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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

#111

Post by Geisterde »

sandworm101 wrote: post #69
Geisterde wrote: post #56

Earlier quoted context omitted.

Reasonably well, all things considered. There are something like 20+ million ar-15s in america, were american gun owners considered an army it would be the largest ever conceived of with no close second; perhaps here you will find the reason you enjoy more liberties than someone living in china or north korea. And I never said it was fair, I said it was a balance; the balance is very clearly biased towards the govern…

>> were american gun owners considered an army Guns do not make an army. Should 20 million AR-carrying Americans rise up, the "government" would be the least scared. The day after they stormed all the state houses, they would fractionize and turn against one another.

How do you get from 'an armed populace protects against government overreach' to 'an armed uprising'? You realize thats projection right?

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

#112

Post by Geisterde »

PhasmaFelis wrote: post #94
Geisterde wrote: post #56

Earlier quoted context omitted.

Reasonably well, all things considered. There are something like 20+ million ar-15s in america, were american gun owners considered an army it would be the largest ever conceived of with no close second; perhaps here you will find the reason you enjoy more liberties than someone living in china or north korea. And I never said it was fair, I said it was a balance; the balance is very clearly biased towards the govern…

> perhaps here you will find the reason you enjoy more liberties than someone living in china or north korea. False dichotomy. There are many nations that have strict gun control laws and plenty of liberty.

Right, like Australia, where they put their own citizens into internment camps.

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

#113

Post by coldtea »

Geisterde wrote: post #56
coldtea wrote: post #55

Earlier quoted context omitted.

> what is the actual game theory in the balance of power between a people and their government when the people are stripped of their ability to defend themselves from an oppressive government? What is the actual reality that says now there's a "balance of power" between the people and their government in the US? How did people or groups challenging it with their guns (or even peacefully) because they thought of it as…

Reasonably well, all things considered. There are something like 20+ million ar-15s in america, were american gun owners considered an army it would be the largest ever conceived of with no close second; perhaps here you will find the reason you enjoy more liberties than someone living in china or north korea. And I never said it was fair, I said it was a balance; the balance is very clearly biased towards the govern…

>Reasonably well, all things considered. There are something like 20+ million ar-15s in america, were american gun owners considered an army it would be the largest ever conceived of with no close second;

And how would those ar-15 bros would fare against an organized, professional army, with training, logistics, and coordination, not to mention air support, tanks, and the state on its side?

Not to mention most of those millions of gun owners would need to be on the same side to begin with, to count together.

>perhaps here you will find the reason you enjoy more liberties than someone living in china or north korea

I doubt it, First Amendment aside, European countries are freer than the US in more substantial ways (for starters, they don't have the kind of kafka-esque over extention of the law in the US, or the biggest ratio of prison vs general population, SWAT-ized trigger-happy police, and so on), and they don't have guns at home, except the ocassional shooting rifle.

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

#114

Post by coldtea »

Geisterde wrote: post #112
PhasmaFelis wrote: post #94

Earlier quoted context omitted.

> perhaps here you will find the reason you enjoy more liberties than someone living in china or north korea. False dichotomy. There are many nations that have strict gun control laws and plenty of liberty.

Right, like Australia, where they put their own citizens into internment camps.

You mean like the US did Native Americans in early 20th century, or the Japanese-Americans in WWII? Or seggregation between blacks and whites?

Or like the fact that the US has the largest prison population (percentage wise) than any western country, by a huge factor? And where over a million people are convicted of felony per year?

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

#115

Post by daedrdev »

mrkeen wrote: post #17
refurb wrote: post #13

Earlier quoted context omitted.

> the sentence associated with a plea bargain already is the sentence that is felt to be appropriate for the crime That's not true. Plea bargains can be incredibly minor punishments versus the crime. Plea bargains are the flip side of the prosecutions options. If the prosecutor thinks it's a slam dunk, they have little incentive to offer a plea bargain at all - if they do, it may be a very severe sentence. If the pro…

> If the prosecutor thinks it's a slam dunk, they have little incentive to offer a plea bargain at all > 97% of convictions are based on plea bargains Taken together, these mean prosecutors generally don't have good enough evidence to put people away, which is the thrust of the article: it's easier to threaten someone into a confession than to have a proper trial.

