On another topic: If all prisoners do is pay for their crimes (no steps to correct themselves; punishment without rehabilitation) they are almost guaranteed to re-offend.

I wrote a couple nice paragraphs, then my page timed out.
So, I’ll be relatively brief: The problem of how much more a prisoner gets than a poor person is not a problem with prisons as much as it is a problem with poverty. If we’re so great in America, why don’t we work for ourselves, and on the other hand, do you have to go to jail to get help from your community? Shame on us.

Also, it is my opinion that 3 basic things (not including love) make a healthy human. Sufficient and quality sleep, a healthy diet, and regular aerobic and anaerobic exercise. A healthy human has the basic abilities to contribute to the community…the Quakers would agree, this is the goal of all people in the community.

Part the problem with punishment, is that it IS a slap on the wrist. Addicts in recovery have learned that you need to address the problem that led to the addiction. If you don’t address the problem with the criminal, you will eventually let a criminal back on the streets, rather than a citizen (model citizen or not).

Many people are in prison because of their impoverished situation. While we may not solve poverty in jail, we can solve education. Education is what will give criminals a chance to get out of their criminal life.

I say, give them beds, give them exercise (work rather than gyms; reduce idleness), give them a well rounded diet (this can be done with a variety of cheap means; rice, potatoes, beans, fish and chicken rather than more compound meats). Allow them education; allow them books to read for entertainment (sneak in extra education).

Prepare them to be willing and able to live a productive life on the outside. If not, beat & banish them, or kill them. If you are willing to remove a criminal for society, don’t bring him back unless you fixed the problem, if that’s too hard, change the laws to legalize crime, or find a cheap way to permanently remove criminals from society. I prefer the rehabilitation idea.

I agree with you for the most part. The one thing I would challenge is that incarceration is worth every penny. The reason I disagree is, as you point out, that not all offenders have the same threat or impact on society. I don’t think it is worth every penny in the case where a thief, bank robber, or purse snatcher steals $150-$3,000, so we pay $10,000+ annually for the next 2-10 years. I think we’re the ignorant ones when this happens. I don’t necessarily agree with the British during colonial times, but I do agree with much of the Quaker tactics…because it is beneficial to society, and hard work is punishment for people who want to solve problems in easy and irresponsible ways. It also rehabilitates in preparing them for real work in the real world.

My only “simple” solution to the “paying for theives” scenario, is to arm the population. When people have guns, criminals are deterred…almost any offense may result in the death penalty, because citizens don’t have Rules of Engagement or Police training. If 90% of people in a bank have guns, criminals would need a large team to cover them. A bullet is a lot less costly than incarceration, people no longer live in fear (as their news and presidential administration encourage), because they know they can defend themselves from crime. I dunno.

Who is Responsible for Criminality?
A person committing crimes might have more to do with how they were raised, rather than about what their parents taught them as right and wrong. 95% or more of the “wrongs” I’ve done in my life, I knew were wrong at the time, and knew my parents stance on them BEFORE my actions. I had been taught, and my parents did their best, but no matter the results, that’s all that can be asked of them…their best. We will do what we want, and parents don’t deserve the blame necessarily. Parents want to blame friends, music, drugs. The community wants to blame parents. I say blame the perpetrator, and the community that is conducive to the environment that created the criminal.

Probation Utilization: I think probation is over-utilized, but so is incarceration. One doesn’t rehabilitate, and the other doesn’t punish. Incarceration at least protects society (and punishes offender), but they way it is done costs too much.

Violence only happens in self defense, or has a history (even if not recorded), and it escalates and repeats. Simply to protect society, violent offenders (including assault or threat with weapons, or armed robbery) should not be given the option for probation. I haven’t seen it done, and don’t know that it happens, but that is my stance.

I have a friend who dealt prescription drugs for about 5 years. I was surprised when he got different levels of probation and house arrest rather than jail time. He couldn’t have alcohol at his apartment, but for some reason stated he would be okay if he got drunk at others homes (probably not in line with his probation). He was also not allowed to enter a liquor store or a bar. The twp positive aspects about his probation were that it forced him to get a legal job and scared him straight at least for the term of his probation.

Plea Bargaining: It makes no sense to let a known local dealer or user off (anything that is a harsh problem in the community), even if they inform on their supplier. But, plea bargaining for lesser charges is definitely more beneficial to society, if the supplier is brought down (until the next dealer and supplier replace them the following day).

I am in full support of “adding on” charges when all that entails is crimes for which they could be held accountable (legit charges that are not based in double jeopardy –you can’t resist arrest twice from the same arrest attempt).

Sentencing: Not to get into the legalization of Marijuana debate…but 55 years, because a man exercised his constitutional right basically within regulated parameters, is ridiculous. I call bad legislation on that law. 5 to 10 is plenty for marijuana dealing. Illegal possession or use of a firearm should add to it, but it shouldn’t be considered a factor if it was concealed throughout the deal. That’s like getting armed robbery, without holding the weapon, or even threatening the use of it.

IF you are going to give a death sentence…give it adequate time for appeal…make all appeals to death sentences reviewed in the next week to a month. If appeals or new hearings are achieved, get them started that month, otherwise put the guy to death within 30 days of the sentence. I know this sounds strict and fast, but if the court that found him guilty can’t be challenged, the sentence for a death penalty is more pressing to review and to initiate, than the penalty for any other crimes (even murders that led to life in prison -they’ve got their whole lives to appeal). I’m not convinced that it takes 6 months (I think that’s how long it took to kill Gary Gilmore) to 2 years to remove a guy who does not contest his sentence.

