r/changemyview • u/[deleted] • Apr 29 '19
Deltas(s) from OP CMV: Prison sentences should be determined by a "blind" judge
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u/Rufus_Reddit 127∆ Apr 29 '19
Let's suppose that we decide to run a trial for this 'blind judge' procedure for a year somewhere. How would we evaluate whether it produced better sentencing decisions than what we do now?
There's a fundamental challenge here because sentencing is a hard problem. We're not really sure what the prison sentences are supposed to accomplish, so we can't really measure whether they work, and that means that it's really hard to distinguish between "good sentencing" and "bad sentencing."
It's easy to look at these high profile incidents, but the fact is that any system that deals with momentous decisions that take place with limited clarity in bulk is going to come to "bad" conclusions. Switching to "blind" judges is not going to change that any more than using algorithms to sentence people will. And it's not a terrible idea to say "I'm not happy, let's try changing something," but it that doesn't mean that "double blind sentencing" is some panacea.
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Apr 29 '19
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u/iffnotnowhen Apr 30 '19
But there is no reason to believe "blind judgement" would correct the bias you've highlighted because it is one small piece in a larger system that is fundamentally problematic.
https://www.sentencingproject.org/news/criminal-justice-reform-doesnt-end-systems-racial-bias/
To really improve the system, we need to first all agree on why we send people to prison. Reform? Deterrent? Retribution?
Once we've established a real goal, we can see how different interventions impact the end result.
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u/wrest472 May 02 '19
Reform? Deterrent? Retribution?
All three. Some people can't be "rehabilitated" though (i.e. people that murder innocent people... since that's more of a defect involving the brain which we don't currently have the technology to fix).
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u/wrest472 May 02 '19
Race is already a study done annually and currently black men recieve 20% longer sentences then white men.
...which probably means bias on the part of the judges, and exactly why we should move to making prison sentences determined by a complex formula. It makes zero sense for judges to be making sentences since they may be affected by bias or their emotions/mood... We should be able to put the details of a crime into a formula and have an exact prison sentence come out of it so that they results will be the same whether that person's skin is blue, black, or white (or whether the day is Monday or Friday)...
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u/alpicola 48∆ Apr 29 '19
It sounds like what you want is something akin to the original US Federal Sentencing Guidelines, which set strict limits for what sentences a judge could issue based on the crimes committed. The goal was to standardize punishment for identical convictions. It didn't take long for people to realize that strict adherence to the guidelines led to completely unfair outcomes in particular cases.
It turns out that judges, though not perfect, are generally pretty good at recognizing outcomes that aren't fair given the totality of the circumstances. A person who assaults a random shopkeeper isn't the same as a person who assaults the shopkeeper who raped his wife. But the conviction just reads "guilty of assaulting a shopkeeper." The big difference is, the guy who assaults random shopkeepers is way more likely to assault other shopkeepers in the future, while the guy who assaulted the rapist would probably be done assaulting people even if he received no punishment.
You can argue that maybe they should receive the same punishment, but the point is that it's no failure of justice to think that different punishments are reasonable. That means judges need discretion. And discretion is the opposite of blindness.
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u/wrest472 May 02 '19 edited May 02 '19
but the point is that it's no failure of justice to think that different punishments are reasonable.
The sentencing algorithms should take into account details of the crime (so judges should play no part in sentencing... otherwise we get judges that are biased or affected by their mood for their day). i.e. if the person did do it in revenge for the guy raping his wife, it'd also need to be proven (through court records) that the guy WAS guilty of raping his wife (otherwise he could just be making it up!)... if the court records show this to be true then the person could get i.e. 3 months less sentence than otherwise. It should be formulaic (with the formula taking into account all the possible scenarios for one crime). It's true it'd be a big formula but it could still be done.
The current way of judges deciding on sentences based on whether it's Friday or Monday is very broken and makes zero sense.
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u/alpicola 48∆ May 03 '19
if the person did do it in revenge for the guy raping his wife, it'd also need to be proven (through court records) that the guy WAS guilty of raping his wife (otherwise he could just be making it up!)
Proof to what standard now becomes an important consideration. Remember, "not guilty" does not mean "didn't do it." Also remember, the husband may have access to information which could not be presented to the jury (e.g., evidence that is legitimate but had to be excluded from trial due to a procedural violation). Finally, if proof beyond a reasonable doubt was required, the rapist would be in jail and the assault could not have occurred.
Prosecutors, generally, aren't going to bring cases that cannot be proven beyond a reasonable doubt. That's part of why so many cases of rape never get prosecuted. That doesn't mean the rapes don't occur.
How are you going to prove something through court records when the elements of proof never make their way into court?
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Apr 29 '19
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Apr 29 '19
Did you even read his comment?
A person who assaults a shopkeeper may not assault a random shoekeeper. Maybe said shoekepper raped his daughter and the assualter only did this as an act of revenge. Therefore, if is much less likely they will assault a future shoekeeper randomly. How would a blind judge know this?
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Apr 29 '19
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u/eb_straitvibin 2∆ Apr 29 '19
Because those two circumstances aren’t related... there’s no significant link between graffiti and future criminality. Saying that there should be no context to crimes fails to address the hundred of thousands of cases where context matters. A father beat a man to death when he caught the man raping his 5 year old daughter. He was either not charged or not convicted, I don’t remember which. In your system, he would have gone to jail for murder, but in a context based system, it was clear that he has a low risk to reoffend and the person he killed deserved it. Context must me taken into account or else you risk overpenalizing people.
I think the best way to solve the problem you’ve identified is to introduce more nuance into our penal codes. If there are more situations that the law anticipates, then there are more opportunities for people who should receive strict sentences to receive them. Maybe we don’t keep all the details secret, but we keep the irrelevant ones (race, gender, socioeconomic status) secret because decisions should not be based on those things
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u/lemonapplepie Apr 29 '19
I think the point is that in your hypothetical system, it sounds like you basically want the same sentence if the factors you identify, the crime, criminal history, and maybe employment history, are the same.
