Suppose that Alice and Yelena, on opposite ends of town, drive home drunk from >the bar, and both dazedly speed through a red light, unaware of their surroundings. >Yelena gets through nonetheless, but Alice hits a young pedestrian, killing him >instantly. Alice is liable to be tried for manslaughter or some similar charge; >Yelena, if she is caught, will only receive the drunk driving charge and lose her >license.
This is a fairly classic problem, well-presented. There’s a credible argument to be made for treating them the same, but I don’t think it’s a utilitarian argument.
For these purposes, we can assume that the driving was within normal DUI parameters. The situation gets much easier for people going the wrong way on the freeway, or going 115 on surface streets; they’re murderers. It’s also easy to justify very, very long sentences for very bad driving that kills.
So, the question is why this is treated this way, for which we have an answer:
The law needs to crack down harder when there are actual victims, in order to >provide the victims and families a sense of justice done.
Yep, that. There’s been more harm done.
This is understandable, but surely if we accept this argument, we could >nonetheless satisfy the concerns above by punishing the morally lucky more >severely, not punishing the morally unlucky less severely.
This could result in far too many serious, high-level trials.
This might be true as far as it goes; however, enforcing strong sentences on the >morally lucky would certainly provide a stronger deterrent, which would provide a >countervailing tendency to the above.
Sure, prison time (as opposed to jail time) for every person who gets a DUI would be a deterrent. But it’s not a good use of societal resources. You’re putting teachable people in prison, useful people. And you don’t have the gain of victims’ families coming in exchange for that.
There’s real utility in having some sense of justice to the family, friends, and community when people are extinguished.
I’d further note that the driving matters for sentencing. If you’re at a .10% BA (and you shouldn’t be; for a 170-pound guy, that’s five or six beers in an hour) and you change lanes without looking and spin out the car next to yours, killing the driver, you can expect things to go better than if you’re at a .22% and run a light in a school zone at 80 and kill someone.
The sentencing will be far less—but still different—in those situations if you don’t hit and injure anyone; the first guy gets pulled over with no collision, and in my jurisdiction, he’ll get 2 days jail (fake jail—plenty of ways to avoid) and fines and fees of a little over $2K. The second driving pattern is going to get you 90 days in jail, at least. (Recidivists get more.)
Let me add another another wrinkle: Megan, at the same bar with Alice and Yelena, drives perpendicular to the two and hits another pedestrian. Alice’s victim’s family want Alice to be incarcerated forever, while Megan’s victim’s family wants her to get off with a warning, and none-too-stern a warning at that. I think this should matter some, though Megan’s got to do some significant time, and Alice isn’t going to get incarcerated forever.
On the jury issue, I’m not sure there’s a better way, but the only ways I know from experience are judges and juries. Juries are not suckers; the joining of 12 is often better than one really smart person. The jury system works pretty well; I’ve been burned (on a couple of occasions severely) by jurors wandering off the reservation, but for the most part, juries do a very good job. Judges usually do a good job, too.
Some LW’ers would doubtless make excellent jurors, but some would not; Judge Judy Sheindlin gets most of her cases right because she reads people well and she has a long history of hearing the same lies, which she catches very quickly. Lack of socialization skills may lead to trouble as a juror. Some of the proposals on this thread would lead to substantially less accurate verdicts; not everyone is going to get excited about math.
The problem with leaving it with the pros is that some degree of corruption would be inevitable. There would be more efforts to go toward particular fact-finders. (The somewhat parallel efforts to screen juries with challenges of various sorts are different—jurors aren’t well-known to the parties—and are, IMO, a very good idea; people who criticize peremptory challenges are seldom people intimately familiar with the system.)
The current system works surprisingly well; outlier-bad results get a lot more press than the many good result. Remember, the McMartins were acquitted and Scott Peterson got convicted.
That’s not to say bad results don’t occur, and certainly not to say that questing for improvements—even, or perhaps especially, marginal, incremental improvements—isn’t a very good thing.
Finally, one statement you make, “the evidence against Truscott being entirely circumstantial,” implying that such evidence must therefore be weak, is mistaken as a matter of logic. Circumstantial evidence can be far more devastating than direct eyewitness evidence. I’ve prosecuted plenty of circumstantial evidence cases (one of which got some national press), and if you think about it, you’ll see that such evidence can be crushing. Fingerprints are circumstantial evidence. Standing in a pool of blood with the victim at your feet and a gun in your hand is going to cause people to think you shot the victim. And rightly so.
