COURTS ARE A SCAM (You already knew that, this book explains why.)

(first five chapters of new book)

Courts and legal processes are sprawling, like the genetic code of an organism. They evolved like an organism whose genes were common law, where each participant carries out roles and rituals like a cell dictated by a genetic code, but few understand or examine the whole. Without such reflection, each organ can evolve to serve its own interests like a cancer, while the whole mutates into something unfit that dies. This book is an effort to examine the whole, and diagnose the genetic disease and cure it, prior to death.

This project was originally sparked by the author witnessing firsthand his friend sentenced to life without parole from age 21, based on fake evidence, for a crime that did not even happen. And the people who did it to her knew exactly what they were doing at the time. Research led to the discovery that such events were common and standard in the experiences of millions of people. And the following years were spent researching how the democratic process produced and insulated such a result.

CHAPTER 1 – RULES VERSUS OUTCOMES AND THE MIRAGE OF DEMOCRATIC GOVERNANCE

If people sitting around talking to each other could have their way, they would run the world. Quarterbacks on TV would run the plays they think they should run. Rich people would have as much money as they think people should have. Stores would sell the products they want them to sell. And the people they think are bad would be locked in prison and removed from society.

History is a tension between people making decisions this way they want to make them, and laws forcing them not to impose their impulses on the world. And history is ultimately a story of people throwing off the shackles of law to do what they want to do, to arrange everything as they see fit (which justifies violating the rights of others).

(It is also a story between an expansion phase, and a destruction phase, with the United States currently being in the second. In the first phase people are infected with law like cells infected with cancer, and society multiplies. In the second phase people return to their original tendencies to attack each other, and society contracts. Though in reality, societies muddle through a series of cross-currents most of the time.)

Telling a business owner what to do with your own interest in mind, will always get a better result for you than leaving him to do what he wants. And telling a business owner to do something that is moral, is more moral than letting him pursue profit. Surely a decision made by you in your own interest will be more moral than the decision a businessman makes who doesn’t care about you. Particularly when you are dissatisfied with the current results.

In this light, taking control of the businessman’s property by telling him how to use it in service of some interest – in effect seizing his property – seems not just rationally justified but moral. While the law you are breaking, the abstract moral of “the free market”, seems immoral. You are substituting the better decision for the worse one, the correct one for the incorrect one, as seen from your vantage point. It is always easy to justify telling a business owner what to do. From the vantage point of you and whomever you are arguing with in the public square, the decision based on the information you both have, will be different from the decision the businessman makes based on the information he has at his own vantage point.

Something as silly as torturing suspected criminals to confess and lie about each other, may seem more obviously ridiculous than telling businesses what to do. The person doesn’t confess because he did the crime; he only tells you what he thinks you want to hear to get the torture to stop. But coercing false confessions has been as common throughout history as telling businesses what to do. Even among rational and moral people, and even in civilizations that have courts and trials specifically designed to instead obtain actual facts. Testimony that is faked, is used in the United States today as a standard process without objection.

This is because when you already know someone is guilty, based on the information you have, torturing him to confess produces accurate information. It gets the correct result – the result you approve of – from your vantage point. It results in the correct moral outcome. This is not that different from telling banks they have to ignore people’s credit scores to loan them money, to obtain social justice. You force the jury or the bankers to use false information, to hack the rules of the process to get the correct result. Therefore torturing someone to confess is rational, because it gets the correct result. Whereas following the law to let the jury or bankers decide, may produce the incorrect result.

Coerced confessions are selected to be used only in those particular situations when it gets the correct result, or the result the public approves of, because the public has no reason to doubt the person so convicted is guilty. But this is common throughout history for a simple reason: When you believe someone is guilty of a crime, getting someone to confess to what you believe to achieve the result you think is right. If you believe the person did the crime, then he confessed the truth, and torturing him worked and is therefore rational.

The person doing the torture knows it is a lie, a scam, as much as any witch-pricker does. But the public ultimately makes the decision, and will replace any elected official who doesn’t coerce lies with someone who does, to reliably manufacture the outcomes they approve of.

