Damocles on October 12, 2010, 12:19:55 pm
Maybe we need to go back to the justice meted out to Giles Corey? Refuse to plea to a crooked court and the state can pile rocks on you until you expire (but your estate is safe from confiscation by the government).

The bottom line is that trespassing is usually a fine or maybe 24 hours of jail time, but evidently, refusing to enter a plea when demanded and reserving your right to remain silent is a crime that's much worse.

Exercising you right to remain silent and not meekly bowing down and submitting to the judge gets you an involuntary psych evaluation, several months in solitary, in shackles, and an unfair and non-public hearing on your detainment status.

I had a conversation with a police officer about peaceful protesters that "go limp" and refuse to walk themselves to the police car.  He said that such behavioral was called "passive aggression" and when such "aggression" was "directed" towards a "peace officer", that gave him the right to torture the suspect, including twisting or bending limbs, tazering the subject, and using pepper spray on the limp and handcuffed.  I suppose you're all OK with that?

I would be the first to agree that the treatment that Ms. Canario received was completely out of proportion with the crime she allegedly committed.  However, our system provides judges with considerable discretion on how to conduct trials within their courts.  As with any power provided to an individual with limited accountability, this has the potential to produce very good and very bad results.  In my opinion, this was a bad result.  In the judge's shoes I would have also requested a psych evaluation, but required the results within 48 hours.  If she didn't enter a plea by then, or if the prosecuting attorney didn't produce the psych eval within that time limit, I would have sentenced her to time served and released her.  In my opinion, that would have been an appropriate response.

Regarding passive resistance, I don't see how a police officer would be justified in that use of force when his or her own safety is not at issue.  Tazering a passive resistor is an illegal use of force, and any police officer that claims otherwise is either lying or doesn't understand the law.

Brugle on October 12, 2010, 02:34:42 pm
Second, your statement regarding the government trying its own cases ignores separation of powers.
Separation of powers?  If you have a dispute with a Macy's employee, would it be just for the judge to be a Macy's employee from a different branch?  Obviously not.  If you have a dispute with a government employee, would it be just for an arbiter to be a government employee from a different branch?  Obviously not.

Separation of powers might be considered a way to avoid disaster if a single government employee goes crazy (although I would argue that it's not very effective even for that).  It certainly isn't effective at avoiding the systematic injustice that is inherent in government operations.

As with any power provided to an individual with limited accountability, this has the potential to produce very good and very bad results.
It frequently leads to very bad results, that is obvious.  However, I don't see how giving people nearly unaccountable power could lead to very good results in any more than a tiny fraction of cases.  Do you have any evidence that giving judges nearly unaccountable power could lead to good results in general?  What do you have against holding people responsible for their actions?

In the judge's shoes I would have ...
Oh, goody.  In this one case, if you (instead of the actual judge) had held nearly unaccountable power, then the result might have been less unjust.  Is that supposed to be an argument in favor of unaccountable power?

I don't see how a police officer would be justified in that use of force when his or her own safety is not at issue.
Yes, government agents routinely get away with aggression that is unjustified even by government's own rules.  That's one reason why many of us oppose government.

terry_freeman on October 12, 2010, 05:33:01 pm
Agreed, the US Government must respond to extra-territorial claims. Within its territory, it routinely refuses to accept cases brought by American citizens against the government, or against its agents.

It is not possible to force the Supreme Court to hear any case. They pick and choose which cases to consider. They do not even need to justify their refusal to hear a case.

Apollo-Soyuz on October 13, 2010, 06:27:17 am
I would be the first to agree that the treatment that Ms. Canario received was completely out of proportion with the crime she allegedly committed.  However, our system provides judges with considerable discretion on how to conduct trials within their courts. 

Yes. Yes. Yes. Here we are back to the original point. He's given wide discretion and knows he'll never face accountability.

Unsurprisingly, I have a major problem with this.

Here's another case about a cop that will never face attempted carjacking, brandishing a firearm or assault charges. Skip to 3:10 where all the action starts: http://www.youtube.com/watch?v=RK5bMSyJCsg

As far as I'm concerned, Anthony Graber had the right to use deadly force as soon as the thug out of uniform exited an unmarked police vehicle with a drawn gun. Since Marylanders are disbarred from carrying effective means of self-defense, I'm afraid I might have just run this pig down with my bike to escape the carjacking attempt.

Had that happened, perhaps Cory Maye would be my cell-mate.

