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Yet another one of my attempts to create an interesting/different feeling for an alternate government, while being functional. I'm asking about a theoretical world that exists, not necessarily transitioning our world to it, and am mostly looking for ways to make one functional, though I'm open to any criticism that says such a government simply could not work.

The idea of this one is simple, length/severity of punishment of a crime may be adjusted depending on confidence level that the accused committed a crime, in theory this will prevent those who may have been falsely accused from facing as severe punishments since they are less likely to be confident.

The steps would be similar to our current system, except in actual ruling and assignment of punishment. A jury will be asked if the prosecution met a certain minimum burden of proof to find the accused Guilty, if so they will be asked to what burden of proof has the prosecution proven this guilt.

The minimum burden of proof may, or may not, be the same as our current one. For instance the minimum burden may be set at "Clear and convincing evidence", the same burden held for civil trials in the US currently. At the minimum level a defendant may be found guilty, but with little, if any, punishment. A number of subsequent burden levels exist that the prosecution may be found to have met.

So here is a sample of the levels of proof a persecution could be found to have reached, these are just an example, I'm not saying the government has to use these levels:

  1. "clear and convincing evidence" (current burden for civic cases)
  2. "evidence without dispute" (no alternate explanation for the crime exists that is deemed creditable, ie no one else could likely of done the same)
  3. ...some other stricter level here...
  4. "beyond a reasonable doubt" (current level)
  5. "Beyond a reasonable doubt, direct evidence" (requires clear direct, ie non-circumstantial, evidence in addition to above, your going to need DNA or something similar"
  6. "beyond a shadow of a doubt" (requires something like clear video recording the entire crime occurring and that the accused did it, or hundreds of witnesses who could clearly see their face and cops arresting you in the act; basically you can't possible imagine this person could every be innocent)

These burden levels would likely be pounded into people by their culture, and be covered in civics classes in schools regularly, so people will likely have at least some idea of the difference in severity of each by the time of adulthood before being called to a jury.

Now imagine for instance Bob is accused of murder. The law may set punishments as:

  1. recorded as guilty, no punishment
  2. 1-3 w/ parole
  3. 5-15 w/ parole
  4. 25-life w/ parole
  5. 30 - life with or without parole
  6. 30 to life with or without parole, or death penalty

Notice, it's not an even scale, the lowest levels of proof are substantially less punishment then the higher levels intentionally, so if you were unfairly found guilty you don't suffer significant punishment. In addition some crimes may be written to require a higher burden of proof to be found guilty at all.

Notice it's possible in the above example to get life for burden of proof level 4 but only 30 years at the next burden of proof, so that the jury still has some discretion on appropriate punishment based off of things such as severity of the crime and justifiability etc. Even someone who was proven indisputable to have done a crime may be seen as having a very justifiable reason and unlikely to do it again making a less sever punishment make sense then someone found a level 4 burden but horrible motives. In addition capital punishment is only an option with the highest burden, since one of the complaints against capital punishment is that it could be used against an innocent man by mistake it seemed a great example of the sort of punishment that may be reserved for only the highest burden of proof.

In my example level 1 for murder was no punishment at all directly. However, he would have on his record that he was found guilty for all to see, which could have other affects. he may lose the right to vote and have to report being found guilty of a felony to employers etc; and obviously it could be relevant if he is ever put on trial for murder again and had been found guilty of felony murder. Of course everyone would ask at what burden of evidence he was found guilty to measure how to respond to a conviction.

Of course all the above is an example, I'm asking about a general idea for a system, the exact level of burden and severity of punishment per burden isn't as important as rather or not they system is functional.

Given a system like this, would the system work? It doesn't not need to meet our vision of justice, but would it serve as a justice system that sufficiently discouraged crime without paralyzing itself with too many court cases or too many people in jail etc. What sort of difficulties would it face? Most importantly, could this system allow a minimum burden of proof lower then our current (with very low punishments) or would the minimum burden have to be our current one?

If it did work what would it do better or worse then our current system? What obvious rule would need to be in place to support the system and make it function in a relatively just manner (for example, perhaps laws would need to be in place to decide how public certain convictions are, burden of proof of level 1 are only made available to law enforcement and if someone is on trial for a related offense, potential employers can check if applicant had felony of level 2 or above, public can see level 3 and above etc to avoid felons being punished too severely after they serve their time).

