Beccaria and Punishment


 

22 Beccaria and Punishment

Beccaria says that punishment should be based on the harm done to society not the actor.

Which does more harm to society: 1) manipulating the companys books to reflect profits when in fact the company was losing money or 2) robbing a grocery store and taking $180 from the register while threatening a crowd of people with a firearm?

The collapse of the company caused the loss of all the employees pensions and benefits. The company had more than twenty thousand employees, many close to retirement. The profit and loss manipulations of the companys books made the officers of the companies, millionaires many times over.

Who does more harm to society? Why?

What punishment would be appropriate?

My Answer –

Manipulating the company’s books does more harm to society.

Retirees are probably between 50 and 70 at most companies. For many the loss of pensions will mean delayed retirement and years of more labor. For those unable to continue working, this means living off social security which average 1, 250 dollars a month. Generally speaking the elderly are sicker than the general populations and living on a tiny budget often means going without food, medicine or adequate housing.  In these situations, the elderly may have to choose which prescriptions medicines to buy and which ones to try to live without.

But even more, these individuals thought that they would have a surplus of money beyond their basic needs. After all, they worked for it and sacrificed for it.

For these people, there will be no vacations, there will be no helping hand extended to children and grandchildren in need,  there will be no retirement in Florida, or on the beach or the waterfront or in the mountains – just wherever it’s cheapest to live.

These retirees might live another ten or twenty years, every single night staring at the ceiling wondering whether there will be enough money for groceries or medicine. – ten or twenty years going without a car, not going anywhere, not ever eating out or going to a movie.  Their pain is almost endless.

Yet, the person who cooked the books, who stole tens of millions of dollars, in some cases, hundreds of millions of dollars, will appear in court in a fine suit with fine recommendations from his wealthy and well placed friends. He is unlikely to spend much time in jail, and when in society, his friends and family will not ostracize him but welcome him back.

This second insult to society does far more harm than either crime in itself because this reprobate getting away with little or no penalty does serious harm to the moral fabric of society. This kind of “justice” harms us all.

James Pilant

From around the web.

From the web site, Kate Prudchenko.

http://kprudchenko.wordpress.com/2012/10/27/beccaria/

Beccaria is very deliberate in his approach to analysis. He views the law as a tool for preventing violence and suffering, rather than a tool for punishment. He defines laws as “the terms under which independent and isolated men come together in society” (Williams 442). Rather than advocating for extreme individualism, he argues for some restrictions on freedom for the good of society as a whole. Beccaria views individuals outside of society as men who are “wearied by living in an unending state of war” whose freedom is made useless because there is “uncertainty of retaining it” (Williams 442). According to him, men sacrifice a certain degree of freedom in order to live in the sovereign of the nation and “the sovereign is the legitimate repository and administrator of these freedoms” (Williams 442).

New York Detective Helped Convict the Innocent


 

c37aNew York Detective Helped Convict the Innocent

http://www.salon.com/2013/06/22/retired_nyc_homicide_detective_investigated_for_misconduct_wrongful_convictions_partner/

This officer’s work apparently involved railroading the innocent with the full cooperation of a number of prosecutors in more than fifty cases.
I hope you have the opportunity to work in a prosecutor’s office. I believe in justice but prosecutorial discretion is too broad and the desire not for justice but for a good “kill” ratio often outranks justice as a priority in some of these offices.
Here is an important quote from the article:

“The prosecutor’s duty to the truth arises from several sources,” Gershman wrote. “The most important source is the prosecutor’s role as a minister of justice. In this role, the prosecutor has the overriding responsibility not simply to convict the guilty but to protect the innocent. The duty to truth also derives from the prosecutor’s constitutional obligation not to use false evidence or to suppress material evidence favorable to the defendant. The duty to truth also arises from various ethical strictures that require prosecutors to have confidence in the truth of the evidence before bringing or maintaining criminal charges. The duty is found as well in the prosecutor’s domination of the criminal justice system and his virtual monopoly of the fact-finding process.”

This quote parallels my views on the subject. Justice is not equal to God but stands high in its importance to morality and a life worth living.