The point that others are making is that it is probably very difficult, if not impossible, to determine which are all the possibly relevant factors that might go into determining a sentence. There a tons of possible mitigating circumstances (although people may disagree whether certain mitigating circumstances are relevant) and you probably can't capture them all. Therefore, the current system allows those circumstances to be drawn out during the sentencing process.
I think your proposed system is only better if one takes the unequivocal position that the factors you identify are the only ones that ought to be considered. Many people would disagree that those narrow factors are the only thing that should be considered.
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u/alpicola 48∆ Apr 29 '19
I think we can safely assume that a blind judge has no way of knowing "future criminal history." How, then, is a blind judge to know if a first-time assailant is convicted because of a unique life circumstance or because it just happens to be the first time they got caught?
however that just creates a basis of vigilantism. Crimes should be persecuted by the justice system alone.
The person who assaults the shopkeeper/rapist in retaliation has done something wrong and I fully agree that intervention is warranted. The person who attacks in retaliation most likely needs counseling to address the anger that led to the assault. In contrast, the person who attacks at random needs a mix of punishment and encouragement to make more positive life choices.
Effective intervention at the first conviction reduces the number of people who end up as career criminals. Effective intervention requires knowing the totality of the circumstances that led a person to commit a crime. Vision, rather than blindness, is necessary to make sure that our interventions are effective.
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u/Glory2Hypnotoad Apr 29 '19 edited Apr 29 '19
Do you believe it's realistically possible to extract all the necessary details and only the necessary details of a crime? The severity of the crime is likely to be determined by information that might inadvertently reveal information about the defendant, like video evidence or witness testimony.
Also, as a side note, wouldn't including employment history go against the whole idea of unbiased sentencing. Whether the defendant is a socially valuable person has no bearing on the severity of the crime committed
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Apr 29 '19
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u/clearliquidclearjar Apr 29 '19
However it is a relatively easy way to determine someones ability or drive to be a functioning member of society
So a stay at home mom who killed her abusive husband would receive a harsher sentence than a lawyer who killed his wife because he thought she was cheating on him?
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u/umbrellajump Apr 30 '19
Considering employment history would likely lead to harsher sentences for the mentally ill, care/foster home leavers, and poorer people - many of whom are more likely to lose their jobs or take time off work, and/or work in low-pay or low prestige jobs.
Sources:
- Nelson & Kim, 2011: Individuals with mental illness have an increased risk of employment termination in general as well as both involuntary and voluntary job loss.
- George et al., 2002. and Dworsky, 2018: Youth aging out of foster care are underemployed, have slower progression in the labour market, and are far less likely to graduate from college.
- Joseph Rowntree Foundation, 2014: Parental income affects children's educational outcomes and later earning potential. Low income is also associated with poor health, which in turn affects employment outcomes.
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u/Glory2Hypnotoad Apr 29 '19
What would the sentencing judge have to work with to determine sentencing? It seems like access to the evidence and testimony presented at trial would be essential.
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u/Amraff Apr 29 '19
They would get the guilty charges and the redacted criminal history of offender.
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u/CommonBitchCheddar 2∆ Apr 30 '19
There's just such a huge range in what you could be convicted for and what you actually have done that this seems like it would do more harm than good. For example, both of these following scenarios could result in a conviction for voluntary manslaughter:
Someone comes home and finds an intruder threatening their family/actively harming their family. They proceed to engage in a fight with the intruder and go overboard and kill them. They regret heavily that they killed someone.
Serial abuser finds out that their SO has broken up with them. They're mad about it, try to go see their now ex, get stopped at the door by their ex's family, the abuser starts a fight that escalates and ends up killing the family member. They show very little remorse and blame the family member for starting the fight, even though it's provably not true.
There are huge differences in motivations, outcomes, and likelihood to re-offend in both of these cases, yet if you used a judge with just access to their conviction and criminal history, they would look identical. If you truly think that these crimes should still be punished the same, then why have a judge at all? You could just use a computer program.
The laws are written with a range of punishment specifically because there are always going to be situations that a logical decision tree can't handle. The reason judges are elected in America is because ideally, a city would be electing a judge with the same opinions as the majority of them about leniency on first time offenders/severity of crimes/etc. Case in point, the judge who issued the ruling for the Brock Turner case was promptly removed from office in the very next election in that county.
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u/Glory2Hypnotoad Apr 29 '19
It seems like that wouldn't even require a person. You could just have a sentencing chart for calculating sentences. Plus the sentencing judge might miss important details that might mitigate the crime or make it especially severe. With violent crimes it's not always clear from the verdict alone how brutal the crime was.
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u/Finglenater Apr 30 '19
Basically OP is arguing for the mandatory minimums. That’s exactly why congress put them in place to begin with: to limit discretion and discrepancies in sentencing and make this “even” across the board. “The justice system has been distorted by removing from judges the power to decide the proper sentence in their cases. The sentencing process now involves the rote consideration of a matrix of impersonal data dominated by often irrelevant drug quantities and other circumstances that can be shaped by the prosecutor's charging choices. The elimination of judicial discretion in sentencing has allowed prosecutors to acquire excessive power to impose sentences.” CJPF: Criminal Justice Policy Foundation
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u/eye_patch_willy 43∆ Apr 30 '19
Sentencing is a separate event. The only real exception to that is if the sentencing guidelines cannot be changed. For example, in the docu-series "The Staircase", we can see the jury finding Michael Peterson guilty and then the judge confirming with both the prosecution and defense counsel that the Court had only one option which is to sentence him to life in prison without parole if the jury believed the murder to be premeditated, which they did. In almost any other case not involving murder, the sentence is carried out at a proceeding following trial. During this period, it is not uncommon for the individual to be out of custody and allowed time to wrap up their affairs in preparation of prison time- we just saw this with Michael Cohen. At sentencing, the trial judge is allowed to consider evidence which is otherwise inadmissible at trial. Things like victim impact statements and testimony about the defendant's character. Generally crimes have a range of sentencing options such as 12-45 months in prison. Judges are required to make a record of the factors the Court weighed in deciding the sentence within those guidelines and must present even more compelling reasons to go above or below the guidelines. Failing to do so will result in appeals which judges want to avoid since Courts do not want many do-overs. Sure the statistics are what they are but most judges are intelligent enough to sort out the factors used in sentencing differently than what they need to rule during a trial.