If I get interesting responses to this I will likely ask follow up questions about affect on culture, government etc. However, if anyone has any interesting ideas of the ramifications of such a policy they wish to mention now feel free to do so, it may fuel follow up questions :).

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    $\begingroup$ Isn't this how law worked in the dark ages? The inquisition comes to mind for how effective or 'fair' it can be. $\endgroup$
    – Samuel
    Commented Nov 16, 2015 at 23:02
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    $\begingroup$ @Samuel not entirely. There would still be strict rules on exact levels of punishment based off of confidence, as opposed to dark age judges that could make up any punishment at any level for any crime or confidence. You can't give someone life in prison for punching someone else no matter how confident you are of it because the crime doesn't fit the punishment, and no matter how horrible the crime you won't get life in prison if they can only prove up to level 1 burden because the courts say were not confident enough to justify that bad a punishment because we could be wrong. $\endgroup$
    – dsollen
    Commented Nov 16, 2015 at 23:08
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    $\begingroup$ Maybe they just program in Fortran, Matlab, or Lua. $\endgroup$
    – Samuel
    Commented Nov 16, 2015 at 23:13
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    $\begingroup$ @DiegoMartinoia I considered that. There are two reasons for descrete units. First, it seems impossible for a jury of 7 to agree on exactly how confident they all are, or even for one individual to decide if he is 85 or 90% confident; trying to get precise levels of confidence becomes complicated. In addition it seems more prone to biases (I don't like this crime, so I'm going to say I have higher confidence not because I'm more convinced, but because I'm disgusted by the crime etc). Exact levels if well defined make clearer what you need to have to meet the next burden level. $\endgroup$
    – dsollen
    Commented Nov 17, 2015 at 16:25
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    $\begingroup$ For what it is worth, the burdens of proof in general use are: (1) reasonable suspicion (enough to justify stopping and questioning someone and asking for ID); (2) probable cause (enough to justify arrests, searches and seizures), (3) preponderance of the evidence (civil lawsuits and affirmative defenses in some criminal cases), (4) clear and convincing evidence (special doubtful issues in civil lawsuits), (5) beyond a reasonable doubt (criminal burden of proof), and (6) beyond a reasonable doubt plus (imposing death penalties). This effectively exists now via plea bargaining. $\endgroup$
    – ohwilleke
    Commented Oct 24, 2016 at 6:23

5 Answers 5

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You system could certainly work, its no less logical than what we do now and in my view it helps eliminate the all or nothing mentality that comes with some current legal practices.

Heck in the case of murder we already grade it out so you're half way there, you just have to adjust the scale a bit based on burden of proof (which is only split two ways in the US (Criminal vs Civil).

US Federal Law

Offense -- Mandatory sentencing

  • Involuntary manslaughter -- Fine or up to 8 years imprisonment
  • Voluntary manslaughter -- Fine or up to 15 years imprisonment
  • Second degree murder -- Term of years to life
  • First degree murder -- Life imprisonment or death sentence

As to its effectiveness...well that is a matter of speculation but a few benefits and problems do come to mind.

Pros:

  • Life is easier on Juries in big cases (particularly murder cases). No longer are they deciding between someone's life and their death (or at least life in prison) in most cases. I would personally be hard pressed to consider anything but visual confirmation + DNA as enough to give someone a guilty sentence that will lead to the death penalty.
  • Eliminates the need (if there is one) for mandatory sentencing which robs judges of their freedom in their authority to sentence individuals. Everything works on the scale instead.
  • Creates a two part scale where one axis is crime severity and the other is certainty which seems a much safer system than a simple Guilty/Not Guilty all or none system

Cons:

  • There is a potential issue with everyone getting a sentence even in the case where they are completely innocent. Just like people tend to not circle the extremes on a survey sheet (1 or 10) people may not use either end of the spectrum, which means MORE people could be potentially found guilty when they should not be...the punishment would just be far less severe.
  • You have a potential for far more cases going to trial which would require more judges, money and support.
  • Get the conviction that is easy as opposed to what should be done. Lower burdens of proof would be far easier to accomplish and prosecutors may choose to go for them rather than a first degree murder charge for example, even if murder in the first is what should be pursued. To clarify I am not saying that the prosecutor would choose the charge. The system would decide the charge and punishment based on how things went rather than deciding ahead of time. I am more referring to how deep the prosecutor digs and how hard he/she tries knowing a weaker conviction is likely with less effort.

