• Michael McMahon

The Justice System

Updated: 19 hours ago

https://irishpolitics.online/threads/spur-of-the-moment-defence.742/

Fairness and legal precedents are of utmost importance. Sentencing must be consistent for people convicted for similar crimes in order to be as democratic as possible. There’s too much deviation. Manslaughter unnecessarily complicates matters. It’s already difficult to harmonise sentencing for other crimes like assault so it’d be doubly difficult to be consistent in having two independent killing offences. The word of manslaughter instead of murder dehumanises victims! Some people may indeed be “out of character” when they commit a crime (they must of got the wrong script: we were all doing the Wizard of Oz while they learned Macbeth!). But in truth we can say the same about any criminal who changes and chooses to be repentant after a crime. So there’s no need for this distinction between murder and manslaughter (much like the nonexistence of the forced mating, coerced charity or kid borrowing crimes!).

The mitigating factors for murder are insufficient to justify there being two separate classes of the crime of killing a person. I acknowledge that there can sometimes be genuine accidents that causes deaths and cases of proportional self-defence. But there are other cases that don’t warrant this exemption. Another name for excessive self-defence is vigilantism. A synonym for negligence can be the intentional endangering of other society members in general; even when they didn’t intend to personally risk that victim individually. I agree with the insanity defence as a mitigating factor but not always as an exoneration. A psychotic experience will indeed confuse a person’s understanding of logic. But one would still need a small degree of understanding about causality just to carry out a complex crime. Anxiety is usually directed at one’s self.

I understand that some people charged with manslaughter have very serious and legitimate grievances against the victim. But society would descend into a free-for-all if everyone were to decide to act violently against people who they perceive to have mistreated them. That would send the wrong message. Being vengeful against other admittedly vengeful people is to be yourself part of the problem. It’s about dissuading people from escalating a volatile situation rather than trying to somehow accommodate such pent-up emotions when determining a court sentence.

I actually had in the back of my mind the notion of unprovoked fights and assaults when I wrote the first post in the thread. But I came across comments that disagreed strongly with my take on manslaughter for the opposite reason. They argued for the sake of the vigilante types of cases. This demonstrates the inherent risk of the manslaughter defence being exploited and abused in all non-accidental sorts of crimes. In my view it’s a lawless downward spiral. People might find rare borderline or tricky cases but overall this defence does far more harm than good.

In summary, it’s not merely the length of the jail sentence but the potential multi-year disparity between murder and manslaughter that I find concerning. In rare instances there might even be a multi-decade difference for loosely similar non-defensive killings(*). The flip side of manslaughter is that a conviction of plain murder simply results in a life sentence. So in being charitable to one section we ironically risk being uncharitable to those who are repentant in premeditated cases. I think either increasing the manslaughter sentence sometimes or decreasing the jail-time for murder would lead to more overall consistency. I don’t think there’s much point having a mandatory life sentence for murder if it results in most people simply being charged with manslaughter instead. I think we’d be better off coming to a rough consensus on a medium sentence length for killing someone rather than always aiming for a life sentence.



Example*:

A rugby player sobbed as he was handed a three-year suspended prison sentence for the manslaughter of a pensioner in a one-punch attack in a pub... Judge O Donnabháin said he felt O'Sullivan's remorse was genuine.”

-Independent


A son has been jailed for life for brutally stabbing his father to death during a "trivial" row over broadband speed.

Stephen Gallagher, 55, repeatedly stabbed his 76-year-old father Thomas, originally from Achill, Co Mayo, more than a dozen times with a knife after losing his temper... Stephen Gallagher was sentenced to life in prison, and was told he must serve at least 13 years and four months before he can apply for release - though the judge told him: “You may, in fact, never be released.””

- Irish Mirror


I don’t know anything about these two cases. The degree of culpability may well be quite different. But on first impression are they really different enough to justify perhaps up to a 20 year variation in the jail sentence? While these are specific examples, my argument isn’t really referring to particular cases. It’s meant more in general. Jail sentencing for mitigating factors should be equal for all defendants. Loopholes could be easily exploited. We can’t over-indulge in preferential treatment.

