It grates on me every time we (once again) have a conversation about “Defund the Police”. Many would criticize it as a bit of rhetoric for its use of the word “Defund” which can mean “reduce funding somewhat” or “eliminate all funding”, rather like “Slash taxes!” might. Part of why it grates on me is that I’m actually somewhat sympathetic to this argument, but (and this is a huge but) I’m not a rhetorician and I’m certainly not a sloganeer.
It may have come to the attention of one or both my readers that I’m actually somewhat longwinded at times. It turns out that this is a general trend for me. I fear speaking with insufficient precision for a number of reasons and my response is (often) to strive for hyperclarity, heedless of the prolix risks and results. As the Emperor of Austria might say, “Too many words.”
But it so happens that I have a modicum of self-awareness. While I can’t actually stop myself from writing a thousand word answer to a four word question, I can actually stop myself from writing slogans. I’m not good at them. I’m never going to be good at them. I’m content to have (and develop) other skills without ever shooting for a career in ad copy, headline writing, or sloganeering. I will always be uncomfortable with ACAB despite being fully aware that there’s some important truth there. Likewise I will always be uncomfortable with Defund the Police! It’s who I am.
So why is it grating to hear criticism of a slogan with which I, myself, am uncomfortable? Because the criticisms so often focus on exactly the subjects that I get wrong, time and again. A slogan doesn’t need to be precise or even accurate to have emotional resonance. Hey, Kool-Aid!, Where’s the beef?, and Can you hear me now? were all wildly successful slogans without being either precise or accurate about, well, anything at all. One might reasonably say, “Hey! Kool-aid sucks. Don’t bring that shit around here.” “Where’s the beef?” is a seemingly stupid question when the beef is easily found in the hamburgers of Wendy’s competitors. And, “Can you hear me now?” could be easily answered, “No, your network sucks,” as it was among people I knew at the time. The most recent slogan to hit the news is perhaps the best proof that slogans can seem to fail every intellectual test and still work: “Let’s go, Brandon!” is neither precise, nor accurate, nor intended to convey anything at all an encouragement to someone named Brandon. The follow-on, “Let’s go, Darwin!” that has gotten less press but is used against anti-vaxxers makes, if anything, even less sense. Darwin never encouraged people to die sooner for the sake of anything, much less evolution specifically.
So when people criticize Defund the police! for the trente-sixième time using the arguments that appeal not to the best in my, but to my areas of least competence, and they do so on the basis of premises that are easily proven wrong (e.g. slogans must be precise and accurate!) it annoys me because the people making those criticisms are inviting me to fall into the same pit in which I’ve landed thirty five times before. I know this doesn’t get us anywhere because I’ve made the same mistake myself, and I don’t appreciate being pushed toward making the same mistake again.
Defund the police! works as a slogan. We know that, empirically. This isn’t a question of ad executives sitting around a board room table discussing whether or not Where’s the beef? is sufficiently precise or accurate. We have real world data. Defund the police! makes right wing defenders of the police state nervous and puts them on the defensive. On the other hand, Defund the police! is a cry that large numbers of left wing critics of the police state voluntarily take up, propagate, and organize around.
These are exactly the qualities you want in a successful anti-police state slogan. It actually does (contrary to the comment of tallgrass05 in the thread which sparked this post) play offense instead of defense. Many critics of the slogan claim that they want to do exactly this, and yet fail to understand that we couldn’t get our policy proposals a media hearing until Defund the police! caused the news media to perform interviews and create stories specifically to answer the question, “What does Defund the police! really mean in practice?”
In short, the pithy people responsible for Defund the police! are actually the ones who have created the opportunity for me to wax with poetical prolixiferousization.
Given the opportunity, I’m going to take it by posting (with minimal reframing) some of the writing I’ve done on “abolishing police” and “defunding police” in comments elsewhere on FtB so that they can be found in one place for future reference and present discussion. But while taking that opportunity, it would be rude of me to be anything less than grateful towards those who provided it.
Thank you, creators of Defund the police! You’ve created a better slogan to fight the US police state than any in recent memory.
Because “Fuck the police” might lead to an outbreak of STIs.
I was always fond of “Off the pigs”.
I’d like to see numbers from psychological studies and surveys, and so I’m just spitballing here, and I recognize and admit that I’m just posting complete garbage right now, but…
I don’t like the slogan because I don’t like the goals of those who speak it. They think that we should be striving towards reduction of police force, which itself seems to be a tacit admission that the police are inherently unfixable and will always be uncontrolled murderers, and I don’t like that approach. I want to actually fix the police instead of work off the assumption that the police are inherently unfixable.
But, unfortunately, most people even on the left are unwilling to do what needs to be done, which is to radically re-envision the police as civilians with badges, citizen’s arrest, and paper warrants from judges, aka bounty hunters, instead of soldiers. So, I just think that the the movement is blowing a lot of hot air with highly questionable policies because their foundational assumptions are wrong, e.g. they believe we need to live in a police state to be safe, aka with armed soldiers on the streets under martial law.
I’m not sure I’m opposed to your vision, though I’d need more details to be sure. The truth is that I don’t trust myself to be expert enough on the topic to be specific in my own requests. It’s obvious that we need to ditch the institutional memory of the current agencies – they cause new hires (through both selection-in-hiring and also through training) to become acculturated to their system rather than adapting current agencies to new vision. In that sense, as I’ve said repeatedly, I’m for abolishing every police force that exists and replacing it with something new. What are the details of the policies and powers of that new thing? I’m open to hearing ideas since, again, I’m not the expert here.
But even if we were irreconcilably opposed to each other’s visions, GoTS, I’m happy to have you out there pounding on about overthrowing the system because either you’ll get your majority and create a new system which will always be subject to new reforms (and/or being overthrown itself) if it doesn’t work, OR your radical vision will serve to push the Overton window and without ever gaining a majority among your faction you nevertheless influence the publics vision of the scale of change required. And to my mind that can only be good.
But, finally, on the topic of the slogan, you say you don’t like it because you don’t like the limited goals of those who use it. But without those persons and their limited goals, you wouldn’t have anyone listening to your own vision. Why not appreciate the success of the slogan rather than biting the hand that feeds you your rhetorical opportunities?
I’m not opposed to the goal of “defund the police” movement. I just think it doesn’t go far enough, and I really worry that it’s wasting political capital in the sense of 1- spending motivation of our side on useless causes which expends that motivation, and 2- creating political enemies where we might not need create political enemies. In other words, I can’t imagine that the goals of “defund the police” are harmful. So, I don’t think we have any irreconcilable differences here, unless I missed something.
Bceause I really think it’s accomplishing basically nothing, and it might be actually counterproductive by creating more political enemies based on misconceptions of the policy proposals (and of course outright lies about the policy proposals).
…
Re my vision.
I think my vision is simple. However, it’s so radical that it’s hard to communicate.
In short, treat cops as bounty hunters on salary instead of on commission. In other words, treat cops as civilians instead of soldiers. To the largest reasonably-possible extent, cops should rely on a normal person’s inherent common-law power of detention, arrest, self defense, defense of others, and other use of force. The interesting part is when we start discussing the necessary exceptions. I think this new framing of the discussion is necessary. We need to move away from the false idea that we need armed soldiers on the streets to keep us safe, and instead we need to start thinking in terms of the minimum extent of necessary special police powers to keep us safe.
The first obvious “exception” is that cops should be allowed to use reasonable and proper force in the execution of warrants that are issued from a proper judicial officer.
The second obvious “exception” is that cops should be allowed to issue citations along with the necessary temporary detention power. The typical person shouldn’t be allowed to stop someone nor give someone a ticket. This power should be strictly limited. Custodial arrest is allowed where it is necessary to achieve positive identification and probably for resisting the citation process.
A third less-obvious exception is the inherent search powers for code enforcers, e.g. building code enforcers, restaurant food code enforcers, etc.
Regarding other kinds of custodial arrest.
Custodial arrest according to a proper warrant issued by proper a judicial official is great. Having said that, arrest warrants should typically only be issued for felony offenses and failure to appear offenses. Again, most offenses should be handled by citation, and most people should have the right to be free from detention pending trial. It shouldn’t even get to a bail hearing in most cases because there shouldn’t be a custodial arrest in most cases.
Warrantless custodial arrest according to probable cause of an outstanding felony offense is ok. And that should be ok for cops and non-cops alike.
Warrantless custodial arrest by everyone, or maybe cops only, is necessary for certain other lesser offenses, like blocking traffic, trespassing, battery, etc. Even then, the default should be to handle these by citation without custodial arrest, but warrantless custodial arrest should be allowed according to the historical standard: the arrestor must a personal witness to the offense. The arrest must happen during or immediately after the offense. The arrest must happens after the offender refuses an order to stop the ongoing offense. The offense is of a nature that requires immediate custodial arrest as a remedy for the ongoing offense (this last requirement is honestly pretty broad and IMO intentionally so).
In particular, cops shouldn’t have special rights for carrying weapons, using weapons, and brandishing weapons. Every time I see a cop point a gun at someone for bullshit reasons and get away with it – it pisses me off so much.
What other special powers, privileges, rights, and immunities do cops need? That’s the conversation that I want to have. “Very little or none” appears to be the answer to me.
PS:
I also think we need to revive the practice of having published manuals that have extensive and detailed lists of scenarios which explain what the cop and non-cop civilian can and cannot do in terms of searches, seizures, and other uses of force, with detailed rules for escalation of force and limits or caps on the use of force depending on the offense and scenario, and these published manuals need to carry some significant weight in courts of law. Of course, these manuals should be written according to the guidelines that I’ve outlined above.
Another way to think about it is that I want the following legal standard: If you can wait to ask a judge for an arrest warrant without undue risk of additional harm to the public, then warrantless custodial arrest should be unlawful. This is where the manuals come in – to provide legally binding guidance on what cases carry “undue risk” vs not.
We also need to completely abolish qualified immunity, and we need to bring back private prosecutions to ensure that cops don’t get off because their buddies in the government prosecutors office don’t want to vigorously prosecute them.
What you have described as a attention getting success and as a negotiation tactic, I see as a marketing failure. The reason the media was so willing to talk about police reform was not because of the slogan, but rather the murder of George Floyd on video. The right wing is not afraid of Defund the Police. They love it because it frames the question in a way where most Americans will agree with them and helps them win elections.
Toella Pliakas wrote an opinion piece last week (Newsweek) that explains this much better then I can. Their first two paragraphs:
The rest of the article is here https://www.newsweek.com/left-shouldnt-scrap-defund-police-we-should-brand-it-better-opinion-1673929
CD, I do very much want to point out that I greatly respect you and this is purely an argument about tactics.
Oh, one another thing. I want to have searches and seizures actually limited according to the scope of the original reasons for the search. For example, if a cop stops someone for a traffic offense, and if they find a gun or something, that evidence is outside of the original scope for the original search and seizure, and therefore it should be excluded according to the exclusionary rule. Ditto for searches according to actual warrants too. Aka get rid of the IMO-nonsense American “in plain sight” exception to the exclusionary rule. Specifically, if you’re detaining someone, or if you’re searching a private space, there should be no “in plain sight” exception to the exclusionary rule re the original scope of the warrantless detention or the written scope of the warrant.
I’m reminded of a slogan I first heard decades ago, which at first I had a very negative response to; “All men are rapists”. But it ended up making me think about a bunch of stuff I hadn’t thought deeply enough about. It didn’t take me too long to get to “I’m glad someone said it”, regardless of their actual intent.
Those aren’t the details that I would need.
What I need is the empirical research showing that your approach actually creates very large reductions in both violence by the system and abuse of power by the system. If there’s work elsewhere that demonstrates that a professional caste of highly regulated enforcers that are given certain powers and are subject to certain specifics of oversight are less likely to abuse power than would be the individuals in your system, then I would favor the other system.
**I don’t actually care** whether we call them professional militias, sheriffs departments, or bounty hunters’ guilds. I care what reduces abuse of power and human suffering. Can you show that your vision will reduce these things? How? Lay out that evidence and make sure it’s better than evidence supporting other proposals and I will lean toward yours.
That said, so far we’re already in agreement (or seem to be) on a number of points, including that
1) cops shouldn’t routinely carry weapons
2) qualified immunity needs to go
3) warrantless custodial arrest should be much more rare
4) cops should be routinely prosecuted for exceeding their lawful authority
5) exactly which powers & privileges officers have is a question that needs to be approached de novo.
@Rob Grigjanis:
Exactly. Defund the police! can be a good slogan regardless of whether any given individual fully agrees with it.
CD
Except for private prosecutors, I’m not even sure where we’re disagreeing on my proposals. You seem to be in agreement with AFAICT all of it in the broad details – except for private prosecutors.
As for my feelings on the phrase “defund the police”, marner in #6 accurately captures my gut feelings, but with actual research. Yay!
