Yahwe Explains ... What a crime is.

[Yahwe]

What does it mean when something is a crime? What does the system really mean? What is a criminal? Is there some other way that we could deal with certain actions that are/might be considered crimes?

These are the questions that I would like us to be constantly asking.

A good society defines as crime an activity which that society finds abhorent. Abhorent means abhorent. An activity so bad that society must punish the person who has committed it. An activity so important that society can justify the use of public money to react to it's happening. As well as there being a clearly defined individual victim.

So I am suggesting that within a 'good' (good by definition of agreeing with this definition) society a crime must be something which by it's nature harms; or risks harming, the society itself. And also the needs of society as a whole (the collective) must run with the needs of the individual.

Harm to society alone. Harm to the individual (victim) alone.

Neither of these are 'enough' on there own. To justify making something a crime we must have both.

Murder is a good starting point. Why is murder a crime in most societies? It is because if someone is a victim of a murder then they are dead. There is no resurection (outside of religion). Death is the end. The absolute. For the victim. For society a member, a unquantifiably potentially useful member is gone. Society and the individual both suffer from a murder: both gain from taking that maximum step of making murder criminal.

This is not a thread to debate the nuances of crimes: particularly not those crimes which might be in-defensible. The drugs laws are not our concern here. The sex laws are not our concern here.

What is is to ensure that we always use as our method of understanding what is a crime this two-fold test - the need of the individual + the need of society.

We need BOTH in order to justify making something a crime. This must be our methodology. To distort the balance in favour of either is simply wrong.

To have a system of crimes based solely upon the needs of the society is wrong. We would see curfews. The criminalisation of lunch hours ... etc. etc. We would become dictatorial.
But just as it is important to ensure that the need of society is kept in check. So must it follow that it is necessary to keep the need of the individual in check.

This http://news.bbc.co.uk/1/hi/uk_politics/5112340.stm is a threat to that. It risks throwing the balance.

When we consider "what is a crime?" we must be able to step back from emotion. Because both the society and the individual can use emotion to sistort our views. What we have to do is alway always always cling to that balance.

And oppose the suggestions we see in that link.

[s|k]

This is the best link thread ever. This is what a link thread should be like. It is the zenith, the prototype, the apex of a link thread. But it is still a link thread.

On topic: victim's being allowed to speak during a sentencing hearing is already common in the US. I think it is more common in states where the jury decides the punishment. I don't think juries should decide punishments. Kind of beside the point, but I think rehabilitation is better than punishment, because humans aren't dogs and because everyone wins when people stop committing crimes because they've learned from their mistake. I don't think that juries are generally qualified to determine what amount of rehabilitation/punishment is needed in order to satisfy both justice and the needs of the society (best served by rehabilitation in my opinion).

[milo]

Your nitpicking lawyerly ways are of no concern to the government and the tabloids damnyoureyes, cant you see its what the people want! who needs well thought out balanced judgements that are consistent across the country when different emotive pressure can be put on the judge depending on the vitriol or lack thereof of the victims family.

Personally id say target the treehugging hippies less likely to have screaming families

He is clever though, you have to give him that, why bother trying to fight the judiciary yourself when you can just sit back and use the grief of the family to fight your war on the 'lenient and out of touch judges'.

Rather than encourage forgivenss as in the case of anthony walkers mother, and allow society to move forward this will probably just result in more people becoming as emotive as possible in the hope of pressuring the judge to the max.

[Yahwe]

Originally Posted by s|k

This is the best link thread ever. This is what a link thread should be like. It is the zenith, the prototype, the apex of a link thread. But it is still a link thread.

There comes a point where in-order for me to retain credibility I actually have to put the effort in. I'm consious that I have been criticising link threads for a while. I wanted to show that there is nothing inherently wrong in posting a link thread provided you have a point to make.

Originally Posted by s|k

On topic: victim's being allowed to speak during a sentencing hearing is already common in the US. I think it is more common in states where the jury decides the punishment. I don't think juries should decide punishments. Kind of beside the point, but I think rehabilitation is better than punishment, because humans aren't dogs and because everyone wins when people stop committing crimes because they've learned from their mistake. I don't think that juries are generally qualified to determine what amount of rehabilitation/punishment is needed in order to satisfy both justice and the needs of the society (best served by rehabilitation in my opinion).

I would suggest that the present US system: or any system which lets juries decide sentences is actually a bad thing.