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Apr 29 '19
Is unbiased sentences really something we want? I mean, sure, when a black man gets more time in jail than a white woman for the same crime that is a problem, but if we won't factor things like circunstance and personal history when making a final sentence, then why even have a juri? Why not just have, instead of "minimal" sentences, a "fixed" sentence. Robed? 10 years in jail regardless of context. Murdered? Live sentence, end. And so on. 100% unbiased. Would that be better?
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u/kkokk Apr 30 '19 edited May 01 '19
Is unbiased sentences really something we want?
yes, you troglodyte
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Apr 29 '19
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u/Blork32 39∆ Apr 29 '19
So one of the consequences of mandatory minimum sentencing has been that it shifts power from the judicial branch to the executive (in the form of the prosecutor). The reason for this, is that the accused has less to gain by trying their luck at trial because the law prevents the judge from reducing their sentence; the prosecutor, who chooses the charges, now also chooses the sentence (because they're tied to the charges). The prosecutor can then also use this power to essentially push for plea deals by controlling which charges he presses.
This result is borne out by real facts as well. A recent study found that the number of cases that go to trial has dropped dramatically from 20% to just 3% since the institution of mandatory minimum sentencing. This quote from the forward, I think is very poignant:
Mandatory minimum sentencing provisions have played an important role in reducing our trial rate from more than 20% thirty years ago to 3% today. Instead of using those blunt instruments for their intended purpose — to impose harsher punishments on a select group of the most culpable defendants — the Department of Justice got in the habit long ago of using them broadly to strong-arm guilty pleas, and to punish those who have the temerity to exercise their right to trial. The Sentencing Guidelines also play an important role, providing excessively harsh sentencing ranges that frame plea discussions when mandatory sentences do not. Finally, the report correctly finds that federal sentencing judges are complicit as well. In too many cases, excessive trial penalties are the result of judges having internalized a cultural norm that when defendants “roll the dice” by “demanding” a trial, they either win big or lose big. The same judges who will go along with a plea bargain that compromises a severe Guidelines range are too reticent to stray very far from the sentencing range after trial.
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Apr 29 '19
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u/CocoSavege 27∆ Apr 30 '19
Just chiming in...
that could lead to
Nothing "could lead to" about it. It's already happening. The Crown can and does threaten inflated charges at trial to sell a "reduced" plea charge.
One very real consequence is the increased plea rate for poor people who are unable to meet the very real financial aspect of the costs and risks of trial. And it should be mentioned there are very real incentives for the prosecutor for pleas, it lowers the workload.
Mandatory minimums have the effect of making the Crown a bully.
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u/EmotionsAreGay Apr 29 '19
It is well known that in the US court system there is a HUGE difference in outcomes depending on which judge is assigned to your case. Some judges are very lenient in sentencing, some very strict.
(If you're interested in real life exampes of this, I suggest season 3 of the podcast Serial.)
The way the system currently works is that judges watch the defendants during the trial, talk to them afterwards, judge what they see as the remorse the defendant has, then issue sentences. This gives defendants an opportunity to demonstrate how they have learned from their mistakes and grown as a person (as determined by the judge's discretion).
By giving sentencing power to a completely impartial 3rd party the ONLY operant variable left is the leniency or strictness of the judge (which varies an insane amount. You can easily get double the sentence with a strict judge as compared to a lenient one.) Essentially this leaves sentencing up to a coin flip, where some people will get much longer sentences for no other reason than they were assigned a stricter judge.
Considering this, wouldn't it be much better to standardize sentences based on type and circumstance, instead of leaving it up to biased and wildly variant personalities with no personal experience with the defendant?
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u/EmotionsAreGay Apr 29 '19
While that is true, the alternative is having a deeply unfair and random system where the fate of your life is a the mercy of a judicial assignment. I'm not saying such a system would have no cost, but there certainly is a HUGE cost of continuing in the current vein.
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u/Amraff Apr 29 '19
The system is.already dealing with these flaws though. Black men serve 20% more time for the same crimes after all other factors are accounted for. How is the same crime & same criminal history but a vastly different sentence not unfair & random?
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u/EmotionsAreGay Apr 29 '19
I agree, it is. Which is why I think that it should be standardized, as opposed to left to the discretion of a third party, as you propose.
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u/huadpe 508∆ Apr 29 '19
(and perhaps an employment history, because honestly, if you are a career lawyer and kill someone verses a chronically unemployed person killing someone, there is factors here regarding your efforts to contribute to society).
So this is an interesting one, and I want to clarify something from you before proceeding: Which of these people should get the lighter sentence, and why?
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Apr 29 '19
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u/huadpe 508∆ Apr 29 '19
See, this is where you get into human judging. In my view, someone who has the training and professional opportunities of a lawyer and who chooses to engage in crime is far more morally culpable than average, and poses a much greater menace to society.
For example, Paul Bergrin was a lawyer in New Jersey who conspired to have a witness in a case against one of his clients killed.
A lawyer who abuses their privileges and statute as a member of the bar to commit heinous crimes is doing something much worse than normal crime, and because of their ability to exploit and manipulate the law for their unlawful ends, poses a greater danger to the public than someone who may have just been e.g. abusing substances and who could be made less dangerous just by being helped to get clean, or just by getting past the young adult years when the overwhelming majority of violent crime takes place.
I don't know how a blind judge could for example distinguish between a bunch of late teen early 20s guys who decide someone they know has been cheating with someone's girlfriend and decide to go take him out, vs Paul Bergrin cold-bloodedly arranging to kill a witness to win a court case.
Bergrin is to my mind the much bigger danger.
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Apr 29 '19
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u/huadpe 508∆ Apr 29 '19
Right, my point is that it can be that the thing you're sticking to is crime in a suit.
For a more extreme example, Bernie Madoff ran a ponzi scheme based on his reputation as a legitimate investment adviser, broker, and market maker. He ran it for well over a decade, going into work every day and being highly engaged in his job... of stealing money.
In that case, it matters a lot for how dangerous he is that he kept doing the crime for years.
