stories filed under: "justice"

Harper's Gives Prestigious Platform To Famous Writers So They Can Whine About Being Silenced

from the freedom-from-consequences-is-not-free-speech dept

Wed, Jul 8th 2020 9:31am — Mike Masnick

There's a slightly bizarre Letter on Justice and Open Debate that Harper's Magazine is publishing, signed by a long list of famous people (many of whom I respect, and plenty of whom I think are terribly entitled wannabe "controversial" intellectuals who are really just assholes). The framing of the letter is one I've heard quite a lot of late: concerns that there is some sort of "illiberal attack on free speech," in which certain individuals and their ideas are no longer even allowed. It's the more intellectual argument against so-called "cancel culture." And, yes, there are examples of people being shut down for expressing their ideas, but it is much less common than people would have you believe. In many cases, what people are complaining about is not that their speech is being shut down, but that they are facing consequences for their speech being ridiculous.

There are few things more misunderstood than the distinction between speech and consequences. Indeed, all too frequently people argue that consequences from speech are attempts to stamp out free speech, and just as common is the idea that actual attempts to silence free speech (e.g., SLAPP defamation lawsuits) are just "consequences" of speech. Neither is accurate. Attempts to stop free speech are attempts to use state power (such as the courts) to stop people from being able to express themselves. But people saying your ideas are bad and venerable institutions shouldn't amplify them is not an attack on free speech or open inquiry. It's a recognition that not all ideas are equal, and not all ideas deserve the kind of escalation and promotion that some speakers wish they had.

This goes back to two recent discussions we've had here on Techdirt. First, a discussion about the differences between moderation, discretion, and censorship along with a followup on editorial discretion, and the debate over the NY Times publishing Tom Cotton's op-ed about sending in the military in response to the possibility of violence at mostly-peaceful protests. There were a bunch of people who responded to criticism of the Times by claiming it was an attack on speech, which was utter nonsense. If the NY Times chooses not to publish something (as it does every damn day) that's not censorship and it's not shutting down debate of difficult ideas. It's just editorial discretion. The fact that the NY Times eventually forced out the editor who made the bad decision to publish Cotton's piece was not an attack on free speech but consequences for doing a bad job. That's consequences for speech, and not censorship.

Back to the open letter at hand. It seems to confuse these concepts greatly. I agree that we should be vigilant and concerned about attacks on free speech, but almost nothing described in the letter is an actual attack on free speech.

The free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more constricted.

First off, hogwash. There are more places and ways to speak your mind than ever before, and the free exchange of information and ideas is more available and accessible to all sorts of voices than ever before in history. The idea that it's "more constricted" has no basis in reality. There are so many different ways to get ideas out there today, and that has actually enabled tons of previously suppressed voices to speak out loudly and clearly -- even if sometimes it's to point out that the supposed wisdom of others is anything but. There is no real evidence of any "constriction." There is evidence that many people are utilizing their newfound voices and ability to express themselves to show that the emperor has no clothes when it comes to some of the ideas presented by the old guard.

While we have come to expect this on the radical right, censoriousness is also spreading more widely in our culture: an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty.

With so many famous and serious authors signing onto this letter, I have to call out the use of the word "censoriousness". This word is commonly misused and misunderstood. It does not mean, as many assume, prone to censorship. That word is "censorial." Censorious actually means hypercritical of others, not trying to force them into silence. Given the literary nature and stature of the signatories of this letter, I would assume that those who wrote this (1) know this and are actually using the word correctly, but know full well that (2) most readers will assume the other, mistaken, interpretation of the word.

As to the larger point of this sentence, it is still, itself, quite problematic. First off, "public shaming" and "ostracism" are literally examples of counterspeech and open debate. In other words, this sentence appears to be complaining about the very thing the authors claim to be supporting: counterspeech. Public shaming and ostracism are the consequences of speech that a group feels is ridiculous, problematic, dangerous or otherwise not worth spreading widely. That's the opposite of being censorial. It is the opposite of shutting down speech. It is literally people speaking up to explain why those who hold odious views should be shamed for those views. It is a form of counterspeech and consequences from that counterspeech. On top of that it is an attempt to encourage bodies that host, promote, and elevate speech to think carefully about which speech deserves it.

