Tuesday, December 8, 2009

An Alternative Criminal Justice System, Not Supported by Lawyers

Crimes should be categorized by the harm done. All crime should be strict liability crime, to avoid the unlawful, church derived proof of intent. Then all sentencing should be based on the person, since incapacitation is the sole useful, mature, and valuable aim of the criminal law. This is the view from the taxpayer and owner of the law. The victims and defendants have other interests, but they can buy their own justice systems to pursue those.

Sentencing could look very different. A murderer could be sent home on probation. A shoplifter could be executed. The simplest way to decide on sentencing is to count the convictions and the reliably assessed conduct of the defendant. So the shoplifter's mother is interviewed. She reports, he is the head of an organized illegal alien gang, and has ordered the execution of many people, and is responsible for the homicide of innocent bystanders by his incompetent bomb placements. These statements are corroborated by detectives.

The shoplifting charge stands in for his 100's of crimes, and is an opportunity for incapacitation. He is not being incapacitated for shoplifting but for his character. The death penalty would no longer be viewed as a punishment nor as a deterrent. It would be viewed as social self-defense and expulsion from our world after wearing out its welcome (damages above $6 million is a good line to draw, from the economist derived market value approach to valuing a human life).

This is a scheme that places a priority on public safety. If it does not work, it should be jettisoned. It may work by attrition.

The judiciary should conduct the guilt phase, in an ordinary trial.

The executive would be responsible for the sentencing and for any public safety harm stemming from setting the defendant loose. The sentencing decisions should be made blinded to the race, gender and other characteristics of the defendant. I don't know whether age should be removed from consideration. Age is second to recidivism as a predictor of future crime. Forget the interview of the defendant. That is a waste of time. The victims of the released criminal should be able to sue the officials and the agency that negligently released him. A standard of professional care could apply here rather than a strict liability approach. Otherwise no one would be released.

Every crime statute should be validated as seeking to prevent a big harm, or repealed. Desuetude should repeal the statute automatically. Legal hoaxing violates the Equal Protection Clause. And the false notice of desuetude is a regulatory taking by forcing legal costs.

The lawyer would remain as an advocate at every stage of this scheme. He could not serve as judge, nor as decision maker in the sentencing phase.

The validation of any scheme whether from 1828 or from 2028, is the drop in crime victimization, the sole mature aim of the criminal law. If a scheme does not work, enhance or replace it every 10 years.

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