A difficulty with provocation is that we can’t always understand the tone of a situation by the mere content of what was said. For example, a veiled threat might not look like a threat on paper. For instance it’s possible to disguise threats in the form of body language, false accusations, intrusion within your striking distance or a loud voice as a pretext to attack someone. Conversely a defendant could try to exaggerate the intended meaning of what was said. Therefore it’d be very hard to properly understand situations where there’s provocation on both sides. I do appreciate that provocation might take the form of a threat and not just an insulting statement. A verbal threat of assault or blackmail are examples. In those instances I feel that the pain caused by physical violence is still disproportionate and often worse than emotional harm even though both are terrible. Furthermore in the case of manslaughter the dead person can’t give their side of the argument.


I understand that there can be extenuating circumstances that were factors in a crime. But having a negligent mindset of not thinking about the consequences of a crime before carrying it out is sometimes itself caused by an active decision to be apathetic towards the victim. In essence they’d be deciding not to properly analyse their actions nor to resist their angry feelings. Ideally there’d be a standard sentence as a benchmark. The aggravating and mitigating circumstances would then add to or subtract from that jail term like a maths formula. I concede that there’ll be some degree of subjective leeway and intuition needed in determining their capacity for change and repentance in reducing a sentence. But one-off provocation is highly subjective and risks giving too much power to only one particular judge. A group of judges will always be more impartial than one judge by being able to balance each other out. It’s often not feasible to have multiple judges at only one trial. But precedence can fill in as a reflection of group wisdom.

Precedence allows us to see the bigger picture and accurately rank the severity crime in the whole scheme of things. It’s easier to expose a bad precedent than an individual bad sentence. For instance I read that a person was initially sentenced to 6 years for tax evasion on garlic produce although it was reduced to 2 years on appeal. I’m not downplaying the severity of lost revenue for vital government services. But keep in mind that when we focus on the ethics of one case in isolation we can lose sight of the fact that there will always be more severe and less severe crimes. There’s no limit on the amount of evil criminals can inflict. There’s not really a single gravest crime in the strict sense. As gruesome as it is for someone who broke another’s leg there’ll always be a second criminal somewhere who breaks both their legs. Truth be told some sentences for manslaughter where someone is actually killed are significantly less than those initial 6 years. Even in dissimilar cases precedence can help us use counterfactual circumstances to gauge the relative severity of a crime and create a lower margin of error when considering a sentence. With that particular case it was admittedly a huge tax figure of over €1 million. Then again there’s no way to quantify the monetary value of a lost eye in an assault for instance seeing as it’s technologically irreplaceable. When you think about it the lifetime costs of medical expenses from the victim, their lost working productivity, the salary of forensic analysts, detectives and legal fees probably would end up costing the state a colossal amount of money even if it’s not quite a million euros.

A crime is a crime no matter who commits it. Yet I sometimes get the impression that it can be viewed as a milder or more severe crime depending on how it suits the conflicting social or political images of different courts. While it’s not always the case I can’t help but spot these possible inconsistencies: for example there might be large compensation for workplace accidents but a sometimes significantly softer attitude towards vehicular accidents, or payouts for libel without always having an equivalently stern attitude towards verbal assault. That is to say an insult can be damaging whether it has some basis in reality or not. Case law can hopefully assist in preventing the undertones of politics. Precedence is being used as a guideline and not a rule(!):


Two teenagers who attacked another three teens with acid in Waterford last year will not face criminal charges after an earlier decision to caution them instead has been upheld on review.”

- Independent


Precedence isn’t perfect. I’m not trying to be unrealistic. It’s indeed possible for there to be a bad precedent on certain issues. There might be cases where precedence isn’t the best fit even if it suffices. In such cases it can be updated. But an advantage with precedence is that it places a limit on the potential amount of distress or uncertainty because it’d have to be applied across the board. So in the above example they’d be compelled to relieve criminal charges to all other perpetrators of this crime. That would become untenable due to the severity of other cases. Therefore they’d have to find a general compromise that’s not harsh or too lenient to deal with a multitude of these incidents. Even if a precedent isn’t 100% optimal for a given situation it still deserves to be emphasised out of pragmatism. I think it’s better to be consistently average than it is to risk poor sentences so as to get an occasional perfect sentence. Time is finite and valuable. So it’s a bit of a balancing act. We don’t want to subject a criminal to excessive wasted time in a jail cell if they’re already sincere. Likewise we don’t want to waste more of the victims energy and time with unnecessary worry.


