Bias in the judical system

Jan 2010
3,920
Atlanta, Georgia USA
#51
An interesting article from 2014: How many people are wrongly convicted? Researchers do the math. Note that this article is about death penalty cases specifically. Given death penalty cases involve the most severe punishment, the most rigorous process, and receive the most attention after the fact, one would expect them to have the lowest rate of false convictions, so if that 4.1% figure in the article is even close to the truth, it bodes poorly for those accused of other sorts of crime, especially if they end up being pushed into a plea bargain.

Another article from 2016: Jailed but Innocent: Record Number of People Exonerated in 2015.



Note that while certain minority groups being over-represented among criminals and convictions does not necessarily imply bias, certain minority groups being over-represented among incorrect convictions which lead to exoneration is much more difficult to dismiss.

Finally, an interesting article linked in the above article: Why Innocent People Plead Guilty.



It is fairly easy to see how an innocent person, faced with this regime, could be persuaded that pleading guilty was their best chance of being able to recover their life after a short stint in prison; trial by plea bargain could almost be called the "subprime mortgage of justice" given the predictably negative (and statistically demonstrable) impact it has had, does have, and will have on less affluent and less educated individuals. Even if one divorces notions like ethics and "fairness" from the equation, forcing the taxpayers of America to bear the costs of incarcerating the innocent -- both directly through tax dollars, and indirectly by making up for the tax dollars lost when anyone with a regular income loses their job due to incarceration and struggles to acquire one in the future due to a criminal record -- seems unreasonable.

Ultimately, the question of whether the justice system in America is biased or not is difficult; there are no doubt individual cases of trials where bias played a role, but that is not the same as the system itself being biased. Nonetheless, it's fairly clear that system-wide defects do exist within it, and whether those system wide defects impact innocent people in a disparate fashion or a roughly equal fashion is less important than the fact that innocent people qua people are being impacted. Framing this matter not as, "Black and Latino Americans are suffering," but rather as, "American citizens are suffering," is probably a more productive framing, and if the systematic defects can be largely corrected, it will quite possibly result in the windows through which bias can incidentally impact the proceedings being largely closed in the bargain.
Good post. A couple of points: first, the US "judicial system" could not function without plea bargaining. We simply do not have enough judges, and people willing to serve as jurors, to try every case.

Second, one problem today is prosecutors overcharging: this is done to a large extent to get the defendant to plead to something. Given the vast expansion in what things are crimes, it's fairly easy to find something serious to charge almost anyone with and the result is that he or she will plead guilty to something not so serious.

Third, the solution is more police. If there were a policeman on every block in every community, after a while there would be a lot less crime, and that a lot less serious.
 

Fox

Ad Honorem
Oct 2011
3,805
Korea
#52
A couple of points: first, the US "judicial system" could not function without plea bargaining. We simply do not have enough judges, and people willing to serve as jurors, to try every case.
Yes, this economic factor is also mentioned in one of the articles above, with economic factors and logistical expediency being suggested as the reason for the advent of the plea bargaining regime. And of course those are real factors which must be taken into account and accommodated somehow. Yet I wonder about something: if we accept the plea bargaining regime on the grounds of expense, then can we really afford "a policeman on every block in every community" as is suggested in your third point? I'm not knowledgeable about how much it would genuinely cost in order to expand our judiciary (and, presumably, our roster of public attorneys) to handle the task of an increased rate of trials, but how much would it cost in comparison to the aggressive policing regime suggested, and perhaps just as importantly, how would those costs be allocated? That's a question, not a challenge.