I think it’s really important to make my position clearer by making it less clear by saying that I definitely agree with Rob in #8. I think Rob is entirely right, but I still also suspect that the widespread use of the phrase by politicians and leading advocates is incurring significant blowback. (I personally further think that the desired goals underlying “defund the police” are difficult to achieve in the current political climate, will have limited impact, and don’t go far enough.)
@marner
thanks for the respect! I’m perfectly happy to have debates about tactics and don’t at all feel threatened by them or disrespected when people disagree.
As a counterpoint, would you consider the idea that Defund the police! has been a successful slogan, but that it has taken lefties as far as it can?
In that sense, we wouldn’t need a **better** or “stronger” communications strategy. We would just need a new strategy for a new political moment.
Likewise, as I’ve argued with respect to the Overton window, we might need an additional communications strategy: one that works to leverage specific policy reforms to supplement the one (Dtp) that rallies marchers. I have always found that street pressure is necessary to politicians bothering to do anything, while different tactics are needed to shape the resulting political action into a positive final form.
If DTP scares the electable moderate lefties (fearing that they may be tarred with a too-radical brush) such that the moderate lefties actually are forced to talk about what they will do in response to the policing crisis in the USA, then that’s sure as hell better than the electable moderate lefties remaining absolutely silent for fear of being painted soft on crime. Isn’t it?
Whether it is or isn’t, I’m glad we’re having a conversation about the slogan that isn’t reducible to, “It’s bad because it doesn’t contain the full details of a nuanced policy proposal in 3 words.”
@GoTS
Is it better to have politicians talking about the policing crisis and getting blowback or was it better to have them not talk about it at all for fear of being labeled soft on crime?
Given how invested the current police forces are in maintaining unaccountable impunity, wouldn’t you expect blowback from any serious effort to curtail their power?
And if you would, then wouldn’t lack of blowback be the more serious indicator that something is wrong with the public discussion of policing?
As a trans activist in the 1990s I was assaulted repeatedly, threatened repeatedly, belittled repeatedly. “Blowback” is putting it mildly. Yet no one would deny that trans rights have come a long way from the 1990s.
Measuring success by lack of blowback is, I think, misguided at best. (Now if you want to measure failure by the presence of specific kinds of blowback you’re on firmer ground, but you would first have to establish which types of blowback would be unacceptable and then demonstrate that the blowback is manifesting in that/those specific way/s.)
Crip Dyke,
Bad example probably, but: What if I agree with the goals of the gun control lobby (and I do moreso every day it seems), but what if I also think that the current political circumstances mean that the proposals by the gun control lobby are unlikely to be enacted politically, and unlikely to have much effect if enacted? (Ex, I think magazine capacity limits and assault weapon bans are basically useless.) I could be in favor of the proposals, but I could also recognize that we could probably do more good in the world by dropping that rhetoric because it’s potentially losing us moderate voters who might otherwise vote Democrat.
It’s really frightening how similar I see the two US political issues. The gun control lobby doesn’t go far enough, usually offering only half-ass policies, most of which wouldn’t do anything even if enacted. This “defund the police” movement is also proposing half-ass policies that would have at best questionable or moderate benefits if enacted, and worse, I think these policies would be easily subverted and corrupted in practice because of other systemic issues. And in both cases, we’re creating lots of motivation among people who will vote against us. I think both are losing propositions. At least go big if you are going to have such blowback in the opposition, IMHO.
There’s other options. I don’t like either option. I want a third option.
Yes. I would. I don’t get why we’re sidestepping the primary issue and spending all of this political capital on what I consider to be small impact policy proposals that don’t address the root issues.
I think I would expect less blowback from Republicans if we targeted the real issues as compared to the current slogan which is easily misinterpreted as doing away with police. If instead we used the language of personal responsibility and personal accountability (for police), I think we would get less blowback. There’s a lot of fear of government overreach in the Republicans. We should tap into that instead of fighting against it.
Let me explicitly note again that I’m measuring success by looking at the accomplishments of the reform police movement, which have been very small for a long period of time, in spite of AFAIK several legislative successes, and that’s because they’re not attacking the root problem and coming in from the false foundational premise that police need to be soldiers.
PS:
I’m happy that we as allies can have this conversation. This is just a question of tactics (and efficacy of certain proposed legislation), and that’s an empirical question which have right or wrong answers, and I could easily be wrong.
CD
This also reminds me a lot of the accommodationist vs firebrand approach to atheist activism. Both approaches are needed. Sometimes one side that the other side is using ineffective tactics, and sometimes those complaints are right, and sometimes they’re not.
What I’m trying to say here is that I think we both want basically the same things, and we’re having a mild disagreement about tactics with a dearth of information of which side is correct. Further, I don’t want to be the accommodationist atheist who spends more time shitting on the firebrand atheist compared to shitting on the obnoxious theists. I don’t want to be someone who provides aid to the enemies of the phrase “defund the police”, and I want to help the speakers of “defund the police” as much as I can (except for the few ridiculous anarchists who really do want to abolish the police without any replacement in the form of persons paid by government to deter crime and catch criminals).
PPS:
Like, why haven’t we done away with civil asset forfeiture yet? That’s something that is universally hated by Democrats and Republicans.
And how the hell did SCOTUS ever sign off on that anyway? It’s the most flagrantly unconstitutional and un-American thing that SCOTUS has signed off on since, what, Plessy v Ferguson?
Precisely. This is why I discuss the need for both street pressure and political leverage. It’s also why I’ve written about the topic several times on this blog in OPs, such as this one about my Lesbian Avengers activist days and how we helped Gail Shibley shut down a sexist bill that looked like it was on the way to becoming law.
It honestly seems, despite the nod in this quote, that you’re going out of your way to say that the slogan is **wrong and bad** when in fact it’s just a different tactical approach than you would prefer. That’s different. Nearly every slogan, in fact sloganeering itself, is something that I would generally not prefer. But slogans do, occasionally, have power and do, occasionally, help people get shit done.
I look at our political moment and see more openness to changing our system of policing than I did 5 years ago. While these things are, in the language of academic psychology, overdetermined, I haven’t seen anything yet that tells me that we would be in a better political moment if the slogan “defund the police” had never been used.
PS. Entirely agreed on civil asset forfeiture. It was originally used when the owners of a property were difficult or impossible to identify because claiming the property would be tantamount to admitting to criminal behavior. Rather than leaving the land forever without title, the government should take such property. However, the government is specifically forbidden from taking such things without just compensation. But how can you compensate someone if they won’t identify themselves to you as the owner? Unfortunately from this fairly reasonable origin related to confiscating property that appears abandoned by criminals as a method of avoiding self-incrimination subsequent rulings expanded the practice ridiculously. I, too, find it hard to believe that such a blatantly anti-constitutional practice was ever upheld. And yet it has been. This is another case in which we’re going to need a god damned constitutional amendment when it really shouldn’t be that hard.
Perhaps. My apologies. I do have a contrarian streak in me.
I still feel that it has helped block reform. I recognize, however, that my privilege leaves me more open to incrementalism then is probably healthy. For example during that brief window when Republican’s were willing to do something about police reform, I would have taken them up on it. Especially as it encouraged body cameras, which I think is the easiest and quickest path to more police accountability. https://www.npr.org/2020/06/17/879082580/republicans-police-reform-bill-focuses-on-transparency-and-training
I remember your writing about participating in demonstrations in Portland. And I agree that street pressure is useful, but once the young white men in black wearing backpacks show up the mood changes and I’m leaving.
Completely fair. I find Portland’s Black Bloc a counter-productive pain in the ass also.
@GoT
Re your comments on exclusion in 7.
I think you might want to rethink the ‘plain view’ doctrine a little. The version you propose might lead to some absurd consequences. Assuming that you accept that cops might have a legitimate reason to detain a person or stop a vehicle – what should they then do if they observe obvious evidence of criminality during that legitimate interaction?
“Well Mr. Kemper, here’s your ticket for the rolling stop. Have a nice day, and may I say that that is a very lovely severed head you have on the passenger seat? Drive safe now….”
The real problem with the plain view doctrine is not the doctrine itself – it is that no mechanism presently exists to deal with rights violations committed by officers going ‘fishing’ when they don’t find anything – and the public howls when courts exclude illegally obtained evidence because “He’s getting off on a technicality!”
The thing is – we don’t actually need to use evidence exclusion at all. The courts use it as a way to disincentivize rights violations by police – but there could be other ways.
Since the American right is so in favour of performative civilly-enforced bounties right now, this might be one method. Create a schedule of statutory awards for all kinds of rights violations with escalating amounts depending on the severity. Apply the penalty to the police agency, the officer(s) involved, and their immediate supervisor. Prohibit police agencies indemnifying their employees – officers must pay any penalties themselves.
Any evidence sized during a violation could still be used in a criminal prosecution, but the penalties would still serve as a deterrent against bad behaviour. If the public gets mad at a convicted murderer getting a six figure payout, they can be mad at the cops, and the murderer would likely be sued in turn by the families of their victims.
Since this would use the civil courts, we could even throw fee shifting in. If someone sues an officer for a violation and is successful, the violators could also be required to pay the legal fees incurred by the plaintiff.
I have long wanted to see police required to carry malpractice insurance, which this would factor into. If officers had to maintain a minimum 5 mill liability insurance, bad cops would be easier to remove.
Interestingly, in Canada we do not have qualified immunity for police officers, and yet we have many of the same issues the US does. I assume this is because most rights violations are nebulous things that are hard to attach a monetary damage to, so lawyers are generally not interested in suing over rights violations unless the plaintiff is well funded.
(separated out, as it’s not specifically addressing GoTS)
The other thing I would like to say generally is that we should completely separate the investigative and first responder functions. Contrary to what TV wants us to believe, there is nothing that an officer learns in their 5-10 years on patrol that makes them better at investigating crimes. All it does is ensure that nobody gets to be an investigator who isn’t willing to do front-line policing or doesn’t fit in with the culture.
We should be hiring our criminal investigators from as wide a variety of backgrounds as possible. Law, journalism, academics, finance, engineering, almost any profession has something to contribute that would enhance an investigative team. The current system excludes by default anyone who doesn’t want to/cannot spend years fighting with drunks and handing out traffic tickets. It would be like hospitals requiring anyone who wants to be a surgeon to spend 2-7 years working their way up from janitor to security to orderly to nurse to surgical assistant to surgeon. It would be seen as an absurdity. And yet we do this with detectives.
Not acculturating every criminal investigator in the mindset of the ‘street cop’ would be a huge improvement. Interestingly, this kind of does happen (a little) in the US, it does not happen in Canada. The FBI is far more willing to investigate (non-FBI) police misconduct than our equivalent (parts of the RCMP) are. I suspect this is largely be
CD
Also, thanks for that history of civil asset forfeiture. I had no idea. That was really interesting. Thanks!
snarkhuntr
Re the head example. Yes. To use a close analogy, by demanding that someone is proved guilty beyond a reasonable doubt for criminal charges, that means we sometimes have to let guilty people go free instead of put them in jail. Similarly, requiring probable cause for a search instead of a lesser standard means that some criminals are not going to be caught that could have been caught. Similarly, protecting our rights against invasive searches is going to come at the cost of enforcing the scope of the search according to the original reasons for the search.
Also, the exclusionary rule, AFAIK (which I have very poorly researched), simply says that it cannot be used as evidence in court against the person. It says nothing about seizing it or not seizing it. If they find stolen property, they can take the property and return it. If they find a kidnapped person, then they can rescue the kidnapped person (who could then testify in court – the one loophole of the exclusionary rule). In all cases, they can still seize it under the exclusionary rule so far as I know (which again is based on very very limited research), but the “excluded” object, and any evidentiary chain based on the head, must be excluded as evidence in court.
I agree that the exclusionary rule is not a substitute in my ideal world against civil and criminal charges of trespass, robbery, and/or some other civil and criminal action for those who misuse search and seizure warrant powers. I think having both would be best.
I disagree with the notion that we should do away with the exclusionary rule. I am highly doubtful of the claim that other sorts of penalties would be sufficient deterrence.
Re civil penalties. I think the very concept is a common-law oxymoron, and I think it shouldn’t exist. Civil penalties exist to right wrongs, and no more. Additional penalties above and beyond actual damage, such as penalties for deterrence effect, should never be civil. They should be criminal. That’s the entire point of the difference between civil and criminal “charges”, along with the corresponding additional protections for criminal “defendants” and the additional evidentiary burden for finding the “defendant” “guilty”.
Having said that, I think current civil penalties are an acceptable short term compromise because of the lack of private prosecution. Historically, that wasn’t a problem because private criminal prosecution was commonplace. I think the real proper answer is to forbid civil penalties that are above actual damages, and to bring back private criminal prosecutions.
