Lady Justice

The Gist of the Matter

Lady Justice is seen on many 19th Century courthouses. She is shown blindfolded, holding an upraised sword in her right hand, and a pair of scales in the left. The truth of Lady Justice is a consequence of the ideal of reciprocity, but in what follows, I get down and dirty and leave behind such airy abstractions. The scales mean balance. Not only does justice restore the emotional balance in a community, it specifically means that what is done to the criminal balances what he has done to his victims. The sword means deciveness. Court proceedings do not need to take months or years. All the evidence in the O.J. Simpson trial could have been presented in 2 days. And once a decision is reached, sentence (if convicted) is carried out immediately. There is no right to appeal. Trials should be held immediately, so there should be no right to bail, either.

English law descends from the practices of primitive Germanic tribes, such as the Saxons or Vikings. It pits one attorney against another. Their competition is to win cases, not to find justice. So one keeps information from the other. The police have no vested interest in justice either. Often, they prematurely settle on one suspect and leave other leads unpursued. The Jon Benet case is an example. It is now apparent there was an intruder, and if the police had thrown up roadblocks and intensively questioned everyone in town about a stranger who might have a record of sexual assault, then the culprit could have been found. It is the magistrate who has a vested interest in justice, so she runs the police department and she conducts the hearings, where evidence is presented by the criminalists, and the defendent or other members of the public would have a chance to speak. And no lawyers. This somewhat resembles the Napoleonic law system, and is even more like the Classical Chinese Mandarin system of justice.

The Failures of the Judicial System

In California, a man raped a young girl, cut off her arms and left her to die. The community was outraged and wanted this monster to die. The rapist's punishment was to receive free room and board, free legal and medical services with no responsibilities for several years at vast expense to the public. This is known as prison. When he was released to his home community, lynch mobs formed. Instead of helping the community take revenge on this man, the justice system mobilized considerable resources to protect the criminal. They moved him to a different community, where lynch mobs again formed. Eventually the police moved him to a penal community, the only place where they could protect him.

In Tulsa, a drunk slammed into a legally parked police car. The police car was clearly visible, as it had all its lights flashing. Inside the police car was a popular young police woman, writing a traffic ticket. The collision jammed the doors and set the police car ablaze. The woman inside burned to death, desperately struggling to break out, while onlookers also tried to break into the car. Television crews appeared on the scene and filmed the drunk being led away. He was laughing.

The community wanted to crucify this man. And why shouldn't it? Anger at evil is a legitimate and natural human emotion. Is not the function of the justice system to take revenge on evil-doers? Is not this the very meaning of the phrase "justice was done?" The principle function of the justice system has always been to punish the wicked, not too harshly, nor too leniently, but as the scales of Lady Justice imply, in exact measure to the crime itself. And we also want to make sure the criminal can do no more mischief, at least not the same kind of mischief, at least not to the same victims.

Evidence for Lady Justice

The best evidence for Lady Justice comes from comparisons of La Belle Epoque (1880-1920) in the USA to the periods which preceded it and followed it. La Belle Epoque was a great time (though not perfect), a time when liberty and justice were most fully followed, at least for white males. The major change before the 1880-1920 period was the transition from the wild frontier to the settled civilization of the gaslight era, to a time of bicycles and ragtime. In earlier times, a boy could be hung for stealing a loaf of bread; today people are given free room and board for the most hideous serial killings. But in between these two extremes, there was a period in which the ideals of liberty and justice were followed in the United States. Trials were over in hours, or at most a few days, and if the murderer was found guilty by the jury, sentence was passed immediately and carried out the next day.

The best refutation of the alternatives to Lady Justice is the rise of suppressed anger since the 1920s, because so much evil goes unpunished, or not punished adequately. The symptom of suppressed anger is the berserk mass killer at the Post Office, or at McDonalds, or of an entire family, a phenomenon of our time. It may be possible to rehabilitate juvenile delinquents, but not hardened sociopaths. Permanent exile is impractical, since we have no equivalent of Siberia.

There has been a lot of irrelevant debate about capital punishment. An execution is not itself murder, according to the Law of Reciprocity, since anyone capable of cold blooded murder is not a party to the social contract that defines the scope of murder. Execution of a sociopath is more like extermination of a rabid dog.