That is quite different than actually censoring such speech and suggesting that no one should ever be allowed to say what they want anywhere. It is saying if you have dumb ideas, people may think you're dumb, and may ask why others are elevating those dumb ideas. The protests are not to say you can't speak, but rather to ask "why is this speech being held up as insightful or praiseworthy?"

It is only on the very final point of this sentence that I agree with the authors. It is, indeed, a problem when we try to dissolve complex policy issues "in a blinding moral certainty," and yet... that also seems to be exactly what the authors of this very letter are doing. They are saying that it is morally unconscionable that some of them and their friends have been censured (not censored) for their non-serious ideas. And that is fundamentally a refusal to recognize the complexity of how speech, counterspeech, and consequences work with a "moral certainty" that their own august voices being shunned and shamed must be bad.

We uphold the value of robust and even caustic counter-speech from all quarters.

Unless it includes public shaming or consequences for your in-group speech, apparently. Indeed, this is the most frustrating thing about this letter. It seeks to do to others exactly what it, itself is complaining about.

But it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought.

Yes, via counterspeech. And, again, the complaint is not that one is allowed to speak wacky ideas, but rather that those ideas are being hosted, elevated, or held up as special when they are in fact trash.

More troubling still, institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishments instead of considered reforms.

This is a complaint about consequences of speech, not speech. It is a complaint about how people react to the counterspeech the authors falsely claim to be so supportive of.

Then comes the list of examples -- none linked, none with details.

Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class; a researcher is fired for circulating a peer-reviewed academic study; and the heads of organizations are ousted for what are sometimes just clumsy mistakes.

With the possible exception of public schools (which have more restrictions as government entities), all of these appear to be about the actions of private organizations making decisions based on counterspeech, and presenting speakers with the consequences of speech that many have deemed (often for very good reasons, though not always) unworthy of praise, promotion or elevation.

Read that sentence again carefully. What the signatories here seem to be requesting is not more free speech. Nor is it more counterspeech (indeed, it's an attack on counterspeech). They appear to be asking for freedom from consequences for their own speech. Please don't publicly shame us or make our bosses rethink our employment for our speech, no matter how bad it is. That is not a pro-free speech stance. It is a anti-consequences stance, and it's truly disappointing to see many of the signatories endorse this.

Whatever the arguments around each particular incident, the result has been to steadily narrow the boundaries of what can be said without the threat of reprisal.

The first clause of this sentence is doing a lot of heavy lifting. The arguments matter. The arguments are the counterspeech. The arguments are the speech that the signatories of this letter seem so uncomfortable with. The arguments have been persuasive. That's why these signatories are so upset. The counterspeech has been effective. It has resulted in consequences as institutions have recognized that maybe they shouldn't be employing people with bad ideas, or promoting and elevating those ideas.

And, again, it is fundamentally ridiculous and ahistorical to argue that the boundaries of what can be said have narrowed. Honestly, you do not have to go back very far to find examples of topics of conversation that were fundamentally taboo and are now widespread and common. And many of those new ideas have resulted in massive, important social change: civil rights and civil liberties now exist in more meaningful forms than they ever did before because of people speaking out. The ability of LGBTQ+ people to marry whom they love coming just decades after it was literally illegal to do so is a result of more people being able to speak out. The ability of the Black Lives Matter movement to rally so many people in support of their cause and pull the curtains back on centuries of institutional, systemic racism is a result of more people being able to speak out.

The idea that there's been some narrowing of ideas is nonsense. These people are getting criticized for their bad ideas and their response is to play victim and pretend that the space in which they can speak has narrowed. They're full of shit.

We are already paying the price in greater risk aversion among writers, artists, and journalists who fear for their livelihoods if they depart from the consensus, or even lack sufficient zeal in agreement.

