 1989). Frequently these cases are based on an alleged ``special relationship'' between the injured party and the police. In DeShaney the injured party was a boy who was beaten and permanently injured by his father. He claimed a special relationship existed because local officials knew he was being abused, indeed they had ``specifically proclaimed by word and deed [their] intention to protect him against that danger,'' but failed to remove him from his father's custody. ("Domestic Violence -- When Do Police Have a Constitutional Duty to Protect?'' Special Agent Daniel L. Schofield, S.J.D., FBI Law Enforcement Bulletin, January, 1991.)

The Court in DeShaney held that no duty arose because of a "special relationship,'' concluding that Constitutional duties of care and protection only exist as to certain individuals, such as incarcerated prisoners, involuntarily committed mental patients and others restrained against their will and therefore unable to protect themselves. ``The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.'' (DeShaney v. Winnebago County Department of Social Services, 109 S.Ct. 998 (1989) at 1006.)

About a year later, the United States Court of Appeals interpreted DeShaney in the California case of Balistreri v. Pacifica Police Department. (901 F.2d 696 9th Cir. 1990) Ms. Balistreri, beaten and harassed by her estranged husband, alleged a "special relationship'' existed between her and the Pacifica Police Department, to wit, they were duty-bound to protect her because there was a restraining order against her husband. The Court of Appeals, however, concluded that DeShaney limited the circumstances that would give rise to a "special relationship'' to instances of custody. Because no such custody existed in Balistreri, the Pacifica Police had no duty to protect her, so when they failed to do so and she was injured they were not liable.

A citizen injured because the police failed to protect her can only sue the State or local government in federal court if one of their officials violated a federal statutory or Constitutional right, and can only win such a suit if a "special relationship'' can be shown to have existed, which DeShaney and its progeny make it very difficult to do. Moreover, Zinermon v. Burch (110 S.Ct. 975, 984 1990) very likely precludes Section 1983 liability for police agencies in these types of cases if there is a potential remedy via a State tort action.

Many states, however, have specifically precluded such claims, barring lawsuits against State or local officials for failure to protect, by enacting statutes such as California's Government Code, Sections 821, 845, and 846 which state, in part: "Neither a public entity or a public employee [may be sued] for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals.''

So, to paraphrase the famous quote in R. v. Sussex..."Not only must Justice be done; it must also be seen to be done."?

Yet isn't it also true that procedural justice can actually harm the credibility of the judicial system when the public feels, as it did in the original OJ case, or in the Rodney King debacle...that procedures or 'technicalities' actually interfered with justice being done?

Is it just that procedural justice is misrepresented or misunderstood? Or is there some validity to the criticism?

This one comes to the forefront for me. I mean we spend so much time and effort on exactly how those right have to be read to you. You must read them, you must not be interrupted. Even if you know them all by heart you can't just say them.

The other one that comes to mind is the right to privacy. My favorite set of words. Does the suspect have a reasonable right to expect privacy?


I think we get bogged down too often in the nitty gritty.

The average person in the US expects the legal system and the police to protect them.

According to Warren v. District of Columbia, the minions of the state are under no real responsibility to do so for individuals. So it's just an illusion.

The police will show up after the killing or rape, and if they're very lucky and hardworking, maybe someone will be convicted.

Your characterization of Warren v. District of Columbia (http://gunrightsalert.com/documents/Warren_v._District_of_Columbia_444_A_2d_1.pdf), 444 A.2d. 1 (D.C. 1981), is technically accurate, but a bit misleading and the lessons you draw from it are a bit extreme.

As the court explained in Warren, it is universally accepted by the courts that the "government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen." Thus, "official police personnel and the government employing them are not generally liable to victims of criminal acts for failure to provide adequate police protection."

The reasoning behind this, however, is:

A publicly maintained police force constitutes a basic governmental service provided to benefit the community at large by promoting public peace, safety and good order. The extent and quality of police protection afforded to the community necessarily depends upon the availability of public resources and upon legislative or administrative determinations concerning allocation of those resources. The public, through its representative officials, recruits, trains, maintains and disciplines its police force and determines the manner in which personnel are deployed. At any given time, publicly furnished police protection may accrue to the personal benefit of individual citizens, but at all times the needs and interests of the community at large predominate. Private resources and needs have little direct effect upon the nature of police services provided to the public. Accordingly, courts have without exception concluded that when a municipality or other governmental entity undertakes to furnish police services, it assumes a duty only to the public at large and not to individual members of the community. (internal citations omitted).

Thus, the police are obligated to protect the community as a whole, and not particular individuals. This is far from unreasonable.

On the other hand, a more extreme and unsettling related holding is that of Castle Rock v. Gonzales (http://straylight.law.cornell.edu/supct/html/04-278.ZS.html), 545 U.S. 748 (2005), in which SCOTUS held a town and its police department could not be sued under 42 U.S.C. §1983 for failing to enforce a restraining order, which had led to the murder of a woman's three children by her estranged husband. The Court majority ruled that the woman had no constitutionally-protected property interest in the enforcement of the restraining order, and therefore could not claim that the police had violated her right to due process.

*snip*

Why not cite your source for this essay? http://concealed.wordpress.com/2007/12/12/%E2%80%A2-police-no-obligation-to-protect/

Regardless, I believe Neesika was asking for proof that, contrary to the law, individuals think police have a duty to prevent them from being victims of crime.

Source.

Frankly I do not believe that the average person in the US is so mind-numbingly stupid as to believe that the legal system or the police can actually jump in like superheroes and prevent crime from happening.

I do expect the police to function as a body that helps lower the crime in the area (which it obviously, intuitively, and empirically does), and thus lower the overall threat of crime to me, hence protecting me.

Your characterization of Warren v. District of Columbia (http://gunrightsalert.com/documents/Warren_v._District_of_Columbia_444_A_2d_1.pdf), 444 A.2d. 1 (D.C. 1981), is technically accurate, but a bit misleading and the lessons you draw from it are a bit extreme.

As the court explained in Warren, it is universally accepted by the courts that the "government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen." Thus, "official police personnel and the government employing them are not generally liable to victims of criminal acts for failure to provide adequate police protection."

The reasoning behind this, however, is:

A publicly maintained police force constitutes a basic governmental service provided to benefit the community at large by promoting public peace,
safety and good order. The extent and quality of police protection afforded
to the community necessarily depends upon the availability of public resources and upon legislative or administrative determinations concerning
allocation of those resources. The public, through its representative officials, recruits, trains, maintains and disciplines its police force and determines the manner in which personnel are deployed. At any given time, publicly furnished police protection may accrue to the personal benefit of individual citizens, but at all times the needs and interests of the community at large predominate. Private resources and needs have little direct effect upon the nature of police services provided to the public. Accordingly, courts have without exception concluded that when a municipality or other governmental entity undertakes to furnish police services, it assumes a duty only to the public at large and not to individual members of the community. (internal citations omitted).

Thus, the police are obligated to protect the community as a whole, and not particular individuals. This is far from unreasonable.

On the other hand, a more extreme and unsettling related holding is that of Castle Rock v. Gonzales (http://straylight.law.cornell.edu/supct/html/04-278.ZS.html), 545 U.S. 748 (2005), in which SCOTUS held a town and its police department could not be sued under 42 U.S.C. §1983 for failing to enforce a restraining order, which had led to the murder of a woman's three children by her estranged husband. The Court majority ruled that the woman had no constitutionally-protected property interest in the enforcement of the restraining order, and therefore could not claim that the police had violated her right to due process.



