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October 12, 2005

The End of the world as we know it.

OMFG. The rights of an Englishman... gone the way of a Jew in 1937 Germany if Tony Blair has his way. No, Mr. Blair isn't calling for Concentration Camps. But the changes he proposes to British law is every bit as stage-setting as the Nurnberg Laws were. At least Mr. Blair isn't targeting a group of people by racial/cultural characteristics. He's simply targeting everybody.

Is the man mad?

Note to the Subjects of the Queen. If you let *this* stand, the earthquake you feel is your ancestors, spinning in their graves, as you trade your last vestiges of liberty for a false assumption of security.

John | Permalink | Comments (61) | Politics
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Comments on The End of the world as we know it.
Alan briefed on October 12, 2005 09:00 AM

Holy Moly! He's nuts. While the civil approach to law (Quebec, Scotland, western Europe, Louisiana) does not historically or necessarily require innocent until guilty in its criminal process, it is so ingrained into the common law English-speaking system that it is beyond me how it could be removed. Blair, however, uses boimetric cameras and has created laws against hats in public so you can be monitored so I am not surprised.

This is something of a mad reaction even in the face of terrorism and does speak to the same concerns over the Patriot Act in the US and the present Canadian governments attempts to obtain pervasive internet tapping powers. Is there a limit to the security we in the free nations need to ensure we are free even if a bit less secure?

Alan

Alan briefed on October 12, 2005 09:11 AM

Look at two of the "crimes" cited!

"Among the steps in Mr Blair’s plan is to stop housing benefit for noisy neighbours. He also vowed even tougher crackdowns on licensees who give under-age drinkers booze and parents who fail to keep their children in check."

Thank God for constitutionally protected human rights.

ry briefed on October 12, 2005 09:14 AM

I think it isn't really as bad as all of you are making it out. France is often trotted out as a very free, enlightened nation that has the best anti-terror laws the world over. France has this type of legal framework.
Conservatism doesn't hold that we must hold onto every tradition simply because it's tradition, just ones that actually provide a benefit---well, that's what I got from Sowell's Conflict of Visions least ways. The English tradition of law is seen to be lacking and they're altering to a different paradigm that does work.
Of course, I wouldn't want them to do it here, I like being a 'benighted American' and our system of doing things. America isn't Britain. we never embraced mulit-culti as either France and Britain have and so we don't have the problems they face.
I'm not saying I like it or agree with it, but saying it isn't catastrophic.

Masked Menace© briefed on October 12, 2005 09:41 AM

The first thing that must be done before a totalitarian state can take control is to disarm the populace.

*slip*

Alan briefed on October 12, 2005 09:46 AM

Noisy neighbours, drunk kids and bad parents are hardly "multi-cult" considerations - what ever they might be. The US is as racial diverse as the UK and has had and continues to have criminal law ramifications arising from racial tensions. You are not, however, running out to cut out half the Bill of Rights to deal with that - are you?

Cricket briefed on October 12, 2005 09:59 AM

Not being a lawyer nor having pretensions to understanding a great deal of stuff, I have to disagree a tiny bit here. We never had that right
because if the government accuses, as in the IRS,
it was up to the accused to prove themselves.

I have also seen some expamples of the ability to accuse and cite broad definitions to the point of straining credibility for the accuser to stand as being valid, not leaving the accused much room to either prove or defend their innocence.

Britain has been disarmed for a while. This is the next step in draconian interpretation and application.

And yes, John, I am a cheeky Castle Chef and invited meself back!

Fred briefed on October 12, 2005 10:18 AM

"France is often trotted out as a very free, enlightened nation that has the best anti-terror laws the world over."

The last is true (if best = effective), only becuase the former is not.

Also, there's no habeas corpus so you can rot in jail for months and YEARS (no exageration) while prosecutors (invesitgating magistrates) get around to assembling a court case against you.

France is a civilized country, with an effective legal system, but it's in no way a state founded on freedom as as goal. The state gives you rights, you don't have rights.

Enlightened? Somewhat no worse or better than any other western country.

April briefed on October 12, 2005 10:25 AM

Christ-O-Rama! "It's too complicated..." to enforce the law? I understand about the evils of too much bureaucracy, but this seems like a sledgehammer where pliers and a little skill would do.

Cricket briefed on October 12, 2005 10:28 AM

Fred, you raised an excellent and very valid point about the state granting rights. It is in the schools that this fallacy of rights is being taught, since Jefferson declared rights to be inalienable, with the state protecting them, not granting them.

I read a school mission statement for a high school in Missouri and it ran something like this:

Learners (not students?) will come to know that the state grants rights and priveleges.

Talk about reading one of the planks of the Manifesto!

Okay, rant mode off...I am neither a lawyer nor an aspirant to same, just a very concerned citizen.

John of Argghhh! briefed on October 12, 2005 10:38 AM

Cricket - I beg to differ regarding "if the government accuses"... While certainly (and we can get Sanger in here to rant about juries) it's not true everywhere, everytime - but when *this* citizen has sat upon a jury, the government has to prove it's case, not merely present one.

The last trial I was at, if, after the prosecution has presented it's opening arguments, the defense had stood up and said "Your Honor, the defense rests" I would have voted to acquit - precisely because the government had *not* proved it's case. The defense then went and shot itself down, and the accused was found guilty - but I would have walked out of that jury room feeling fine about the acquittal - because the government did not *prove* it's case, simply presented circumstantial evidence that indicated this guy might have done what he was accused of, and, what the heck, he'd done it before.

The distinction is fine - and Mr. Blair is possibly reacting to courts that are letting miscreants go on all sorts of technicalities... but a blanket tipping over of a legal tradition long fought over and thrashed out in favor of essentially just tossing annoying people in jail is going a bit too far.

Of course, we can't take a look at what has changed in Brit society that might have brought all this unpleasantness about. No. Never that.

*That* is too hard.

Just as it's easier to ban objects than it is to try to figure out why people seem to think using them for bad purposes solves the problem.

