The Other Face of Torture

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3 Responses

  1. A.J. Sutter says:

    “[I]t’s used to win some pots that one might wish had gone unclaimed” – the meaning of this isn’t exactly clear from your post. E.g., was the assaulted former friend actually guilty of the assault? If not, seems like the torture charge was appropriate. If he was, would the torture have done anything to reduce the likelihood of the person committing a similar offense in the future? Was there some obstacle to prosecuting and convicting the (supposedly gulity) former friend? These are the same issues about vigilantism that come up on any number of Law and Order episodes. What exactly are you saying is the problem with the torture charge in this case, given that the facts support the charge?

  2. Kyle says:

    @A.J.: Thanks for the comment. As background, many locals out here have protested the sentences in the referenced case are too harsh, and have argued that the case should not have been brought at all. (The victim of the alleged torture pled guilty to the molestation.) Had the case gone to trial, there was a reasonably high chance of nullification or, at least, a hung jury. The torture charge, of course, gave the defendants a strong incentive to forego trial, since if they were convicted they would be looking at a possible life term.

    There’s nothing absolutely wrong with the torture charge in the case, to the extent that it may have been fully justified by the facts. It’s simply that this charge, in cases like that above, may lead to plea bargains in cases that the general public might be more comfortable in leaving to jury adjudication, or relying on prosecutorial discretion NOT to bring because of the high odds of acquittal for the “other,” lesser crimes at trial. Furthermore, though I acknowledge that I don’t have any insight into the thought processes of the prosecutors in the San Jose case, I find somewhat discomforting the existence of crimes that are, in the normal course of business, used more for leverage purposes than for obtaining convictions on their own terms. I think that such offenses call into question the sincerity of the criminal sanction.

    It’s a complicated issue (at least to me). I wrote about it in a recent piece called Facilitating Crimes, but I remain unsure that I’ve pinned down all of the relevant issues.

  3. Matt says:

    I’m sympathetic to a lot of this, and think that over-charging is often a real problem, and that there are too many and too many duplicative criminal laws, but I wonder about this bit:

    “It’s simply that this charge, in cases like that above, may lead to plea bargains in cases that the general public might be more comfortable in leaving to jury adjudication, or relying on prosecutorial discretion NOT to bring because of the high odds of acquittal for the “other,” lesser crimes at trial.

    I’m pretty hesitant to make that a ground for not taking a case to trial or trying to get a conviction via plea bargaining. In this case, that the people involved were (rightfully) angry is no reason to allow them to violently attack others, and especially no reason to allow any sort of winking official sanction of such actions, as would have happened, I’d think, if the case hadn’t be brought. It’s too close to situations where a jury might refuse to convict people who committed racial violence to my taste. There are surely hard issues here, but this is an aspect I’m pretty unhappy about. (I’ll admit that I’d feel less unhappy in the case of most drug crimes, but I think a distinction can be made there.)