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VitalSigns posted:Wait I think I realized why OOCC and I are talking past each other. The whole "justice system" model is broken in a lot of very fundamental ways. It's even beyond capitalism as you're discussing ; it's things like trying to shoehorn and cobble together a system of justice out of medieval or pre-historical concepts like "free will" or "just revenge" despite the fact that modern science is increasingly proving those notions to be about as valid as the geocentric model of the universe. Just from the DNA exonerations alone we know our error rate in convictions is about 10%; psychology is increasingly teaching us that punishment, i.e., "negative reinforcement," is largely useless and often counterproductive; neurological science is increasingly proving that human beings are creatures of hormones and genes and environments and that it makes about as much sense to talk about human "free will" as it does the "free will" of a dog or a plant. ("It chose to grow in bad soil!") That's all kindof of off topic though I guess. To bring it around, the larger point is that we probably shouldn't "judge" anybody for anything. Human beings are all much dumber and less competent than we think we are, even the best and smartest of us. The smartest human beings are just dogs who managed to open the doorknob with their paws but still poo poo on the floor half the time anyway. I mean I want to judge rich slimeball attorneys for profiting off the misery of others but end of the day they're just responding to stimuli like the rest of us.
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Jun 12, 2019 19:51
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OwlFancier posted:Yeah don't let determinism stop you from being angry, not least because if the world is deterministic, you can't! VitalSigns posted:ok well in that case people calling Sullivan a scumbag are just responding to stimuli too so what's the problem. If we're actually planning on doing condition / response training on people, then the modern method isn't to use negative reinforcement at all ; it leads to evasive and unpredictable behaviors. You use positive reinforcement on the behaviors you want to encourage and very carefully do not reinforce or respond to negative behaviors in any way. There's a really good article introducing the basic approach here: https://www.nytimes.com/2006/06/25/fashion/what-shamu-taught-me-about-a-happy-marriage.html Anyway I realize I'm kinda diving into a long-running thread -- bookmarked browsing so I just saw this today! Hieronymous Alloy fucked around with this message at 21:42 on Jun 12, 2019 |
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Jun 12, 2019 21:40
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VitalSigns posted:I'll read the article, but I'm just going to say that it makes it hard to take you seriously when you repeatedly confuse negative reinforcement with positive punishment. Hey, I'm dredging up an article I read thirteen years ago on my phone for you during a work meeting! Don't hassle me on semantics! but yes, negative and positive reinforcement only, no positive punishment is the modern method. Works as well on people as on zoo animals. "Punishment" is an outdated modality, deserves to go in the dustbin of history right next to trial by ordeal.
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Jun 12, 2019 21:52
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VitalSigns posted:
Yeah, it's a lay argument but generally most people are laypeople so yeah I went with that as the initial sell of the concept article because I don't know this thread's general level of expertise, lowest common denominator introduction. The core idea -- people are basically just trainable animals and about as responsible for their behavior as any other trained animal -- is the starting point, the rest follows from there. That said you're making a huge jump to leap from what I was saying to "public disapproval of bad people is bad." I'm not sure that discussing public disapproval of bad people is even the right question. There's either no such thing as "bad people" or we're all bad people; the whole notion of "bad people" vs "good people" seems medieval to me, like a discussion blaming disease on different balances of the vital humors. Similarly, "public disapproval" is a useful tool in some situations -- shaming can work great sometimes -- but it's messy and inexact and prone to error and bad responses, like all forms of punishment. As such it's neither "good" nor "bad" it's just a tool that exists. It's in a category of tools that are outdated -- punishment tools -- but that doesn't mean it's "bad," just that it's less useful, like the antique hand-powered drill I still have in the garage for some reason. In an ideal world we wouldn't have "punishment" as such at all. Just mandated therapy to ameliorate the behavior, or sanctions to prevent behavior recurrence (i.e. "this person cannot hold a position of authority until they have successfully completed anger management treatment" etc.)
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Jun 12, 2019 22:09
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OwlFancier posted:The notion that behaviour is learned is not remotely incompatible with the notion that some people learn highly destructive behaviour and are thus "bad people" Morally bad vs bad in a utilitarian sense. My lawn mower is a bad lawn mower because it does a bad job of mowing lawns. Similarly some people (most people or all people to varying degrees) are broken and bad at the task of being people. That doesn't mean we punish them for it any more than I kick my lawnmower when it doesn't start. There are a lot of folks out there who don't deserve trials at all. They deserve commitment hearings.