And if you’re lying about things, people are going to suspect of doing so for a reason. And rightly so.
[I speak for me. I’m a prosecutor, but I don’t speak for my office.]
There’s a credible argument to be made for treating them the same, but I don’t think it’s a utilitarian argument.
Is it the same argument which is implicitly contained in the OP, e.i. “dangerous behaviour should be punished and circumstances which the perpetrator can’t know in advance should make no difference”?
Problem with this is that it is extremely difficult to measure the inherent danger of the behaviour. What is the probability of killing somebody when driving drunk? How to test it? Even if the killer was tested on his ability of safe drunk driving, he could defend himself that the conditions weren’t the same, as he couldn’t help himself from thinking about the punishment during the tests, which made him nervous and impaired his abilities.
Alice’s victim’s family want Alice to be incarcerated forever, while Megan’s victim’s family wants her to get off with a warning, and none-too-stern a warning at that. I think this should matter some, though Megan’s got to do some significant time, and Alice isn’t going to get incarcerated forever.
This I can hardly swallow, even after the utilitarian justification. Somehow it desn’t feel fair. What I find most disturbing that under such law, revengeful people are more protected.
What I find most disturbing that under such law, revengeful people are more protected.
It’s also optimal for people who profess to be non-vengeful, since the government’s vengeance is now fully deniable. So, we should expect that at least some of the people who claim to be less vengeful are actually just pretending.… which means it might not be as bad as it seems.
I don’t understand. The less vengeful you are the safer is for criminals to attack you and the easier you become a victim. That is, if the punisment takes into acount the wishes of the victim.
The less vengeful you are the safer is for criminals to attack you and the easier you become a victim.
Which is why it’s only safe to signal less vengeance if you have somebody else out of your direct control who’s going to do the avenging for you. ;-) It’s, “gosh, I’m full of forgiveness and love the sinner, hate the sin, but there’s nothing I can do to stop the government from locking you away.”
In fact, it’s even better than signaling vengefulness, in a way: you are not required to be individually credible in your threats of revenge. So a default-vengeful government allows even the not-very-threatening to have safety. (In that context, being forgiving may well be countersignaling: “I’m so high-status that I don’t have to pursue individual vengeance.”)
It’s, “gosh, I’m full of forgiveness and love the sinner, hate the sin, but there’s nothing I can do to stop the government from locking you away.”
In fact, it’s even better than signaling vengefulness, in a way: you are not required to be individually credible in your threats of revenge.
Eh, with the exception of homicide, the government still needs significant cooperation and initiative from you before they will follow through on avenging. So it really doesn’t allow you to put up the act of, “oh, I’d like to forgive, but I can’t stop them …”
That’s not always true; for instance, victims of domestic violence frequently refuse to cooperate, and police and prosecution agencies will still try to convict if possible (though doing so is often difficult without cooperation).
I think that’s backwards. US police are much less likely to prosecute domestic violence without the cooperation of the victim, compared to other crimes. But there are fairly recent laws in some jurisdictions requiring them to prosecute without cooperation.
The victim still has to make the complaint, and cooperate with the police that one time. Even for this crime, it’s notable how much you have to do on your part to “get the avenger in action”.
Yes, they often withdraw cooperation later, but the victim still can’t use the excuse of “hey, I can’t stop them”, at least not right after being abused. If you don’t want the abuser to suffer, just don’t report it to the police. You certainly had choice about whether you reported it to them.
I don’t know if there are statistics on these things, but I’d imagine that some of the time, a neighbor or someone nearby who hears or sees the crime is the one to report the crime to the police. Still, you’re right; it’s certainly less likely that the crime will be prosecuted if the victim doesn’t cooperate.
I don’t know if there are statistics on these things, but I’d imagine that some of the time, a neighbor or someone nearby who hears or sees the crime is the one to report the crime to the police. Still, you’re right; it’s certainly less likely that the crime will be prosecuted if the victim doesn’t cooperate.
