Journey 17 - LADY JUSTICE We see Lady Justice on many 19th Century courthouses.
She has a blindfold and she holds an upraised sword in her right hand, with a pair of scales in the left. The truth of Lady Justice is a consequence of the ideal of reciprocity. The scales mean balance. Justice restores the emotional balance in a community, as what we do to the criminal balances what he has done to his victims. The sword means decisiveness. Court proceedings should not take months or years. In the court of Aristarchy, we would present all the evidence in the O.J. Simpson trial in a few days, or a few weeks at most. Once the magistrate reaches a decision, he carries out sentence immediately, with no right to appeal. Instead of a trial, we would have a presentation of the evidence to the public, who could raise questions about it. Stay the process until the magistrate can answer those questions. I propose trials be held immediately, without right to bail. The blindfold means blindness to anything but the actions taken. Intent and other unknowable subjective factors are not relevant. If a drunk driver flies through a stop sign and kills someone, it is murder. While he may have intended no harm to that particular person, driving while drunk is like waving a loaded gun in a mall. It is a felony, a reckless act, and we will hold him accountable for the act, not the intent. We should not automatically classify auto wrecks as "accidents." Some may be accidents, some may be suicide, but quite a few are murder. Execute murderers, if the victims are completely blameless. Deaths can be classified (1) death by natural causes, (2) suicide, (3) accident, (4) self-defense, and (5) wrongful death, of which a sub-category is murder, where the perpetrator is wholly responsible. Like the British, I admit of no degrees of murder, as there are no degrees of death, but there are many borderline cases, where a crime has certainly been committed, and a wrongful death has happened, but not wholly the fault of the perpetrator. In a knife fight, the "perpetrator" or survivor is simply defending himself. While such knife fighting is itself illegal, and the death wrongful, it is not murder. In a traffic fatality, a drunk driver is certainly committing a felony, but if the victim is not wearing a seat belt, or could have saved herself by being more attentive, it is not murder, for which the only penalty is death. Evidence for Lady Justice: The best evidence for Lady Justice comes from comparisons of La Belle Époque (1880-1920) in the USA to the periods that preceded it and followed it. La Belle Époque was a great time (though not perfect), a time of liberty and justice. The major change before the 1880-1920 period was the transition from the wild frontier to the settled civilization of the gaslight era, to a time of bicycles and ragtime. In 1903, there were fewer than 300 murders in the entire USA. In medieval times, they hung boys for stealing a loaf of bread; today we give perpetrators people free room and board for the most hideous serial killings. In between these two extremes, there was a period when we had liberty and justice in the United States. Trials were over in hours, or at most a few days, and if the jury found the murderer guilty, the judge passed sentence and hanged the killer the next day. The best refutation of the alternatives to Lady Justice is the rise of suppressed anger since the 1920s, because so much evil goes unpunished or not punished adequately. The symptom of suppressed anger is the berserk mass killer at the Post Office, or at McDonalds, or of an entire
family, a phenomenon of our time. It may be possible to rehabilitate juvenile delinquents, but not hardened sociopaths. Permanent exile is impractical, since we have no equivalent of Siberia. There has been a lot of irrelevant debate about capital punishment. An execution is not itself murder, according to the Ideal of Reciprocity, since anyone capable of cold blooded murder is not a party to the social contract that defines the scope of murder. Execution of a sociopath is more like extermination of a rabid dog. Hobbes and Locke laid the foundations for modern notions of the social contract with a thoughtexperiment. They said, "Let us imagine that everyone capable of committing murder agrees with one another not to, if given the reciprocal right to life." This is not history, but a thought experiment. It defines the scope of murder, since it is murder to kill someone or something only if they are a party to the social contract. Fetuses, infants, dogs, felons, people in a permanent vegetative state, or the mentally incompetent either cannot or will not agree to the social contract. That doesn't mean we can kill infants without cause; indeed, it is one of the roles of government to protect the helpless and innocent. Just as it is wrong to execute mothers who have abortions, or doctors that do them, it is wrong to execute parents who ask for no heroic measures (like a feeding tube) to save a severely retarded infant. If infants or small children are normal, the government may remove them from the custody of their natural parents if there is proof of mistreatment. Protect children from women with postpartum psychosis, until she recovers. I am simply being consistent. One of the functions of government is to protect the weak and innocent against the powerful and wrathful. Thus, we should not permit the ritual mutilation of infants in the name of religion. By the same token, we cannot tolerate violence by parents against their children. Thus, the deliberate murder of their children by parents is still murder. Recent applications of DNA testing to people on Death Row have shown many of them to be innocent. Clearly, the justice system did not find the truth in their case. So let us call for a halt to execution until we can install a completely different justice system, one capable of determining the truth 100% of the time. Lawyers are competing to win, not to find the truth. Thus, the prosecution may hide things from the defense, and vice versa. I say, get rid of the lawyers and the whole "trial by combat" system of court procedures has its roots in the practices of ancient Germanic barbarians. Lawyers Gain by the Collapse of Justice: Why has this process gotten completely out of control? It is because of the Supreme Court. We have seen a steady expansion of "due process" until it has become "unending process," with the only winners being the lawyers, since taxpayers have to pay for the judge (a lawyer), the prosecutor (a lawyer) and the public defender (a lawyer). Trials have lengthened from hours in Hanging Judge Parker's court to years in Judge Ito's court. And is the quality of justice any better? Rulings by the Supreme Court in the 20th Century had a definite trend: they enrich lawyers by extending the length of due process, and increase the number of technical loopholes that allow appeals to set aside the original decision of a jury. That is why it costs a million dollars to execute a murderer. The million dollars goes in the pockets of lawyers. Thus, lawyers are unpopular, and we blame them for the decline in justice. In the days of Judge Parker, a century ago, the cost of an execution was a plain wooden coffin.