Re Canada – do you have easily performed civil torts against things like wrongful arrest? If the court finds against the cop, does the cop personally pay? That’s part 1. Part 2 is probably the same problem as America – I guess that in Canada, only government officials known as “government prosecutors” can initiate criminal prosecutions, meaning that whether a cop is held criminally liable or not is a matter of government official’s discretion, and worse, at the discretion of a particular government official whose job makes them work closely with the local cops. I offer the same solution – bring back private criminal prosecutors.
I like your idea of restructuring the advancement of cops, and not making the “rank” of detective require 5-10 years of “beat cop” rank experience. PS: I also think that we should fundamentally change cop culture so that they don’t use militarized ranks and other sorts of military structure. The guy above a cop should be a another civilian, just like any other civilian boss, and not your commanding officer.
I agree with Marner @6. One needs to keep one’s goals in mind, and our primary goal before we can get anything positive accomplished must be to remove every single fascist Republican from office.
“Defund the police” is a terrible slogan because Fear of Crime is an easy button to push in swing voters’ brains. If we use the slogan, then every single crime that gets committed becomes Our Fault. As a slogan it may swell our street power, but street power is useless if it leads to a reduction in political power.
The slogan plays directly into Republicans’ hands. Retrain the police, reform the police, recreate the police, sure. But people are always going to want them to be there.
Defunding the police is really not the answer, first because cops are needed, whether many people like them or not. Secondly, without cops and other law enforcement people, societies would descent into total anarchy. Thirdly, many, if not most people who reside in high-crime areas agree that police protection is important.
What is needed is an overhaul and a reform of the police, which involves the disciplining of rogue cops by their respective departments, and/or permanent dismissals from their respective departments if and when necessary.
Every city, town, hamlet and village here in the United States should also be required tp have one or two Civilian Overseers, or a Civilian review board, so that cops who do abuse their power can be held accountable for what they do.
@GoTS
We may have fundamentally different ideas about what kind of state action we wish to be protected against. I would like to create a system where police officers are personally incentivized to follow the law and respect the rights of citizens.
However, if an officer *has* violated someone’s rights in the course of their conduct, excluding discovered evidence from criminal process does little to nothing to incentivize that officer. If we assume (temporarily) that the carceral system can actually deliver safety or justice by convicting someone, denying the evidence to the system just punishes society as a whole. The individual officer remains unscathed and free to behave as they wish.
An officer may even see eventual exclusion of evidence and charge dismissal as an inevitable part of the process. The old saying “You can beat the rap, but you can’t beat the ride,” applies here. In my own experience, I was on a training course taught by a highway patrol officer (RCMP) who bragged about seizing a large bag of cash from a suspected drug runner. He said that although they couldn’t use the cash to charge him with anything, the guy ended up in a downtown SRO hotel with his throat slit, likely by the people whose money it was, and he thought this was some sort of justice.
The reasons to apply statutory penalties in a civil tort context are these: (1) a recognition that some harms are very difficult to adequately evaluate through strict monetary calculation and (2) to add a certain floor of fairness to the situation.
If we only used actual monetary damage as the scale for punishing police misconduct, the police would be even more likely to prey exclusively on the poor and marginalized then they presently are. If an officer illegally locks up two people, one unemployed and unhoused, and one a highly paid investment banker – the actual monetary damages that those individuals could realistically claim would be wildly different and the police would likely be much more careful of the rights of the wealthy than the poor.
Regarding private prosecutions. These are absolutely a thing in Canada, but are vanishingly rare. Most people don’t know the process exists, and wouldn’t know how to navigate it. If you have the money you could likely pay a criminal lawyer to initiate one, but there are significant structural barriers that make it much harder for a private citizen to carry out an investigation than for the police to do so. The Crown (prosecutors) can also step in at any time and take over your prosecution, and can stay or withdraw your charges if they see fit.
If the consequences of bad behaviour don’t fall upon the officer themselves, on bystander officers, and on their supervisors – nothing at all will change.
@brucegee
“The slogan plays directly into Republicans’ hands. Retrain the police, reform the police, recreate the police, sure. But people are always going to want them to be there.”
This is itself a failure of imagination, and is one of the things that “defund the police” does really well. It gets people talking about exaclty this issue: do we need police?
Of course to a fox-watching smooth brain, it can be weaponized as a club to beat the liberals with. But literally anything can. There’s no interest in truth on that side of the fence, so “defunding the police” will be blamed for rising crime rates even in places (especially in places) where the police weren’t defunded and crime rates didn’t rise.
Even if we could carefully tiptoe around and tone police ourselves enough to never say anything that could conceivably be deliberately misrepresented by right-wingers, they would just make something up to attribute to us, or pluck out a relatively obscure legal theory and make it there new culture war battleground.
This is exactly why I attach only minimal import to the “But it could be misused!” argument. With the GOP detachment from reality, literally wearing the wrong color shoes can be used as proof that democrats/liberals are committing the grossest crimes imaginable.
In such an environment, we can only consider the “uses” and not the “misuses” of a potential tool. To do otherwise is to be completely paralyzed by an inability to wear clothes outside the house lest one be made responsible for kidnapping, sex trafficking, and murder.
Although you, yourself, Brucegee, did not make this error, I’ll also mention that I’ve seen people simultaneously warn that we can’t use this or that because it will be misused by a mendacious right wing **and** complain that the left never plays offense, only defense, and therefore never gets anything done.
Doing things requires taking risks. It is the way of the world. But in this happy instance, the same risk (that we will be blamed for horrible crimes) attaches to us whether we act or whether we do nothing, because Republicans seeking power will demonize us regardless. Thus it’s hard for me to take seriously the idea that **this slogan** or **this policy proposal** is responsible for a particular round of demonization in the media.
But maybe it’s easier for me: I’m going to be blamed for the downfall of WesternCivilization just for existing, as I have been since at least Pat Robertson’s GOP convention speech in 1992. I lose nothing by smashing the barricades.
“Thus it’s hard for me to take seriously the idea that **this slogan** or **this policy proposal** is responsible for a particular round of demonization in the media.”
Not only cannot it be taken seriously, it is clearly wrong. Do the tone-police really believe that if BLM activists had been chanting “Demilitarize the police” that the right-wing outrage machine would have reported on the protests and had honest discussions about the pros-and-cons of various possible means of demilitatization?
snarkhuntr
Yes, actually. I think it would have made a difference. I have a centrist friend in Michigan, huge gun owner, not a Trump fan, and I remember a detailed conversation that we had one day about the no-police zone in Seattle 2020 as part of the George Floyd protests. It was context which colored his perception of the phrase “defund the police”. He really believed that a much larger percentage than reality of the left wanted to abolish the police entirely ala that anarchist no-police zone. We had real serious and frank conversations about whether that constituted an act of rebellion comparable to, or worse than, the attempted insurrection on Jan 6 at the Capitol building. I know that Fox News et al will lie about the left no matter what we do, and so we shouldn’t worry about picking slogans that are immune to malicious misinterpretation, but there is something to be said about proverbially shooting oneself in the foot in a messaging campaign, and I think the combined context of “defund the police”, large protests sometimes turned into small riots, and *enforced* zones of no-police in the downtown of a major city – that was a “shooting self in foot” moment by the left. The slogan at face value endorses anarchist values, and at the same time we also had anarchists take over the downtime of a major city. Shit doesn’t look good.
PS: I found the conversation with my friend to be bizarre. Of course the Jan 6 attempted coup was way worse than the Seattle no-police zone. Even if you could interpret the no-police zone as a rebellion (which is stretching it pretty far IMO), the rebellion never intended to overthrow the whole national government AFAIK, which means it was far less of a threat than the Jan 6 attempted coup where the goal was to overthrow the national government.
I made the argument before, and I don’t think you addressed it. Let me use another example. “Stop and frisk” is obviously bullshit and shouldn’t be allowed. Someone else might say to me “but we would let criminals get away, and punish society as a whole, by not allowing cops to stop-and-frisk (without probable cause)”. I don’t see a meaningful difference between what you’re saying here and what this other hypothetical person is saying. They are both missing the memo – we restrain state police power because we are afraid of possible abuses of that power. No amount of training or oversight is going to change that, and I think too many on the left (and right), perhaps yourself included, believe in some statist utopia where our cops are trustworthy enough that they won’t abuse the system and that we can entrust them with lots of discretionary police power. Sorry, I will never agree to that. I believe that one of our principle goals is to reduce police discretionary power of arrest, detention, search, seizure, and other use of force as much as possible, to be as close as the same discretionary power of any other civilian. In other words, it appears that in your calculus, you do not even consider the harms to society that inevitably result from giving wide-ranging discretionary use-of-force powers to *anyone*.
Great. I already said it. Let me say it again. That’s why I want civil and criminal liability for the cop who goes outside the scope of a search-and-seizure, *and* I also want the exclusionary rule. I want it all.
I’m sorry. I think your beliefs and starting position are fucked. I don’t think we have much common ground. I interpret you as saying “well, if we don’t give police extensive discretionary power to search, then the police are going to go vigilante and kill people, and therefore we should give polie extensive discretionary power to search”. That’s really fucked up. I can’t believe you even wrote that. This is what the cliche villain would say in a dystopian comic book like Judge Dredd. Absolutely no. I can’t even begin to properly express my absolute disgust at what you just wrote.
Sure. I agree to that. Sorry if I said otherwise. However, the idea of extra penalty for any other purpose (e.g. deterrence), aka any punitive damages, should not be possible via civil process in an ideal world. Punitive and deterrence damages should only be criminal process only.
I think you missed the part “criminal liability” in the larger phrase that I said: “civil and criminal liability”.
Gerrard
Apparently, you imagine she was either originating or endorsing the sentiment she adumbrated?
No.
Fuck off John. Adults are trying to have a conversation here.
“I interpret you as saying “well, if we don’t give police extensive discretionary power to search, then the police are going to go vigilante and kill people, and therefore we should give polie extensive discretionary power to search”. That’s really fucked up. I can’t believe you even wrote that.”
Well, it’s good that you don’t believe that I wrote that – because *you* wrote that. Your ‘interpretation’ of what I have said bears no relationship to what I said, or what I meant to convey. If you find that horrifying, I have some terrible news for you about the ways that police officers (in general) think and act.
What I was trying, and apparently failing, to convey was that the exclusionary rule – while intended to curb abuses of power by police – does not have that effect in practice. I do not codone the use of extrajudicial punishment by the police, but many of them seem fine with it.
If the justification for the rule is that it may produce unjust results (such as when an obviously guilty person is acquitted because hard evidence must be excluded) but will provide incentives for the police to respect people’s rights, the fact that it does not actually do that makes it worth questioning the value of the principle itself.
I want to live in a world where as many of the people as possible who do crimes are detected and appropriately intervened with by the system so as to prevent future harms. I also do not want agents of the state to be violating the laws and rules of the society to make this happen. When an officer *does* violate a rule, but by doing so finds a genuine offender, the most just outcome would seem to be to prosecute the offender but also punish the officer harshly enough to make other officers decide that violating the rules is not worth the outcome. Compensating the criminal offender monetarily (and requiring the bad officer to do so as well) is distasteful, but to my mind less distasteful than choosing to ignore actual evidence of actual harms done by the criminal offender. Nobody should get a free pass to hurt others just because a bad cop exists – but likewise cops should always be aware that they too can be subject to serious repercussions.
To address your stop-and-frisk example, if an officer unlawfully stops and searches somebody and finds a crime (gun, whatever), I want the criminal prosecuted, but I also want the cop prosecuted too – and to receive a sanction severe enough that (if he is left employed at all) he doesn’t do it again. Given that most stop-and-frisk incidents find nothing at all, I want a method to exist for citizens who have had their rights violated to seek redress even if a prosecutor decides their claims aren’t viable for prosecuting.
I do agree that both criminal and civil sanctions should be applied to officers who commit rights violations, and there is good reason for both to be present. However any practical effort to criminally prosecute police officers for on-duty misconduct is going to be difficult, doubly so for private individuals. Remember that criminal prosecutions (usually) have to prove two things: not only that [accused] did the bad thing, but that they knew it was bad and intended to do the bad. We call that Actus Reas and Mens Reas (guilty act, guilty mind). Proving that an officer knowingly and willfully violated someone’s rights is going to be hard, because you have to prove things that really only happened within their head. As a private citizen, you will have little to no ability to interrogate a cop who wronged you, and even if you get them into a deposition they will be well coached by that point. They will also be, usually, highly skilled witnesses and effortless liars. In my experience, cops are taught from about the second week of training how to justify their actions after the fact – whatever they were – in ways that will satisfy a court or disciplinary body. This was called ‘articulation’ in cop school.
In a criminal context you not only have to prove the guilty act and guilty mind, but you have to prove it beyond a reasonable doubt. Good luck with that.
If there is a civil tort with statutory damages, it is vastly easier to prove. Moreover, many torts are ‘strict liability’, which means that all you have to prove is that the tort occured. The intentions, knowledge, state of mind or whatever the defendant might wish to use to justify themselves would not matter. Speeding tickets work this way, most places. If you exceeded the posted speed limit – you are guilty, only certain very rare kinds of excuses will apply.
