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Tag: penal system

  • Question 5 – Second Reply Set – The Justice System

    Question 5 – Second Reply Set – The Justice System

    Combining Replies from both Elgin Hushbeck, and Joel Watts.

    Question #5
    Reply by Elgin Hushbeck, Jr.
    Reply by Joel Watts
    Elgin Hushbeck, Jr. Response #1
    Joel Watts Response #1

    [6/24/13 – I inadvertently posted the wrong content for Joel Watts’ reply. The corrected text is below. – HN]

    Response #2 by Joel Watts:

    1.) The question you propose – justice or rules – is not a difficult to answer. We live in a Republic of laws, thus the laws must be followed. This is a major issue with democracies —justice is based only on the whims of the majority. This is why our Founders hated democracy and instead placed us within a Republic. While the guilty may go free and the innocent be imprisoned, if the laws are followed, then the Republic is upheld. Perhaps this is what shades your view of the present system, you believe it is a democracy.
    Unfortunately, “scandal” is a word attached to easily. The IRS did its job and should be commended. Congress, on the other hand, did not. This goes back to the law bit. We have ingrained in law certain procedures, such as the 30 day request. If these aren’t followed, then other actions are, by law, implemented. Given the rapid change in laws around the 501(c) entities, and the cutting of funds to this particular IRS department, the IRS will have to make sure.
    As far as your poor caricature of the lung transport girl, I am unsure as to where to begin to straighten out your views. Sarah Palin is a liar. The rule is no more a death panel than the reverse of not having rules. Again, we live in a Republic with rules and laws, and yet you would deem them broken at every whim. If you cannot properly address the issue, I have to wonder what is the point?
    2.) You support the death. Could you give me Scripture to that regard? Or is this purely a decision based on current philosophical thought?

    Response #2 by Elgin Hushbeck:

    On a jury of peers, I agree that prejudices could be a problem, and one that cuts both ways. Some would be more likely to convict, some would be more likely to acquit.
    As for citizen suits, I don’t see how these can be allowed, and still retain the rule of law or avoid a return to vigilantism. As for your example, that is just historically wrong. Segregation was correctly and properly challenged on a number of fronts, including suits by those who were harmed by it. Such suits are not the type of suits I am referring to. Normally to bring a suit one must be directly harmed. The suits I am referring to are those which until recently, would have been dismissed because there was no standing. In fact this is still the case in many areas of law, however in a few areas, particularly environmental law, special exceptions have been made and enforcement powers granted to individuals.
    I would agree that “Justice is not retribution” but beyond that we have vastly different definitions for justice. Mine is a pretty traditional understanding that involves equity and righting wrongs. It is distinguished from revenge in pretty much the same way that Aristotle did, as a rational process that seeks equity, as opposed to an irrational response grounded in inflicting pain. Justice is rooted outside of ourselves, ultimately in God, and on earth through the state, which is why vigilantism is to be avoided. Revenge is rooted within ourselves and in our desires, rather than our reason. But this is a distinction that is often overlooked.

