29 July 2020

The Measure of a New Criminal Law

I've been trying to come up with a model for determining what the effects of a new criminal procedure statute are and think I've come up with a workable model. 

[Elitist] E5 . . . E4 . . . E3 . . . E2 . . . E1 . . . 0 . . . D1 . . . D2 . . . D3 . . . D4 . . . D5 [Democratic]

[Defense] D5 . . . D4 . . . D3 . . . D2 . . . D1 . . . 0 . . . P1 . . . P2 . . . P3 . . . P4 . . . P5 [Prosecution]

 R5 . . . R4 . . . R3 . . . R2 . . . R1 . . . 0 . . . O1 . . . O2 . . . O3 . . . O4 . . . O5
[Individual Rights]-5 . . . -4 . . . -3 . . . -2 . . . -1 . . . 0 . . . 1 . 5 [Societal Order]
You could picture this as a 3D model, but I'm not competent enough with 3D modeling to give you a graphic much above crayon level. So, you'll get it as coordinates: [Statute] (D1,0,R2).

Elitist-Democratic: There is a disturbing tendency in the American judicial system to move toward autocracy. This seems to happen no matter the political leanings of those passing laws and it's understandable behavior.  Juries are messy and the ultimate indicator of local democratic decision making. The best form of this would be a jury finding innocence-guilt and, if it finds a defendant guilty, setting the sentence. And that perturbs just about anyone in the legal system from lawyers to judges to legislators. Juries are inefficient, inconsistent, and consider factors they shouldn't no matter how often they're told not to. Their primary sin in the eyes of the legal elites is that they are not a controlled, predictable factor and everyone hates that. A D5 here would be a system in which juries are a default that has to be waived by both parties and the judge, juries sentence, and even upon a plea of guilty juries sentence in serious crimes (rape, murder, robbery). A E5 here would be a system in which juries are theoretically allowed at the behest of the defense only, but for all practical purposes are banned by a combination of laws, practices, and procedures. Virginia's current location on this scale is probably somewhere between a E3 to E4 (and I doubt many States are different). Very good in theory. Withering on the vine in reality.

Defense-Prosecution: Pretty self explanatory. As a side note, let me say that in order to avoid any bias, I used a random number generator (1-5=Defense; 6-10=Prosecution) to choose which would be positive and which would be negative numbers. I even went best three out of five (Number Order was 8,7,8,3,5).

Individual Rights - Societal Order: While these two don't necessarily oppose each other, in every society they are going to conflict at some point. Thus, they make a useful semi-dichotomy.


Let's test this out by running Virginia's brand new jury selection law (voir dire) through it. § 19.2-262.01 is a law which generally repeats much of the normal processes already used, but hidden in its core is  this gem:
The court and counsel for either party may inform any such person or juror as to the potential range of punishment to ascertain if the person or juror can sit impartially in the sentencing phase of the case.
This overrules a Virginia Supreme Court decision that rejected this as an obvious call to jury nullification. Those against this law point toward that conclusion. Those in favor tend to avert their eyes, grin, and assert that the second part of that sentence is for real and not a rice paper thin excuse. And then there are the truly dedicated superprosecutors who tell me I'm an idiot, rub their hands together, get malicious grins, and start muttering something about "whitherspooning" - not that I have the vaguest idea what they're talking about (some of you guys are slightly scary - and you, the guy in the back from Pitcairn County, stop cackling - no cackling is allowed on the blog).

Anyway, I rate this part of the statute § 19.2-262.01 (D5,D3,R3).  

[D5] You can't get much more democratic than to give information to a jury that has nothing to do with actual guilt or innocence and allow them to have it to nullify if they disagree with the punishment assigned the crime. 

[D3] Despite the joke above, does anyone actually believe that a judge will allow extensive whitherspooning in a theft case or a DUI? This will play out most often in the defense's favor in the form of jury nullification.  

[R3] Order would call for the determination of innocence or guilt to be decided without any collateral issues coloring the decision. Telling the potential sentence introduces a factor that will either be neutral or break in favor of the defendant that has nothing to do with whether the defendant committed the crime of which she was accused. It's not exactly a constitutional right, but it is a statutory right awarded to the defendant by the General Assembly.


Next, I'll try to find enough time to do this in future posts for the proposed statutes of the August session of the Virginia General Assembly.
[addendum] I changed from a positive/negative system to the way it is above to avoid any implications of value judgment in the use of negative number.

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