I do believe in the boring system that I posted. For a legal system to be the best that it can be it needs to constantly work to ensure that the interests of a society and the interests of a 'victim' are always balanced.

Over emphasising EITHER will be fundamentally damaging.

[Yahwe]

Originally Posted by milo

Rather than encourage forgivenss as in the case of anthony walkers mother,

I want her (Mrs Walker) in the House of Lords.

[Nodrog]

"The needs of society" is bordering on meaningless without any further elucidation - if this statement is to have any real sense, youre going to need to either explain how its reducible to statements about the individuals living in a society, or explain what it means to say that an abstract entitiy like 'society' can have needs.

A law which "only helps individuals' is necessarily going to help society, because "helping society" can only really mean 'helping the people who live in the society'. Society isnt some sort of supernatural entity which exists over and above people, drawing its lifeforce from them. It might be useful to treat groups of peopleas being an abstract entity (eg) the purpose of tracing the development of a culture through history, but statements about 'needs' are always going to have to be either reducible or metaphorical.

A good society defines as crime an activity which that society finds abhorent. Abhorent means abhorent. An activity so bad that society must punish the person who has committed it.

This is relativism and goes nowhere. Again, saying that 'society finds X abhorent' can only really mean 'the people living in the society find X abhorent'. And this justifies executing Jews if most people dont like them, banning homosexual intercourse, and so on.

This is not a thread to debate the nuances of crimes: particularly not those crimes which might be in-defensible. The drugs laws are not our concern here. The sex laws are not our concern here.

Drug laws are always going to be the best example to use in threads like this, because they are a paradigm case of restricting individual liberty due to some linguistically confused notion about 'the good of society'. There are many other laws where similar restrictions are made, but I dont think any of them display the principles involved as blatently as drug laws.

This http://news.bbc.co.uk/1/hi/uk_politics/5112340.stm is a threat to that. It risks throwing the balance.

I dont think any of your analysis applies to this law , because this isnt a case where 'individuals' are being promoted rather than 'society' - it's the individuals who are being prosecuted are going to suffer who are going to suffer, not 'society' in some abstract sense. it is a terrible law, but not for the reasons you gave.

[Tactitus]

Originally Posted by s|k

On topic: victim's being allowed to speak during a sentencing hearing is already common in the US. I think it is more common in states where the jury decides the punishment.

49 states allow a Victim Impact Statement. I believe only a handful of states still have jury sentencing in non-capital cases. Due to a Supreme Court decision, capital punishment can only be imposed by a jury (just when jury sentencing seemed poised to die out the Supreme Court breathed new life into it). A few states have the Victim Impact Statement presented after sentencing.

I don't think juries should decide punishments. I don't think that juries are generally qualified to determine what amount of rehabilitation/punishment is needed in order to satisfy both justice and the needs of the society (best served by rehabilitation in my opinion).

It is a peculiar artifact of our society that we place an almost absolute confidence in the ability of jurors to reach just verdicts on guilt or innocence and yet so little confidence in their ability to impose just sentences. Of course, we don't seem to have much confidence in judges either, as mandatory sentences are increasingly limiting their discretion.

[s|k]

Originally Posted by Tactitus

It is a peculiar artifact of our society that we place an almost absolute confidence in the ability of jurors to reach just verdicts on guilt or innocence and yet so little confidence in their ability to impose just sentences. Of course, we don't seem to have much confidence in judges either, as mandatory sentences are increasingly limiting their discretion.

Those two things are pretty different. Determining guilt beyond a reasonable doubt, yeah it seems reasonable to me that individuals could do that with no specific training if they're of sound mind and not signicantly biased by superfluous factors such as racism. Determining the best course of action in order to rehabilitate or punish (punishing being some sort of adequate signal to send to someone that what they did was wrong and also a deterrent) someone probably takes an expert such as a social worker, a psychiatrist, others, research, etc.

[dda]

How does allowing the victim of a crime (in the case of a murder the friends and family of the victim are victimized) a voice at sentencing unbalance the structure of justice.

The state gets its say.

The defendant gets his say.

The victims get their say.

The judge, in most cases, then decides based on certain guidelines. Seems balanced to me.

The state is not the individual according to your analysis so what is wrong with letting the individuals be considered?

In twenty-seven years I have seen judges reminded of the humanity of victims on many occasions. I have very seldom seen them swayed against the defendant to any great degree by emotional appeals from individuals. Moved somethimes but not swayed.