I don’t know if there are statistics on these things, but I’d imagine that some of the time, a neighbor or someone nearby who hears or sees the crime is the one to report the crime to the police. Still, you’re right; it’s certainly less likely that the crime will be prosecuted if the victim doesn’t cooperate.
I don’t know if there are statistics on these things, but I’d imagine that some of the time, a neighbor or someone nearby who hears or sees the crime is the one to report the crime to the police. Still, you’re right; it’s certainly less likely that the crime will be prosecuted if the victim doesn’t cooperate.
I smell some misunderstanding here. I have said that I disagree with the principle that the victims could partly decide the severity of the punishment, because the vengeful are better protected. When you had reacted
It’s also optimal for people who profess to be non-vengeful, since the government’s vengeance is now fully deniable.
by “it” you had meant what? This system, where the victims are directly responsible for a part of the punishment, or the opposite, where only the government decides?
Agree. Vengeance is essentially the carrying out of an implied threat. Combined with credible signaling this is exactly what a rational agent can be expected to do.
No one in this thread seems to consider the idea that less vengeful people actually gain utility in this system by way of less vengeance.
I don’t mean to say that this is a strong argument—I’m not a very vengeful person but I’m certainly only willing to put up with a very small chance of being murdered compared to how strongly I hold that conviction—just that I feel that the “perverse” (if you like people who are less vengeful!) incentives should be weighted against satisfying people’s preferences.
I have considered this, but I have spoken about protection, not utility. Some people may prefer less revenge, but somehow I think we need social mechanisms which prevent the criminals from abusing this situation.
To illustrate my intuition, imagine a situation where a thief breaks into a house and steals an equivalent of 100€ (it is the thief’s first crime). Afterwards he is caught and is tried. Now, the house owner at the trial testifies that he we cannot afford having such dangerous thiefs roaming around, that the amount was low but once you are a thief you are forever a thief and in the future there will be much more money stolen, and so that he wants the thief to be imprisoned forever. Such attitude makes me sympathise with the thief and I really don’t want the victim’s preferences even partially satisfied. I don’t want to support unreasonable vengefulness.
Sure but adding on or subtracting say 10% from the sentence would make both a more vengeful and less vengeful victim feel empowered and somewhat satisfy their preferences without leaving too much room for those sorts of abuses.
I hope it didn’t sound like I was endorsing the idea that a victim should fully decide punishment. For example, the Athenian idea seems much better than that, but also a more structured approach like asking for a marginally increased or decreased penalty seems attractive to me.
Speaking about abuses, I would expect that in practice the division line between victims suggesting high penalties and those suggesting low penalties would separate the brave from the cowards, rather than the vengeful from the merciful. Thoughts about the criminal waiting in front of my home with words “you swine, you made me spend two more years in jail” aren’t for the faint-hearted.
You could somewhat mitigate that by shifting police forces automatically around prison releases and/or by creating stiff penalties for such vengeance, but I can see your point.
This is a fairly classic problem, well-presented. There’s a credible argument to be made for treating them the same, but I don’t think it’s a utilitarian argument.
For these purposes, we can assume that the driving was within normal DUI parameters. The situation gets much easier for people going the wrong way on the freeway, or going 115 on surface streets; they’re murderers. It’s also easy to justify very, very long sentences for very bad driving that kills.
So, the question is why this is treated this way, for which we have an answer:
Yep, that. There’s been more harm done.
Sure, prison time (as opposed to jail time) for every person who gets a DUI would be a deterrent. But it’s not a good use of societal resources. You’re putting teachable people in prison, useful people. And you don’t have the gain of victims’ families coming in exchange for that.
There’s real utility in having some sense of justice to the family, friends, and community when people are extinguished.
I’d further note that the driving matters for sentencing. If you’re at a .10% BA (and you shouldn’t be; for a 170-pound guy, that’s five or six beers in an hour) and you change lanes without looking and spin out the car next to yours, killing the driver, you can expect things to go better than if you’re at a .22% and run a light in a school zone at 80 and kill someone.
The sentencing will be far less—but still different—in those situations if you don’t hit and injure anyone; the first guy gets pulled over with no collision, and in my jurisdiction, he’ll get 2 days jail (fake jail—plenty of ways to avoid) and fines and fees of a little over $2K. The second driving pattern is going to get you 90 days in jail, at least. (Recidivists get more.)