I have a theory that we should put inmates to work on city projects. Perhaps they earn money at a fair rate, which is credited toward repaying the costs of his or her incarceration. Anything they optionally choose to do more than that, while locked up, will allow them to work for minimum wage. This might teach them the hard way, about being a contributing member of society, as well as financing the cost of holding them.

Secondly, one of my other teachers fully agrees with the idea you brought up about what thought processes criminals go through in evaluating committing a crime. He believes there is always a consideration, just not of the facts that most of us might consider. Jail time is rarely one of them, if it is, its usually a faint watermark in the background of their decision. The process might be, “steal this car and get paid” vs. “don’t get paid.” “Don’t get caught” and “two to five years” is usually known, but not weighed.

Determinate Sentences: This is a difficult question. I believe there should be some form of guidelines. I believe the defense, if pleading guilty (for the charge or a lesser charge), the prosecutor, and the jury involved, should all give the judge a recommendations for sentencing. The judge should make the final decision, and his decisions as well as the suggested sentencing should be a matter of record (In case the guy needs to be removed from his position for this reason).

I think the reasons to agree with Determinate sentencing are obvious. “Like crimes” result in “like punishments”. But, I don’t like the fact that criminals get to weigh a somewhat exact punishment based off of a particular crime, before they knowingly commit that crime. I’d like there to at least be the fear of cruel and unusual punishment, decapitations, hard labor, sterilization, life in prison, or death.

Also, there will always be mitigating and aggravating circumstances. For this reason, determinate sentencing, again, does not fit the fact that crime, and its retribution, offender punishment, or victim appeasement should be judged on a case by case basis. Not all crimes are the same, even when the charges are equal. A large part of a crime is the nature, mala prohibita (wrong action for trespassing law and order), or mala in se (wrong action because it is deplorable to society), or the necessary mens rea (criminal intent). Intent, can make all the difference in a crime, so mandatory sentencing may not be the best idea (I think fulfilling the spirit of the law is more important than holding one to the letter of the law).

“K”, I am very sorry for your loss of your child. I vaguely remember you mentioning that in an early discussion. You probably know more than any of us, the lack of justice victims see through the light sentences on perpetrators of violent crime. I fully agree with your stance about length of sentences. Anything less than 10 years doesn’t deter much crime. I would assume anything less than 20 doesn’t deter career criminals.

Also, we are taught about the cost of keeping people in prison, but we are rarely taught about the costs of leaving criminals on our streets. While most of the latter costs are not easily quantifiable, I’m sure there are plenty rises in the costs on law enforcement, social services, welfare programs, D.A.R.E., and rehab centers. While incarcerating one prolific drug dealer might be expensive, keeping him from dealing to kids, creating addicts, and possibly keeping several people off of government assistance programs might be more costly…just thinking out loud.

Plea This! Most of my response to this question is in my responses to classmates. But, I will say, I think the chapter proves that plea bargaining is a good thing for the criminal justice system.

It is my opinion that how it satisfies victims may or may not be a good thing (don’t victims always want MORE justice? Because who knows what JUST justice is.)

For society, I think it is pragmatically a better thing that people plead guilty to something less, so they pay A penalty for their crimes (same penalty, different degree, and I think all degrees are usually too little time for too much offense against society). But, it is better for the community that factual criminals get put away for a little while, than left to their own devices on the street, or given a mistrial of some sort; worse still, to be declared Not Guilty.

What if police fall upon evidence of a shoplifted candy bar, by means of beating it out of a child? They have the limits for this falling upon evidence, and coercion, action without reasonable suspicion, and search without consent or warrant are not within those limits…thankfully. I don’t think I’ve ever had any illegal items in my car (maybe people not wearing seat belts), but I don’t want a cop going through my vehicle or trunk, simply because I am true to my word. My word should be enough, without reason to the contrary, because I am innocent until proven guilty, not searched and searched until proven guilty of something (which seems possible considering the variety of laws on the books).

While I don’t like that guilty people go free because of illegal procedure, it seems to be the necessary evil to protect the innocent of illegal procedures. The fear of letting criminals go free (a wasted investigation, if not spent doing it right), is what keeps officers on the ball, accountable, and encouraged to follow procedure.

Also, I guess it depends on the sufficiency of evidence. I’d rather have a prosecutor bluff a smack dealer, and get him to do 4 years for a lesser crime, than to have no case at all. But then, I don’t care so much if a murderer gets Death or Life in Prison, just so long as he at least gets Life in Prison without parole. I have a hard time believing in rehabilitation, but I strongly believe in protecting society from proven problems.

If we didn’t let people out of prison, they wouldn’t have to come back to it. They’d be home already, and could save someone victimization.

Inevitable Discovery: Does anyone else find this a bit overkill as an exception to the exclusionary rule? I agree that there are other laws in place (concerning interrogation and coercion) that help keep inevitable discovery ethical. This seems to skip due process altogether. If you will eventually discover something by lawful means, then do so. But, if you have to use unlawful means (which is the only other option I see available) then there should be no exception here (two unlawful acts don’t make a just case in court). I don’t think the book uses a good example of inevitable discovery, it is somewhat vague. Mr. Palmer, or anyone, if you know any better examples of more convincing cases of “inevitable discovery", I’d like to hear them.