Strangely I don't really see this system being terribly different from the system we have no (given that you keep the system the same outside the changes you specify.

In the end the legal system is still a system created by humans who make bad choices and have bias, those flaws you simply can't be rid of no matter what legal framework you utilize.

Would it serve as a justice system that sufficiently discouraged crime without paralyzing itself with too many court cases or too many people in jail etc.

If properly applied and adaptive with time, yes. This again is the human factor...tough to gauge.

What sort of difficulties would it face?

The cons mentioned.

Most importantly, could this system allow a minimum burden of proof lower then our current (with very low punishments) or would the minimum burden have to be our current one?

You could certainly have a lower burden of proof than what is currently expected if the punishments are correspondingly adapted.

If it did work what would it do better or worse then our current system?

This is tough to answer, application is everything when it comes to law.

What obvious rule would need to be in place to support the system and make it function in a relatively just manner?

You would need to define somewhat objectively what makes a crime fit into a specific category.

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  • $\begingroup$ Great answer. I like your comment on more cases going to trial, another con I hadn't considered, but a good point. Though to your last con I figure the prosecution would never decide a burden of proof to prosecute against, they would prosecute the crime and the jury decides what burden they reached. So you decide rather to go for first or second degree murder as now, and then let the jury decide if you made it. I'm not sure I see how the decision of what case to prosecute (first vs 2nd degree) is affected by the new burdens of proof. Am I misunderstanding your point? $\endgroup$
    – dsollen
    Commented Nov 17, 2015 at 16:32
  • $\begingroup$ Thinking more about your second point. If plea bargains allowed for bargaining both on the crime one is convicted on and the burden of proof would that not give more options for adjusting a plea bargain? Sure one may be more inclined to prove their innocence if they may meet a lower burden and only get a minor punishment, but if the plea bargain was based off of the level everyone reasonable expects the courts to meet at trial then if they have a weak case the plea bargain will be for lower level, and you risk getting a higher punishment if trial goes bad and you hit a higher burden... $\endgroup$
    – dsollen
    Commented Nov 17, 2015 at 16:36
  • $\begingroup$ so going to trial is a gamble both ways, it could be a lower or higher penalty then you anticipate. I still agree more trials would be likely to occur, but I wonder how many more. Particularly since most plea bargains tend to be open and shut cases as I understand, where the lower end of burden of proof may be less likely to be reached... Darn it I'm going to have to ask a question about this lol $\endgroup$
    – dsollen
    Commented Nov 17, 2015 at 16:40
  • $\begingroup$ @dsollen my point on degrees was more related to how hard the prosecutor tries/how deep the dig into the case. I will clarify on that. Your second (and third ;)) comments are completely realistically possible. The joys of what if lol. $\endgroup$
    – James
    Commented Nov 17, 2015 at 16:58
  • $\begingroup$ okay, I understand your point now. As to the other issue, I asked a follow up question for how plea bargaining would work, and it's all your fault for making me realize that is a real issue: worldbuilding.stackexchange.com/questions/29941/… $\endgroup$
    – dsollen
    Commented Nov 17, 2015 at 17:15
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It might work, but you would face two problems compared to our current justice systems that would need to be addressed:

  • There already is a strong benefit in destroying evidence for criminals. This would only get worse with degrees of certainty. If everybody saw you set the house on fire, but there is no direct evidence left that you killed the people inside, you might get the heavy punishment for the arson, but the lightest one for the murder, if at all. Contaminating crime scenes with DNA from other people might also become popular, until people start wearing surgery clothes to use public transport or go to the supermarket.
  • Juries would convict much more often. The all-or-nothing choice of guilty or innocent makes the jury directly responsible for the bad things that happen after, and most will carefully consider whether they really are sure that this person did the crime before voting them into prison for the rest of their lives. If however they have an alternative in the form of a lighter punishment, the temptation will be great to think "I'm not convinced beyond doubt, but he must have done something, so he probably deserves a few years. Let's go with level 2."

In summary, it would be just like the current system: Good for the rich and smart, bad for the poor, dumb and minorities (esp. because of #2). Jury selection would still determine the outcome of many cases.