The individual is the primary victim rather than just the state. This means if there’s enough evidence you’d imagine there should at least be an initial court case for everyone to first debate the matter rather than the director of public prosecutions unilaterally opting not to press charges. I never actually intended to get involved in these matters. I’m not a lawyer but I can’t help finding some counterintuitive sentences very worrying when I read about them. I understand that newspapers don’t know everything about the confidential contents of a court’s decision. Maybe there’s mitigating factors that are kept secret and so we’re not aware of them. But in such cases one would imagine an exceptionally light sentence should require an exceptionally unusual excuse to justify a lesser sentence than the average convict. I believe victims of the same crime class are entitled to an equal sentence and the onus is on the court to justify a different sentence. All else being equal then the sentence should be equal. We can’t be prioritising the pain of some victims over others. People are entitled to an equal consideration of their defensive rights on behalf of a court irrespective of the personal character of those involved. It’s virtuous to be forgiving but not to the extent where it’s at the expense of the victim’s well-being and security.


What’s troubling about suspended sentences with severe crimes is not the fact most of the sentence can be suspended but that occasionally the entire sentence is suspended. It’s as if it’s all or nothing where a certain judge appears to feel that to jail the person even temporarily would be an admission of leniency and it’d be best to have no jail time as a sign of complete repentance or innocence. I think that’s over-ambitious. If someone wants to rehabilitate manslaughter perpetrators then that’s fair enough but they’ll have to be consistent and rehabilitate murderers too. We can’t be selectively rehabilitating some people and not others. Otherwise there’s a risk of arbitrariness. Even if it means some murderers would go under-punished, it’d at least lead to more justice overall by limiting anomalies.



With rap music these days you never know what someone could cite as provocation:


https://www.scienceforums.net/topic/122684-are-people-that-do-crime-really-responsible%C2%A0/


(My comments are on page 1 and page 3 of that thread.)


I agree with the goal of rehabilitation on the first page. Although I add that cautious punishment in jail isn’t always vengeful. So non-excessive punishment doesn’t contradict the aim of rehabilitation. Prison may be helpful in preempting and averting there being other future victims from the accused individual. The negative incentive of prison can eventually make someone see the error of their ways. The warning of prison time is necessary for the severe types of crimes so that we can then be more able to fully trust the criminal to not commit another serious offence in the long-term and to hope that they keep to their apology well after they’ve left jail. While it’s indeed true that a criminal can’t undo the past we can still try to learn from any misdeeds we may have made in order to change and prevent similar problems from arising in the future. People seldom change personality overnight and sometimes an epiphany can take a longer time.

On page 3, I wade into the death penalty debate. I appreciate the Christian teaching to be always forgiving but in the context of a severe crime I imagine it’s acceptable to simply dislike the person less. I reason that the penalty of death is unnecessary seeing as serial killers can be pretty much buried alive with various restraints in a jail cell. I do understand the ethical and slippery slope arguments. Please note that I purposely refer to serial killers who’ve killed multiple people and not murderers with one count. The sheer amount of damage they could do by further demeaning their victims or stirring up unrest if they became unrepentant means that they need to be thoroughly rehabilitated.

I just think that as this particular crime is an infrequent logical extreme, the defensive punishment would therefore statistically be rarely used. So I don’t think there’s too much risk of a downward spiral. The ingrained evil of serial killers/mass shooters/war criminals are obviously many orders of magnitude worse than all of the other types of criminals. Thus it will be harder to rehabilitate them. The sanctity of life is respected as the serial killer would avoid the death penalty. I just feel that trying to rehabilitate these specific individuals back into society is too risky and much of a lost cause.