It doesn't. As Britain is discovering with their new move among the medicos to ban knives over two inches in length for any purpose whatsoever, because people are using them as weapons - avoids the issue avoided when they banned guns and displaced people to knives... why are people resorting to violence... rather than what tool are they using.

Ry - why be concerned here about what Britain may do? We have Supreme Court justices who seem to think we should consider foreign law when interpreting our own. That's why!

Alan briefed on October 12, 2005 10:45 AM

We are eccumenical in our use of foregin law here in Canada espcially if it is useful in establishing what is reasonable in "a free and democractic society", one of the constitutional balancing tests set out in the Charter of Rights. I would be concerned that this puts into doubt what use we might make of English precedent if this were to come into play.

Rich Walden briefed on October 12, 2005 10:57 AM

I think that most will agree that the administration of justice has changed over the history of our nation. By this I do not mean the Constituition but the manner of enforcing the laws derived from it. Looking at the difference a hundred years make, consider the enforcement of laws regarding armed robbery, a problem we have had consistentantly over the history of our country.

Typically an accused felon was tried within thirty days of arrest, sentenced immediately and was serving the penalty as soon as he could be transported to the nearest prison. Presently the time it takes from arrest to beginning of sentence is a mininum of 6 months and more likely a year or more. Does that mean we have a better justice system and more freedom now? I don't think so. We certainly do not have the freedom from fear of crime that the citizen of a century ago did. The pendulum does swing back and forth in all things, and I think we are seeing a shift to a more draconian approach to justice than existed for the last fifty years. It would not happen if there was not a considerable proportion of the population wanting this.

Cricket briefed on October 12, 2005 11:03 AM

But there is a move even within the US to ban juries. You raised another point about what a trial by jury.

With all of this in the air, won't that be the next step? To ban trials by jury?

And what is the responsibility of the jury...to determine if the proof was valid or to determine if the accused had indeed, committed a crime.

I went the rounds with the IRS about 17 years ago.
Back then, we were accused and when we asked them for their proofs under the right to discover, we were told that the burden of proof was with us.
By the IRS!

I kept at them, and gathered my paperwork and proved that we not only didn't owe the money, but that it was an accounting error on the part of the company the Engineer was working for.

They gave NOTHING except the threat of confiscation of future returns and imprisonment
for non payment of taxes. Now there is a bright solution! Imprison the wage earners to prove a point. The burden of proof, according to the attorneys we spoke with was on us because that is how the law was written. While we did this administratively and didn't have to go to court, it was still a right PITA to have the accuser offer nothing except the bill.

I have had a couple of lawyers do our taxes for complicated years and when I do our taxes now, I pay for the audit insurance.

Just in case.

CDR Salamander briefed on October 12, 2005 11:06 AM

Classic case of two things:
- Throwing the baby out with the bathwater.
- The Left ruins a system so bad it has to destroy it by doing something worse.

Too hard to fix what they broke, they just want to destroy the foundation. Amazing.

Alan briefed on October 12, 2005 11:25 AM

Thank God! I knew it was a problem with "The Left". So when the Patriot Act restricts constitutional rights it is loyalty to motherland but when Blair does it, it is due to the scourge of socialism. Thank heavens that is cleared up.

Grim briefed on October 12, 2005 12:00 PM

Cricket is right about the IRS. When the government threatens your liberty, they have to prove your guilt. However, when they threaten your property, you have to prove your innocence.

The reasoning is that property is not as valuable as liberty, and therefore not entitled to the same degree of protection. Personally, I always thought it was a highly offensive and evil standard, but the government is very attached to anything that allows it to seize wealth with ease.

cw4(ret)billt briefed on October 12, 2005 12:05 PM

"The reason I introduced fixed penalties was I said ‘we have had enough of that’."

Twenty-odd years ago, Norm (a previously-mentioned Guardbud of mine) was chatting with a couple of my other Guardbuds (cops in Real Life); they were grousing about the endless stream of perps passing through the revolving doors of the Criminal Justice system.

Norm said, “Ya know, one o’ these days, a politician’s gonna say, ‘Are you tired of the crime rampant in society today? Are you fed up with scummers walking around loose when they should be locked in cages? Do you want peace and security? Well, vote for me and give me the power, and I’ll guarantee you two things:

“ ‘One—I’ll fix the problem.

“ ‘Two—you’re not going to like what I do.’ And they’re gonna elect him.”

Norm got it right. He just had the sequence of events reversed…

ry briefed on October 12, 2005 12:15 PM

Oi! Yellow card for both The Phibian and Alan. Go back to your corners and no more hitting below the belt.(Yeah, like I'm the voice of reason around here.)

What I saw in the Sun article was the typical scare mongering, incomplete, and taking things out of context to intentionally distort product that we have come to know and love from legacy media. We know squanto about the particulars. We can really only argue the abstract at this point.

Given that, and the fact taht the difference in terms of freedom between France and the US is in degree, not order of magnitude like between the US and the PRC.(say the difference between 1.0x10^3 vs. 3.0x10^3 instead of 1.0x10^3 vs. 1.0x10^-26). It's not a system I like or agree with, but does it make it a dictatorship, a police state, or an absolute hell hole? I don't think so. The French have had this system of law for decades, and those of you who served/lived overseas can remember how quickly the French can go on strike or hold protests. I would support John or anyone else, even act as loader/porter(I can't shoot a lick), if they ever decided to hunt him some SC Justices/Congresscritters if they tried it here, but I don't think it leads ultimately to being the DPRK(North Korea)--unless you think France is just like the DPRK. Jack, you're there, is France a police state, a corrupt autocracy, and totally bereft of freedom? So I think the protestations are a bit loud for the offense.

Defense of multi-culti argument: Britain and France have had to seriously rethink things because of the formation of permanent enclaves of immigrants who never really assimilate at all. This has created problems like the one armed Immam in London who exhorts his folk to go on Jihad. Algerians in France to start up support networks for terrorist cells.(Yes, we have them in the US, but to much smaller extent. I claim it's because we still use public shaming for those who don't assimilate, though that is starting not to work as we approach critical mass in states like CA and elsewhere.). They've had these problems for decades because of the over embracement of accepting many view points and denying Western Exceptionalism(Jared Diamond's writings for example are taken as obvious truth from the dozens of European scientists I've met who have come to Purdue for seminars).