Let me add another another wrinkle: Megan, at the same bar with Alice and Yelena, drives perpendicular to the two and hits another pedestrian. Alice’s victim’s family want Alice to be incarcerated forever, while Megan’s victim’s family wants her to get off with a warning, and none-too-stern a warning at that. I think this should matter some, though Megan’s got to do some significant time, and Alice isn’t going to get incarcerated forever.
On the jury issue, I’m not sure there’s a better way, but the only ways I know from experience are judges and juries. Juries are not suckers; the joining of 12 is often better than one really smart person. The jury system works pretty well; I’ve been burned (on a couple of occasions severely) by jurors wandering off the reservation, but for the most part, juries do a very good job. Judges usually do a good job, too.
Some LW’ers would doubtless make excellent jurors, but some would not; Judge Judy Sheindlin gets most of her cases right because she reads people well and she has a long history of hearing the same lies, which she catches very quickly. Lack of socialization skills may lead to trouble as a juror. Some of the proposals on this thread would lead to substantially less accurate verdicts; not everyone is going to get excited about math.
The problem with leaving it with the pros is that some degree of corruption would be inevitable. There would be more efforts to go toward particular fact-finders. (The somewhat parallel efforts to screen juries with challenges of various sorts are different—jurors aren’t well-known to the parties—and are, IMO, a very good idea; people who criticize peremptory challenges are seldom people intimately familiar with the system.)
The current system works surprisingly well; outlier-bad results get a lot more press than the many good result. Remember, the McMartins were acquitted and Scott Peterson got convicted.
That’s not to say bad results don’t occur, and certainly not to say that questing for improvements—even, or perhaps especially, marginal, incremental improvements—isn’t a very good thing.
Finally, one statement you make, “the evidence against Truscott being entirely circumstantial,” implying that such evidence must therefore be weak, is mistaken as a matter of logic. Circumstantial evidence can be far more devastating than direct eyewitness evidence. I’ve prosecuted plenty of circumstantial evidence cases (one of which got some national press), and if you think about it, you’ll see that such evidence can be crushing. Fingerprints are circumstantial evidence. Standing in a pool of blood with the victim at your feet and a gun in your hand is going to cause people to think you shot the victim. And rightly so.
And if you’re lying about things, people are going to suspect of doing so for a reason. And rightly so.
[I speak for me. I’m a prosecutor, but I don’t speak for my office.]
Is it the same argument which is implicitly contained in the OP, e.i. “dangerous behaviour should be punished and circumstances which the perpetrator can’t know in advance should make no difference”?
Problem with this is that it is extremely difficult to measure the inherent danger of the behaviour. What is the probability of killing somebody when driving drunk? How to test it? Even if the killer was tested on his ability of safe drunk driving, he could defend himself that the conditions weren’t the same, as he couldn’t help himself from thinking about the punishment during the tests, which made him nervous and impaired his abilities.
This I can hardly swallow, even after the utilitarian justification. Somehow it desn’t feel fair. What I find most disturbing that under such law, revengeful people are more protected.
It’s also optimal for people who profess to be non-vengeful, since the government’s vengeance is now fully deniable. So, we should expect that at least some of the people who claim to be less vengeful are actually just pretending.… which means it might not be as bad as it seems.
I don’t understand. The less vengeful you are the safer is for criminals to attack you and the easier you become a victim. That is, if the punisment takes into acount the wishes of the victim.
Which is why it’s only safe to signal less vengeance if you have somebody else out of your direct control who’s going to do the avenging for you. ;-) It’s, “gosh, I’m full of forgiveness and love the sinner, hate the sin, but there’s nothing I can do to stop the government from locking you away.”
In fact, it’s even better than signaling vengefulness, in a way: you are not required to be individually credible in your threats of revenge. So a default-vengeful government allows even the not-very-threatening to have safety. (In that context, being forgiving may well be countersignaling: “I’m so high-status that I don’t have to pursue individual vengeance.”)