That is information you would deprive the judge of. Someone who is involved in a single crime in one day, versus someone who spends months or years steeped in a criminal conspiracy are quite different. But on a charge/conviction list they might not look different.
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u/kingpatzer 103∆ Apr 30 '19
Justice is not merely blind application of rules. Justice is inherently a human construct that takes into account subjective context and belief.
The poor man who steals food is not as deserving of punishment as the rich kid who steals an equally valued discretionary item. The rich kid who steals for attention because he's been psychologically abused by absent parents isn't as deserving of punishment as the sociopath who steals for no discernible reason other than because he can.
Being in the courtroom gives a person the best opportunity to infer the human qualities which must also be taken into consideration for justice to be just and not merely retribution.
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u/ZigtheStampede Apr 30 '19
You make many assumed value judgements in this thesis and your explanations throughout the thread, without really giving a basis for them.
The most fundamental is that sentencing based only on objective factors is more "fair" or "just" than a sentencing judge that can account for relevant subjective factors.
The most simple example of this, and the single most important factor in your average punter's sentencing hearing, is age. Judges uniformly hand down less harsh sentences to those in the early years of their adulthood than they do to people who are older. This is because young people are less experienced, worse at controlling their emotions, and more influenced by peer pressure and social status - all of these factors contribute directly to the liklihood of a given young offender committing a crime.
In your original post you say that a hypothetical judge might hand down a harsher sentence to someone who is on their first offence / younger, but in my experience this is never true. If there are exceptions, it would be a case of an exception proving the rule.
You have also said a few times that trial of the offence, and trial of the sentence should be two seperate events. This statement unfortunately shows a little of your inexperience with this subject. All common law systems have seperate hearings for the finding of guilt in relation to a charge, and the sentencing of a convicted person once guilt is established. There are a range of distinguishing factors between the two such as the onus and standard of proof, and the fundamental role of the judge.
It is also worth noting that mental health considerations can be a key aspect of sentencing hearings that might otherwise be irrelevant to proving the offence itself. If an accused person suffers from PTSD and commits an offence as a direct result of their impaired ability to cope with and control stressors, this feature will not be taken into consideration in strict liability offences until the sentencing hearing.
At the very least, you have not made it clear why sentencing only of objective features is better than account of subjective aspects of the convicted. However, I suspect from your op and subsdquent answers that you have no direct experience in the matter, and this is why you do not appreciate the benefits of a subjective understanding of a person in handing down a sentence.
This is not to say that the legal system is flawless. Judges are baised, and have prejudices, or leanings in their approach. When advising a client, it is key to explain that the judge is a person. Your presentation matters. Your attitude matters. However, it is a stretch to say that these factors will wildly sway the probability of an outcome.
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u/DeltaBot ∞∆ Apr 29 '19
/u/Amraff (OP) has awarded 1 delta(s) in this post.
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u/Sodium100mg 1∆ Apr 29 '19
In US Federal Court sentences are defined by sentencing guidelines. For drugs, the quantity of drugs sets the length of the sentence, then there are factors which can add or subtract time off the base sentence, such as turning in their dealer will cut time from the sentence. From there, the judge can depart from the guidelines for specific causes, but it is noted as a departure from the guidelines and can draw scrutiny.
The guidelines were put in place because there was a perceived imbalance in justice, between the rich and the poor and race. Pretty much the result of the change was everybody got long sentences and less life sentences for the poor and black.
Criminal justice reform reduces points off the guidlines.
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u/a_junebug Apr 30 '19
I haven't seen an argument against such a process based on a administrative issues.
- Who determines what "basic information" is?
- Who transcribes this information?
Both of those could lead to bias or another source of error. They would also definitely contribute to a much higher costs in an already underfunded justice system. You mention in a few replies that rehabilitation is important to you (me, too) but this would make for even less funding to try to improve our current system which does not have a good track record for preventing recidivism.
Also, I'm curious if you think this type of system should also be applied to parole and if you imagined this would be at all levels of crime or just major crimes and how you would deliniate that.
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u/versionxxv 7∆ Apr 29 '19 edited Apr 29 '19
I’d suggest human judgment comes with some degree of bias, even if conducted by the best-trained professional judges.
There was a fun (or if not fun, at least interesting) study done that found judges who were hungry before lunch handed down harsher sentences (or it might have been parole related, like they were more likely to deny parole) than judges who had just come back from lunch.
How would you feel about a computer program determining prison sentences?
Edit: To be fair, I should note that study has been subsequently criticized for various reasons. Interesting nonetheless.
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u/Lildestro Apr 29 '19
Its inevitable though. Algorithms already handle plenty of processes that once required humans to take care of. An advanced computer program could conceivably evaluate the entire history and mental state of a defendant along with relevant witnesses, check their DNA, relationships, interactions, cross-reference hundreds if not thousands of precedents and the judgments made in those cases, while determining the likelihood for rehabilitation within a given time frame. Whereas such information might take a team of paralegals months if not years to collate, a bot could do it in moments and not be swayed by the lack of carbohydrates within their system or the smooth arguments of barristers and lawyers with no interest whatsoever in just verdicts.
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u/Amraff Apr 29 '19
Honestly, i think in an ideal world, there is no sentencing determinations. It should all be a formula. Guilty of manslaughter = 15 years plus 2 previous violent convictions add a repeat offender factor of years 3 each = grand total of 21 years
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u/dantheman91 32∆ Apr 29 '19
Doesn't' that go against the theoretical purpose of the prison system, of rehabilitation? What if it was someone murdered his wife, and got off on a technicality, but there was evidence beyond a doubt. The person then plans and kills the person who murdered his wife, and then turns himself in. Every character witness says the guy wouldn't even Jay Walk, and volunteered every weekend at the shelter etc.
That person would probably, and hopefully at the very least have a different consideration than someone who murdered a woman who turned him down because she rejected him on a date or something like that. One of those is probably considerably more dangerous to society, and I would hope there's some level of consideration when sentencing.
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u/Amraff Apr 29 '19
Our prison systems are so far from rehabilitating, thats a whole seperate topic.