Britain has responded with this, the hate speech law, and toying with the idea of cultural tests for naturalization.
France with its long history of terror laws( )and the banning of all religion from public schools and the work place(the headscarf thing).
If it works for them then fine, so long as it works. Maybe I'm a little to in love with Judge Posner's thinking?

I know that the Souter and Bader-Ginsberg clique are citing foreign precedents to decide issues of the US Constitution, John. That's why I think the Senate ought to impeach their butts!

Mr. McCloud, an aside, I've never understood Critical Racial Theory wrt law nor have I ever liked it in total. Care to explain it and why we should go along with it?

ry briefed on October 12, 2005 12:18 PM

I guess the question should be, 'But do you feel fine?'

Alan briefed on October 12, 2005 12:39 PM

Hey, ry - I don't know what you mean so can you give me more information.

And I am just holding up my role around here as the token socialist Canadian. No need to fear for me nerves - especially as it was Maggie Thatcher who took away the right to silence. There is enough anti-human rights blame for all.

jim briefed on October 12, 2005 01:04 PM

No guns, no pigs, no rights. Tony should get instant membership to the US Democratic party.

Cricket briefed on October 12, 2005 01:20 PM

Alan,
John mentioned something in his post that Benjamin Franklin opined about the Colonists Way Back When:
Those who give up their liberty for safety deserve neither.

We have to be vigilant. I don't doubt for one minute that many of us detest the Patriot Act and wait for the sunset clauses to happen, or the Department of Homeland Security.

Both are filled with ambiguous (sp?) and broad
terms that set the stage for abuses. The biggest problem we have with that is the jursidiction of interpretation. IOW, some jursidictions won't be as lenient as others. The law and punishment will be uneven and inconsistent. The other problem with this, since I didn't note it in my IRS post, is that ignorance of the law is no excuse in the eyes of government.

So, we have to know our rights, protect them and yet be reasonable as well. Hard call when you hear that your car and domicile can be searched without a warrant.

John put up a link to SWWBO's blog about her run in with the Dept. of Homeland Security. I applaud their doing their job...but even more so, not foaming at the mouth with righteous indignation and thinking she was guilty of some heinous crime.

John of Argghhh! briefed on October 12, 2005 01:38 PM

Ry - I deliberately solicited Alan's opinion... because he's not only from a different political culture than ours, one that is closer to Britain than ours, but he's a (whisper) *lawyer*...

SangerM briefed on October 12, 2005 01:41 PM

Ok. Blair has lost his mind, pure and simple; The stress has got to him at last. In fact, I thought it was hoax post at first, but it seems legit. Clearly the PM has lost his nut. Can you imagine that $hit here? Well, yeah, I can see someone like Kerry saying that stupid $hit, but then, that's why we have guns, isn't it....

Thank GOD!

Jeez, between the death of Piglet and this stuff, I think the bad guys must have got into the water system over there or something.


Just too much. Too, too, much.

AFSister briefed on October 12, 2005 02:05 PM

Somebody please slap me......
I actually agree with Alan! *to a degree*

Blair isn't being very PC about it, but he's basically instituting a Patriot Act in England. But instead of limiting it to suspected terrorist activities, it seems he's willing to apply Patriot Act-ish "shoot and ask questions later" law to nearly every illegal activity.

However...
I'm also sick and tired of obvious criminals being given more than their due time in court. Some people have screwed the pooch so bad (or so many times) their civil liberties should be yanked. I think Blair is tired of this too. People who openly admit to crimes, yet clog our justice system with stupid crap really gets my goat.

I'm torn on this one. I really am. There has to be a compromise somewhere.

Cricket briefed on October 12, 2005 02:25 PM

I figgered Alan was a legal eagle...but Sanger said what I didn't: We still have our guns, regulated to death though that is.

I still hate that dimwitted excuse of "Ignorance of the law is no excuse." Half the legislation carp we have is too confusing when it doesn't need to be.

Being PC? Helk, if everyone followed the first two commandments we wouldn't be having these little probs.

Just my opinion.


kat-missouri briefed on October 12, 2005 02:47 PM

Um..I think I would like to hear the entire proposal before I jump on bandwagon here. First, the Patriot act doesn't allow for searches without warrants anymore than base law does. You know that police could be in your home for another cause such as a domestic violence call, see drugs or drug paraphernalia and arrest you for that too?
Or that, when they stop your car, if they have "reasonable cause", such as you reek of marijuana and seem "high" they can search your car without a warrant? Or, if they hear screams coming from your home, they don't require a warrant to bust in and investigate?

these are the simplest versions I could think of, but reasonable cause continues to be reviewed and addressed. The fact that they have specified a few instances that reasonable cause could be used for in the Patriot Act, does not mean that it did not exist before and even Canada, i believe, has these laws.

Now, the reason I ask for additional information is that the comments from the Sun do appear to be slightly disjointed as if several comments were put together to create this article (the sun, while interesting, is just shy of the enquirer in the US sometimes). He talks about setting "fixed penalties". If I'm not mistaken, this is what the US has already done; setting minimal sentences for specific crimes, particularly violent or hienous crimes and, unfortunatley, drug related crimes.

Now the question is, will this mean that, according to the Sun, the criminal will not have at trial before hand and can be automatically sentenced based on these "fixed penalties"?

Another question, being unfamiliar with the British legal system which is slightly different than ours, does the British system require that all crimes go before the court and a jury or does that system allow for "plea bargaining" or for certain crimes and trials to be heard before a judge without a jury? For instance, in the US, if you get a speeding ticket or are found with drug paraphernalia or a limited amount of drugs taht could be reasonably eschewed as for personal use, the odds are that you get a ticket that has you showing up for court where it's you, your defense attorney if you bring one, the prosecutor and the judge. Unless you contest the charges vigorously, it's likely that your case will be settled right there with a fixed penalty, avoiding long drawn out cases or holding over jurists for minor offenses.