As is, Anthony Graber was arrested, (but only after he posted the video) and had a search warrant authorized fishing expedition of his house and effects. (I'm sure the judge that issued that warrant will never be held accountable for his actions either) and was facing felony charges.

Saner heads have prevailed, but I don't see the state pressing criminal charges against the officer or the judge that issued the warrant.

Oh, and the issue appears to be that the police think themselves so special, that they alone have a right to privacy anytime they are out in public acting as a "peace officer". No videotaping public servants allowed.


Damocles on October 13, 2010, 06:55:37 am
Separation of powers?  If you have a dispute with a Macy's employee, would it be just for the judge to be a Macy's employee from a different branch?  Obviously not.  If you have a dispute with a government employee, would it be just for an arbiter to be a government employee from a different branch?  Obviously not.

Separation of powers might be considered a way to avoid disaster if a single government employee goes crazy (although I would argue that it's not very effective even for that).  It certainly isn't effective at avoiding the systematic injustice that is inherent in government operations.

I don't think that your Macy's example is a valid illustration of separation of powers.  Macy's employees of different departments would all be accountable to a single executive officer, it's just a matter of how high you have to go.  In our separation of powers system, the qualitative difference is that members of the judiciary don't answer to the executive or the legislative.  They only answer ultimately to the People, and then only in instances in which they stand for re-election.  Judicial abuses are policed internally within the judiciary, with the various state and federal supreme courts as the ultimate enforcement authority.

It frequently leads to very bad results, that is obvious.  However, I don't see how giving people nearly unaccountable power could lead to very good results in any more than a tiny fraction of cases.  Do you have any evidence that giving judges nearly unaccountable power could lead to good results in general?  What do you have against holding people responsible for their actions?

I beg to differ. We hear about the bad results but don't hear about the good ones, and this creates a perception of abusive behavior that is unfair to the careful reasoning that one can find in most judicial decisions.  As to the evidence you requested, the cases are too numerous to name here, but just off the top of my head I would point you to the Supreme Court decision in Worcester v. Georgia, 31 U.S. 515 (1832).  The Supreme Court upheld the sovereignty of the Cherokee Indian tribe, and held that the state of Georgia had no power to regulate their behavior.  The decision was very controversial and extremely unpopular at the time, but it was the right one.  In my opinion it is quite unlikely that judges would issue unpopular decisions unless they are insulated from the reprisals of negative public opinion.  Independent judges guard our society from demagoguery.

Oh, goody.  In this one case, if you (instead of the actual judge) had held nearly unaccountable power, then the result might have been less unjust.  Is that supposed to be an argument in favor of unaccountable power?

I wasn't making an argument.  I was illustrating my statement that the judge had abused his discretion by contrasting his decision with one that I thought more reasonable.

Yes, government agents routinely get away with aggression that is unjustified even by government's own rules.  That's one reason why many of us oppose government.

Isn't that throwing out the baby with the bathwater?

Damocles on October 13, 2010, 07:29:55 am

Yes. Yes. Yes. Here we are back to the original point. He's given wide discretion and knows he'll never face accountability.

Unsurprisingly, I have a major problem with this.

Here's another case about a cop that will never face attempted carjacking, brandishing a firearm or assault charges. Skip to 3:10 where all the action starts: http://www.youtube.com/watch?v=RK5bMSyJCsg

As far as I'm concerned, Anthony Graber had the right to use deadly force as soon as the thug out of uniform exited an unmarked police vehicle with a drawn gun. Since Marylanders are disbarred from carrying effective means of self-defense, I'm afraid I might have just run this pig down with my bike to escape the carjacking attempt.

Had that happened, perhaps Cory Maye would be my cell-mate.

As is, Anthony Graber was arrested, (but only after he posted the video) and had a search warrant authorized fishing expedition of his house and effects. (I'm sure the judge that issued that warrant will never be held accountable for his actions either) and was facing felony charges.

Saner heads have prevailed, but I don't see the state pressing criminal charges against the officer or the judge that issued the warrant.

Oh, and the issue appears to be that the police think themselves so special, that they alone have a right to privacy anytime they are out in public acting as a "peace officer". No videotaping public servants allowed.