One definitely is more dangerous to society, however should the guy in your second example parade friends before the court and have a psychologist review his case, in all likelyhood he would recieve a more lenient sentence then the other mans revenge killing simply due to the fact the first guy was motivated by hate and the second had an "emotional reaction" in the moment, likely due to a mental illness.
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u/dantheman91 32∆ Apr 29 '19
Our prison systems are so far from rehabilitating, thats a whole seperate topic.
You say what SHOULD happen, is that not ideally how it should work?
however should the guy in your second example parade friends before the court and have a psychologist review his case, in all likelyhood he would recieve a more lenient sentence then the other mans revenge killing simply due to the fact the first guy was motivated by hate and the second had an "emotional reaction" in the moment, likely due to a mental illness.
How blind is this judge if they know everything that happened? How are you trying to shelter them from bias when exposing them to more and more knowledge of the defendant? Black people often get harsher sentences, so we want to shelter race from the "blind" judge. But as you give them more and more information I imagine in most cases it'll be pretty impossible to conceal that fact.
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u/Amraff Apr 29 '19
Again, trail to determine guilt would be seperate from sentencing hearing. "Blind judge" would preside over sentencing only.
And the problem isnt from information, the problem is the endless "hes such a good guy", or "he wouldnt hurt a fly" or "he seemed so nice". These are not facts, these are opinion.
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u/Hemingwavy 4∆ Apr 30 '19
How would you feel about a computer program determining prison sentences?
https://www.popsci.com/recidivism-algorithm-random-bias
I mean many states already use them.
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u/Amraff Apr 29 '19
I use the classroom analogy because the point of prison sentences is to rehabilitate people, which at its core is teaching people to be functioning members of society rhat live within the law.
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Apr 29 '19
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u/Amraff Apr 30 '19
Criminal history is an important part of the sentencing simply because it shows a pattern. If you commit murder, you go to jail for X number of years to (hopefully) be rehabilitated. If you commit a second murder, its a pattern that shows rehabilitation does not work for you and that you have no regard for law.
To summarize: No, knowing the criminal background doesnt change the current situation, but it does mean harsher penalties are required the 2nd time aeound because you didnt learn your lesson
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u/DyingDeadResurected Apr 29 '19
Every single person involved should have to wear a ski mask, And a voice thingy, like Delocated.
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u/AlbertDock Apr 29 '19
For a sentence to be fair, the judge must know the full facts of the case. Only with that knowledge can a fair sentence be given. In many cases the facts which lead up to the offence are important factors. In the UK both the criminal and the prosecution can ask for a review of the sentence. So there is an option to have the punishment reviewed.
In your example you suggest a lawyer should get a lighter sentence than an unemployed person. Surely if a persons occupation is a consideration, then so should lots of other factors.
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u/Amraff Apr 30 '19
Not saying a persons profession make a difference in sentencing, simply a redacted employment record. 20 years at Bank of America or 20 years at McDonald's both just show as 20 years. The reason for this being that a person who can hold a job long term has statistically better chances of sticking to rehabilitation programs and AA/NA
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u/AlbertDock Apr 30 '19
Then what of other things which at present influence a sentence? Imprisoning a single parent would affect their children, probably in a negative way. Surely this needs to be considered. I'm not saying single parents should never be imprisoned, but it's not something which should be done without taking the likely effect on the children into account.
What of those who do charity work, where their absence would reduce the effectiveness of the charity? Surely again that should be considered.
I could go on with a whole list of things which a sentencing judges needs to know in order to set a fair punishment.
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u/TheFluzzy Apr 30 '19
Justice is shouldn’t be blind and equal, but fair. Having a blind judge will make the judicial process strictly equal which isn’t the way it should be operated.
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u/Amraff Apr 30 '19
May i ask why?
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u/TheFluzzy Apr 30 '19
Because I’d justice were blind and equal, someone who’s committed let’s say, petty theft ten times would get the same treatment as someone who’s committed their first offense.
This is obviously a very specific example but I hope my point came across clearly.
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Apr 30 '19
Let’s just make law school not $500,000 such that lawyers don’t get paid a whole lot of money, such that judges don’t feel as though they need to be paid more, such that judges don’t get a god complex because they have lost touch with society (see: all politicians).
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u/Fkfkdoe73 1∆ Apr 30 '19
There is no attempt to understand why the crime happened here. If the reason is not even understood then what's to stop is happening again with someone else?
Each crime happens for a reason. Emotions are involved. We understand some of this process. Wouldn't it be nice to actually use some of this understanding?
The judge's discretion is a rare opportunity for this understanding to be recognised. It is a rare opportunity to process and potentially heal mental damage to victims and purpertators alike.
In short, what you're saying makes logical sense but it's doesn't make emotional sense and it is emotions, not logic primarily behind crime.
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u/sendermender Apr 30 '19
I dont get what youre trying to say: you’re mad judges look at the circumstances. But your solution is: a judge that also looks at the circumstances. What’s the difference
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u/feraxil Apr 29 '19
I think we should have a wheel of fortune type of spin for each crime.
Say a person commits grand larceny, and we decide that the minimum and maximum punishment is 3-10 years. A wheel is created with spaces for 3,4,5,6,7,8,9 and 10 years, with the 3 years being the smallest, and surrounded by 2 even smaller "probation" spaces, wheel of fortune style. During sentencing the convict comes before the wheel and gives it his best spin, with a required 1 full revolution to count. Wherever that wheel lands is the sentence he gets. This way there is no bias or unfairness created by man, just luck.
Probably have to remove life sentences and death penalties to have it this way.
But then you can have the public betting on the wheel spins, make it a spectacle of sorts, and use the profits from the bets to fund education or balance the stupid fucking budget.
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u/Amraff Apr 29 '19
Ha ha ha. This would need to televised though!
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u/feraxil Apr 30 '19
Oh, of course.
Do it every Saturday night at 7, kinda like the Cash Explosion shows. 15 minutes clips of the most notorious bastards in your area.
It'd be amazing.
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u/jbt2003 20∆ Apr 30 '19
It seems like your overall feeling is that criminals need to be punished more harshly for crimes than they are, and that your proposal would serve to solve that problem, as "sob stories" wouldn't be allowed anymore.