I think one of the problems may be you can't arrest a person for a crime they are going to commit. I think the mere threat of violence should be enough to pick any one of these guys up.

Enforcing a restraining order should also be enough.

Why not cite your source for this essay? http://concealed.wordpress.com/2007/12/12/%E2%80%A2-police-no-obligation-to-protect/

Regardless, I believe Neesika was asking for proof that, contrary to the law, individuals think police have a duty to prevent them from being victims of crime.

Because they sue... the individuals sue....

And because they have sued, the states and jurisdictions have covered their asses with laws that prevent such suits...

I do expect the police to function as a body that helps lower the crime in the area (which it obviously, intuitively, and empirically does), and thus lower the overall threat of crime to me, hence protecting me.

The primary purpose of law enforcement...is law enforcement. Not crime prevention.

Can the presence of law enforcement prevent crime from happening? Absolutely. Do you really believe that the presence of law enforcement necessarily means there will be no crime? I doubt that.

Hotwife is drawing some very extreme, and derogatory views about the understanding held by the general public. He has asserted that people are essentially sitting in assumed helplessness, believing that the law is there to prevent anything bad from happening. I contest this belief in the fundamental idiocy of the average person.

Why not cite your source for this essay? http://concealed.wordpress.com/2007/12/12/%E2%80%A2-police-no-obligation-to-protect/

Regardless, I believe Neesika was asking for proof that, contrary to the law, individuals think police have a duty to prevent them from being victims of crime.

I think we do and rightly so. I mean who else would you call in these matters. It seems to me the police are saying"it is not our duty to protect you". When as a citizen we think, possibly wrongly "that is what we pay you for".

***sidenote never say this to a cop, they get awful pissed at you, Might even show you their nightstick up close***

Because they sue... the individuals sue....

And because they have sued, the states and jurisdictions have covered their asses with laws that prevent such suits...

Ah now we're talking about limited numbers of individuals? Your assertion dealt with, by implication, the majority of 'average' persons.

Listen, instead of trolling with unsubstantiated claims backed up after the fact with sources that are only tangentially related...why don't you take some time to fashion an actual argument?

Thus, the police are obligated to protect the community as a whole, and not particular individuals. This is far from unreasonable.



Yes, I got that from reading Warren directly, which I had assumed anyone would have done already before I posted more. Apparently, you're the only one who can be bothered with reading Warren.

On the other hand, a more extreme and unsettling related holding is that of Castle Rock v. Gonzales (http://straylight.law.cornell.edu/supct/html/04-278.ZS.html), 545 U.S. 748 (2005), in which SCOTUS held a town and its police department could not be sued under 42 U.S.C. §1983 for failing to enforce a restraining order, which had led to the murder of a woman's three children by her estranged husband. The Court majority ruled that the woman had no constitutionally-protected property interest in the enforcement of the restraining order, and therefore could not claim that the police had violated her right to due process.

Which is why restraining orders are not worth the paper they're printed on. They are usually only an incitement and challenge to the man who is "restrained", and usually result in more violence.

Because they sue... the individuals sue....

And because they have sued, the states and jurisdictions have covered their asses with laws that prevent such suits...

Let me get this straight: you are saying the existence of caselaw and statutes saying "X" is evidence that the public generally believes "not X." :rolleyes:

Ah now we're talking about limited numbers of individuals? Your assertion dealt with, by implication, the majority of 'average' persons.

Listen, instead of trolling with unsubstantiated claims backed up after the fact with sources that are only tangentially related...why don't you take some time to fashion an actual argument?

Sorry, you're missing the point. If it weren't for the ass-covering laws against suing, the police would be subject to a mountain of litigation.

Don't you expect the police to come when you call? If not, let me know.

The primary purpose of law enforcement...is law enforcement. Not crime prevention.

Can the presence of law enforcement prevent crime from happening? Absolutely. Do you really believe that the presence of law enforcement necessarily means there will be no crime? I doubt that.

Hotwife is drawing some very extreme, and derogatory views about the understanding held by the general public. He has asserted that people are essentially sitting in assumed helplessness, believing that the law is there to prevent anything bad from happening. I contest this belief in the fundamental idiocy of the average person.

I mean what would have been the harm in the cases above if the police dispatched a cruiser to her house?

The guy doesn't show up, picks another day to return. So fine you send a car to his house and pick him up for questioning It may be the only deterrent we have, it may be just enough to rattle some sense back into his head?

Hotwife is drawing some very extreme, and derogatory views about the understanding held by the general public. He has asserted that people are essentially sitting in assumed helplessness, believing that the law is there to prevent anything bad from happening. I contest this belief in the fundamental idiocy of the average person.

I could add to the list of idiots anyone who has argued for gun control - their first argument will be that "the police are there to protect you, you don't need to do it yourself".

Yes, I got that from reading Warren directly, which I had assumed anyone would have done already before I posted more. Apparently, you're the only one who can be bothered with reading Warren.

As someone who routinely cites caselaw and almost always provides a link to the cited cases, let me assure you that you are living in a dreamworld if you expect people to read the cases you cite -- even if you provide a link. :mad::eek:

Which is why restraining orders are not worth the paper they're printed on. They are usually only an incitement and challenge to the man who is "restrained", and usually result in more violence.

You are ridiculously overreaching here.

As Mark Twain once said:

We should be careful to get out of an experience all the wisdom that is in it -- not like the cat that sits on a hot stove lid. She will never sit down on a hot lid again -- and that is well; but also she will never sit down on a cold one anymore.

Restraining orders are not magic wands, but they serve a useful, even critical, purpose.

This one comes to the forefront for me. I mean we spend so much time and effort on exactly how those right have to be read to you. You must read them, you must not be interrupted. Even if you know them all by heart you can't just say them. The words are a sort of ritual...what is the meaning behind them?

The ritual reminds law enforcement of the proper steps they must go through to conduct an investigation. It is a fetter on their actions, because as state actors, we as a society require them to be thus fettered in return for the power to use force that we also have given them.

To the individual, these words are a reminder of the rights that you have regardless of what you may be suspected of doing. These are moments of high stress...most people are familiar with the Miranda warning (in Canada, s.10(a)(b) notices) but nonetheless haven't really thought about how these concepts apply in real life, particularly if they've never interacted with law enforcement in that fashion before.

I'm not sure how these procedural protections are a problem....could you expand?

The other one that comes to mind is the right to privacy. My favorite set of words. Does the suspect have a reasonable right to expect privacy? Why would he or she? Should you not, as a citizen, have a right to expect that you would not be randomly searched as you walk to the corner store? Do you really believe that the state should have the unfettered right to peek into your personal belongings, your home (or into you, physically) with nothing more than a suspicion that you may be doing something wrong?

I could add to the list of idiots anyone who has argued for gun control - their first argument will be that "the police are there to protect you, you don't need to do it yourself".

Nice strawman.

I could add to the list of idiots anyone who has argued for gun control - their first argument will be that "the police are there to protect you, you don't need to do it yourself".
Yes, I knew you were leading up to that.

Uninterested.

The primary purpose of law enforcement...is law enforcement. Not crime prevention.


I believe that is its function, but not i's ultimate purpose. Its ultimate purpose is to increase the welfare of the citizens of the nation. Well actually, that's not quite true, it's to ultimately to increase the welfare of whoever is in charge wants, so perhaps for example in England, it may have been originally just to 'satisfy the King's decree'.

Edit: wow that was horrible grammar, but I can't be bothered to rectify most of that.

Nice strawman.

She wanted to know, "who would be idiot enough to believe that the police were there to protect them?"

