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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

#141

Post by Terr_ »

projektfu wrote: post #103
a_gnostic wrote: post #76

Earlier quoted context omitted.

The supreme court, stacked or not, has no bearing over gun ownership, nor does congress. "Congress shall make no law […] the right to bear arms shall not be infringed." supercedes both of them.

Why did you start with the first phrase of the first amendment, redact the rest of that amendment and the beginning of the second, and then misquote the remainder? "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Grammarians have been puzzling over this text for many years.

I have a pet theory which tends to annoy both major sides (not necessarily a sign of quality, but an interesting property) and it rests on three facts:

1. In the beginning everything in the Federal Constitution--and all the amendments--were understood to be only a restriction on the Federal government.

2. Many restrictions on the federal government were created out of states' concerns about it "going bad" and trying to ensure their own autonomy was protected.

3. The Second Amendment was drafted during the Articles of Confederation, at time when every state was required to support their own state-militia with arms/materiel, including guns-on-wheels that could be pulled by a horse, and the legislature had to appoint the upper-ranks.

So in combination, I argue the Second Amendment was wrongly "incorporated", abusing its original legislative intent of preserving a degree of state military autonomy. So on one hand, that means individual states can impose much stronger restrictions if they want, and on the other hand the federal government can't complain if your state lets you tow around a flak-cannon behind your truck.

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

#142

Post by verisimi »

wolverine876 wrote: post #130
verisimi wrote: post #40

Earlier quoted context omitted.

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!

This attitude prevents real progress, and results in additional injustice. The legal system is imperfect, and very flawed in some respects. The way forward is to understand the mechanism, and improve it, relentlessly. In the end it's a human institution and will be flawed, but that's all we have - humans all the way down. The people on the sideline saying it's all pointless are not only obstructing those doing actual…

You say its pointless standing on the sideline obstructing, whereas I think trying to save a system that cannot deliver justice by design is a waste of effort.

Let me know when your relentless effort yields improvement.

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

#143

Post by jandrewrogers »

coldtea wrote: post #113
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…

> 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 th…

FWIW, there are tens of millions of former US military in the civilian population. Once you've been trained you don't really lose it, you just become rusty. In this scenario the AR-15 bros would have a logistics advantage because they start from a state of decentralized resources, whereas the military does not. The US government does not have remotely enough military equipment to control the geographic size and distribution of the US. In a large-scale domestic conflict, the ability to produce more equipment also comes under great risk.

The government doesn't have a safe harbor they can operate from in a civil war, particularly one that has no clear geographic split. This severely curtails the use of heavy ordnance due to the importance of not killing the uninvolved populace, since that would only encourage them to also question the legitimacy of the government.

As a practical matter, it is not possible to control the US via military force short of indiscriminately murdering most of the population, and a domestic military force doesn't even have that as a realistic option. Everyone knows this, so this is a deeply unserious scenario and the government would avoid precipitating it at all costs.

The whole thing is just implausible.

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

#144

Post by refurb »

eviks wrote: post #72
refurb wrote: post #39

Earlier quoted context omitted.

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 opt…

Not really, there are mandatory minimums and various sentencing guidelines, so the judge is not doing completely random stuff independent of the charges the prosecutor brings. And you example is a bit backwards: the trial happened after the plea bargain failed, so this has little effect on the threat to bring more (or more serious) charges, but even if it does: the "careful" sub-range is still measured in multiples/y…

sub-range is still measured in multiples/years, so a huge risk

And the plea bargain is what?

It’s often not that different.

You might go to trial facing up to 10 years (but your lawyer says 5 is likely) or a plea bargain to 4.

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

#145

Post by refurb »

watwut wrote: post #49
refurb wrote: post #44

Earlier quoted context omitted.

> Since you can increase the penalties for jury convictions to absurd levels What? Juries follow the law and the prescribed punishments. Maybe you're thinking of civil penalties?

Juries do not decide punishments. They are often times NOT allowed to even know what punishments are (the thinking is that they would be more likely to acquit when those punishments would feel too hard for them).

They do in some cases.

But your response misses the point entirely. How can a prosecution threaten a longer sentence when they don’t determine it?

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

#146

Post by quickthrower2 »

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.

Need to amend the amendment about a speedy trial to be about how fast you get the trial, not about whether the government intended to make it slow or not. If they can't do it quick, you get RoR.

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

#147

Post by musicale »

nradov wrote: post #118
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…

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...

Triple jeopardy, since you can also be subject to a civil suit, which has a lower standard of proof.

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

#148

Post by vharuck »

PebblesRox wrote: post #132
bagels wrote: post #108

Earlier quoted context omitted.

Juries make guilty/not guilty findings, not innocence.

What's the technical distinction between "not guilty" and "innocent?"

IANAL, but

Innocent = "We, the jury, are certain the defendant didn't do it."

Not guilty = "The prosecution did not convince us, the jury, that the defendant did it."

And because our criminal justice system is not set up to establish innocence, only to check if there's enough evidence to prove guilt, we don't use the term "innocent" for decisions.

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

#149

Post by eviks »

refurb wrote: post #144
eviks wrote: post #72

Earlier quoted context omitted.

Not really, there are mandatory minimums and various sentencing guidelines, so the judge is not doing completely random stuff independent of the charges the prosecutor brings. And you example is a bit backwards: the trial happened after the plea bargain failed, so this has little effect on the threat to bring more (or more serious) charges, but even if it does: the "careful" sub-range is still measured in multiples/y…

sub-range is still measured in multiples/years, so a huge risk And the plea bargain is what? It’s often not that different. You might go to trial facing up to 10 years (but your lawyer says 5 is likely) or a plea bargain to 4.

Yes, if your made up numbers are 1 year apart, you won't see much difference

The "careful sub-range" is what affects the likely 5 number ("careful" in that it doesn't allow the lawyer to call bs on the charge and say that the likely sentence is now lower since there is a higher likelihood of not being convicted), not the not very relevant maximum of 10

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