Should The Punishment For Falsely Accusing People Of A Crime Match The Punishment For The Crime Itself?

from the false-accusations-everywhere dept

Mon, Mar 2nd 2015 1:24pm — Mike Masnick

Two very different stories, but both with some startling parallels.

First, Radley Balko's story about how police and attorneys in Louisiana apparently flat out lied to claim that a process server "assaulted" a police officer he was serving (in a police brutality case, no less). There are lots of details there, but suffice it to say, the process server, Douglas Dendinger, did not assault Chad Cassard at all -- even though he was soon arrested for it, and Cassard managed to present seven witnesses (including police officers and two prosecutors who witnessed Dendinger serving the papers on Cassard). Dendinger went through two years of hell because of this, before the case was dropped when cell phone videos made by Dendinger's wife and nephew showed that there was no assault at all. Police and prosecutors lying to protect one of their own? Sure, it happens. But now that it's been exposed, Balko has an important question:

Why aren’t the seven witnesses to Dendinger’s nonexistent assault on Cassard already facing felony charges? Why are all but one of the cops who filed false reports still wearing badges and collecting paychecks? Why aren’t the attorneys who filed false reports facing disbarment? Dendinger’s prosecutors both filed false reports, then prosecuted Dendinger based on the reports they knew were false. They should be looking for new careers — after they get out of jail.

If a group of regular citizens had pulled this on someone, they’d all likely be facing criminal conspiracy charges on top of the perjury and other charges. So why aren’t these cops and prosecutors?

I could be wrong, but my guess is that they’ll all be let off due to “professional courtesy” or some sort of exercise of prosecutorial discretion. And so the people who ought to be held to a higher standard than the rest of us will once again be held to a lower one.

Second, we have last week's story about Total Wipes sending an automated takedown notice to Google demanding tons of perfectly legitimate, non-infringing web pages be taken out of Google's index for infringement. Total Wipes blamed it on a "bug" in its program, which would be more convincing if it hadn't happened before.

This second story has Rick Falkvinge, quite reasonably, wondering why the penalties for false takedowns aren't equivalent to the penalties for infringement, saying that this is the way it works in other parts of the law:

The thing is, this should not even be contentious. This is how we deal with this kind of criminal act in every – every – other aspect of society. If you lie as part of commercial operations and hurt somebody else’s rights or business, you are a criminal. If you do so repeatedly or for commercial gain, direct or indirect, you’re having your ill-gotten gains seized. This isn’t rocket science. This is standard bloody operating procedure.

The copyright industry goes ballistic at this proposal, of course, and try to portray themselves as rightsless victims – when the reality is that they have been victimizing everybody else after making the entire planet rightsless before their intellectual deforestation.

The irony is that at the same time as the copyright industry opposes such penalties vehemently, arguing that they can make “innocent mistakes” in sending out nastygrams, threats, and lawsuits to single mothers, they are also arguing that the situation with distribution monopolies is always crystal clear and unmistakable to everybody else who deserve nothing but the worst. They can’t have it both ways here.

Of course, his claim that this is true in "every" other area is proven somewhat false by the first story above. But the underlying factors in both cases are nearly identical, and it actually goes back to a previous concept that Falkvinge has written about: the "high court" and the "low court." The "nobility" gets a special court when they break the law, with limited consequences. The lowly commoners have to go to the "low court" where the consequences are quite severe. Falkvinge's original point is that we still seem to have the same thing today, and that's clearly shown in both stories above.

If you're in power, you can lie about things to accuse others of serious things that can have serious consequences for them, and there's no real punishment. Instead, it's brushed off as not being important -- sometimes with expressions of understanding about how "these things can happen." I'm reminded of the phrase that we "judge ourselves according to our intentions, but others based on their actions," and that seems to be partly at work here as well (though I question the "intentions" of the prosecutors who lied above). The lies are written off as minor "mistakes," whereas those accused are given no such benefit of the doubt. It's a big problem in the copyright space, certainly, but it's true in many other areas of society as well.

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Filed Under: assault, copyright, crime, false accusations, high court, lies, low court, process server, punishment, radley balko, rick falkvinge
Companies: total wipes

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That One Guy (profile), 2 Mar 2015 @ 11:58am

Should The Punishment For Falsely Accusing People Of A Crime Match The Punishment For The Crime Itself?
No.