It's an obvious answer.

Substantiative justice is to be left to God/Allah/Flying Spaghetti monster, being the only being capable of distributing the punishments fairly, without bias and taking all factors into account.

She wanted to know, "who would be idiot enough to believe that the police were there to protect them?"

It's an obvious answer.

Considering intellegent people rarely say that, however, that makes it a strawman.

If we want to dicuss the arguements of idiots, I assure you we can find equally pathetic arguements on your side, so lets not play "who has the lowest denominator", ageed?

The words are a sort of ritual...what is the meaning behind them?

The ritual reminds law enforcement of the proper steps they must go through to conduct an investigation. It is a fetter on their actions, because as state actors, we as a society require them to be thus fettered in return for the power to use force that we also have given them.

To the individual, these words are a reminder of the rights that you have regardless of what you may be suspected of doing. These are moments of high stress...most people are familiar with the Miranda warning (in Canada, s.10(a)(b) notices) but nonetheless haven't really thought about how these concepts apply in real life, particularly if they've never interacted with law enforcement in that fashion before.

I'm not sure how these procedural protections are a problem....could you expand?
Why would he or she? Should you not, as a citizen, have a right to expect that you would not be randomly searched as you walk to the corner store? Do you really believe that the state should have the unfettered right to peek into your personal belongings, your home (or into you, physically) with nothing more than a suspicion that you may be doing something wrong?



With regard to Miranda. To some degree I agree with you the public need to be reminded. It when you use the words "properly Mirandized".

The rules of engagement become burdensome to the law enforcement community.


To the second why so it will give them time to flush the cocaine down the toilet. I guess it depends does the guy have a ski mask on and 12-gauge buried under his trench coat?


Really that is what we are talking about you risk letting the criminal go free. In the case of a drug trafficker maybe it is okay, in the case of a terrorist people may die.

You look at a NYC police badge To Serve and Protect. I always though it was the public they are protecting

With regard to Miranda. To some degree I agree with you the public need to be reminded. It when you use the words "properly Mirandized".

The rules of engagement become burdensome to the law enforcement community.


To the second why so it will give them time to flush the cocaine down the toilet. I guess it depends does the guy have a ski mask on and 12-gauge buried under his trench coat?


Really that is what we are talking about you risk letting the criminal go free. In the case of a drug trafficker maybe it is okay, in the case of a terrorist people may die.

The Fourth and Fifth Amendment were written based on human experience with abusive law enforcement. The Founders knew that giving rights to all risked giving rights to suspects, but knew it was well worth the trade-off.

Since then, refinements like the Miranda Rule are based on further experience of the judicial system. To say the Miranda Rule, which is pretty simple to comply with, "unduly burdens" law enforcement is, frankly, silly.

EDIT: Also, the protections against unreasonable searches and seizures leave ample room for law enforcement to act when they have sufficient basis for suspicion.

You look at a NYC police badge To Serve and Protect. I always though it was the public they are protecting

No, its their own asses. Especially in the case of the NYPD:p


It all honosty, its just a motto.

You look at a NYC police badge To Serve and Protect. I always though it was the public they are protecting

Um. They are supposed to be protecting the public.

But, as explained, that does not mean they have a duty to prevent harm to individual citizens by preventing crime.

And, our individual rights to privacy, procedural justice, etc., are part of what are supposed to be protected.

Really that is what we are talking about you risk letting the criminal go free. In the case of a drug trafficker maybe it is okay, in the case of a terrorist people may die.

This is the same kind of argument one might use to defend the torture that took place (or didn't take place) at our detention facilities against suspected terrorists. If the information found can save thousands of American lives, who would be stupid enough not to want to do anything to get that information? And its difficult to argue against in practical senses, but the law is not always about easy solutions. When the US refuses to negotiate with terrorists, we are putting lives at stake, but we are doing so because the probability exists that even more lives would be at stake if we did negotiate.

Its all just a slippery slope argument. If the government has the ability to enter into "suspected terrorists'" houses and search them without a warrant, but no one else's, I have a feeling we would start seeing a lot more crime classified as terrorism.

And as to the other argument going on, I agree with Hotwife. When an individual calls the police with a legit claim, it is absolutely and perfectly reasonable for that individual to expect protection. If a crime is being committed or there exists a possibility for a crime to be committed, then it is the duty (perhaps not legally, but definitely cognitively) for the police to interfere. If this expectation didn't exist, then people would take matters into their own hands. If justice and protection are not provided systematically, then you can bet it'll be provided somehow.

By randomly search do you mean as you are about to enter a NYC subway? How about the airport. Searched depends on how it was carried out. Police have the right to ask you for identification any time they feel like. If they feel you were about to commit a crime. What about drunk driving spot checks? We as a society will give up some degree of privacy for added security.

She wanted to know, "who would be idiot enough to believe that the police were there to protect them?"

It's an obvious answer.

No. I wanted you to prove your assertion that the majority of people in your country expect the legal system and the police to protect them.

The average person in the US expects the legal system and the police to protect them.


An assertion that was made in response to my response to your rant about 'how the law sucks because it doesn't stop crime from happening'. Taken in context, your assertion is not just about protection, it’s about prevention...as though people really believe that the law, and by extension the police, can PREVENT crimes from happening. To a certain extent this is true, but not to the point you’ve attempted to claim.

Yes. Law sucks because it does not do what it never intended to do in the first place...which is stop crimes from happening.

Or perhaps, law makers understand that words alone won't stop people from doing harm to one another, and that is why we have other systems in place (including education) to try to deal with the causes of crime.

Laws simply govern how we deal with various situations...you need to understand the reactive nature of law before you start complaining about it. Your argument is akin to blaming a mammogram for not preventing breast cancer.


Your fundamental point is that laws are no good because they don't stop crime from happening in the first place. Which as I've pointed out, is a ridiculous position to take and shows that you have a very poor understanding of the role of law. Nor do I buy that the majority of people in your country hold this opinion, and you certainly have failed to substantiate your claims.

The Fourth and Fifth Amendment were written based on human experience with abusive law enforcement. The Founders knew that giving rights to all risked giving rights to suspects, but knew it was well worth the trade-off.

Since then, refinements like the Miranda Rule are based on further experience of the judicial system. To say the Miranda Rule, which is pretty simple to comply with, "unduly burdens" law enforcement is, frankly, silly.

EDIT: Also, the protections against unreasonable searches and seizures leave ample room for law enforcement to act when they have sufficient basis for suspicion.



Not necessarily Miranda by itself. Getting a search warrant.


The more checks you put in the more criminals go free. Of course should the police be able to kick in your door in the middle of the night and strip search you and your wife. Of course not but you get the feeling maybe it just me joe public the pendulum has begun to swing to far the other way in favor of the accused rights and not enough for victims rights?

The more checks you put in the more criminals go free. Of course should the police be able to kick in your door in the middle of the night and strip search you and your wife. Of course not but you get the feeling maybe it just me joe public the pendulum has begun to swing to far the other way in favor of the accused rights and not enough for victims rights?

Accused rights are far more important, because it is difficult to abuse the victim.

By randomly search do you mean as you are about to enter a NYC subway? How about the airport. You have a reduced expectation of privacy in certain areas, such as in a bus terminal or airport. You have an increased expectation of privacy in your home or in the contents of your vehicle. Reasonable expectation of privacy is contextual.

Searched depends on how it was carried out. Police have the right to ask you for identification any time they feel like. And you have the right to refuse to produce said identification. The police have the same right as any citizen to ask you questions, or ask you to produce identification documents...and again, you can refuse. The police actually have to have a source of power from common law or statute to go beyond that...and procedural protections are in place to ensure they have justifications for invoking that extra power.