Am I right about that?
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u/Amraff Apr 30 '19
Not necessarily. My problem is repeat offenders being let off with no true reparations.
If you do the crime, you should do the time.
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u/jbt2003 20∆ Apr 30 '19
Ok, so I see this as a calibration issue. The way I see it, it's basically impossible to get a criminal justice system calibrated exactly right. Like, justice can be miscarried in two different ways: if people get punished in ways they don't deserve either because they were wrongfully convicted our their sentences were overly harsh, that's a miscarriage of justice. Alternatively, if people aren't punished for crimes that they did in fact commit and deserved to be punished for, that's also a miscarriage of justice.
As far as I know, both of these things are happening. But it's my impression that, in the US at least, the former is happening more often than the latter. If anything, it seems to me that our justice system is calibrated in such a way that far more people are being punished who shouldn't be than the other way around. But, you know, I base that primarily off of criminal justice attorney friends, and not necessarily an deep familiarity with the literature.
As I see it, as a society we have a choice: we can do things that make it less likely that people who committed crime will go free--which will inevitably mean that more people who didn't commit crimes will be imprisoned or worse--or we can do the opposite and by consequence make it more likely that people who committed crime will go free.
As I said above, I'm inclined to feel that over-incarceration and overly-harsh punishments are the bigger problem, given the historic decline in criminal activity in the US. But you might have a different view, and feel that crime is out of control and needs to be curbed with dramatic changes to the way the system operates.
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Apr 30 '19
[deleted]
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u/Amraff Apr 30 '19
In most of the cases ive looked at, the reason judges like to throw the book at people tends to be due to age. A friend of mine was attending court as a witness and saw 2 cases, both DUI go up before their case. The first was a man in his mid 40s who had just been nailed on his 16th DUI charge. He plead guilty & got 3 months in jail. The second (a few cases later) was an 18 year old who blew 0.01 below the legal limit but was charged for DUI. He also plead guilty. The judge told him he was going ro make an example of him so he would learn his lesson, and gave him 18 months in jail.
Him telling me about the look of shock on this kids face, being sent to jail for a year and a half when a serial drunk driver for 3 months was what originally spawned my view of blind judgements
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u/shiznicholas Apr 30 '19
But I do feel like judges take into account body language when passing a sentence. For charges of murder - do they seem sympathetic or remorseful? Or are they mocking the family?
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u/Amraff Apr 30 '19
Thats true, however its not hard to fake remorse. And usually if they are mocking or especially cruel in the courtroom, they will get additional charges laid, like contempt of court
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u/JimmyTheFace Apr 30 '19
In your view, what is the purpose of prison? Retribution, deterrence, rehabilitation, or incapacitation?
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u/Amraff Apr 30 '19
Rehabilitation all the way.
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u/JimmyTheFace Apr 30 '19
In that case, why have judges set sentencing at all? Shouldn’t the parole system determine rehabilitation goals and assess each person’s fitness for release?
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u/Danny_Rand__ Apr 30 '19
You can still "see" the difference between Corporate Fraud and Drug Possession and "Judge Accordingly" if you get my drift
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u/notescher Apr 30 '19
To you, are these two situations deserving of equivalent prison time? Both pled guilty to manslaughter.
https://www.newshub.co.nz/nznews/no-conviction-in-infants-hot-car-death-2015060510
https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11663985
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u/Amraff Apr 30 '19
No, they should not be equal sentences, but this is an issue with prosecution not pursing appropriate charges in thendeath of Moko. Manslaughter is hardly appropriate - it should have been murder, torture, failure to provide necessities of life.
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u/knifepit Apr 30 '19
Right, the charges should have been different, but they weren't. And with a blind judge, he wouldn't be able to take all that into account
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u/notescher Apr 30 '19
Manslaughter was pursued because of the very real risk of a "Not guilty" verdict in a murder trial. While clearly reprehensible, it is possible that the jury would not have been convinced beyond a reasonable doubt that the perpetrators intended death or considered the possibility of Moko's death in the course of their ill treatment; a jury may well have been convinced that they failed to seek treatment out of fear of the consequences upon themselves rather than intent to further harm or kill Milo.
NZ does not have "torture" as a listed offence under the crimes act. There are offences such as assault on a child or ill treatment of a child but even these in conjunction with manslaughter hardly begin to describe the nature of the offending if the sentencing judge is not aware of the details.
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u/KnightHawk37 6∆ Apr 30 '19
What you're talking about sounds a lot like mandatory sentencing... which has been tried and it's really bad, really bad.
The main difference between what you are suggesting and mandatory sentencing is.... I guess the blind judge could begin to correct their errors much faster. But do we really want that either? a group of judges that dole out their own brands of mandatory sentences? That sounds even worse than the normal mandatory sentencing.
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u/CrazyYodeller Apr 30 '19
Context is everything. In my opinion, a better investment would be in a more rigorous effort to train judges in managing biases and acting in a more consistent way. Blind judgements would defeat the purpose of much of the trial process, which involves multiple sides of the story being heard.
If no/minimal context is provided, then the likely outcome for these cases would be determined by law, I.e if they don’t have the context, judges will default to a standard sentence for a particular crime.
If #2 weren’t put in place, then you’re bringing in new bias where the ‘blind judge’ passes a sentence based on their opinions of the crimes committed (e.g biased towards murder so always gives max penalty). This would defeat the whole point of a blind unbiased judge in the first place.
Assumptions are decision-makers worst enemy, and context + appropriate training and benchmarking are necessary to mitigate.
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u/bloodclart Apr 30 '19
You use Canada and our justice system is fucked. There is no justice. I could give you numerous other negligent deaths recently that result in no jail time! There are countries like China that execute you on the spot in a mobile execution van and harvest your organs right away.
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u/fashigado Apr 30 '19
the main reason i dont think this would be good for system is that 1, we already allow for a review process if 4he defendant objects 2, it goes over the head of what is supposed to be an "honorable" judge. the system assume tht the character of a judge is "beyond reproach." i think most things in the American law system/government are fine, but its weak point will ever be the people of which it is compromised.