It should be worse.

If you're going to accuse someone of a crime, then you'd better be damn sure that they actually did it, given the potential consequences they face should you be wrong.

If you are going to knowingly lie about them committing a crime(or in the case of bogus DMCA claims, not care in the slightest if you lie), then the punishment for doing so should be severe, at the very least as bad as the punishment for what you are accusing them of, and ideally significantly more, along the lines of doubling the punishment the accused was facing for the crime in question.
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Anonymous Coward, 2 Mar 2015 @ 1:28pm

Re: Should The Punishment For Falsely Accusing People Of A Crime Match The Punishment For The Crime Itself?
Have to agree with That One Guy. People in positions of authority and power need to be held to a higher standard and face harsher punishments for violating those positions.
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JustShutUpAndObey, 2 Mar 2015 @ 1:31pm

That used to be the case
In both the Code of Hammurabi and the Lipit-Ishtar law code, the penalty for perjury was to reverse the penalty (or worse).
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themonkeyking145 (profile), 2 Mar 2015 @ 1:34pm

Assumptions
The basic assumption is that people like the individual looking at or judging a given situation are as likely as the individual to do something wrong. There's a very strong bias against The Other in modern culture. That's why cops will defend wife beaters despite evidence, attorneys will support perjury from other attorneys, and IP enforcement types think stuff like Total Wipes is no big deal.

As the popular saying goes, "No one is a villain in their own mind". Assuming someone in similar or near identical circumstances could be a villain brings things a little too close to home for many people. That's generally where this sort of bias springs from.
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Mole6e23, 2 Mar 2015 @ 1:37pm

The irony is that at the same time as the copyright industry opposes such penalties vehemently, arguing that they can make “innocent mistakes” in sending out nastygrams, threats, and lawsuits to single mothers, they are also arguing that the situation with distribution monopolies is always crystal clear and unmistakable to everybody else who deserve nothing but the worst. They can’t have it both ways here.

I would beg to differ. They already have it that way.
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Quiet Lurcker, 2 Mar 2015 @ 1:48pm

Re: That used to be the case
Yabbut, 3800 years is a lot of status quo.
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Seegras (profile), 2 Mar 2015 @ 1:48pm

High Court, Low Court
As usual, some historical tidbits from me ;)

Actually, this refers to something else completely. low justice is for minor infractions and civil disputes, high justice for big crimes, and has the right to capital punishment.

So if you publish a book without being authorized to do so, your case will go to the low court, which sorts out things like the new-fangled copy-right and other civil infractions.

If you've beaten up a servant of your lord (or your city), or have been accused of having done so, you go to the high court. If it turns out said servant had committed perjury, he'd be stripped of his legal rights, including the right to ever again swear an oath in a court...
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Seegras (profile), 2 Mar 2015 @ 1:51pm

Re: That used to be the case
Deuteronomy 19:

18 The judges must make a thorough investigation, and if the witness proves to be a liar, giving false testimony against a fellow Israelite,
19 then do to the false witness as that witness intended to do to the other party. You must purge the evil from among you.
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John Fenderson (profile), 2 Mar 2015 @ 1:55pm

When cops lie
I think that giving false testimony should incur penalties that are more severe than the crime they're testifying about. Further, when the police themselves do this, the penalties should be even worse than that. A LOT worse.

We give the police powers and authorities beyond what the average citizen has. The courts give the cops the benefit of the doubt about truthfulness. Given that, when cops betray that trust by being deceptive, the damage done is far, far worse than under other circumstances and should therefore be punished far, far more harshly.
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connermac725 (profile), 2 Mar 2015 @ 2:00pm

the smart crooks
the really smart ones go into law enforcement
take a guy I went to high school with he was the guy to see if you wanted a cheap but very stolen car stereo he is now a state cop.
or the local cop who would confiscate a teenagers pot plants half went into his personal vehicle the other half went to evidence
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Roger Strong (profile), 2 Mar 2015 @ 2:02pm

Unintended Consequences
We've seen that when a police officer is accused of wrong-doing - even with video evidence all but proving that wrong-doing - the courts, prosecutors and grand juries are heavily biased in favor of the officer.

And so even valid accusations against officers would often end with the punishment against the accuser suggested here.