“perhaps yourself included, believe in some statist utopia where our cops are trustworthy ”
Certainly not me. I believe that you cannot trust people, and should build systems that incentivize good behaviour and provide for both accountability and meaningful oversight. The more power and discretion a position commands, the more scrutiny it should be subject to, and the more severe the penalties for misconduct must be.
One thing we’ve not touched much here is that we also should be imposing consequences on ‘bystander’ officers and on supervisors. Within the tort system I envision, any officer present during a rights violation would be considered equally guilty alongside the actual offender – unless they demonstrated both a good faith effort to prevent/correct the violation *and* promptly reported the violation to the responsible authority. Until every ‘good apple’ *knows* that their cowboy coworker is liable to get them fined, fired or incarcerated – there will be no real change. The current incentives encourage coverups, deliberate ignorance, dishonesty and the like.
“Punitive and deterrence damages should only be criminal process only.”
Why?
@GoTS
Also – whatever you may think of John – he had a valid point. I was not in any way condoning the attitude of the officer teaching that course. I thought it was disgusting then, and I think it’s disgusting now.
I could probably tell about a dozen more stories just about that course and some of the awful attitudes and strategies it taught.
The fact is: cops do *not care* about the exclusionary rule. It very rarely factors into day-to-day decision making in actual policing. All things being equal, cops would prefer that the cases they bring and the arrests they make lead to successful prosecutions, but it doesn’t really matter all that much. Even in police organizations that care about stats, the stat that matters is ‘clearance’ not ‘conviction’ – and when you’re bitching at the bar after a big file gets thrown out of court, you can always blame the judge, the Crown, Defense, anyone but yourself.
I’ve seen it more times than I can count.
Gerrard:
🙂
Too embarrassed to admit you totally misapprehended what was going on, there?
(By the way, is that the way you talk to children? “Fuck off”, you tell them)
@John Morales
Incidentally – it’s he/him for me. Thanks.
snarkhuntr, sorry.
@john
No problem at all. My nym isn’t gendered and I take no offense.
snarkhuntr
No.
You are conflating “illegal searches and seizures” and “illegal killing of suspects”. Again, you are arguing that the exclusionary rule is ineffective because, you claim, the total amount of abuse is the same. You blithely skip over a claimed fact that the “illegal search and seizures” are being reduced, but also being replaced with a different kind of police abuse, aka vigilante murders. It’s ridiculous that you’re portraying your position as the “exclusionary rule doesn’t work” when your argument tacitly admits that it does reduce levels of illegal searches and seizures. Strike 1. It’s extremely ridiculous that you are continuing to conflate these different kinds of police abuse as remotely comparable. Strike 2. It’s beyond the pale ridiculous that you implicitly assume that there can be no further remedy to viligantee killings by police caused by the exclusionary rule except to eliminate the exclusionary rule, when, clearly, we could take further action to reduce viligantee killings by police. Strike 3. You’re out.
And this is why we have little to no common ground between us. I vehemently disagree.
Mens rea is not a requirement for all criminal offenses. I can cite numerous examples to the contrary. We could easily devise the system with strict liability for police abuse of force.
If they were private prosecutor, then no more or less than any other prosecutor. At least in America, we have the right against self incrimination, and no government prosecutor can get around that either.
So, what’s your point? Don’t even try? What are you trying to say?
Any case of misconduct caught on video camera, plus strict liability for offenses, should easily pass those hurdles.
Given the utterly ridiculous things that you said above, I think you do. Only a statist or someone grossly ignorant could possibly say “I want to live in a world where as many of the people as possible who do crimes are detected”. By contrast, I think that kind of world would be absolutely horrifying, worthy of the greatest dystopian scifi novel writers and movie makers.
Otherwise, what do you propose as the fundamental character that distinguishes which offenses should be civil vs which should be criminal? What would you say to a hypothetical person that said we should change murder criminal charges into civil charges, along with the same incarceration penalties for this new kind of civil process?
PS: Re John. John is a troll like 90% of the time, including this time IMO. That’s what he does in the vast majority of posts when engaging with everyone for years. A decade maybe. He’s been doing this for years. I also think John is wrong in this case. Unless he says something particularly cogent, my default response now is to tell him to fuck off.
PPS: If I cared enough, I might wander down a rabbit hole for which I’m not really well versed on (and where I might make a fool of myself). It goes something like this: I think you’re misunderstanding mens rea.
“Ignorance of the law is no excuse”. I think this is true. I also think this has nothing to do with mens rea. You can have mens rea without having specific knowledge that your particular action is actually unlawful. Mens rea is something else.
When a cop performs an illegal arrest – the mens rea is the intentional act to arrest because of specific conscious reasons, aka because the cop suspects the victim of a particular offense. In my world, the cop doesn’t need to have knowledge about the particular law that makes this a criminal offense in order for the cop to have mens rea. The “guilty mind” of mens rea would be the intentional act to arrest with the particular (articulated) reasons that the cop had.
Here’s a citation to that effect. Hell if I know whether it’s right of not.
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1813&context=uclrev
Let me put one bit of the paper in my own words. The primary purpose of criminal law is to “punish” and deter acts of sin, aka acts of moral wrongness. This presupposes a universal standard of right and wrong, which I will simply take as granted for now. Mens rea is the state of mind of knowingly committing a moral wrong.
So, someone who commits a murder is committing a sin, whether or not that they happen to know that there is a specific human law against murder.
It’s a harder argument to make, but I would make the argument that a cop who makes a wrongful arrest, e.g. an arrest for a petty offense where a citation would suffice, is committing a sin. They have a guilty mind. They have a guilty mind whether or not they happen to know about a statutory law or case law that says that their action is actually unlawful according to human laws.
I could just fall back on the choice that we make it a strict liability offense. That works too.
Gerard, I really have to question your reading comprehension. The example I have had nothing at all to do with an extrajudicial vigilante killing by police. The officer was celebrating the killing of the suspect *by his employers* as a consequence of the officer’s seizure of cash being transported by that person. So your strikes are irrelevancies founded on misunderstanding. First you attributed the quote to me, as it it was my position, then you misunderstand the very thing being discussed and base your outrage on that. Poor show. Perhaps take more time to read things before donning the cloak of outrage.
“Given the utterly ridiculous things that you said above, I think you do. Only a statist or someone grossly ignorant could possibly say “I want to live in a world where as many of the people as possible who do crimes are detected”. ”
I’m curious, what is your position vis a vis this issue? Assuming you accept that some activities should be prohibited in a society, what should happen when someone engages in such an activity? Should a society not invest resources in the detection of wrongdoing?
I sense that you’re building a strawman here where you assume I’m advocating for some kind of surveillance dystopia. I am not, and have not, and your foisting of this position onto the things I actually say is becoming tedious. Detecting as many crimes ‘as possible’ is consistent with any view of human rights and individual liberty that someone might hold. Any detection that violates someone’s rights ends up on the ‘not possible’ category. We have been discussing here is what to do *after* someone’s rights have been violated by a state agent, a discussion which assumes that people in fact have such rights.
“If they were private prosecutor, then no more or less than any other prosecutor. At least in America, we have the right against self incrimination, and no government prosecutor can get around that either”
Oh you sweet summer child. The system has all sorts of methods for getting around your right against self incrimination. Decades of sophisticated psychological research and experimentation into exactly how to get people to incriminate themselves even when they don’t want to.
The difficulty is that it is *almost impossible* to apply those techniques against officers – they know all the tricks. One of the most basic is that interviews are ideally conducted in a custodial setting (ie, suspect not free to leave) and as soon as possible after the event to make emotional manipulation easier.
Placing the burden of enforcing your rights onto the individual is regressive, it is a harsher burden for poorer people. This is why civil torts with fee shifting work much better – lawyers are incentivized to take cases because they can actually get paid. Under the current system, suing police officers for anything less than the most obscene violations of a person’s rights is unlikely to lead to a settlement sufficient to pay for their time.
“Otherwise, what do you propose as the fundamental character that distinguishes which offenses should be civil vs which should be criminal? What would you say to a hypothetical person that said we should change murder criminal charges into civil charges, along with the same incarceration penalties for this new kind of civil process?”
I would say that you’re answering the question you posed in your first sentence with the question you posed in the second. Civil matters are, without exception that I am aware of, solely concerned with financial penalties – if you wish to incarcerate someone, you will be proceeding by criminal law.
This is muddier in some US states that have civil commitment processes for sex offenders, but is otherwise universal in my understanding.
“So, what’s your point? Don’t even try? What are you trying to say?”
I thought my point was clear, but I guess I can restate it. Criminal sanctions are, at present, quite difficult to apply to police. An easy legislative fix that might have a greater deterrent effect on officers would be creation of statutory torts, with fee shifting, that allow individuals to pursue officers who have wronged them – and their supervisors and coworkers – even when the criminal justice system can’t/won’t act. This parallels the current efforts by rightwing assholes in the US to bypass constitutional restrictions by outsourcing enforcement to individuals.
I am not saying that there should not be criminal sanctions as well, but those exist now and are grossly inneffective. Retooling the justice system in the manner you describe could be done, but is a much bigger job and would hit a lot of constitutional hurdles. For one thing, judges would not look too kindly on using strict liability for serious offences. You would need to create completely new legal frameworks for the system you are describing. We could do civil torts *now*.
“The primary purpose of criminal law is to “punish” and deter acts of sin, aka acts of moral wrongness. This presupposes a universal standard of right and wrong, which I will simply take as granted for now. ”
Take whatever you like for granted, but when you have your own ideosyncratic ideas about what the law is, don’t expect others to follow your chain of reasoning.
snarkhuntr
Bullshit. And I quote “You can beat the rap, but you can’t beat the ride”. That phrase has a particular meaning, which is not the meaning of the example that you gave afterwards. Given your apparent background in law enforcement, you know. I know this. Stop lying.
You did. Again, you said “I want to live in a world where as many of the people as possible who do crimes are detected”. There’s only one possible interpretation of this, especially in light of me saying that we should restrict search powers. Apparently you misspoke and you didn’t mean “as many […] as possible”. Great. I’m glad you admit error and that you retract your previous statement. Let’s move on.
Or not…
No. It’s not. That’s a fundamentally wrong-headed view. This view completely misses the tradeoffs between “protecting society from crime” and “protecting society from government”.
Vacuous. No True Scotsman. You’re attempting to dig yourself out of a hole by redefining terms. You’re Humpty Dumpty.
I’m aware.
Now you’re strawmanning me. I think I very clearly said upthread that the victim should have the first opportunity to seek indictment, not the only opportunity.
Note again that private criminal prosecution is grounded in reality. Circa 1800 in America and England, most criminal prosecutors were the victims or attorneys hired by the victim. I am unaware of any constitutional “hurdles” to the proposal of bringing back private criminal prosecutors.
hahahahaha
Right after I cite a peer-reviewed scholarly paper suggesting the same thing. Right.
Asshat.
You are very clearly not interested in honest discussion here. Have you got any evidence that the 1940s vintage law review article was subject to any meaningful peer review? Law review articles are, from my understanding, somewhat speculative and can themselves reflect the personal biases and wishes of the writers. In this discussion I am very far from interested in your interpretation of this more than 50 year old document. That you consider it decisive says more about your level of understanding than it does about the state of the law. Do you think that perhaps it is possible that jurisprudence has changed somewhat in over half a century?
“You can beat the rap but you can’t beat the ride” is a cop expression that, in essence, means that someone can win at court but still lose though the consequences of the process. In this case the consequence was that the driver, while not charged with a crime, could not recover the money and was subsequently killed in a manner that the siezing officer believed was a consequence of this loss. Any other conclusion you are drawing about this story is in error. You are making it up and then getting apoplectic about it.
“Note again that private criminal prosecution is grounded in reality. ”
I already mentioned that private prosecution is a possibility in Canada, probably in the UK as well. There are structural hurdles that make a successful private criminal prosecution extremely difficult and expensive, and in practice this option really only exists for the wealthy or those with the skill to litigate it for themselves.
“This view completely misses the tradeoffs between “protecting society from crime” and “protecting society from government”.”
The fact that you will not allow any nuance in the definition of the word ‘possible’ makes further discussion pointless, I think. You apparently believe yourself to be the expert and arbiter not just of what I say, but in fact of what I *mean*. At this point, you appear to be mainly arguing with yourself.
To explain just how strange your interpretation of the word possible is, let’s look at your own comment.
“There’s only one possible interpretation of this, especially in light of me saying that we should restrict search powers. ”
Even in this attempted refutation of my point, you prove it. Possibility is bounded by circumstance. In my own preference, police would have highly restricted search authority, but *in light of that* I would still prefer that as many criminals as are possible under those rules are detected.