Oh, come on. Spare me the sob story. Go down the list of signatories. Many are incredibly famous, are regularly published in the top publications, and often appear on TV. They have no fear for their livelihoods. And trust me, whatever "contrarian" ideas they claim they're not able to share are, in fact, still being shared widely. There are all sorts of ways in which they get to express their viewpoints, and they do. Getting criticized for those ideas is counterspeech -- the the thing they claim to be supporting. They're just playing the victim.

This stifling atmosphere will ultimately harm the most vital causes of our time. The restriction of debate, whether by a repressive government or an intolerant society, invariably hurts those who lack power and makes everyone less capable of democratic participation.

If the problem was a repressive government actually engaged in censorship, I would agree wholeheartedly. Yet, note that in their list of examples they do not provide a single one that involves a repressive government. Rather they only present examples of private entities making decisions (consequences) based on counterspeech. Counterspeech which these cowards pretend they support.

The way to defeat bad ideas is by exposure, argument, and persuasion, not by trying to silence or wish them away.

We agree. And yet, the only ones trying to silence anyone here are those in this letter, saying that public shaming is somehow beyond the pale. It's almost as if they don't really want "argument and persuasion" while pretending that's exactly what they do want. If they believe that the public shaming (counterspeech) is bad, then they should go right ahead and use argument and persuasion to show why it's actually bad, without claiming it's an unfair attack on their speech. Inasmuch as this letter attempts to do so, it fails. They should recognize that if their arguments suck -- as they often do -- people nowadays are less afraid to call that out.

We refuse any false choice between justice and freedom, which cannot exist without each other.

A meaningless, empty sentence.

As writers we need a culture that leaves us room for experimentation, risk taking, and even mistakes.

Indeed. On this I agree. But if you look around, there are so many wonderful experiments and plenty of risk taking going on. More than ever before. That's not the problem. The problem is this privileged bunch of elites are upset that people are now actually willing to call out their bad ideas as bad.

We need to preserve the possibility of good-faith disagreement without dire professional consequences.

And that gives away the ballgame: "we want to present bad ideas without losing our readers or our jobs." That's just not how it works. These people have spent their lives protected in ivory towers, and are now facing real free speech from people who are outside of their privileged bubble, and are freaking the fuck out about it.

If we won’t defend the very thing on which our work depends, we shouldn’t expect the public or the state to defend it for us.

Sure, but stop pretending consequences and counterspeech are anti-speech. You're not actually the brave truth tellers you want to be. You're coming off as privileged elitists who are being challenged on ideas for the first time. The signatories are so quick to clutch pearls about people actually calling out bad ideas as bad, and saying that maybe institutions who have editorial discretion should be a bit more discretionary, that they seem to think facing consequences for speech is somehow anti-free speech. It's not.

Filed Under: cancel culture, debate, discretion, free speech, justice, moderation, open debate, promotion

413 Comments

Judge Kozinski: There's Very Little Justice In Our So-Called 'Justice System'

Legal Issues

from the overrun-by-perverts-and-their-incentives dept

Thu, Jul 16th 2015 9:04am — Tim Cushing

Judge Alex Kozinski has long been one of the few judges willing to speak up against our nation's thoroughly corrupted justice system. It's not the normal form of corruption, where juries and judges are openly bought and sold. It's corrupted, as in bastardized. Or debased. What was set up to provide citizens with a fighting chance against accusations brought by those with vastly more power has instead become exactly the sort of system these checks and balances were meant to prevent. In many cases, prosecutions more resemble railroading than actual due process.

A few years back, Kozinski pointed out one of these contributing factors to this corruption: the deliberate withholding of exonerating evidence from defense lawyers.

There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.

This is the damning opening sentence of his dissent in a case where the government pursued a "thoughtcrime" prosecution. At the center of it were Google searches the government claimed supported its accusations that the accused had intended to use the ricin he'd developed in his lab as a biological weapon. Along the way, actual physical evidence was mishandled by investigators, leading to an investigation of the police lab -- an investigation that was never disclosed to the defense team. But the panel let the prosecution walk away from its misdeeds and Kozinski called them out for it.

The panel’s ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it’s best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here. A robust and rigorously enforced Brady rule is imperative because all the incentives prosecutors confront encourage them not to discover or disclose exculpatory evidence.