A further concern is that "a policeman on every block in every community," certainly won't actually mean literally every block in literally every community, as municipalities with a relatively low crime rate will likely (correctly) see hosting such police in their own neighborhoods block-by-block as a waste of their funds and reject it, which means such increased policing would occur primarily in poor neighborhoods. I'm certainly not going to suggest that increased police presence has no chance of lowering actual crime rates -- in fact, at least some research, such as that done by Professor Jonathan Klick at Flordia State University, strongly implies that it can and does achieve that, and it is not the only study I've seen mentioned that concludes that, though of course a rigorous meta-study would be in order if one were to approach the matter from a serious policy perspective -- but given the theme of this thread is "bias in the judicial system," it's worth mentioning that if we increase police presence in poorer neighborhoods (which are more likely to be home to ethnic minorities), it seems likely that, at least in the short term, it will result in an even greater disparity in incarceration rates between ethnic groups than currently exists, since increased contact with the police is one of the reasons I've seen raised for certain minority groups being more likely to end up in jail in the first place. Here, for example, is a (fairly superficial -- I regret the quality of it, but the amount of time I want to spend on this post is limited) article expressing concern about some of the potential consequences of heavy police presence. I am not saying that need be a deal breaker, but it might be in the eyes of some.
 
Jan 2010
3,920
Atlanta, Georgia USA
#53
I have no idea of the cost, but, as attorneys and judges are more highly educated than most police, it would cost more to add one more attorney or judge than one more police officer, though of course there would be no such one to one ratio.

And I agree with your second paragraph. Obviously "on every block" is an exaggeration, and there are downsides to increased police presence.

This raises one other aspect of the "criminal justice system" that hasn't been addressed: namely that "correctional facilities" have turned into warehouses for those convicted of crime.
 

sparky

Ad Honorem
Jan 2017
2,567
Sydney
#54
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That's the whole point of "correctional facilities"
storage of individuals whose presence in the community is seen as nefarious
the second is upholding the concept of good and evil by public punishment , for the good people to know they are protected
the third is as example to the rest of society
the fourth is teaching the inmates the consequences of their actions
 
Oct 2011
7,595
MARE PACIFICVM
#55
Rather than massively increase the size of the judiciary or the police, we would be better served by abolishing drug prohibition, which accounts for, and also indirectly funds, a huge percentage of the "criminals" who are numerically overwhelming the system.
 

Fox

Ad Honorem
Oct 2011
3,805
Korea
#56
Rather than massively increase the size of the judiciary or the police, we would be better served by abolishing drug prohibition, which accounts for, and also indirectly funds, a huge percentage of the "criminals" who are numerically overwhelming the system.
On the one hand, I'm also inclined to agree that the drug war is worth ending. To play Devil's Advocate, though, there are countries in which drugs are just as illegal, yet which do not end up mass incarceration states in the bargain, so the link between "drug prohibition" and "mass incarceration" is not one to one. Likewise, there are examples of "legal" drugs -- the best example being alcohol -- which really do hit certain groups very hard, such as Native Americans, in ways which might only be effectively limited through genuinely effective prohibition measures. Here is an article which refers to one particular instance of this, involving the Pine Ridge Indian Reservation:

Alcoholism is widespread on the reservation, affecting an estimated 85 percent of the families.[91] Tribal police estimate that 90 percent of the crimes are alcohol-related.[91]

Because of historic problems with alcohol use by its members, the Oglala Sioux Tribe has prohibited the sale and possession of alcohol on the Pine Ridge Reservation since 1832. The exception was a brief period in the 1970s when on-reservation sales were tried. The town of Whiteclay, Nebraska (just over the South Dakota-Nebraska border) previously had approximately 12 residents and four liquor stores, which sold over 4.9 million 12-ounce cans of beer in 2010 almost exclusively to Oglala Lakota from the reservation (nearly 170 cans per person). The Whiteclay liquor stores were shut down by the state of Nebraska in 2017, though the store owners are appealing to have the stores reopened.[92]

Fetal Alcohol Spectrum Disorder (FASD) is a spectrum of anatomical structural anomalies, and behavioral, neurocognitive disabilities resulting from the exposure of a fetus to alcohol in the womb. The most severe manifestation within this spectrum is Fetal Alcohol Syndrome(FAS).[93] A quarter of the children born on the reservation are diagnosed with either FASD or FAS, resulting in lifelong challenges.[94]
This is the outcome which drug illegalization is intended to stop, and when actually in effect, it probably has a non-zero impact. After all, regardless of what externalities prohibition in America may have had, it also seems to have been successful at reducing alcohol consumption:

The conventional view that National Prohibition failed rests upon an historically flimsy base. The successful campaign to enact National Prohibition was the fruit of a century-long temperance campaign, experience of which led prohibitionists to conclude that a nationwide ban on alcohol was the most promising of the many strategies tried thus far. A sharp rise in consumption during the early 20th century seemed to confirm the bankruptcy of alternative alcohol-control programs.