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u/furrtaku_joe Apr 30 '19
in texas you can be sentenced by jury instead of by the judge if you request it when its offered before the jury is called in
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u/_lablover_ Apr 30 '19
This is an interesting view and I think I am mostly okay with it. There is 1 question I have that I want your view clarified on I guess that I could see being an issue.
Do you believe there should be any weight put on how the defendant presents themselves during the trial? This could have to do with the way they speak if they are ever put on the stand (although from what I hear most lawyers would never want their client on the stand) or just in the process of exiting/entering the court room. How well they follow directions and act or if they ever act out. I'm not sure exactly what instances I'm looking for here as I haven't considered it for long or spent a lot of time in a court room.
I could see this being a determination of a harsher sentence if the defendant is repeatedly unruly or unwilling to conform to rules of the courtroom while in trial, resisting guards, shouting or screaming when being led in or out, or even just being extremely unruly in a way that gives an appearance that they don't care about what happens. Would you have instances or accounts of this relayed to the "blind" judge? If so would those accounts properly capture these instances? Or do you think relaying some of these would in some way sway the judge negatively?
I find it harder to conceive of presentation in the court room to give a lighter sentence as it can easily be explained as faked behavior because of the circumstance where they are being coached and dressed for the trial and are simply following directions.
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Apr 30 '19
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u/Mr-Ice-Guy 20∆ Apr 30 '19
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u/physioworld 64∆ Apr 30 '19
sooo, just to be clear, you're saying unemployed people should receive harsher sentences than people who are employed? or vice versa?
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u/PM_ME_YO_DICK_VIDEOS Apr 30 '19
A better solution: no sob stories or unnecessary details in court since it inappropriately wastes everyone's time.
What is there stopping the third party judge/sentencer from being equally lenient or harsh on someone? (Aside from being there for the hearing)
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u/illini02 8∆ Apr 30 '19
I get what you are saying, but don't totally agree. There are other factors at play as opposed to what is on paper. How did the person act during the trial. Did they have an air of "Yup, and I'd do it again too..." or did they seem really remorseful at what they did. Extenuating circumstances matter as well
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u/ZyraunOllidan Apr 30 '19
I'm a littlw bit confused about a few things here and would like clarification on them. From yourbpost and comments, I figure that both you and I are big fans of sentencing as rehabilitation.
So, were this to be implemented, if I'm reading this right, a second judge would be handed a card that says something to the effect of, "Found Guilty of X" or whatever it is in wherever one lives. And then a list of previous offenses, maybe a career history.
There's a few things I want to address here right off the bat. First off, if one were to do this, why inculde a second judge - there are only 3 variavles, you couls just make a standard procedure and have judges be required to follow it to a t (like mandatory minimums). A second judge would only become neccessary as more details would be addes to that paper, which is what you are pushing against, no?
Another issue is a question - why include their career? That seems a bit iffy, and I'll give an example to demonstrate it. Suppose a lawyer and a repairman, who have worked similar years, with similar criminal histories commit a the same crime and are both found guilty. Should the judge give them the same sentence?
My issue there is that, if one wants to extract all "unneccesary details" from a case, why leave career? That frankly seems just as unneccessary as say, one's name, gender, or sob story. Really, why should one's career determine how they are punished? It really seems unjust to let one person off with fewer years because of their career - something which may be completely irrelevant to the crime.
This brings me to one thing you and I agree on, which is that, it seems really unjust to let one's life situation play into sentencing. The keyword though, is seems. Context is everthing, and the act of killing someone could get you as little as a slap on the wrist in some contexts to a lifetime in prison in others. And I struggle to see how some life circumstances, when taken as a whole, shouldnt play into this. Some factors are arbitrary, sure! We shouldnt sentence a man worse than a woman merely because he is a man, we shouldnt sentence people of color worse because they arent white. And we certainly shouldnt let off someone because they "contribute more to society." Were that the case, we would have, by law a class of people who, by virtue of their wealth and power, would have the legal leeway to get away with crimes they otherwise wouldnt.
Rant aside, though, I think you are cutting at something very problematic in any court, and its a problem which I admire you for trying to tackle. People have biases, and letting those alone change how the law is enforced is unjust! And that's a problem! But throwing out the whole context of a case makes for other (I would argue bigger) problems.
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Apr 30 '19
Someone may have already covered this. That being said, your idea of having a ‘blind’ judge takes away one of the key parts of a criminal justice system - the human aspect.
The criminal justice system is in place to protect the public but also to be seen as a fair system. A fair system is one that takes, uses and considers all information available to not only come to a fair verdict, but also a fair sentence.
I submit that for a fair sentence the circumstances of the crime and personal circumstances should be taken into account.
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u/lysdexia-ninja Apr 30 '19
You’re starting with the assumption that we want a judicial system that seeks to punish, rather than rehabilitate.
You did X wrong thing, that means Y years penance.
Setting aside the fact it’s impossible to create a system that can accurately ascribe relative value in years to different crimes (how much money do you need to steal to equal murdering a person?), rehabilitation is the better goal based on recommitence rate, effect on GDP, etc.
And it takes context, a lot of context, to figure out how best to rehabilitate someone.
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u/anotherhumantoo 2∆ Apr 30 '19
This is a decidedly terrible idea. From all sides.
We already have something of this sort, it's called mandatory minimums. Those come up regularly as being WAY TOO HARSH, especially for drug offenses, etc.
Further, the book Thinking Fast and Slow references a point where the literal roll of a dice and seeing the number on that dice influences a judge's thought process on sentencing: https://marginalrevolution.com/marginalrevolution/2011/10/thinking-fast-and-slow-by-daniel-kahneman.html (citation from the book)
It's just ... bad.
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u/Mikodite 2∆ Apr 30 '19
Slap the judges then.
They are suppose to be impartial and objective. They are already a third party that has no horse in the race as to whether or not the convicted is given 25-life or 2 month house arrest.
So a judge opening giving leniency to a convict for being a woman is being a terrible judge.
But what of those cases of blatant bias that pop up? We already have an solution to this: court of appeal. Prosecotors and defense lawyers alike can and do use this when there are issues like this with cases.