  • Question 5 Response 1 – Elgin Hushbeck – Reforming the Penal System

    Question 5 Response 1 – Elgin Hushbeck – Reforming the Penal System

    Links:
    Question 5
    Elgin Hushbeck Reply to Question 5
    Joel Watts Reply to Question 5
    Joel Watts Question 5 Response 1
    Second Reply Set (Both Joel Watts and Elgin Hushbeck)
    Question: You write of finding “the least bad one.” Why are you so pessimistic that the situation cannot be righted? Even if Eden started off perfected but was later corrupted, doesn’t mean God found the “least bad one” in answers to fix the problem. We just need to find the way back to restore the intended philosophy. Is it your view that Government is simply a “necessary evil?” If so, how do you support that both from Scripture and from the American political tradition?
    I say the least bad one, because all systems will have their flaws and weaknesses. In a perfect system the guilty would always be convicted and the innocent acquitted. I know of no such system.  A system that focuses on making sure the guilty are always convicted will also convict the innocent at times. A system the focuses on making sure the innocent are always acquitted, will also at times acquit the guilty.  Both have serious problems.  While it is common to hold that it is better that 10 guilty people be acquitted than one innocent person be convicted, I have never been very comfortable with that, because it leaves 10 criminals free and emboldened to commit more crime.   There is a Jewish saying, Mercy to the guilty is cruelty to the innocent.
    As I write about in my book, one of the key problems with the current system it that it is almost completely cut off from the notion of justice. For far too many in the system, it is just about winning and losing.  The goal of the prosecutor is have a very high conviction rate, the goal of the defense attorney is get their client off.  I do believe the current system is tilted for the defense to the point that we have seen defense lawyers even lie in court and have nothing happen to them, as that is just “doing their job.”  But still, the result is that miscarriages of justice occur on both sides.
    In some respects this comes down to a question I ask in my critical thinking classes:   Is it better to have justice, or that the courts follow the rules? There is no easy answer to this question.  Both answers have problems. Despite what I have said above about the importance of justice, I still come down on the side of following the rules, but I too want a set of rules that maximize justice.
    As for my view of Government, I am not a libertarian.  I do believe that government has an important and vital role to play, but like so many good things, it has it limits.  An analogy would be food: we need it, and it can be done well or poorly, but too much of it is a problem.  Currently the Government is severely over weight and bloated.  In too many ways, it has ceased to serve us, and we must now serve it and feed it.
    Forget the scandal part of the IRS for the moment, just the idea that they can take over 1000 days to respond on a filing and when they do, they request a massive amount of information and give you 30 days to reply or your file will be closed and your $800 fee forfeited, is obscene! They can take all the time they want, but you have to jump when they say jump.
    Another example of extreme abuse of power would be the case of the Sackett v. EPA, which is far from being unique.   Sarah Palin was widely criticized on the left for her comment on Death Panels, and yet we have the spectacle of a congressmen pleading for the Secretary of HHS to suspend a ruling so that a girl can have a chance to live. Given all that has happened with this administration I cannot help but wonder if Sebelius would have been more receptive had the Congressman been a Democrat whose support was needed on a key piece of legislation.
    So in my view government is important and vital, but should also be small with policies and laws made at the local level and at the federal only as a last resort.
    Another way to understand my view is the analogy of addiction. Government at all levels and with both parties, is addicted to spending. But it is not just spending in general, but spending that benefits them, that allows them to claim that they “brought home the bacon” and thus get themselves reelected.  The problem here is that while there is a lot of responsibility, there are very few votes to be had from spending on the Justice system, and thus it has been allowed to wither.   Thus it is one of the few areas I would support a big increases in spending if done intelligently, which for government may be asking too much.
    Question : What is your position on the death penalty?
    I support the death penalty in at least some cases.   For example, I think it was very appropriate for the Oklahoma City Bomber.   In contrast, I think it a travesty of justice that the Norwegian mass murder will serve a maximum of 21 years for killing 77 people.  That is a little over 3 months per person.  He was 33 years old when convicted and will be 54 at most when released.  Frankly even life in prison is hard to reconcile with any concept of justice in such a case.
     

