Wednesday, November 24, 2010

Proportioality in the Arithmetic of Sentencing for Fraud and Other Financial Crimes

I have argued that someone who steals $6 million is destroying a constructive economic life, or whatever the consensus value of life is being used. Therefore, the defendant should be executed, summarily, since there is no controversy about the amount.

What about stealing $850,000? That is about an eighth of a human life. If the life expectancy is around 80 years these days, the defendant should serve an eighth of a human life or 10 years. During that time, he should be as productive as possible at whatever occupation, make as much money as he can. Say, he makes $425,000 as a hedge fund trader from prison. He may repay that amount and have his sentence reduced by a half. This person is not being incapacitated because of his physical danger to others, but because of his lack of good judgment and morals. He should do well in the structured setting of the prison.

Tuesday, November 23, 2010

MERSA - Al Qaeda Weapon of Mass Destruction

Given today's pat down procedures, Al Qaeda can recruit people with MERSA, or infect a suicide bomber with MERSA. Then, just have them travel continually. The TSA gloved inspectors would spread MERSA to dozens of people each time. Then Al Qaeda would laugh and send a thank you note to the TSA.

Sunday, November 21, 2010

The Trial Itself Violates the Daubert Standard

The trial itself has no scientific validation. It comes from the Scholasticist method of disputation, as a method of arriving at the answer of a difficult question. The rules of evidence violate multiple tenets of formal logic, critical thinking theory, and most do not meet Daubert standards. Then you have a jury. In 1275 AD it was a good advance. The jurors had knowledge. They brought the wisdom of the crowd. Those benefits have been removed. You now have twelve strangers who will be using their gut feelings to detect the truth, when lie detectors are prohibited. They will detect likability, if lucky, and no more. The lawyer is excluding people with knowledge, and even people married to people with knowledge.

Next, the lawyer hobbles the most experienced person in court, the judge. This is the oldest lawyer, who may have done the jobs of the lawyers, and has the biggest experience. If he so much as drives by the crime scene, you will crush the judge. Why? The trial is a fictional play. Any attempt to introduce real facts cannot be tolerated.

The criminal law, is in utter failure. It has a high false negative rate (1 in 10 major crimes is prosecuted). It has a high false positive rate (there is 1 exoneration for every 5 executions). It uses methods from the 13th Century, when anyone else trying to would be arrested as a threat to public safety.

Here is one potential remedy. I propose to exclude all lawyers from all benches, legislative seats and responsible policy positions in the executive. Waiting for that to come about, an intermediate remedy would be to end all self-dealt immunities. Prosecutors and judges should be held to professional standards of due care. They qualify for strict liability because their sole product is punishment. However, that would be too draconian and would ruin them.

There is no justification for prosecutorial or judge immunity from either defendant nor from future crime victims. I find it funny when ALI types dispute this idea as a potential cause of litigation explosion.

Friday, November 5, 2010

To Get the Legislative Intent

If a law has recently been enacted, most of its drafters and supporters should still be alive. If term is ambiguous, has anyone ever interviewed the living enacters as to the real intent of legislature, as opposed to divination and mind reading?

If this has never been done, is there any procedural or constitutional obstacle to such a tactic? Naturally, both sides should be allowed to do an interview and to present their results, before a tribunal.