Hobbes and Locke laid the foundations for modern notions of the social contract with a thought-experiment. They said "Let us imagine that everyone capable of committing murder agrees with one another not to, if given the reciprocal right to life." This is not history, but logic. It defines the scope of murder, since it is murder to kill someone or something only if they are a party to the social contract. Fetuses, infants, dogs, felons, people in a permanent vegetative state, or the mentally incompetent either cannot or will not agree to the social contract. That doesn't mean we can kill them without cause, but it also means that killing them is not murder. It may not be a virtue, and we may punish the perpetrators, but not with execution. We only execute murderers, where the victim is wholly innocent, and the murderer entirely responsible.

Lawyers Gain by the Collapse of Lady Justice

Why has this process gotten completely out of control? It is because of the Supreme Court. We have seen a steady expansion of "due process" until it has become "unending process," with the only winners being the lawyers, since taxpayers have to pay for the judge (a lawyer), the prosecutor (a lawyer) and the public defender (a lawyer). Trials have lengthened from hours in Judge Parker's court to years in Judge Ito's court. And is the quality of justice any better? Rulings by the Supreme Court in this century have a definite trend: they enrich lawyers by extending the length of due process, and increase the number of technical loopholes which allow appeals to set aside the original decision of a jury. That is why it costs a million dollars to execute a murderer. The million dollars goes in the pockets of lawyers, which is why lawyers are so unpopular, and are blamed for the decline in justice. In the days of Judge Parker, a century ago, the cost of an execution was a plain wooden coffin.

Lady Justice and Aristarchy

So, what sort of justice system should we have? One more like that of classical Chinese civilization, where the local aristarch/mandarin is the chief of police, the mayor, and the judge, all rolled into one. He or she will decide whether to call up a jury or not. The mandarins of China did not use juries, and given the notable incompetence of the juries on some famous recent cases in the US (the O.J. Simpson trial, for instance), the magistrate may decide to put the decision to a jury only when some matter of opinion is to be decided. The jury can then stand in for the entire community, and make a judgement which reflects public opinion. However, in most cases, swifter justice will be had with a trial that is public, where all the evidence is presented to both the public and the local magistrate, who makes the decision and gives the sentence, which is carried out immediately, within minutes. Critics rightly point out the number of convicted "killers" on death row, who have been saved by DNA testing. Quite right. But one cannot pull one item out of a utopia and examine it out of context. I would not be in favor of the death sentence either, in our present justice system, which does a poor job of finding the truth, and making the correct decision.

There would be only one system of justice. There would be no tort system, no family court, no distinction between civil and criminal law. The chief thing to remember is that whenever a citizen has a problem, other than a purely personal problem, take it to the local magistrate. He or she will determine if a hearing is needed, and all parties notified. For instance, instead of suing someone, you go to the magistrate, have a hearing, and get your money back. But there would be no such thing as punitive damages. The instruments of the law (wills, incorporation, joinings (new form of marriage), adoption, etc.) should all be simple, and if the customer has any problems or questions, he can always go get help from the local magistrate. Lawyers will starve. The Aristarchy exists only to serve.

Finding the Truth

So, how can we find the truth, with such surety (which must be 99.999% accurate), that we can impose the death penalty and still sleep at night? The system of walls, checkpoints, identity databases, and unforgable money/id/key cards is the first thing that must be put into place. We must always be able to say with certainty that we can produce a list of people which must contain the culprit. Secondly, we must develop the science of the interview. Fortunately, this has now been accomplished. See "The Naked Face," by Malcolm Gladwell, in The New Yorker, August 5, 2002. This is a system called FACS (Facial Action Coding System), based on AU (Action Units), each referring to a particular group of facial muscles. It was primarily developed by Professor Paul Ekman of UCSF. Also see Ekman, Friesen and Levenson in Science and Ekman and Etcoff in Nature.

