Oct 30
Results Oriented Criminal Justice System
As a poker player, I have known the importance of being process oriented (as opposed to results oriented) for many years now. Today I was laughed out of my Crim Law class (by a vast majority of my classmates) for suggesting that much of our justice system is totally results oriented and therefore wrongheaded. I’m not sure if my classmates simply did not get what I was saying or if they actually disagreed strongly with me, but I cannot imagine how there can be widespread disagreement over my simple (and seemingly obvious) point.
For those of you totally unfamiliar with the concept of being results oriented, novice poker players are often heard saying they never want to play AA again because they lost with the hand the last few times they had it. This is a simple and extreme example for just how silly it can be to let your strategies be dictated by results oriented thinking.
In Criminal Law we have read some cases about manslaughter (reckless homicide) and criminally negligent homicide. To commit these (very serious) crimes, you need not purposefully or knowingly kill someone, you can simply act recklessly or negligently in doing SOMETHING (like blocking fire escapes), then if that “something” leads to someone’s death, you rot in jail. I will briefly summarize a relatively famous case to make my point.
Defendant was the owner and caretaker of a trendy club. The main entrance featured a revolving door and while there were various emergency exits throughout the property, some of them were blocked by tables or locked so as to prevent patrons from sneaking out without paying their tabs. One night a fire broke out through no fault of the owner, and many people were killed. The court upheld a jury verdict sentencing the man to 10 years in prison per death because his recklessness (conscious disregard of a substantial and unjustifiable risk) created the situation that along with some other happening (the fire) caused many deaths.
My argument is, that a system that punishes recklessness or negligence only when the worst case scenario (death, serious injury or whatever else) occurs is far from ideal for multiple reasons:
a) The punishment for the unlucky person whose club does break out in a fire is a jail term only fit for the most malevolent in our society (many years-life in prison)
b) the myriad other people that act in the exact same or similar manner receive no punishment whatsoever
I submitted that a far better system would punish people for the expected harm of their action, and not simply for the random result that their action may (or in most cases may not) lead to. So in the fire case, 418 people died in the club. Let’s say that firefighters determined that this was bound to happen if a fire broke out in that environment. Lets say that an unstoppable fire or other such disaster breaks out on approximately .01% of crowded nights at the club. If the punishment for manslaughter is 10 years per count, then the punishment for recklessly setting up your nightclub should be 418 (number of potential deaths)*10 (years in prison per death) * .01% (chance of such an event actually happening). In the end, assuming my admittedly random chance for a fire is correct, this would lead to a 5 month sentence for the club owner. Further though, it would lead to 5 month sentence for anyone with a similar club setup that recklessly endangers lives in case of emergency. It is far more equitable for people to be punished for risk they take in the proper proportion, rather than for the one unlucky person whose club burst into flames to do the jail time for every club owner out there who takes such a risk.
This suggestion seems to me to be the only fair way to punish people but was harshly rejected by most of my classmates. I assume the poker players here will agree with me, I wonder if other lawyers will not.
One of the primary objections of my peers was that there should be deterrence for such action that can lead to mass death. I totally agree, I think my system actually allows for more deterrence because whenever a club is set up in an objectionable manner, the owner can face jail time even if no harsh result has yet occurred. This presumably would make owners far more conscious of having a safe setup than the current system of fines for violations of administrative codes.
I hope like me, it outrages you that we live under a legal system that would fold pocket aces. A system in which 1000 people can commit the same reckless act and, even if they are all caught, 999 will escape with a fine or perhaps no punishment at all. In the meantime the one unlucky guy who had the dice come up snakes eyes gets life on rikers island.
October 30th, 2009 at 9:10 am
Good post cow. I think that makes a lot of sense.
October 30th, 2009 at 9:18 am
Let’s pretend that 999 times out of 1000 when a player plays pocket aces heads-up against unsuited 2-7, the player with the aces wins. If a player in this situation bets $100,000 dollars on his aces and loses, he should only pay $100 under your calculation ($100,000 bet * 0.1% chance of losing). Also, the other 990 players who played their aces would also have to pay $100. Somehow, I don’t think you would call that equitable. It certainly isn’t the way the world works.
I know this isn’t the best analogy, but the club owner knew (or should have known) that if a fire broke out, his patrons couldn’t escape and might die. He knew there was a risk (however small) that a fire could break out and he locked his doors depsite that risk. He still has to pay, even though he was unlucky or had a bad beat.