Due to the nature of a Brady violation, it’s highly unlikely wrongdoing will ever come to light in the first place. This creates a serious moral hazard for those prosecutors who are more interested in winning a conviction than serving justice. In the rare event that the suppressed evidence does surface, the consequences usually leave the prosecution no worse than had it complied with Brady from the outset.

Professional discipline is rare, and violations seldom give rise to liability for money damages. Criminal liability for causing an innocent man to lose decades of his life behind bars is practically unheard of. If the violation is found to be material (a standard that will almost never be met under the panel’s construction), the prosecution gets a do-over, making it no worse off than if it had disclosed the evidence in the first place.

He has now published a new paper that attacks the weaknesses of the system, point-by-point, starting off with a harrowing opening paragraph:

Though we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial. Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.

Kozinski points to several false assumptions jurors (and judges) make -- unfounded beliefs that have been encouraged over the years by law enforcement and prosecutors.

The government tells us that eyewitnesses (at least, its eyewitnesses) are reliable. Any person with two eyes who can "corroborate" the prosecution's narrative is treated as somewhere between George Washington and Jesus Christ in terms of reliability and honesty. (This deference suddenly disappears when the defense introduces its eyewitnesses. This hypocrisy extends to confidential informants -- criminals whose honesty is always questioned by law enforcement unless their statements help them advance their investigations, in which case they're suddenly upstanding citizens wholly unmotivated by the desire to remain unincarcerated.)

This belief is so much part of our culture that one often hears talk of a “mere” circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races… In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases… Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony.

Other long-held assumptions are equally questionable. Every juror who has ever watched a TV crime procedural is having his or her head filled with questionable assertions about the trustworthiness of certain forms of evidence. This would be fine if it were limited to fictional representations of police work. But it isn't. Prosecutors and courts remain equally credulous of this evidence, even after multiple issues with both have proven them more fallible than they're portrayed.

Identifying fingerprints taken in controlled situations (i.e., bookings) can provide fairly decent ID matches. But those recovered in the field -- latent prints found at crime scenes -- are far less accurate. The same goes for DNA. While it can provide very close matches in controlled situations, most DNA evidence is recovered in less-than-ideal circumstances, and is far too often subject to speculative conclusions that are often guided by what investigators want to find, rather than what they've actually found. Just because a method is "scientific" doesn't mean it isn't subject to bias.

DNA comparison, when properly conducted by an honest, trained professional will invariably reach the correct result. But the integrity of the result depends on a variety of factors that are, unfortunately, not nearly so foolproof: the evidence must be gathered and preserved so as to avoid contamination; the testing itself must be conducted so that the two samples being compared do not contaminate each other; the examiner must be competent and honest. As numerous scandals involving DNA testing labs have shown, these conditions cannot be taken for granted, and DNA evidence is only as good as the weakest link in the chain.

The same goes for almost every piece of forensic evidence the public and the courts have long accepted as being near-infallible.

Spectrographic voice identification error rates are as high as 63%, depending on the type of voice sample tested. Handwriting error rates average around 40% and sometimes approach 100%. False-positive error rates for bite marks run as high as 64%. Those for microscopic hair comparisons are about 12% (using results of mitochondrial DNA testing as the criterion).

Far too often, these forensic methods are treated as incorruptible science when they're actually far from it.

Some fields of forensic expertise are built on nothing but guesswork and false common sense. Many defendants have been convicted and spent countless years in prison based on evidence by arson experts who were later shown to be little better than witch doctors. Cameron Todd Willingham may have lost his life over it.

And so it goes. A calamity of errors. A full-blown catastrophe masquerading as an equitable system. Human memories are particularly fallible but human testimony under oath is considered sacrosanct. Judges act as though juries are decent human beings who will follow specific instructions, rather than act like ordinary human beings and act on their preconceptions and biases instead. Prosecutors will supposedly follow the rules, even though they're working from a supposed disadvantage (the presumption of innocence), rather than do whatever they can to rack up another "win."