In this view excluding evidence obtained as a result of misconduct is unnecessary. If officers are harshly punished for exceeding their authority (either civilly, criminally or both) then it is not necessary to exclude the evidence thus obtained and justice could still be available to the victims of that person. We are not, in this conception, encouraging police to just go around randomly violating rights (something they flagrantly do do under the exclusionary rule we have in place now) because they will be personally punished if they are found to have exceeded their authority.
A big problem with the exclusionary rule is this: because it can produce obvious and manifest injustices, politicians and jurists are always tempted to limit it, so as to ensure that a criminal does not ‘get off on a technicality’. Prosecutors have an incentive to hide evidence of police misconduct for the same reason. Parallel construction is just one of the dishonest methods that have been invented to try to overcome this hurdle. Admitting the evidence and punishing the bad-acting officer would seem to remove these perverse incentives.
Don’t you dare give me any tone trolling you liar.
Re the law article. It is enough to show that this is not just my own idiosyncratic belief, and it shows that it at least has some wider traction, refuting your childish assertion that it’s all in own head or whatever you said.
Fucking bullshit. It means that the cop can arrest the person and get them to at least booking, which can ruin their day, or possibly their whole week. (For certain poor people or vulnerable people, it can ruin their whole life because their car might get towed which can be a thousand dollars in fees and fines and costs that they don’t have.) Finally, part of the “ride” is that the cop can beat them during the ride, as has been documented happening many, many times. That’s the “ride” – aka the ride to the police station and local jail. Fuck you and your dishonesty.
I’m proposing that we remove those structural hurdles. Surely that implication is quite obvious. And yes, it will only be available to those who are wealthy or with the skill to litigate, but that’s no more or less true than civil court process, and thus your point here is non-sequitir because your alternative – civil process – is just as difficult on this point.
You lost me at “obvious and manifest injustices”. I see no such thing. I see the system working as designed. I see the system providing an effective remedy for an injustice of overreach of police search and seizure powers. I will always be more worried about abuse of police search and seizure powers than I will be about criminals. The brute fact is that in the USA, I am far more likely to be injured by police and the criminal justice system than I am by criminals.
How is this any different than someone who complains that a suspect got off because they pleaded the fifth (right against forced testimony that incriminates the self in the US)? Or how is this any different from someone who got off because they excluded hearsay? Or because they were held to the standard of “guilty beyond reasonable doubt” instead of a lesser standard? All of those are technicalities, but very important technicalities.
Here is the glaring hole in your entire argument: If civil and criminal action against cops would be so incredibly effective, then the exclusionary rule would be basically never invoked, and so there would be no harm in keeping it. So, why are you arguing so vigorously for eliminating it? Because you intuitively understand that cops will sometimes break the rule in spite of the civil and criminal penalties?
PS: Forgot another big part of “the ride”. For lots of poor and vulnerable people, getting arrested on bullshit reasons means they can miss several days of work and therefore lose their jobs. Bullshit arrests are hugely harmful to poor and vulnerable people.
And in case I didn’t make it clear, “the ride” must refer to the arrest to jail and booking to bail and arraignment hearing and through the rest of the criminal justice process. That is the clear and primary reading. Your first post on this topic clearly conveyed to a neutral reader that the exclusionary rule leads to more abuse during “the ride” by disgruntled cops. That is the only reasonable way that it can be read.
I’m glad that you’re trying to back off from that initial statement. Perhaps you wrote that only partially conscious of what you were writing and its implications. I’m glad that you didn’t mean it. However, stop saying that I’m being the unreasonable one because you fucked up and wrote something you didn’t mean.
I’m willing to drop the entire conversation if you want. I fucking hate tone trolling arguments like this.
PPS:
And even if I adopt your reading, which I am loathe to do, you still lose. You’re saying that disgruntled cops will wrongly seize someone’s money which will cause them to be murdered by a third party. That’s still fucking disgusting. I would feel horrified if I were that cop, being indirectly responsible for someone’s death by murder like that. To the extent that this is reasonably foreseeable, and it seems like you’re making that kind of argument, we’re still back to my initial summary: “We better get rid of the exclusionary rule, because otherwise disgruntled cops will take it into their own hands”.
Fuck you.
Gerrard:
Nope.
“I was on a training course taught by a highway patrol officer (RCMP) who bragged about seizing a large bag of cash from a suspected drug runner. He said that although they couldn’t use the cash to charge him with anything, the guy ended up in a downtown SRO hotel with his throat slit, likely by the people whose money it was, and he thought this was some sort of justice.”
There’s zero there to indicate the seizure was in any way illegal, the frustration (“disgruntled”, as you put it) was that was insufficient for a charge, and the cause was incidental rather than deliberate.
Ah yes, how adults talk. 😉
—
Long way here from the topic at hand, no?
“You’re saying that disgruntled cops will wrongly seize someone’s money which will cause them to be murdered by a third party.”
You miss the context, possibly deliberately.
I was relating this anecdote in the specific context of the idea that the exclusion of evidence as a result of a rights violation would be an incentive for police to follow the rules. This was a demonstration of how this is seen by some police officers. That is also the context in which the ‘rap/ride’ comment was apropos. Your assertion that ‘the ride’ must also include physical assault is not relevant and is also mainly false. The sentence is a smug assertion by an officer to the effect of ‘you might beat the case I lay, but that won’t get you the remand days back’
Given your propensity to assume that I must agree with these things, I willl be explicit – I am not condoning this attitude. It is abhorrent.
“We better get rid of the exclusionary rule, because otherwise disgruntled cops will take it into their own hands”
I will try to use shorter words. I think we should get rid of the exclusionary rule because it does not do the thing it is meant to do. I think a better approach is to severely punish officers, supervisors, and the police agency as a whole for the bad acts of it’s members.i have said this several times now, but you refuse to engage with it – preferring instead to address your own imagined summaries.
“How is this any different than someone who complains that a suspect got off because they pleaded the fifth …. (Assume I’m quoting the test of that bit)”
Simple. I should be clear: I am only saying we should remove the exclusionary rule in regard to physical evidence. Not statements, and possibly not even testimony of how the physical evidence came to be in the possession of the police. But physical objects that exist in the world without having been created by the cops should not be ignored by the justice system just because an officer broke the law themselves. That is a separate crime and should be separately punished.
To refer to the example you proposed of how you think this should work: if the police conduct an illegal traffic stop and find a kidnapped girl in the vehicle – her testimony would be allowed against the accused. Had the accused murdered the girl, they would be in a vastly improved legal position. I do assume (charitably) that your imagined system would permit the police to at least recover the girl’s body, but this points to the kind of obvious injustice that people abhor and which even now chips away at the exclusionary rule in actual practice.
I am not familiar with the practice of US criminal law, but in this specific scenario I cannot imagine the courts excluding the body. They would no use an analysis under s. 24(2) of our Charter to rule the body admissible *despite* the rights violation. This gives the accused no recourse to vindicate their rights, and gives the police little incentive to follow the law when investigating cases of strong public interest.
Again – I am not condoning this, I am describing it. In this specific example, were I setting the rules, what I would prefer to see happen is the body admitted into evidence, but the police officer charged with an offense for the unlawful detention of the suspect – if the officer had prior history of rights violations, dismissal would be the minimum sanction I would find acceptable.
“Here is the glaring hole in your entire argument: If civil and criminal action against cops would be so incredibly effective, then the exclusionary rule would be basically never invoked, and so there would be no harm in keeping it. So, why are you arguing so vigorously for eliminating it? Because you intuitively understand that cops will sometimes break the rule in spite of the civil and criminal penalties?”
Why would that be a hole in my argument? Of course cops will break the rules. Cops are people, and are as prone as any other group of people to break the law. I believe the correct response to an officer breaking the law is to punish the officer – severely – as well as any other members of their force who may have participate. Excluding evidence hurts only the process of the system attempting to ascertain who has done what.
In context, the seizing of the cash was painted as something that would not have happened – or was less likely to happen – without the exclusionary rule to provide the necessary frustration. You cannot dodge the obvious connection that was painted.
…
The question of its deterrence value is an empirical question. I will try to see if there is good data to answer this either way.
My argument is clear and simple. If your proposed alternative to the exclusionary rule were effective, then keeping the exclusionary rule would have little to no downsides because it would rarely be enforced. By continuing to talk about the negatives of keeping the exclusionary rule by itself or in conjunction with civil and criminal penalties – you are admitting that the exclusionary rule would continue to be invoked with regular frequency in spite of the civil and criminal penalties. Thus, I see an injustice not being addressed – the injustice of police abuse of power. Let me say it again for emphasis: In the US, I am much more likely to be a victim of police abuse of power than I am to be a victim of equivalent crime. You are sacrificing fixes for the real problem in exchange for a far less serious problem. I will have none of that.
First hit on google. Highly supportive of the deterrence effect based on extensive interviews with certain cops. Having said that, it also notes that direct empirical data is / was lacking.
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4522&context=uclrev
I see. The police themselves are in favour of it. Full of good faith.
It’s not exactly defunding the police, though…
@GoTS
May I humbly suggest that “the first result on Google” may not be the best way to support your argument? This is the second time you’ve thrown up a severely dated legal studies paper as being a direct support for your position.
This study covers the period a decade or two after the exclusionary rule was first developed. If it did not have *an effect* on policing, we wouldn’t be talking about it. But police adapt, and I think you and I both share a pretty low opinion of the profession as a whole.
In the decades since the rule was developed, tactics like parallel construction, fake informants, and similar cop tricks have been developed – and the old standby of perjury is always available to them as well.
The conclusions in your paper appear to have been drawn based on interviews with officers, so self-reported by the same people that neither of us trust to be guardians of the public’s rights.
Your own quote shows this quite effectively:
“They generally saw the rule as a positive development and believed an alternative tort remedy would “overdeter” the police in their search and seizure activities.”
If course the officers are in favour of the rule instead of a tort remedy. The exclusionary rule externalized the consequences of (detected) misconduct onto the society as a whole, whereas a tort would result in the officer themselves paying the costs of bad behaviour. Overdeterred indeed.
” If your proposed alternative to the exclusionary rule were effective, then keeping the exclusionary rule would have little to no downsides because it would rarely be enforced.”
This is circular reasoning, and fallacious as all hell. By this mode of reasoning, If the exclusionary rule was effective, then it would never be used. It plainly does get used – therefore it is ineffective at eliminating the behaviour that triggers it.
Your thinking here is excessively binary. Policies do not have to be 100% effective to be worthwhile. Your assessment of ‘little to no downsides’ is also highly subjective. Someone denied access to redress through the legal system solely due to misfeasance of an individual officer may see the downside as quite substantial.
Like it or not, the way that the public perceives exclusion also has the effect of chipping away at the principle, leaving nothing to replace it.
Here in Canada, for example, the public perception that impaired drivers were “getting away with it” because lawyers were often able to successfully attack the grounds underlying an officers demand (legal) for a breath sample lead to the government passing laws that enabled the police to demand such samples *without any evidentiary grounds whatsoever*, a direct consequence of exclusion.
I am not as familiar with US jurisprudence, but understand that the USSC has invented a number of methods to allow evidence to be kept in a case, despite rights violations, for similar reasons.
@GoTS
Some additional thoughts – I don’t believe that the exclusionary rule is as strictly enforced now as it may have been at inception. Police have also learned how to describe their own actions so as to survive a court inquiry, with specific language being taught as a part of routine training.
Officers already working at the time the rule was imposed were likely quite upset to see that evidence they had found/planted using methods that worked all those times before were being tossed by the courts. Perhaps some of them were never able to adapt, but many did and many new officers learned to deal with the increased scrutiny.
In some cases, this might be through actual compliance and respect for people’s righrs, but it is also through the development of institutional knowledge of how to bypass the process
That same drug interdiction course I mentioned above was basically this. It taught officers a whole bunch of tricks to turn “I have a hunch about this car/driver” into a legal (or near-legal) search through rhetorical trickery and canned statements such as:
“Based on my training and experience, I observed several indicia common to long-distance drug traffickers including that the car was excessively (dirty/clean), the driver appeared (nervous/calm/agitated/bored) in a fashion similar to other traffickers I have detained, and his answers to my questions (were evasive/were unclear/sounded rehearsed) there was an odour of (coffee/air fresheners/chemicals/pot) that are (used by traffickers to mask the smell of drugs/characteristic of drugs). [Delete inapplicable grounds]. Based on these factors I detained the driver to await the arrival of a police search dog. ”
Because courts generally do not want to exclude physical evidence, the police have over time learned what they need to say in order to get the court to accept the evidence – most of the time. When evidence is excluded, at least in this context, the officers aren’t all that broken up about it. Same course, they told us to just go ahead and search a vehicle even if we couldn’t find enough to make the canned justifications. It’s not as if the cops give back the drugs if the court doesn’t accept them, and the people transporting them aren’t generally big fish in any case.