[Tomkat]

I'm a little confused ("no surprise there" says yahwe, am i rite?).

What does "The government is piloting a scheme allowing relatives to make a statement before a convicted killer is sentenced." mean exactly (from your BBC link).

The way I read it was just that the families of the victim would be allowed to give some sort of statement to the media about the crime and what they believe should have been done about it.

It doesn't say anything about this proposition being able to sway the courts or the legal system though - it looks more like something to allow the relatives to achieve some kind of closure on the whole situation.

[Dante Hicks]

Originally Posted by Tomkat

It doesn't say anything about this proposition being able to sway the courts or the legal system though

Originally Posted by From the link

The Victim's Advocate scheme allows relatives of victims the chance to address the court - before sentencing - about the impact that the death has had on them.

[Phang]

justice concerns the guilty man and those with the power to punish; vengeance concerns the aggreived, the guilty, and the means for the former to strike at the latter. the law is there to offer justice, not vengeance. the victim should have no role in criminal proceedings.


edit: obviously this doesn't apply to eyewitness testimony.

[milo]

Originally Posted by dda

How does allowing the victim of a crime (in the case of a murder the friends and family of the victim are victimized) a voice at sentencing unbalance the structure of justice.

The state gets its say.

The defendant gets his say.

The victims get their say.

The judge, in most cases, then decides based on certain guidelines. Seems balanced to me.

The state is not the individual according to your analysis so what is wrong with letting the individuals be considered?

In twenty-seven years I have seen judges reminded of the humanity of victims on many occasions. I have very seldom seen them swayed against the defendant to any great degree by emotional appeals from individuals. Moved somethimes but not swayed.

Why should a victim have a case-by-case say, or sway, in what sentence is given?. If you accept an impartial and fair judical system that tries to act consistently then you can't by definition allow the uncertainty of 'victim attitude' to affect that. You may as well have the victim determine the sentence. I don't believe that prison acts as universal deterrant to crime but im confused how those that do can accept the detterance of 'defined sentencing' and the possibility of 'victim empathy' in effecting that sentence.
If theres a problem with the sentencing you hold an open forum where anyone can write to the sentencing guidelines council and an attempt is made at thoughtful dialogue, the sentencing is based on that.

This isn't to avoid or downplay grief, just a grown up understanding - that we've had until now - that grief, emotion and anger (and that is what in the vast majority of cases the judge will have to confront) are diffiuclt to reconcile with an impartial and fair judicial system.

If this process brings nothing to the judges, if discounting those that were swayed the rest were just 'moved' and went on as normal, why have the process in the first place?. Its redundant.

[Dante Hicks]

Originally Posted by milo

Why should a victim have a case-by-case say, or sway, in what sentence is given?. If you accept an impartial and fair judical system that tries to act consistently then you can't by definition allow the uncertainty of 'victim attitude' to affect that.

I don't necessarily disagree with you, but surely "consistent" implies the same judgement in the same circumstances. If one crime is more brutal than another then it will generally face a higher punishment (even if it was formally the same crime). Should we necessarily exclude the victims feelings from what we're defining as "circumstances"? You can imagine that if you raped someone and they suffered a nervous breakdown and killed themselves (before it came to court) that you might face a stronger sentence than if you raped someone and they "got over it" comparatively easily (and in court testified that the incident hadn't affected them particularly).

(This is partially devils advocate since I don't agree with this victim's family getting emotional in court nonsense, but I can see the other sides point too. I don't see why you'd necessarily want a consistent punishment when the victims feelings on the crime might vary.)

[KoeN]

what a stupid thread.

[milo]

Originally Posted by Dante Hicks

I don't necessarily disagree with you, but surely "consistent" implies the same judgement in the same circumstances. If one crime is more brutal than another then it will generally face a higher punishment (even if it was formally the same crime). Should we necessarily exclude the victims feelings from what we're defining as "circumstances"? You can imagine that if you raped someone and they suffered a nervous breakdown and killed themselves (before it came to court) that you might face a stronger sentence than if you raped someone and they "got over it" comparatively easily (and in court testified that the incident hadn't affected them particularly).

(This is partially devils advocate since I don't agree with this victim's family getting emotional in court nonsense, but I can see the other sides point too. I don't see why you'd necessarily want a consistent punishment when the victims feelings on the crime might vary.)

