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I feel like I could post "Yay for the 10th Amendment!" once daily in this thread and it would work every time. State practices, outcomes and norms of practice seem to vary massively- with the only common element being that none of them have enough funding.
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Jul 22, 2015 01:40
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American criminal law strikes me as the mornington Crescent of criminal law systems. Criminal law should be in the federal sphere of power.
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Jul 22, 2015 02:42
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Drewjitsu posted:American criminal law strikes me as the mornington Crescent of criminal law systems. Federal crimes are.
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Jul 22, 2015 02:48
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Kalman posted:Federal crimes are. Right, what I mean to say is that the current system of state level criminal law is hilarious and inconsistent across the country which leads to confusion and uncertainties. Unlike a jurisdiction like Canada, where criminal law is a federal law power through and through.
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Jul 22, 2015 02:52
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Unless it's the criminal law against marijuana possession. 
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Jul 22, 2015 03:00
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Drewjitsu posted:Sadly, your experience is pretty common from what I hear. To be fair to the victim's services people, it's quite possible that they did a great job, and I was just too emotional/overwhelmed to listen carefully to what they told me. It would be nice to get detailed explanations of this stuff from them but really the substance of my question is the sort of thing my high school civics class ought to have covered.
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Jul 22, 2015 03:33
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Drewjitsu posted:Right, what I mean to say is that the current system of state level criminal law is hilarious and inconsistent across the country which leads to confusion and uncertainties. Unlike a jurisdiction like Canada, where criminal law is a federal law power through and through. Yeah, except when my clients get cases in state court dismissed bexause they have federal charges, they don't jump for joy for a reason.
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Jul 22, 2015 03:42
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Drewjitsu posted:Right, what I mean to say is that the current system of state level criminal law is hilarious and inconsistent across the country which leads to confusion and uncertainties. Unlike a jurisdiction like Canada, where criminal law is a federal law power through and through. The difficulty is that the 10th is actually quite justifiable, given our history. Would you want a Reagan, or Bush, or Paul administration to have direct control over the entire law enforcement apparatus of the US?
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Jul 22, 2015 04:04
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Isn't the American government geared to making the passing of Law as difficult as possible? Even with a shitler at the helm those checks and balances I keep hearing about should prevent bad law from passing, right?
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Jul 22, 2015 06:19
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Drewjitsu posted:Isn't the American government geared to making the passing of Law as difficult as possible? The reserved powers (police powers) clause of the 10th is arguably the biggest single one of those checks.
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Jul 22, 2015 08:16
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Drewjitsu posted:Right, what I mean to say is that the current system of state level criminal law is hilarious and inconsistent across the country which leads to confusion and uncertainties. Unlike a jurisdiction like Canada, where criminal law is a federal law power through and through. We've still got plenty of inconsistency and confusion. I don't think we should be chauvinists about our division of powers--it's not always the most workable or logical system in the world.
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Jul 22, 2015 11:24
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Drewjitsu posted:Isn't the American government geared to making the passing of Law as difficult as possible? The fear is that a federal executive who is an insane person were in charge of all criminal proceedings in the entire country, they would have the potential to do tremendous harm. They don't need new laws passed to do insane things with the laws and police powers already in place, especially if there were no state level criminal proceedings.
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Jul 22, 2015 14:30
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Hot Dog Day #91 posted:The fear is that a federal executive who is an insane person were in charge of all criminal proceedings in the entire country, they would have the potential to do tremendous harm. They don't need new laws passed to do insane things with the laws and police powers already in place, especially if there were no state level criminal proceedings. I don't wish to downplay these concerns, but in this day and age, is that really a concern? Although with the rise of Trump as a GOP candidate, maybe it is.
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Jul 22, 2015 14:45
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Given what Joe Arpaio managed to do with a tin pot on his head, I'm going to go with yes.
