Friday, April 26, 2013

Some Thoughts on Criminal Justice

I am going to use a comment I got from my previous post to continue my discussion on criminal justice.

I have been questioning the "right to remain silent" - arguing that where it is permissible to compel Person A to provide information relevant to Person B's guilt or innocence, I cannot seem to find a good reason not to compel Person A to give information relevant to Person A's guilt or innocence.

This drew the following response:

I enjoy your blog but this is totally without merit. The state must prove it's case in criminal court. Torture or threat to make someone make a claim, false or not, is not the american way or desirable.

The Presumption of Innocence

On the issue that the state must prove its case in criminal court, I have raised no objections. In fact, I have repeatedly defended the proposition that an aversion to harming the innocent (a malleable aversion we all have many and strong reasons to promote) implies a motivation to ensure that harm not be inflicted on people without good reason to believe it is justified. This implies a burden of proof on the part of those who would cause harm, not on the part of those who would be harmed.

Furthermore, it argues that such a case must be presented to an impartial jury not bound by their own desires to conclude the case one way or another. Those who would cause harm are too likely to see skew their interpretation of the evidence as justifying harm whenever it provides a benefit to them. Those who would be harmed too often see their punishment as unjustified regardless of the evidence.

We have many and strong reasons to hold in utter contempt those arrogant and violent individuals who think themselves fit to serve as judge, jury, and executioner over others.


On the issue of torture, I have repeatedly raised objection here as well. When Bush and company lowered the worldwide aversion to torture, they created a world culture that made torture psychologically easier. He effectively told every dictator and warlord - and those who support them, "Go ahead and torture. Other things you do may be wrong, but this is not one of them." He particularly gave the world permission to capture and torture Americans. "How can you object? We are merely doing what your own Justice Department said it is permissible to do."

Compelling People to Testify

Furthermore, I have demonstrated that the claim that a, "threat to make somebody make a claim, false or not, is not the American way," is false.

We do threaten people to make a claim. We compel them to come to court and tell "the truth, the whole truth, and nothing but the truth". Those who refuse are held in contempt of court, fined, imprisoned, and - if they choose to resist or to flee these punishments - pursued by people with guns and state permission to use.

In fact, we compel people not only to make statements in a court of law, but in some cases compel them in certain circumstances to make statements having a specific content. "If you refuse to testify against your partner, we are going to increase the charges against you and add years to your punishment. We may even kill you for refusing, as this will influence our decision to seek the death penalty." What is this if not a case of compelling a person to make a certain type of claim?

Under such a system, a person who has nothing useful to offer to the police - nothing they can bargain with - have an incentive to make stuff up. It is subject to the same type of objections that apply to compelling people to testify against themselves - the problem of people presenting false testimony because it provides them with a means for avoiding harm.

Compelling People to Testify Against Themselves

We even compel people to be a witness against themselves when we tell them that refusing to confess to a lesser crime means risking a public trial and a chance of being convicted of a greater crime. Plea bargaining is difficult to understand as anything other than threatening greater harm to those who refuse to be a witness against themselves.

In fact, any American arrested is foolish to think that the invoking the right to remain silent will not be punished by a judicial system that rewards "cooperative" prisoners and adds charges and increases punishment levels against those who are judged to be "uncooperative".


The question remains - is there a defense to be had for a moral right against self-incrimination that does not, at the same time, condemn plea-bargaining or the subpoena power of the courts?


Anonymous said...

I have a question regarding the aversion to harm others.

What if convicting innocent people of a crime is based on a aversion to harming others.

Such as in the case of rape, many would argue that if we convict rapists on faulty grounds that less rapes would occur even if a few innocent men are sacrificed.

The jury seems to have a aversion to harm siding in either direction.

Alonzo Fyfe said...

On our system, a few innocent men ARE sacrificed. The aversion is not so strong that we only permit a system with a perfect record of not convicting innocent people.

As for a policy of convicting people known to be innocent in order to prevent rape, how would that work?

Anonymous said...

I have been heard numerous times, (particularly in feminist camps) that it is better that in the event that a "he said she said" case that the court should side with the woman since false rapes are rarer than actual rapes. If more people are convicted less people will rape because they know they will be caught.

I am aware that this is a act based system while your system is not.

My point is it seems that if I "Turn the knob up" on aversion to causing harm one could desire to make it policy to assume men guilty in the cases of rape out of a desire to not harm others by not releasing rapists out into the population.

I am unsure how in this case what outcome thwarts more desires.

This may be do to a misunderstanding on whether or desires aggregate.

If I understand it correctly if there exists 3 people with 3 desires each and increasing "the knob" on one desire thwarts the other 2 then I have only thwarted 2 desires not 6 correct?

Or am i just completely lost?

Alonzo Fyfe said...


First, in order to convict innocent people with a shrug of indifference one has to lower the aversion to harming innocent people - and I do not see us as having any particularly strong reason to do that. The claim that we can reduce the harms done to innocent people by lowering the aversion to harming innocent people is particularly problematic.

Second, the real question is not whether real rapes are more likely than false rapes is true in the current environment. The question is whether real rapes will be more common than false rapes where accusers must prove innocence. I see great potential for blackmail and other forms of manipulation where a presumption of guilt is assumed. We have seen things like this where governments or institutions assume guilt. For example, in Afghanistan where people were assumed to be guilty of terrorism, Afghan citizens would use accusations of terrorism as a way of causing harm to business competitors or anybody they did not like and wished to harm. (Here, again, the effect of lowering the aversion to harming innocent people come into play. By lowering the aversion to harming an innocent person we lower the aversion to using the presumption of guilt to work off of a grudge, blackmail, or for personal gain.)

I will confess to having no clear idea on how to aggregate desires. Particularly in light of the fact that it is not only the number and strength of desires that matters, but the degree to which and the ease with which a desire can be molded. It is a complicated subject. Yet, it is no objection of a theory that it identifies that which is complicated as something that is complicated.

Jubal said...

Might as well give myself a name since I intend to hang about and analyze this site. This philosophy of yours is so bloody intriguing.

After doing some more reading I think I'm beginning to understand.

Suppose Joe has 4 desires at varying levels (10 being the strongest level of desire):
An aversion to harming someone (aka a desire not harm someone) 5
To eat 2
To play video games 3
To have sex 4
Because Joe has an aversion level if 5 he will not harm anybody in pursuit of his second strongest desire.

However if something causes him to get exceptionally “frisky” his desire for sex rises to 6 and he is now willing to harm others in pursuit of sex correct?

Thus we want people to have an extremely high aversion to harming others or it becomes more frequent that as other desires fluctuate they become stronger than the urge to not harm anyone.

Alonzo Fyfe said...



Your analysis is basically correct, though reality is a bit more complicated.

For example, there is the option of turning the desire to have sex into a desire to have sex with a willing partner. In this case, the strength of the desire can go from 4 to 8 without that person being a threat to others.

We also have reason to look at the environment in which these desires take place. Let us give the agent a desire to have sex with a strength of 6. However, non-harmful voluntary sex is readily available. In this case, the agent will still choose this non-harmful voluntary sex (value of 6) over harmful sex (value of 6 minus 5 = 1) - unless non-harmful sex becomes unavailable in which case the agent will find 1 more motivating than 0.

These are just two of many complications one can introduce. Desirism holds that there are moral facts, but it does not say that they are always easy to determine.