Film an interview, then turn off the sound and run it at one-quarter speed. Someone trained in FACS can identify specific transient Action Units, which unconsciously give away the interviewee. Some AU are under conscious control; others are not. It is not only possible to tell if the interviewee is lying, it is possible to "read his mind," amd identify every fleeting thought, attitude and emotion. Ekman discovered this because he found certain individuals, primarily policemen, who did it automatically. One must ignore what is said, and concentrate entirely on the Action Units, more commonly known as "facial expressions." This technique is already being taught to intelligence agencies, to help in identifying terrorists. It is also being taught to the FBI and to the police.

Such a system of "proven interview" will save the innocent as well as convict the guilty. Without the interview, we must rely on circumstantial evidence, which can be misleading. Suppose our scientific criminologists find plenty of evidence of the presence of someone at the crime scene at about the time of the murder, evidence in the form of DNA typing of semen, sweat, and skin cells (which we are constantly shedding). A strong circumstantial case could be built up against this individual in a murder-rape case. However, it could have been the boyfriend, who left just before the perpetrator arrived on the scene. In that case, the scientific interview would clear the boyfriend. And if it can't, it is not a trust-worthy system of scientific interview.

The identity databases must contain indexed fingerprints, indexed DNA records, and other information on everyone who lives in this country or visits this country. Is this a police state or what? No, because this would simply be latent data, like the film in a security camera, which is never looked at unless a crime is committed, and is not publicly accessible. And we have the numerous location databases. One makes a record on one or another local database every time one buys anything, or passes through a checkpoint, even the passive checkpoints which do not require stopping and verifying that you are who your ID card says you are, with fingerprint, iris print, voice print, or signature, or all of the above in the most secure areas.

We add to this the most sophisticated criminalists, who know how to make microscopic examinations of crime scenes, who know all the ways of determining time of death, for instance, in a murder case. Then we query the location database system to see who could have been there at the time of the crime, and follow each individual back and forwards in time, to see if they are following their normal ritual, or doing something suspicious, like fleeing the area. The most likely suspects are subjected to the scientific interview, and this process continues until the culprit is caught. Criminalists will play a prominent role in the new police force. Obviously in my utopia, there is no fifth amendment. That is, there is no right against self-incrimination, because it will often happen that the only living person who knows what happened is the culprit.

The Real Intent of the Fifth Amendment

What we will have for our new fifth amendment (the right against self-incrimination, from which the Supreme Court has spun the Miranda rules, in another instance of judicial legislation) is the right to be released within a week if no charges are made, and a rule forbidding the torture of suspects, and a requirement that all interviewing of the suspect is video-taped and made available to the public, in some way that does not compromise the rights of privacy. We therefore pre-suppose a system which either leaves the case unsolved, or proves beyond all doubt that the one charged did do the dirty deed. The trial then becomes nothing more than a presentation of evidence.

If the magistrate can think of alternative interpretations of the evidence, or if some member of the public can do so, then the case will be suspended until this point can be investigated and alternatives ruled out. It is better to convict no one than to convict an innocent person. Thus, a suspect always has the presumption of innocence on his side. But if we can really prove who did it, we should not hesitate to meet out the death penalty for murder. The only possible appeal might be to the magistrates immediate superior, who might stay execution for a time. But if the superior metropole has complete confidence in the local magistrate, then execution will be immediate. The next of kin should not have to wait years for justice, amid constant appeals, which could release the murderer at any time. However, if the friends and next of kin of the victim ask for clemency for the convicted killer, then clemency they shall have.

Enforcing the Law

In a libertarian society, there should be minimum interference in private lives. Thus, the police should not provide any more enforcement than is really wanted by society. For example, I have proposed that modern firearms and ammunition no longer be sold, and impossible to take through checkpoints, which incorporate metal detectors. But I would not advocate a Draconian search of everyone's house and home for modern firearms and ammunition. If a search happens because some other more serious law is broken, then arms and ammunition would be collected. Or if the neighbors complain that someone is firing at them, then the police have grounds for obtaining a search warrant. A person who lives quietly without bothering the neighbors is not going to be bothered by the police.

I suppose that there will be traffic rules, especially in a Metroplex. But rather than zealously enforce these rules, it would be better to watch and see what patterns of behavior work best. If people can Jay-walk without getting hurt, take down the signs forbidding jaywalking.

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