I don’t know what the fuck all that social contract stuff is about but we are talking about the “moral duty” of the defendant, not the duty of the state.
This is in no way a response to the point Chihuahua was making, which is about the moral duty of a wrong doer, irrespective of the law.
That’s what I’m talking about. Participation in a society requires that the member adhere to the obligations that come with that. A person cannot participate in society, thereby enjoying the benefits that come from effective law enforcement, but expect that they (uniquely and individually) be exempt from participating in the process. That is, essentially, to claim that everyone else should be subject to the law except oneself, and that makes one a parasite.
A criminal has no right to keep their crime a secret, since they have caused injury to someone else with their transgression. Therefore, they have a moral duty to confess their guilt. Not a legal duty, mind you, for the reasons I have already explained.
I suggest you check out Michael Skerker’s, “An Ethics of Interrogation.” He does an excellent job of laying out an argument for the criminal’s obligations to society in extreme detail.
(And to answer Boyo Jim’s question, if a person doesn’t want the obligations of contributing to society, they should not be entitled to its benefits. If you want society’s protection but don’t want to contribute, you are, again, a parasite. Go to Somalia and play “Mad Max” with the rest of the degenerates. Funny how all these wannabe anarchists don’t want to move to a part of the world that actually has NO government.)
Except that it turns out in actual fact there are lots and lots of people who would qualify as “parasites” under your definition. Probably a majority of people. And if civilization depended on everyone following the rules voluntarily it couldn’t work. We have to be prepared for a few people, maybe a lot of people, maybe even most people, to be lazy greedy selfish bastards.
Thing is, life is not a zero sum game. It isn’t true that for every good we get out of society we have to contribute an equivalent amount of good. It’s possible that each of us only has to contribute a little bit, and we all get more out of the arrangement than we contributed. To take one example, one thing I contribute to society is not murdering people. And in return, I reap the reward of living in a society where I don’t have to worry very much about being murdered. But my reward, not being murdered very often, is much greater than the price I had to pay, since I hardly ever want to murder people. Or if you don’t like the murder example, everyone picking one side of the road to drive on. I agree to drive on the right hand side in my locality, and so does everyone else. I give up the freedom to drive on the left except in certain clearly marked areas, and in return I get a road system that functions. My giving up the ability to drive on the left is a very small concession in return for roads that can be driven on.
And on and on and on. This is the whole point of civilization. If I had to pay the full cost of the benefits of civilization it would be impossible. If I lived on my own in the woods I’d work like a dog to build myself a cabin that mostly doesn’t leak, gather firewood, hunt, fish, and collect plants. Nasty, brutish and short. My current house is much much nicer than a house I could build myself, I heat the house by flipping a switch, food is delivered to a convenient location every day. And I don’t earn this bounty by working harder than the subsistence farmer, or contributing more. I just have to follow some mostly tolerable rules and do some easy “work” sitting at a desk in an office that’s warm in winter and cool in summer.
…And yet, somehow, even that minor contribution is more than some people are capable of managing.
Sure, some people slip up from time to time and forget that murdering people makes it harder for society to function, and so we shake our heads and try to find ways to modify their behavior.
My point is, if civilization required everyone to voluntarily not murder people then civilization wouldn’t work. We need to be prepared for the possibility that some people will break the social contract and find ways to make that behavior less likely. If we can’t do that then civilization collapses in a very literal way and we’re dealing with a Mad Max style anarchy. But note that even Somalia, the supposed anarchist heaven, still has authority that keeps people in line, most the the time. That authority isn’t a state or a government, rather it is small time warlords and traditional non-state governance via clans and tribes and religion. Even hunter-gatherers outside of state authority have to have some way of dealing with people who break the social contract, although it turns out that they mostly have a lot more interpersonal violence than modern people do. Sometimes the only way to deal with a violent asshole in your band is to knuckle under and do whatever he says, even if he kills a guy from time to time.
Thank you for explaining my exact point in such exquisite detail.
Then you have to define what the social contract IS. In America, for males at least, it apparently includes the possibility of getting involuntarily inducted into military service and supporting in some way a war that results in a death of thousands. I’m not willing to do that, the latter at least, nor do I think I should be exiled to Somalia for refusing to do so.