Forgiveness is crucial and will always be a spiritual and emotional virtue. But indeed the concept of forgiveness, patience and giving second chances isn’t the same as subservience. It’s of course possible that a hypothetical person who committed multiple attacks is already fully repentant. Although in such a scenario it’d always be hard to tell whether they’re sincerely apologetic no matter what they said. You’d never know if it was with genuine sadness or else if they’re a bit equivocal with self-interest or ambivalence given how hostile their previous mindset must have been. Jail is a backup plan in case there’s a risk of remorselessness and recidivism. That’s why irrespective of the deterrence vs rehabilitation or free will vs determinism debates, there’d at least have some jail time for a severe crime if only as a precaution.



Post 48 page 2:

https://debatepolitics.com/threads/murder-in-canada.362840/page-2#post-1070364904

Unfortunately there could be serial attackers who might not even try to repent after being caught. In the case of the Norway mass shooting Breivik was not only remorseless but was still attempting to incite others to commit further hate crimes in court. His unapologetic attitude is an implied threat that he’d be willing to attempt to do it again if he was given the chance. I think rehabilitation can incorporate the idea of reverse reasoning when it comes to such uncooperative perpetrators. No it’s not about the active deterrence of others. A proportional judicial response is about being neutral and passive towards any unrelated criminals. It focuses solely on how to deal with the specific perpetrator who committed the crime. But sadly a disproportionately lenient response to the likes of Breivik might inadvertently be seen as a vulnerability or an incentive by other potential attackers who subscribe to these sinister ideologies.

#23 page 1: https://debatepolitics.com/threads/mass-shooters-should-be-killed-slowly.365095/

Although both are dire crimes there’s an immense distinction between murder and serial murder. Even working within the framework of Norway’s restorative model there’s a mismatch in that Breivik would of got a similar sentence to a criminal who killed just one person. I understand Norway’s stance against the death penalty. Their commitment to objectivity and self-control is commendable. But a very grim way to rephrase his horrific crime is that he permanently confined 77 innocent victims into jail cells the size of a coffin. I think a three-room house arrest will be inadequate to change the mindset of this terrorist. Sometimes the medicine for an illness is painful and has side-effects so the way to cure psychopaths like him is intense confinement in my opinion. Without much display of self-awareness one can only assume he’s the same violent person as he was when the attack was carried out. Restorative justice can include the notion of tough love.

The Atlantic: “Norwegian far-right monster Anders Breivik... received 21 years in prison for his attacks last year, including a bombing in Oslo and a cold-blooded shooting spree, which claimed 77 lives. That's just under 100 days per murder. The decision, reached by the court's five-member panel, was unanimous. He will serve out his years (which can be extended) in a three-room cell with a TV, exercise room, and "Ikea-style furniture."



https://debatepolitics.com/threads/w-378-home-intruder-clings-to-life-after-being-shot-in-head-by-young-dad-protecting-his-family.387369/page-4#post-1071425686


(Post number 90, page 4.)

Fairness is a two-way street. We can’t scapegoat or exaggerate the threat posed by a particular person. By the way I’ve never heard anyone more obsessed about the word “homeowner” than America! I hardly ever see it used in crime articles in Ireland or Europe.

You don’t even need to leave a voice message; just ring yourself with pretend threats and you’ll intimidate anyone that overhears you!


“A spectator at a golf tournament who sued after he was hit on the head by a golf ball and knocked unconscious has lost his High Court action.

Colm Campbell had claimed he is in constant pain and his life has totally changed after he was struck on the left side of his forehead during the West of Ireland Championship for amateur golfers held at County Sligo Golf Club at Rosses Point, Sligo, five years ago.”

-IrishExaminer


I don’t know the details of this case or the exact aftermath of the incident. Nor do I know anything about golf or where spectators should stand. Neither do I know how hard it is to dodge a golf ball relative to it’s speed even if they saw it coming. Anyway what caught my attention is that even in a complete accident you’d imagine there’d still have to be some form of compensation. For example if someone stepped back and broke something in a shop you won’t be criminally prosecuted for theft or fined an excess amount for vandalism but you’d nonetheless have to pay the bare cost price of the item. Similarly if you cause an accident there’s a trace level of responsibility by mere involvement even if there wasn’t any negligence. So it’s not unfair to have to at the very least contribute to their medical expenses and time out of paid work or activity even if there’s no added punitive damages. I concede that there’s a public health system that will cover a lot of the costs. Nevertheless if someone ends up being hurt as a result of your actions then it’s normally your moral responsibility as a gesture of charity and goodwill to ensure they’re helped and not to abandon them.