It seems like almost every one of your critiques against the exclusionary rule could easily be transferred to any new tort or criminal system. I don’t know why you think that an effective tort or criminal system would be less vulnerable to public pressure to reduce or eliminate it, or less vulnerable to corrupt means to bypass it. I know you don’t mean to, but the arguments that your making seem to me to result in “there’s nothing that we can do, so why bother?”
I do agree on one point you made. I would phrase it like this: The ultimate problem is too much of the population does value our rights, and they do want a statist police state without limits “in order to keep us safe from criminals” (even though it backfires and it’s not necessary).
So, that’s why I was having a public policy discussion eg what should happen instead of a prognostication on what will happen. In public policy debates, some amount of goat power is assumed. You were attacking that assumption of fiat power, but I think you were doing so in a good faith and constructive way. It is perhaps true that some systems that achieve similar goals can have very different public acceptance. However, on this point, I am dubious. Look only to the public’s support for police on this matter to see that it probably doesn’t matter what form the proposed remedy takes.
Not goat power. Fiat power.
I think you are still far too focused on the “harm to society” done by the exclusionary rule without giving any consideration to the harms done to those who have their rights violated by the wrongful searches and seizures. Those people matter too, and there should be an effective remedy. It seems like you take it for granted that the guilty have no rights and don’t deserve remedies for violations of their supposed rights, and to you it’s all about deterrence for other people’s rights. I feel very, very uncomfortable about that line of reasoning.
I suppose I am much more sympathetic to the other historical justifications for the rule, such as the integrity of the system. I am not relying solely on deterrence. The ends don’t justify the means. Even if the person is guilty, the means we’re unjust, and using evidence from.unjust means taints the entire criminal justice system.
What you exactly wrote is transparently wrong.
Yes the current rule leaves cops without individual civil or criminal penalties. However, you are clearly wrong when you say that that there is some harm that ought to be assigned to cops which is transferred to society, and that with civil and criminal penalties in place of the exclusionary rule, that harm would be moved from society to individual cops.
This is not a minor mistake. I think this mistake shows a deep, deep flaw on your thinking on this topic, which is why our positions probably cannot be reconciled. But let me try anyway.
What is this supposed harm that is externalized onto society? It’s the loss of evidence for criminal prosecutions. What would be the results of effective civil and criminal penalties? In addition to the civil and criminal penalties for cops, you would still have the same loss of evidence for criminal prosecutions. For this narrow consideration of public interest, the public should not matter to society whether the evidence is never found in the first place, or whether it’s found and excluded. The same “harm” is done. You didn’t see that, but it’s blindingly obvious to me. This is deeply worrying.
PS: Public reaction might still be different because the public is not perfectly rational. The public might react more strongly with specific cases of evidence being found and thrown out as opposed to never knowing about how the evidence was never discovered in the first place. So, going back to the whole fiat power thing, this is an important difference in acceptability to the public. However, in terms of a proper analysis of the public good, it’s the same.
Again: none of what you’re opining upon has anything to do with defunding the police.
John, fuck off already
Well, that’s the post topic, no? The merits of the slogan “defund the police”.
A slogan which has absolutely nothing to do with your pontifications.
@John
Do you have anything useful to add on that topic? I recognize that GoTS and I have gotten somewhat into the weeds on a tangent, but we are having a discussion – if you wish to change the topic back, perhaps let us know what you think about that original subject.
@GoTS
“The ultimate problem is too much of the population does value our rights, and they do want a statist police state without limits “
Well, in a lot of ways this problem solves itself… Look at how fast those “back the blue” bootlickers changed their tune when the carceral state turned its attention on them. Watching deep-right-wing politicians finally noticing how abhorrent your jail system is might (but probably won’t) get some of those problems addressed. Or, they’ll just demand special better prisons for white folks…. Time willl tell.
” It seems like you take it for granted that the guilty have no rights and don’t deserve remedies for violations of their supposed rights, ”
Since I don’t believe that, I’m not sure where you’re drawing it from. I think that everyone has the same rights, and deserve the same remedies. You seem to think that the only possible remedy for a violation must be the exclusion of evidence, and it is this that I disagree with.
You do not have a right not to have the police locate evidence of your wrongdoing. You have a right not to be unreasonably searched, detained without cause and dozens of other rights that the police are more-or-less indifferent to. Your remedy for violations of those rights should be the same whether or not you’ve actually done anything wrong at all. The system you propose has vastly more of a remedy available to guilty persons than to those who have done nothing wrong
As you yourself indicated with your mention of a live victim recovered in an illegal search being “a loophole”, it not only rewards the guilty for their guilt, it actually incentivizes murder. A dead victim, presumably, closes the ‘loophole’.
“What would be the results of effective civil and criminal penalties? In addition to the civil and criminal penalties for cops, you would still have the same loss of evidence for criminal prosecutions.”
Perhaps we are getting to the heart of our disgreement here. I think that once again your tendency towards binary thinking is not serving you well.
If I understand your assertion, it is that if we had truly deterrent penalties for illegal searches, that we would be in exactly the same position as with exclusion – because none of the excludable evidence would be found in the first place. This is incorrect, and for several reasons:
(1) not all illegal searches are conducted because the police could not have done them legally. Sometimes cops are just too lazy to do the paperwork, or are genuinely unaware of their legal obligations. With the greater awareness of the rules that would come with actual consequences for violating them, some of these officers might be more diligent about obtaining proper authorization to conduct their searches.
(2) Some portion of the evidence that is (now) illegally located and subject to exclusion would have most likely been legally located subsequently if it had not been found at that earlier stage of the investigation. This is not speculative, I understand that the us courts have invented a doctrine called something like “inevitable discovery” that can allow a prosecution to ‘save’ a price of otherwise inadmissible evidence by demonstrating that the police would most likely have found it later.
(3) In some cases, evidence is excluded because of a rights violation that did not result in the evidences discovery. A relatively recent example would be an impaired driving investigation (with fatalities) that I was a part of. The junior officer on scene arrested the accused and rode with him in the ambulance , but failed to read the accused his rights and the charter caution. Ultimately he performed a blood demand and obtained a sample of the accuseds blood which tested well over the limit for alcohol.
The courts held that the accused was denied his right to consult with a lawyer (he was) and as a consequence turfed the blood sample, which in turn removed the most serious charges from his case.
Practically speaking, there was no difference made to the case by not letting the accused talk to his lawyer. He was legally obligated to consent to the blood draw, and even if the lawyer had advised him to refuse (they often do on impaired causing death cases), the officer would then have simply prepared a warrant for any blood held by the hospital for testing later. So in this case, had the officer followed all the rules, the evidence would still have been available.
Note that I am not letting the officer off the hook – I believe that they committed a serious rights violation against the accused here, but fail to see the utility of punishing society rather than the officer themselves.
snarkhuntr:
Why start now? By all means, carry on with your irrelevant discussion.
(At least you recognise it has nothing to do with either defunding the police or the merits of the slogan)
I really wish you would stop this. This is an strawman, and it’s the second time I’ve corrected you on it. I want the exclusionary rule and civil and criminal penalties for cops that do unlawful searches and seizures.
There’s also an undertone that rights which are more often exercised by the guilty are therefore less valuable. I think a deeper examination of this implicit maxim would show it to be obviously absurd.
Regarding your 1, 2, and 3: I’m not arguing to do away with the inevitable discovery doctrine. That simple sentence defeats all of your points. In particular, I want to point out that seemingly by your own admission, your drunk driver anecdote is a textbook case study of inevitable discovery. I don’t know why that part of Canada has some fucked-up rule that throws the inevitable discovery doctrine out the window in order to “punish” cops who break certain rules, but that’s not what I’ve been endorsing at all.
Again, I fundamentally object to your framing of this issue. Let me try this again. I want to live in a system where illegal searches and seizures are rare. I want to have effective remedies. You say that you also want effective remedies. That’s great. Therefore, you also want society to be hurt in exactly this same way – you want the evidence to not make it to court. I don’t get how you can keep bringing this up as a negative to my plan when your plan also has the exact same negative. Yes it has a different visceral feel, but the outcome regarding this specific “harm to society” is exactly the same.
PS: Unless, of course, you secretly want some significant level of illegal searches and seizures to continue and for society to reap their benefits which could be threatened by the addition of the exclusionary rule to civil and criminal liability for cops for unlawful searches and seizures.
“It is better for 10 guilty people to go free than for 1 innocent person to go to jail.”
Let me give my own corollary:
“It is better for 10 guilty people to win at trial because of exclusion of evidence wrongly obtained than for 1 innocent person to be subject to an unreasonable search or seizure that finds nothing.” — If the exclusionary rule can do at least that, then it’s a good rule that we should keep. I believe that the exclusionary rule does at least that much, and so we should keep it.
” I want the exclusionary rule and civil and criminal penalties for cops that do unlawful searches and seizures.”
Sure, but that still gives the guilty person a much more valuable remedy than an innocent person has for the same violation by police. Which seems inequitable.
“There’s also an undertone that rights which are more often exercised by the guilty are therefore less valuable. ”
Quite the contrary. The exclusionary rule only protects the rights of the guilty. The rights are the same for guilty or innocent people – the right not to be illegally searched. The violation is the same no matter what, if anything, is found. And yet the exclusionary rule only gives redress to the guilty.
“. I don’t know why that part of Canada has some fucked-up rule that throws the inevitable discovery doctrine out”
Out rights framework is quite a bit different than yours, and would be a significant digression to explainm. you should be aware that “inevitable discovery” is not a principle established by legislation, but rather an arbitrary creation by the courts trying to patch over some of the obvious iniquity created by the exclusionary rule (also court created, if I’m not mistaken).
“PS: Unless, of course, you secretly want some significant level of illegal searches and seizures to continue and for society to reap their benefits ”
What I really wish you would stop doing is attempting to deduce secret motivations in the people you debate with. Since your thought processes are not those of other people, I have seen you – time and again – do this, and I believe you have been wrong every single time you have done it. It is either a very poor rhetorical tactic, or an unconscious admission of your own innate dishonesty.
Perhaps you are prone to dishonest argument where you say things you don’t mean to advance some secret cause, but I am not. If I wished the police to be able to do illegal searches and society reap the benefits, I would say so. There is no reason to dissemble.
But perhaps you do not think this way – perhaps you are advancing secret goals you don’t wish to admit to. Certainly projection would be a decent explanation of your irritating habit of foisting off secret evil intent onto people who have the temerity to disagree with you.
So, I didn’t see any concrete rebuttal or acceptable regarding my assertion that “inevitable discovery doctrine” destroys all three of your recently numbered arguments.
And I don’t see a response to perhaps my most important argument overall. In short – why do you insist on arguing that the exclusionary rule harms society via the exclusion of evidence and that this negative does not apply to your counter-proposal?
I’ve read a few pieces that suggest the US exclusionary rule is older than what most people think. I actually don’t know it’s full history. I wouldn’t be surprised if it was created by SCOTUS.
There seems to be another hidden assumption to the argument that the exclusionary rule is special in this way. I think I disagree. If the government was entirely staffed by incorruptible perfect beings, then there would be no need for rights at all. The guilty would be found and punished, and the innocent would be unharmed, except for the occasional minor nuisance search.
I think that you think that we have rights against government abuse of power because it is the individual abuse in isolation, and specifically its inconvenience that it causes to innocent people, which is the primary concern. I fundamentally disagree. The primary concern is to prevent government overreach and tyranny ala a standard slippery slope argument. For example, it is for this reason that I think massive internet surveillance is a really bad idea, but if the government were fully staffed by perfect incorruptible moral beings, then yea, bring on the surveillance.
Most of our rights exist primarily to defend the guilty, because who defines “who is guilty?” in practical terms is the government. The exclusionary rule is not special in this way.
In other words, our rights are not here to prevent the occasional inconvenience to innocent people, as you seem to assume. Instead, our rights are here to protect us from overzealous cops like you who see no danger in allowing the government to amass more and more discretionary power.
Tangent: I am not a libertarian. I fully endorse standard European style social democracy welfare programs, and some with the explicit goal of reducing the wealth disparity between rich and poor, such as progressive income taxes, income taxes, and asset taxes (e.g. including stocks). I am not particularly worried about the government power to tax. I am, however, deeply distrustful of government power to search, seize, detain, arrest, and jail, especially as it happens outside of court by cops, but also inside of court as well. I know that such things are necessary, because Pinkertons are the alternative to cops, and anarchy is the alternative to government courts, but that is no reason to let cops and courts off their very, very short leash.
I think some more background is in order. I don’t have data offhand, and I should really look it up to see if there is data, but I am not exaggerating in my current suspicion / belief that the entire criminal justice system, cops, courts, and jails/prisons in America are responsible for more harm to society than criminals in America. This is due in large part caused to people of color because of systemic racism, but that’s not the only part.
I am white cis-straight male, raised Christian. I’m about as privileged as they come. Yet, myself and my direct family and friends have been way more grossly unjust interactions with cops than we have had with criminals. Some examples.
