[dreadgeek]

This was posted on the Breaking News thread by me. Cross-posting here:

Well, if all of the above offends you we could just go back to a feudal system of crime and punishment where you didn't get a trial (no lawyers), there was no bail (no bail bondsmen), there were dungeons but those were for torture not imprisonment.

You can have a legal system, in which case you have to put up with the fact that the legal system must play by the rules or you can have an ad hoc system of crime and punishment for which there is another name: lynching.

ETA: Let me also point out that even WITH the current system of laws, we routinely execute the wrong person. In Texas a man was executed for killing his three children in an arson fire. Except that when actual fire experts looked at the crime, they determined not only was it NOT arson but it could not have been arson. Several studies have also found that black men are three or four times as likely to be given the death penalty for the *same* crime even if you hold every other relevant detail constant. And a disturbing number (approaching a third) of those death penalties are eventually overturned on DNA evidence. So if we go back to the Old West system of lynching--and once you pull out the legal system, all you're left with is mob justice--do you really think it will be any better? I'll tell you right now, since we've *run* that experiment--it wouldn't be.

In the Deep South, into the middle of the last century, a black man could go from having a nice day to being hung from a tree in an afternoon all because he bumped into a white woman. That was also swift and sure 'justice'. Thank you very much but I'll take the set of problems flowing from having a legal system--even one as flawed as ours--to ad hoc 'we think this person did the crime, so that's the person we'll punish for it' mob justice.

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Some further thoughts on the matter

It seems as if we have forgotten both *why* we have the legal system we do and how long we struggled to get it. So I thought I'd remind folks that our legal system, flawed as it is, is still better than anything that had existed Western society before. (And by 'our' I am talking about the Western legal systems that are the descendants of British Common Law.)

There was a time when the sovereign could have you picked up and imprisoned for whatever reason he might wish. You had no right to a trial. Perhaps, if you were wealthy, you might be able to buy your way out of trouble but barring that you were going to be shuffled off this veil of tears and if you were lucky, it would be sooner rather than later because later *always* involved horrific tortures on your way out. This was changed by the introduction of habeus corpus which requires that the accused be brought before a court so that the legality of the imprisonment (it's justification) can be examined.

Okay, so you're alright with habeus corpus. Trials are fine as long as guilty verdicts are forthcoming, right? Well, this is where we get to the next great advancement in Western legal thought--the idea of the fair trial by jury. It was once the case that trials were more or less shows. One was highly unlikely to be acquitted. There were no rules for what constituted evidence, nor was there any right to have your accusers cross-examined. You could be compelled to testify against yourself and refusal to do so was considered admission of guilt. All of this was true into the 18th or 19th century in Western civilization. The long arm of the law could reach into your home, at the time of their choosing, and 'search' (read plant) for evidence. All of this began to change when Europe began the long, hard, transition from a Feudal system to democratic nation-states. The fourth and fifth amendments exist for a reason and it's not to provide cover for people who want to be 'soft on crime'.

So now we're a little closer to modern day. One poster has spoken eloquently on how great the legal system--meaning the lynching system--was in the Old West. Keep in mind that most crimes didn't necessarily go to trial. It was more along the lines of "that's the person we think did it, so that's the person who is going to be punished for it". This was usually done in a very ad hoc and quite arbitrary manner. The problem, of course, is that mobs aren't real intelligent and aren't really interested in justice they're interested in punishment. So as long as *someone* paid the price (meaning someone was killed) for the crime that was good enough for the time being.

I won't belabor the point about lynchings of black men.

Lastly, the rules and strictures that modern police forces have to work under. Again, while it might seem that these are just to provide cover for 'soft-hearted liberals' they are actually all there for fairly good reasons. For instance, before the Miranda law the cops could use all manner of dirty tricks to get you to confess to a crime. And they DID use tricks and coercion. So finally the Supreme court decided that the accused had a right to a lawyer and had a right to speak to someone who actually understood the law before having to say word one to the police.

I always find it quite remarkable that people have these romantic ideas that if only the law were not hamstrung by rules, we would have a crime-free society. Nothing could be further from the truth. At present, I'm listening to an audiobook called 'The Third Reich in Power'. In the chapter just finished, there was discussion on the system of denunciation of Germans for crimes against the State. What is germane here is not the particular crimes but how the legal system handled them. Trials in Nazi Germany were pretty pro forma affairs. If you were a Nazi, you would probably walk. If you weren't, you would find yourself either in prison, in a concentration camp, or executed. Evidence didn't really matter, accusation did. Now, I'm not saying anyone is suggesting the Western democracies become Nazi Germany. I am, however, curious as to what the substantive difference is between an arbitrary legal system whose real purpose is to grease the wheels to the executioners block and what is being advocated here?



Cheers
Aj