This same approach can be used in almost every human endeavor, to justify breaking every law to do what you want to do, and get the outcome you want, while imagining what you are doing is rational and moral. It seems not just rational but moral to usurp the decisions of others to get the correct outcome, even if that means keeping up appearances you are letting them decide, while feeding them lies to make sure you get the right decision.

Substituting your own decision using the information you have, for the legally designed decision maker, always seems to produce a better result from your vantage point. Measuring the decisions of others using your own information by definition makes their decisions appear inferior to the decision you would make. If you know a criminal is guilty, then not using a coerced confession, and instead going through a drawn-out court process that might result in him being found not guilty, is not just irrational but immoral.

If you tell a voter “the witnesses lied”, the voter will respond “Tell me what happened in this case, so I can see for myself if the defendant was guilty or not.” This is of course an impossible task, a dead end. In this manner laws are cast off and courts are corrupted in ways that seem brazenly crooked and evil, if not just plain silly. Except that they are employed to serve the whims of the casually observing crowd, manipulated by demagogues. And they only get things wrong in areas that people don’t care about and aren’t looking at, which can be the majority of the time.

Judges will ignore and break every law as convenient, so long as the problem with the outcome is not visible to you, and so long as whatever brazenly silly thing they did can be justified to the extent you agree with the outcome. So unless a defendant can prove his innocence to you (or to a random voter who knows little about courts and laws much less the specific areas of the case such as ballistics or prostitution), then any problem with using a coerced confession to wrongfully convict him is invisible to you.

And if you happen to notice an error (like a wrongful conviction), elected officials will say this is an unfortunate mistake made by those other people in the past, who were not as wise and virtuous as we are. We have taken steps to fix this, and we now have a better process. And now that you can see their error, we will do the right thing as always and repair it. Or if 51% of people think it is not an error, then the error stands. The outcome is at all times tailored to the political process. We will pay doctors to work in your area or pass a law forcing them to, forgive mortgage loans, and put this person in prison and release this other one, until the majority of voters are happy.

People in the United States who read this may be surprised to learn that false confessions – and brazen lies – are regularly used to convict the innocent in your area to this day, as will be detailed. Just as you would not be able to directly see if some law you are unaware of, such as capping the maximum amount doctors are allowed to charge for an office visit, was causing a shortage of doctors in your neighborhood. You know there is supposed to be some institution to stop this – to stop lying to convict the innocent or healthcare shortages – but that institution is you. And your solution would be the government telling doctors what to do by hiring them to work in your neighborhood.

Your solution in criminal justice might also be the wrong one, letting prosecutors and judges select which witnesses are telling the truth, or even voting for good prosecutors who promise to only use coerced confessions to convict the guilty. Or who only convict the people you think are guilty. So you haven’t fixed the process, you have simply moved deciding or approving the outcome to you, and in fact made the process even worse. And your efforts to get prosecutors to the right thing – to get them to only convict the people you think are guilty – is the problem, not the solution.

You might say “voters wouldn’t let prosecutors convict the innocent over and over”, but this is the mirage. Voters do not independently know who is innocent or guilty, to know if prosecutors are doing a good job. Voters don’t know all the evidence in even one case, much less in most cases. Not any more than they can tell you whether one farmer made the right decision to plant corn or soy, or one banker made the right decision approving a loan.

Even if a voter wanted to get all the information about a criminal case, elected officials throw up every roadblock. And even if a private party got all the information, he would still risk getting sued for publishing anything other than the state’s narrative. A lawyer would additionally risk damaging his relationships in the legal community, and going bankrupt. And it is just as easy to spread false gossip as true information, when the decision makers is the crowd.

Meanwhile, government officials will use all their power to convince you their criminal-justice work is great, just as they will convince you greedy bankers are cheating you. Literally no voters (or even lawyers) demand prosecutors follow the rules, only that they convict and release the people voters think are guilty or innocent. (Defense lawyers also benefit by the social collective deciding who is guilty or innocent and then lying to fix the outcome, since arranged testimony agreements save them having to go to trial.)

