Wednesday, June 08, 2016

The Origin of the Law of Torture: A Cautionary Tale

[This is a passage I just wrote for a chapter of my current book project, Legal Systems Very Different from Ours. I thought my blog readers might find it of interest.]

People in the past worried about convicting the innocent too. In the early Middle Ages, they had a solution–let God judge. A defendant could be subjected to an ordeal, such as plunging his hand into boiling water, carrying a red hot iron, being dumped bound into water. Various passages in the Bible were interpreted to imply that God would reveal guilt (hand injured or body sank) or innocence (not injured, floated). Since God was omniscient, it was an approach that guaranteed a correct verdict.

The use of ordeals was eventually abandoned on theological grounds. A more careful examination of the biblical passages found little support for it, and it could be viewed as an attempt by humans to compel God to serve them, religiously dubious. In 1215, the fourth Lateran council rejected the religious legitimacy of judicial ordeals and banned priests from participating in them. Over the next few decades most European countries abandoned their use.[1]

That left medieval judicial systems with the problem of finding another way of being certain a defendant was guilty. The solution was to impose a very high standard of proof,  evidence “clear as the noonday sun.” Conviction required either two unimpeachable eyewitnesses to the crime or a voluntary confession. Circumstantial evidence, however strong, was insufficient.

In the history of Western culture no legal system has ever made a more valiant effort to perfect its safeguards and thereby to exclude completely the possibility of mistaken conviction. But the Europeans learned in due course the inevitable lesson. They had set the level of safeguard too high. They had constructed a system of proof that could as a practical matter be effective only in cases involving overt crime or repentant criminals. Because society cannot long tolerate a legal system that lacks the capacity to convict unrepentant persons who commit clandestine crimes, something had to be done … .(Langbein 1978)

The solution was the law of torture. Once the court had half-proof, one eyewitness or the equivalent in circumstantial evidence, the defendant could be tortured into confessing. A confession under torture was not voluntary, but that problem could be dealt with. Stop the torture and the next day ask the defendant if he is still willing to confess. Since he is now not being tortured, the confession is voluntary. If he doesn’t confess, torture him again.

John Langbein, my source for this account, offers a parallel story in modern law. Two hundred years ago, jury trials were short:

In the Old Bailey in the 1730s we know that the court routinely processed between twelve and twenty jury trials for felony in a single day. A single jury would be impaneled and would hear evidence in numerous unrelated cases before retiring to formulate verdicts in all. Lawyers were not employed in the conduct of ordinary criminal trials, either for the prosecution or the defense. The trial judge called the witnesses (whom the local justice of the peace had bound over to appear), and the proceeding transpired as a relatively unstructured “altercation” between the witnesses and the accused. In the 1790s, when the Americans were constitutionalizing English jury trial, it was still rapid and efficient. “The trial of Hardy for high treason in 1794 was the first that ever lasted more than one day, and the court seriously considered whether it had any power to adjourn… .”
Over the years since, trials have become longer and much more complicated, at least in part to reduce the risk of convicting the wrong person. Patricia Hearst’s trial for bank robbery lasted forty days. That was unusually long, but the average felony jury trial in Los Angeles in 1968 took 7.2 days, more than a hundred times the length of a felony trial in the Old Bailey in the 1730’s. If every felony conviction in the U.S. took that long, felony trials alone would require the full time efforts of more than the total number of judges in the state and federal systems.[2] Also the full time efforts of close to a million jurors, court attendants, and the like. Not impossible, but very expensive.

The American legal system found a less expensive alternative. Like its medieval predecessor, it substituted confession for trial. The medieval confession was motivated by the threat of torture. The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted. Like the medieval version, it preserves the form–every felony defendant has the right to a jury trial, a lawyer, and all the paraphernalia of the modern law of criminal defense–while abandoning the substance. Conviction after a lengthy and careful jury trial is, arguably, evidence of guilt beyond a reasonable doubt. The willingness to accept a sentence of a year, possibly a year already served while awaiting trial, instead of the risk of ten years if convicted is not.



[1] For details see  Leeson, Peter, “Ordeals.”
[2] In the U.S. in 2006, an estimated 1.2 million persons were convicted of a felony. If each of them had had a jury trial of 7.2 days the total would have been 8.6 million trial days. Assuming that courts function five days a week, 52 weeks a year, felony cases alone would have required the full time effort of 33,000 judges. Add in a few more for the trials of defendants who were acquitted. There are about 30,000 judges in the state judicial systems, and another 1,700 in the federal system.

Thoughts on the Election

It seems almost certain that the two major party candidates will be Hillary Clinton and Donald Trump, not an inspiring vision. Of the possible bad outcomes, which is least bad?

The answer, I think, is for Hillary Clinton to be elected president with a Republican House and Senate.

The reason is not that I expect Trump, if elected, to shut down the New York Times, order all his opponents arrested, turn his fans into a legion of storm troopers, abolish the Constitution and end democracy in America. However bad his intentions, he cannot do those things by himself. Moves in that direction, even considerably less extreme ones, would be opposed by some Republicans and all Democrats, which means a majority of the House, Senate and Supreme Court.