A foolish friend of mine had a legal prescription for certain drugs, and a permit for ownership of a handgun, and he worked as a security guard. Money was tight, and he was extremely foolish and sold some of his prescription meds to an undercover cop. So, he gets punished. I think the drug war is unjust, but I am not particularly upset that the cogs of justice turn and my friend will get punished. First time offense, minor drug offense, he should be out with probation and maybe with a few smacks upside the head to not be so stupid. Except that’s not what happened.
Step 1, they SWAT no-knock raid his family’s house. I hope I don’t need to explain why that’s fucked up given the circumstances that I’ve described. I get real upset whenever cops point their guns at people for no good reason, and this is one of them. Am I blaming the cops specifically? Maybe not. It’s also the judge’s fault for allowing the no-knock raid warrant, and it’s the prosecutor’s fault for asking for it.
Step 2, during the search, the cops find his “stash” of his legally owned prescription meds in a safe, and they find his legally owned handgun in the same safe. Because of some bullshit state law, finding the drugs and guns together during a drug offense, even though they’re both lawfully owned, means it’s automatically upgraded to an gun felony. Instead of looking at probation, he would be lucky to get 2 years in prison (which is about what he got with parole). That’s also bullshit. The exclusionary rule doesn’t exist only to protect the guilty. In this case, it would have protected the functionally innocent too.
I have another friend that had a truly gross encounter with the criminal justice system. She and her husband had a pretty bad fight. The only physical violence was that she threw a salt shaker at the husband. The husband foolishly called the cops to try to deescalate the situation. The net result is that the wife is charged with felony domestic violence, to both of their horror. The wheels turn, and she’s convicted, but first offense, and so it’s lengthy probation. That’s fucked up, but at least I can understand how this happens. Primary blame falls to the overzealous legislature creates an overzealous law that leaves no room for discretion from the cops and courts. However, it gets really, really fucked up from there.
For basically no reason, the judge decides to include drug testing as part of her bail condition. Hell if I know why, legally speaking. Practically speaking, it’s because the judge’s wife owns significant shares in the only drug testing company for bailees and parolees in the area. It’s an open secret – everyone knows. Worse, it doesn’t actually appear to be illegal in any way. She ends up getting probation for like 2 years, where she has to exorbitant fees to the drug testing company, which then indirectly make their way to the judge’s pocket. If it wasn’t for my generous gifts, she would have been in prison for those 2 years instead of on probation.
I know that there’s no direct connection to the exclusionary rule, but I mean to use this story and stories like to to say that being harmed by criminals is not my major worry. It’s being harmed by the criminal justice system.
PS: I shouldn’t need to say it, but all of these friends are white, and so we can’t even directly blame systemic racism.
PS: Currently strong atheist and anti-theist, and have been for some time.
“Ididn’t see any concrete rebuttal or acceptable regarding my assertion that “inevitable discovery doctrine” destroys all three of your recently numbered arguments.”
Your assertion is incorrect. Not all discoveries are probably inevitable, for one, and having evidence excluded at a trial stage also prevents the kind of further investigation that might have discovered the fact.
I think we’ve talked this to death – I feel that the exclusionary rule does more harm than good, and was originally developed to provide the illusion of the vindication of individual rights while shielding officers and the policing system from meaningful consequence for misdeeds. If we come up with a better way of deterring/punishing misdeeds, I don’t see the value in the rule remaining. You do. I doubt we’ll convince each other on this point.
With regard to your other criticisms of the justice system – I am in complete agreement. The system is fundamentally broken. I spent quite a bit of time working in ours, and have no respect or faith that it can be meaningfully reformed without a complete top-to-bottom replacement of all the institutions it is composed of.
This is why I support defunding the police. Gradually, and not until we’ve replaced those functions with something better and built with a modern framework of accountability and transparency built into it. I believe the entrenched interests and power structures within policing (and the corrections system) will vigorously resist change, so the best option will be to simply duplicate their functions and gradually allow the new system to take over the old.
With regard to your friends story about the salt shaker – this policy has an interesting history. In my division it was called “must arrest, must charge”, and it was vigorously fought for by women’s groups as something that would protect women against domestic violence. The theory was that women who pressed charges against their partners faced enormous stigma and pressure to drop the charges – so the police taking the decision out of their hands would reduce that. The other theory was that police would often overlook domestic violence or choose not to intervene due to the rampant and well documented misogyny within the police, so taking the choice out of *their* hands would lead to more equitable outcomes.
In my experience, this did not work out well at all. Much of my experience was in isolated First Nations reserves with serious domestic violence issues. People who were afraid of their partners violence and either wanted them de-escalated or lodged in cells to sober up would not be able to call the police, for fear that their partner would be jailed or placed on extremely restrictive release conditions. So when I was down South, they only called when the violence got too severe.
When I worked in the north, it was a dry reserve – the band had passed laws making it illegal to possess or consume alcohol, or to be intoxicated anywhere on the band’s land. In practice, everyone drank, but it did give another option to victims of domestic violence. Up there, they’d just call in and say “My partner is drunk and he’s starting to bother me” and so long as nobody told us about any violence, we could arrest the person for intoxication and hold till sober. I dont know what the right solution for domestic violence is, but I don’t think the first line response should be a couple twenty-something settlers with firearms.
I don’t like the slogan because I don’t like the goals of those who speak it.
Dude, you’ve explicitly voiced AGREEMENT with their goals. Make up your damn mind already.
Your three carefully constructed examples were all carefully constructed to undeniably qualify for “inevitable discovery”.
I disagree with you about the historical justifications. There were other justifications besides the deterrence effect. I agree we’ve talked it to death, but I would at least like an acknowledgment that I’m right and you’re wrong about claiming that my plan has the negative “it harms society by suppressing evidence at trial” because your proposed alternative presumably also has the same negative effect on society (by using deterrence to ensure that it’s not discovered in the first place).
Raging Bee
Sorry, I didn’t include the proper nuance. I agree with the motivations. I think the goals might work too. However, I don’t think they go far enough. I think that the goals are misguided because they don’t address the underlying problems. So, I both agree and disagree. My actual position is nuanced and a little more complicated than “defund the police good / bad”.
snarkhuntr
So, I hope you can agree that saying “suppressing evidence is bad” is not correct. You could make a more nuanced argument, like my plan will lead to more suppression without enough significant benefit to society to counteract that, and generously, you have made that argument.
Let me give one more argument by analogy. We don’t allow coerced confessions. Why? That’s kinda like suppressing evidence right? There are some significant differences. For example, coerced confessions are notoriously unreliable in most cases – but there are exceptions such as coercing someone to give up information that leads to independent corroborating evidence of guilty, and so this is not a universal condemnation of coerced confessions. However, I think most people would agree that letting a coerced confession into trial taints the proceedings in some way that taints the result. It is an insult to the integrity of the court process. “The ends do not justify the means.” I think this same sort of ethical argument also applies to excluding other sorts of unlawfully obtained evidence from trial. To put one aspect bluntly – you probably already agree with the exclusionary rule when it comes to coerced confessions, but not for other kinds of unlawfully obtained evidence.
“Your three carefully constructed examples were all carefully constructed to undeniably qualify for “inevitable discovery””
Were there three examples? I gave three reasons, one of which had an example from personal knowledge. It emininently did not qualify for inevitable discovery, because that doctrine isn’t really used in Canadian law – at least not in the way the US does it.
When an Accused successfully alleges a Charter breach by the police/crown, the court is then required to undertake an analysis under s. 24(2) of the Charter to determine if it should be admitted or excluded from the case. There isn’t a bright line, and the courts will balance a lot of factors in determining what course to take.
If you’re interested in reading any legal documents that are less than 50 years old, you can find an article here written by a prominent canadian Jurist. This outlines (with footnotes and reference to case law) the procedures used in a 24(2) analysis.
https://canlii.ca/t/nd
The section on discoverability is complicated, and basically amounts to “It depends”. Discoverability is not dispositive, nor is non-discoverability – though that is considered much more serious in the analysis.
Coerced confessions are an entirely different, and quite complicated, kettle of fish. To start with, you’d have to define coercion to have any kind of meaningful discussion about it. Canadian law on this topic also differs quite widely from the American law as I understand it.
What we come down to, I think is a fundamental disagreement about what rights are, how they should be protected, and what the function and purpose of the courts are. I believe that every person should have the right to be protected from unauthorized government intrusion into their lives, detention, search, seizure, you name it. I believe you feel this way as well.
The stumbling block here is that you seem to believe that a guilty person is somehow more violated by having their rights infringed than a non-guilty person, and so requires extra protection. I disagree. I believe that both guilty and innocent people should receive the same care and protection of their rights. Where we differ is solely on what we think an appropriate remedy for that violation should be. I believe that any violation of the rights of an individual should be redressed by a combination of criminal charges and/or civil torts against the officer, agency, and supervisors responsible. You believe in that, plus the exclusion of evidence. You have provided no arguments as to why exclusion of evidence in any way protects people’s rights, and seem to see it as an article of faith – not requiring justification or explanation. To use your fallacious reasoning for a moment, if exclusion of evidence protected people’s rights – why would we need any other remedies? If it’s effective, then there would be no rights violations to redress.
Note that your quote is a fiction, at least in the context of our argument. My specific point is, and has been from the start, that suppressing *physical, existing* evidence is bad. Coerced statements, testimony and a whole host of other kinds of possible evidence are not part of our disagreement so far. I am specifically referring to the practice of excluding courts from evaluating specific objects obtained by the police because of rights violations. No more, no less. Your attempts to expand this to other areas of evidence are just muddying the waters.
You won’t get one. I disagree with the premise of this statement.
This is an absurdity, and I have pointed that out at least once above – but you simply ignored it. My rebuttal to your assertion about the ‘same negative effect’ remains the same. Deterrence is not perfect, else we would not need criminal laws at all. I expect that no matter what penalties we impose on them for doing so, some police officers will violate the law – due to incompetence, malice, racism, negligence or a whole host of other complicated issues. The point remains the same. Excluding specific physical evidence from the justice system because of the bad acts of police officers produces unjust results, which I do believe harms society. For a justice system to work optimally, it should be as close as possible to determining the actual truth of the matters before it. Excluding consideration of reliable physical evidence is an obvious step away from that goal. Coerced confessions are not reliable, nor are they physical evidence.
Now – I should note that we’re talking about changes we’d like to see to the existing system. I do not believe that reforming this system is actually possible, and would much prefer to overhaul the entire thing on better starting principles. Fundamentally, I think the adversarial principle was a mistake from the start – one which (in my view) deliberately elided the different levels of resources that the accused and prosecution would be able to muster in arguing their positions. I think this elision was purposeful, because it allowed and continues to allow the wealthy, powerful and connected to escape censure by a system that is more accustomed to handing down summary justice to the poorly-represented and marginalized.
snarkhuntr
I’ll take some of those jabs.
Your 3 numbered arguments.
I don’t believe the guilty are more deserving of having remedies.
You’re being quite unreasonable in saying that I put forward no arguments in favor of the exclusionary rule. I made two quite clearly. I did put forward an argument in favor of the exclusionary rule which is that it works. At least I think it works. I think that it provides additional deterrence affect on top of any civil or criminal liability. I admit to having no evidence. I also think that the evidence that you have is considered to be pretty weak by most academics. Also, I think that no matter the civil or criminal liability, there will be cases where the cop is willing to sacrifice themself because they believe so strongly that the suspect is guilty that they will violate their rights, and the exclusionary rule is for that case. — I also put forward a more nebulous argument about the integrity of the entire court process being sullied if they rely on “the ends justify the means” kind of argument, which is what I consider it to be to allow evidence into court that was obtained unlawfully.
I apologize for my binary thinking earlier. I spoke too briefly. I think that civil and criminal liability provides additional deterrence effect and other additional benefits on top of the exclusionary rule by itself. — However, more on this later.
But, why? Why that position? That seems entirely ad-hoc to me. Yes you can draw that line, but the line seems arbitrary to me.
You also seemed to miss the part where I spelled out the other aspect of self-incrimination. Let me be more specific. If a cop beats a suspect to force the suspect to admit fault, and the suspect admits the location of the dead body, and they find the dead body, I take it that you want this “dead body” introduced as evidence into court. (The confession itself would be excluded.) Am I correct? Are you really sure that’s the position that you want?
You don’t get it. That’s not the point I’m making. Earlier, you said that the exclusionary rule is bad because it hurts society by excluding evidence which could be used to send criminals to trial. This is a point that you made. Then, you implied or outright stated that the exclusionary rule is uniquely bad because it uniquely has this harm on society. That is wrong. That is your mistake.