English law descends from the practices of primitive Germanic tribes, such as the Saxons or Vikings. It pits one attorney against another. Their competition is to win cases, not to find justice. So one keeps information from the other. The police have no vested interest in justice. Often, they prematurely settle on one suspect and ignore other leads. The Jon Benet case is an example. It is now apparent there was an intruder, and if the police had put up roadblocks and intensively questioned everyone in town about a stranger who might have a record of sexual assault, then they would have found the culprit. It is the magistrate who has a vested interest in justice, so she runs the police department and she conducts the hearings. Criminalists present the evidence, and the defendant or other members of the public would have a chance to speak. No lawyers. This somewhat resembles the Napoleonic law system, widely used in Europe, and is even more like the Classical Chinese Mandarin system of justice. The Failures of the Judicial System: In California, a man raped a young girl, cut off her arms and left her to die. The community was outraged and wanted this monster to die. The rapist's punishment was to receive free room and board, free legal and medical services with no responsibilities for several years at vast expense to the public. We call this prison. When the courts released him to his home community, lynch mobs formed. Instead of helping the community take revenge on this man, the justice system mobilized considerable resources to protect the criminal. They moved him to a different community, where lynch mobs again formed. Eventually the police moved him to a penal community, the only place where they could protect him. In Tulsa, a drunk slammed into a legally parked police car. The police car was clearly visible, as it had all its lights flashing. Inside the police car was a popular young policewoman, writing a traffic ticket. The collision jammed the doors and set the police car ablaze. The woman inside burned to death, desperately struggling to break out, while onlookers also tried to break into the car. Television crews appeared on the scene and filmed the drunk being led away. He was laughing. The community wanted to crucify this man. Why not? Anger at evil is a legitimate and natural human emotion. Is not the function of the justice system to take revenge on evildoers? Is not this the very meaning of the phrase "justice was done?" The principle function of the justice system has always been to punish the wicked, not too harshly, nor too leniently, but as the scales of Lady Justice imply, in exact measure to the crime itself. We also want to make sure the criminal can do no more mischief, at least not the same kind of mischief, at least not to the same victims. Lady Justice and Aristarchy: So, what sort of justice system should we have? I propose one more like classical Chinese civilization, where the local Aristarchy/mandarin is the chief of police, the mayor, and the judge, all rolled into one. He or she will decide whether to call up a jury or not. The mandarins of China did not use juries, and given the notable incompetence of the juries on some famous recent cases in the US (the O.J. Simpson trial, for instance), the magistrate may decide to put the decision to a jury only when some matter of opinion is to be decided. Juries can then stand in for the entire community, and make a judgment reflecting public opinion. Critics rightly point out the number of convicted "killers" on death row, who have been saved by DNA testing. Quite right. However, one cannot pull one item out of a utopia and examine it out of
context. I would not be in favor of the death sentence either, in our present justice system. It does a poor job of finding the truth and making the correct decision. According to my hypothesis, there would be only one system of justice. There would be no tort system, no family court, and no distinction between civil and criminal law. If a citizen has a problem, take it to the local magistrate. The magistrate will determine if a hearing is needed. Instead of suing someone, go to the magistrate, make a complaint, have a hearing, and get your money back if you‘ve been wronged. There would be no such thing as punitive damages. They have made malpractice insurance rates so high as to drive doctors out of business, or make their services unaffordable. Juries are very liberal with other people's money. The instruments of the law (wills, incorporation, joinings (new form of marriage), adoption, etc.) should all be simple, and if the customer has any problems or questions, he can always go get help from the local magistrate. Lawyers will need to take up a different line of work. The Aristarchy exists only to serve. Finding the Truth: So, how can we find the truth, with such surety (which must be 99.999% accurate), that we can impose the death penalty and still sleep at night? The system of walls, checkpoints, identity databases, and unforgable money/id/key cards is the first thing required. Walls: There are many crimes that are nearly impossible to solve without walls and checkpoints. What is a wall? Something nobody can plow through, climb over without detection, or tunnel under without detection, or fly over without detection. It is unnecessary to go into more details than that. I would hope for actual physical walls, made of brick or stone, for aesthetic reasons if nothing