My worry is in a different direction. A Trump election would almost certainly also give the Republicans a majority in both the House and Senate. A Republican congress can probably be trusted to resist moves by a Democratic president to expand the size and power of government, in particular of the executive. It cannot be trusted to resist similar moves by a Republican president--did not when the president was Bush. 

Insofar as one can guess Trump's real political views and insofar as he has any, they seem to be center left, a fact obscured by his efforts to get Republican primary voters to vote for him. If he acts on such views, probably with wrapping designed to make them as palatable as possible to conservatives, he will probably have support from most Republicans in congress and some Democrats.

Or in other words, I think Trump will be in a position to do considerably more damage than Clinton will be. There is much to be said for gridlock, considering the alternative.

As for the election, if I vote it will be for Gary Johnson on the Libertarian ticket.

Wednesday, June 01, 2016

Anyone Want a Talk Near London?

I am currently scheduled to give a talk for the Institute of Economic Affairs on July 2nd and tentatively giving another talk the day before. My plan is to fly to London on the 28th or 29th, fly home on the  third or fourth, although I could stay another day or two if necessary.

Is there anyone in the London area who would be interested in setting up a talk?

Saturday, April 16, 2016

Question for any Historians Reading This

I am currently working on the sequel to Salamander, my second novel, and would like some relevant historical information. The novel is a fantasy, the world it is set in has technology somewhere between our fourteenth and 18th century (no firearms) plus weak magic. Political institutions a bit like seventeenth or eighteenth century England--a monarchy with real power but not absolute, feudalism on the way out but not entirely vanished.

The capital of the kingdom of Esland has been taken in a surprise attack by an army from a neighboring state. A good deal of looting, burning and killing, as usual under such circumstances. A defending force is still holding out in the citadel.

Two weeks after the attack, what does the situation look like? Are the attackers sending looting parties into the countryside for food or simply offering to buy it, thus giving farmers an incentive to come to them? Is there a curfew in the city? Has city life for the survivors more or less returned to normal? Have invaders recruited locals to patrol the streets, as a step towards longer run control over the city? Are the city gates open and guarded, open and not guarded, open during the day and closed at night (relevant because I have a character planning to enter the city)?

The invaders anticipate an army or armies eventually being assembled to try to retake the capital, but there is not yet one close enough to be an immediate threat.

Anyone know of good historical sources, preferably primary, that describe this sort of situation? I would rather steal from history than make it up out of whole cloth.

Saturday, April 02, 2016

My Response to a Non-Libertarian FAQ

A long time ago, a blogger I think highly of wrote a non-libertarian faq. When I came across it, some years later, I responded by email, he replied, I replied. I eventually got around to converting the exchange to a web page.

I recently came across a blog post which commented on the non-libertarian faq, remarked that he thought it was basically right but also that he would like to see my response. Since his blog does not permit comments or provide the author's email but he apparently reads my blog, I thought providing a link here would be the easiest way of showing it to him.

Others may also find it of interest.

Someone else wrote and webbed a much longer reply.


Thursday, March 24, 2016

My Favorite Ex-Candidate

Is more fun to listen to than any still in.

Friday, March 18, 2016

The Corrupt Bargain of 2016

I recently came across a clever article on how the Republicans could nominate Trump and then elect someone else. The plan is simple in principle, tricky in execution:

1. The Republicans nominate Trump, the Democrats nominate Hilary.

2. The anti-Trump Republicans run a pair of third party candidates, say Kasich and Cruz. They get on the ballot in Texas, Ohio, and perhaps a few other states where both major party candidates are sufficiently unpopular. They stay off the ballot in any state where their presence might help the stronger of the major party candidates, probably Clinton.

3. They get enough electoral votes so that neither Trump nor Clinton has a majority, which throws the election to Congress. The House chooses the President, the Senate the VP, from among the three leading candidates. Kasich is chosen as President, despite coming in third in both popular and electoral votes, and Cruz, or possibly Trump's running mate, becomes Vice President.

When I described the scenario to my history major son he informed me that it had already happened—almost two hundred years ago. In 1824, Andrew Jackson got forty-one percent of the popular vote, John Quincy Adams got thirty-one percent, with the rest of the votes going to Henry Clay and William Crawford, all four running as candidates of the Democratic-Republican Party. Jackson was looked down on by the more civilized elements of his party, viewed as a lowbrow populist and bully. 

Remind you of anyone?

Jackson had a plurality of both popular and electoral votes but no candidate had a majority of electoral votes, so the presidential election went to the House, which chose Adams. Critics claimed that Clay had thrown his support in Congress to Adams in exchange for being offered the position of Secretary of State, widely viewed as making Clay heir to the White House. They labeled it The Corrupt Bargain.

Having had the presidency stolen from him, as he and his supporters saw it, in 1825, Jackson ran again in the next election, this time as the candidate of the (new) Democratic Party. And won.

So maybe it's not such a clever idea after all.