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Jul 22, 2015 15:18
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Drewjitsu posted:I don't wish to downplay these concerns, but in this day and age, is that really a concern? Although with the rise of Trump as a GOP candidate, maybe it is. Yes, it is. Again, imagine a Nixon, Reagan, W Bush, Paul administration.
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Jul 22, 2015 18:24
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Discendo Vox posted:Nixon I'd vote for Nixon, guy is left of Obama by a long shot.
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Jul 22, 2015 20:49
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Mirrors posted:I'd vote for Nixon, guy is left of Obama by a long shot. That's...I... 
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Jul 22, 2015 21:23
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Discendo Vox posted:That's...I... Nixon was the last liberal president.
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Jul 22, 2015 21:41
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You guys, the question was about what would happen if the 10th amendment police powers clause didn't apply to them. I don't care how far left Nixon was, the relevant issue was what he would do with direct control of state law enforcement.
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Jul 22, 2015 22:11
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Sorry, wrong thread.Discendo Vox posted:I feel like I could post "Yay for the 10th Amendment!" once daily in this thread and it would work every time. State practices, outcomes and norms of practice seem to vary massively- with the only common element being that none of them have enough funding. And given Federal Supremacy, the federal system provides constitutional minimums that States are free to exceed under the 10th Amendment. To take the recent discovery discussion, Brady and Giglio are federal constitutional minimums. States are free to require greater discipline on the part of state prosecutors, but under a fully federalized system, that wouldn't be possible. Federal law enforcement got increasingly imperious throughout the 90s. A generation of ends-justified law enforcement and jurisprudence by a lot of really smart but ultimately un-American folks has made justice a rare thing on the federal side. There are some nooks and crannies left in the states where justice can still be found. joat mon fucked around with this message at 22:41 on Jul 22, 2015 |
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Jul 22, 2015 22:25
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e: oops wrong thread
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Jul 23, 2015 01:43
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joat mon posted:A generation of ends-justified law enforcement and jurisprudence by a lot of really smart but ultimately un-American folks has made justice a rare thing on the federal side. There are some nooks and crannies left in the states where justice can still be found. I...don't know what this means. How are you calculating/defining/sourcing justice?
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Aug 4, 2015 02:30
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Discendo Vox posted:I...don't know what this means. How are you calculating/defining/sourcing justice? I'm sure there's a Platonic form of "Justice" out there. When I find it, I'll let you know. As much as I used to enjoy philosophy, I think arguing about philosophical schools and terms is counterproductive and avoidant. "Justice" is the right result for a specific situation. Everyone's got a different calculation/definition/source. Perhaps it might be more productive to discuss justice as a distribution on an x-y graph. You could have retribution vs. rehabilitation on the x axis and efficiency vs. due process on the y axis. (or propose your own!)  One could probably create a set of questions that would allow one to find out where he or she fell on the justice graph. That might make discussing the 'justice' we have now and the 'justice' we'd like to have easier, and where certain specific actions or changes fall on the graph. I would submit that the more advanced (and perhaps self-confident) a society is, the further up and further right its justice plot will be. Unfortunately, I think the US has been plotting down and left since the early 1970s. Maybe even a sense of plotting left since the early 70s and plotting down since the late 80s. Where each person plots their 'justice' on the graph is a product of their development, education and experiences. I was a Cold War kid, raised in a military officer household, mostly overseas. I bought into and internalized the image America wanted to project against the Soviet Union, that we were better than them. (Among other things), we cared about our people, even the least, we respected and honored the Constitution and the rule of law, that was right always trumped the demands of the mob, legal decisions were based upon reason, not emotion, it was better to let 100 guilty go free than 1 innocent be found guilty, sometimes something bad for you is better for everyone else, etc. Moreover, I was insulated from seeing the places where that glossy ad for America wasn't true until I had my idea of what's right and what should be was pretty well set - so I still think its not only possible, but one's duty to try to move the graph up and right.