Letting decision-makers break the law so long as it gets the outcome you want the 5% of the time when you are looking, also lets them break the law the 95% of the time when you aren’t looking. And they will break the law everywhere you are not looking, for reasons so simple as it lets them leave work early that day. The economy in the USSR operated in this way, with everybody breaking the rules and producing total garbage in every spot not in the direct spotlight; every day the supreme leader was not visiting the factory. Courts in the United States operates in this way, with lies in every area you can’t see, or every area that can be obscured from your view, and every day and every place and moment the TV cameras are not looking.

Judges ignore the law as politically convenient, whether to obtain the politically convenient outcome, or simply because they know nobody is looking, and it saves their resources for the times when people are looking and the cases and outcomes the public cares about. Resources are rationed for the moment of theater.

This is how the whole Soviet economy worked. But criminal justice is even worse. Because people who lack food know they are starving. Politicians can only get so far saying “you are not starving, our new economic plan is working”. But people only know whether the guilty or innocent have been locked up, based on what they have been told by the people who have promised to solve the problem. It is almost costless in the short term, to lock up or free whomever the majority wants locked up or freed, to pander to whatever impulses or prejudices a particular official needs to, to make himself look virtuous and make competitors look error-prone, to get elected.

You begin to see that something which seems so simple and obvious – giving voters a final say to approve the results of government action (and forcing government actors to ignore the law and instead focus on whether the right outcome is obtained) – substitutes a collective process for the process intended by law, and creates intractable problems plagued by corruption. No matter how many Youtube videos people watch, voters cannot micro-manage either economic or judicial actors. And their letting decision makers break the law to get the outcome they want when the voters are looking, is used the 95% of the time the voters aren’t looking, to get the outcome most convenient to the decision maker.

If banks can ignore credit scores to obtain social justice when you are looking, then they can ignore credit scores to lend to their friends the 95% of the time you aren’t. This is what happens when voters decide to monitor outcomes, rather than demand independent decision makers follow rules, or let them be governed by the price system and profit motive.

This is basically what happens in every totalitarian society. The people give power to someone whom they think will execute their will, based on the knowledge and information known generally to the collective of voters, based on the glaring problems visible to the public. This problem used to be widely recognized in economics, though not as much recently, as memories of the great economic debates of the 20th century fade. And these principles are cast off any time new mass communications paradigms give temporary life to new populist movements; when people go out in the street or on the radio or the Internet, and tell each other it is moral to tell businesses what to do.

This problem has been widely recognized in industrial production, but has never been recognized in criminal justice, where the problem is even greater. The crowd has an even greater impulse to torture witches than to seize the land of farmers, and there is no price system to do the work spontaneously. And the principles of due process do not have defenders among academic economists, like the price system.

CHAPTER 2 – COLLECTIVE VERSUS DISTRIBUTED DECISION MAKING

When I say “courts are a scam”, you probably expect I am going to say courts are a scam, because they don’t serve the people by doing what the people want. I am going to say the exact opposite. Courts are a scam because they do what the people want, and the people are a terrible decision maker.

It’s popular to say communism doesn’t work. Communist governments can’t invent new products or even feed everyone. And no matter how many times you vote that they should make more food or housing or whatever, at the end of it there is bad housing or a housing shortage. So the idea goes that individual businessmen, out of greed, will make their own decisions to build housing. We have to leave it to “the free market” to figure out how to supply housing.

The general error people make, is a perception that there is a second, free, infinite layer of decision making, that can review every other decision in the world, and make sure it is being made correctly. So that voters can look at what factories are making bread, can examine which medicines are safe, can see why housing is so expensive, and can then vote to build houses here, bake bread there, and use one medicine while avoiding another.