Please read the full article.

James Pilant

From around the web:

From the web site, TOT Private Consulting –

http://privateinvesigations.blogspot.com/2013/03/nypd-detective-who-got-innocent-man.html

The NYPD detective whose corner-cutting investigative work, combined with a community’s blood lust for quick justice, put an apparently innocent man in prison for 23 years insists he’s being scapegoated by the very district attorney who pushed for the conviction.
 
“They threw me under the bus,” Louis Scarcella told The Post yesterday after DA Charles Hynes indicated he’d asked a judge to vacate David Ranta’s conviction, more than two decades after Ranta was found guilty of murdering a prominent rabbi in Williamsburg.

“I was appalled when I got the news,” the retired cop said outside his Staten Island home. “I stand by the confession 100 percent. I never framed anyone in my life. You have to be a low devil to frame someone. I sleep well at night.”

While Scarcella was sleeping, Ranta, 58, was languishing in a Buffalo prison, convicted of the February 1990 murder of Rabbi Chaskel Werzberger after a botched jewelry heist in the Orthodox Jewish community.
From the web site, General Strike –

An ‘overwhelmed’ David Ranta left prison with a small bag of belongings and  family members ecstatic to see him outside of his cell. His conviction began to  fall apart when it was revealed that case detectives used questionable tactics  in his case, including coaching witnesses.

An innocent man was sprung from prison Thursday — more than 20 years after he  was wrongfully convicted of killing a beloved Brooklyn rabbi.

David Ranta, 58, could barely contain his excitement, smiling broadly at  relatives who hadn’t seen him as a free man since his 1991 conviction. Ranta was  found guilty of shooting Rabbi Chaskel Werzberger in a botched jewelry heist in  Williamsburg.

The conviction crumbled after a year-long investigation revealed case  detectives coached witnesses, did not keep notes and gave incentives to felons  who provided information.

And from the web site, From the Trenches –

http://www.fromthetrenchesworldreport.com/who-protects-new-yorkers-from-the-nypd/44295

Heyward is not alone in his suspicion of foul play in Hynes executions of justice. The DA has recently come under great scrutiny for spending years refusing to review convictions that he and his predecessor obtained through working with a homicide detective of such dubious repute. Last week, the Hynes office was forced to reopen 50 cases in which NYPD Detective Louis Scarcella was involved, after the Times uncovered that he obtained false confessions, lied, and relied on testimony from a single, crack-addicted prostitute to obtain a number of convictions. While families of those convicted through Scarlla’s police plan to start bird-dogging Hynes, others, like Heyward, have vowed to win justice for those they will never see again.

“It doesn’t matter how long I have to be out here fighting and exposing the reality of what happened. I’m going to keep at it,” said Heyward who believes there is a clear conflict of interest between New York City’s DAs and the NYPD since they are both on the same side of the law. “When cops are involved, it’s like district attorneys forget how to prosecute.”

“I’m overwhelmed,” Ranta said outside a courtroom in downtown Brooklyn,  carrying a purple laundry bag with all his belongings. “Right now, I feel like  I’m underwater, swimming.”

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Time for a Legal Revolution


063Time for a Legal Revolution

Public defender system struggles under huge caseloads | McClatchy

Anyone who’s ever been arrested or watched a television cop show knows the fundamental right Gideon helped win for every American:

“If you cannot afford to hire a lawyer, one will be appointed to represent you.”

But this month, the 50th anniversary of that landmark Supreme Court ruling, here in Gideon’s home state and elsewhere around the country, the criminal justice system continues to struggle to live up to the promise demanded by the Supreme Court in 1963.

“The truth is we clearly haven’t,” said Abe Krash, a Washington, D.C., lawyer who helped represent Gideon in his Supreme Court case. “In public defender offices, there are many extremely conscientious attorneys, but they are tremendously underfunded and overburdened.”

A 2011 report by the Justice Policy Institute found that most of the country’s public defender offices and systems lacked enough attorneys to meet nationally established caseload guidelines. Also, the report found that most defender offices did not have sufficient support staff, such as investigators and paralegals.