else. I don't think anyone would wish to live inside a city or neighborhood defined by barbed wire! The walls are there to protect the people inside, not to restrict the movement of lawabiding citizens. Today, it is so difficult to catch serial murderers that the Green River killer of Seattle was only prosecuted in 2003. He has confessed to 48 murders of young women and is suspected of many more. These murders happened decades ago. He was caught by DNA typing, something not available 20 or 30 years ago. There are undoubtedly serial murderers roaming the country today who will never be caught. Why? Because they know how to hide a body, or destroy it. The Green River killer made no particular attempt to hide his kills, and he left semen on them and in them. Every year, there are thousands upon thousands of young women who simply go missing, and are never heard from again. This would not be possible with the walls and checkpoints. The new system would prevent abduction becoming murder, if we could find the perpetrators quickly. With walls and checkpoints around every Metropolis, every residential neighborhood, and every industrial or commercial district and if we use bio-informatics to verify that the person using a money / ID card is the person who owns it, we could always make a list of suspects that must include the culprit. With suitable error bars, we could search all the local databases simultaneously and cross-check the information to make a list of everyone who could have been present at the crime scene or the place where someone went missing. We could track those individuals forwards and backwards in time, and we would know where they are now, so we could interview them. The Scientific Interview: We must always be able to say with certainty that we can produce a list of people that must contain the culprit. Secondly, we must develop the science of the interview. Fortunately, this has now been accomplished. See "The Naked Face," by Malcolm Gladwell, in The
New Yorker, August 5, 2002. This is a system called FACS (Facial Action Coding System), based on AU (Action Units), each referring to a particular group of facial muscles. Professor Paul Ekman of UCSF developed it. Also, see Ekman, Friesen and Levenson in SCIENCE and Ekman and Etcoff in NATURE. Film an interview, then turn off the sound and run it at one-quarter speed. Transient Action Units give away the interviewee. Some AU are under conscious control; others are not. It is not only possible to tell if the interviewee is lying, it is possible to "read his mind," and identify every fleeting thought, attitude and emotion. Ekman discovered this because he found certain individuals, primarily policemen, who did it automatically. One must ignore what is said, and concentrate entirely on the Action Units, more commonly known as "facial expressions." This technique is already being taught to intelligence agencies, to help in identifying terrorists. It is also being taught to the FBI and to the police. Such a system of "proven interview" will save the innocent as well as convict the guilty. Without the interview, we must rely on circumstantial evidence, sometimes misleading. Suppose our scientific criminologists find plenty of evidence of the presence of someone at the crime scene at about the time of the murder, evidence in the form of DNA typing of semen, sweat, and skin cells (epithelials we are constantly shedding). There would be a strong circumstantial case against this individual in a murder-rape case. However, that circumstantial evidence could belong to the boyfriend, who left just before the perpetrator arrived on the scene. In that case, the scientific interview would clear the boyfriend. And if it can't, it is not a trust-worthy system of scientific interview. Identity: The identity databases must contain indexed fingerprints, indexed DNA records, iris prints, face prints, voiceprints and any other reliable means of identifying someone. There should be an entry for everyone who lives in this country or visits this country. Is this a police state? No, because it would simply be latent data, like the film in a security camera. We don't look at it unless a crime is committed, and it is not publicly accessible. We make a record on one or another local database every time we buy anything, or pass through a checkpoint, even the passive checkpoints which do not require bioinformatics. The passive checkpoints would trigger a an RFID tag inside your bicycle, your electric car, or your identity card, which contains bio-metrics only the owner can provide. This system assumes a conversion to electronic money. We are moving in that direction as it is. A system of all electronic money combined with bio-metrics will be more secure, will enable us to track criminals and terrorists, and tax every electronic transaction at a small rate, say 3 percent. That would be the only tax, and no one could escape it. We add to this the most sophisticated criminalists, who know how to make microscopic examinations of crime scenes, who know all the ways of determining time of death in a murder case. Then we query the location database system to see who could have been there at the time of the crime, and follow each individual backwards and forwards in time, to see if they are following their normal ritual, or doing something suspicious, like fleeing the area. We interview the most likely suspects, and this process continues until we find the culprit.