An example of this mirage of misguided thinking can be found in the opinion of Supreme Court Justice Antonin Scalia in Kansas v. Marsh:

“Even if the innocence claims made in this study were true, all except (perhaps) the 1984 example would cast no light upon the functioning of our current system of capital adjudication. The legal community’s general attitude toward criminal defendants, the legal protections States afford, the constitutional guarantees this Court enforces, and the scope of federal habeas review are all vastly different from what they were in 1961. So are the scientific means of establishing guilt, and hence innocence — which are now so striking in their operation and effect that they are the subject of more than one popular TV series. (One of these new means, of course, is DNA testing — which the dissent seems to think is primarily a way to identify defendants erroneously convicted, rather than a highly effective way to avoid conviction of the innocent.)”

Guilt is supposed to be decided by the jury. But according to Scalia, this is dependent on “the legal community’s attitude toward criminal defendants”. So if the legal community wants to convict the innocent, juries will convict the innocent. If the legal community wants to only convict the guilty, juries will only convict the guilty. So Scalia imagines juries work because there is this second layer of oversight – “the legal community” – making sure juries do the right thing, and make the right decisions. Not just making sure juries have all the information. But actually overseeing the process to make sure the right outcome is achieved, like managing industry to make sure there is enough bread.

Maybe if Scalia said their attitude toward juries improved, or their attitude toward following the rules, that would be different. But Scalia is fine with the idea that they are only going to give a criminal defendant a fair trial if they like him. Scalia can’t honestly say that is going to apply to every criminal defendant. There are always going to be defendants the voters don’t like. In that case, Scalia’s logic says they are not going to give him a fair trial, they are going to railroad him. (Scalia often promotes utopian assumptions, like saying every cop is professional and career-minded, which crazy assertions are only accepted to the extent all this is not logic but political propaganda.)

In essence Scalia said “local lawyers decide if a particular person deserves a fair trial, and if the lawyers decide he does, then the lawyers let the jury decide”. You are not an independent decision maker if the state selects the outcome of a decision, by selecting who makes the decision in each case. This is not just clever word games, the state fakes evidence every day against unpopular people. Usually by elected officials selecting what evidence is allowed and believed, to fix the outcome while carrying on the appearance the jury is deciding.

Like communism, the idea is that the success of the decision maker is dependent on the attitude – the good intentions – of the overseer monitoring his work. So that the overseer can make sure the decision makers are doing the right thing, by using their own knowledge of what that right thing is. According to this line of thinking, people starving is from a lack of want to feed them, by the overseers monitoring the businessmen. But if voters instead have the attitude that people should not go hungry, then they will vote for good government overseers, who make sure factories make the right decisions to feed everyone.

All that is needed is an attitude that government officials want everyone fed, and they will oversee that bakers bake enough bread for everyone. Like maybe Kim Jong Un will have a change of heart one day that everyone in North Korea should have a nice house, and so he will oversee the nation’s builders to make sure it happens.

Scalia also mentions habeas review. This is a second layer of decision making, where people who are able to prove their innocence with hard evidence, and who are competent enough or are popular enough to have a public interest to provide lawyers to do so, have this second layer of decision making, to make sure the jury got it right.

The reality is the jury is the only chance to avoid being wrongfully convicted. If the jury trial does not provide due process, very few people will be rich or competent or politically popular enough, much less have the evidence, to prove innocence. There are not even enough court resources to have a jury trial for 1% of people arrested, almost cases are settled with a socially-acceptable outcome. But Scalia imagines there is this second free infinite layer of decision making, where wrongfully convicted people can prove their innocence outside the jury. The reality is that the political process freeing the wrongfully convicted, leaves most people starved of justice (as much as does the political process making sure juries make the right decisions in the first place).

Scalia imagines that if the system gives lawyers this unchecked freedom to decide whether to do good or evil, they will choose to do good, and this will result in correct outcomes. Like businessmen who are not regulated by prices or laws, but who are altruistic. You will be more likely to have a bird land on you, than for any institution to actually spend the time necessary to figure out what really happened in your case.

The reason the innocent are in prison is because activists can never know who they are. Not any more than central planners can know true factory output in the USSR, when the factory managers control the data and have every incentive to mislead their overseers (or corrupt them with quid pro quos). Activists cannot realistically expect to prove innocence (except by DNA or pure political gossip), and can only discover and prove who did not receive due process, which is a large percentage of convicts.