No, and you should never be tried for anything other than the crime you comitted, i remember reading somethign about a husband being charged with manslaughter because his wife killed herself due to the 'emotional strain' the case relied on expert testimony, presumably of someone who had never met the woman, it was thrown out but there may well be a change in the law (so if your partner kills themselves and blames you, you can go to jail with your conviction being dependant on 'expert testimony'!!!).

Its my belief that justice should be institutional, not in the bad sense of the word, but it should be based on what is written and precedant set and not on 'feelings' which if we're honest are undefinable. If a doctor makes a mistake on a patient but the patient lives for a period of time before dying, the prosecution have to show that the death was directly linked to the mistake and not something that happened in the intervening time, you're held accountable for what you did and the death has to be scientifically and in an objectionate manner linked to the doctor.

Bringing 'feelings' is little more than conjuring demons to attempt justice. In my analogy of the doctor its like saying 'its obvious the patient died from that, its just obvious'. Its abandoning the forensic nature we've developed, if you see what i mean (this may retort "thats the point").

If we make someone culpable for something they have no possible way of knowing (the reaction of an individual after the crime) then in all fairness we should reduce the culpability if they present a reasoned approach about why they chose the individual ('i mugged him because he looked big strong and tough and could take it').

[Dante Hicks]

Originally Posted by milo

If we make someone culpable for something they have no possible way of knowing (the reaction of an individual after the crime)

I don't think anyone is suggesting that. They are not culpable for every eventuality, but they are culpable for what happens to a limited extent. If I punch two people in the face "equally hard" and one simply looks at me in a quizical fashion and the other person falls and dies instantly from their injuries then I doubt both punishments will be equal.

I certainly wouldn't agree with increasing punishments when victims were extra angry, but I would think about reducing punishment when the victim (or their family) wanted them to have clemency.

then in all fairness we should reduce the culpability if they present a reasoned approach about why they chose the individual ('i mugged him because he looked big strong and tough and could take it').

Well, I kind of agree with this. Someone mugging an old woman should be punished more than severely than someone mugging one who is young and big. I doubt anyone on these forums will agree with me here but I would also say that someone stealing from a poor person (or a charity) should be punished more than someone who robs from someone who is rich (or a profitable corporation).

[pig]

Originally Posted by Dante

I doubt anyone on these forums will agree with me here but I would also say that someone stealing from a poor person (or a charity) should be punished more than someone who robs from someone who is rich (or a profitable corporation)

Completly agree.

I dont see credit card fraud a major crime as long as the only people that are affected are the banks and not poor people. I also get sickened if an old persons house is robbed as its just wrong.

Those who say criminals dont have morals.

Thats bollacks.

In fact I have met criminals who have more morals than most, they just take exception on certain things.

[sjn]

Originally Posted by pig

Completly agree.

I dont see credit card fraud a major crime as long as the only people that are affected are the banks and not poor people.

So the bank pull the money they lose from credit card fraud out the sky do they? Who do you think the banks get to repay this money? Do you think they don't have their Christmas party one year if they lose too much to fraud? erm..... No Also you think the criminals take this money and give it to charity? or buy 50000 copies of the Big Issue with it? (you know ....to help the poor) So if they steal the money as long as nobody else is affected (so they do good with the money) everybody is o.k. You don't live in Sherwood forest do you? and go about with a gang of merry men?

Originally Posted by pig

Those who say criminals dont have morals.
Thats bollacks.

about this point in the thread I thought hmm maybe i can't read/tell sarcasm very well

Originally Posted by pig

In fact I have met criminals who have more morals than most, they just take exception on certain things.

Yeah prisons are full of criminals with lots of morals, infact thats where all the morals live :/ Maybe we people on the "outside" are the ones who have been segregated from them because they are too good to live with us immoral types?

I personally believe the courts should remain free to make their decisions unencumbered by "an emotional context", political pressure or [insert todays witch hunt in the taboids here]

[pig]

Originally Posted by sjn

So the bank pull the money they lose from credit card fraud out the sky do they? Who do you think the banks get to repay this money? Do you think they don't have their Christmas party one year if they lose too much to fraud? erm..... No Also you think the criminals take this money and give it to charity? or buy 50000 copies of the Big Issue with it? (you know ....to help the poor) So if they steal the money as long as nobody else is affected (so they do good with the money) everybody is o.k. You don't live in Sherwood forest do you? and go about with a gang of merry men?

