Joel: G’day, Doug. How does the world look from where you’re sitting today?
Doug: I’m in Cafayate, Argentina. I’ve just finished pumping iron for an hour in a world class gym, had a spectacular hour-long massage for $20, took a steam bath, and then lay in the sun for an hour. I feel as if I’ve been transported back to ancient Rome. So things look good from here….
Joel: Sounds like good, clean living. I look forward to visiting sometime soon. In the meantime, shall we continue with our REAL State of the Union dialogue?
Doug: Let’s get to it. I believe we’re up to the 6th Amendment…
Joel: Indeed we are. Just to bring readers up to speed, we’ve been discussing present day America and comparing it to the ideals enumerated by the Founding Fathers in their Bill of Rights document. Readers who missed an installment can catch up here:
- 1st Amendment – Part I, Part II, Part III & Part IV
- 2nd Amendment – Part I, Part II
- 3rd Amendment – Part I, Part II
- 4th Amendment - Part I
- 5th Amendment - Part I, Part II
I expect we’ll probably fashion this into a book or Thomas Paine-style pamphlet of some description once we’re done, so people can share your insights with friends and enemies alike.
Doug: It might be a useful tool. Most people are unaware how much the idea of America—and it’s an idea, not a place—has been corrupted. But the time may soon come when sharing these politically incorrect thoughts will itself be a crime. The 1st Amendment be damned, along with all the others…
Joel: Best we get to it then. The 6th Amendment was apparently designed to make criminal prosecutions more accurate, fair, and legitimate. The full text reads as follows…
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
What’s your initial read here, Doug?
Doug: To start, the court system has become vastly more bureaucratized and formalized over the years. All sorts of rules that have to be strictly observed, like the Three Strikes law. Prosecutors have many new and dangerous tools, like RICO.
I’m afraid the criminal justice system—the police, the prosecutors, and the courts-- isn't so interested in dispensing justice, and doing the right thing, as it is in enforcing the laws and the precedents, which is something else entirely.
This is a serious flaw. I can see the possible advantages of certain rules and procedures. They may, for instance, prevent somebody being railroaded through a kangaroo court. But, generally speaking, everybody would be better off if we did things closer to the way they were done 200 years ago.
When the framers were writing these documents, people generally knew their neighbors and their neighbors knew them. The jury members were thereby in a good position to assess the characters of the defendant and his accuser.
Nowadays, the jury pool is purposefully drawn from people that don't know the defendant, so that the very idea of a jury of your peers is actually subverted.
How can you be tried by a jury of your peers in a society that is as striated and multicultural as the U.S. has become? Not only don't jury members know the defendant, they likely don't even share the same values or basic background or approach to life as he does. They worship different gods and have different codes of ethics. That tends to pervert the idea of justice.
It's a problem. What are you thinking, Joel?
Joel: I'm actually thinking of a book that I know we're mutual fans of, and that's The Market for Liberty by Morris and Linda Tannehill. In a kind of quirky coincidence, we both wrote Forwards for different editions of that book, you for the very first one, I believe.
In any case, when it comes to something as important as Justice – how it’s defined, observed, meted out, enforced, etc. – most people can’t conceive of anything other than a State run system. What if the State didn’t employ police officers, for example, or public prosecutors? It’s difficult for some people to imagine how such services might be carried out voluntarily, in a free market setting.
That’s why the Tanehill’s book was so impressive. In it, they explain very clearly and concisely how private security firms, dispute resolution tribunals and so forth, would serve the market. It’s not just a theoretical text. They give actual, practical solutions. In the case of Justice, there’s an obvious real world demand for things like fairness and efficiency. Why not let voluntary market forces guide the way?
Doug: Of course, nothing about today’s system is based on voluntarism or anything of the sort. Today, anybody who gets a summons for jury duty tries to evade it. Because, in effect, it's involuntary servitude. You're paid a pittance to be locked away for a day, or perhaps months.
Private adjudication companies would solve that problem, and many others. They’d have to compete with each other based on the speed, intelligence and fairness of their decisions.