Or it means they don’t have enough resources to run a trial for every case they believe they will win. , and so give out plea bargins to reduce the number of trials

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

#116

Post by gumby »

SamBam wrote: post #89
watwut wrote: post #46

Earlier quoted context omitted.

There is that "factual innocence is not a reason to let the convict goes, because somehow magically knowing an innocent person is in prison makes justice system more trustworthy" supreme court gem. There should be obvious difference between "minor new development" and "major new finding". Likewise, there should be obvious difference between "potentially innocent person is in prison" and "prosecutor wants new attempt…

I'm not sure precisely what supreme court gem you're referring to, but just to be clear, double jeopardy only applies when a jury finds a person innocent. People who are found guilty can potentially have a new trial if new evidence comes to light.

In 2020 or January 2021 the federal Supreme Court affirmed the execution of a convict when it was demonstrated that their court appointed attorney had ignored exculpatory evidence that the accused had been elsewhere at the time of the crime. The process was considered more important than the result.

There was a lot in the headlines at the time and though this made the news other things quickly drove it “off the front page” (don’t know what metaphor we should use for that expression these days).

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

#117

Post by Geisterde »

coldtea wrote: post #114
Geisterde wrote: post #112

Earlier quoted context omitted.

Right, like Australia, where they put their own citizens into internment camps.

You mean like the US did Native Americans in early 20th century, or the Japanese-Americans in WWII? Or seggregation between blacks and whites? Or like the fact that the US has the largest prison population (percentage wise) than any western country, by a huge factor? And where over a million people are convicted of felony per year?

Yes.

There is nothing logically inconsistent with saying disarming the native population was a tactic used to further subjugate them, as an example. Racially motivated violence has almost unilaterally been the causal result of insufficiently armed minorities. Im all for letting non violent offenders out of prison.

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

#118

Post by nradov »

retrac wrote: post #37
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 USA still has a form of double jeopardy. Under our dual sovereignty system, federal and state authorities can both prosecute a defendant for the same underlying crime.

https://www.cnn.com/2019/06/17/politics/supreme-court-double...

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

#119

Post by hooho »

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.

[dead]

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

#120

Post by hn_acker »

watwut wrote: post #46
retrac wrote: post #37

Earlier quoted context omitted.

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…

There is that "factual innocence is not a reason to let the convict goes, because somehow magically knowing an innocent person is in prison makes justice system more trustworthy" supreme court gem. There should be obvious difference between "minor new development" and "major new finding". Likewise, there should be obvious difference between "potentially innocent person is in prison" and "prosecutor wants new attempt…

The case you're referring to is Herrera v. Collins, 506 U.S. 390 (1993). The relevant excerpt is in Justice Antonin Scalia's concurrence [1]:

> There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

...

> With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon.

Note: In the excerpt above from source [1], Snopes removed a page break and inserted a comma (mistake?). Keep that in mind when using ctrl-F in source [2].

The Supreme Court's ruling (6-3) was that someone who was already convicted for a crime but later makes a claim of new evidence of innocence is not entitled for a new judicial trial [2]. In simple terms, there's no guarantee to a new trial after the fact, and the burden on the courts would be too much anyway. Scalia's concurrence went further and asserted that executing someone who was convicted in a procedurally proper trial but was actually innocent is not "cruel and unusual punishment" (by the standards of the past 200+ years of US history, which supposedly involved plenty of executions of innocent people convicted in proper trials) and is not a violation of due process.

The majority (including Scalia) weren't in favor of executing an innocent person, they were just arguing that the convict making the new claim of innocence can't count on the judicial system. The majority, including Scalia, points to the only option being seeking executive clemency/pardon, i.e. request the governor/president to evaluate the new evidence of supposed innocence and hope that the governor/president agrees - or at least reduces the sentence [2]. A request for clemency is outside of the scope of due process.

> Herrera is not left without a forum to raise his actual innocence claim. He may file a request for clemency under Texas law, which contains specific guidelines for pardons on the ground of innocence. History shows that executive clemency is the traditional "fail safe" remedy

[page break]

> for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion.

From the convict's perspective, "no new trial, but you can ask for a pardon" is cold comfort, but not necessarily a dead end.

[1] https://www.snopes.com/fact-check/scalia-death-penalty-quote...

[2] https://supreme.justia.com/cases/federal/us/506/390/ https://supreme.justia.com/cases/federal/us/506/390/case.pdf

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