Thursday, June 24, 2010

Please, Do Not Call a Defendant Non-Violent Unless ...

Because most sentences result from plea bargaining, the original charge should be used to categorize the charge as violent or non-violent. Inherent in plea bargaining is the lessening of the charge for which the prosecutor has evidence.

Unless people are counting original charges and not the formal charges landing the defendant in prison, calling a prisoner non-violent is misleading.


S said...

Wow. There is so little logic and reason behind this idea, I don't know where to begin. You would categorize defendants based on the prosecutor's original charge, even though that charge is completely unchecked by a judge or the adversarial process? Have you ever heard of over-charging? I am fairly confident this approach would only encourage more over-charging. A defednant's categorization as violent or non-violent can only be based upon the actual findings of fact necessary to support the actual crime of conviction.

It is frightening to me how much power some would yield to one person in the system, who is an advocate for one side so not even a neutral person.

Supremacy Claus said...

The problem may be the plea may have no relation to the original charge. Because over 95% of charges end in a plea, one has no idea about the character of the overwhelming majority of prisoners. So people say, release non-violent prisoners early due to crowding and cost, one has no idea whether 95% of them are violent or not.

Say, a lot of prisoners have to be released, by a court order on over-crowding. You have someone there for burglary. The original charge was that he raped a little girl at knife point in her own bed. There is physical evidence taken from the scene. The charge was reduced to spare the girl's having to testify, her being totally terrorized.

Aren't you curious about that charge when drawing up the list of people to be released?

If you have a more reliable way to categorize prisoners as violent or non-violent, I would like to hear it. I am arguing the official charge is quite unreliable without digging further into the original charge.

S said...

A) A person convicted of burglary would, in most circumstances, be considered a violent offender.

B) In your hypothetical scenario, I would expect the state to insist that a finding that the defendant should be a sex offender subject to registration, etc., must be part of the plea. If the state isn't interested on insisting on that, well, maybe it's because they really don't have as strong a case as they initially believed on investigation.

Most cases turn out to be different from what the initial investigation lead police to suspect.

The point you made in your comment (which was much more clearly stated than the too-brief post itself) is a fair one to the extent that you're suggesting looking into the actual facts of the case, but it shouldn't extend beyond the facts as found by the judge in accordance with the plea agreement. Those are the only facts that can be relied on because any omitted facts have never been passed on by a court or checked through the in-court adversarial process.

Supremacy Claus said...

The problem of reliability is across the board. The trial itself has no reliability (repeatability), let alone validity statistics to my knowledge.

It is derived from the Scholasticist method of the disputation as way to get at answer.

More here. Note the familiar lawyer terms, authorities, texts, etc.

Nice advance in the 13th Century but not acceptable today.

The trial is further hobbled to advantage the lawyer today. The most experienced person in the room, the judge, is not allowed to investigate.

All jurors with knowledge are excluded, ending any advantage from the wisdom of the crowd, and technical expertise.

After the first secret ballot, the verdict reflects the gut feeling of the biggest loud mouth on the jury and the rest who just want to go home.

One the advantages of the facts prior to the plea is their freshness. You have raw police interviews, and lab findings. Neither is conclusive, and each needs to be verified by the other. Eye witness testimony is nearly worthless, and should only be used as a hint toward a solution.

At least we can agree, the official charged crime may be non-violent, and the real original crime could have been, therefore at least count those in a separate category, as an asterisk, to consider prior to the selection of non-violent offenders to release under a court order remedying crowding, inhuman conditions, lack of safety due to staff shortages, etc.