Thanks for the video.  A really interesting incident.  I don't think that Mr. Graber was arrested (an accompanying news report noted that he was not arrested due to a pending medical condition).  I agree that Mr. Graber would have been justified in escaping or running down the officer (although the police car behind him does complicate the legal analysis) as he was reasonably in fear for his safety from an unidentified assailant.  I also think that the result is quite telling: the charges of unlawful wiretapping were thrown out.  Even better, it appears that the judge in the case set precedent, ruling that police officers and other public officials serving in their official capacities cannot avail themselves of the Maryland wiretapping law and cannot demand that cameras be turned off, or prosecute people for taping them without their consent. 

The point I'm trying to make is that although our system is far from perfect, overall it tends to work.  The case of Mr. Graber is an illustration of that principle.  The result was not optimal, but the judge dismissed the charges and ensured that they would not be repeated by throwing out the abusive interpretation that the government had of the Maryland wiretapping law.  It would have been more equitable if Mr. Graber had been reimbursed for his attorney fees and expenses (the report is silent on whether this occurred, but I think it is unlikely).  Who knows what would have happened if he had run down the cop?  From the facts, I would bet that he would have had a good chance of being found innocent of any charges.

J Thomas on October 13, 2010, 08:27:47 am

In my opinion it is quite unlikely that judges would issue unpopular decisions unless they are insulated from the reprisals of negative public opinion.  Independent judges guard our society from demagoguery.

I find the whole thing confusing. For lots of things we do want people to be accountable. Businessmen must try to please their customers, or go out of business. Police should be responsible to some outside force for correct behavior, and should receive strong feedback when they do things wrong, to discourage them from continuing wrong behavior. Etc.

But you make a reasonable argument that judges should do what they personally think is right even when the society around them disagrees. And I want to agree with you.

Perhaps sometimes we should have monopolists who sell us what we ought to have instead of what we want.

Perhaps our politicians should all be independently wealthy. Then they wouldn't be so susceptible to bribes. I've been surprised at sting operations etc -- US Senators were selling themselves so cheap -- usually only a few thousand dollars. But then, if you've already decided the correct choice, and somebody offers you money to do what you've already decided is best for the nation, why not take it no matter how small? And perhaps the bribery is more a sort of survey than anything else. You can ask a politician how he will vote on an issue and he might not tell you -- and if he does tell you, he might change his mind a few minutes later. But if you offer him $3000 and he takes it, there's a much better chance that's actually how he intends to vote.

And it's sad when scientists face public pressure. Say you study something controversial and then you have a choice -- falsify your results and eventually the scientists will catch up with you and ridicule you. Don't falsify them and the media will vilify you immediately and you might lose funding. Perhaps it would be better if scientists could publish anonymously.... But we don't want them to be unaccountable either.

I dunno. It's a puzzle.

terry_freeman on October 13, 2010, 09:01:09 am
Uh, have you considered how the system actually works, before reciting your "separation of powers" mumbo jumbo?

Let's look at the "independent" Supreme Court. The President ( that's the Executive Branch ) nominates a candidate. The Senate ( that's the Legislative Branch ) holds a hearing and says yea or nay. The Supreme Court does not have independent taxing powers, so they get paychecks from somewhere - probably authorized by Congress, the Legislative Branch, and drawn on the Treasury ( Executive Branch, I think. )

How independent is that?

In addition, the people in all these "independent" branches live and work and amuse themselves in one tiny little town. They know each other far better than they do the rest of us out in Anytown, USA. Who do you think they are more accountable to?

Even our carefully whitewashed social studies texts still cover the "court packing" threats  of FDR. When the Supreme Court showed some backbone and ruled that some of his favorite programs were unconstitutional, FDR threatened to increase the number of justices and pack it with his supporters. The Supreme Court caved and rubberstamped his programs. The supposedly "independent" Supreme Court caved to the Executive Branch. How's that "separation of powers" dogma working so far?

The Supreme Court rulings make a big deal about deference to the Legislative Branch. The recent Haller vs. D.C. ruling is an example; the Nine Supremes finally admitted that their is an individual right to keep and bear arms, as it says in the Second Amendment, then hastily added that this right can in fact be infringed for numerous reasons. The D.C. handgun ban failed to pass muster not because it infringed on those rights, but because it effectively stamped them out altogether.

But the plain language of the Second Amendment does not say the right to keep and bear arms "shall not be stamped out"; it says "shall not be infringed."

In the MacDonald vs Chicago case, the lead attorney attempted to breathe some life into the long-overlooked "privileges and immunities" clause of the 14th Amendment, and the Supreme Court chose to ignore that clause utterly. What's a Constitution worth, if the nine Supremes choose to redact all the good bits?