I think the “good faith” exception is pretty good, except that it seems to be protecting the cop’s intentions rather than the citizen’s rights. If there is something wrong with a warrant that is not the cop’s fault, whose fault is it? If it is the judge’s fault, the judge should have to face the consequence of not being careful enough in his work to establish a good warrant. Which is to say, yes, it might let some criminals go, but that’s a failsafe that keeps the justice system ordered and fair. What’s the justice system without order?

I’d also say that the fact that so much authority, improvisation, reasoning, and people skills are needed to be a good officer of the law, that education needs to be a requirement…especially considering how tolerant of other types of people and thought-patterns LEOs have to be. Enforcing and upholding the law, with as much discretion as police are permitted, requires knowledge of the law. This is, by no means, a job that should be left solely to DAs, Lawyers, and Judges.

At least in my experience growing up in SLC (with DARE, and other school education programs), I think law enforcement does a decent job of getting in touch with the community. I’d hate to stress that they need to be more in touch with the community, when I hardly know my own neighbors (after 5 years).

My guess is that, this being Utah, we are probably one of the more amiable police forces in the states. In my encounters with other state’s police (Oregon, Nevada), they’ve probably been a little biased in treatment simply because out-of-state plates, which may cause them to be more cautious and more invasive.

Technology, like with the rest of us, may increase efficiency and tackle problems faster, but definitely decreases community involvement. Rather than walking through marketplaces (strip mall, businesses) and saying hello to the store managers and people in the community, police wait in squad cars in a parking lot, working at their laptops until dispatch has another call.

Which ever way they go, I suppose the grass is always greener. We, the community, will always have something to whine about.

I like the idea of keeping kids busy, but I think outdoor sports, after school elective programs, and jobs are much better than television and video games (like what I was raised on).

I hadn’t even thought of Neighborhood Watch as one of the major community relationship programs between the police. One thing I really appreciate from the Fuzz lately is that, when some new neighbors moved in to our old folks neighborhood, across the street from me, (who acted really shady, drove Escalades and BMWs, ages 18-30, and none of whom seemed to have jobs…sitting on the porch all day with their shirts off -males), after about 3 months someone called the cops and said, “We all have a pretty good idea that these guys are criminals. Can you come arrest them?” Sure enough, detectives in unmarked and tinted-windowed cars (the same cars which had been suspiciously circling the neighborhood for weeks), took them away in cuffs along with a driveway full of stolen goods. We’re not sure, but the fact that someone in the neighborhood claimed to have seen them steal an air compressor from their back yard (they probably just assumed it was them), gave the cops the go ahead to bring them down. The residents would load and unload an empty vehicle for hours at a time (as if finding ways to hide drugs or something beneath the carpeting). Also, they would spend 2 hours in the middle of the night attaching, or fixing something underneath the vehicle, without any lights. Another suspicious activity is pulling cars and trailers up to the garage door, leaving about an inch from the door, and several feet on the other side of the vehicle…to block vision of what was being carried in and out of the trailer. And of course, at any hours of day and night, a car would pull up, a guy would go out to the car and talk with him, leaning into the window, then the car would drive off, cars that don’t live there, and many different vehicles (business of some sort). Sure it sounds like I’m a snoop from a Hitchcock movie. But this stuff was blatant, and out of the ordinary. Thanks for listening, but the point is, the police were on the case. They knew the score. Some of the suspicious cars were actually cops trying to nail the guys, but it was the neighbors, who were present during the incriminating events, and the cops needed the help of the neighborhood to nail down when and what was happening, so that when the bust was done, the evidence would be attainable.

I agree that abortion is killing…or that killing an unborn baby should have consequences similar to killing any other human being. I could see it being less of a sentence, but still something worthy of being considered as a crime.

I know I talk about guns, but the stats do show that it is generally not the people with concealed weapons permits or carry-permits who are killing each other in 11,000 per year droves in our country. But really, (and I’m a pretty big guy) what worries me about going to live in many other countries for a time is the high crime rates related to theft and burglaries…and as many crimes are committed against minorities in our country, the same is true for other countries. I, being the minority, and unfamiliar with the society, would be a likely victim of crime. And the one thing that might keep me from getting mugged, beaten, and stabbed by a group of such criminals, on the way home from work or wherever, would be the equalizer (a gun). My worry is that where crime is concerned, citizens like you and I, if ever presented with a violent situation outside of our homes, will most likely be bringing less than a knife to what may be a gunfight. At the Maverick downtown on North Temple I think it was, I saw a 12-14 year old male child dressed as a gangster with a gun sticking out of his pants. On redwood road I saw young male chilled (aged 16-18 years) riding a bike way too small for him, which caused me to stare a bit. (I was stopped at a red light) Then he got off the bike, raised his hands, shouted something I couldn’t hear, lifted his shirt to flash a gun at me. Neither could have possessed legally obtained concealed carry permits due to their ages. Both were probably associated with gangs. I did nothing to antagonize either, but those types of events make you think. I personally, if armed at the time, wouldn’t draw on either of them unless drawn upon first. I don’t like violence (except martial arts as an art form). But, I do think there would be a lot less violent crime if there were more guns on people’s hips. In Wyoming, just like cops here, citizens carry pistols or large revolvers on their hips. It makes me feel safe knowing that if I’m in trouble there is a guy in the store or a guy across the street who can help even against someone who has a gun.