If they feel you were about to commit a crime. What about drunk driving spot checks? We as a society will give up some degree of privacy for added security.

Again, contextual. Spot checks have been found to be a reasonable intrusion because of the social need to reduce the damage done by drunk driving (and to deter this practice).

That doesn't mean that it's suddenly okay to stop someone randomly, search their vehicle and their person with no suspcion whatsoever of any wrongdoing, outside of a drunk driving checkstop.

Accused rights are far more important, because it is difficult to abuse the victim.

Well said because the victim may not have even been a victim if you got off you butt an did something instead of ...

Oh my goodness "I sound like my father now". "Damn when did that happen?"

Not necessarily Miranda by itself. Getting a search warrant.

The more checks you put in the more criminals go free. Of course should the police be able to kick in your door in the middle of the night and strip search you and your wife. Of course not

The Fourth Amendment is pretty clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

but you get the feeling maybe it just me joe public the pendulum has begun to swing to far the other way in favor of the accused rights and not enough for victims rights?

No. To the contrary, many, many years of a conservative-dominated SCOTUS have erroded some of our liberties, particularly regarding criminal procedure. For example, despite the Fourth Amendment's clear call for search warrants, copious exceptions to the warrant requirement have been created.

No, its their own asses. Especially in the case of the NYPD:p


It all honosty, its just a motto.
Indeed. Another example: The police department of Salem, Massachusetts, has a picture of a witch flying on a broomstick on their patrol cars, but as far as I know, they don't cast spells to turn criminals into newts. The decorations and mottos on badges, cars, departmental letterhead, etc, are not a mission statement of what a police department is for. Rather than read the badges, people should be reading the laws that govern both the citizens and the cops.

Some people's expectations that the cops are there to protect them personally or to prevent crime from ever happening in the first place strike me as fundamentally thoughtless -- as in not having been really thought out.

EDIT: Likewise for some of the arguments about procedural justice versus substantive justice. It seems to me rather clear that the two are not really related and, therefore, not really in conflict with each other.

Not necessarily Miranda by itself. Getting a search warrant.


The more checks you put in the more criminals go free. Of course should the police be able to kick in your door in the middle of the night and strip search you and your wife. Of course not but you get the feeling maybe it just me joe public the pendulum has begun to swing to far the other way in favor of the accused rights and not enough for victims rights?

Procedural guarantees does fetter the ability of law enforcement to investigate and react to crime. These guarantees also prevent law enforcement from abusing their substantial powers (and extensive resources).

So yes, the debate is definitely about how far procedural protections should extend, and in what situations they should be drawn back or increased...that is the constant battle both in the courts, and in the public discourse.

Do you have more specific examples of issues where you'd like to see procedural protections scaled back?

By randomly search do you mean as you are about to enter a NYC subway? How about the airport. Searched depends on how it was carried out. Police have the right to ask you for identification any time they feel like. If they feel you were about to commit a crime. What about drunk driving spot checks? We as a society will give up some degree of privacy for added security.

Its a very precarious balancing act, but you're right.

Question: does the government have a right to search me at the airport? Or is that just something I consent to because that's what normally happens? I guess it has little to do with the government - if I didn't consent to be metal detected the airlines could just refuse to fly me.

EDIT: Likewise for some of the arguments about procedural justice versus substantive justice. It seems to me rather clear that the two are not really related and, therefore, not really in conflict with each other.

How are the two not really related? Please make this as clear to me as it is to you.

In some ways the two systems of justice run parallel, not quite touching, but in many ways, they intersect...and ultimately we have come to the conclusion as a society were there no procedural justice, substantive justice simply could not exist...else we'd not even bother with courts.

Procedural protections prevent unsubstantiated hearsay from being introduced into evidence...the idea is that you should be able to make an answer to accusations being made...so the overheard claims of some third party not present in the court should not be allowed to damn you absent some compelling reaon.

That restriction is also substantive in the sense of 'real' justice.

You have a reduced expectation of privacy in certain areas, such as in a bus terminal or airport. You have an increased expectation of privacy in your home or in the contents of your vehicle. Reasonable expectation of privacy is contextual.
And you have the right to refuse to produce said identification. The police have the same right as any citizen to ask you questions, or ask you to produce identification documents...and again, you can refuse. The police actually have to have a source of power from common law or statute to go beyond that...and procedural protections are in place to ensure they have justifications for invoking that extra power.



Again, contextual. Spot checks have been found to be a reasonable intrusion because of the social need to reduce the damage done by drunk driving (and to deter this practice).

That doesn't mean that it's suddenly okay to stop someone randomly, search their vehicle and their person with no suspcion whatsoever of any wrongdoing, outside of a drunk driving checkstop.



Vehicle not so much. They pull you over because you tail light is out a which point they see the gun in your lap or on the floor.

If you don't provide said ID you are likely going downtown like it or lump it. Your house yes I think you have the right to privacy.

Unless you are on the CIA watch list. But ohhh no they do not do domestic subservience, on anyone, ugh, ugh no way. Even though they know exactly what books you read in your local library. They have your credit card number they can see what you have purchased. What airline trips you have taken. Known associates. Where you work. How you vote.

The bad guys don't play by the rules. Neither should we. Truth you can't handle the truth. We now return you to your regularly scheduled program already in progress.

It is not paranoia if they really are out to get you....

Its a very precarious balancing act, but you're right.

Question: does the government have a right to search me at the airport? Or is that just something I consent to because that's what normally happens? I guess it has little to do with the government - if I didn't consent to be metal detected the airlines could just refuse to fly me.

You do have the right to walkaway but you are not getting on that train or airplane. Those guys behind you are just listening to their IPOD.

This thread is already a bit large, but I'm going to reply to it anyways.

I think there's a balance to be struck between the two and, in any system, you're going to have some cock-ups that piss people off.

Yes, aiming for procedural justice means that sometimes, guilty people will get off scot-free because someone along the line screwed up and didn't do what he was supposed to. And yes, from a more esoteric point of view, this means that justice was not done. But, in the long run, the harm caused by those instances should be outweighed by the harm avoided in requiring the procedures. (Otherwise, you're doing it all wrong!)

Also, from what I understand, there is some leeway in procedural justice in order to try and ensure substantive justice. Some things are pretty absolute (ie. the police can't torture you to get a confession), but others have a little more wiggle room, to be determined by the judge in the case.

Indeed. Another example: The police department of Salem, Massachusetts, has a picture of a witch flying on a broomstick on their patrol cars, but as far as I know, they don't cast spells to turn criminals into newts. The decorations and mottos on badges, cars, departmental letterhead, etc, are not a mission statement of what a police department is for. Rather than read the badges, people should be reading the laws that govern both the citizens and the cops.

Some people's expectations that the cops are there to protect them personally or to prevent crime from ever happening in the first place strike me as fundamentally thoughtless -- as in not having been really thought out.

EDIT: Likewise for some of the arguments about procedural justice versus substantive justice. It seems to me rather clear that the two are not really related and, therefore, not really in conflict with each other.



Nah that is for tourism. I checked Orlando, FL does not have Mouse Ears. Damn I though we might have a pattern.

It is a balancing act. Too far one way you have Police State (or Texas) j/k too far the other you are too lax on crime which will keep you from getting elected and cleaning up this one horse town.

Woowoo...so, the state as a powerful actor, and the fundamental reality that there is a power imbalance...this is the argument made by many proponents of procedural justice. The argument that the state has unlimited resources and can steamroll you...and procedural protections are the only thing that stop that from happening.