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  • $\begingroup$ I like your first point, because it is one I had not thought of. Though, I don't know if that would hurt too often, sometimes the act of trying to hide evidence makes it easier to find someone, if they don't know what their doing. Besides, most crimes are ones of passion without enough thought/planning to worry about hiding evidence. Still, It is a good point and could expand my world to think about and address. I imagine destroying evidence would have an even more severe punishment then now. Particularly for third parties helping to concel evidence after the fact. $\endgroup$
    – dsollen
    Commented Nov 17, 2015 at 14:50
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    $\begingroup$ I'm aware of the second point, I had thought of that as a potential issue as well. That's part of why I said that the minimum requirement would still have to be a pretty high burden of proof. One could argue that it may be made up by having more criminals punished who otherwise wouldn't, but yeah it's an issue. Could you elaborate on why you think the second point is bad for the poor and minorities though? Are you thinking some degree of subconscious racism/stereotyping making people more likely to presume these groups are guilty of 'something'? $\endgroup$
    – dsollen
    Commented Nov 17, 2015 at 14:52
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    $\begingroup$ Yes, and not only subconscious. People don't become enlightened and suspend their racism the moment they become jurors, and a belief like "Maybe he didn't do it this time, but he will be the one next time, so let's get him off the street" will be much easier to carry through when fellow jurors can be bargained into a compromise of lower level. $\endgroup$
    – Cyrus
    Commented Nov 17, 2015 at 15:04
  • $\begingroup$ a good point, which I'll consider. Though I would argue subconcious is the most relevant, only because conciously biggoted folks seem likely to find someone guilty even at the higher burden of proof, if your that bigoted you probably aren't reasonable enough to moderate your bigotry by just how much you hurt those your bigoted against. Still, I do think your point has merit. I wish there was a way to compare how many would be unfairly sent to jail due to bigotry in my system vs those who were sent to jail in current system that would get lighter sentences with mine... $\endgroup$
    – dsollen
    Commented Nov 17, 2015 at 16:16
  • $\begingroup$ It is also good for the smart and rich because if you commit a crime against them they will be able to collect more evidence than a poor or dumb person would $\endgroup$
    – Christopher King
    Commented Apr 12, 2016 at 16:56
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A system that I came up with for a nation in a RPG that I was running was very similar to this.

In the system I came up with, a criminal case had a jury of 13, with 4 jurors being peers of the accused, 4 being peers of the victim, and 5 being peers of neither (where possible). A peer is considered to be a person of equivalent socio-economic status, and not just 'any responsible adult'. The trial was conducted, evidence was presented, and then the jury was given a set amount of time in which to deliberate based on the amount of testimony and evidence presented - no early or late returns are permitted save for illness amongst the jurors. This deliberation time was typically 1/8th of the time spent in court, i.e. 1 hour per day in court.

When the jury returns, the jurors individually fill in a secret ballot as to their verdict. It takes 7 or more guilty votes to convict, and the sentence is proportional to the number of guilty votes in excess of 6, from a relative slap on the wrist at +1 to the maximum penalty at +6, depending of course on the offence. The maximum punishment for many offenses is death, but since it is difficult to get 13 guilty votes, that sentence is rarely imposed, typically only for the most egregious and incontrovertible cases.

Additionally, if only 1 or 2 jurors vote Guilty, then the prosecutor's office is liable for the defendant's costs, and the prosecutor could be censured for wasting public money in bringing a prosecution where there was insufficient proof of guilt, and with a sufficiently high career censure rate, could be disbarred. If no jurors vote guilty, the defendant's legal fees are covered by the prosecution, the defendant is compensated for loss any loss of income and their perceived defamation in having been subjected to arrest and prosecution, and the prosecutor could himself be prosecuted for malicious prosecution, and face immediate disbarment and potential jail time.

This system encourages public prosecutors to be absolutely sure of their cases before wasting public money on court time and putting defendants who must typically pay for legal representation to the expense of mounting a defence, since a lack of prosecutorial effort could literally be punished. This is a parallel to the ancient Roman legal system, where a prosecutor could (literally) be branded as a calumniator if their prosecution failed.

It also allows for the fact that there are frequently jurors who will not agree with the majority just so as to draw out the deliberations, or who will vote impulsively or 'with the crowd' in order to be relieved of their duty in as short a time as possible. The odd number of jurors ensure that there are no split decisions - there will always be a majority one way or the other, since abstentions are considered to be a Not Guilty verdict.