(If some cop or witness lies to arrest you for something you had nothing to do with, not even you will have any idea what really happened in your own case. Even if you had $1 million to spend on advertising, you would not be able to explain to the public what really happened, or how and why you came to be falsely accused. You would be limited to saying “The witness says he saw me run out of the gas station, but I know I was at home.” What you need to say is “Witnesses are encouraged to lie to obtain politically convenient outcomes, with no risk of penalty.” To which the average voter would respond “Can you prove you were at home? Even so, police have good will and you are just some criminal with an incentive to lie, so I believe the state witnesses.”)

Scalia also mentions the science of DNA solving a large part of the problem. As if all we need is the scientific knowledge of how to bake bread, and everyone will be fed. DNA evidence is the easiest evidence to fake. Because it is invisible and is not corroborated with a physical object like a bullet or a fingerprint tape, and it is the easiest to lie about where and when it was obtained and what the scientific result was. And because testing of DNA swabs is rationed selectively and results are introduced last in the process after all the other evidence is known, DNA results can be conformed to the other evidence and used to fill in holes in the case, to prove whoever you want is guilty like a witch-pricker. And nobody can disprove years later, where the CSI said she got a swab.

So again, DNA will produce terrible decisions, if the person using it is supervised to reach the outcome preferred by the overseer or the public. In other words, if the correct outcome is decided above the CSI, the CSI is then rewarded or penalized depending on whether her work produces the outcome preferred by the overseers, not based on whether she followed the rules to produce information, so that the jury could decide the outcome.

Throughout his opinions (e.g. “extant forces” in Hudson v. Michigan), Scalia imagines there is some political mechanism making sure CSI’s don’t lie about where they got DNA swabs or their results. Just like in the Soviet Union, there were higher managers making sure factory managers didn’t lie about their production capacity, to create the impression they were doing a great job. So in the mirage in Scalia’s mind, there is this infinite layer of managers, that ultimately comes back to “the people” deciding what is good and making sure everyone does what they should do, to achieve the good result. (Hamilton’s “the people” was a bunch of philosophical plantation owners, and did not include peasants or slaves.)

So it is not the jury which decides guilt, but the local political process which rewards or penalizes CSI’s. And not for lying or telling the truth, but for whether the evidence they produce, results in the “right” decision of guilt as externally decided by the infinite time and wisdom of the political process. In Scalia’s mind, jury trials work not because jurors are independent and provided with information, but because layers of overseers have perfect information and infinite time, and can double-check that the jury got it right.

In reality voters will never sit a day in court or look at the evidence in any criminal case. They will reward the CSI for lying to convict whomever the local papers have been immunized to say is guilty (immunized against defamation lawsuits, to tell the public that anyone police point the finger at is guilty). So if it depends on the voters, or on the attitudes of CSI’s or The Bar association, the innocent will be convicted. Just like factory managers in the USSR provided fake statistics to the central planners. Because the second layer of decision makers is totally uninformed, and easily tricked.

Scalia said “if we executed an innocent person, the innocence activists would be shouting it “from the rooftops” (Kansas v. Marsh). This again assumes that there is some set of political activists who know all the information about every case, that there are infinite layers of such free decision makers with perfect information to oversee the other decision makers. In reality there is only once chance to bring all the information together for each case, the jury trial. Most cases cannot even afford that one time. And political activists will never have that information, but popular gossip.

Scalia can always show how the gossip of any crowd is wrong, that is a straw man. Scalia contradicts himself, saying the innocence activists are always wrong, while at the same time imagining it is possible for some other set of more virtuous overseers to actually be right about who is guilty or innocent.

The only chance to make a good decision, is adding another independent institution (i.e. checks and balances) aggressively investigating and prosecuting CSI’s who lie to the jury (anyone who rewards instead of penalizes lies). Even when that lie obtained the politically popular outcome. Or by telling the jury the reality that CSI’s (and state witnesses in general) face a reward and no penalty for faking evidence. The monitor doesn’t monitor the decision, but oversees whether the prosecutor and CSI followed the rules (by conveying accurate rules and information to the jury).