And the "presumption of innocence" is a joke. Far too many people still believe an indictment is an indicator of guilt. Defense lawyers are actually the ones working uphill, because the presumption of innocence is the ideal, rather than the baseline. "Beyond a reasonable doubt" isn't much of a hurdle when jurors (and even some judges) view the accused as guilty before anyone even starts presenting evidence.

Human minds are terrible things and yet the justice system continues to operate on the fallacy that they're efficient machines capable of determining innocence or guilt. Kozinski points out that something as far removed from the verdict as the opening statement can influence the entire trial.

Even more troubling are doubts raised by psychological research showing that “whoever makes the first assertion about something has a large advantage over everyone who denies it later.” The tendency is more pronounced for older people than for younger ones, and increases the longer the time-lapse between assertion and denial. So is it better to stand mute rather than deny an accusation? Apparently not, because “when accusations or assertions are met with silence, they are more likely to feel true.”

To the extent this psychological research is applicable to trials, it tends to refute the notion that the prosecution pulls the heavy oar in criminal cases. We believe that it does because we assume juries go about deciding cases by accurately remembering all the testimony and weighing each piece of evidence in a linear fashion, selecting which to believe based on assessment of its credibility or plausibility. The reality may be quite different. It may be that jurors start forming a mental picture of the events in question as soon as they first hear about them from the prosecution witnesses. Later-introduced evidence, even if pointing in the opposite direction, may not be capable of fundamentally altering that picture and may, in fact, reinforce it. And the effect may be worse the longer the prosecution’s case lasts and, thus, the longer it takes to bring the contrary evidence before the jury.

Trials in general, and longer trials in particular, may be heavily loaded in favor of whichever party gets to present its case first—the prosecution in a criminal case and the plaintiff in a civil case. If this is so, it substantially undermines the notion that we seldom convict an innocent man because guilt must be proven to a sufficient certainty.

So, the system is broken. And there is no easy remedy. The problem can only be made worse, if the system continues to operate as it has been. And every "tough on crime" initiative only adds to the flaws. Take mandatory sentencing, for example. What is meant to curb future criminal activity has really only insured that the government can wrongfully imprison innocent people for longer periods of time. Every exoneration stemming from these multiple systemic flaws is treated dismissively as some sort of fluke. Even as more evidence mounts that the system is openly abused, the level of credulity granted the abusers has remained relatively steady. And if you're wrongfully imprisoned, you're pretty much screwed. The logistical and legal obstacles standing between you and a reexamination of your case are close to insurmountable.

To begin with, they are in prison and thus unable to pursue leads the police might have missed; they have to rely on someone on the outside to do it, and that’s often difficult or impossible to accomplish. A prisoner’s access even to his counsel is severely restricted once he’s incarcerated. A loyal friend or relative might do it, but friends and even relatives often abandon defendants who are convicted, no matter how much they may protest their innocence. A few prisoners may obtain the help of an innocence project, but the work is labor-intensive, resources are scarce and manpower is limited, so innocence projects engage in triage, focusing on the most promising cases. Of course, it’s often difficult to tell whether a case is promising until you look closely at it, so a promising case can easily be overlooked.

But the biggest problem is that new evidence is hard—and often impossible—to find. If it’s a physical crime, police secure the crime scene and seize anything that looks like it could be relevant. The chance of going back years later and picking up new clues is vanishingly small. The trick then is to get whatever evidence the police have, assuming they didn’t destroy it or release it once it was clear that it wouldn’t be used at trial. If the crime is non-physical, such as fraud, child pornography or computer hacking, the police seize all the relevant computers, hard drives and paper records (including any exculpatory evidence the suspect may have there) and may well discard them after the conviction becomes final…

I think it’s fair to assume—though there is no way of knowing—that the number of exculpations in recent years understates the actual number of innocent prisoners by an order, and probably two orders, of magnitude.

Kozinski doesn't just offer up problems, though. He has a long list of suggested solutions. Juries need to be handled better throughout the course of the case, rather than mostly ignored until it's time to reach a verdict. Jury instructions should be clear, concise and in print. Jurors should be allowed to take notes and discuss the trial with other jurors while the case is ongoing.