As opposed to today, where juries are composed of people that have nothing better to do with their time and aren't smart enough to get out of jury duty.
Joel: It’s probably not unreasonable to suppose that the market would accord some value to the notion of transparency, too. So rather than the obfuscatory, shadowy proceedings that currently go on, where people are squirreled away and renditioned, buried under bureaucracy and so forth, the market would reward private companies that adjudicated fairly and openly.
Over time, bad actors – tribunals that were rated poorly for fairness, openness, efficiency, etc. – would simply go out of business.
Doug: The fact is that juries today, sad and inadequate as they are, are only presented with the facts that the State allows them to see. In other words, they're basically treated like children, or robots, and aren’t allowed to consider all the facts. Or even common sense or common law concepts of justice. They’re only able to decide whether the facts, as presented to them, violated some arbitrary statutory law.
Up to 100 years ago, however, juries were treated like rational adults and were allowed to take into consideration everything, nuances surrounding the event, not just whether somebody technically violated the law. For instance, if somebody killed another person whether, in fact, that person actually had it coming.
Statutory law, the product of politicians, bureaucrats, and committees, has replaced common law.
Today it's totally out of the question for a defense attorney to even suggest to a jury that they can nullify the law. Historically, however, juries were considered the ultimate line of defense against injustice and tyranny. They were expected to be responsible, independent, thoughtful adults who could set precedents—not just warm bodies following the judges’ instructions about arbitrary laws. Today they're just automatons that have to enforce the law to the letter. Considerations of justice or common decency have nothing to do with it.
Joel: I wonder how many people even know about the concept of jury nullification. Certainly judges are under no obligation to inform the jury that it might find a defendant not guilty if it does not support the government’s law.
Doug: Oh, to the contrary. Judges go out of their way to quash anybody who might even be outside the court building, who tells people about the historical precedents of jury nullification. Which allows, in effect, juries to overturn legislative laws.
Joel: It’s interesting to consider the incentive structure that has driven the degradation of the criminal justice system over the centuries, too. From so called “productivity goals” (read: quotas) for law enforcement officials, who are incentivized to write tickets and rack up arrests, through to public prosecutors, who are rewarded if they have bigger caseloads, and even legislators themselves, who are considered remiss in their duty if they’re not constantly introducing new and burdensome laws.
As our mutual friend, Bill Bonner, recently noted:
In 2018, the 20th anniversary edition of Ten Thousand Commandments, from the Competitive Enterprise Institute, appeared. It documented 81,883 new regulations during the two decades that had passed since the first edition. On average, a new regulation – often with criminal or civil penalties attached – appeared at the rate of one every 2 hours and 9 minutes.
It seems as though, at every level, every incentive is directed against the liberty and well-being of the individual citizen, who is supposedly innocent until proven guilty.
Doug: There's no question about that.
Furthermore, the idea of a speedy trial has become a charade. It can take you years to get into court, and years more to get out of court. And, whether you're getting in or getting out, it can bankrupt you. And, if you're even so much as accused by the State of some crime or another, well, good luck coming out of the whole ordeal unscathed.
On the other hand, if you’re politically favored, you can skate on all kinds of things. The recent case of Jussie Smollet, the B-list actor who fabricated a “hate crime” being just one example. That would be nearly impossible with a private court system.
Something like 95% of all crimes today are plea-bargained. That’s because an indigent defendant knows that he's not going to get a good defense from some public defender; they’re generally people who graduated at the bottom of their law school class and can't get a better job in the legal profession.
And, if you're middle class, you can't afford the time and money a trial takes. Basically, once you’re accused, you’re also convicted, due to a plea bargain. With legislative laws written as they are, there are thousands of entirely arbitrary violations. The criminal justice system is a dangerous caricature; it’s Kafkaesque. In today’s world, unless you’re very wealthy, your wisest course of action is to take what the prosecutor gives you.
Once again, this has got nothing to do with what's right or wrong, or the justice of what you did or didn't do. The only place real justice is dispensed is on T.V crime shows. In reality, it's actually more like Kabuki Theater.
To be continued, next week…
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