Eh, with the exception of homicide, the government still needs significant cooperation and initiative from you before they will follow through on avenging. So it really doesn’t allow you to put up the act of, “oh, I’d like to forgive, but I can’t stop them …”
That’s not always true; for instance, victims of domestic violence frequently refuse to cooperate, and police and prosecution agencies will still try to convict if possible (though doing so is often difficult without cooperation).
I think that’s backwards. US police are much less likely to prosecute domestic violence without the cooperation of the victim, compared to other crimes. But there are fairly recent laws in some jurisdictions requiring them to prosecute without cooperation.
The victim still has to make the complaint, and cooperate with the police that one time. Even for this crime, it’s notable how much you have to do on your part to “get the avenger in action”.
Yes, they often withdraw cooperation later, but the victim still can’t use the excuse of “hey, I can’t stop them”, at least not right after being abused. If you don’t want the abuser to suffer, just don’t report it to the police. You certainly had choice about whether you reported it to them.
I don’t know if there are statistics on these things, but I’d imagine that some of the time, a neighbor or someone nearby who hears or sees the crime is the one to report the crime to the police. Still, you’re right; it’s certainly less likely that the crime will be prosecuted if the victim doesn’t cooperate.
Those statistics show that the more people their are nearby who hear or see the crime the less likely it is that the crime will be reported.
I don’t know if there are statistics on these things, but I’d imagine that some of the time, a neighbor or someone nearby who hears or sees the crime is the one to report the crime to the police. Still, you’re right; it’s certainly less likely that the crime will be prosecuted if the victim doesn’t cooperate.
I don’t know if there are statistics on these things, but I’d imagine that some of the time, a neighbor or someone nearby who hears or sees the crime is the one to report the crime to the police. Still, you’re right; it’s certainly less likely that the crime will be prosecuted if the victim doesn’t cooperate.
I don’t know if there are statistics on these things, but I’d imagine that some of the time, a neighbor or someone nearby who hears or sees the crime is the one to report the crime to the police. Still, you’re right; it’s certainly less likely that the crime will be prosecuted if the victim doesn’t cooperate.
I smell some misunderstanding here. I have said that I disagree with the principle that the victims could partly decide the severity of the punishment, because the vengeful are better protected. When you had reacted
by “it” you had meant what? This system, where the victims are directly responsible for a part of the punishment, or the opposite, where only the government decides?
Agree. Vengeance is essentially the carrying out of an implied threat. Combined with credible signaling this is exactly what a rational agent can be expected to do.
No one in this thread seems to consider the idea that less vengeful people actually gain utility in this system by way of less vengeance.
I don’t mean to say that this is a strong argument—I’m not a very vengeful person but I’m certainly only willing to put up with a very small chance of being murdered compared to how strongly I hold that conviction—just that I feel that the “perverse” (if you like people who are less vengeful!) incentives should be weighted against satisfying people’s preferences.
I have considered this, but I have spoken about protection, not utility. Some people may prefer less revenge, but somehow I think we need social mechanisms which prevent the criminals from abusing this situation.
To illustrate my intuition, imagine a situation where a thief breaks into a house and steals an equivalent of 100€ (it is the thief’s first crime). Afterwards he is caught and is tried. Now, the house owner at the trial testifies that he we cannot afford having such dangerous thiefs roaming around, that the amount was low but once you are a thief you are forever a thief and in the future there will be much more money stolen, and so that he wants the thief to be imprisoned forever. Such attitude makes me sympathise with the thief and I really don’t want the victim’s preferences even partially satisfied. I don’t want to support unreasonable vengefulness.
Sure but adding on or subtracting say 10% from the sentence would make both a more vengeful and less vengeful victim feel empowered and somewhat satisfy their preferences without leaving too much room for those sorts of abuses.
I hope it didn’t sound like I was endorsing the idea that a victim should fully decide punishment. For example, the Athenian idea seems much better than that, but also a more structured approach like asking for a marginally increased or decreased penalty seems attractive to me.
Speaking about abuses, I would expect that in practice the division line between victims suggesting high penalties and those suggesting low penalties would separate the brave from the cowards, rather than the vengeful from the merciful. Thoughts about the criminal waiting in front of my home with words “you swine, you made me spend two more years in jail” aren’t for the faint-hearted.
You could somewhat mitigate that by shifting police forces automatically around prison releases and/or by creating stiff penalties for such vengeance, but I can see your point.