I have a formal martial arts teacher who I just recently heard was jumped by three guys downtown (about a year ago, I haven’t seen him in 3 years). They had one knife between the three of them. He refused to give them his wallet, tried to defend himself (the guy is like 56), he spent a couple days in the hospital, got his jaw wired shut and two new sets of teeth. I’m sure he could have defended himself against any one of them, but not against three assailants, and that’s how criminals work, like cowards and with full force. Also, I’m pretty avid about the sense of victimology. I just want to make sure I’ve done my part in not being an easy target.

With regards to marijuana, I totally agree that it has brought more destruction on the streets than construction. My friends who smoke are just as dumb or just as smart as they were when they started it. I think it is a good recreational drug, like alcohol…except much mellower, with a lot less belligerence. However, it can be just as bad as alcohol on driving. I have never seen a high person drive well (although they always seem to think they do). I think it should be legalized for medicinal use at least, and might as well for recreational use. My grandmother likes to tell me how from the ages of 4-12 (1930s in Taos, New Mexico) she used to walk to the general store to buy marijuana for her mother.

Equality is the reason women are increasingly filling up jails. Their problems and lifestyles are now matching those of men’s. I’m not saying men had it worse, but the responisibility of family survival used to be based on their efforts. Now, even children sometimes have to work (but that was how it was in farming anway).

I find great points to the idea that prison is a sign of failure of society. I think if we all thought of it this way, crime prevention techniques, higher investments in educational programs, and widespread family counseling would be very beneficial towards finding solutions. The COST of housing our prisoners in this country is INSANE. It would be a lot nicer if we could spend that money on habilitation (one theory is that we can’t rehabilitate someone who has never learned to live in accordance with society), than on prisons, and avoid whatever crime got them there in the first place.

I’m working with juveniles in a state run educational program for kids just getting out of the juvenile detention system. The goal is to let them know there is something out there for them other than crime. That education is the pathway. It’s really difficult, especially when their lives at home and at school are nothing but turmoil. But, I think if everyone thought of criminals as our own responsibility, our own problem, that our justice system would be a lot different.

Growing up, in response to news, I often heard from paternal figures (Dad, Grandfather, Church leaders, Uncles), “I say lock ‘em up and throw away the key.” Now, I selfishly think, I do not have the income to afford more taxes. But, like with health care, I think prevention is far more cost effective, and will get us better results if we thought of it as something to correct, rather than to toss out. (Not that it is easy or anything).

I think its more reflective of the social aspects of the justice system, than the system itself. One major thing (for the past 30 yrs rather than 50-60 yrs) is the War on Drugs. Drugs are highly prevalent since the early 70s, and now they are illegal. Some of those drugs are particularly common among females (meth-amphetamines).

In a discussion with someone the other day, they made the point that as far as the desire to pursue happiness in as much as one’s own pursuit does not harm another’s well being; a DUI is not a injury upon another person. The mistakes you make while driving intoxicated are the same mistakes people make every day while sober (more often while sober). Property damage in crashing, reckless driving, Killing willfully, negligently, or simply involuntarily, and exhibition driving, are all examples of infractions that can be done intoxicated or not. “K” pointed out that killing (she didn’t qualify what kind though -maybe on purpose) should have the same sentence for everyone. But “J” and “J” both point out the frustration at drunk drivers, who should be punished more strictly. “J” points out for the reason that DUIs are dangerous. So (on behalf of my friend’s view) the argument is being made from a risk/ insurance stance. But if it is danger we are worried about, shouldn’t the crime be the action that is problematic, rather than the device that leads to the action. Otherwise, cell phones, babies, radios, make-up checking in the mirrors, and “looking away for a split second” should all be heavily enforced as well. Those are dangerous, and cause deaths and “accidents” (or negligence) every day. Shouldn’t it be that people who crash should be heavily punished so that they are less likely to crash in the future, or are deterred from crashing by the heavy punishment which will come? The argument of course is that the drinking is the crime, but it is not the drinking that hurts people, it is the collision. The collision is the problem. And people with a record of collisions are at higher risk for future collisions. I think his argument has some merit, and that we do try to point fingers with our morals when trying to find the culprit for harmful events. His reason for this argument is that he and I both knew a girl who drives better intoxicated (out of care not to get pulled over or to crash) than she does sober…which is scary!!!

However, I’m with you guys, I’m against drunk driving. But, I am also against being pulled over without valid reasons. If someone is intoxicated and follows all traffic laws without problems, the car meets all regulations, then that should be the end of the story. I’m very against the 300 W downtown stopping of every vehicle on the street to do an alcohol test. However, I do think there needs to be a fast accessible way to report drunk driving, because we all see the reckless driving (drunk or not) whenever there is no Cop in sight.

On another note, I think it would be a horrible thing to have the states unify…unless their laws are unified by the people living in those states. I don’t like the idea of a monopoly…in business, in religion, or in government. IT’S NOT A GOOD IDEA. Because when all the power is in one place…which happens systematically through uniformity of laws among other things, power corrupts. Then, and especially with globalization of business and power, if there is nowhere left to go (no country, or state which will represent your values or your liberty) violent revolution will be inevitable.

I like the idea that we can be carry a gun in Utah and not necessarily be a criminal…as opposed to doing time for it in another state. I understand you probably just want the misdemeanors and felonies agreed upon to make things less difficult for travelers…and yes, more difficult for traveling criminals, but the same things that diversify our laws have allowed our country to stay great in some sense. I don’t think women should all be made to wear head dresses, cover their legs and arms, and be sentenced to life in prison for letting someone know she was raped. I like the idea that my country has laws different from other countries. And as long as the State buffer is there, I don’t have to worry about the Country unifying with the continent (unless NAFTA and G.W. have their way).