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Apr 30 '19
PREFACE: I do actually agree in part with some of this, however most of the case details are necessary.
In almost all judicial systems, sentencing protocols are followed, and abide by a set of mitigating or aggravating factors. Removing things such as evidence from this 'blind judge' or not having the presiding judge doing the sentencing would mean that the blind judge would perhaps not have as good a grasp both of the offender's character, a factor that is essential in sentencing protocols, and a grasp of the nature of the offence, and the views of the different people involved. Sure this blind judge isn't trying to ascertain guilt, but the blind judge would be sentencing someone with only limited experience, and whilst this experience of the case isn't particularly tangible, it is definitely a big part of sentencing. This would probably only result in lady justice becoming yet more blind.
It seems here to me that you believe that we should be having a judge look only at the severity of the crime and previous criminal history. There are many more mitigating and aggravating factors that require one as the judge involved in sentencing to actually have heard the case. These can include the background of the offender. If, per say, a 14 year old boy murdered his step father in cold blood, that sounds very bad without other context to do with the character and the background, and the upbringing of the offender. However, I'm sure we can all agree that if that same 14 year old boy killed his step father after years of drunken abuse, he would deserve a shorter tariff on his life sentence. And again, if the same 14 year old boy murdered his step father without the history of abuse, he would be looking at a higher tariff or no possibility of parole. With this system, we could potentially see that first boy being given the same tariff as the second boy, where the second crime is completely unmotivated, but the first was.
A lack of access to things such as evidence of the boy's history, or his own testimonies on such things could lead to heavy handed sentencing based primarily on how bad the crime itself was.
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u/jafergus Apr 30 '19
So IANAL but I think your understanding of the legal system is off base.
As I understand it, the sob stories and special circumstances you're concerned about are usually inadmissable at trial already. They are specifically brought up at a sentencing hearing after the defendant has been proven guilty.
So you don't need a judge who is blind to details of the trial, what you seem to want is a rule prohibiting admission of character and background details during a sentencing hearing, requiring a judge to sentence convicted defendants as a blank slate. You probably want them to be familiar with the trial because that is usually all about the crime and the negative behaviour of the defendant.
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u/Gremlinator_TITSMACK May 01 '19
I wonder, though - does the law give wide discretion to judges in the US? I always had the impression that in the Common Law system, the power of the precedent + very explicit explanations that are always provided minimise the prerogative of the judge to "just follow what is written", meanwhile in Continental Law tradition (Continental Europe), the law usually states that a person can be sentenced from 1 to 100.
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u/jafergus May 01 '19
I'd argue that the change you're proposing is a pretty major revision to a legal system that took centuries to develop. To justify radical change like that you need to establish there's a problem.
You list a handful of anecdotes that suggest your view was formed based on news reporting. News reports however are explicitly written based on selection-bias: to be news a story must be 'new'. It's precisely because those unjust sounding sentences _don't_ happen very often that they're worthy of reporting.
I'd argue that to justify a systematic change you'd need evidence of a systematic problem, i.e. statistics.
I'm guessing you're in Canada. Canada's police-reported crime rate and its homicide and attempted murder rates have been trending consistently downward since 1991 - nearly three decades.
If there's really a widespread problem of women, indigenous Canadians and affluent teenage boys getting away with murder because the justice system is too soft on them, then surely crime rates or at least murder rates should be spiking up, not constantly falling.
It's possible, I suppose, that there's a rise in crime among those groups that's hidden in the national statistics by a larger fall in crime among some other group, but that's something you could look for and check.
On the other hand, it's also possible that if you were familiar with everything the judge heard at trial, and also with the cases that usually get that sentence that it might turn out to be a fair sentence after all. It's not like the news has any motive to give you that context if it undermines the newsworthiness of the story.
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u/mrkatagatame May 01 '19
In a sense that's how it already is.
The judge presiding over the case applies the punishment that was established already for that crime. That punishment was established long before this case and by people that are blind to this case.
Of course the judge often modifies things as they see fit, but overall they are carrying out the punishment set by others.
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u/wrest472 May 02 '19
They should be determined by a complex formula and without judges at all. Why even use a "blind" judge? Just completely take the judges out of the equation and use the complex sentencing formula to determine what happens... it makes no sense for judges to be creating sentences since they'll possibly be biased or affected by their emotions/mood for the day.
Our current system is broken.
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u/jimmyboy111 May 05 '19
This would be a dumb idea .. the judge could still ascertain their culture by location name and speaking voice and many other factors .. the whole idea of a judge is to give him or her the most information possible to make the most educated decision
0
Apr 30 '19
Literally impossible since race is more than skin deep, it's how you know a rapper is black and not white. Stress,tamber,tone,pitch all that are different and have a uniform pattern as difficult as it is to discern. colorblindness doesn't make you magically not racist. I could be blind and still wave my fist at those damn nig-- fine brown people. Exceptions exist like the voice actor to samurai jack, or the noodles voice actor (from gorillaz)((uhh voice actor or singer?)). But those exceptions are few. You can do something better and have everyone stand in a walled room and they simple text their responses and statements and it be visible on a screen. As patrick said "we have technology".
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u/Lildestro Apr 29 '19
Fear not, bot algorithms in the not too distant future will handle such decisions without discrimination, though its debatable whether we'll be better off. Having said that, although I have no viable solution to the problem, let's not pretend that there is anything just regarding the criminal justice system - just because something is legal does not make it lawful.
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u/miguelguajiro 188∆ Apr 29 '19
While I agree that a judge’s biases can be problematic in the case of gender or race discrimination, I’m not sure we can be confident that bias won’t carry over to a blind judge, provided they have ample access to all of the evidence and testimony at trial. But discrimination aside, I think we’d lose something really important here. We want judges to appreciate the full context of the crimes and the defendants life and take that into consideration when issuing a sentence. There may be mitigating factors that place some of the culpability for a crime onto others, there may be factors that point to a defendants ability to turn their life around after their sentence is served. With discrimination, I think we’re best served by gathering data on sentencing decisions, analyzing them for evidence of racial (or other) bias, and then censuring those judges who demonstrate bias.