This is why the efforts of the Tenth Amendment organization, and Thomas Woods' Nuliification book, are gaining traction; the Great Supreme Central Government model has totally failed to deliver on the promise of "protecting our liberties."



Damocles on October 13, 2010, 09:21:52 am

Perhaps sometimes we should have monopolists who sell us what we ought to have instead of what we want.


Strangely enough, the answer is sometimes yes.  We would better off if a benevolent monopolist were selling us what we should have instead of what we want.  "You want that 3,000 calories pizza?  Nope, sorry, you don't exercise enough, have this salad instead."  The problem is how to ensure that the monopolist stays benevolent, and how to guard against other abuses.  Our society values accountability and freedom of choice and so we don't believe that most of our consumer choices should be dictated by monopolists, even benevolent ones.  Justice is a different matter however.  If the French Revolution has taught us anything, it is that majority rule can be just as tyrannical and abusive as regimes with little or no accountability.  Sometimes the majority is wrong, and so we rely on people who have demonstrated good judgment in order to moderate the excesses of "the masses".  It's not perfect, but it's what we've got.

Perhaps our politicians should all be independently wealthy. Then they wouldn't be so susceptible to bribes. I've been surprised at sting operations etc -- US Senators were selling themselves so cheap -- usually only a few thousand dollars. But then, if you've already decided the correct choice, and somebody offers you money to do what you've already decided is best for the nation, why not take it no matter how small? And perhaps the bribery is more a sort of survey than anything else. You can ask a politician how he will vote on an issue and he might not tell you -- and if he does tell you, he might change his mind a few minutes later. But if you offer him $3000 and he takes it, there's a much better chance that's actually how he intends to vote.


Some countries have done this, with great success.  Singapore, for example, pays its government officials lavishly (all the while punishing corruption extremely harshly), and this has had two results. One, their corruption rates are amongst the lowest in the world.  Two, the Singapore government attracts its brightest and best citizens.  Whatever problems that government has, incompetence and corruption are not among them.  I have often advocated for the same system in the U.S.  I have quite frequently received negative reactions to the suggestion .  If we tripled the salary of senior government decision makers and legislators, I would bet that corruption rates would plummet.  And given the size of the expenditures authorized by those concerned by such a raise, it would be money well spent.  But many people have trouble grasping this concept, and so public opinion is squarely opposed to those government raises.  Sometimes the People don't know what is good for them.

And it's sad when scientists face public pressure. Say you study something controversial and then you have a choice -- falsify your results and eventually the scientists will catch up with you and ridicule you. Don't falsify them and the media will vilify you immediately and you might lose funding. Perhaps it would be better if scientists could publish anonymously.... But we don't want them to be unaccountable either.

Don't get me started on the impact of politics on science.  The refusal to allow public funding for stem cell research based purely on public opinion concerns, when taking into account the potential benefits of such research, was an absolute travesty.  Let's not even get into evolution, global warming or genetically modified crops.

I dunno. It's a puzzle.

On that we agree my friend.

bjdotson on October 13, 2010, 12:10:02 pm
The problem with a benevolent dictator is that it is up to the dictator to decide what is benevolent.

Brugle on October 13, 2010, 08:15:13 pm
It frequently leads to very bad results, that is obvious.  However, I don't see how giving people nearly unaccountable power could lead to very good results in any more than a tiny fraction of cases.  Do you have any evidence that giving judges nearly unaccountable power could lead to good results in general?  What do you have against holding people responsible for their actions?

I beg to differ. We hear about the bad results but don't hear about the good ones, and this creates a perception of abusive behavior that is unfair to the careful reasoning that one can find in most judicial decisions.  As to the evidence you requested, the cases are too numerous to name here, but just off the top of my head I would point you to the Supreme Court decision in Worcester v. Georgia, 31 U.S. 515 (1832).  The Supreme Court upheld the sovereignty of the Cherokee Indian tribe, and held that the state of Georgia had no power to regulate their behavior.  The decision was very controversial and extremely unpopular at the time, but it was the right one.  In my opinion it is quite unlikely that judges would issue unpopular decisions unless they are insulated from the reprisals of negative public opinion.  Independent judges guard our society from demagoguery.