I know I’m a bit dramatic. But, historically, empires and nations collapse for similar reasons. I just don’t want ours to in this lifetime.

I am personally worried about the vulnerability of property, such as pets. My dog is worth much more to me than any other piece or type of “property” I own…and not just because I don’t own a million dollar home. The laws don’t permit a “loved one” that is not a human to be any more than property. Is it my fault for confusing care for canines with the quality of care that should be reserved for other humans? Perhaps, but most pet owners feel similarly. If a pet was beaten and killed by a passerby or even a neighbor, the laws would not adequately penalize the person that committed such an act as far as most of us are concerned. (This could be argued for murder against humans as well…20 years for taking a life.)

Small excerpt from an essay I wrote long ago on euthanasia and assisted suicide: The Oregon assisted suicide law is a great advancement to the diversity of thought and lifestyle in our country. However, for proponents of assisted suicide, it is far too limiting. Many people are in devastating health conditions which will allow them to remain stable, but in horrible health and tremendous pain, but live far longer than six months. More importantly, many illnesses that result in the loss of “person hood” or memory and brain function, but cause pain, are not considered terminal illnesses, and are also not covered as qualifying for legal assisted suicide. For this last type to be considered, the doctors must consider them in “decision-making capacity”, not emotionally based, and not brain damaged in some sense.

I’ve also written an essay on the Parker Jensen case or one very similar. If I can find a good excerpt from it I’ll post that as well. It basically concerns patient autonomy, competency and the right to deny care, and the necessary removal of responsibility of medical providers once care has been denied. I thought it was despicable in some sense that the parents were not simply left to treat their children how they thought best. Even if it was to say that they would leave any further healing up to God. The chemotherapy puts the child under a lot of physical stress, and pain, and the child is then drugged to reduce pain (destroying what may be the quality of the limited time left). In this particular situation, the child’s chances of living were low, and not much higher with highly aggressive treatment.

I hate gang activity and everything it stands for, I’m disgusted by the allowance, and how much it has increased in Salt Lake City in the last 20 years. Because gangs run on two businesses, theft of various sorts, and dealing drugs, I fully agree with your philosophical movement against drugs.

Violent crime is almost the tool, rather than the goal, for grand theft, robbery, and drug running. It is incidental. Getting paid is the goal; fast money.

Addicts rip apart society from the inside, and show on the outside. (Gangs as well). Every family seems to have someone (perhaps extended family) who is or was an addict. It’s bad. I’m a caffeine addict, and I hate addiction. When my father was my age, he was an alcoholic. I have an uncle that did a year or two for possession of cocaine (so I’m told). Since, he has been a meth addict for 6 years. He is free, supposedly clean, yet he can’t hold down a job, steals junk from my grandmother’s garage to make a few dollars. It’s not good on the family, or on him.
Addiction causes people to act far out of the ordinary, removes common sense, and humanity with it. With that numbing need, comes the criminal activity in order to feed the habit, and for some (cocaine, PCP, alcohol) the crime happens during the high or intoxication.

I believe more in the medical model. But that also depends on the charges.

Protect the individual (preserve his innocence until proven guilty) Then protect the community (may be punishment to the offender, so long as it keeps him from further victimizing). Only if the community can be safe with a rehabilitated person, do you let them back. You can’t rehabilitate drug users (abusers) without imposing the medical model of addiction. And it is true that people are totally different while addicts, than when they are not. The key is in solving the reason for the addiction. The reason for caring enough to go to these lengths is that it can or will happen to you or someone you know.

One instance I’ve noticed is in laws related to gun regulation with concealed weapons permits. The responsibility on a traveler between states (with a concealed weapon and permit) is HUGE. He has to phone ahead to each state before arriving (forget the advanced notice) and has to be subject to a background check before being given permission, has to inform state authorities of how long his stay will be (even if just driving through). This is all so he can enjoy the freedom of his own state in others states, since the constitution provides that all states recognize the authority of other states (which is very hard to qualify and legislate evenly).

I know of one person put in jail for two days due to Guilliani’s harsher New York City laws on guns, for not knowing the laws, but whom was perfectly legal had he been in Utah or Texas.

I’m mildly worried of one day driving through a neighboring state and finding that they all drive on the right hand side of the road.

Gangs lead to prison or the grave. I work with some kids who are getting out of the juvenile system, and it is very hard to convince them that this is true. They don’t just suffer from bad education, but from brainwashing.

One kid, probably because I’m the only white guy in the program, asked if I would ever get a white supremacist tattoo. He told me he wanted a brown power, or Latino Power type of tattoo. The discussion led to me asking him if he’d ever get certain tattoos or wear certain colors of clothing around his “friends". He told me, “Hell nah, those foo’s would kill my ass, or beat me.” I asked him what kind of friends those were, that would hurt him. He said, only your real friends would not let you get away with those types of things (hold you accountable for your actions), and make you stay “real". I told him, none of my friends would ever try to hurt me, and not because they are afraid of me, but because they like me. I asked, “Don’t the rival gangs hold you accountable too (try to stab him in the hall at school) when you make certain gang signs? Does that make them your friends for keeping you real?”