It should be hard to imagine the person who videotaped the murder of Eric Garner by NYPD officers receiving a murder-equivalent false accusation sentence for it. It really should be....
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Anonymous Coward, 2 Mar 2015 @ 2:02pm

Re: Should The Punishment For Falsely Accusing People Of A Crime Match The Punishment For The Crime Itself?
If you're going to accuse someone of a crime, then you'd better be damn sure that they actually did it,

I think this should not be the case.

The entire reason for trying someone in court is to test accusations. You idea that you damn sure better know if really not a good idea... seriously think about it.

Some women put on air that they damn sure know they were raped... how would you plan to go about testing that fact in that situation? Not easy... you may find that a lot of females would avoid leveling charges when they should make them.

All of this needs to be based around "Knowingly" making false accusations. They you can run their ass outta town on a rail, or through a rail... as per preferences. Try not to let all of this exuberance get everyone into trouble! It is surely a double edge sword if we follow your thresholds!

And I think it reveals another terrible mind set although you may not intentionally think it. All too often people are fast to believe in the criminal guilt of others before they have even seen the evidence.

We are fast approaching a DAMN GUILTY until PROVEN BEYOND ALL SHADOW OF DOUBT state of mind here in the ole USA. And even then... a lot of people are still though of as criminals even when their names were cleared. Character Assassinations utilize this mindset to great effect.
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David, 2 Mar 2015 @ 2:03pm

No.
The penalty should be appropriate for the crime, and the crime is the false infliction of a penalty.

If you are trying to frame someone for murder in a state with the death penalty, that is essentially the same as attempted murder. If you do it in a state without death penalty, that is essentially the same as kidnapping and imprisonment.

When done from a position entrusted with special powers like police and/or law enforcement, those are aggravating circumstances that warrant harsher sentencing than for civilians.

A paid vacation and/or transfer to different duties is an absurdity. Sort of like convicting a child rapist to stay away from the next kindergarten mixer and hand two lollipops to the children of his choice.
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Anonymous Coward, 2 Mar 2015 @ 2:05pm

First story does not contradict the claim
Of course, his claim that this is true in "every" other area is proven somewhat false by the first story above.
His claim is accurate in that, as Techdirt points out, there are procedures and statutes which state what should happen to the perjurers in the first case. Whether the government enforces those statutes to the detriment of the perjurers or not, there is a legal procedure saying they should be punished. On the copyright front, there is currently no law exposing such misconduct to adequate punishment. People outside the content industry may widely agree that there should be, but such a law is not yet on the books.
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Anonymous Coward, 2 Mar 2015 @ 2:14pm

Intellectual Deforestation
Everyone else has already hit on all the things I would have said already so I'll just comment about this.

I love this!
intellectual deforestation.

We need to use this more often.
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pixelpusher220 (profile), 2 Mar 2015 @ 2:35pm

Re: Re: Should The Punishment For Falsely Accusing People Of A Crime Match The Punishment For The Crime Itself?
Accusing someone of a crime is not the issue here. It's the abuse of power and authority that needs to be severely punished.

My accusing Mike Masnick of murder holds as much weight as..well nothing.

Sworn public servants however, have, ahem, sworn to uphold the law and clearly here have broken said laws.
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Anonymous Coward, 2 Mar 2015 @ 2:45pm

Re: the smart crooks
And half of those plants made it from the parking lot into the building. And half of those made it to the evidence check-in desk. And half of those made it to a shelf in the evidence locker.

(Yeah, I'm paraphrasing someone's post from last week... the original was funnier.)
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Anonymous Coward, 2 Mar 2015 @ 2:49pm

Re: Re: Should The Punishment For Falsely Accusing People Of A Crime Match The Punishment For The Crime Itself?
All of this needs to be based around "Knowingly" making false accusations. They you can run their ass outta town on a rail, or through a rail... as per preferences. Try not to let all of this exuberance get everyone into trouble! It is surely a double edge sword if we follow your thresholds!

I agree, there needs to be a distinction between making an accusation and being wrong (e.g. it goes to court and the defendant is innocent), and knowingly making a false accusation.

