Wednesday, July 04, 2007

Looking Good While Failing

I'm too close to this to really write about it in a straightforward manner. The knowledge comes from things that are confidential. Yet this is really important, something that is daily eroding... what? Civilization? The American Dream? My faith in government and my fellow man?

Maybe process over product is just business as usual for the world at large and it only offends me.

Have you ever wondered how criminal defense attorneys can do what they do? Their job is to make sure that as many rapists, murderers, burglars and drug dealers walk the street as possible. I've wondered and I've asked them. The reply is almost universal- they serve a machine called justice and they are the lone guardians to prevent the evil power of the state from arbitrarily crushing the little guy. Their job is not to defend the accused, but to force the authorities to behave properly and prove the allegations. They are, in a deeper way, defending the system. Some even try to sound noble about it.

I don't have a problem with that. In essence, I am a tool of the state specially authorized to use force to maintain order and prevent predation. That's a lot of potential power and it is good and necessary for there to be checks, balances and critical eyes on how I use that power.

But what if that argument went to absurdity? What if a murderer/rapist with his semen on the victim, her blood on his clothes and pieces of his skin under the victim's fingernails would walk if there was a misspelled word in a report? What if the prosecution were only allowed to testify with impersonal facts and the defense could bring in emotions, the effect of a conviction on an elderly mother and personally attack unrelated aspects of the prosecution's character: "Officer, you've arrested seventeen rapists. Do you have a problem with rape? Is this some kind of personal vendetta?"

What if the judge were required (or just chose to) give equal weight to all arguments whether they were based on fact or emotion? Even if they were blatant lies (but only from the defense side, because of the great responsibility of keeping in check the power of authority).

There is a section of our society where this is happening. (READ WELL- THIS IS NOT HAPPENING IN THE CRIMINAL JUSTICE SYSTEM. THAT WAS JUST THE CLOSEST ANALOGY I COULD FIND THAT WOULD BE FAMILIAR) I just got a taste of the statistics and it looks like a 96% rate of finding for the defendant, some of whom have done outrageous things.

That's unacceptable and it's disfunctional. Worse is the reaction to it.

I'm a tactical guy. I can't survive a 96% failure rate. When what you are doing isn't working, you need to change something. Anything else is insanity. You either change what you are doing or you change the environment. Using the court analogy, if you can't change the way you present cases, you change the way cases are decided. Change the way judges are chosen, something.

Scary? Messing with any institution is scary. In the anaolgy, though, it means that 96% of predators would be out on the hunt. The word that this is the situation encourages more to give the dark side a try. The guys being good see no penalty for being bad and feel worthless, marginalized and taken advantage of.

The response in real life is to do the same thing as always, just 'better'. "We lost that one on a misspelled word, so let's use that spell check next time, people!" The failures are looking better and better all the time. But they're still failures.

I'm not sure what to do about this. People are getting hurt because a system has lost sight of what it was originally designed to do- protect people. All the players in the system have their turf, they are entrenched in a system with a huge amount of legal precedent. One side is perhaps the biggest political player there is... they will defend their role, as they see it, mightily.

And all the while, people are getting hurt.


Kai Jones said...

Using human judgment is the best way. The attraction of formulating a system of rules is that it *seems* less gamable, less subject to fraud and corruption. It's not really, the fraud and corruption just go a different way.

Add to that the piece that nobody ever thinks of themselves as the victim of a crime, only as the falsely-accused innocent victim of the justice system, and you get rules lawyers.

Sometimes I think I must be writing in shorthand; I just expect you to get it. Is this enough, or do I need to expand?

Anonymous said...

Life, society, humans all evolve through a process of catastrophic change (see the paper on this by the French mathematician Rene Thom). The function of government (institutions) is maintenance - although they pretend (and spend billions of dollars of tax money) to be a force for change. Thus anarchists and Libertarians (just a joke). But only societal catastrophy (Vietnam protests - as close as this country has ever gotten to a French revolution) will create that change, because only a widespread and intense wash of emotionality will create such change.