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Jun 12, 2019 22:32
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OwlFancier posted:You're describing a completely fictional reality, rights that are not upheld don't exist, are you seriously suggesting that everyone gets a competent and zealous defence? That's not what the word "right" means. A legal "right" is a should, not necessarily an is. This is an incredibly important distinction that for some reason a lot of people fumble. The problem with the "rights that aren't enforced aren't rights" argument is that it invalidates the whole concept of legal rights. You only need to make "should" arguments when "should" isn't is.
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Jun 13, 2019 00:34
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OwlFancier posted:I'm not fumbling it, I am suggesting that legal rights that aren't enforced serve primarily to portray a non existent concept of universalism and ultimately to entrench the circumstances that create the actually existing lack of rights that people actually live with. Again, though, you don't shift the discourse or get anywhere by NOT making a strong "should" argument, and "people have the legal right to competent representation and they are not getting it, that needs to change" is that argument. Dismissing advocacy as "pointing at a book" is not just blind, it's actively harmful. It's surrender.
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Jun 13, 2019 00:56
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OwlFancier posted:
Legalism is the option that's practically available. Like, advocating for a legal right to be protected is concrete and specific. Fund public defenders. Set maximum public defender caseloads. etc. etc. etc. People talk a lot about "going beyond" practical measures but they always shut up when they get asked what specifically that means and how specifically it will make a concrete difference in people's lives. I have increasingly little patience for people who attack actual real measures that could really help people because we're all supposed to be focused on cloud castles instead.
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Jun 13, 2019 01:43
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OwlFancier posted:What do you think the people pointing to supposed existing legal rights are doing if not complaining about real measures to improve people's conditions. What do you think I'm arguing? What do you mean by "going beyond the bounds of legalism" ? I don't think we're speaking the same language here.
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Jun 13, 2019 02:10
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One way to reframe this debate, perhaps more productively: If everyone charged with any crime was required to use a public defender, the public defender system would be a lot better funded. Individual public defenders are generally great people and great attorneys but they're overworked and underfunded and can't give each case the attention it deserves (they're also a VERY different demographic from the highpower corporate attorneys -- much more idealistic generally). Overall the PD program suffers from the "programs for the poor are poor programs" issue. If everyone had to rely on the system it would be more reliable.
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Jun 13, 2019 12:53
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Just to make the "more resources" angle clear -- imagine a case with a hundred thousand or so pages of medical records. Not uncommon. A solo practice lawyer would have to read all that himself. A biglaw firm would first throw an AI at it then have a bunch of junior attys do doc review on the AI output. All of which could be done in a fraction of the calendar time it would take that solo practice or PD.
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Jun 13, 2019 13:11
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wateroverfire posted:Ok but.... whether everyone is required to use a PD or not, what stops someone with the resources from hiring the biglaw firm to do the doc review and evaluation and present the results of that work to the PD? Do you bar public defenders from accepting evidence or materials presented by their clients (seems problematic but idk maybe not?)? That's the issue! Well, more broadly, the issue is that people have the right to choose their own representative counsel, and rich people have more choices and can provide more resources. Ultimately I don't think this is a solvable problem from this angle. We could throw essentially infinite money at the criminal law system (note I don't call it a "justice" system) and it wouldn't be enough because there are too many systemic inequalities and too many inherent biases. What we could do is manage the scale of the problem. If we put an appropriate amount of money into public social services, public mental health care especially, had a guaranteed jobs program, adequately controlled environmental poisons like lead, etc., on the one hand, and generally reformed our incarceration system with a greater focus on rehabilitation a la the scandinavian model, we could reduce the overall need for public defender services, and with smaller caseloads the existing defenders could do a better job.