Also, in the US, you can waive your right to a trial by jury and have it heard before a judge only.

My question is, how do these things work in Britain? And, is it possible that certain criminal acts that we consider petty and not worth a trial by jury (unless absolutely requested by the accused) are always heard by a jury in Britain and that this discussion is really about changing that to speed up the process, eliminate the burden on their system (which may be overwhelmed and thus may be letting very bad criminals go do to not having a speedy trial while they push through many petty crimes) and the fixed penalties being related to fines or to the US version of minimal sentences?

I really feel like I need more information on the British justice system and more complete information about Blair's proposals before I accuse him of becoming a Storm Trooper.

If it does turn out that he is literally pushing to have the jury system in it's near entirety over turned, then yes, get out the cannon and let's stage a revolt with the British citizenry. Lord knows the anti-gun, criminalization of protecting yourself and the PC speech police are enough to stir a revolt in my heart, but I don't think we need to stir it over possible false and sensationalized reports from the Sun of all places.(even if we did run with the Free Piglet story from there) ;)

Cricket briefed on October 12, 2005 02:59 PM

There is a proposal underway to do away with jury trials here in the US, not Britain. Trial lawyers very rightly are screaming about it, both defense and prosecutors.

I have had my car searched on entering a military base. That is a different kettle of fish, because of the CGs orders and the warning posted on entering military bases that you are entering a federal installation and that your vehicle will be searched if necessary. In that case, and John and others will correct me, there is a standing warrant.

I am not sure how that works, but while it did and didn't bother me, at least they were professional, did their jobs and on subsequent visits to the base in that particular vehicle, wasn't searched again.

SangerM briefed on October 12, 2005 03:06 PM

OK (again). Now that I've gone back and read the comments, I'll add this stuff:

1) I don't like juries in our legal system, but NOT because I think people are stupider in groups than they are solimente; rather, I despise how the jury system is manipulated by lawyers to stack the deck, so to speak. To my way of thinking, the only restrictions on jury duty should be age, citizenship, an appropriate degree of literacy and fluency, as determined by simple pre-trial tests (relevant to the case).

I know this last is difficult, but I don't think a person should be judged by people who do not speak the language of the land, in this case English. A jurist should understand the subtleties of the language because it matters when it comes to dis/proving guilt, etc.

Note: I do not believe the accused has to speak the language of the land, as long as interpreters are available, but that's a different issue.


2) I really hate when the Patriot Act is trotted out at every opportunity as an example of bad, rights-restricting laws, etc, especially when it's not relevant (Blair's proposals seem focused on different issues than the Patriot Act). www.epic.org/privacy/terrorism/hr3162.html

First, I've scanned the act (I don't claim to have read it in detail, but I did read a good part of it) and second, I'm not a lawyer, so my interpretation is certainly suspect; even so however, I just don't see where the law restricts any U.S, Citizen's Constitutional rights in any way that is inappropriate (and non-citizens don't necessarily have the same rights, nor should they, eh?):

a. The Constitution cannot be modified by congress alone, and laws that contravene the Constitution are usually negated by the Supreme Court. Surely the congress and the President know this, don't you think?

b. The act itself seems reasonable on a variety of levels. The Titles of the act include:
- Title 1--Enhancing Domestic Security Against Terrorism
- Title 2--Enhanced Surveillance Procedures
- Title 3--International Money Laundering Abatement And Anti-Terrorist Financing Act Of 2001
- Title 4--Protecting The Border
- Title 5--Removing Obstacles To Investigating Terrorism
- Title 6--Providing For Victims Of Terrorism, Public Safety Officers, And Their Families
- Title 7--Increased Information Sharing For Critical Infrastructure Protection
- Title 8--Strengthening The Criminal Laws Against Terrorism
- Title 9--Improved Intelligence
- Title 10--Miscellaneous

The details of these titles are not hard to understand, nor especially inappropriate or restrictive, as far as I can see. Of course, I may just be too easy.

c. Any serious complaint about the act or its implementation will surely end up in the courts, which are anything but uniform in this country (a GOOD thing, to my mind). If nothing else, we can always count on the ACLU to try to undermine even the useful parts.

d. Our congress is not made up of Frenchmen or Canadians, and while I may not agree with their politics or their personal habits, I think most of our elected folks are probably proud Americans who believe they are doing what is good for their country (as opposed to what is good for their pocketbooks [comments about Kerry and Kennedy aside]). The Patriot Act was designed to help protect Americans, and doing that isn't easy. I think the Patriot Act was a reasonable response to an avowed need. It may be overdone, but that will adjust itself over time. We're good that way, I think.


3) One thing I do believe: If the U.S. were to change the law to what Blair proposes, it would be a lot harder to get people here to just "go quietly" to the station. I sure wouldn't if I thought there was even a remote possibility that I could be railroaded with ease and with no recourse. You'd see a lot more resistance from people like me if the U.S ever went this way. And rightly so, too!

4) Britain is in deep kimche if Blair's proposals are the best that Government can do. Sad, sad, sad. Again, I'm glad we have guns, and lots of them, so no one in charge here would ever seriously consider such titanic nonsense.

SangerM briefed on October 12, 2005 03:23 PM

ok 3rd...

yeah, I suppose I should wait till the details come out too. But what I read was scary and reacted.

So sue me.

;-)

ry briefed on October 12, 2005 03:57 PM

Really, I thought Mr. McCloud was just RCMP? YOu know, Dudley Dooright, but waaaaaaaaaay cooler. Hey, he likes beer and baseball and bbq and hockey, though aliteration is lost. My kinda guy. ;)

Hmm, leave it to me to mess up the name of a concept. Critical race theory. Here's an APA quicky on it:
I don't get it.
Nor do I get Blackstone's hypothesis that it's better to let 100 guilty go free than to jail 1 innocent. Go figure.

