If I'm some rich dude, I could totally murder my wife, so long as I convince the jury I won't get married again.
I think they could make more general inferences than that.
And "whether or not they are found guilty" basically means you could jail anyone you feel like off the street, provided you can convince an insurer that they're dangerous. Since they'll be in jail,
I think I might have been unclear about how it would work. In order for someone to be jailed, you wouldn't have to convince just one insurance company; you'd have to convince them all, even (appropriately capitalized) mutualist agencies the person belongs to. Insurers wouldn't have any more power to put you in jail than they currently have to prevent you from driving: they can only decide whether their company will insure you, not whether all companies will refuse to insure you.
As I imagine it, jail wouldn't be something anyone specifically imposes; it emerges out of the combination of your high estimated risk level and your inability to afford insurance except when confined to a secure facility. (And, of course, depending on the society, insurance could be subsidized out of tax revenue so that the poor aren't automatically locked up. In a way, governments already vouch for the poor, it's just that they don't pay out to any victims.)
Except for the very dangerous, it wouldn't make sense to have arbitrary imprisonment, given competition in the insurance market and ease of entry by non-profits.
As for the rich: setting up the right incentives so that they don't abuse others with (relative) impunity is a problem under any system, no matter how much it relies on jails. Even if jail is a possibility, they have far more resources with which to manipulate the justice system.
Someone extremely rich who has also revealed willingness to commit serious crimes is that much more dangerous and would have to consent to far more restrictions to buy insurance or set up a valid insurer. The cost is not just compensation paid, but in being regarded as a greater risk in direct proportion to their higher wealth.
Edited to fix some phrasing and change the excerpt I was using in the first quotation.
As I imagine it, jail wouldn't be something anyone specifically imposes; it emerges out of the combination of your high estimated risk level and your inability to afford insurance except when confined to a secure facility.
... and we could offer those imprisoned a chance to earn the required money through a system of gladiatorial combat! If you win enough fights and survive the rest then you will have a chance to earn your freedom! Some people may even elect to sell themselves into the system to cover their existing debts and secure their family financially. Good old fashioned capitalism at play!
The following will explore a couple of areas in which I feel that the criminal justice system of many Western countries might be deficient, from the standpoint of rationality. I am very much interested to know your thoughts on these and other questions of the law, as far as they relate to rational considerations.
Moral Luck
Moral luck refers to the phenomenon in which behaviour by an agent is adjudged differently based on factors outside the agent's control.
Suppose that Alice and Yelena, on opposite ends of town, drive home drunk from the bar, and both dazedly speed through a red light, unaware of their surroundings. Yelena gets through nonetheless, but Alice hits a young pedestrian, killing him instantly. Alice is liable to be tried for manslaughter or some similar charge; Yelena, if she is caught, will only receive the drunk driving charge and lose her license.
Raymond, a day after finding out that his ex is now in a relationship with Pardip, accosts Pardip at his home and attempts to stab him in the chest; Pardip smashes a piece of crockery over Raymond's head, knocking him unconscious. Raymond is convicted of attempted murder, receiving typically 3-5 years chez nous (in Canada). If he had succeeded, he would have received a life sentence, with parole in 10-25 years.
Why should Alice be punished by the law and demonized by the public so much more than Yelena, when their actions were identical, differing only by the sheerest accident? Why should Raymond receive a lighter sentence for being an unsuccessful murderer?
Some prima facie plausible justifications:
Trial by Jury; Trial by Judge
Those of us who like classic films may remember 12 Angry Men (1957) with Henry Fonda. This was a remarkably good film about a jury deliberating on the murder trial of a poor young man from a bad neighbourhood, accused of killing his father. It portrays the indifference (one juror wants to be out in time for the baseball game), prejudice and conformity of many of the jurors, and how this is overcome by one man of integrity who decides to insist on a thorough look through the evidence and testimony.
I do not wish to generalize from fictional examples; however, such factors are manifestly at play in real trials, in which Henry Fonda cannot necessarily be relied upon to save the day.
Komponisto has written on the Knox case, in which an Italian jury came to a very questionable (to put it mildly) conclusion based on the evidence presented to them; other examples will doubtless spring to mind (a famous one in this neck of the woods is the Stephen Truscott case - the evidence against Truscott being entirely circumstantial.
More information on trial by jury and its limitations may be found here. Recently the UK has made some moves to trial by judge for certain cases, specifically fraud cases in which jury tampering is a problem.
The justifications cited for trial by jury typically include the egalitarian nature of the practice, in which it can be guaranteed that those making final legal decisions do not form a special class over and above the ordinary citizens whose lives they effect.
A heartening example of this was mentioned in Thomas Levenson's fascinating book Newton and the Counterfeiter. Being sent to Newgate gaol was, infamously in the 17th and 18th centuries, an effective death sentence in and of itself; moreover, a surprisingly large number of crimes at this time were capital crimes (the counterfeiter whom Newton eventually convicted was hanged). In this climate of harsh punishment, juries typically only returned guilty verdicts either when evidence was extremely convincing or when the crime was especially heinous. Effectively, they counteracted the harshness of the legal system by upping the burden of proof for relatively minor crimes.
So juries sometimes provide a safeguard against abuse of justice by elites. However, is this price for democratizing justice too high, given the ease with which citizens naive about the Dark Arts may be manipulated? (Of course, judges are by no means perfect Bayesians either; however, I would expect them to be significantly less gullible.)
Are there any other systems that might be tried, besides these canonical two? What about the question of representation? Does the adversarial system, in which two sides are represented by advocates charged with defending their interests, conduce well to truth and justice, or is there a better alternative? For any alternatives you might consider: are they naive or savvy about human nature? What is the normative role of punishment, exactly?
How would the justice system look if LessWrong had to rewrite it from scratch?