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Jun 13, 2019 14:31
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Unoriginal Name posted:You...you..have the PD's office be able to do it. Given the scale of the incarceral state that's not really a political or realistic possibility until we tackle overincarceration systemically first. My local PD's office is currently hiring. A friend of mine applied, was offered a job. They actually just got a new budget that pays the PD's on par with the prosecutors, so the salary would have been a a DRAMATIC improvement over her current. She still didn't take the job. Why? Because the initial starting caseload was 220 clients and that was expected to increase as she got more experience. For one public defender, at one time. If each of those got an OJ style defense team . . . . OJ reputedly spent between three and six million dollars on his legal defense. Let's cut that down and say each defendant gets a one million dollar defense. You're quickly talking billions of dollars just for the public legal defense budget of one county in one state. It's not possible. We can't solve this problem by just throwing money at it. There are too many people getting charged with too many crimes. Gotta solve that issue first.
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Jun 13, 2019 14:43
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Owlofcreamcheese posted:Is anyone anywhere in this thread arguing against more resources for public defenders? My argument is that "more resources for public defenders" is a wholly inadequate response. I'm not sure people who aren't' familiar with the legal system can even grasp how inadequate, so I'm trying to help the non-legal understand the scale of the issue.
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Jun 13, 2019 14:51
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VitalSigns posted:Sure it is, the US prison population is 2 million and our conviction rate is 85%. The cost of a million dollar defense for everyone alive who is either in prison or was charged with a crime that carries prison time is $2.3 trillion. The US has that much money, we just gave the ultrarich that much money in a huge tax cut. We could spend $2 million on everyone's defense and still come in comfortably under the cost of the Iraq War. We could spend OJ Simpson amounts of $3 million and it would still be a better use of money than the Iraq War plus the Wall Street bailouts. Generally speaking I don't disagree but even as someone who might be able to personally profit from dumping that kind of cash into the public defense bar, there are a host of other higher better potential uses of that money, starting with Medicare for all and ending somewhere around rural broadband. Ultimately the legal system is like the military: a necessary evil that inherently wastes money. If lawyers are involved there have already been a whole chain of prior failures to properly intervene.
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Jun 13, 2019 15:57
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Yeowch!!! My Balls!!! posted:the cost on giving people homes vs. the cost of jailing them for crimes associated with homelessness is similarly a source of grim chuckles. wateroverfire posted:Something we probably want to do in the most efficient possible way, at least. Which we don't necessarily do now. Right those are the sorts of things I'm talking about. Look, this is a truism that any trial attorney will understand and agree with: any time two attorneys step into a courtroom, at least one of them is making a horrible mistake. Specifically, as relates to this conversation, one of the two is wasting a shitload of money. Dispute resolution is always a deprecated process; the preferred process is always to resolve or avoid the dispute at an earlier stage before costly resolution becomes necessary (hence the specificity of the analogy with military spending; military spending is the same thing, but even worse and even more wasteful). To break this down in simple math, even assuming a world where all public defenders are funded adequately and with perfect prosecution funding parity, for every two dollars spent on criminal justice legal costs, one of those dollars -- the dollar spent by the losing side -- would have been better spent on prior-intervention social services.
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Jun 13, 2019 16:45
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VitalSigns posted:Okay? I didn't do that, I agree we need to fund PD's at parity with prosecutors and I've been saying so on this forum for years It's just a wholly inadequate response by itself given the scale and state of America's legal system It's palliative care not a cure. Sure good do it but if it's all you're doing you've given up hope for a cure. Hieronymous Alloy fucked around with this message at 17:41 on Jun 13, 2019 |
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Jun 13, 2019 17:29
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VitalSigns posted:I am aware of this, I didn't say that rich people can get PDs if they don't feel like spending money. I said that if a rich person were unable to hire a lawyer because no one would voluntarily represent them, and the state said "well you aren't poor so oh well" and forced them to defend themselves pro se, that it seems to me like they would have a sixth amendment case against the state. Such scenarios don't occur. Rich people can always find attorneys. See: our President
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Jun 13, 2019 17:30
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Post hoc rationalization sure is a powerful thing ain't it You can't simultaneously say "everyone deserves a lawyer" and also "except that dude". Well I mean you *can* but it's not logically consistent. If the job would be moral for an assigned pd it's also moral for a private unassigned pd. That's like claiming it's immoral to be paid well to clean toilets but moral if you're assigned to clean toilets as an unpaid intern. Same job same toilet either way.