If the accused has a “moral obligation” to plead guilty, then I’ll turn it around and say the state has a “moral obligation” to demonstrate to the accused through a fair trial and display of all the evidence, that in fact he is demonstrably guilty. They should not be allowed to get off that obligation just because the accused pled guilty.
In fact, that is the slippery slope. If 90% or 95% of prosecutions end in a plea deal and a guilty plea, then justice is not being served. A corollary of that - Steven Truscott, whom I mentioned above, was only the first in a long line of wrongfully railroaded accused. So when it came time for his parole hearing, where the niceties of civil rights and the right to not incriminate don’t apply, he was repeatedly denied parole (like so many wrongfully accused after him) because he refused to admit he was guilty. The system works the same in the USA.
I can also refer to the case of the 15-year-old Kalief Browder imprisoned in Rikers Island for 3 years for the crime of refusing to plead guilty. ( Three Years on Rikers Without Trial | The New Yorker ) The implicit threat is that if you refuse to bow to the omniscience of the state and plead guilty, they will make you sorry.
I recall in an earlier thread, someone mentioned the process in the UK was that a plea deal would shave 1/3 off the sentence. This those who had no hope of winning a trial were motivated, but innocents were not compelled and those who disputed the charges were not gambling their lives - the typical north American prosecution tactic is to pile on the charges and give the person a choice of bow down or do life. Aaron Schwarz for example, was threatened with up to 135 years in prison if he failed to accept a guilty plea with 6 months in jail. How is that an honest prosecution?
With 90% pleading guilty, the system is still clogged up so badly it takes a year or more (or 3) to get to trial. Imagine if everyone demanded a trial.
Emphasis added.
Nonsense. Holomolka’s hearing (not a trial; she just entered a guilty plea), and the Homolka deal, could not be talked about in the media, by court order, so as not to prejudice the Bernardo jurors. Bernardo’s trial (he elected to plead not guilty, and thus was entitled to a jury trial) took place a year later, and talking about Homolka’s deal in the media in the year prior to the Bernardo trial might influence the Bernardo jury pool. In other words, the press gag on the Homolka matter was there to make sure that Mr. Bernardo had as fair a trial as possible. And the media was free to discuss everything once the Bernardo trial was over.
I’m reminded of the day during the Charles Manson trial in Los Angeles, when Charles Manson unexpectedly stood up and showed the jurors the front page of that day’s Los Angeles Times. “Manson Guilty, Nixon Declares,” read the headline. And a whole lot of time was lost while the judge had to poll each juror as to the influence Manson’s action had on him or her. Maybe a press ban might have expedited matters. We’ll never know, but my own feeling is that matters were unduly delayed because of Nixon’s statement to the media, and Manson’s actions.
Contrary to your assertion, Canada has free speech; see s. 2(b) of Canada’s Charter. A press ban might be put in place to ensure a fair and expedient trial, but once the trial is over, it’s anything goes.
In the States, the gag orders would have been put on the prosecution and the defense, preventing them from talking to the press or releasing statements. But not on the press itself.
I’m sorry, this is a concept that has been around since the 2nd century BC. It has been explained at great length by folks like John Locke or Jean-Jacques Rousseau. I assumed you would be familiar with it.
To summarize: There are ten people in a village. The village gets attacked by a bear. Nine go off to fight the bear, while the tenth sits around and picks his nose. Why should the tenth person expect the other nine to fight and die to protect him while he does not contribute?
The only difference between our lives and the lives of cavemen is that the volunteers who willingly contribute have done such a good job of protecting us, and we have such huge surpluses of food and resources, that it is no longer mandatory for every single person to participate. We only require <1% of society to actually contribute to group defense, and we are able to get enough volunteers to fill our requirements. This is a luxury of the modern age, and it is only possible because America’s absurd affluence allows for outsized defense spending.
Agreed. The overcharging by prosecutors needs to be examined and something done about it. The way the law works, a person can be charged with a series of different crimes for what most people would consider one act. Take a child sexual assault case: young girl accuses her father of molesting her. The guy can be charged with First Degree Sexual Assault, Incest, and Sexual Abuse by a Parent, Guardian and/or Custodian for the very same sexual act. And each particular sexual act is another of those same three charges.