Paediatric nurse Morley, who smothered her three young children at their family home, has been found not guilty of their murders by reason of insanity.” (breakingnews ie)

- To be honest I don’t particularly agree with this logic. Morley was indeed suffering a lot of anguish. Nonetheless both the severity and the innocence of the victims’ pain outweighs the pain of the perpetrator. I’m not saying that people with psychotic disorders have never committed crimes. But if they do commit a crime then they still have to be held responsible. People make mistakes and can gain the insight to change a negative mindset. If their symptoms subside then they might find it easier to understand their mistaken vantage point. If they are repentant then that is a mitigating factor as it’d be for all other defendants. I believe that mental illnesses can be extremely painful and as I wrote elsewhere that suicide is unfortunate and regrettable but it isn’t in any way evil or immoral. Yes I do find it very odd and ironical that I’ve to defend suicide while at the same time being skeptical of overusing the insanity defence. I’m not sure if the insanity defence is having a negative effect on mental health awareness. Self-harm is clearly not a crime but harming others really is a crime. To be conciliatory I’ll say that it might not be too harmful to view provocation, negligence or mental illness as a mitigating factor and as a form of repentance but not as a completely blameless exoneration.



“A mother of four who drove her car at speed on a footpath in an attempt to run down two teenage girls who had attacked her 14-year-old daughter has been given a three-year suspended jail sentence. A judge said the accused, Mary Lawrence, had taken “the law into her own hands” after being annoyed with the way gardaí had handled the incident involving her daughter.” (irishexaminer)


I feel this is a confused outlook. I’m no legal expert but it’s frustrating because it must be relatively easy for highly qualified judges to be consistent when they want to follow precedence. The answer to a cycle of violence is to nip it in the bud. It’s not to take into account her grievance at previous garda actions. That’s totally separate to this case even if it was her motive. If there’s mutual non-defensive violence then criminalise both people in my opinion instead of concluding that they’re now even and calling it quits. If it’s a crime for most people to drive on footpaths than it must logically be a crime for all. Otherwise just forget criminalising it and make it legal for everyone to drive on footpaths! I didn’t want to be so sarcastic but consistency appears to be increasingly challenging. Even though that quoted example is a minor incident it’s still important to maintain balance so as to be better able to deal with more complex cases like robbery or murder. I’m not disagreeing with the need for forgiveness. I’m merely saying we must endeavour to be equally forgiving to all repentant criminals as a collective group in a crime category rather than just individually to ensure sustainability. The dilemma is that forgiveness can be subjective and personal while ideally the court aims to be impersonal. We can always attempt to be more even by spreading out that forgiveness.



(No I don’t need a taxi! After packing my bags a few times and having fallen out with my temperamental parents and many relatives, I’ve inadvertently become an expert on the trustworthiness of apologies! I imagine people born into large families must probably have a masters degree equivalent in crisis management and conflict resolution! It’s safe to say a few situations went a bit beyond them! I remember trying to study and sometimes I’d hear dance beats humming in the background from my sister’s room. I use to try to block it out with white noise or earmuffs. At this stage I’m so accustomed to studying under adverse conditions that thankfully I’m less distractable and can study on the move!)


PS: I never went to law school. I did junior cert CSPE if that’s any consolation!


I had these walkie-talkies when I was a young child. They often picked up the signal for the builders talking to each other in the back of the estate. One day after dinner I heard them and started cursing into the walkie-talkie. The boss got angry and began threatening the employee with getting him fired as he didn’t know it was me. I tuned out so I’m not sure how they resolved it. I was too young to know any better!



Sometimes you’ve got to assert your authority around the house(!):


We’ve to control our emotions against any agitated siblings(!):



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