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Aug 6, 2015 16:10
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OK, so this has little to do with either most philosophical accounts of justice, or the idea that it's "a rare thing on the federal side", with "nooks and crannies" in the states, of all places. I mean, you seem to be projecting your intuitions onto the whole system without much regard for the terms or procedures in place.
Discendo Vox fucked around with this message at 20:19 on Aug 6, 2015 |
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Aug 6, 2015 20:14
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Here're some examples of the nooks left in the states after the fed side sucks the justice out of an area of law.Vox Nihili posted:I guess that would depend on whether habeas is real law. The courts don't seem to be entirely certain. FRE 413 and 414. As if the effective repeal of 404b by a thousand small exceptions wasn't enough, when one person that a lot of people thought were guilty (William Kennedy Smith) went free, thousands of (perhaps) innocent people have gone to prison. The foundational principle that a person should only be found guilty for the crime of which he was accused was whisked away in 1995, at least with regard to accusations of sexual offenses. I don't think all states have adopted 413/414. Aguilar and Spinelli used to provide guidelines for a judge in evaluating the reliability if information in an affidavit for a search warrant. Gates just threw it all up in the air with the 'totality of the circumstances' test and essentially said, "judge, decide however you want, we've given you all the discretion and cover you need to make your decision essentially unreviewable." Maybe a half dozen states still use Aguilar/Spinelli. The same goes for the Leon 'good faith' exception. Some states still don't recognize it, mine didn't until a couple years ago. My state has caselaw that requires a Miranda warning before consent to search if a reasonable person would believe they were in custody; on the federal side all that is required is that the consent be deemed 'voluntary' by a totality of the circumstances. On the appellate side, harmless error analysis has blossomed to become as hard or harder to overcome than waiver. As for the smart folks doing bad things to the law, the defense has always had to think outside the box because the law usually doesn't help. Thinking outside the box involved in part finding compelling ways to turn exceptions to a rule into the rule or to analogize an area of law where there was helpful law into an area where there was not helpful law. 49 times out of 50 the judge would either pay you on the head and say, 'nice try, counsel,' or would yell at you for wasting the court's time on decided law. In the 90s is seemed like the AUSAs started pushing the law, by thinking outside the box, but in the opposite direction. That's not a problem in and of itself. The problem is that 20 times out of 50 the judge will agree with the AUSA. I understand my conception of 'justice' is subjective, as is yours. I accept that there are differences in our conceptions of justice. A graph like I posited can help us to discuss justice in a concrete manner. Viewing justice by 'most philosophical accounts of justice' lets us talk around justice and instead argue about philosophies and not justice. Part of the frustration of many D&D posters is legitimate because philosophizing discussions of justice makes them discussions about the idea of justice and about how to calculate/define/source justice, once we decide which school of thought wins the definition battle. This makes it a slippery abstract that can never make it out of the philosophical aether and back to the real world. On the other hand, many D&D posters would take the current justice plot (Let's zero it at 0,0) and immediately insist it be set at 10,10 heedless of consequences or a plan to get it there. Of course, many folks have their pet crimes that are the exception which requires plotting justice for that crime and that Looking at how a graph of a particular issue changes over time would be helpful, too. It would quell the urge to throw up one's hands and say, "welp, this is the procedure, that's the way it is, and the way it ever shall be, we can't change it." It would also provide some perspective to see how far we've come in certain areas; that it's not all the evil man bringing people down.
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Aug 7, 2015 16:56
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Add one more example: We don't recognize a good faith exception for fourth amendment purposes. Edit: ah. You covered Leon.