The Plaintiff would argue in the case of the rape victim, Mrs. Morgan, that based on the preceding case against Dupe the men are criminally liable for the crimes they directly took part in. In this case, the crime they took part in is forceful sexual intercourse despite the protest of Mrs. Morgan. Their belief that Mrs. Morgan was just pretending to protest has no impact on their guilt of acting the crime, and deserving legal penalty as a result. Mr. Morgan on the other hand may have more criminal suits coming against him for conspiring to commit the crime and eliciting others to aid him in those crimes. The prosecution would point out how the men know sex with a woman who protests it is a crime, and that is the act they did and it was their intention to follow through with it, even when consent was not only not given, but opposed. Unless they are mentally handicapped or mentally insane (meaning can’t distinguish facts of reality or reason reasonably), in which case they have still proven potentially harmful to society then they should be held criminally liable for their actions. If they are handicapped in either aforementioned way, they should be held liable, but put in mental care facilities rather than prison (without release, as these mental problems can not be solved, rehabilitated, and at best can only be medicated). The prosecution would use the above case of Slick and Duke to give precedent as to a case in which criminal acts done with blindness (willful or not) or stupidity as to intent, do not excuse them from the criminal liability of the crime, nor the reasonable response to the situation, knowing the act is a crime (ignorance of which is not an excuse). A reasonable person would stay a way from the situation altogether, or would ask the woman if this was indeed something she wanted done. If this ruined the kinky turn on for her, I guess they would have to find a more conventional sex partner.

The defense would be left only to respond by saying their clients either are indeed retarded, or are being misdiagnosed for their insanity by their respective psychiatrists. The defense might otherwise try to argue that this “reasonable” reasoning was not achieved because they were heavily intoxicated, and might have to point fingers at the bar. The defense could say that Mr. Morgan lied to these poor reasonable horny drunk men, eliciting a crime that would make him guilty for their duped actions.

The result in a courtroom based on laws as I believe they should be, is that Mr. Morgan would get the greatest punishment, for being the mind, the conspirator, and the instigator of the entire crime. The others would be convicted of rape despite the plea (since they admit that she did oppose their actions at any point), and held criminally liable. If their pleas could be proven that they were insane or retarded, they would be dealt with accordingly (still removed from society as potential threats). Being drunk at the time would be found to be as much of an excuse as it would be for driving drunk. Telling an officer you only drove drunk because you were drunk at the time and not of sound mind would be no excuse for committing the crime, even if the intent was to save someone’s life in the process. Finally, the judge would give the court some words of advice about being skeptical of stupid situations, and when in doubt one should choose the path for which one most likely will not find himself in trouble. He would also ask them to question how someone could desire to have something done to them that they do not desire (as rape is only such when undesired is expressed).

Both fields share the belief that law is “institutional.” This is to say that law is a necessary product of, organized as, or forming a social institution. In a sense, there are no places where humans group and live together where there are no laws. In these places, there are those who determine laws, such as courts, legislatures, chieftain, or royalty. Similarly, law is a sort of “social fact.” Not only does law seem to exist only for cohabitation and its institutions, but there seem to be no societies which exist without, or could presumably last for long without, law.

Another shared view is that law is “normative.” To be normative is to prescribe the norm or standard, meaning that law regulates behavior, dictating the normal (desired) actions of society. While many people simply try to live how they want to live despite the consequences, most look to law to decide how to act harmoniously with society doing what they want as far as it is lawful, or doing what they want as far as it is unlawful, but perhaps unlikely they will be caught or sanctioned. Law gives us reasons for behaving in the way law dictates, granting relatively safe and satisfactory living for compliance, and often threatening a sanction, or penalty for noncompliance.

The combination of these two characteristics of law can be problematic because in some sense, law may be understood to be dictated by man from the institutional viewpoint, and man may be understood to be dictated by law from the normative viewpoint. In other words, man decides what law does, by creating and enforcing them. Law, in turn, decides what man does by mandating actions or inactions, with the power to coerce through the power of sanctions (which can include the removal of the desired or the implementation of the undesired – which may often be seen as the same in cases of fines or freedom). That man dictates the content of law and law dictates the actions and inactions of man suggests a circular argument, which presses the question, “which came first?” Does man dictate law or does law dictate man (this can become a problem when the laws become outdated due to generational differences, or when the law is applied in an unforeseen context which is insufficient. Unconscionable acts may exemplify this situation). Because of the inclinations of these characteristics, Natural Law Theorists stress the normative in the belief that higher laws and morality guide us, and Legal Positivists stress the institutional with the stance that law is a creation of man, to use upon mankind, independent from morality.

St. Thomas Aquinas presents four types of law: the Eternal, Divine, Natural, and Human. The Eternal regards the laws of the universe. The Divine are God’s laws. The Natural laws are those which apply to mankind, understood through proper reasoning, aimed at the good. The Human laws are man made laws, with the purpose to guide mankind to the Natural laws, formed from necessity to correct the apparent failure for those who do not recognize the Natural laws (Feinberg/Coleman 8 ).

“Consequently, every human law has just so much of the nature of law as it is derived from the law of nature. But if in any point it departs from the law of nature, it is no longer law but a perversion of law” (Feinberg/Coleman 9).

