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The origin of the law of torture: A cautionary tale

daviddfriedman.substack.com

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Re: The origin of the law of torture: A cautionary tale

#31

Post by k__ »

"In the history of Western culture no legal system has ever made a more valiant effort to perfect its safeguards and thereby to exclude completely the possibility of mistaken conviction"

Reminds me of a law that was repealed recently in Germany.

They wanted to "reopen" cases where people were already found not guilty, when new technology would find new evidence.

In one case, a murderer was found not guilty, and later they had DNA analysis that would have proven his guilt. The new law would have put him behind bars.

However, the federal constitutional court repealed the law, as the constitution forbids to convict someone two times for the same crime. They said legal certainty was more important than finding the truth.

Re: The origin of the law of torture: A cautionary tale

#32

Post by hulitu »

draugadrotten wrote: post #30
quickthrower2 wrote: post #24

He didn’t mention that the plea deal doesn’t care if you are innocent and even if you are innocence and are found innocent you might do 3 years in jail awaiting trial (bail is for wealthy people)

There are even people waiting 10+ years for a trial. https://reason.com/2023/07/26/he-spent-10-years-behind-bars-... This is clearly the best justice. Believe me. We have triumphed over evil like nobody has seen before. I believe it’s a rough situation over there. There’s no question about it. The past does not have to define the future. It’s idealistic, it’s wonderful, it’s a beautiful thing.

https://en.m.wikipedia.org/wiki/Guantanamo_Bay_detention_cam...

Re: The origin of the law of torture: A cautionary tale

#33

Post by Eddy_Viscosity2 »

k__ wrote: post #31

"In the history of Western culture no legal system has ever made a more valiant effort to perfect its safeguards and thereby to exclude completely the possibility of mistaken conviction" Reminds me of a law that was repealed recently in Germany. They wanted to "reopen" cases where people were already found not guilty, when new technology would find new evidence. In one case, a murderer was found not guilty, and later…

Although my first reaction is to support the idea of being able to retry cases when new evidence emerges, I can see the pitfalls if this were applied in a real-world justice system. There would have to be some pretty big barriers to overcome to prevent abuse (on the usual suspects, the poor and/or people the police/politicians just don't like) and then more rules to make sure those barriers themselves aren't used as loopholes by the truly guilty. I think it could be done, but its just as likely they do it in such a way to maximize state power without checks or balances.

Re: The origin of the law of torture: A cautionary tale

#34

Post by acdha »

isnifailed wrote: post #7

And then there was Guantanamo, which proves all this stuff in the article is far from being universally accepted.

This is somewhat true but it’s a reminder of how far out it was: the Bush administration had to invent a new theory of executive privilege to authorize it, did it outside of the country because they knew it wouldn’t be accept by a real court, and then they still felt the need to “accidentally” delete the tapes.

Re: The origin of the law of torture: A cautionary tale

#35

Post by 2Gkashmiri »

quickthrower2 wrote: post #24

He didn’t mention that the plea deal doesn’t care if you are innocent and even if you are innocence and are found innocent you might do 3 years in jail awaiting trial (bail is for wealthy people)

For us mere peasants, there is a term "preventive detention" such they say is NOT an arrest so you do not have rich things like habeas corpus or bail.

Plus, this is usually pre-crime detention so there is no crime, no case, no enquiry, no courts.

Its fun

https://www.legalservicesindia.com/law/article/5001/5/Preven...

Another nice thing

t was held that the law of preventive detention is not unconstitutional since it has no objective criterion for ordering preventive detention, and instead relies on the executive’s subjective judgment. This viewpoint is based on the fact that preventive detention is not punitive, but rather preventative, and is used to prevent a person from engaging in actions that are seen to be harmful to specific goals that the law of preventive detention aims to regulate. As a result, preventive detention is based on suspicion or expectation rather than proof.

https://blog.ipleaders.in/extending-protections-accused-ligh...

Re: The origin of the law of torture: A cautionary tale

#36

Post by impossiblefork »

ajb wrote: post #4
refurb wrote: post #2

The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted. This is looking at it backwards. It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence. That distinction makes…

Given that 97% of convictions are based on plea bargains, why would you imagine that sentencing is calibrated based on the 3% jury trials? There are obvious political incentives for this not to be the case, given how much voters are annoyed by convicts getting off lightly. Also, the main point is that confessions based on threats are much poorer evidence of guilt than a proper trial.

Here in Sweden a confession is evidence, but is not on its own enough to secure a conviction.

I think this is the right way to do treat it-- after all, people lie about all sorts of things.

Re: The origin of the law of torture: A cautionary tale

#37

Post by retrac »

k__ wrote: post #31

"In the history of Western culture no legal system has ever made a more valiant effort to perfect its safeguards and thereby to exclude completely the possibility of mistaken conviction" Reminds me of a law that was repealed recently in Germany. They wanted to "reopen" cases where people were already found not guilty, when new technology would find new evidence. In one case, a murderer was found not guilty, and later…

That is called "double jeopardy". It is explicitly prohibited in most legal systems. Even where it isn't explicitly prohibited, it's generally assumed as a basic principle (like innocent until proven guilty).

It's basic: if someone can be retried because of new evidence, the prosecution will introduce a little bit more evidence (probably evidence they intentionally held back!) after each acquittal, and try them again.

The Americans in particular take it much further than some do; here in Canada the prosecution can appeal from an acquittal due to legal error in the decision; the prohibition on double jeopardy only applies to the entire process as a whole, after a final verdict including appeals. In the USA, a verdict issued by a jury, even at the first trial, is generally final and cannot be appealed even for reasons of legal error, while a guilty verdict can be appealed. American pluricentric power does create an odd circumstance where you can be tried twice in practice, though. If the federal government prosecutes someone for a crime, and fails to convict, if it was illegal under state law, the state government can try again under state law, or vice versa.

Re: The origin of the law of torture: A cautionary tale

#38

Post by james-bcn »

>In 1215 the fourth Lateran council rejected the religious legitimacy of judicial ordeals and banned priests from participating in them. Over the next few decades most European countries abandoned their use.

I'm not sure if this is true. There was definitely trial by ordeal in the 16th and 17th century.

Re: The origin of the law of torture: A cautionary tale

#39

Post by refurb »

eviks wrote: post #14
refurb wrote: post #2

The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted. This is looking at it backwards. It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence. That distinction makes…

The default sentence depends on the charges, charges depend on the persecutor, which are motivated to increase those to get the easier deal of a plea bargain, so it is exactly the much higher cost of a trial and a higher risk of a more severe sentence that is the selling point for the accused if you don't look at it backwards

But the prosecutor doesn't decide the sentence. The judge or jury do.

And prosecutors need to be careful. If they go for a more serious charge, but can't prove it, the defendant may be found not guilty when they would have been found guilty of a lesser charge (this happened to me on a jury - we found them not guilty of 1st degree murder, but likely would have found them guilty of manslaughter, but that wasn't an option).

Re: The origin of the law of torture: A cautionary tale

#40

Post by verisimi »

acdha wrote: post #34
isnifailed wrote: post #7

And then there was Guantanamo, which proves all this stuff in the article is far from being universally accepted.

This is somewhat true but it’s a reminder of how far out it was: the Bush administration had to invent a new theory of executive privilege to authorize it, did it outside of the country because they knew it wouldn’t be accept by a real court, and then they still felt the need to “accidentally” delete the tapes.

Yes. What nonsense the whole of the legal system is. And people think it is about justice. If justice occurs on account of the legal system, its a happy accident, not by design!
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