I was just trying to prevent the sectarian political verbal violence. Alan's rather outnumbered here. ')

Justthisguy briefed on October 12, 2005 04:04 PM

Yup, Tony Bliar's nuts, and he also reminds me of the lizards we have here, with that red necktie flapping the way it does. On the jury thing, a year or three ago I was almost hired to serve on a mock jury run by a "jury selection consultant" firm. It was very realistic, to the extent that I was not allowed to participate because I actually read the disclaimers and waivers they handed me and refused to sign them.

Funny thing, lots of the folks there signed them without reading them. Maybe they liked the cake and cookies, and the hundred dollars. Yep, that was like a *real* jury, these days. *Shudder*.

Owhell, I'm quite certain I'll never make it past voir dire, if I tell the truth. Those FIJA pamphlets I'd have strewn about the Jury Waiting Room would prolly have given me away, anyway.

cw4(ret)billt briefed on October 12, 2005 04:26 PM

*sigh* Never made it past voir dire either time.

Defense Attorney: "State your occupation, please."

Me: "I fly helicopter gunships for the Army."

Defense Attorney: *blink* "Uh. Do you or any of your immediate family work in Law Enforcement?"

Me: "Not locally. One of my brothers is a feder--"

Defense Attorney: *squeaking* "Your Honor..."

Hizzoner: *amused* "Very well. But I was kind of looking forward to hearing the rest of the answers."

Heh. Both times, almost verbatim...

SangerM briefed on October 12, 2005 04:39 PM

Ry: "Nor do I get Blackstone's hypothesis that it's better to let 100 guilty go free than to jail 1 innocent." Easy answer:

1) A guilty person has already presumably committed a crime, and that cannot be undone, so all the legal system does in this case is establish guilt, recover property, and punish the guilty, none of which, is really necessary because some people are self-punishing, etc, others may not commit another crime, etc. Basically, punishment does not negate the crime. Ok so far?

2) Incarcerating an innocent person (unfairly denying liberty) is a new and, by our standards at least, worse crime than all others. Further, it is committed by the State against a citizen (usually) or at very least against a person, which is ultimately wrong because at it's core, the purpose for a government and a framework of laws is the protection of the individual, even at the expense of the greater good (barring exceptions I don't want to deal with right now). Still ok?

3) The difference then, is what you've actually done when you let a guilty person go and what you've actually done when you've incarcerated an innocent person. Completely different actions, completely different results, not at all related or even on the same plane. They are not different sides of the same scale. In the former, you've missed an opportunity to punish a criminal, in the latter, you've made a criminal out of a person who wasn't, and additionally undermined the entire foundation upon which a civilized law-based society is built.

Basically, putting guilty people in jail is not the same as putting innocent people in jail, regardless of the numbers involved, and they cannot be made opposites in any way that is not wrong.


Does that make sense. It's a simple minded explanation, I know, but that's it at the core, I think.

~SangerM

SangerM briefed on October 12, 2005 04:51 PM

PS. I do know that its means owned and it's means it is--stupid spell checker oeprator!

John of Argghhh! briefed on October 12, 2005 04:59 PM

What Sanger said regarding Blackstone.

I've only made it past voir dire on military juries.

For some reason, attorneys seem to think my Master's Degreee in Criminal Justice Administration prejudices me in favor of the police. Bad assumption. Having *been* a cop, I'm a lot harder on the police than I am the defendant... during the innocence or guilt phase.

When it comes to sentencing, I start at the max and wait for the defense to convince me to lessen the punishment.

And, I have sat on a panel that convicted, reluctantly, and assessed a penalty of $1. Lest you think that is really lenient... the guilty verdict is a federal felony conviction... which carries a substantial burden the rest of your life, just for having to answer yes on the application.

Cricket briefed on October 12, 2005 05:11 PM

I have read the FIJA pamphlets. Heh. No wonder they want to ban jury trials.

The Supremes stomped all over the Constitution when they ruled in favor of New London. I propose building a mini Wal-Mart on David Souter's property.
It is in the public interest.

Cricket briefed on October 12, 2005 05:24 PM

John,
I am being lazy about this, since I don't have time to search your blog archives right now, but there is a follow up to the story about using dogs and pets as shark bait. I found it while tracking down another story, so here is the link:

Newsweek Story about using pets as bait

Cricket briefed on October 12, 2005 05:25 PM

Nuts. That didn't take.

Here is the URL:

http://www.msnbc.msn.com/id/9664312/site/newsweek/

Alan briefed on October 12, 2005 05:56 PM

One of the interesting things about the revolutionary period, which is also roughly the Blackstone era, is that a lot of the things like the right to bear arms were reaction to specific acts of the British government and the right to a jury was one of the biggies along with a ban on general warrants. The jury provided a check on the prosecutor and the Court that represented the interest of the state. From what you are saying above it sounds like you have far less faith in it and that it might have eroded to the point that you no longer equate it with liberty. Same with the general warrant prohibition. That is one of the things that I understand (perhaps wrongly) that the Patriot Act did impinge upon te right to have personal records free from arbitrary state access. Many of you seem to place a lot of stock on the right to arms which would and could only be used, I would suggest, in the most extreme case - a case not really called upon in your entire nation's history with any success. It is the other boring procedural ones that Blair and others are eroding in the cause of securing ourselves against terrorism. The concern I have is the death of a thousand cuts. That we become used to the impositions of computerized camera surveillance; digital seizure; and treating criminals like they are another class and not worth the same due process that we don't notice all these protections protected us, too. Then what is left? The right to a gun when all the good it might be used to defend has been drained away. That is what I find most depressing about the reports of what Blair said. Not a heck of a lot of "give me liberty or give me death" left. Is the threat of terror enough to throw it all away? Are even their successes terrorist enough?

Justthisguy briefed on October 12, 2005 06:34 PM

Oh, yeah, JoA. When my Dad had just passed, the other day, my brother and I were walking out of the Hospice and saw the classic skinhead armed JBT walking in. My immediate thought: Why let those guys in this place? Then, out in the parking lot, I overheard some of the other deppities discussing car tags and descriptions. A little later, it dawned on us that some low-life may well have stolen a car at the local Hospice for the Dying. Wow, I changed my mind quickly! Shoot 'im in the tummy and leave him! Argghhh!!!