I don't think most people have a problem seeing this. There's a reason that people tend to be rather suspicious of police officers (or anyone in power) and their motives.

However...

Yet it seems to me that quite often, there is enormous sympathy out there for the 'state', as though the state is often seen as a sort of underdog. Poor cops who fucked up an investigation, resulting in a case being tossed out of court...prosecutors on the wrong track having to withdraw charges, or acquittals being returned because the slick defence lawyer charmed the jury...

Here we get into the individual level, rather than the monolithic state as a powerful actor. The state is a a powerful actor that can steamroll you. The individuals who work for the state are human beings who, like all human beings, can make mistakes.

Obviously, not all procedural cock-ups are unintentional, but I'm sure that many are. And when people hear about something like that, they're generally not thinking about the ways in which that power could be intentionally misused. They're just thinking, "Ok, he forgot to do one thing. Should that really screw everything up?"

Add in the fact that a defendant is often "guilty until proven innocent" in the minds of the public, and suddenly the cops/prosecutor/etc. look like the "good guys". So the public is more likely to be ok with mistakes on their part than with the defendant.

It just boggles my mind that people can not stop and think about just how powerful the forces arrayed against an accused truly are, in comparison to the accused's ability to mount a defence. Most defendants are NOT millionaires who can bring in $10,000/an appearance expert witnesses etc. Where is the common man's sympathy for the common man?

Why will people talk about needing to end poverty and then ignore the homeless man down the street?

When you're talking about people as a collective, sympathy does tend to rest with the common man. But when you boil it down to a specific case, people aren't always consistent.

How are the two not really related? Please make this as clear to me as it is to you.

In some ways the two systems of justice run parallel, not quite touching, but in many ways, they intersect...and ultimately we have come to the conclusion as a society were there no procedural justice, substantive justice simply could not exist...else we'd not even bother with courts.

Procedural protections prevent unsubstantiated hearsay from being introduced into evidence...the idea is that you should be able to make an answer to accusations being made...so the overheard claims of some third party not present in the court should not be allowed to damn you absent some compelling reaon.

That restriction is also substantive in the sense of 'real' justice.
As you described it, substantive justice is a concept of what the conclusion of "justice" is or should be -- the ultimate fairness of the outcome of a trial, for instance. However, the characterization of such outcomes as "justice" is, ultimately, I think, a matter of perception. In almost any instance, there will be people who feel differently about whether a given verdict and/or sentence is "just" or not. If "substantive justice" is focused on "justice" rather than just the fact of punishment, then it is a fundamentally subjective concept.

Procedural justice, on the other hand, as you described it, is far less subjective, as it is defined by the rules of the law governing what the actual procedures of the criminal justice system are. You can have a subjective assessment of whether a given verdict/sentence delivers justice or not. But assessments as to whether the police, prosecutors and courts followed their own rules of procedure or not are likely to be considerably less subjective, as there is an objective standard to compare to. Procedural justice, thus, is about HOW society tries to reach substantive justice, but it in no way guarantees, or even promises that it will try to lead us to a result that will be substantive justice. It is the process, not the result.

I agree that society cannot offer its citizens any promise that it will even try to reach substantive justice if it does not maintain strict adherence to procedural justice. However, that does not guarantee that procedural justice has any ability to deliver substantive justice to the satisfaction of citizens, nor does it mean that procedural justice is the only way for citizens to get what they would perceive as substantive justice.

For example, where was the substantive justice in the Jeffrey Dahmer murder case? Now, as one who was not personally affected by that case, I felt no personal need for substantive justice. I was satisfied that the justice delivered by the procedural system was sufficient -- he was tried, convicted, and sentenced to be removed as a threat to society via incarceration. (EDIT: I mean that I was satisfied with him being removed as a future threat without worrying over whether he was actually "answering for his crimes".) There was no undoing his crimes, no way to make up the losses of the survivors of his victims, but since I didn't feel that loss, I also felt no need to have it made up to me.

But what of those survivors? Did they feel satisfied that they had received substantive justice in the form of a punishment to Dahmer that balanced out the harm he had done to them? Maybe some of them did, and maybe some of them didn't.

What about the peripheral victims of the matter, those people who felt they had been treated unjustly by a police department that ignored their complaints about disappearances in their neighborhood and suspicions about Dahmer, and who blamed the cops for failing to save one victim's life out of what the people believed was bigoted ignorance? We could say that their complaints were of a breakdown of procedural justice. What substantive justice did they get to make up for that? None that I could see, from the legal system itself. But then what possible substantive justice could they be given by the procedural functioning of the system, as opposed a non-procedural-justice-related commitment to do better from the police department itself? What I'm saying is that this was a matter on which the procedural system is powerless to deliver substantive justice.

And then what about Dahmer's ultimate death by murder in prison? Did the survivors of his victims feel finally then that they had received substantive justice by his death? If so, then they got their substantive justice from a source other than procedural justice. Or do they still feel the unfairness of the loss that he inflicted on him? If so, then nothing was able to deliver substantive justice to them.

My point is that while, yes, the two concepts do run parallel and occasionally intersect and sometimes affect each other, neither is the source of the other, and they both can function perfectly well without each other. I also am saying that substantive justice is a far more subjective and amorphous and elusive thing than procedural justice.

EDIT: Okay, looking at the length of this post, I guess maybe it wasn't really all that obvious after all. Sorry. :)

If you don't provide said ID you are likely going downtown like it or lump it. Your house yes I think you have the right to privacy.

Your language has been a bit hard to decipher, but it isn't necessarily true that police have a right to require you to provide identification without reasonable suspicion. See, e.g., Kolender v. Lawson (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=461&invol=352), 461 U.S. 352 (1983) (holding unconstitutional a California law "that requires persons who loiter or wander on the streets to provide a 'credible and reliable' identification and to account for their presence when requested by a peace officer."); Brown v. Texas (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=443&invol=47), 443 US 47 (1979) (holding that application of a Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct). Cf. Hiibel v. Sixth Judicial District Court of Nevada (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=03-5554), 542 U.S. 177 (2004) (holding that arrest and conviction for not telling a police officer his name did not violate defendant's Fourth Amendment right to be free from an unreasonable search because it was based on reasonable suspicion (the police officer was investigating an assault and Hiibel was nearby) and involved only a minimally intrusive question (his name)).

The Fourth Amendment is pretty clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.



No. To the contrary, many, many years of a conservative-dominated SCOTUS have erroded some of our liberties, particularly regarding criminal procedure. For example, despite the Fourth Amendment's clear call for search warrants, copious exceptions to the warrant requirement have been created.



Much of what you said is true but we can also point to the almost Draconian punishment under the Rockefeller laws and others.

Enacted in 1973 under Governor Nelson Rockefeller, the Rockefeller Drug Laws mandate extremely harsh mandatory minimum prison terms for the possession or sale of relatively small amounts of drugs. Supposedly intended to target major dealers (kingpins), most of the people incarcerated under these laws are convicted of low-level, nonviolent offenses, and many of them have no prior criminal records. As of 2008, approximately 14,000 people are locked up for drug offenses in New York State prisons, representing nearly 38% of the prison population and costing New Yorkers hundreds of millions of dollars every year.



Further down the article.

Since judges cannot take an individual defendant’s circumstances into account during sentencing, the only way to receive a lower sentence is by cooperating with the prosecution.


This horrendous racial disparity has been condemned by such international groups as Human Rights Watch and Physicians for Human Rights, along with the vast majority of New York residents.



