Problem number 1. I don’t have a theory on how to correct it while avoiding potential systemic abuse, but it is a problem.
I think you’ve combined two different stories.
“Technicalities” I can agree with. It’s sentencing guidelines that remove all judgment from the bench that I have an issue with. Whether it is NYS Rockefeller Drug Laws or laws that prohibit a judge from getting a recalcitrant drunk driver off the road for truly extended periods of time, it is wrong. Sentences do not necessarily fit the crimes, and the legislature removes any ability for the judiciary to try and make it so. [And let’s face it - more voters will sympathize with a guy who had ‘one-too-many’ and got unlucky than the guy with a single hit of crack cocaine. Legislation reflects that.]
Yeah, but see, I thought the job of a defense attorney was to make sure the defendant’s rights were never violated. I didn’t realize the purpose of a defense attorney was to get the lightest sentence possible, or to take advantage of weaknesses in the system to get their guilty clients off.
Assuming this wasn’t sarcastic, you should also know that the purpose of the court is not to determine guilt or innocence, but whether the prosecution has proved guilt or has not proved guilt.
OJ Simpson wasn’t found innocent; he was found not guilty. The police did not prove his guilt. He very well may have done it, but the police failed to do so.
Most of the stuff I’ve read shows that the prosecution really did prove his guilt. It was the jury’s decision that the man was not guilty, regardless of the evidence.
The problem I see with this is that there’s a huge potential for it to be unfairly applied. Judges are human, too, with all the failings that come along with it. Giving them carte blanche would open sentencing up for all sorts of abuses. What if a judge systematically gave harsh sentences to blacks, while giving light ones to whites, or a judge who gives prison time to those of other religious faiths, but probation to those who profess his own? What if he just doesn’t like the defendant?
The effort of the justice system must be that everyone who is convicted of a certain crime gets the same sentence. Once we get into wanting to add harsher penalties because So-And-So did the crime in a particularly bad way, we’re in dangerous territory. Simply put, we should not exchange outrage for justice.
Maybe we should question the justice of those sympathies-- why is getting caught with crack worse than being caught after having “one-too-many”? They’re both people who are intoxicated. If they were caught driving, why is it worse that one was stoned where the other was drunk? Aren’t they equally dangerous, equally immoral? If so, shouldn’t they be equally punished?
This is a prime example of why the opinion of the voters is so dangerous when it comes to law and justice.
I once heard some jackass expounding on TV after some Supreme Court ruling. He was outraged that the judges had decided in one way when the opinion of “most Americans” was contrary. I wanted to knock his head against his podium and scream, “The law is not based on an opinion poll, nor should it be!”
How much success would the Civil Rights movement have had if it were put to a vote? (I think the answer is somewhat clear with the anti gay marriage ammendments passed in so many states during the last election, but that’s another thread.) How much success would the Suffrage Movement have had in its early days? Likewise, how many people support the free speech of protestors (especially when they’re protesting something near and dear to the heart of the person you ask?) or of Neo-Nazis, Klan members, and the like? Some people would take away that right because of how deeply they despise the views of those groups.
Every so often, Americans work themselves up into a moral panic about one issue or another, and politicians encourage this frenzy. They swear they will make a the penalties for that crime much harsher, and bask in the public’s approval. This is one reason why the penalties for crack are so much harsher than those for powdered cocaine, though they’re essentially the same.
The law must be above such passion and frenzies, striving always to be consistent and impartial. This is why I dissaprove of the notion of full discretion. People are stupid. Having guidelines cuts down on the number of stupid decisions made.
The biggest joke is on us as we keep calling it a system of justice. It has nothing to do with justice. It deliberately subverts justice. It is a system of laws and every law hurts someone.
The World is round,
The World is not fair.
It is just damn round.
Lissa, I agree. Personally, I’d like to see justice trump law when they conflict. The question then becomes who determines when they conflict. 98% of us might agree that justice is not being served when the man in the OP is back on the streets in a couple of years. But what about cases where things aren’t so black and white? No easy answers (other than declaring me Emperor of the Solar System and having my capricious will be law, but I don’t see that happening for at least another 2 years).
Again, any decision would have to be made based on the judge’s personal opinions and preferences, two things that we should strive to keep from the courtroom.
What you would have to do is write laws for every single possible contingency. *"If a dude kills somebody, he gets “X” years. If he did it while high or drunk, add “Y” years. If he did it because he’s a racist, add “Y” years. If he did it in a really, really mean way, add “Y” Years. (Lenghty subsection on what is meant by “really really mean” excised for brevity.) * If he did it while wearing a bunny suit, it shall be considered a capital offense."
Of course, such a thing is impossible. You can never think of everything.
The problem is keeping this guy from getting behind the wheel. Short of locking him up is there a way to do that?
A former band mate of mine who had a DUI and then several tickets for driving with a suspended license used to say “you don’t need a license to drive, only if you get stopped”. (he eventually did 3 months in the county lock up for repeatedly driving with a suspended license). You can’t really argue with that logic. If you know how to drive and you have access to a vehicle there’s really nothing to stop you from driving if you’re inclined to do so.
We can take away his license, his insurance, his ability to register a vehicle but can you keep him from actually getting behind the wheel?
A friend of mine had his car broadsided by an elderly man on a bicycle while the car was stopped. The car was not harmed, nor were the occupants. The man died of his injuries. Paul is haunted by that every single day, even though it was in no way his fault.
And at least in CA, drunken biking is a DUI. I believe that drunken rollerskating counts as well.
Reckless exaggeration I’m afraid. I’m just commenting on the sad state of enforcement for this kind of penalty. In most states, you have to drive under the influence three times before it even counts as a felony at all.
The lawyers’s job is to act in his client’s best interest, as far as that is possible within the constraints of the law and professional ethics. (No, I am NOT looking for a debate of the meaning of “professional ethics.” I leave that to a lawyer.)
While it is certainly arguable that a chronic drunk would be best served by being kept away from cars (in which he can kill himself just as readily as he can kill other people), “best interest” usually seems to be interpreted as “that which will keep my guy out of jail or other custody.” (Even in the case of law guardians, who are appointed to represent underaged people and have more leeway in determining what their client’s best interest is, they usually don’t just 100% roll over their clients by saying “well, my kid would do well in a secure placement, so please lock his guilty ass away.”)