Sentencing is not left up to the judge, who is purely a procedural arbiter, eliminating the possibility of accusations of judicial bias or lack of community understanding that have plagued judiciaries in many other jurisdictions.

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  • $\begingroup$ i like this, though I would say that the level of punishment shouldn't be based entirely on certinty. Imagine a situation where a battered wife kills her abuser, and another where someone kills a child out of sexual thrill. I would argue the later is worse and worthy of longer punishment if proven, it seems unfair that the battered wife can face death if the court proves her conviction but the child killer not if just one person was swayed to vote innocent. I think a second means of further adjusting for 'heinousness' of crime would make sense. still like the idea though. $\endgroup$
    – dsollen
    Commented Apr 12, 2016 at 14:27
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    $\begingroup$ @dsollen, the two cases would be prosecuted differently, and have different maximum penalties, i.e. homicide involving self-defence vs aggravated homicide. There isn't a blanket 'homicide' charge. The prosecutor would have to consider the facts of the cases and determine a likelihood of successful prosecution, since their careers or even liberty could depend on a successful case, thus the first case might not even make it to court. $\endgroup$
    – Monty Wild ♦
    Commented Apr 12, 2016 at 21:56
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A society could work that way, and I'm not sure if it is strange enough to produce the "not in Kansas any more" feeling. Consider the effects of plea bargaining in the real world:

  • If the prosecution is really sure that they will win, they'll go to trial, especially for something like murder.
  • If there is some doubt, they might go to trial and suggest that there could be a lesser included charge as a verdict if the main charge does not stick.
  • If they are even less certain, they bargain for a lesser included charge with much reduced punishment instead of going to trial.

Regarding your punishment scale, would all those cases get a criminal conviction for murder on Bob's record? Over a lifetime, that could be worse than 1 to 3 with parole.

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  • $\begingroup$ Is that really how plea bargaining works? I thought the idea of plea bargains was more about avoiding court because it's expensive and time consuming and best avoided. As I understand it sure fire cases always plea bargain out because the defense know their lose so they offer to save the courts money on an inevitable trial to get a lower sentence. It's only the cases that are not certain to win that are tried usually, the ones where the defense refused a plea bargain on the hopes of proving themselves innocent. $\endgroup$
    – dsollen
    Commented Nov 17, 2015 at 14:46
  • $\begingroup$ @dsollen, a plea bargain has to offer less than the maximum penalty. For shoplifting, that may be reasonable. If the prosecution has a solid murder case, I don't think they'd bargain that down. $\endgroup$
    – o.m.
    Commented Nov 17, 2015 at 17:19
  • $\begingroup$ Yes, this is basically how plea bargaining works. In very low level cases avoiding the expense and time is a factor, but for serious charges it is almost all about how strong the case is if it goes to trial. The discounts in a weak case for a plea bargain are often very substantial. $\endgroup$
    – ohwilleke
    Commented Oct 24, 2016 at 6:27
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You would have to give up some fundamentals of jurisprudence for that to happen. Most importantly you give up the two probably most revered ones:

  • Presumption of innocence. Normally phrased as "Innocent until proven guilty". This is normally a binary state with very clearly defined borders, either we see you as guilty or we see you as not guilty. Here you have made that into one big grey area. "Was he guilty of that murder?", "Eh... well... kind of... a little... not a lot... but some".

  • Proportionality. The principle that the punishment must fit the crime. Here you are throwing that out the window and saying that the exact same actions get punished differently depending on the level of evidence.

Iff(*) you get people to consider these things as not very important, then you can have such a system.

But why would you want to do that? We have these things for a reason and that is that...

  • No-one likes to be judged for something they did not do, not even a little. Acting unlawfully is shameful. No-one is going to submit to being judged as if they did something unless they have to, i.e. it is proven that they did it. And then you are just back to what we have now: innocent until proven guilty.

  • No-one likes unfair treatment. If I am going to made to suffer by the hands of someone else, then I should at least get the same punishment as the next guy that did the same thing. Heck even animals adhere to this principle (the segment starts at 12m 45s). Unfair treatment will result in heavy resentment and a lack of respect for the legal system.

So sure, you could possibly do it.... but I very much doubt you can get people to like it or think it is a good idea.

(*) iff = if, and only if...

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