The first is the cost of civil society, the second is definite evil in my book.
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That Anonymous Coward (profile), 2 Mar 2015 @ 3:30pm

Re: First story does not contradict the claim
but the penalties are meaningless when they can remove them from people deemed worthy of not facing punishment.
In this case they screwed over a mans life for 2 years based on a lie repeated by officers of the court.
Those cops should be arrested, the fact they have not calls into question any case they touch from now on.
The lawyers should be punished, they LIED in legal documents... how can any court trust a single thing they say?
Whats worse is without any punishment for these crimes, they feel empowered to do them again and again.

When the law turns a blind eye to wrong doing by a party who is given a pass because they are special, the law is meaningless.
The fact that Google has to pay a shit ton of money and develop & fund entire systems to deal with bogus complaints is the tip of an iceberg about how the system is being abused by those who were deemed special enough to not need to be honest.
The system is supposed to be fair, and yet it is setup to be as unfair as possible giving a pass to those who are supposed know better but did it anyways.
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Anonymous Coward, 2 Mar 2015 @ 3:44pm

It should be a felony of some sort to frame someone for a felony. Also. officers who flat out lied about what they saw should be fired, because their testimony can never again be trusted. Prosecutors who knowingly filed false reports should be fired, because they cannot be trusted to not do it again. Anyone here who lied under oath should be prosecuted for perjury.

As for copyright, I have always said that there is no greater infringement on your copyright than having someone else take your content down without justification. You have the exclusive right to make copies - and someone is stopping you from doing so.
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Anonymous Coward, 2 Mar 2015 @ 4:35pm

It should. All these neo-Feminazis supporting false rape claims should have something to fear.
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Anonymous Coward, 2 Mar 2015 @ 5:42pm

Copyright-takedown abuse could be ended by amending the DMCA with one simple rule: banning computer-automated accusations and requiring that a human personally evaluate and sign off on --and be responsible for-- each and every instance of claimed infringement.

Computers should not be allowed to make legal claims on their own, ever. Or, failing that, any computer program that is making legal claims needs to have its source code and operational methods made public. This is consistent with the US Constitution's 6th Amendment's ban on secret evidence.
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tommygilley (profile), 2 Mar 2015 @ 7:32pm

Whitehouse.gov Petition
It's about as useful as pissing into the wind, but why not.

https://petitions.whitehouse.gov/petition/penalty-false-takedown-notice-using-dmca-will-be-equal -penalty-posting-violation-dmca/0ksSlmWT
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Anonymous Coward, 2 Mar 2015 @ 7:55pm

Re: Re: Re: Should The Punishment For Falsely Accusing People Of A Crime Match The Punishment For The Crime Itself?
Any prosecutor who KNOWINGLY tries an innocent individual in a death penalty eligible case should be tried and found guilty of attempted murder along with anyone who perjures themselves at trial to the same end.
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Mayson Lancaster (profile), 2 Mar 2015 @ 8:47pm

Civil asset forfeiture of their pensions?
Seems like it would be a fitting penalty...

Where are the DOJ and the Louisiana bar association? At the very least all of these people should lose their jobs, and any pensions.
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Padpaw (profile), 2 Mar 2015 @ 8:54pm

The punishment should be the maximum penalty possible if they intentionally accused someone knowing they were innocent. I would settle for a firing squad. But then I do not like jailing people that go out of their way to harm others.

But that will never happen in America. There the rich and the corrupted justice systems ignore the laws to punish people they do not like regardless if they are guilty of anything. If you have a few million you can buy your way out of any crime. If your a cop you can openly lie and get away with it in court even when the evidence contradicts you.
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Padpaw (profile), 2 Mar 2015 @ 8:57pm

Re:
Forgot to say this.

In the current setting there is now law or justice system in America. You have a criminal organization ruling through fear and the strength of their firepower over the citizenry.

The fact that police and government employees are largely held exempt from the law means there is no law, and once most people realize that all hell will break lose. It is stable as most citizens are ignorant and still blindly trust in the faith that anyone who breaks the law is held accountable.
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Padpaw (profile), 2 Mar 2015 @ 9:01pm

Re: Assumptions
I think people that go out and murder helpless animals to make themselves feel powerful know they are committing evil.

Exactly how twisted would a mind have to be to justify killing someone that's defenceless and doing nothing at all but show you love and affection
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Padpaw (profile), 2 Mar 2015 @ 9:03pm

Re: When cops lie
Cracks me up that in America you trust cops with guns with no strings attached when they are on a murder spree.

yet the average citizen has to jump through hoops to get one.