Prosecutors should be subject to open file discovery. Every police interrogation should be video recorded. Eyewitness testimony needs to face more scrutiny and to be subjected to standardized examination. The same goes for other evidence entered by the prosecution. The government should start funding "Integrity Units" -- independent bodies that examine questionable convictions, as well as questionable prosecutorial behavior.

Prosecutors should be held to new Brady (exculpatory evidence) standards to ensure all possible info makes its way to the defense. This needs to be followed up by the deployment of sanctions and meaningful punishments for violations. The first good faith effort the government can make is to strip away the secrecy surrounding accusations of prosecutorial misconduct and allow the public to see which of its public officials are abusing an already-badly abused system. Along with this, prosecutorial immunity protections need to be scaled back severely. In addition, Kozinski proposes treating prosecutorial misconduct as a civil rights violation, which would open these offices up to DOJ investigations and consent agreements, as well as give the wrongly-accused a more efficient route to redress their grievances.

Another way to ensure the justice system serves the public rather than itself is to remove the process of electing judges. Incumbent legislators have done very little to ensure they leave their office in better shape than when they first arrived. The same goes for judges, who can often turn a little public support into a lifelong career of playing to the crowd, rather than ensuring justice is done.

The system is broken. I'm not sure it can even be fixed. But some of its worse aspects can be mitigated. I do appreciate the fact that someone inside the system is willing to not only point out its extensive flaws, but also offer guidance on how it can be improved. What we really haven't seen though is someone from the prosecutorial end call out colleagues for their ritualistic abuse of the system, and I think that needs to happen before we start to see any meaningful improvements. And that's almost impossible to do in an area where you're only as good as your conviction rate.

Filed Under: alex kozinski, courts, justice, justice system, legal system, tropes

Mandatory Sentencing Guidelines Have Nothing To Do With 'Justice'

Legal Issues

from the throwing-people-away dept

Thu, Feb 26th 2015 1:03am — Tim Cushing

One of the many problems with America's criminal justice system is the use of federally-mandated sentencing guidelines. These policies take a one-size-fits-all approach to sentencing, stripping away the chance of any leniency being applied by the presiding judge. The guidelines demand ridiculously lengthy prison terms for certain crimes -- the foremost being anything drug-related. Following close behind it are mandatory sentences for sexual offenses. What's meant to act as an effective deterrent has instead become an easy way to lock up people for far longer than their criminal activity would warrant.

One judge found out just how out of touch federal sentencing guidelines are when he did something out of the ordinary: he asked the jury's opinion. (via Simple Justice)

The crime was one of the most universally-loathed: the collection and distribution of child porn. And the perpetrator was completely unsympathetic.

When government agents used cutting-edge software to hack into the hard drive of Ryan Collins’s computer, they found more than 1,500 sexually-explicit images of children, some of whom were younger than twelve. The agents also discovered file-sharing programs, indicating that Collins may have been distributing the pornography online.

Collins was unrepentant, even after a jury in Cleveland, Ohio convicted him of possessing, receiving, and distributing child pornography. The prosecutors sought the statutory maximum sentence of 20 years’ imprisonment, and the federal sentencing guidelines would have allowed a term of as long as 27 years.

Even when faced with someone as apparently damnable as Ryan Collins, the jury's suggested sentence was lower than the sentencing guidelines called for. Far lower.

Before dismissing the jury, [Judge Gwin] asked each member what they thought would be an appropriate sentence for someone who had downloaded child pornography. According to Gwin, the average of the sentences they recommended was only 14 months.

This admittedly-small sampling shows that mandatory sentencing guidelines do not match up -- at all -- with what the public believes to be fair and just. These guidelines are supposedly written on behalf of the general public, with Congress and other government bodies acting to "protect" us from drug dealers, sex offenders, hackers, etc. by locking them away for extended periods of time. But it appears the public may still feel "protected" without putting child porn enthusiasts behind bars for a quarter of a century.

And it's not just Judge Gwin's peculiar query -- although he appears to be the first to make this line of questioning public. Other judges have heard similar answers from jury members, behind the scenes.