Now, if the state proves him guilty, I have no problem with a life sentence. None at all. But the State starts out by declaring that they will push for consecutive sentences that run in the hundreds of years. But, if you plead him guilty, he will be out in 12. To take the deal, you have to admit that you did it.
Every child rapist in the state jumps at the deal, does his 12 years, and resumes his life. An innocent man will never admit to something like raping his own daughter if he didn’t do it. He insists on a trial and if convicted, he does life. Even better, he is not even eligible for consideration for any type of alternative sentence such as community treatment or home confinement because the doctors say that they cannot treat a sexual offender who does not first admit that there is a problem.
But, you say, if he is innocent, the facts will come to light at trial. Maybe. The law today allows a conviction in a rape case based upon the victim’s word alone; no other corroboration or physical evidence needed. The rape shield law prevents even the most basic things like pointing out that the 12 year old knows about oral and anal sex because she has been engaging in consensual sex with her boyfriend in the same way. But the State can put on every old girlfriend the man had to talk about how much he liked anal sex. I’ve done habeas cases and read trial transcripts of guys who were convicted on next to no evidence in these types of cases.
Back to the point, the system is thus set up to where guilty child rapists plead out and do a stint in prison. Innocent people accused to go trial and get life. In other words, the Legislature itself comes close to denying an accused due process by simply enacting draconian laws which it knows will not be enforced because prosecutors will offer deals. The accused has a technical choice of going to trial, but that choice is Hobson’s when the State is wielding such a hammer.
And again, the defendant may not obviously be guilty. It’s not a case where for justice’s sake, we want to spare the victim a trial and not waste everyone’s time. The accused has a very meritorious defense, but he takes the chance that if he loses, he will not ever again see the light of day. I think that the plea system needs reexamined so that a defendant isn’t risking everything by simply demanding his day in court.
This is drivel. Whatever social contract they described centuries ago isn’t the social contract that exists today, if one indeed exists today. You are the one claiming it should be “literally” enforced, which absolutely requires the terms to be put down on paper so people can see exactly what they are going to agree to, or be cast out if they don’t.
A ban on publication might be logical if it covered the details of the case. But apparently the ban included the fact that a deal had been made, who the deal was made with, not to mention the terms of the deal, the charges and sentence - which presumably are no more prejudicial than the basic facts of the case as laid out in the press after the arrest. I suspect those details were secret to cover the behinds of the prosecution, not to help Mr. Bernardo. Then they were playing whack-a-mole with the internet to try and cover the details which were free for the publishing in the USA.
Not only that, we saw the same absurdity in the Victoria Stafford murder, where the network news announcers were very sarcastic bout reporting “a deal has been struck with someone, but we cannot tell you more than that” even though it was transparently obvious the girlfriend had pled guilty and was helping the prosecution. The network’s reporter on the case had to defer to others to avoid accidentally (!) saying a detail too much on the news.
I think it was in Winnipeg that a man charged with sexual assault on his stepdaughter tried to invoke a publication ban “to protect the victim” to prevent details of his conviction getting reported, even though the victim herself wanted the details and his name and profession (college professor) widely publicized.
And something that would not happen in the USA, where Freedom of Speech is a guarantee…
The guy’s an idiot, and his views are racist (can a non-white oppressed person be racist?) but he expressed an opinion and then needed to hire expensive lawyers to not go to jail.
Pleading “not guilty” is not equivalent to saying “I did nothing wrong.” It is never a lie or the equivalent of a lie, regardless of what the defendant has done or not done in reality.
In California, any offense that can possibly result in a death sentence requires a “not guilty” verdict. I think this came about after the California State Supreme Court ruled that anyone who pleads guilty to a death sentence is “obviously” not sane enough to have entered the plea in the first place.
I’d like to see a cite for that. If they’re not sane enough to even enter a plea, then they’re not sane enough to participate in their own defense, which means they aren’t sane enough to even be tried. IMO, can’t be true, but IANAL.