So the question becomes who exactly are they protecting?

Does substantive justice exist?

It seems like something we mutually invent as a culture, and is therefore amenable to change as our culture does.

If the purpose of procedural justice is to ritualise our behaviour so that we approach the ideal of substantive justice, then we have to have a procedure that allows for that change.

We also have to understand that we as individuals within a culture also have different ideas about what's fair. So we have to have space and a procedure for figuring out who is right. This seems more like something the legislative arena takes care of, rather than the judicial one. Lawyers, perhaps fortunately, seem to have nothing to do with substantive justice in this regard. But doesn't the concept of legal precedent somehow incorporate cultural assumptions about SJ into our PJ?

Your language has been a bit hard to decipher, but it isn't necessarily true that police have a right to require you to provide identification without reasonable suspicion. See, e.g., Kolender v. Lawson (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=461&invol=352), 461 U.S. 352 (1983) (holding unconstitutional a California law "that requires persons who loiter or wander on the streets to provide a 'credible and reliable' identification and to account for their presence when requested by a peace officer."); Brown v. Texas (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=443&invol=47), 443 US 47 (1979) (holding that application of a Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct). Cf. Hiibel v. Sixth Judicial District Court of Nevada (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=03-5554), 542 U.S. 177 (2004) (holding that arrest and conviction for not telling a police officer his name did not violate defendant's Fourth Amendment right to be free from an unreasonable search because it was based on reasonable suspicion (the police officer was investigating an assault and Hiibel was nearby) and involved only a minimally intrusive question (his name)).

I've wondered what the limits on that were - in Herndon, local police received ICE training (immigration) and now are required to gather immigration status on anyone they end up having to identify, with the additional requirement of taking them in if they don't have valid papers (or can't produce them).

There seems to be a fine line here - I could easily walk in some parts of Herndon, and point to nearly any Salvadoran standing there, and have "reasonable suspicion" that they were in the country illegally. Which would then be considered "profiling".

Much of what you said is true but we can also point to the almost Draconian punishment under the Rockefeller laws and others.

Enacted in 1973 under Governor Nelson Rockefeller, the Rockefeller Drug Laws mandate extremely harsh mandatory minimum prison terms for the possession or sale of relatively small amounts of drugs. Supposedly intended to target major dealers (kingpins), most of the people incarcerated under these laws are convicted of low-level, nonviolent offenses, and many of them have no prior criminal records. As of 2008, approximately 14,000 people are locked up for drug offenses in New York State prisons, representing nearly 38% of the prison population and costing New Yorkers hundreds of millions of dollars every year.



Further down the article.

Since judges cannot take an individual defendant’s circumstances into account during sentencing, the only way to receive a lower sentence is by cooperating with the prosecution.


This horrendous racial disparity has been condemned by such international groups as Human Rights Watch and Physicians for Human Rights, along with the vast majority of New York residents.



So the question becomes who exactly are they protecting?

1. Especially if you are going to refer to "the article," you should link your source: http://www.drugpolicy.org/statebystate/newyork/rockefellerd/

2. You are all over the map and not making sense to me. What exactly is your point?

Let me get this straight: you are saying the existence of caselaw and statutes saying "X" is evidence that the public generally believes "not X." :rolleyes:

I would say that the outrage over these various cases when they are in the public eye makes it clear that most people think it at least should be otherwise.

It isn't that people think that the police are going to swoop in like superheroes at the moment they are attacked and keep anything bad from happening. But I do think that most people believe that the law either does or should require state actors to act when they are made aware of a crime that is either imminent or occurring.

In reality, of course, a police officer could stand there and watch someone get assaulted, do nothing about it, and still carry no liability whatsoever.

Perhaps to highlight the issue even more dramatically...

Procedural fairness would disallow a confession gotten through torture.

Substantive fairness (assuming the guilt was real) wouldn't care how the confession came about.
How much of this desire for substantive justice is really just frustration at a undesirable outcome? Like the OJ verdict... The first one for the murder of his wife and that Goldman character.

I suspect most people will, upon some reflection, agree that jury trials are a good thing and that a jury of peers is still more desirable than a jury of something else. Same thing for other trials that hinge on technicalities. Those technicalities are usually rights that we hold to be important and would certainly want to be honored in our own cases -- should that ever happen.

I really think it's just an outward expression of frustration that the State couldn't do a better job, not a rejection of due process, equality under the law, etc, when you see most people complaining about a particular decision.

That's why I keep a gun at home and in the truck. I'm not about to be attacked and then allow the State to screw up justice.

Restraining orders are not magic wands, but they serve a useful, even critical, purpose.

Restraining orders, if enforced, serve a purpose. But if those in the position to enforce them cannot be depended upon to do so (which they cannot if there is no recourse when they don't), then there is no reason to believe that getting one will be protective.

1. Especially if you are going to refer to "the article," you should link your source: http://www.drugpolicy.org/statebystate/newyork/rockefellerd/

2. You are all over the map and not making sense to me. What exactly is your point?

Sorry I was interrupted by work. Sorry link

http://www.drugpolicy.org/statebystate/newyork/rockefellerd/

The law in an entity onto itself. They are not always protecting the public. In fact often it is contrary to the public's wishes.


Perhaps in the law you don't have to provide ID. In reality/real life it is wise to, you will likely be in the back of a squad car, detained in the least if you don't

How much of this desire for substantive justice is really just frustration at a undesirable outcome?

I'd say that the desire for substantive justice is the reason that it is seen as an undesirable outcome. If procedural justice were all that mattered, any outcome in a trial would be desirable, so long as all the proper procedures were followed. However, an innocent man can go to jail or a guilty man can be acquitted, even as procedural justice is upheld. And that is what people find to be frustrating. They want the system to work perfectly. It doesn't.

Is the public at large too stupid to understand procedural justice? This is my question to you, as part of said public at large.
No, it's just convenient to "forget" about it at times. Especially when the case is (according to the media, perhaps) "open and shut". And it's easy to blame mere "technicalities" when someone you think is guilty walks free.

So, to paraphrase the famous quote in R. v. Sussex..."Not only must Justice be done; it must also be seen to be done."?
Ah, so that's where we've stolen it from. I always wondered...

Yet isn't it also true that procedural justice can actually harm the credibility of the judicial system when the public feels, as it did in the original OJ case, or in the Rodney King debacle...that procedures or 'technicalities' actually interfered with justice being done?
I would say so.

Is it just that procedural justice is misrepresented or misunderstood? Or is there some validity to the criticism?
I think the problem lies with nobody taking the time to explain why we have these rules in the first place. Not that the average (Plumber/Warcorrespondent) Joe would really listen... However, when I've encountered any debate on procedural rules and why we should bother giving "criminals so many rights", they usually withdraw their objections after I've explained to them why we have the rules. So yeah...

As someone who routinely cites caselaw and almost always provides a link to the cited cases, let me assure you that you are living in a dreamworld if you expect people to read the cases you cite -- even if you provide a link. :mad::eek:

And you should know that some of us appreciate that effort on your part :wink:

This thread is already a bit large, but I'm going to reply to it anyways.

I think there's a balance to be struck between the two and, in any system, you're going to have some cock-ups that piss people off.

Yes, aiming for procedural justice means that sometimes, guilty people will get off scot-free because someone along the line screwed up and didn't do what he was supposed to. And yes, from a more esoteric point of view, this means that justice was not done. But, in the long run, the harm caused by those instances should be outweighed by the harm avoided in requiring the procedures. (Otherwise, you're doing it all wrong!)