  • Question 5 Response 1 – Joel Watts – Reforming the Penal System

    Question 5 Response 1 – Joel Watts – Reforming the Penal System

    Links:
    Question 5
    Elgin Hushbeck Reply to Question 5
    Joel Watts Reply to Question 5
    Elgin Hushbeck Question 5 Response 1
    Second Reply Set (Both Joel Watts and Elgin Hushbeck)
    Q1.) We seem to be in agreement concerning the current functioning of the jury systems, but I am not clear exactly what you mean by “The Jury system must be reworked so that a jury of peers is just that, a jury of peers. Again, an empirical metric must be established to examine and then set forth peerage.”
    A1.) Peerage is not a group for males for a male who is being tried. We must look at socio-economic and other factors in determining peerage. My concern is the oftentimes prejudices we bring to bear when we are confronted with decision making situations. Admittedly, I might be less likely to believe someone who was a Tea Party member or a Christian fundamentalist. I would hope that I could be fair, but I would rather have this prevented.
    Q2.) A significant problem is the ability of individual citizens to file lawsuits in order to enforce public policies or statues. Such suits are easily exploited to harass and delay, and thus can be used to block legal activities by making them too costly to pursue. In addition this transfer’s the enforcement power from the government to the individual, which is a return to vigilantism and thus a weakening of the rule of law. (Note if you agree with this, it would probably be better to change to a different qu
    A2.) I am not sure I would agree easily with this. I believe the individual, with whom the representative part of this representative democratic Republic lies, must have the power to enforce policies where such enforcement is lax. Otherwise, we would not have segregation challenged, nor in many cases, the constitutionality of certain laws ever decided.
    Q3.) You said that “Justice is not the amount of money received, but whether or not the cause of the tragedy is averted to prevent the accident from happening again.” I have frequently heard trial lawyers claim that the large awards act as a deterrent, and such suits have affected the behavior of manufactures to make products safer, and if nothing else they entertain us with wacky warning labels. More to the point, would a result that completely eliminated the possibility of reoccurrence, but did nothing for the victim be justice?
    A3.) Justice is not retribution, so yes, justice is the elimination of a reoccurrence as much as possible under the law rather than any award given to the victim in damages. I am not against the awarding of damages, but these are rarely deterrents in any meaningful sense.

  • Question 5: Reforming the Penal System – Joel Watts

    Link to Question #5
    Link to the response by Elgin Hushbeck
    Link to the previous entry in this series (The President – A Debate)
    What would you do to reform the U.S. Justice and Penal System?
    The Justice System:
    Unfortunately, to kill all the lawyers would be a terrible injustice; yet, we must understand that in many ways, our civil justice system has become a get-rich quick scheme.
    One of the things we must work on, especially in the realm of restitution, either criminal or civil, is a metric whereby punishment or awards are meted out not on a case by case or judge by judge basis, but in accords to an agreed to system whereby it is objectively considered. If a metric is established, judges will have to treat all fairly.
    The Jury system must be reworked so that a jury of peers is just that, a jury of peers. Again, an empirical metric must be established to examine and then set forth peerage.
    In regards to the civil litigation/tort reform. I, for one, roundly support tort reform and would allow for something of a loser-pays rule, as long as it can be ruled that such case was brought with malice to exhort rather than an attempt at justice.
    But, in civil cases, we must seek to change the philosophy of what is justice. This is not the point of this post; however, justice is not the amount of money received, but whether or not the cause of the tragedy is averted to prevent the accident from happening again.
    The penal system:
    There are no single issue, or first steps, to tackle. Therefore, I will state areas of focus.
    The first is to overturn most, if not all, of prohibition laws and establish a review procedure for those who are currently incarcerated under first offenses. Ideally, those who were prosecuted only under prohibition would be released but those prosecuted under prohibition and other crimes, such as violence, would see their sentences likely reduced.
    The second is to rid ourselves of the private prison industry. Period.
    Along these lines, we must remake prisons into centers of rehabilitation. By this, I mean prisoners should be treated as if they owe a debt to society, rather than society owing them a debt. If at certain levels crimes are committed, the retention of rights is tenuous. While I support a small amount of education afforded to inmates, especially to bring them up to at least a high school level, most things in prison should be earned. Prisons should not create products, such as prison industries, but instead allow the inmates to turn their work into self-sufficiency. In other words, the bare minimum of goods and services needed to run the prison should be imported from outside the prison walls. This includes food.
    Likewise, prisons should include some sort of social programs designed to transform the inmate into a member of society. Sentences should be given fairly, with some sort of metric designed to keep justice truly blind. Further, sentences should have as their end result (unless it is life) a release of a citizen, not a dependent.
    I support the complete eradication of the death penalty.
    I support a three-strikes-and-you’re-out rule for most crimes, although I’d settle for one strike for violent crimes.