They almost certainly won't do that, for which I'm glad, on sober, later consideration. I don't much care for cops, but the best of them are trained to, and often do, keep a cool head when some of us folks would go for the throat.

kat-missouri briefed on October 12, 2005 08:17 PM

Okay, alan has convinced me. It's time for revolution. Where's my flintlock and my powder? Who will give me their balls (musket balls) to fire upon the dreadful tyrants on the hill?

We have born more depravation and degradation than any nation and it's people should be subject too.

Okay...all kidding aside, Alan sounds nearly libertarian sometimes. ;)

John of Argghhh! briefed on October 12, 2005 09:26 PM

Alan: Sccoooooooooooooooooooooooooooooorrrrrre!

SangerM briefed on October 12, 2005 11:22 PM

Alan, I agree with a lot of what you wrote. Very well put.

And not to cherry pick, but this caught my eye for the conversation: "That is one of the things that I understand (perhaps wrongly) that the Patriot Act did impinge upon te right to have personal records free from arbitrary state access."

One of the things that Americans cherish is the right to break the law if we want to. On the surface that sounds totally ludicrous, but quite honestly, most of us just don't like the idea that we are being watched at all, and I've found that it most often comes down to the desire to be able to choose to break a law. Not that we want to break the law, we just want to be able to if we get the urge, and that motivates our desire to avoid being watched, logged, etc. I think... Fact is, though, we don't have a 'right' to have personal records free from state access, we just have laws that allow us this freedom.

See, Bork was right when he said the Constitution does not guarentee a right to Privacy--and that statement really upset people who want to believe otherwise, regardless of the truth. But Bork was correct. Which brings me to the Patriot Act. All the Patriot Act really does in most cases is change some laws or add some laws to allow the government to do things it has not before been allowed to do as it attempts to prevent and deter terrorism. Not that it was specifically NOT allowed to do those things before, just that it never did or never had a justifiable reason before. An example is the right to get library records. Seriously, though, when is the last time any of you went to the Library to do research or to get books. I read a LOT, but I haven't checked a book out of the library in years. I don't use their computers, I don't use their reference sections, etc. So who's using libraries mostly? College students, poorer folks who don't have access to the internet at home, people who don't want to buy books, retired people who are on limtied budgets, terrorists, etc. For my part, I'd like the government to know when anyone is looking for information on how to build weapons of a nasty nature, no matter who that person is. Again, the Patriot Act is, to me, not nearly as bad a thing as people make it out to be. It's just scary to some folks.

And finally, there is the issue of guns. The fact is that things are changing here, quietly for the most part, and much to my approval. Non-criminals are being allowed to use guns again, and even encouraged to do so, to defend themselves. Florida just passed a wonderful law that puts the burden back on the criminal to avoid doing something that looks threatening because a Floridian can shoot without having to prove fear of death, etc. I hope all states will eventually move that way.

As for the other aspect of gun ownership. You wrote: "Many of you seem to place a lot of stock on the right to arms which would and could only be used...in the most extreme case - a case not really called upon in your entire nation's history with any success."

I agree that we've never really had to use them, and when people have used them, ala Waco, it has not gone well for the non-governmental forces. That said, however, one thing I do believe is that if the government were to step over some as yet undefined line, you would see things get out of hand really quickly. What I also believe is that guns and their owners are in some ways the fourth branch of government (or fifth if you count the press as the fourth). Sounds dumb, and may not be as true today as it might been in the past, but the Government has known since day one that the populace might just decide to shoot back. Not a big fear, but it certainly does force the Government to take the people into account when it makes new laws. Without guns, I do not believe any U.S. government would be as responsive to the people or as wary of going too far. And Waco may have been a loss for the nutcases, but a lot of people were watching and thinking, and I know a lot of otherwise easygoing people who did not like what they saw even a little. I suggest that it would not take but a slightly different scenario and people with guns would start showing up in carloads. And god forbid something like Beslan should happen here. The government would have to fight off the locals who were determined to take the bastards out...

And finally, along this line, it is important to remember that there have always been a LOT of veterans in this country--people who have fought in wars (or been trained to use weapons) and who then came home and lived with guns in the house. Like it or not, the Government simply could not discount the fact that a potentially well-organized, war-experienced group of people with guns live among us. As important is the fact that among us, gun ownership and proven ability to use a gun is still respected. An American is not considered to be fully fledged by some foilks until he or she has demonstrated the ability and willingness to use firearms. I know that's not true everywhere, but in my whole life, this has been true of everyone I've ever respected AND it reflects how I feel. I just think less of a person who can't use a gun (or won't) and never has.

So what's the point of this meander? Not sure totally (and this has gone on way too long), but I do believe that guns do matter, not so much for themselves, but for what they allow a populace to do. Like the internet now, guns ensure that the Government pays us mind. That's why I truly believe the kind of thing Blair proposes would simply be laughed at here, then dropped in a hurry when people stopped laughing.

And bear in mind, we really are below the surface a people prone to violence--we just keep ourselves in check a lot. I know this is gross generalization, but as a society we really, really do like to see the deserving get a class A a$$whooping.


I'd better stop, this is starting to get stupid sounding... I hope it made sense to someone...

Cricket briefed on October 13, 2005 07:47 AM

Sanger,
That was incredible. It wasn't stupid sounding and
I will most likely come back here during the day to re read it.

Thank you.

Alan briefed on October 13, 2005 08:52 AM

That was good, Sanger, and I think it is an interesting side to the discussion that Canadians are pretty much the same except for a constitutional right to bear arms. We bear arms nonetheless. I think we have as many or more rifles per person than in the US - and we know how to make a navy from canoes. If there were ever a need, the same thing would happen here and, frankly, I know the patch of soil two hours drive north of here where I would be heading overland on foot.