Oh the corporations who make billions upon billions a year cant afford to lose £1000 here or there, they have insurance anyway so it doesnt make a difference.

No I dont like in Sherwood forest but ive grown up in Birmingham, been involved in crime to a certain extent, have friends who have been to jail, know people who have committed crime. The one thing they have never done is ever ever step the line and rob/hit/steal whatever anyone who is female or young or elderly. In fact most the things I have heard have been shopliffting, credit cards, fighting with people of the same age, revenge, drugs.

Yeah prisons are full of criminals with lots of morals, infact thats where all the morals live :/ Maybe we people on the "outside" are the ones who have been segregated from them because they are too good to live with us immoral types?

Who dictates what is moral and immoral? For example is it really wrong to steal from a shop if you have no money? Can you justify taking someones life if they tried to take your own etc? Obviously prison is a screwed up place and there are screwed up people in prison. However I'm sure a fair few of them hold good morals. They have just done something that they believe is morally ok in there mind.

I personally believe the courts should remain free to make their decisions unencumbered by "an emotional context", political pressure or [insert todays

[Dante Hicks]

Originally Posted by sjn

Yeah prisons are full of criminals with lots of morals, infact thats where all the morals live :/

I think the point is that people have different moral codes. It's not necessarily true that people who commit crime x abandon every other moral they have - they'll either have some warped sense of morality or some selective blindness as pig says (or, they'll simply have a different fully developed sense of morality to society generally).

I'd imagine prison is a place where people do have very defined (if very warped) sense of morality. Quick test : Do you think prison is a very safe place for child molestors? Why do you think that might be?

Saying someone has "morals" does not mean they are necessarily a good person from your perspective. I suspect the Taleban are very moral in their own sense, but this does not mean one would want to invite them to many dinner parties.

[The_Tyrant]

Wouldn't the facts of the crime most likely give an emotional context without family making a statement to the effect? If a judge through the duration of the case, is informed the exact facts of the case couldn't s\he make up their own mind? So long as they reference the "extreme suffering of the victim" or "the anguish caused to the family" at sentencing wouldn't that show the family they were being considered?

It seems like any sort of outside influence is putting too much into the lap of the gods, could a person be held responsible for killing the bread winner of a family? Or the breakup of the family after the incident? equally could the suspects family make a statement of the effect on them should they be sent to prison?

The ideal for me would be the same 3 judges sitting every case. With oversight this would surly lead to absolute consistency across the board, with nothing being dependant on emotional factors and everything based on facts. I do realise this isn't possible but its seems to be the only way to have totally consistent justice.

[dda]

In sentencing in most criminal cases, the idea is to balance the harm done in the particular violation of the law against the potential for rehabilitation (a person's record) in arriving at a just decision within the guidelines. I'm not sure how you determine the harm done without counsulting the victim in some form.

In capital murder cases the same needs are present except the idea of rehabilitation is not really at issue. It is more an assessment of the harm done to determine whether the needs of society require a preson's death to satisfy.

In non-capital murder cases, the sentence, whether for first or second degree murder is fixed and the judge has very little discretion to deviate. His only option is to reject the jury's determination and substitute a lesser crime, unlikely, or to grant probation which would be unheard of. Thus letting the family speak has no bearing on his sentence at all.

One of the prime reasons that victim's families are allowed to make statements in murder cases is for the peace of mind of the family. They have to sit through a trial where the victim, their loved one, is usually defiled in one way or another by the defense and they have to sit there and suffer silently. The prosecution is prosecuting the defendant and not defending the victim. This leaves no one speaking up for the good name of the victim. The family often feel the need to stand up and speak about what the victim was like and why they loved them and why they will miss them.

[Flavius]

Originally Posted by Yahwe

Neither of these are 'enough' on there own. To justify making something a crime we must have both.

ban user.
delete thread.
chop penis.

[Dante Hicks]

Originally Posted by Flavius

ban user.
delete thread.
chop penis.

Haven't we moved beyond this sort of thing?

Originally Posted by dda

The family often feel the need to stand up and speak about what the victim was like and why they loved them and why they will miss them.

I don't think many people would deny them this, but it's quite another thing for them to do it in court. If they just want to make a public statement after the trial surely there is another way for that to be achieved?

[dda]

Sadly there isn't. Not all murder cases garner any press. Also, often it is important to the family that the same forum be available to defend the victim as was used to attack him. The alternative is for the prosecutor to stand up and give some great emotional statement about the victim.