Criminalists will play a prominent role in the new police force. Obviously, in my utopia, there is no Fifth Amendment. That is, there is no right against self-incrimination, because it will often happen that the only living person who knows what happened is the culprit. The New Fifth Amendment: What we will have for our new fifth amendment is the right to be released within a week if no charges are made, and a rule forbidding both physical and mental torture of suspects, and a requirement that all interviewing of the suspect be video-taped and made available to trusted scholars, in some way that does not compromise the rights of privacy. We therefore pre-suppose a system that either leaves the case unsolved, or proves beyond all doubt that the one charged did do the dirty deed. The court proceeding then becomes nothing more than a presentation of evidence to the public. If the magistrate can think of alternative interpretations of the evidence, or if some member of the public can do so, then suspend the case and investigate this point until we can rule out all alternatives but one. It is better to convict no one than to convict an innocent person. Thus, a suspect always has the presumption of innocence on his side. If we can really prove who did it, we should not hesitate to meet out the death penalty for murder. The only possible appeal might be to the magistrate's immediate superior, who might stay execution for a time. If the superior metropole has complete confidence in the local magistrate, then execution will be immediate. The next of kin should not have to wait years for justice, amid constant appeals that could release the murderer at any time. If the friends and next of kin of the victim unanimously ask for clemency for the convicted killer, then clemency they shall have. They would still be responsible for a wrongful death and would have to make financial recompense to next of kin, perhaps inside prison walls, at a prison sweat shop. Enforcing the Law: In a libertarian society, there should be minimum interference in private lives. Thus, the police should not provide any more enforcement than is really wanted by society. For example, I have proposed that modern firearms and ammunition no longer be sold, and be impossible to take through checkpoints that incorporate metal detectors. I would not advocate a Draconian search of everyone's house and home for modern firearms and ammunition. If a search happens because of a felony complaint, then we collect arms and ammunition. If the neighbors complain that someone is firing at them, then the police have grounds for obtaining a search warrant. The police would not disturb a person who lives quietly without bothering the neighbors. I suppose there will be traffic rules, especially in a Metroplex. Rather than zealously enforce these rules, it would be better to watch and see what patterns of behavior work best. If people can jaywalk without getting hurt, take down the signs forbidding jaywalking. How shall we prevent crime? Legalizing drugs, gambling and prostitution in the herb shops and the sporting houses would undermine the economic basis for outlaw gangs. We would still have to round up the gangs, with their sociopathic rage, and deport them. Indeed, we must deport the neighborhood that produced them. Criminal behavior is learned behavior, just like lifestyle and social custom. A bad neighborhood has usually been bad for generations. There is no point in just allowing it to continue producing new generations of criminals.
Another type of violence is common even in good neighborhoods and that is domestic violence. With the checkpoints, databases and walls, we could actually keep perpetrators away from those having protection orders against them. Guns: I am not opposed to guns--just modern firearms designed to kill undetectably at 300 yards. Smooth bore black powder flintlock muskets or modern compound bows would serve just as well for hunting or for home-protection. The best form of home protection is an all-steel door, set in an all-steel frame, bolted to all-steel studs. With deadbolts set, it would be impossible to kick in the door. If we did not sell modern firearms and ammunition publicly in stores or guns shows, or privately; if we routinely collected guns and ammunition after a felony search warrant, or when trying to pass them through a checkpoint, their numbers would slowly diminish. That is surely a good thing. If nothing else, it would reduce the rate of accidental killing of playmates by kids who find a loaded pistol in the house. Opinion: Is all this just my opinion, or has it some firmer basis than that? The science of civilization requires utopian dreaming as well as utopian analysis. It must be possible to dream up a specific solution to the equations provided by the well-established ideals. It is something like the rule for the physical sciences that a theory must have testable consequences before it really is a theory. The architect provides a different analogy. She must obey the rules of engineering in her design, but the rest is her imagination, and the result depends on the available technology of the time, and the specific details of the site. Think of my detailed suggestions as something like the designs of a highly trained architect. Or solutions of equations with a particular set of initial conditions. The seven ideals provide the equivalent of the universal equations of science. In a different time and place, you will dream a different set of dreams. And that too will be utopia, if it is based on true ideals. Utopia is not a place; it is more of a goal or a direction. “Utopia” in Latin actually means “nowhere.” But I tend to use the term as a set of proposals. Thus, there is my utopia, and your utopia, if you have a different way of living up to the seven ideals.