I apologize for going down that road.  Sure, you might be able to come up with a list of supposedly unpopular but supposedly correct decisions that is longer than a list of supposedly unpopular but supposedly incorrect decisions, but this is a side issue.  My main point is that government courts are a very poor vehicle for pursuing justice, and no tinkering with the way that judges are given nearly unaccountable power is going to change that.

Yes, government agents routinely get away with aggression that is unjustified even by government's own rules.  That's one reason why many of us oppose government.

Isn't that throwing out the baby with the bathwater?

No.

A society fundamentally based on government aggression (the initiation of violence or threats of violence) is inherently unjust.  A society based on voluntary cooperation can come much closer to being just.

Even if you can imagine a government doing something better than voluntarily cooperating people, is that a reason to accept massive government oppression?

jamesd and quadibloc like governments, since it would be much easier to get a government to kill large numbers of innocent people that hold a religion that they don't like.  Most of us don't consider that to be an argument in favor of government, but perhaps you agree with them?

The point I'm trying to make is that although our system is far from perfect, overall it tends to work.

Work?  For whose benefit?  Not the general public, that's for sure.


Perhaps sometimes we should have monopolists who sell us what we ought to have instead of what we want.


Strangely enough, the answer is sometimes yes.  We would better off if a benevolent monopolist were selling us what we should have instead of what we want.  "You want that 3,000 calories pizza?  Nope, sorry, you don't exercise enough, have this salad instead."  The problem is how to ensure that the monopolist stays benevolent, and how to guard against other abuses.

Ignore the point that there is no way to ensure that a pizza man is benevolent.  Ignore the point that a pizza man would also need to be nearly omniscient to determine when a given person should have a pizza or a salad.  Ignore the extra police needed to make sure that people eat their salads (with extra jails for those who refuse and torture chambers for the really stubborn cases).  Ignore the middle-of-the-night SWAT raids searching for people with contraband pizza ingredients.  Ignore the extra taxes to pay for all that.

What makes this example really stupid is that nothing in it requires a monopoly.  If you want pizza oppression (with the police, jails, torture chambers, SWAT raids, taxes, and everything else), just decree pizza oppression.  There's no need to also have a pizza monopoly, which simply guarantees lousy pizza, lousy salads, and high prices in addition to the oppression.

If you have an argument in favor of coercive monopoly, you haven't told it to us yet.

If the French Revolution has taught us anything, it is that majority rule can be just as tyrannical and abusive as regimes with little or no accountability.

Agreed but off-topic.  Majority rule is not the issue.  Rule is the issue.

Sometimes the majority is wrong, and so we rely on people who have demonstrated good judgment in order to moderate the excesses of "the masses".

You've got to be kidding.  Elections don't select for good judgment.  Political appointments don't select for good judgment.

It's not perfect, but it's what we've got.

It's not the worst possible system, but it's incredibly bad.  It is what we've got.  Sigh.

macsnafu on October 14, 2010, 09:34:33 am
You know, as an anarcho-capitalist and a Perry Mason fan, I'm really enjoying this arbitration scene.  I'm genuinely curious to see how it turns out. 
I love mankind.  It's PEOPLE I can't stand!  - Linus Van Pelt.

SandySandfort on October 14, 2010, 02:03:01 pm
You know, as an anarcho-capitalist and a Perry Mason fan, I'm really enjoying this arbitration scene.  I'm genuinely curious to see how it turns out. 

An on-topic poster? How the hell did you slip in here?   ;D

Just so you know, we weren't after a Perry Mason trial, just an illustrative one. And any way, things lead to things, that lead to things.

macsnafu on October 14, 2010, 02:34:58 pm
You know, as an anarcho-capitalist and a Perry Mason fan, I'm really enjoying this arbitration scene.  I'm genuinely curious to see how it turns out. 

An on-topic poster? How the hell did you slip in here?   ;D

Just so you know, we weren't after a Perry Mason trial, just an illustrative one. And any way, things lead to things, that lead to things.

In Perry Mason, his client is almost always innocent and is being railroaded by the police.  So no, I'm not really expecting a Perry Mason trial here, either.
I love mankind.  It's PEOPLE I can't stand!  - Linus Van Pelt.

terry_freeman on October 14, 2010, 09:17:57 pm
Well, I'm figuring the guilt of the hijackers is pretty well known, from further back in the comic. Any drama will have to come from discovering something new, such as who put them up to, or an attempt to silence them, or something of the sort.

Meanwhile, it's entertaining to wonder how these proceedings might differ from the Terran courts that we know and loathe so well.


 

anything