The stringent prohibition imposed by the Volstead Act, however, represented a more drastic action than many Americans expected. Nevertheless, National Prohibition succeeded both in lowering consumption and in retaining political support until the onset of the Great Depression altered voters’ priorities. Repeal resulted more from this contextual shift than from characteristics of the innovation itself.

...

At the beginning of the 20th century, wet and dry forces had reached a stalemate. Only a handful of states maintained statewide prohibition, and enforcement of prohibitory law was lax in some of those. Dry territory expanded through local option, especially in the South, but this did not mean that drinking came to a halt in towns or counties that adopted local prohibition; such laws aimed to stop manufacture or sale (or both), not consumption.12 During the previous half-century, beer’s popularity had soared, surpassing spirits as the principal source of alcohol in American beverages, but, because of beer’s lower alcohol content, ethanol consumption per capita had changed hardly at all.13 Both drinking behavior and the politics of drink, however, changed significantly after the turn of the century when the ASL assumed leadership of the prohibition movement.

Between 1900 and 1913, Americans began to drink more and more. Beer production jumped from 1.2 billion to 2 billion gallons (4.6 billion to 7.6 billion liters), and the volume of tax-paid spirits grew from 97 million to 147 million gallons (367 million to 556 million liters). Per capita consumption of ethanol increased by nearly a third, a significant spike over such a short period of time.14

...

Once the prohibition movement decided to push for a constitutional amendment, it had to negotiate the tortuous path to ratification. The fundamental requirement was sufficient popular support to convince federal and state legislators that voting for the amendment would help rather than hurt their electoral chances. The historical context of the Progressive Era provided 4 levers with which that support might be engineered, and prohibitionists manipulated them effectively. First, the rise in annual ethanol consumption to 2.6 US gallons (9.8 liters) per capita of the drinking-age population, the highest level since the Civil War, did create a real public health problem.18 Rates of death diagnosed as caused by liver cirrhosis (15 per 100000 total population) and chronic alcoholism (10 per 100000 adult population) were high during the early years of the 20th century.19

...

Nevertheless, once Prohibition became the law of the land, many citizens decided to obey it. Referendum results in the immediate post-Volstead period showed widespread support, and the Supreme Court quickly fended off challenges to the new law. Death rates from cirrhosis and alcoholism, alcoholic psychosis hospital admissions, and drunkenness arrests all declined steeply during the latter years of the 1910s, when both the cultural and the legal climate were increasingly inhospitable to drink, and in the early years after National Prohibition went into effect. They rose after that, but generally did not reach the peaks recorded during the period 1900 to 1915. After Repeal, when tax data permit better-founded consumption estimates than we have for the Prohibition Era, per capita annual consumption stood at 1.2 US gallons (4.5 liters), less than half the level of the pre-Prohibition period.32

...
In short, if the goal of prohibition was to reduce alcohol consumption, then it seems to have worked. It did not work perfectly, but neither does nearly any law; murders, assaults, rapes, thefts, they all still happen despite the law. And even today, we see that public alcohol consumption is often at the heart of one of the problems over which our society is currently squabbling: sexual assault. If we abandon "drug prohibition," then it's likely that drug usage will increase in America, and a number of the negative externalities we already face regarding drug usage will quite possibly increase, the difference being that we won't be able to lock those externalities away from the rest of society by funding prisons.