“When defenders do not have access to sufficient resources, they may be unable to interview key witnesses, collect or test physical evidence, or generally prepare and provide quality defense for their client, resulting in poorer outcomes for the client,” according to the institute’s report.

Public defender system struggles under huge caseloads | McClatchy

 

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Change the Legal System?


109Change the Legal System?

Commentary: Right to counsel? It’s stacked against the poor | McClatchy

It turns out there is a gulf between the 1963 promise and the 2013 reality. It turns out one lawyer can be expected to try 400, 500, 600 cases a year. It turns out public defenders are so underfunded and overwhelmed it is not uncommon for a defendant to meet his attorney for the first time in court. It turns out the situation is so dire that in at least one jurisdiction a judge pressed tax attorneys and property lawyers into service in criminal court. It turns out poor people’s justice is to justice as monkey business is to business.

Ask Clarence Jones, who spent over a year in prison just waiting for an attorney — and was still there as the book went to press — on a charge of burglary.

Ask Carol Dee Huneke, a novice lawyer with no experience in criminal law who was hired as a public defender on a Thursday and assigned a case that began Monday. She had never even seen a trial before.

And ask Greg Bright, who spent 27 years in prison on a murder charge he might have easily beaten, writes Houppert, had his court-appointed attorney done even minimal investigation on his behalf. As a later attorney discovered, the single witness the state’s case hinged upon was a mentally-ill heroin addict with a history of hallucinations who physically could not have seen what she claimed she did.

Twenty-seven years. “Make me wanna holler,” indeed.

What is reflected here is not simply incompetence but disdain, contempt for the rights, lives and humanity of the less fortunate. And perhaps your instinct is to look away, secure in the naïve delusion that no one gets arrested unless they’ve “done something.” Truth is, it happens every day.

Commentary: Right to counsel? It’s stacked against the poor | McClatchy

 

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Police Theory, Manoje Nath


Police Theory, Manoje Nath
Police Theory, Manoje Nath
Police Theory, Manoje Nath

Musings, the web site of Manoje Nath:

What Law? Whose order?

Law and order is a tricky business and the best of us are sometimes tested and found wanting largely because of the ambivalence of the mandate of police. Law is codified, made formal in various acts-the IPC, CrPC, evidence, etc. But what is order? Is there a permanent, ordained, immutable order? A preferred order? An ideal state of order? The construction of the meaning of order is exclusively the area of police expertise.

The law obligates a police officer of appropriate rank present on the scene of trouble to do everything within his legal means to prevent trouble and disperse the mob. It is a responsibility, not a privilege and powers to discharge this responsibility inhere in him; he does not enjoy it during the pleasure of somebody. Now the DGP says it was on his orders that the police force did not react. That says it all. Law must take a bow before the dictates of order

Musings

I have great respect for the thinking of my colleague and friend, Manoje Nath. We in America should pay more attention to the ideas and philosophy of criminal justice. Surely, the experiences of policing in a nation of 1.4 billion people have have some valuable lessons.

The short excerpt above does not do justice to the article. It is constructed in a carefully designed pattern, very fine writing. So, I recommend you go read the article in its entirety. In addition, I couldn’t help but notice that his remarks were published in a good number of Indian publications.

James Pilant

P.S. This may seem off the pattern of business ethics but I also teach criminal justice courses and justice is a critical element in ethical analysis.  (JP)

From around the web –

From the the Recommendations of the Malimath Committee on reforms of Criminal Justice System: (This is a very small piece of a very large set of recommendations.)

1. Need for Reforms
It is the duty of the State to protect fundamental rights of the citizens as well as the right to property. The State has constituted the criminal justice system to protect the rights of the innocent and punish the guilty. The system, devised more than a century back, has become ineffective; a large number of guilty go unpunished in a large number of cases; the system takes years to bring the guilty to justice; and has ceased to deter criminals. Crime is increasing rapidly everyday and types of crimes are proliferating.

