Criminal Justice (Reform) Act

[Filuwaúrdjan]

I apologise for the slightly intimidating length of this bill, but if the object is wholesale revision of a major part of law, then there's no real alternative to being comprehensive. Existing criminal law in this little republic of ours is a mishmash of sketchily constructed (re-constructed actually) and law festooned with loopholes and bizarre technicalities, and confused and misremembered precedent. It is, to use a slightly irritating expression from a decade ago, not fit for purpose. The following examples should suffice: as the major purpose of our courts system has been constitutional law, over time it has been forgotten that the theoretical foundation of criminal law in this Republic is that of the Common Law. This has led to the hilariously Kafkaesque situation of civil standards of proof becoming the norm in criminal trials, a disturbing situation at the best of times, but outright horrifying when (as is also the case!) the grounds for appeal are exceedingly restricted. Additionally many of the criminal offences that we have in place are defined with absurd rigidity, rendering a vast number of potential abuses of our system legal via technicality. This new criminal code is designed to address all of this issues and more. It is simple, it is logical, and it is fair. It protects the rights of defendants and makes it easier to prosecute actual wrongdoers, while also making political trials exceedingly difficult. It is, I accept, dry and technical and rather tedious as legislation goes, but if we can't get the boring bits right, what hope for the exciting stuff?

[Filuwaúrdjan]

The treason section re-states existing law in a more coherent manner. Due to the technical nature of this enterprise I have tended to avoid serious innovation unless a glaring omission exists. But neither the current law nor this would criminalises the expression of any opinion: the Court tends to rule conservatively, and when the criteria for 'aiding a rebellion' is restricted to the intentional direction of funds, military aid or strategic advice, we can be fairly sure that an expression of support would not be included. My opinion (and certainly intent!) would be that it wouldn't even ban membership of a political party in favour of a rebellion.

[Filuwaúrdjan]

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Do we really need punishments of this duration in a game like this?

We already have them. Snowstalker (for instance) is currently serving a life sentence.

[Filuwaúrdjan]

How is this not an open invitation for abuse?

It is no more an open invitation for abuse than having a whole bunch of treason charges on the books. The purpose of the offence was to allow for the community to impose punishments for disruptive trolling, which currently it cannot do. It isn't an important element of this bill but I think it makes sense. I would also remind you of the new standard of proof demanded for all criminal trials: juries would now be specifically mandated to convict only if they believe that the defendant is guilty beyond all reasonable doubt and that there is evidence of mens rea.

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The peace established by the formation of the State as a creation of the Constitution, of course. The selfsame Constitution that guarantees a right to freedom of expression and much else. There is no way that this offence could be interpreted by a court in the way that you're suggesting. And if that were to happen then it would be pretty cast-iron grounds for an appeal.

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Because it's already a criminal offence perhaps? Again, in terms of offences I have only really innovated when there are loopholes. And on the second matter, it doesn't. The Constitution explicitly prohibits minimum sentences.

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The new maximum sentences are for the most part not all that much harsher than the ones currently on the books, and when you consider that it will be much harder for the prosecution to secure a conviction if this bill is passed, I think it represents a significant liberalisation. We can also be sure that judges will not automatically impose the maximum sentence.

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An absolute guarantee? No. Not absolute. That would be impossible. But I will point out two things. The first is that the Court is appointed by the Senate: you have complete control over its composition and ultimately judicial ideology. The second is that the Court is bound to a considerable extent by a decade of precedent, almost all of which points towards strict constitutional literalism.

[Filuwaúrdjan]

Essentially this is all about process. I will give an example:

In order to convict someone under current Law all that the prosecution has to do is convince a jury that the defendant probably committed the crime. That's it. If the defendant wants to appeal, then they have to provide either new evidence or present evidence that there were procedural errors at the trial. No other grounds for appeal are permitted. My view is, and has been for a long time, that this is Kafkaesque.

In order to convict someone under this Bill, then the prosecution has much more work to do. They must be able to convince a jury that the defendant almost certainly committed the crime (the difference is immense), and not only that but that the defendant intended to commit the crime. If the jury isn't convinced of both points then they will be instructed to acquit. If the defendant wants to appeal, then suddenly there are far more options available due to the significant loosening of appeals procedure.