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Aug 7, 2015 17:33
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Right, so I understand there are differences between state and federal law. Your blanket statement relies on the same sort of categorical, relying on the force of a poorly articulated justice concept, as many of the DnD posts we usually object to. Specific doctrines? Sure, at least debatable- I tend to favor some of the federal standards you describe and assume are unjust, but those are at least capable of specific analysis in terms of their effects. General assertions about the absence of "Justice"? Not meaningful. I don't use justice in my ethics calculus, anyways. It's a moral freight term. Discendo Vox fucked around with this message at 18:22 on Aug 7, 2015 |
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Aug 7, 2015 18:19
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Discendo Vox posted:Right, so I understand there are differences between state and federal law. Your blanket statement relies on the same sort of categorical, relying on the force of a poorly articulated justice concept, as many of the DnD posts we usually object to. Specific doctrines? Sure, at least debatable- I tend to favor some of the federal standards you describe and assume are unjust, but those are at least capable of specific analysis in terms of their effects. Could you give an example of a well articulated justice concept? In your daily life, what percentage of your dealings with the criminal justice system is philosophical and what percentage is practical? (I'm not trying to trump you with an appeal to authority or experience; I'm genuinely curious. 20 years ago I would have been all over articulations of justice concepts)
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Aug 7, 2015 18:52
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joat mon posted:Could you give an example of a well articulated justice concept? No, and that's why I don't use them. I don't have dealings with the criminal justice system, I'm a student- I just have law and philosophy degrees. You saying joat mon posted:Federal law enforcement got increasingly imperious throughout the 90s. A generation of ends-justified law enforcement and jurisprudence by a lot of really smart but ultimately un-American folks has made justice a rare thing on the federal side. There are some nooks and crannies left in the states where justice can still be found. is dumb and overbroad. If you want to talk about specific causes, talk about them- otherwise, it's the legal doctrine equivalent of all cops are killers, don't talk to police.
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Aug 7, 2015 19:03
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It's neither dumb nor overbroad and the vip lounge of the ivory tower isn't the place to try to understand the criminal justice system from. Hth.
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Aug 7, 2015 20:37
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SlothBear posted:It's neither dumb nor overbroad and the vip lounge of the ivory tower isn't the place to try to understand the criminal justice system from. Hth. 
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Aug 7, 2015 21:15
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OK, let's try again. joat mon posted:a lot of really smart but ultimately un-American folks has made justice a rare thing on the federal side. There are some nooks and crannies left in the states where justice can still be found. is overbroad and lacks any content or structure. Declaring entire court systems as unjust or as bastions of justice is a dumb way to present things. Justice generally has this problem as a freight term- its nonspecific uses produces the same sort of comfortable moral assumptions that gets us the copthread approach to legal reasoning. I'm gonna take an informed guess that joat mon is viewing this from a defense perspective, since that informs all the references to specific cases he gave afterwards. I don't think he's stupid or even necessarily wrong, I just think that statements like these are exactly what got DnD to its current discursive state. Calling the groups that disagree with you about legal doctrine "un-American" is a pretty good indicator that something's gone wrong with your argument. Man, I wish I was in the vip lounge of the ivory tower- right now I'm washing the windows from the outside. Those statements weren't an authority claim, they were an authority disclaimer! But if we want to make claims about legal stuff, we need to talk about things in more concrete and well-defined terms. Discendo Vox fucked around with this message at 21:48 on Aug 7, 2015 |
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Aug 7, 2015 21:25
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Discendo Vox posted:If you want to talk about specific causes, talk about them- otherwise, it's the legal doctrine equivalent of all cops are killers, don't talk to police. Speaking philosophically is meaningless Speaking experientially is subjective Speaking in general is overbroad Speaking specifically is anecdote I'm sure this applies to every area of life, yet discussion and change still happen in spite of its impossibility. Why should law or justice be different? If you believe that meaningful, objective, narrowly tailored, universally applicable discussion cannot be had, stop tossing sophistry brickbats and let us carry on being deluded. This thread has been nicely free of the countervailing 'burn it all and a paradise will sprout' sophists. Talking about why we're dumb to talk about things is dumb.
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Aug 7, 2015 22:24
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So this is what cop thread for smart people looks like. I approve.