  • Question 5: Reforming the Penal System – Elgin Hushbeck

    Question 5: Reforming the Penal System – Elgin Hushbeck

    Link to Question #5
    Link to Joel Watts’ Answer to Question 5
    Link to the previous entry (The President – A Debate)
    What would you do to reform the U.S. Justice and Penal System?
    When it comes to the legal system, given its current condition I cannot really call it a justice system,  one thing that I hope all would agree with, is that it is broken and in desperate need of repair.  It has many parts from the criminal and civil courts to the penal system.  None work well.
    The courts are important because at the core of our country is the rule of law, and this core is seriously threatened.  The rule of law has many components but at its heart is the idea that we have a government of laws, not the arbitrary decisions of a ruler.  Yet the law has become such a complexity of vaguely written laws that in many respects the arbitrary rule of a king has been replaced by the seemingly arbitrary rule of judges, or the whim of a jury.
    Given all the problems, the search here is not so much to find the best system, but to find the least bad one.  To do this we must seek a system that is grounded in justice both for the accused and for the victim, for the lowliest person and the largest corporation.
    When it comes to civil cases, the biggest problems are the costs and time involved. Many people know of companies and individuals who have settled a suit even when they firmly believed that they were correct, because going to court and winning would have cost more than to settle.
    One option would be to institute some sort a loser pays rule, where the losers have to pay some or all of the other side’s legal bills. This would certainly end most suits whose primary focus is to delay and/or harass.   However it would also end a number of very legitimate suits where the outcome is in real doubt.  So perhaps some sliding scale could be applied from 0-100% that would take into account the merits of the suit.
    Unlike criminal suits that require evidence beyond a reasonable doubt, civil suits are settled on a preponderance of the evidence basis, i.e. whichever side has the most evidence in their favor. So perhaps a scale that takes into account the relative merits of the case, and the number of suits filed in the past.  For a person that brings a suit where the evidence was very closely matched on both sides and this is the first suit they ever brought, no costs would be awarded.  For a case that was brought on flimsy grounds, and the person had filed lots of suits in the past, 100% of the costs would be awarded.
    As for lawyers who are paid by a percentage of the award, that should be capped, particularly in cases of class actions.  I cite examples in my book of cases like the Netflix case were the lawyers were paid millions, and supposed “victims” got some free rentals.
    When it comes to criminal cases, while it would take a constitutional amendment, one thing I think should be given serious consideration is professional jurors.   The current jury system is badly broken. Sure, most people take their obligation very seriously, but far too much depends on the ability of the lawyer.  Just ask yourself this question:  If you are falsely accused of a crime, do you really trust 12 people picked from the jury pool to determine your fate?
    This cuts both ways, from those who give the benefit of the doubt to the prosecutor and assume the accused must be guilty, to those who assume the accused must be innocent because they did not have CSI style evidence.   Then there is the question of what is beyond unreasonable doubt to those who are fundamentally irrational?  After all, even the wackiest of ideas has 10% who will believe, but it takes only 8.3% to hang a jury.
    I would also say that there should be a different penalty mechanism for evidence obtained illegally.  Currently evidence obtained illegally is excluded. Why? The purpose of a trial is not to make sure the guilty has sporting chance to get away.  It should be to ascertain whether or not a person is guilty.  If a person is set free because evidence obtained illegally was excluded, then where is the justice for the victim?
    Finally there is the general issue of the interaction with government. We would (hopefully) complain if someone from the government could just fine someone several thousand dollars without benefit of a trial. But what is the difference if they can essentially force the same person to spend several thousand on a lawyer to protect yourself from a baseless charge?
    This just happened to an acquaintance of mine. Two people from government saw no problem, but for some reasons a third did, and went after them with a vengeance, even calling them at 2:30 AM.  When they did get before a judge he ruled that there was no basis for the complaint, but gave the government 30 days to see if they could come up with anything else.  So much for innocent until proven guilty! But then why not? There is no impact on the judge or on the government bureaucrat for an additional 30 days.  But this effectively means another 30 days of harassment and additional lawyer’s bills, all of which is putting a tremendous strain on him and his family.
    Finally there is the penal system.  This is a very complex and difficult issue.   One factor is that given the problems with the courts there is a sort of game here where most people have pleaded down to lesser charges so both sides could avoid a trial.   This makes things like separating violent criminals from non-violent ones more difficult.  Is a person who committed a violent crime but who pleaded down to a non-violent offense a violent criminal?  But this is certainly a place where we could use some innovative approaches and Chuck Colson’s Prison Fellowship would be a great place to start.
     

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