October 30th, 2009 at 11:38 am
I don’t disagree with your “everyone with the same setup should get 5 months” as a way of deterrence. However, I disagree that the one unlucky guy should not get the harsher sentence. He may not have knowingly or purposefully set the fire; however, he should have known that if a fire DID break out, it would cause deaths; likewise, he should know that causing deaths in that manner would be manslaughter. So, he is willingly taking a risk- using your example, there is a 99.99% chance he wont get any penalty and nothing bad will happen. However, if it does (to relate it to poker, this is him slowplaying his aces), then he has to pay the piper when the bad act occurs. If you slowplay pocket aces, you might win most of the time, but the one time it backfires, you get knocked out of the tournament.
October 30th, 2009 at 3:41 pm
Brian,
In your example the AA player should pay $100 each hand in order for it to be analogous to Steve’s example. Either way you’re going to pay $100k over the 1000 hands.
Steve,
Although I agree this makes a lot of sense and would be the more fair system, do you think that it would be nearly impossible to enact because of the man-hours involved? In order for the 5-months sentence to be fair and have the same determent value as the traditional method, each violation must be strictly enforced and you can only imagine how difficult this would be in a large city with thousands of clubs.
October 31st, 2009 at 1:07 am
I agree with your point.
How do you feel about cases that seem to make an example out of situations that can’t be enforced easily or where the government is unwilling – like the lady that got fined 250 thousand dollars for sharing mp3’s that she didn’t have permission to share. Seems like a similar argument could possibly be made here – or perhaps this is the most efficient method with the lack of enforcebality.
October 31st, 2009 at 3:27 am
Josh- if you read my post, I said that the other 990 (although it should have been 999) players who played their aces (and won) would still have to pay $100. In that case the loser is still not liable for the other $999,900. That is analogous to Steve’s scenario where the OTHER club owner who did not have a tragedy still have to pay (by time in prison). If you can’t keep up, don’t play the game son.
October 31st, 2009 at 10:52 am
By this same analogy, anyone on the road who speeds should be ticketed proportionaly thus spreading the cost across all people breaking the law. If a ticket for going 75 in a 60mph zone is $100 (for eas math) and of 100 drivers in that area, 50 are going over 60mph, each simply pays $2 and moves on… Our legal system has it right and isn’t to be played or analyzed like a game ok poker… Sorry.
October 31st, 2009 at 3:39 pm
Jon, your comment does not grasp the basics of what I am talking about. My system has nothing to do with “who gets caught” and spreading the burden across all of the people that should get caught but don’t. My system related to reckless or negligent crimes based on an act that is separate from that crime. Speeding itself IS the crime that the person is fined 100 dollars for. They did it 100% so they should get 100% of the punishment. Now a correct analogy would be to say that a speeder causes a death .001% of the time. So then, everyone who is reckless enough to speed should get .001% of a manslaughter conviction including the one person who accidentally hits someone. Now obviously the more reckless the driving, the more likely you are to cause death, so the punishment numbers would go up.
Don’t end a comment with “sorry” as if you have said something brilliant when you don’t even understand the basics of my point :)
November 2nd, 2009 at 1:54 am
Steve, I think your proposed system is fairer, but it seems impossible to actually enact. There are literally thousands of everyday actions that can lead to serious harm or death, and I don’t see how you could possibly handle this and enforce your system. I’m not saying the current system is the best, I’m just saying I don’t think yours could become a reality.
November 6th, 2009 at 10:20 am
Really good post sir, an EV based justice system would be fairer but how would you work out something like fraud? Either way it can’t be any sillier a system than one that imprisons a man for 150 years for a fraud conviction.
November 10th, 2009 at 2:07 pm
The real problem with your proposal is that it would be incredibly hard, if not impossible, to come up with a fair probability to apply to each worst case scenario. You’re not dealing with a deck of cards here, this is the messy real world. I know actuarial scientists could probably give you an estimate but their estimate would still contain many subjective assumptions. Do you really think that sentencing people to jail based on estimated probabilities is fair? Sorry.
November 10th, 2009 at 3:55 pm
It’s way MORE fair Jon, then leaving life sentences to a virtual lottery, the fact that so many people have trouble seeing this is baffling
November 11th, 2009 at 10:20 pm
We are all criminals. 75% of Americans admit to using illegal drugs. Throw in tax evasion, felony moving violations (driving while drunk, without a license, going more than 25 mph over the speed limit etc, and I’d wager that over 90% of Americans have committed multiple felonies in their lives. It’s not practical nor desirable to punish people for all their crimes. It’s much cheaper to “enforce” laws by having people internalize the much larger penalties that will occur in the unlikely chance they’re caught. Having to try and punish the majority of the population with minuscule sentences would eat up all the wealth of society. Llthough it would make it easier for you lawyer to find a job (-;