It seems like you’re grossly ignorant of the history of criminal justice in America and England. Only someone who is extremely ignorant could make this argument because it’s based on several extremely common but extreme misunderstandings of historical practice circa 1800 and earlier. In the “original conception” of the adversarial system, the prosecutor was a victim or an attorney hired by the victim. The typical prosecutor was not an agent of the government. Also, in the original conception of the criminal justice system in which the adversarial system was a part, in England and America, police did not exist. Police in the American and English context were invented in circa 1830 by Robert Peel. Before that, most criminal investigations were done by the victim, and most prosecutions were done by the victim, with no assistance of government agents to find and gather evidence, nor to act as prosecutor in court. In the original conception, the adversarial system was truly between equals. For more information on this, I suggest starting with the paper “Are Cops Constitutional?” by Roger Roots.
Except for the differences between rich and poor. You’re totally right there. That’s a valid criticism. However, I don’t know of a better system. Even today, we recognize this by still having a civil tort system where the victim can use their own power and prerogative to seek justice. However, at some point along the line, criminal justice changed from a mostly private matter to a matter handled almost entirely by government agents.
I say that what you said is very, very wrong because you specifically compared accused vs prosecutor in the opening sentence. I also clarified that you are right when it comes to the different levels of money that criminal accused can bring because of the varying levels of access to money by criminal accused.
PS: As a personal theory, I think a lot of injustice in the system is due to the elimination of another critical right that the US bill of rights ought to guarantee, which is the right to counsel of one’s own choosing. The US courts invented out of whole cloth and contrary to the federal constitution bill of rights that the states and federal government could regulate who could and could not be lawyers. This allowed a specialized class of litigants, prosecutors, and defenders to exist, and the court system started catering to these specialists. Beforehand, I suspect the courts had to be “user friendly” to accommodate the large majority of their users who knew relatively little about the law and very little about the exact procedures that needed to be followed in court. Afterwards, the ironclad rules and procedures started to accumulate because the courts didn’t have an ignorant userbase. This effectively locked-out all but a small elite professional class from using the courts in the first place. — I recognize that this is a relatively fringe and unpopular position, but I still hold to it.
“I did put forward an argument in favor of the exclusionary rule which is that it works. At least I think it works.”
And yet your bar for any other argument is that if something *works*, then it must work 100% of the time. At least, this is the bar you have set when you ask me to admit my own ideas are wrong. Why do you not apply this same level of scrutiny to your own prescriptions? If Exclusion works, using the definition you apply to my arguments, then why is there any need for other policies? If it works, no officer would ever violate someone’s rights – right?
” there will be cases where the cop is willing to sacrifice themself because they believe so strongly ”
This is a hollywood myth. Real police rarely, if ever, act this way. You will hear about cases where officers cross the line and assault or abuse suspects in emotionally charged investigations, but this does not generally result in usable evidence. In these cases it should be important to have quite severe penalties fall on any other police officers who permitted or failed to report on this conduct as well. The first and highest duty of the police should be to protect the public from other police officers – failing to do this should result in immediate dismissal and criminal charges.
“But, why? Why that position? That seems entirely ad-hoc to me. Yes you can draw that line, but the line seems arbitrary to me.”
” Am I correct? Are you really sure that’s the position that you want?”
Yes. It is. Perhaps we disagree about the purposes of the court system, but I want the courts to determine – as best they can – if the specific person before them committed the specific crimes alleged. Excluding reliable evidence perverts this process and leads to manifest injustices.
We can talk about other remedies – as I have said – a statutory tort providing for specific, high, financial damages for rights violations would be a start. We can talk about sentence discounts for severe police misconduct as well – but fundamentally the evidence should be admitted and evaluated as closely as possible. When determining the guilt or innocence of an accused person, I would like the courts to be able to examine every piece of reliable evidence that can be reasonably obtained. If the evidence comes in under a cloud, due to police misconduct, that should absolutely be something the court addresses as well. You could even structure it so that, after a voir dire to establish the rights violations, the criminal court itself penalizes the officers/agencies responsible before admitting the evidence.
“It seems like you’re grossly ignorant of the history of criminal justice in America and England.”
. . .
” In the original conception, the adversarial system was truly between equals. ”
. . .
“Except for the differences between rich and poor. You’re totally right there. ”
That’s a whole lot of words to use when you could just have said “You’re completely right about the original purpose of the justice system.” People got the justice they could afford – either financially or through leveraging social power. Much like policing, the wealthy eventually tired of having to pay for their own guards, investigators and prosecutors, and offloaded that cost to the general public. They expected, and still expect, that the system will privilege them and their causes – and we see this played out in the system we have today. As I said.
Remember that justice used to be handed down directly by monarchs and nobles. This burden having become onerous, they outsourced it to magistrates. Do you really think that having the favour of the monarch didn’t play into outcomes?
To believe that the adversarial system now produces justice is to be willfully blind. The police/prosecution can put virtually unlimited resources into investigation and prosecution, and all but the wealthiest defendants cannot possibly match the resources the system can throw at a case if they wish to. The budget for a simple murder investigation (ie. not a whodunnit case) *started* at $1MM in my division, and could go up without limit. On a murder prosecution, Crown would generally bring in specialist murder prosecutorial teams.
If you were charged in such a case, retaining a good lawyer would probably require a downpayment of several hundreds of thousands of dollars just to get you through a preliminary hearing. You’d likely need to double that to get to trial. Figure that an experienced lawyer is going to charge at least $300/hr, now ask them to read through thousands of pages – possibly tens of thousands of pages – of evidence produced by the police and you can rapidly see where the money goes.
The best criminal lawyers can charge over $1000/hr for consultations, though the rate does drop when they’re engaged. Still well out of reach of the vast majority of the population.
“Beforehand, I suspect the courts had to be “user friendly” ”
Hooo boy… you might want to do some more research on that point. For as long as we’ve had formal courts where things of value could be won and lost, there has been a specialist profession to allow those with means to achieve better outcomes. This is, after all, the primary function of the courts: to validate the rights of the powerful over those of the subordinate classes. It has never been, and cannot ever be, about equity or equality before the law – and anything that brings it close to that goal will be quickly done away with by the powerful.
“This effectively locked-out all but a small elite professional class from using the courts in the first place.”
Courts these days are actually much less formalistic and arcane than they used to be even a few decades ago. The existence of an elite priest-class of advocates certainly didn’t help, but a surprising amount of the seemingly arbitrary rules and policies that exist do so for good purposes.
The problem with the idea of ‘everyman his own advocate’ is that most people simply do not have the time to spend preparing, or the experience to know the hazards they might face at the hands of someone who does this work all-day-every-day. As someone who actually prosecuted offenses before a court (in my region of Canada, police officers are responsible for the prosecution of traffic offenses and other provincial, non-criminal offenses) I can attest to this personally.
You might like the fact as well that, with regard to provincial offenses, people absolutely could bring family/friends to help them advocate their defense. They sucked at it. We always enjoyed dealing with pro se defendants, because they’re usually funny and easy to convict. Paralegals are/were allowed to defend traffic tickets too, and they generally fared much better than pro se individuals.
Ok. So physical evidence obtained via information from confessions from police beating are in. Ok then… I had hoped you would back down, but I guess I was right and that we have very little common ground here.
Also, you did that mistake again. I just spent a lot of time explaining that the adversarial system refers to something that doesn’t exist anymore in the criminal justice system. It was between accuser and accused in front of a magistrate. Government prosecutors were rare, and police didn’t exist yet. As soon as you have government police and government prosecutors as the norm, then it is no longer an adversarial system. Instead, it’s much closer to the earlier history that you identified of the court as the place where the king and the king’s men administer justice.
Also, it is said that it is a fool for a client that has himself as his own lawyer, or something like that. This is true for serious cases, civil or criminal. However, it’s not true for small claims court, traffic court, etc. If a cop brandishes a gun at me, and I have video evidence of this, I’d like to be able to pursue criminal charges against the cop, and I might not need a lawyer to do so without being a fool.
I think you glossed over another argument that I made: clearly civil court is better than not having civil court, in spite of all of the severe flaws that you point out, and that’s still a true adversarial system between private individuals. I would welcome the return of criminal courts that allow adversarial fights too. Better than relying on a government prosecutor to prosecute police.
“Ok. So physical evidence obtained via information from confessions from police beating are in. Ok then… I had hoped you would back down, but I guess I was right and that we have very little common ground here. ”
Other than a weak “but I think it works”. you have given no moral or logical explanation as to how exclusion *in any way* protects the rights of those the police abuse. In your scenario (cop beats confession/location of body from suspect), the abuse is in the past and is not remedied by excluding the physical evidence. If the cop beats an accused person and nothing at all results, that person is entitled to *less* remedy than someone who divulges useful information.
Your story about a cop becoming angry enough that they would decide to risk themselves by abusing a suspect to get a confession is mainly a media invention – but lets play it out. You believe that this could happen, so how does exclusion become a bar to this behaviour? What if the cop believes the victim might still be alive – the loophole you would leave open (the testimony of a recovered living victim) then becomes a positive incentive to torture a confession out of a suspect, one which you would not redress beyond the civil and criminal penalites that we both agree are appropriate.
Fundamentally I think that we simply disagree on the function of the criminal courts. I want the courts to examine all reliable evidence and determine if [person] did [thing]. You see the courts as a way to punish the police for misbehaviour, even in the trial of an unrelated person for an unrelated thing. I believe that using the courts this way produces inequitable outcomes that are so abhorrent to the public that they end up reducing the effective protection enjoyed by everyone in an effort to avoid those iniquities.
“As soon as you have government police and government prosecutors as the norm, then it is no longer an adversarial system.”
Unless you’re using your own personal definitions of things again, you misunderstand the nature of the terms you are using. The current criminal system is definitionally an adversarial one. This is a system in which two advocates argue in front of a neutral arbiter – each trying to present the best possible case for their ‘side’, with the arbiter (judge, jury or both) deciding the truth of the matter.
There are certain duties that are (supposed) to be performed by prosecution that make the system slightly less adversarial – such as proactive disclosure, and a theoretical duty to dismiss cases the prosecutor believes to be false, but in structure and form it is very much an adversarial system.
https://en.wikipedia.org/wiki/Adversarial_system
“If a cop brandishes a gun at me, and I have video evidence of this, I’d like to be able to pursue criminal charges against the cop, and I might not need a lawyer to do so without being a fool.”
You would certainly need help. It’s possible that someone who was intelligent and determined might be able to reason out the required steps for filing charges – look up the elements of the offense so that they can accurately describe them in the Information (or whatever charging document is used in your system). You will, in your personal capacity as prosecutor, be opposed by someone who does this work all day, every day. Someone familiar with every nuance and technical point of the law as regards police use of force.
You will also be faced with prosecuting someone who has been trained, for years, to lie to courts about what they did and why they did it. Someone who has stood up in front of countless judges and given testimony – being coached afterwards about any faults in their delivery and ways to be more convincing in future.
If you think this would be an easy process for you – good luck. Try suing one in civil court, where the burdens of proof are vastly less, and see how you do.
I don’t get your problem. “It works” in terms of deterrence. I don’t need to spell it out. I also made a pretty clear argument about integrity of the system being compromised, with an obvious slippery slope argument that could be made that it will lead to worse behavior. You’re being wholly unreasonable.
You see the courts as the sole purpose of determining X because (unstated) reasons. That’s a very narrow-minded view. I’m trying to design systems in the broader context of society. I’m trying to design something that is best for society, and not best for the arbitrary goal X that you choice for no apparent reason. I say again, I have more to fear from police and the courts than from criminals. It is from that perspective that I am approaching this problem. The courts are part of a larger system that should be designed in order to produce social justice, and the designers of that system should not be narrowly focused on some arbitrary (intermediary) goal. It seems like you don’t care if it actually produces good outcomes or not for society. I do.
Re definition of “adversarial system”. You’re missing the forest for the trees. You’re focusing on a pedantic and irrelevant argument over definitions of terms and missing my actual arguments. My actual argument is that the current “adversarial court system” is a very, very different system than historically, in large parts because of the flaws that you noted in the current system (e.g. unlimited resources for police who always work for the prosecution, and government prosecution with unlimited resources). Also, I think it’s a stretch to say that the judge is a neutral party when both judge and prosecutor are government agents. That inherently cannot be a neutral relationship, unlike the earlier adversarial criminal court system where prosecutor and accused were both private parties. Much of the historical academic writing that describes the benefits of the adversarial system does not apply to today’s system because of its radical differences.
Tangent: Another substantial difference between earlier adversarial systems and today’s system is plea bargaining, which grossly distorts the balance of power between prosecutor and accused. Plea bargaining should be banned in every case whatsoever except in exchange for information from informants from criminal conspiracies, and all such plea bargains must be approved by the judge and by the grand jury.
You suggest I try suing cops in civil court. I cannot. The courts won’t let me. Oh, I can file suit, but it would be immediately dismissed at the first hearing because of qualified immunity. Cops are basically immune to civil suit in the USA because of qualified immunity doctrine.