The citizens live in constant fear. It is therefore that the Govt of India, Ministry of Home Affairs constituted the Committee on reforms of Criminal Justice System to make a comprehensive examination of all the functionaries of the Criminal Justice System, the fundamental principles and the relevant laws. The Committee, having given its utmost consideration to the grave problems facing the country, has made its recommendations in its final report, the salient features of which are given below: …

From the web site, Daily News and Analysis, from an article by Rakesh Bhatnagar.

Way back in 1604, House of Lords Judge Sir Edward Coke ruled that “the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.” There was serious concern for the privacy of a living a being as the contested and universally acceptable verdict says “The midnight knock by the police bully breaking into the peace of the citizen’s home is outrageous in law’. Agreeing with him, Justice Douglas explained that the Free State offers what a police state denies – the privacy of the home, the dignity and peace of mind of the individual.

“That precious right to be left alone is violated once the police enter our conversations,’’ the two thinking judges said as they unwittingly laid the foundation of the hope for a nation “where the mind is without fear and the head is held high…”

It’s a pleasant surprise that Lord Coke’s concern was echoed recently by Indian Supreme Court judges AK Patnaik and Swatanter Kumar as they examined the significance of the Right to Information Act.

And finally from the web site, a PDF file, MEASURES FOR CRIME VICTIMS IN THE INDIAN CRIMINAL JUSTICE SYSTEM by Kumaravelu Chockalingam: (This is a very brief section from a 13 page paper. jp)

II. OVERVIEW OF THE INDIAN CRIMINAL JUSTICE SYSTEM
India derived its criminal justice system from the British model. There is a clear demarcation of the role
and powers and functions of the Legislature, Executive, and Judiciary. The judiciary is independent and there
is a free press. The penal philosophy in India has accepted the concepts of prevention of crime and treatment
and rehabilitation of criminals, which have been reiterated by many judgments of the Supreme Court.
Victims have no rights under the criminal justice system, and the state undertakes the full responsibility to
prosecute and punish the offenders by treating the victims as mere witnesses.

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My Welcome to My New Students in Criminal Justice!


Welcome!

I want to welcome you to this class. I always consider these joint endeavors in which both you and I trying to learn something in a complicated and exciting field.

 

Studying criminal justice is illuminating. It is a difficult field for many reasons. It deals with subjects that may have personally affected us. It deals with injury and death, often with the most unseemly of human actions. It also deals with psychological problems of the most serious and disturbing kind.

 

Please be aware that much of what you have seen on television is rank nonsense to those educated in the field. On television and often in movies, the law is often interpreted incorrectly, serial killers are portrayed as geniuses moving effortless through the population killing at will, and forensic crime solving is portrayed as well funded and almost always successful in finding the perpetrator. We will learn better.

 

Criminal justice in America is executed through thousands of law enforcement agencies in a bewildering set of jurisdictions often governed by contradictory and controversial laws. That it works at all is surprising and that is that it has serious problems a given.

 

You are going to be the future of criminal justice. As professionals, you will advance to become decision and policy makers. The understanding you acquire now may very well change the lives of thousands in the course of your life time.

 

I salute your willingness to engage in this difficult area of study and a lifetime of service to society at large.

 

James Pilant

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Typical academic consideration of police lying (via Allcoppedout’s Blog)


Here we discuss police lying and the legal fictions that figure so much in the language and practice of criminal justice. I like this paragraph –

My own belief is we are scared of transparency, partly because all our cupboards hide skeletons. When the ‘red witch’ placed at the heart of the hacking scandal admitted she knew her organization had paid police officers, this was seen as a blunder and admission of ‘criminality’. This is not the right approach and seems to be putting people we want to tell the truth in the same position as the police officer having to ‘game’ in the legal system.

I agree we do not value the truth so much as we value playing some strange kind of game designed to elude responsibility and honor.

James Pilant

Police lying is not best described as a “dirty little secret.”‘ For instance, police lying is no “dirtier” than the prosecutor’s encouragement or conscious use of tailored testimony2 or knowing suppression of Brady material;3 it is no more hypocritical than the wink and nod of judges who regularly pass on incredible police testimony4 and no more insincere than the demagogic politicians who decry criminality in our communities, but will not legisl … Read More

via Allcoppedout’s Blog