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Jun 13, 2019 22:58
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OwlFancier posted:This persistent pretense that a duty of service as part of a truly universal system as a necessary function of maintaining that universal system, vs picking and choosing as to sustain a deeply unequal system, is really gross and intellectually dishonest. Or maybe just dumb I dunno. Look, all defense attorneys are participating in the legal system. Some of them are just paid more. They're all both helping to "sustain" it -- in the sense that each of us is "sustaining" capitalism by purchasing things -- and all equally working to protect against the worst excesses of it (by defending clients). They all made the same choice to become criminal defense attorneys. They all made the same choice to defend horrible people (if you're a public defender, you knew going in that most of your clients would be horrible people, unless you got lucky and specialize in juvenile or mentally ill defendants or something). What's really consistent here is that the people objecting to the concept of private defense attorneys don't seem to really have that much grasp of the actual legal system as it actually operates. VitalSigns posted:
 this seems like a technically valid point but one that's substantively inane. Oh no the huge social ill of an attorney scamming wealthy criminal assholes by overcharging them for a market equivalent service! Hell, the best private defense attorneys I've ever talked to were all very upfront with their clients that they probably couldn't help them that much, all they could do was slightly shift the odds for them at best. I mean, sure, if you want to nationalize and systematize and unify the whole criminal defense bar . . . ok I guess, sure, but there are so many more important parts of the problem that that seems like an incredibly low priority. Hieronymous Alloy fucked around with this message at 23:08 on Jun 13, 2019 |
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Jun 13, 2019 23:05
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OwlFancier posted:Just maybe some of those people are more responsible than others? There's equivalence between private and public criminal defense attorneys for the most part, though. Like, as was pointed out above, they're usually even the same people just a decade or two older. You PD for a while then you go private. Nothing wrong with being on either side of that timeline. AS was said above, people seem to be maintaining that there has to be some sort of kabuki ritual communal martyrdom process or some poo poo, it's ridiculous.
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Jun 13, 2019 23:09
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VitalSigns posted:I don't think it's the same job though, so this reasoning doesn't apply. yeah, that's the thing though, you're just factually wrong about that. You can think the moon is green cheese, it factually isn't. Similarly, there's just not that much difference between a public criminal defense attorney and a private criminal defense attorney. They're basically the same folks, they're just paid by different people. Your first big factual error is the assumption that public criminal defense is a universal public service everyone gets; it isn't. Maybe it should be but it isn't currently. Your second is assuming that even nationalizing the public defense bar would mean that the rich no longer got special treatment. The rich get special treatment because of a lot of different systemic biases our society has in their favor, of which being able to afford a private attorney is an extremely small part. It doesn't take a private defense attorney to get a judge to listen to an "affluenza" argument, it just takes a lovely judge.
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Jun 13, 2019 23:13
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twodot posted:There are two sorts of defense attorneys: twodot posted:there's a lot of people no lawyer would defend This is another flawed assumption. Again, folks are showing they really don't grok the whole concept of being a criminal defense attorney at all (private or public). Criminal defense attorneys are gonna defend just about anybody. If they started discriminating between clients they'd not have any clients because virtually all criminal defense clients are absurdly horrible people, or at least people who have done horrible things. Private attorneys don't go around turning down messy unpleasant work because it's unpleasant. It's all unpleasant.
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Jun 13, 2019 23:18
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OwlFancier posted:Real weird that there's all these lawyers desperate to argue why they aren't assholes. I'm not a private attorney. All the attorneys are arguing with you because they understand the system and you're making fundamental errors which show you don't.
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Jun 13, 2019 23:39
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Nevvy Z posted:I don't think anyone has said he shouldn't get representation. Just that it should be only by appointment. As others have said though that's Kabuki. You can't shame people for doing a job when you admit *someone* needs to do it.
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Jun 13, 2019 23:41
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twodot posted:
Until we have a new universal defense system in place, which isn't happening any time soon. . . Yeah, *someone* does.
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Jun 13, 2019 23:47
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blarzgh posted:Everyone has already said that it's not appropriate to judge lawyers because of their clients. You're taking the position that it is, but refused to articulate under what circumstances it should be and why those circumstances justify your position. Yup. A lot of folks itt made a decision and are post hoc rationalizating it.
