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.
This is a fairly classic problem, well-presented. There's a credible argument to be made for treating them the same, but I don't think it's a utilitarian argument.
For these purposes, we can assume that the driving was within normal DUI parameters. The situation gets much easier for people going the wrong way on the freeway, or going 115 on surface streets; they’re murderers. It’s also easy to justify very, very long sentences for very bad driving that kills.
So, the question is why this is treated this way, for which we have an answer:
The law needs to crack down harder when there are actual victims, in order to >provide the victims and families a sense of justice done.
Yep, that. There’s been more harm done.
This is understandable, but surely if we accept this argument, we could >nonetheless satisfy the concerns above by punishing the morally lucky more >severely, not punishing the morally unlucky less severely. This could result in far too many serious, high-level trials. This might be true as far as it goes; however, enforcing strong sentences on the >morally lucky would certainly provide a stronger deterrent, which would provide a >countervailing tendency to the above.
Sure, prison time (as opposed to jail time) for every person who gets a DUI would be a deterrent. But it’s not a good use of societal resources. You’re putting teachable people in prison, useful people. And you don’t have the gain of victims’ families coming in exchange for that.
There’s real utility in having some sense of justice to the family, friends, and community when people are extinguished.
I’d further note that the driving matters for sentencing. If you’re at a .10% BA (and you shouldn’t be; for a 170-pound guy, that’s five or six beers in an hour) and you change lanes without looking and spin out the car next to yours, killing the driver, you can expect things to go better than if you’re at a .22% and run a light in a school zone at 80 and kill someone.
The sentencing will be far less - but still different - in those situations if you don’t hit and injure anyone; the first guy gets pulled over with no collision, and in my jurisdiction, he’ll get 2 days jail (fake jail - plenty of ways to avoid) and fines and fees of a little over $2K. The second driving pattern is going to get you 90 days in jail, at least. (Recidivists get more.)
Let me add another another wrinkle: Megan, at the same bar with Alice and Yelena, drives perpendicular to the two and hits another pedestrian. Alice’s victim’s family want Alice to be incarcerated forever, while Megan’s victim’s family wants her to get off with a warning, and none-too-stern a warning at that. I think this should matter some, though Megan's got to do some significant time, and Alice isn't going to get incarcerated forever.
On the jury issue, I'm not sure there's a better way, but the only ways I know from experience are judges and juries. Juries are not suckers; the joining of 12 is often better than one really smart person. The jury system works pretty well; I’ve been burned (on a couple of occasions severely) by jurors wandering off the reservation, but for the most part, juries do a very good job. Judges usually do a good job, too.
Some LW’ers would doubtless make excellent jurors, but some would not; Judge Judy Sheindlin gets most of her cases right because she reads people well and she has a long history of hearing the same lies, which she catches very quickly. Lack of socialization skills may lead to trouble as a juror. Some of the proposals on this thread would lead to substantially less accurate verdicts; not everyone is going to get excited about math.
The problem with leaving it with the pros is that some degree of corruption would be inevitable. There would be more efforts to go toward particular fact-finders. (The somewhat parallel efforts to screen juries with challenges of various sorts are different - jurors aren’t well-known to the parties - and are, IMO, a very good idea; people who criticize peremptory challenges are seldom people intimately familiar with the system.)
The current system works surprisingly well; outlier-bad results get a lot more press than the many good result. Remember, the McMartins were acquitted and Scott Peterson got convicted.
That's not to say bad results don't occur, and certainly not to say that questing for improvements - even, or perhaps especially, marginal, incremental improvements - isn't a very good thing.
Finally, one statement you make, “the evidence against Truscott being entirely circumstantial,” implying that such evidence must therefore be weak, is mistaken as a matter of logic. Circumstantial evidence can be far more devastating than direct eyewitness evidence. I’ve prosecuted plenty of circumstantial evidence cases (one of which got some national press), and if you think about it, you’ll see that such evidence can be crushing. Fingerprints are circumstantial evidence. Standing in a pool of blood with the victim at your feet and a gun in your hand is going to cause people to think you shot the victim. And rightly so.
And if you're lying about things, people are going to suspect of doing so for a reason. And rightly so.
[I speak for me. I'm a prosecutor, but I don't speak for my office.]
There's a credible argument to be made for treating them the same, but I don't think it's a utilitarian argument.
Is it the same argument which is implicitly contained in the OP, e.i. "dangerous behaviour should be punished and circumstances which the perpetrator can't know in advance should make no difference"?
Problem with this is that it is extremely difficult to measure the inherent danger of the behaviour. What is the probability of killing somebody when driving drunk? How to test it? Even if the killer was tested on his ability of safe dru...
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?