The point of this brief Devil's Advocate tangent is not to demand that anyone love and support drug prohibition, but rather to emphasize that while ending the war on drugs might come with some economic benefits, the social and political challenges which accompany that move, at least in a society like America, will likely be both expensive in their own right and logistically difficult to execute. The opioid epidemic, for example, is largely fueled by drugs which are produced legally and have a legal course of distribution. How much worse would it be were that legal course of distribution to be widened into total availability on a parity with, say, alcohol? Would states like West Virginia come to increasingly resemble the Pine Ridge Reservation?
 
Oct 2011
7,595
MARE PACIFICVM
#57
On the one hand, I'm also inclined to agree that the drug war is worth ending. To play Devil's Advocate, though, there are countries in which drugs are just as illegal, yet which do not end up mass incarceration states in the bargain, so the link between "drug prohibition" and "mass incarceration" is not one to one. Likewise, there are examples of "legal" drugs -- the best example being alcohol -- which really do hit certain groups very hard, such as Native Americans, in ways which might only be effectively limited through genuinely effective prohibition measures. Here is an article which refers to one particular instance of this, involving the Pine Ridge Indian Reservation:



This is the outcome which drug illegalization is intended to stop, and when actually in effect, it probably has a non-zero impact. After all, regardless of what externalities prohibition in America may have had, it also seems to have been successful at reducing alcohol consumption:



In short, if the goal of prohibition was to reduce alcohol consumption, then it seems to have worked.
Frankly, I'm not comfortable with any law which limits what adults may do to their own bodies. In general, I'm a strong supporter of individual sovereignty over one's own bodily affairs. It is true that enforcing this principle results in a non-trivial increase in substance abuse. I'd rather live in a society that allows the choice to use drugs than one where the government imposes itself in such a way that it forcefully disallows that sort of thing.

It did not work perfectly, but neither does nearly any law; murders, assaults, rapes, thefts, they all still happen despite the law. And even today, we see that public alcohol consumption is often at the heart of one of the problems over which our society is currently squabbling: sexual assault. If we abandon "drug prohibition," then it's likely that drug usage will increase in America, and a number of the negative externalities we already face regarding drug usage will quite possibly increase, the difference being that we won't be able to lock those externalities away from the rest of society by funding prisons.
Nonetheless, while I'm all for punishing criminals who harm others (whether sober or intoxicated), I cannot condone illegalizing drug use or alcohol consumption because there is an increased statistical likelihood of criminality. It is too close to thought-crime for my taste. Especially considering that, even though substance use does increase the likelihood of such behavior, the vast majority of alcohol and drug consumers never commit sexual assualt or any other violent crime.

The point of this brief Devil's Advocate tangent is not to demand that anyone love and support drug prohibition, but rather to emphasize that while ending the war on drugs might come with some economic benefits, the social and political challenges which accompany that move, at least in a society like America, will likely be both expensive in their own right and logistically difficult to execute. The opioid epidemic, for example, is largely fueled by drugs which are produced legally and have a legal course of distribution. How much worse would it be were that legal course of distribution to be widened into total availability on a parity with, say, alcohol? Would states like West Virginia come to increasingly resemble the Pine Ridge Reservation?
It's a fair point. One which is convincing enough to have won over the population at large and the politicians for generations. Ending the Drug War is becoming an increasingly popular idea, but the legalization of all drugs for adult use is still a minority position. Nonetheless, I'm convinced in this instance that my position is correct despite being in the minority. "My freedom to swing my fist ends where your face begins", (and not beforehand). I believe the proper place for government involvement is at the point where one individual harms another, or is actively making an attempt to do so, and not before then.
 