Iowa district court judge Mark W. Bennett:

"Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence -- every time – even here, in one of the most conservative parts of Iowa, where we haven't had a 'not guilty' verdict in seven or eight years – they would recommend a sentence way below the guidelines sentence."

Why wouldn't judges ask the jury's opinion on sentencing? After all, it's supposedly composed of the accused's "peers." They're entrusted with determining guilt or innocence, but somehow can't be trusted to offer up a worthwhile opinion as to the "reasonableness" of the sentence recommended by Congress? Those intimately familiar with the details of the case should at least be trusted to give their view on the ensuing sentence. Their view is no less informed than that of their representatives, who mostly deal with criminals and the criminal justice system in the abstract -- and are often far more inclined to appease the prosecutorial half of the equation than appear to be "soft on crime."

Judge Gwin's informal jury straw poll shows that the word "justice" -- in the context of mandatory sentencing guidelines -- is nothing more than a prosecutorial term of art, completely removed from the actual definition of the word.

All those people being sentenced to decades in prison under the pretense that it’s what society wants and needs is revealed, as Judge Bennett says, as baloney. While the Sentencing Commission won’t heed the defense lawyer perspective, perhaps a few federal judges making this point clear might carry sufficient weight to end the needless destruction of a life or two under the draconian guidelines. For the rest, maybe they will start taking the admonition of § 3553(a), “sufficient, but not greater than necessary.” seriously.

As for Judge Gwin, he did what he could in response to this gaping disparity by sentencing Collins to the minimum allowed under the guidelines -- five years, or roughly four years longer than the jury felt was reasonable or just. The prosecution had recommended the maximum -- 27 years -- a number so far removed from the public's sense of justice it may as well have been a number pulled out of thin air by a government lawyer who had stumbled into the wrong courtroom.

We're imprisoning people at an alarming rate in this country, and the nation's unofficial hobby shows no sign of slowing. And we're doing it for far longer than the public itself feels is necessary. We're destroying lives by taking criminals out of circulation for decades at a time, based on little more than Congressional appeasement of professional moral panickers and the law enforcement officials who love them. The fact that so many of our prisons are now run by private corporations makes the situation worse, because nothing pays better -- or more consistently -- than cell after cell of long-term "tenants."

Filed Under: criminal justice, justice, mandatory sentencing, sentencing, sentencing guidelines

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13:30	Techdirt Podcast Episode 312: Regulating The Internet (2)
12:03	US Copyright Office Gets It Right (Again): AI-Generated Works Do Not Get A Copyright Monopoly (60)
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10:37	Daily Deal: codeSpark Academy Sibling Bundle (0)
09:25	Trump's Truth Social Bakes Section 230 Directly Into Its Terms, So Apparently Trump Now Likes Section 230 (128)
06:22	15 Years Late, The FCC Cracks Down On Broadband Apartment Monopolies (31)
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Friday
19:39	Letter From High-Ranking FBI Lawyer Tells Prosecutors How To Avoid Court Scrutiny Of Firearms Analysis Junk Science (25)
15:52	Nintendo Is Beginning To Look Like The Disney Of The Video Game Industry (44)
13:49	Seattle Public Radio Station Manages To Partially Brick Area Mazdas Using Nothing More Than Some Image Files (44)
12:13	Thankfully, Jay Inslee's Unconstitutional Bill To Criminalize Political Speech Dies In The Washington Senate (8)
10:52	How Our Convoluted Copyright Regime Explains Why Spotify Chose Joe Rogan Over Neil Young (136)
10:47	Daily Deal: The Complete Blocs Website Builder Bundle (0)
09:33	Arizona Prosecutor Who Brought Bogus Gang Charges Against Protesters Files Ridiculous Defamation Suit Against Her Boss (12)

Harper's Gives Prestigious Platform To Famous Writers So They Can Whine About Being Silenced

from the freedom-from-consequences-is-not-free-speech dept

Judge Kozinski: There's Very Little Justice In Our So-Called 'Justice System'

from the overrun-by-perverts-and-their-incentives dept

Mandatory Sentencing Guidelines Have Nothing To Do With 'Justice'

from the throwing-people-away dept

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