Aquinas’ Natural laws sometimes dictate what Positive law should be (he claims through logical deduction), and sometimes leaves room for human choice in the determination of general principles. Aquinas explains positive (which he calls Human) laws as being diversified due to the “great variety of human affairs” wherein “the common principles of natural law cannot be applied to all men in the same way.” Aquinas believes Human laws can be (or have been) derived from principled convictions (these stem from what he called Natural laws, of which the conscience has a basic understanding, and when that understanding is subconscious it manifests itself as a principled conviction) or from social norms (these describe normative, positivist law, which are not based on morality or Divine law, but are simply laws made for the purpose of regulating, structuring, and directing society with the purpose to give order and reduce chaos, and according to Aquinas, if Human law adequately points men to the realization of Natural law, it is beneficial in aiding man in the fulfillment of Divine law). Natural law include standards such as “one should not commit murder,” but says nothing as to necessary regulative laws such as how fast the speed limit should be, or what side of the road our society should drive on (therefore these laws are nothing but Human law). Furthermore, Aquinas believes that while there are many Human laws which are not natural laws, there are many Natural laws for which no Human law has been made (Feinberg/Coleman 10).

“[Laws] framed by man are either just or unjust. If they be just, they have the power of binding the conscience from the eternal law whence they are derived… On the other hand, laws may be unjust in two ways: first, by being contrary to human good… as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity or vainglory… Secondly, laws may be unjust through being opposed to the divine good… Laws of this kind must in no way be observed, because… we ought to obey God rather than men” (Feinberg/Coleman 28).

There are certain guidelines Aquinas believes Positive laws (those binding in conscience) must be held in order to adhere to Natural laws. First, they must be ordered to the common good, with the intent (seemingly utilitarian in essence) toward the flourishing of some form of success (clarified again through Divine law). Second, the lawgiver must not exceed its authority. (The authority has been if overstepped if someone acts beyond their appointed authority; examples may include a Supreme Court Justice declaring war, a police officer granting pardons to death row inmates, or an E.M.T. conducting open heart surgery. More to Aquinas’ point, if the authority tries to overstep Divine law he has exceeded his authority – Divine law may include the commandments of the Old Testament, but I’m not sure what Aquinas’ stance on exactly what constitutes Divine law.) Third, the law’s burdens must be imposed on citizens fairly; the laws set up must apply to all its citizens equally. (The law is fallible if one race gets hung for an offense for which another race would merely be slapped on the wrist.) (Feinberg/Coleman 22-25).

“Law is nothing else than an ordinance of reason for the promotion of the common good, made by him who has the care of the community, and promulgated” (Feinberg/Coleman 2) .

The above statement is regarded as the final definition of law given by Aquinas. First, it contains the teleological ends of the “ordinance of reason”, meaning that it is given with a purpose, end, or goal. Secondly, he suggests a utilitarian theme of the common good, as previously reasoned. Third, promulgation suggests that the law must be made known by public declaration, saving society from guessing at every step what the law might be. Last, but not included in this quote, is Aquinas recognition of the “coercive power” for the “inducement to virtue” (Feinberg/Coleman 19-22, 31). (This implies the sanction of noncompliance.)

John Austin presents the “Separation Thesis”, the “Command Theory”, and “Legal Sanction.” The Separation Thesis (defined earlier) starts with Jeremy Bentham, Austin’s predecessor, giving a descriptive analysis of law (with which he coined the term “expository jurisprudence”), “subjecting the law to moral criticism based on the principles of utility” (Feinberg/Coleman 33). The movement of Legal Positivism is thus pressed from a secular viewpoint of the causality and utility of law in opposition to the “vagueness and indeterminacy” embodied in morality (morals are beliefs, which in this case convictions rather than structured theories. As convictions these morals are based in feeling, which can not be determined to be right or wrong, nor based in utility, making them indeterminate as to their purpose, and validity. They are simply feelings, and without being empirically or logically sound structured theories they are vague). Austin, like Bentham, believed that in regards to the Separation Thesis, it is necessary to “separate the authentic subject matter of legal science from that which should be regarded as irrelevant to such a science (Tebbit 20). The Command Theory of Law embodies the idea that every law is a command. Those laws which do not lay down a rule from one rational being to another having power over him, those which do not have legal authority, or those which lack the power to back one’s sanctions, are not laws (Feinberg/Coleman 34-36). Sanction is “the evil which will probably be incurred in case a command be disobeyed”, whether it be forcing an undesired punishment by an authority (Punitive), or depriving a desired act from the capability of said authority (Privative) (Feinberg/Coleman 35).

Austin’s theory points out the difficulty in pinpointing a source of law without acknowledging a sovereign authority as the basis for all positive law (Feinberg/Coleman 4). Based on this difficulty, he goes on to describe the nature of sovereignty within the legal system. “For superiority is the power of enforcing compliance", and he who lays down the rule, with the power and will to enforce it is the sovereign. “Command and duty are, therefore, correlative terms… The greater the eventual evil, the greater [is] the strength of the obligation.” The importance of sovereignty to Austin lay not in the legal validity in accordance to some higher law, but in the realist sense of whether or not he has the ability and desire to enforce a sanction possessing a magnitude worthy of proper fear and compliance. The more drastic the threat, the greater the fear, and the more consistent the punitive or privative enforcement, the more consistent compliance will be.

In disagreement, Aquinas doesn’t get a rebuttal to Austin, but then he was also trying to explain law from an entirely different perspective, beginning with his view of God and Divine law. Austin on the other hand tries to explain law from the perspective of a society trying to free itself from the legal tyranny begun by the perception of Aquinas’ God (while Austin does not clearly oppose Aquinas or his beliefs about God, he does hold that the perception of morality based on the unfounded beliefs of man, which have historically been influenced by the philosophy and theology of Aquinas, have found their way into the improper understanding and speaking of law, and legal theory, thus convoluting the proper advancement of legal and moral understanding). The specific, most important discrepancy between the two is that Aquinas believes in law within everything, not to be confused with morality, but definitely to include it. Aquinas believes in the laws of the universe, probably having something to do with mathematics and physics and their like. Aquinas believes in a law of nature, governing the natural order of life. He believes in the laws of God, upheld and handed down. Last, and definitively least, he believes there is a law of mankind, born of necessity to fulfill and perfect our fallible understanding of the laws of God and Nature.