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Aug 7, 2015 22:26
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I haven't complained about experiences, specifics, or anecdotes- and I'm certainly not going to complain about speaking philosophically! I was responding to a post which just said that "justice" has been almost completely removed from the Federal system, and then did nothing to explain that view. Justice, specifically, as a concept, is a lousy thing to use in moral arguments because even if you use a specific one of the definitions that's been proposed(let's say something redistributive), it still isn't remotely coherent and thus can't be applied as an effective ethical barometer. It's a moral freight term- a way of expressing that you like or dislike something without having to articulate why. Talking about specific caselaw or doctrine, or actual arguments, isn't anecdote- I'd like to hear more about and discuss the examples you started to provide when I prodded you! Your initial post didn't have any of that content. What have been the effects of the growth of harmless error? edit: that's not a "why haven't you answered my question" question, it's a "I don't know what the resulting or developing caselaw has been" question. Discendo Vox fucked around with this message at 23:53 on Aug 7, 2015 |
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Aug 7, 2015 23:41
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ActusRhesus posted:So this is what cop thread for smart people looks like. I approve.  Discendo Vox posted:Calling the groups that disagree with you about legal doctrine "un-American" is a pretty good indicator that something's gone wrong with your argument. Discendo Vox posted:I'm gonna take an informed guess that joat mon is viewing this from a defense perspective,
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Aug 7, 2015 23:41
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Discendo Vox posted:I haven't complained about experiences, specifics, or anecdotes- and I'm certainly not going to complain about speaking philosophically! I was responding to a post which just said that "justice" has been almost completely removed from the Federal system, and then did nothing to explain that view. Justice, specifically, as a concept, is a lousy thing to use in moral arguments because even if you use a specific one of the definitions that's been proposed(let's say something redistributive), it still isn't remotely coherent and thus can't be applied as an effective ethical barometer. It's a moral freight term- a way of expressing that you like or dislike something without having to articulate why. C'mon now DV, stop dragging everyone down that rabbit hole. It's perfectly reasonable to say that you think something is unjust without providing a dissertation defining "JUSTICE" (by Rawls TM) (as applied to the American Criminal System by joat mon R TM Patent Pending). It's a verbal shorthand for "I don't think this result is right" or "the system is broken and produces poor outcomes in ways that I will describe in more detail in the near future." Sure, joat mon went a little hyperbolic with the "un-American" accusations, but we should probably move on. That said, the rehabilitation < - > retribution and accuracy < - > efficiency spectrums are pretty well-established theories in legal criminal justice discussions. At least the ones that I've seen, or at least the ones that I vaguely remember from the introduction to 1L criminal law (aims of sentencing, purpose of various rules, how the evidentiary and other rules balance those ends, etc). And AEDPA in particular has thrown things way, way towards the "retribution" and "efficiency" ends. I think one of the biggest problems with AEDPA is that it's jurisdictional. That really stops federal judges from crafting exceptions or even invoking other statutes/powers to correct problems. As for harmless error, joat mon and/or various criminal folks who've been around longer than I have, how has harmless error changed over time? It feels like the kind of thing that's always been out there (both in the direct-appeal-evidentiary-ruling context, and in the habeas-Strickland context). I didn't realize that the standards or effects have shifted. (Also, it's really nice to be done with a clerkship so that I can talk about things again.)
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Aug 8, 2015 00:14
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Arcturas posted:how has harmless error changed over time? As someone who has not been in practice all that long, I have only ever known harmless error as "the excuse we bust out when we just don't want to rule for the defense."
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Aug 8, 2015 03:33
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SlothBear posted:As someone who has not been in practice all that long, I have only ever known harmless error as "the excuse we bust out when we just don't want to rule for the defense." Similar to "good faith" in Canadian Jurisprudence.
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Aug 8, 2015 06:03
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SlothBear posted:As someone who has not been in practice all that long, I have only ever known harmless error as "the excuse we bust out when we just don't want to rule for the defense." Conversely, "what we say when we want to admit the prosecutor said something stupid during closing, but dude, you confessed all over yourself and their were eight eyewitnesses so who gives a gently caress?"
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Aug 8, 2015 13:30
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