Also, from what I understand, there is some leeway in procedural justice in order to try and ensure substantive justice. Some things are pretty absolute (ie. the police can't torture you to get a confession), but others have a little more wiggle room, to be determined by the judge in the case.

I like you. :fluffle:

Tell me again why you aren't a lawyer? Damn cells are so small, they can't be fun at parties!

The bad guys don't play by the rules. Neither should we.

This is probably the most foul sentiment I've seen posted so far.

I honestly you aren't in any kind of law enforcement work.

This is probably the most foul sentiment I've seen posted so far.

I honestly you aren't in any kind of law enforcement work.

I believe that's the "Dirty Harry" approach to law enforcement. Clint would be proud!

I believe that's the "Dirty Harry" approach to law enforcement. Clint would be proud!

Heh, yeah...I've been collecting "The Punisher" since late 1980's, but for a real, live human to say it...like I said, I hope TB isn't going to be a cop.

It's the same sentiment that Bush apologists use to justify torturing prisoners. To me, it seems to express a wish to break the rules but a fear of doing so, and so they claim that the rules should give them permission to commit the same crimes criminals do without permission. They don't seem to get it that we're not supposed to be doing those things, with or without permission. Having permission to beat a confession out of someone doesn't make it right, nor does it lead to a civilized and stable society.

It's the same sentiment that Bush apologists use to justify torturing prisoners. To me, it seems to express a wish to break the rules but a fear of doing so, and so they claim that the rules should give them permission to commit the same crimes criminals do without permission. They don't seem to get it that we're not supposed to be doing those things, with or without permission. Having permission to beat a confession out of someone doesn't make it right, nor does it lead to a civilized and stable society.

Yeah, but as Truly Blessed explained, "Bad guys don't play by the rules, neither should we."

What you're talking about is taking pains to behave differently than the "bad guys". What's the point of that?

What would that make us?

If the bad guys don't play by the rules, and we don't play by the rules, then how can we tell bad guys from the rest of us?

Yeah, but as Truly Blessed explained, "Bad guys don't play by the rules, neither should we."

What you're talking about is taking pains to behave differently than the "bad guys". What's the point of that?

What would that make us?

Um...gosh, I'm not sure....ummm...good guys?

Ah, crap, that's just silly. What was I thinking?

If the bad guys don't play by the rules, and we don't play by the rules, then how can we tell bad guys from the rest of us?
There wouldn't be a "rest of us." There'd only be "them."

Um...gosh, I'm not sure....ummm...good guys?

Ah, crap, that's just silly. What was I thinking?

See, this is why I consider you such a bad person.

Like Truly Blessed explained, the standard of behavior should be set by the worst in society, constructed by the maxim: "The Bad Guys don't to X, so we shouldn't either."

For example, a bad man wouldn't make sure his lady friend got her cookie before falling asleep, therefore, I shall pour my champagne, then doze.

See, this is why I consider you such a bad person.

Like Truly Blessed explained, the standard of behavior should be set by the worst in society, constructed by the maxim: "The Bad Guys don't to X, so we shouldn't either."

For example, a bad man wouldn't make sure his lady friend got her cookie before falling asleep, therefore, I shall pour my champagne, then doze.
So, then, by that standard, does that mean that I would be doing right by society if I just lay there like a 3-day-old plate of lox, not assisting you at all with the pouring of your champagne? Should I also ruin my figure and stop washing my hair and, after all that, still have an affair with the 20-year-old next door, then divorce you and take half your money for the rest of your life?

Sounds like aspiring to the standards of the worst is a lot of work.

EDIT: Oh, no wait, I see where I'm getting it wrong. That's only aspiring to the disappointingly bad. I need to aspire to the worst. So I should do all that and then break into your house while you're in bed with your 20-year-old blonde and shoot you -- like Betty Broderick did. She got a tv movie made of her. I could have that, too.

So, then, by that standard, does that mean that I would be doing right by society if I just lay there like a 3-day-old plate of lox, not assisting you at all with the pouring of your champagne? Should I also ruin my figure and stop washing my hair and, after all that, still have an affair with the 20-year-old next door, then divorce you and take half your money for the rest of your life?

Sounds like aspiring to the standards of the worst is a lot of work.

Okay, see, I always suspected we knew one another...

Does substantive justice exist? Not outside our particular society, no...though some argue that there exists a 'natural' justice, it certainly isn't guaranteed, it's more about concepts of basic principles than an actual justice that exists in practice outside of human agency.

It seems like something we mutually invent as a culture, and is therefore amenable to change as our culture does. Absolutely. Homosexuality was a criminal act, a form of perversion that horrified social norms for many, many years. Substantive justice would seek punishment for such behaviour then...substantive justice now would recongnise that it is not in fact a criminal act at all.

Substantive justice is inherently linked to social norms.

If the purpose of procedural justice is to ritualise our behaviour so that we approach the ideal of substantive justice, then we have to have a procedure that allows for that change. Procedural justice claims to be a tempering force on the winds of moral change that impact popular notions of substantive justice...I think to a certain extent that is a valid argument, but not a particularly compelling one. Procedural protections and substantive norms are notoriously slow to change in common law jurisdictions, and also open to convenient interpretation when radical departures are desired (ie, redefining torture).

I think the idea is that there is more to justice than simple guilty = punishment. There is a notion that the judicial system needs to maintain a machinery around it to ensure justice continues to be done in a manner that is open, respected, and somewhat consistant. To this end, procedure does indeed ritualise the basic precepts of our society's conception of substantive justice.

I'll get to the rest in a second.

Not outside our particular society, no...though some argue that there exists a 'natural' justice, it certainly isn't guaranteed, it's more about concepts of basic principles than an actual justice that exists in practice outside of human agency.

I often wonder if "natural" justice is what happens when people are just settling things on their own.

So if we have a dispute, and we both agree on some basic rules for getting along (whether from a tribal custom, a religion, or a local law), we get together and resolve it.

Say you took fish from my fish trap. Well, local custom (and peer pressure) might require you to compensate me in some standard way (a food gift, perhaps). No judge, no court, no meeting of the elders - something more organic than all of that.

If we could give rep points on this board I would give you rep points but we can't give rep points here or else I would give you some but I can't.SO "substantively" she gets rep points but "procedurally" she doesn't.

We also have to understand that we as individuals within a culture also have different ideas about what's fair. Why do we have to understand this? Our legal system is based on certain norms and traditions that have specifically exluded other ideas of 'what is fair'.

So we have to have space and a procedure for figuring out who is right.
So far that procedure has been 'is this idea compatible with our own conceptions of what is fair?' I do not believe that will change. As society becomes more blended, then 'what is fair' does actually shift but change comes quite slowly.

This seems more like something the legislative arena takes care of, rather than the judicial one.
In Canada and the US, the interplay between the legislature and the judiciary tends to be fairly constant. Judicial interpretation can often be a force for change even when the legislature doesn't necessarily want to act on a certain issue (ie: abortion), but also in many cases, the courts wait for the legislature to act rather than trying to 'create' laws themselves. The courts will be guided by the legislature more often than is the other way around, this is true...but I'm glad the judiciary is there to light a firecracker under the asses of a legislature grown sluggish with inertia, if need be.

Lawyers, perhaps fortunately, seem to have nothing to do with substantive justice in this regard. Yet they can. Some of the most socially influential cases have been championed by lawyers without regard to profit...because in many of these cases, there is little profit to be had. I'm thinking in particular of human rights cases which can stretch on for many decades, and require intense effort yet result in both judicial and, eventually, legislative action to ameliorate the societal problem at issue (gender pay inequality, discriminatory hiring practices, etc etc) Another area is aboriginal rights...the majority of which are not compensation cases.