Austin tries to explain God out of the mix of the legal profession, from fear of the implementation of a possibly corrupt tool in an idealized system which society must trust. In doing so, he points out that, “The existence of a law is one thing; its merit or demerit is another.” While the laws of God fit his most literal definition of law, they are not laws because they are “general commands laying down the moral requirements of utility.” Austin does indeed share beliefs about what laws are aimed at the “common good” and what aren’t, yet he seems to want to surpass the question of good and evil, and answer what it is, through extreme descriptive detail. Consequently, Austin’s command theory of law and his systematic analysis of the perception of law opened the door to the movement of legal realism, detracting the moral/value judgment, and simply defining what the law “is.” (Austin provided the bridge from the positivist view of the conception of law through methods which led legal realists to simply attempt to understand law even more objectively, acknowledging only what law is and how the system works, less focused on the initial need for law and how it parallels or contradicts morality.) While Austin would say that a corrupt law was legally valid if put in place and enforced, I think Austin would admit that it was indeed corrupt, but such does not negate from its validity. We are not held to law because it is right, but we are held to law because it holds us to it through sanction. A relevant statement is as follows:

“It could not follow from the fact that a rule violated standards of morality that it was not a rule of law; and conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law” (Hart).

That flies right in the face of Aquinas stance that morally desirable things are indeed those which are dictated by divine or natural law, and that morality must not be violated in order for a correlating law to be valid.

Both Austin and Aquinas seem to agree that laws have a form of sovereign as well as a sanction, and belief in validity (though what constitutes validity for each of them differs). Aquinas also has a stipulation within validity that seems to parallel Austin’s view; Aquinas says that even if a law is corrupt or invalid, it may be immoral, or one may be morally obligated to follow that law in respect to keeping an overall just legal system intact. Although it seems that Austin might object to this view, looking back on a statement he made about leaving room for radical reformation with regards to Christian moral principles shadowed in the guise of legal systems. I personally side with neither of these strong minds, yet I find value in both. I like Austin because I am most inclined to agree with a form of legal realism, and I believe Austin’s methods of attempting to clean up the language of law are consistent with the methods of analytical legal realism. I also like that as a positivist he tried to clarify and clean up the view of what constitutes law, acknowledging Aquinas different forms of law, but stating that having those views of laws confuses what law is in the legal field. I do think Aquinas made great progress in his own right, attempting to explain the different understandings of law as he saw them, whether held by Jewish tradition, that of The Church, and that of the courts.

In Aquinas’ favor I might prefer a judge that was more interested in my intentions and “goodness” than what the law dictates. This again would depend on what my “crime” was, since I may have acted corrupt under the presupposition that the law would rule in my immoral favor. Consistency is probably more important that morality to me. Predictability and strength of sanction enforce laws. Yet, moral parallels to the law may result in less chance of up-rise and power-shift. I believe there is a necessary connection between morality and law historically, if not causally, and yet I believe that law may indeed be understood, and perhaps should be understood amorally.

“A sacred and unalienable right is truly and indeed invaluable: For, seeing that it means nothing, there is nothing with which it can be measured.” (Aquinas, The Province of Jurisprudence Determined, Lecture II)

The major difference in between Austin and Aquinas is validity of law, and the understanding of what law is. Aquinas believes (positive human) law is valid if it is intended toward the good, and focuses man to the understanding or fulfillment of Divine law (mandates of God laid down for man) through Natural (conscionable) law. He believes human law is a supplemental tool which aids in discerning Natural law. Natural law is mankind’s true law and anything in Human law that is immoral or incongruent with Natural law should not be understood to be law or valid law. Austin believes that only the laws of man should be understood as laws for they are what are true for men. He seems to believe that Aquinas’ Natural law is simply an understanding of Divine law, and that Divine law is a moral code set up by God, not a set of laws as law should be understood. Eternal laws like gravity and geometry are not laws at all, but the nature of, and/or forces within, our universe. Austin thinks law is only valid when it comes from one intelligent being (sovereign) implementing it on another intelligent being. The Sovereign must have the power and authority to enforce that law through sanction. His authority is granted by the acknowledgement of the people whom he rules, or dictated by laws created by a prior sovereign. When a law is not created by the sovereign, or the sovereign acts out of his authority, or when a command is given that is not paired with a sanction, the law mandated is invalid.

I agree more with Austin in the respect that the validity of law works within the system of law rather than with its relation to morality. I don’t believe that Austin’s Sovereign exists as he sees it in our society today. I do however agree that the power of the sanction and the consistency of its implementation upon actions incongruent with commands directly relate to the success of conformity to the desires results of the law. If we were fined every time we exceeded the speed limits, we would probably reduce our speed.

Reference Materials

Tebbit, Mark, Philosophy of Law: An Introduction, 2000, New York, NY. Taylor and Francis Books Ltd.

Feinberg, Joel and Coleman, Jules, Philosophy of Law -6th ed., 2000, Belmont, CA. Wadsworth/Thompson Learning.

Aquinas, The Province of Jurisprudence Determined, Lecture II.