But what the UK may be doing openly and what we have been accepting passively is an erosion of all those other things called rights but that are really safeguards to liberty. I am libertarian in that sense, K-M, but not economically in the sense of a sink or swim world. That has to be one principle among others. I think the community has an obligation to provide to those that cannot provide for themselves and that is that the community formed (in theory) to provide. That may differ from the US libertarianism but we are few who live far from each other under snow for six months a year. No wonder we are a big Vermont. If we start to sink no one gets to swim. Our Palriamentary system also allows us to get our hands on the scoudrels who would sink us all by telling us how to swim according to pork-barrelled SwimCo deals, too.

These safeguards to liberty are as much safeguards to the community as the individual. You cannot have civil society without strong legal processes for conflict resolution. You cannot also have a civil society without accomodation of minority segments and a certain egalitarianism of the person in addition to autonomy. The point on the person being a fourth branch of government is well put. We are having in our "liberty right" some Supreme Court acknowledgement of what is called a sphere of autonomous decision making. The state may not dictate in areas of personal importance like where you may live, who you may live with and how you may raise your family (short of killing off your kids). I find the topic very compelling and optimistic.

This is a great thread as often happens around here, John. You need to run a conventions sometime so we can all meet over cakes and ales.

John of Argghhh! briefed on October 13, 2005 09:50 AM

You are correct, Alan - I've enjoyed this thread. One of the things that makes it hard to shut it all down is threads like this.

Cricket briefed on October 13, 2005 10:35 AM

Alan,
I am a sort of libertarian. I still sit on the fence of conservatism and libertarianism.

While I would agree that we should help those who are unable to help themselves, I also question the level to which government is allowed to regulate it either by unfunded mandates or taxation, either on the local level or higher.

I am also of the opinion that the Golden Rule should apply, unless someone is hell bent on taking everything you have for some reason or another.

As I mentioned over at Cassie's on the Harriet Miers thread, I tend to be simplistic in some of my views when it isn't that simple.

Minorities have the same rights and opportunities that I do. That is the level playing field. Where it gets dicey is when people are told they are victims, are disenfranchised and out of the system.
Nothing could be further from the truth.
You can't give one group more rights or special recognition without taking something away from someone else.

That is why, I think, that the rights we enjoy should be protected, not granted.

ry briefed on October 13, 2005 11:08 AM

Sanger, John, Alan...nope still don't get Blackstone. NOt your fault. It's just the explanation is one I've heard before that doesn't answer all my questions. To answer all of those would require a serious civics/history lesson, or several.
I'll just chalk it up as one of those things I don't get, but will have to accept about law(like racial make up of juries, why we make exceptions for mental infirmity, etc.).

People have been highlighting something I've been telling The Wife for years. Liberals and conservatives largely have the goals. We just disagree over methodology and metrics. That's if your not a strict Kool-Aid drinker that is.

Alan briefed on October 13, 2005 11:14 AM

Cricket, we up north have a different view that is established in our law and reflects a few unique historical facts that we cannot alter as they are fixed in the constitution. We have a different approach to language rights, religious education and aboriginal rights because, in effect, our law recognizes that before the nation was there were people here who lived by different rules. We chose or had chosen for us a path that allowed for the continuation of those different rules rather than the reworking of society on liberal but not necessarily egalitarian principles that your Founding Fathers established.

I think each has ups and downs as well as a lot to offer the other - that is one reason why I personally and professionally enjoy these discussions as they allow me to see the world through a different set of eyes which happen to be located just a few miles south of me across the St. Lawrence.

Cricket briefed on October 13, 2005 11:28 AM

Ah...you learned from our mistakes, did you?

Good thing. I had a comment that was simplistic
but in a nutshell, assimilation is what we need in order for there to be at least a separate peace.

As I see it from my safe sane little spot on the globe, the immigrants to the EU and the UK haven't done so, and instead have tried to push their POV
down their adopted country's throats. They demand a tolerance and a respect for their beliefs and lifestyle that their very religion denies to others. The murder of Van Gogh is a case in point.
We can't reason with fanatics. So, what do we do?

I can respect my neighbor's beliefs. But to the extent that I am compelled to erode my rights to respect hers is something that I have to guard against.

Hardy self reliance in case of a disaster? I like that too. Typifies much of what is good about both our countries.

Yer an awesome dude, Alan-of-Canada.

John of Argghhh! briefed on October 13, 2005 11:32 AM

What, Ry? You are passing up the opportunity to write a long post we can all hack at? I'm very disappointed, young man!

Really, *what* don't you get? We understand that you *dont'* think you understand - what is the part that you find confusing?

John of Argghhh! briefed on October 13, 2005 11:34 AM

Argghhh! Cricket! Don't feed Alan that way. His head is *quite* big enough, thank you very much.

*We* don't make mistakes - and our way is the Way The World Should Work! Didn't you get the memo?

And, what Alan said about perspective is why I pinged him on this post in the first place.

Too bad we don't have a Brit weighing in on the topic. Somebody rustle up Tim Worstall!

SangerM briefed on October 13, 2005 11:35 AM

Just a short note right now (got real work to do), but

1) Alan. Excellent points. I need to read it a few more times to understand it all, but I see what you are getting at. Very well said.

2) I am like cricket (also well said) in that I do tend to seek the lowest level (like dirty water), in my thoughts. Sometimes that leaves out the more sublte issues I am well aware of, but deign not to acknowledge...

3) RY; it's not a matter of civics or history, really. And it's not that complex at any level, unless you subscribe to the notion that one person simply is not as important as society as a whole. I don't so for me it's really all about justice vs. injustice.

The opposite of putting a guilty person in jail is "not" putting a guilty person in jail; the opposite of putting an innocent person in jail is ... nothing. There is no legal opposite.

What you do or do not do to a person who committed a crime is justice being done or not done.

When you incarcerate an innocent person, you are doing an injustice. Before you do that injustice you have done nothing, and that person is in no way beholden to you or to anyone else, just for being free. Simply, incarcerating a person for no reason is injustice, Not doing that is not justice, it's just not an issue.

Many people believe that the good of the many outweighs the good of the one. I do as well--sometimes, and assuming the one is willing for the most part to go along with that--but there is no balance here. It does not stand that putting 100 guilty people in jail offsets on some cosmic scale the injustice of putting one innocent person in jail. Nor does letting 100 guilty people free equal leaving a free person alone.