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Fox

Ad Honorem
Oct 2011
3,805
Korea
#58
Frankly, I'm not comfortable with any law which limits what adults may do to their own bodies.
Generally speaking, that is my inclination as well. I do think it's worth drawing a distinction between the principled suggestion that we ought not to lay such limitations, which is a kind of ethical claim which defies analysis in terms of outcome, and a utilitarian suggestion that we ought not to lay such limitations, which relies upon outcome analysis. You (and I) are sympathetic to the former position, but many people invoke the latter position in their rhetoric on this matter, and while some information exists which is favorable to that view, the extent to which the total available data supports that position seems somewhat more ambiguous to me. Perhaps more relevantly, if we do accept the libertarian suggestion that no law ought to limit what adults may do to their own bodies, then a rational accompanying principle is that the full costs of those choices are to be borne by the individual adult in question, which is internally consistent, but might make the sort of social policies which could mitigate the negative societal impact of drug legalization difficult to implement, exacerbating the potential fallout of legalization. After all, if others are forced to bear the consequences of your choices, that's similar in character to your "fist" hitting their "face" while you're swinging it about. Hypothetically speaking, if the end result of the implementation of this principle ended up increasing rather than decreasing criminality in the long term due to increased social stratification and the cultural "meltdown" of certain regions populated by demographics which were especially vulnerable to drug addiction and possessed of a tendency to fuel their addictions through crime, would you still support it? I'm not saying that is necessarily the outcome we'd see, but I'm not certain it's not.
 
Oct 2011
7,595
MARE PACIFICVM
#59
Generally speaking, that is my inclination as well. I do think it's worth drawing a distinction between the principled suggestion that we ought not to lay such limitations, which is a kind of ethical claim which defies analysis in terms of outcome, and a utilitarian suggestion that we ought not to lay such limitations, which relies upon outcome analysis. You (and I) are sympathetic to the former position, but many people invoke the latter position in their rhetoric on this matter, and while some information exists which is favorable to that view, the extent to which the total available data supports that position seems somewhat more ambiguous to me. Perhaps more relevantly, if we do accept the libertarian suggestion that no law ought to limit what adults may do to their own bodies, then a rational accompanying principle is that the full costs of those choices are to be borne by the individual adult in question, which is internally consistent, but might make the sort of social policies which could mitigate the negative societal impact of drug legalization difficult to implement, exacerbating the potential fallout of legalization.
I agree with you that such an accompanying principle is rational, but here I tend to take a more practical line. My view is that in a society where everyone is given a free choice, and where markets remain mostly unregulated, there will be a tendency towards creating winners and losers. This is a natural process that benefits society by ensuring those most competent at playing the right "games" rise to the top and thus have the resources to drive us forward as a civilization. This is not something we should be ashamed of, but nonetheless, on a practical level we must recognize that the losers of these games must be provided with a reasonable chance of re-entering the game. If they are not, and enough of them accumulate at the bottom, they will simply refuse to play the games at all, and that is when we get revolt, revolution, turmoil, civil war, etc.
To mitigate this, I think it is both expedient and ultimately necessary for the state to provide a "safety net", such that those who have lost "the game" once can take what they've learned and re-enter the fray in a renewed attempt to succeed. The upside of such a system is that many will learn their lessons from the beating they took in their first go around, and will become succesful in a later attempt. We all know people who had a checkered youth but ultimately made good after a series of failures.
On the other hand, any such system will inevitably attract those losers who have given up hope of ever being able to win and who only want to scrape enough from the state to survive for free while contributing as little as possible. This is a problem that tends to drive Conservatives crazy, but it is my belief that dealing with the free-loaders is a price worth paying to maintain stability and provide a ladder for reentry into the free market for those at the bottom.

After all, if others are forced to bear the consequences of your choices, that's similar in character to your "fist" hitting their "face" while you're swinging it about. Hypothetically speaking, if the end result of the implementation of this principle ended up increasing rather than decreasing criminality in the long term due to increased social stratification and the cultural "meltdown" of certain regions populated by demographics which were especially vulnerable to drug addiction and possessed of a tendency to fuel their addictions through crime, would you still support it? I'm not saying that is necessarily the outcome we'd see, but I'm not certain it's not.
Yes, I would still support the freedom to choose even knowing that allowing such a choice may ultimately lead to greater criminality. Perhaps this greater criminality could be dealt with, at least in part, by switching a fraction of the cost currently spent in the War on Drugs towards better policing to deal with the increase in criminality, and to fund additional applied addiction research to find the most effective ways of dealing with the social problem of drug use without simply locking users up.
 
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