[Filuwaúrdjan]

Al I have a question.
Would the president be able to pardon for everything, or just Crimes against Atlasia but not Acts of treason?

The President can pardon anyone (other than himself) for any offence. As this power is enumerated in the Constitution it will not be affected by this bill (though in practice will continue to form an important part of the criminal justice system).

[Filuwaúrdjan]

In terms of the repeated mention of "It already being done in current law", would no this "compilation" of existing law with noted revisions, be a perfect time to address problems with current law?

The entire purpose of this bill is to address problems in existing criminal law. The principle problem is that it is a procedural disaster. The process of existing criminal law is so bad that it needs to be entirely replaced: and that is what this bill does. It replaces a confused mess that, with respect, is so confused that even most members of this august body are clearly unfamiliar with its workings, with something that is simple, straightforward and clear. Defendants will know their rights (which would be greatly enhanced!), Prosecutors will know when not to bother, and Judges will have workable guidelines. Everyone would benefit.

Other matters - the exact length of sentences and so on - are less important and I have no particular objection to the Senate making changes on such matters as seem appropriate.

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Your meaning here is obscure. On first glance it appears to be an argument in favour of institutional inertia, but I don't think that's what you mean? Clarification please.

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I mean intentionally disruptive behavior that does not involve posting pornographic material (which is already banned). ToS by the back door, essentially. But, again, this is a minor matter for me.

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Again, I'm not sure what you're getting at here. This is criminal law and not tort. Not that that wouldn't be an interesting project for the future...

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Well if you don't have a maximum sentence then the maximum sentence by default is always life.

My belief is that, if left to their own devices, the Judiciary will design their own detailed sentencing guidelines and that as these would be informal they could be a good deal more sensitive to what is appropriate than can be put into law (i.e. in practice they could have minimum sentences, something that the Constitution prohibits being written into statute). Which means that all that needs to be done in terms of statue is lay down the absolute maximum.

[Filuwaúrdjan]

Can I just point out that with the existence of pardon power lifetime bans are merely an expression of severe legal condemnation - a President will sooner or later pardon someone granted such a ban.

This is correct.

[Filuwaúrdjan]

The other issue with acts of treason is that it's completely arbitrary as to whether they're real or not. We've had plenty of fake revolutions and insurrections over the years, but no one was tried for treason afaik until last year when Cranberry decided to make their actions real as SoIA. We need to tread carefully with things like that.

An excellent point, but unfortunately there's no way of incorporating it into the law.

[Filuwaúrdjan]

Irrespective of its merits or deficiencies, I would strongly recommend that someone reword the proposed amendment.

[Filuwaúrdjan]

It's also the case that a criminal standard of proof would mean that a criminally liable omission would have to be an intentional one.

[Filuwaúrdjan]

It is also worth pointing out that this bill is designed to be easy to modify after passage: a frequent problem with Atlas criminal law in the past has been that modification has too often led to the law degenerating into an impenetrable and often contradictory morass. This bill has been specifically designed to avoid that.

But I would urge all Senators to read the law as it currently stands and to consider its weaknesses and its many and dangerous loopholes. This is really not a case of if it ain't broke don't fix it... unless, of course, you think that defendants having less rights than in Putin's Russia is an acceptable state of affairs.

[Filuwaúrdjan]

Supposedly the entirety of the original bill introduced is sourced from existing statute, and it's just being compiled here.

Who supposes this? Most of this bill is new as most of it is concerned with procedure: existing procedure is awful and needs to be replaced. I have already explained this point but am more than happy to do so again on request. What is largely not new is the list of offences and the general structure of sentencing. What I have done there is to try to a) plug loopholes and to improve precision while b) allowing for greater flexibility on behalf of the judicial apparatus.

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All existing Atlasian law is on the wiki, to which I have linked multiple times in this thread. I should point out here that your members would almost certainly have had an easier time were this law in force: there is no way that Mr Fitzgerald could have been convicted under the new standards of proof, for instance. You might be spectacularly uninterested in procedure (understandable: it is objectively tedious), but it is procedure that has repeatedly had your party by the short and curlies.

[Filuwaúrdjan]

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Minimum sentences are unconstitutional.