Even funnier is the fact when the cop kills a defenceless/restrained person for whatever reason, he is allowed to keep his gun.
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Padpaw (profile), 2 Mar 2015 @ 9:06pm

Re: Whitehouse.gov Petition
would these petitions not give them lists of names and other info about potential dissenters?

Considering dissent is being treated as a crime at best and terrorism at worst
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Anonymous Coward, 2 Mar 2015 @ 10:32pm

Re: Whitehouse.gov Petition
That could depend ... like whether or not Chris Dodd is downwind from you ;)
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Anonymous Coward, 3 Mar 2015 @ 12:27am

Re: Should The Punishment For Falsely Accusing People Of A Crime Match The Punishment For The Crime Itself?
I agree!!!

But how do you calculate a punishment such as this...

when there's blatantly no punishment for (wink wink)?
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Anonymous Coward, 3 Mar 2015 @ 12:56am

Good points.

The "good faith" loophole that groups like Total Wipes use to avoid well-deserved perjury charges needs to be closed.

Either the link's infringing, or you've committed perjury. There's no legitimate reason why copyright thugs should escape the justice that they literally *need*.
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PRMan, 3 Mar 2015 @ 1:49am

Re:
My father falsely reported a hit and run. The cops called and said,

"Do you know that falsely reporting a felony is a felony?"

I said, "Yes, but what's this about?"

They said, "Your father falsely reported a hit and run."

I offered to let them take him to prison, but they only wanted to "See if he was OK because he's an old man."

It is fun to remind him that he's the only family member that committed a felony though.
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Anonymous Coward, 3 Mar 2015 @ 3:01am

In Murray Rothbards "The Ethics of Liberty" punishments not only restore a person that which he was deprived, but double it, plus interest.
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Dingledore the Flabberghaster, 3 Mar 2015 @ 4:02am

No
because the the assumption must always be "innocent until proven guilty". And to deter anyone from correctly accusing someone from a crime would be a bad thing to do, especially considering how infrequently some crimes are reported (rape being the most obvious).

There are already laws in place that should have the power to prevent malicious charges. The question should be why are they not regularly used? A public official who withholds evidence that would stop a prosecution is effectively lying to the court - and that should be a perjury charge. Someone taking a made up accusation to the police is wasting police time.

What should be looked at is the cost of defending any charge even when clearly innocent. That massive cost stops many from even trying to demonstrate their innocence. I firmly believe that the initial principle should be that the costs of defence must be borne by the accusers if the charged is proven not guilty.

However, in situations where the law has effectively been changed to the assume guilt - DMCA takedowns being the most obvious - then that "convenience" should come with prescribed charges if abused.
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Paul Renault (profile), 3 Mar 2015 @ 4:35am

Extend the requirement to the juries too.
The wonderful Oral Argument podcast's Christian Turner feels that juries' decisions should also face the same standard by asking them, when they're kinda sure about a guilty verdict, whether they'd be willing to go to jail for the same amount of time, if it's found out that they accused was innocent.
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Anonymous Coward, 3 Mar 2015 @ 6:35am

Re: Re: Should The Punishment For Falsely Accusing People Of A Crime Match The Punishment For The Crime Itself?
Death or exile.

This isn't hard. If you knowingly and wilfully ignore the law in an attempt to incarcerate someone, you should forfeit your right to live among other people. Keep doing this with all these criminals and the problem will eventually resolve itself.
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Anonymous Coward, 3 Mar 2015 @ 7:01am

in a word, yes but not for crimes such as murder when the punishment is death. although having said that, i expect there will be some bright spark disagree
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Pragmatic, 3 Mar 2015 @ 7:06am

Re:
Shut up and make me a sammich.
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limbodog (profile), 3 Mar 2015 @ 7:31am

Of course not. The punishment should fit the crime committed. How much damage was done. How much a person's reputation suffered. How wide the accusation spread. Etc.

It shouldn't have another poorly conceived mandatory sentencing rule.
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Gordon, 3 Mar 2015 @ 8:24am

Not Guilty =/= False Accusation
Let's not lose sight of the fact that 'not guilty' doesn't mean that the accusers are lying.