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Jun 13, 2019 23:49
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Dead Reckoning posted:? Also, just morally speaking if 1. You know an unpleasant job must be done by someone 2. You are capable of doing the job as well as anyone else is Then 3. You really should do the job. I don't *enjoy* picking up trash on the beach but I still do it. Someone's gotta, might as well be me. That basic calculation doesn't change if someone offered me a shitload of cash to do it. Someone has to represent every criminal and most crimes are pretty awful. Weinstein is no different in that regard. He just pays more than the average. His attorney is not inherently different from any other rapist's defense attorney.
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Jun 14, 2019 01:46
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twodot posted:
The "private criminal defense attorneys are bad" argument would have a lot more weight if people didn't keep making basic factual errors over and over again (court appointed defenders cannot represent people who have money, we've been over this, and no, no judge is going to appoint someone to represent a theoretical universally rejected client because that doesn't happen and the judge would't believe it if it did). I mean criminal defense attorneys might in fact be bad people but it's an independent variable from whether or not they represent other bad people who are criminals
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Jun 14, 2019 03:19
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OwlFancier posted:"The ability of wealth to buy immunity from legal consequences is a big part of why the criminal justice system is unfair and unequal." Your objection is against capitalism, not against the legal system. Or, as was said above, Nevvy Z posted:
it's basically this. We could theoretically nationalize the defense bar industry, sure, but even then - as was discussed above -- there would be a hundred other inequalities deriving from wealth that even nationalizing the defense bar wouldn't fix. Like, even if each individual criminal is somehow represented by the same cloned perfect attorney, even then Some defendants are going to show up in court in better suits Some defendants are going to be white Some defendants are going to speak with fancier accents Some defendants are going to have gone to the same schools as the judge So on, so forth. The inequalities in the legal system due to wealth and class and race go waaaaaaaaay beyond private vs. public representation.
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Jun 14, 2019 03:27
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twodot posted:
Has it ever, ever actually happened? Like, seriously, I'm unaware of a single case where someone who had money has been shunned out of getting a lawyer. Even Donald Trump has managed to hire multiple lawyers. Y'all are pulling a lot of arguments out of places where there's no sunlight. twodot posted:Like I'm willing to believe either: What you're missing is that criminal defense attorneys don't really consider "is my client a lovely person" as part of the math when taking clients. They can't, or they wouldn't ahve any clients. The ethics of being a criminal defense attorney mean you're inherently accepting that you represent lovely people. Anyone who does criminal defense work has made that choice. You can claim that just means all attorneys who do private criminal defense work are evil, BUT then you're saying that performing a necessary social function is inherently an evil act, which can't hold.
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Jun 14, 2019 03:30
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VitalSigns posted:If the argument is that a supreme court case ruling that horrible monsters who can't get a lawyer to take their money have a right to a public defender would never happen because it is impossible for a horrible monster to ever be unable to find a lawyer then fine, but in that case you can't also argue that criticizing their lawyer will leave them unable to get representation. I'm not really making a "x consequences will happen" argument at all. I doubt any of these instances are generalizable out to general trends and even if they were those trends aren't predictable. I'm not prognosticating any particular result. My argument is that criticizing attorneys for representing criminal defendants -- no matter how horrible the criminal defendant -- is shunning someone for performing a societally necessary task. It's akin to shunning garbagemen, if garbagemen were well paid.* Nobody likes garbage, just like nobody likes criminals, but somebody has to deal with garbage, and somebody has to represent criminal defendants, so it's not fair to criticize garbagemen just because they pick up garbage or attorneys just because they represent criminals. It's lovely work but somebody has to do it. * and yes garbagemen should also be better paid Hieronymous Alloy fucked around with this message at 03:38 on Jun 14, 2019 |
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Jun 14, 2019 03:35
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twodot posted:
If criminal defense attorneys did consider "is my client a lovely person" when taking clients , they wouldn't have any clients. All criminal defense attorney clients are lovely people. You're asking a garbageman to only pick up the trash that doesn't smell bad.
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Jun 14, 2019 03:38
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twodot posted:
That's handwaving though. Nationalizing the private bar isn't going to happen so it's an irrelevancy for discussions of actual current attorneys in the current real world representing real clients now. Sorry everybody, gotta pause the whole legal system until we immanentize the eschaton OwlFancier posted:So let's not do anything because no one thing will fix everything. My first few in the thread had specific proposals --- primarily Hieronymous Alloy posted:
If we're waving our magic socialism wands and enacting large scale reforms, then shifting away from a punitive justice model entirely is probably just as achievable as nationalizing the defense bar, and would do more good. Hieronymous Alloy fucked around with this message at 03:54 on Jun 14, 2019 |
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Jun 14, 2019 03:48
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Unoriginal Name posted:Why do you think rich people shouldnt get lawyers?? zuh?I can't figure out how many levels of irony I'm supposed to read that with.