Look at it this way: Would you want to be the 1 innocent jailed just to ensure that 100 guilty people are not freed incorrectly? Would you want it to be your spouse? Your child? Your friend? Would you want to be person who sent your child to jail for no reason? Would you want your neighbor to be able to send your child to jail for no reason. No matter how many other people might go free if your child is not jailed? Would you volunteer to be the one innocent locked up to ensure all the guilty people went to jail? See, these two things simply do not go together. they appear the same because the result is incarceration, but that is the only similarity.

And finally, this issue is not about sacrifce or altruism. A legal system is something devised by a group to codify what the group wants to be allowed or not allowed (this is kind of what Alan was talking about, I think), but not everyone agrees to all parts of that system. That's too bad for the minority; however, laws are imposed on some people all the time, as are restraints, and etc. However, for a legal system to be "valid" and just (and "lasting"), there MUST be rules that protect those who are following the rules. And, in my mind at least, the protection of the law abiding by a legal system MUST take precendence over the enforcement of the laws in that system, no matter the number of people involved--1 or 1000.

Maybe it seems complex, but really it isn't. Not this one, anyway.

Cricket briefed on October 13, 2005 12:43 PM

And those that don't follow the rules, or live outside the law are referred to as outlaws.
The nuts and bolts of this for me is the inalienable rights we have and need government to protect.

To wit, as Mr. T. Jefferson said are the rights to life, liberty and the accumulation of wealth, or to be correct with the text of his Declaration, the persuit(sp) of happiness. The reason this works
is that we as a nation recognize those basic rights, as they are for everyone, as given by our Creator (if you are a believer in a Creator).

Anything more or less than that is motivated by evil or those who seek to do evil. Laws that are based on Universal Truth, to me, seem to be absolute and infallible. Laws made by man aren't based on Universal Truth but an imperfect understanding of how to proceed in restricting evil and in so doing, give rise to the use of compulsion and loss of freedom, both in our liberty and our property.

I am rambling and I have a math lesson to teach.

Sigh. Sanger, you are one awesome thinker.

CDR Salamander briefed on October 13, 2005 01:07 PM

Alan,

Perhaps I should send on the Phibian lexicon of shorthand. My "Left" is a mushy blot that doesn't mean "Democrat," nor prohibit “Republican;” it is a notion that most things should evolve to the government and those in power. The individual is subject to those that govern them. In the UK we have seen since the first two decades of the 20th century the removal of the rights of the individual to many once foundation parts of common law. Just a small part is the right to self defense. In less than a century they have gone from a country with almost no crime where an individual could arm themselves in any way they wished to a nation where you cannot stop a person attacking you in your own home or on the streets. They are to the point of discussing outlawing kitchen knives, while violent crime has increased. At the same time, they have disarmed the people and taken away their basic rights as persons to supply their own safety, they have disarmed their criminal justice system by bad ideas, weak confidence, and poor laws. Instead of admitting mistakes, they go to more and more drastic measures of what has failed them before - not doing the uncomfortable thing and walking away from policies and philosophies they have invested so much in.

I have not defended the Patriot Act here, and I think it was rather silly of you to bring it up. But if you want to talk about it, it is safe to say that it is not a product of the Right (classic Liberals) as I see it. What Blair has done goes way beyond The Patriot Act - and you know it.

The Left has a long history of taking the cheap, easy, and freedom stealing shortcuts to get what they want - and destroying the system along the way. Classic example. Let's look at the Left's great boogie-man of the Right - Pinochet of Chile. When he left power, he did it without a shot and left in place a solid economy and a judicial system and legislature ready to step up and move forward. Compare that to the Left's favorite, Castro of Cuba. When Fidel dies, will Cuba have a solid landing like Chile?

Blair's shortcut will bring his goal in line while destroying the foundation. The long fix, and the one that he would never get credit for or claim credit for, is a reform of the judicial system to repair the snarles that have been put in over the years. It isn't impossible; it just takes leadership that sadly isn't there in the UK on the side of Liberty.

I watched the House of Lords during the second reading of the Race Law yesterday. Orwell would be amazed that such a law would come to the level of even being debated. Outlaw jokes, opinion and comment in the home of the culture that brought so much freedom to the world - just so someone won't be offended even if the speaker of the joke, opinion and comment didn't mean for it to be offensive.

You get the government you deserve. How a free people can fall is important to remember. There are similar though less draconian laws in Canada and to a lesser extent in I believe Queensland, Australia.

The movement is here as well, though not strong. You see it in college speech codes and forbidden word lists. Those movements do not come from the Right.

I stand by my statement. If you want to babble about the Patriot Act, fine. But it has nothing to do with Blair and what the Left (non-classic Liberal) has done to the United Kingdom.

Alan briefed on October 13, 2005 02:12 PM

Your Left sounds just like a Tory to me!

cw4(ret)billt briefed on October 13, 2005 04:05 PM

Entirely possible, Alan, entirely possible...

Most of our Tories skedaddled up your way a couple hundred years back and there may be a few Hiroo Onadas among the lot.

Alan briefed on October 13, 2005 05:03 PM

Oh - sure there are. One of the members of the Federal Cabinet is a direct descendent of a person who lost property in the American Revolution and once made a demand for it back under the appropriate 200 year old treaty. Apparently some of the property is in the hand of a descendent of the guy who took it and refused to honour the treaty. I know that as he was the president of my old college in Halifax that was once in New York until confiscated for Columbia. The entertainment industry (not to mention the IT world) is one way we are infiltrating back in.

SangerM briefed on October 13, 2005 08:47 PM

Canada has entertainment? In Ottawa? Wow! Who'd a thunk.

P.S. I have really enjoyed this, and CDR Salamander along with the rest of you often make me envious of the clarity of your exposition, next to which mine feels so muddied...

Thanks for considering me worth arguing with a little.

V/R
Sanger

Cricket briefed on October 14, 2005 02:00 PM

I didn't want to leave Were-cat and Kat-mo and AFSis out of the excellent comment kudos either.

You guys so totally rock.

Heh.