However, I think lawyers in this sense are simply citizens agitating for social change by using a specialised skill set...rather than cogs in a judicial machine bent on social change...because ultimately the judiciary is extremely conservative when it comes to wreaking said social change.


But doesn't the concept of legal precedent somehow incorporate cultural assumptions about SJ into our PJ? Absolutely...procedural protections (and decisions about what is unecessary PJ) are shaped by social norms, rooted in a particular culture, and incorporating changes based on other cultural norms is very, very difficult in a precedential system.

I often wonder if "natural" justice is what happens when people are just settling things on their own. Natural justice is culturally dependent, though some scholars like to claim universality. So 'natural' justice would be something even a simple as...you break it, you fix it. 'Natural' consequences are also used in various child-rearing philosophies which of course are also culturally shaped. In the common law system, 'natural' justice deals disproprotionately with the protection of property, but since property itself is an unnatural, very human centered and created notion, what is 'natural' cannot exist outside of the social norms of a group of people. IMO.

So if we have a dispute, and we both agree on some basic rules for getting along (whether from a tribal custom, a religion, or a local law), we get together and resolve it.

Say you took fish from my fish trap. Well, local custom (and peer pressure) might require you to compensate me in some standard way (a food gift, perhaps). No judge, no court, no meeting of the elders - something more organic than all of that.
Right...forces at play would still ensure that the exercise would not be wholly voluntary, whether those forces are social custom/threat of sanction, or religious in nature. Still...I think the term 'natural' is very misleading. It annoys me.

This is probably the most foul sentiment I've seen posted so far.

I honestly you aren't in any kind of law enforcement work.

If we had those kind of cops we wouldn't have bad guys. Just kidding!

No there is the tendency on this forum to lean almost too far to the side of the criminal. Checks and balances are good to a point but they slow things down and complicate others.

If we had those kind of cops we wouldn't have bad guys. Just kidding!

No there is the tendency on this forum to lean almost too far to the side of the criminal. Checks and balances are good to a point but they slow things down and complicate others.

I believe you assume entirely too much when those of us clamouring for an end to the erosion of civil liberties and procedural protections are not in fact defending 'criminals' but rather, defending the rights of ALL people to not be overly interefered with by the state. The repercussions of reduced procedural rights on ALL citizens is extremely problematic...ignoring that in favour of taking the view that only criminals have something to fear is myopic at best.

Natural justice is culturally dependent, though some scholars like to claim universality. So 'natural' justice would be something even a simple as...you break it, you fix it. 'Natural' consequences are also used in various child-rearing philosophies which of course are also culturally shaped. In the common law system, 'natural' justice deals disproprotionately with the protection of property, but since property itself is an unnatural, very human centered and created notion, what is 'natural' cannot exist outside of the social norms of a group of people. IMO.

Right...forces at play would still ensure that the exercise would not be wholly voluntary, whether those forces are social custom/threat of sanction, or religious in nature. Still...I think the term 'natural' is very misleading. It annoys me.

So in my example, it would be "organic" justice.

So in my example, it would be "organic" justice.

Your label works no better, especially without a definition.

So in my example, it would be "organic" justice.

I totally read that as organic juice, and I was wondering what you were talking about.

I totally read that as organic juice, and I was wondering what you were talking about.

around here, an "organic process" is one that is self-reinforcing, without recourse to official documents or to any authority figures.

around here, an "organic process" is one that is self-reinforcing, without recourse to official documents or to any authority figures.

"Around here?"

Source.

Also, provide some authority for your so called 'organic process'.

"Around here?"

Source.

Also, provide some authority for your so called 'organic process'.

Around here is a software development shop. We're big on organic processes, because we've found that those that require an authority figure tend not to work as well.

In small groups, peer pressure and competition work much better than your boss breathing down your neck.

For instance, each of us takes a number of tasks at the beginning of the week that we believe we can handle by the end of the week. It's not assigned by a boss. We are eager to check our changes in to the code base for two reasons:

1. Because all code checkins require automated unit tests to pass, it's a bit tedious to do check-in, so you want to do it right all in one pass.

2. Checkins take place serially - one person at a time. So if I'm ready to check in before you, I will probably be done before you, and go home before you.

This makes people check in fully tested, fully operational code at a high rate.

If we're done the tasks for the week, we can go home. But since you don't want your own code on your machine to be too far out of line with the team's efforts, you'll probably take more tasks. It's a competitive thing that builds up. Naturally, the next week, if you've been going fast, you'll take more tasks than the week before.

All without a formal onus on working hard.

It's a process (one designed around automated unit tests and checkin procedures) that self-reinforces other behavior (productivity).

property itself is an unnatural, very human centered and created notion

Not in the slightest.

Not in the slightest.

I have dogs that understand "mine", so I am pretty sure that dogs understand property.

I have dogs that understand "mine", so I am pretty sure that dogs understand property.

Exactly. Also animals acting territorial, fighting over food etc.

Not in the slightest.

I have dogs that understand "mine", so I am pretty sure that dogs understand property.

Exactly. Also animals acting territorial, fighting over food etc.

Yes. Dogs have material possessions that they create elaborate social structures around.

Oh wait. No they don't.

Next you'll be telling me it's natural for dogs to wear pants.

What are you two smoking?

I have dogs that understand "mine", so I am pretty sure that dogs understand property.

Dogs do understand "mine". They also understand that if another dog is bigger and meaner than them, "mine" becomes "theirs".

Dogs certainly don't have a concept of property rights. It's more a matter of might-makes-right.

Dogs do understand "mine". They also understand that if another dog is bigger and meaner than them, "mine" becomes "theirs".

Dogs certainly don't have a concept of property rights. It's more a matter of might-makes-right.

See Israel vs. Hamas.

See Israel vs. Hamas.

Yes yes. Totally proving that property is not a human construction, but is rather something dogs also have doggy philosophies built upon.

There certainly are systems of collective property amongst animals, however.

See Israel vs. Hamas.

A conflict based not on the concept of "might makes right", but instead on the concept of having claim to land, whether one controls it or not.

Hamas knows that it cannot defeat the Israeli army, but keeps fighting anyways out of a sense of injustice - an idea that their land has been unfairly taken from them.

Yes yes. Totally proving that property is not a human construction, but is rather something dogs also have doggy philosophies built upon.

I'm pointing out that dogs do have property - and they fight over it just as we do.

I'm pointing out that dogs do have property - and they fight over it just as we do.

You're going to have to do better than that to justify the assertion that animals have a concept of property rights. Though that would be fodder for another thread.

Indeed. Another example: The police department of Salem, Massachusetts, has a picture of a witch flying on a broomstick on their patrol cars,

This is awesome.

but as far as I know, they don't cast spells to turn criminals into newts.

Maybe they do, but their victims "got betta";)

This is awesome.
http://www.salempd.org/police.gif
The above makes no representation as to available services.

Maybe they do, but their victims "got betta";)
How frikkin cool would that be? :D

http://www.salempd.org/police.gif
The above makes no representation as to available services.


Honestly, I want to move to Salem and become a cop now just so I can have that logo.

I have dogs that understand "mine", so I am pretty sure that dogs understand property.

That's a statement about property rights? "Mine", which in the mind of the animal, is no more than "I will fight you to keep this"?

You don't see where property rights as enforceable beyond mere individual force of the possessor goes way beyond "Mine"?