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Jun 14, 2019 04:06
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VitalSigns posted:If the public garbage collection system were so dysfunctional that millions of people, disproportionately poor and non-white, were trapped and dying under massive piles of garbage, then yeah I'd be comfortable calling a rich dude who is getting richer off this situation by running a private garbage collection system for wealthy monsters a scumbag, whereas I would be fine with people who work for the public collection system even if they were required to service the same wealthy monster. In either case, the dysfunction would not be the fault of the individual garbagemen, but of the monsters who designed the system. For that reason, shunning individual garbagemen, whoever they worked for, would be boneheaded. The answer to such a problem is not at the individual level; it's re-design of the system. The answer to the problems in our legal system will not come from shunning individual defense attorneys. It will only come from systemic reforms. Given the scale of the problem a big part of that reform, the first biggest part, must be getting a hell of a lot of people extricated from the whole legal system in its entirety before they ever get to the crisis point of needing a lawyer at all. That's a real solution. Shunning a defense attorney isn't, it's just scapegoating.
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Jun 14, 2019 04:14
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i actually went and checked and it looks like LA has, in fact, privatized its garbage collection https://www.waredisposal.com/city-of-los-angeles-recycla/ Are y'all really holding the position that it would be immoral for a privately employed garbageman to pick up Weinstein's trash? What about a doctor? If he has a heart attack, should a private physician refuse to treat him? I'm wondering how far this shunning doctrine extends
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Jun 14, 2019 04:21
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Wait. Should the doctor not treat any wealthy person, or only wealthy people who have done specifically horrible things? Should J.K. Rowling be denied medical treatment just because she's rich? twodot posted:If there exists a duty to serve, you can't refuse service on the basis that your client can't pay. Again, this doesn't follow, because there's no such thing as a blanket universal infinite duty. If there exists a duty to serve, then it has limitations and bounds, it isn't infinite. One of those bounds might very easily and rationally be "can the client pay for my services so I can keep my business going, pay rent, etc."
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Jun 14, 2019 06:38
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twodot posted:Public defenders do not possess these bounds. If you actually believe there is a real need for everyone to have legal representation, how can an ability to pay be a factor in determining clients? How can ANYTHING be a factor in determining clients? After all you and I both agree everyone needs to have legal representation. We can't judge Weinstein's attorneys in a hypothetical future world where Weinstein has access to public defenders due to a change in law. He needs an attorney now, not after the eschaton. You're shifting back and forth between the present (judging Weinstein's attorneys now) and a hypothetical future state where there's been a change in law and Weinstein has access to appointed counsel. He doesn't currently have that access so it's irrelevant whether or not he should. Horrible person needs attorney Horrible person cannot have an attorney appointed because he's too wealthy Horrible person hires attorney The hired attorney isn't culpable because he's fulfilling a societally necessary task. If in ten years the law changes and Horrible Person can get an attorney appointed, the hired attorney's task is no longer societally necessary in the same way, maybe the calculation changes. That's a hypothetical future though not present reality. Hieronymous Alloy fucked around with this message at 07:14 on Jun 14, 2019 |
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Jun 14, 2019 07:11
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twodot posted:Suppose in our current reality, all private lawyers refused to represent him. In that reality do you think he would be appointed a lawyer or do you think the state would force him to represent himself? It's a nonsensical supposition. He has money, so someone will represent him. That someone might be a horrible person for all sorts of reasons (greedy, whatever else) but they aren't horrible just by the fact of representation. Otherwise though I've already answered. The judge wouldn't believe he'd tried hard enough to find counsel and would probably just throw him in contempt and charge him progressive fines until he found counsel. Theoretically maybe conclude he'd waived his right to counsel by not trying hard enough? I dunno, it's a garbage in -> garbage out hypothetical that relies on conditions contrary to fact. What if the moon WAS made of cheese? Then what? Huh?
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Jun 14, 2019 07:18
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