Strictly speaking, it doesn't even mean that the accused didn't do it (a legal hole which in Scotland is filled by the legacy 'not proven' verdict - i.e. 'we think you did it but the evidence isn't strong enough for a guilty verdict').

In the Dendlinger case, knowingly false statements were made. That would be different to a case where witnesses gave statements to the best of their recollection, but were mistaken, and the evidence as a result was not strong enough for conviction.

As for TotalWipes, their action was knowingly negligent, as they have previous.

Should the punishment for knowingly false / knowingly negligent accusations be the same as for a conviction for the alleged offence? I don't know. But it should be a deterrent.

As a footnote to what I've just said, and in response to those citing rape allegations, the cases (in the UK at least) where women have been convicted of making false rape allegations are tiny in number, and have no relation to the number of cases where the accused is found not guilty.
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Uriel-238 (profile), 3 Mar 2015 @ 8:43am

Are not law enforcement officers members of a higher, elite caste?
When they do terrible things, or lie in court, can we not be assured that their reasons are true and their actions are in good faith?

It makes me think how Harry "The Nose" Falcone was acquitted of the brutal murder of "Squealer" Luciono because seven witnesses said he was taking dance lessons with orphans.
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nasch (profile), 3 Mar 2015 @ 9:07am

Re: Re: Assumptions

Exactly how twisted would a mind have to be to justify killing someone that's defenceless and doing nothing at all but show you love and affection

Pretty twisted, to the point where it does not feel any empathy.
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John Fenderson (profile), 3 Mar 2015 @ 10:34am

Re: Re: When cops lie
"Cracks me up that in America you trust cops with guns with no strings attached when they are on a murder spree."

I am in America, and I don't have any such trust.

"the average citizen has to jump through hoops to get one"

Not really. In the vast majority of America, you can get a gun without jumping through any hoops at all by buying from gun shows or other individuals.
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Deserttrek, 3 Mar 2015 @ 11:43am

in the Dendinger case ALL of the liars belong in prison for a long time and then barred from any type of law or security work. these people are no better than child molesters and should be treated as such
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albrecht de jour, 3 Mar 2015 @ 12:50pm

Take a gun. Kill them all.
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Menns, 3 Mar 2015 @ 7:18pm

Turnabout is fair play
I have a problem with making accusers pay the full price for a false accusation. Does this mean that whenever an accusation is made either the accuser or the accused goes to jail?

But for police officers the remedy is simple. A false accusation, when proven, becomes part of his record - and must be submitted to the defense on all future cases he is involved in. From there on out, that officer is the less credible party when it comes down to his word against the defendant's.

A false accusation now becomes a career limiting move. Should fix things very quickly.
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Gordon, 4 Mar 2015 @ 3:13am

Re: Turnabout is fair play
Does this mean that whenever an accusation is made either the accuser or the accused goes to jail?

See my comment above (#42). Not guilty isn't the same as a false accusation.
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Anonymous Coward, 7 Mar 2015 @ 4:50pm

Re: Whitehouse.gov Petition
Signed.
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nam labalan, 3 Nov 2016 @ 2:39am

false accusations
if u were accused of theft..bec u wash 1 cloth from your neighbors water, wherein you are not aware it was thiers (thinking it was for everybody since u saw them get water from it too, and the faucet is just ouside the apartments) u were called loudly as thief and throw something at you and foul mouthed you... can i sue them for such accusations? or am i really a thief?
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anonymous, 31 Jul 2017 @ 11:34pm

Prosecutors Lie
Prosecutors lie. They lied about 100 times in my trial, and there was absolutely nothing that I could do about it then or now. Worse still, I had been saving hundreds of lives through my work, so they effectively killed many people... But I do not dare to say anything specific because I know they can easily destroy me and no one will stand up to them. Wake up America! This system killed 45,000 people as witches a few hundred years ago (go look it up in Wikipedia). Its still basically the same system, but the witch hunt has changed targets to whatever crimes sound scary to the population. The "justice" system allows the cops and prosecutors to lie because they want to be seen as the protectors--even while they kill with lies.
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Anonymous Coward, 20 Sep 2017 @ 1:52pm

Re: Should The Punishment For Falsely Accusing People Of A Crime Match The Punishment For The Crime Itself?
Your very right
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