No other secondary decision maker, can substitute for the jury being fully informed. The more layers of secondary decision makers you add monitoring the decisions of first decision maker, the worse decisions you get. Secondary decision makers who monitor whether primary decision makers made the right decision, rather than whether primary decision makers followed the rules, result in terrible decisions made by politics and the madness of the crowd agitated and manipulated by demagogues, like with communism.

To process all the information that needs to be processed, to make all the decisions that need to be made to benefit society, requires distributed decisions made by independent local specialist decision makers. The more things are decided by a single social collective, the less information and expertise they will use, and the worse the decisions will be. The general properties of a distributed decision maker is one that brings together 1) knowledge of the domain, e.g. farming, 2) information the knowledge is applied to, e.g. the precipitation in a certain tract of land, and 3) incentives and constraints that convey public costs and benefits to decision makers, e.g. the price system.

The problem with courts (and many other decision institutions), is that you cannot turn deciding who is guilty over to the price system and “the free market”, to create independent decision makers. You have to make the decision using some combination of voters and government employees. That is where judges and juries come in, which are supposed to function like independent businessmen, making private decisions which nobody else will ever have the information to know if they were right. Checks and balances provide a limited form of competition, where different departments make sure other departments are following the rules to reach their decisions (deter breaking the rules with occasional severe punishments), even though they can never have the resources to double-check whether each decision was right.

For jury trials, the judge brings the domain expertise by instructing the jury, the decision-specific information is provided to the jury by the prosecution and defense (needing separate institutions to make sure they don’t lie), and the public benefit is conveyed to the jury in the rules of the laws themselves, rather than by prices. And the interest of the prosecutor to convict the innocent for votes, or of the public to decide who is guilty based on gossip – the human impulse for the collective to decide – is removed, by handing the decision on guilt over to this independent decision maker.

The purpose of due process is to manufacture such an incentivized and informed private decision maker without the price system. The attitudes of lawyers or the science of DNA, are relatively unimportant compared to the basic properties that jurors are provided all information (and are cured of biases and preconceptions), are independent, and that they follow the law.

Without such an independent decision maker with the right knowledge, information, and incentives in the form of rules, all the science and good intentions will come to nothing, like communism. In fact, adding influence by a second layer of monitors – by overseers who decide whether the outcome is good and attempt to manage decisions, such as by deciding whether to reward witnesses who lie – replaces independent decisions with collective ones, and destroys the quality of outcomes.

Prices are the monitor that looks into the back room of every business, but cannot peer into the offices of every lawyer and prosecutor and judge. The basic problem in criminal justice, is unlike industrial production there is no price system. People think the voters approving and disapproving court outcomes substitutes for the price system. But this creates collective decisions. Following the rules is what substitutes for prices, to turn local information into correct decisions.

Strong punishments for those who are caught breaking the rules, is the deterrent for the majority of the time they won’t be caught. But judges like Scalia would have you believe good will and an honorable nature (and the occasional publicly visible slap on the wrist) is what is stopping elected officials and lawyers from breaking the rules. This is just self-serving propaganda, so that prosecutors and judges can avoid punishment and continue backroom corruption, to produce politically convenient outcomes.

Scalia says that what he calls “extant forces” exist in some political process, overseeing that courts are operated for the public benefit. But those extant forces do not influence decision makers to follow the process, but to deliver the outcomes preferred by those extant forces.

CHAPTER 3 – THE COLLECTIVE IS ALSO WRONG ABOUT OUTCOMES

People’s instincts don’t just misguide them as to how outcomes should be decided, but what those outcomes should be. Their instincts misguide them what the public benefit is, of various outcomes harming their neighbors. They imagine harming strangers doesn’t cost them anything, and the benefit of “cleansing society” is larger than it actually is. They feel compelled to harm strangers (particularly pretty young girls), they rather enjoy it. This is quite different from publicly admitting they do. Moral people might repress such impulses, but this reverses when they have public approval to indulge them.

Imagine an ice-age environment where large mammals are being hunted to extinction. All competing tribes are a threat to your survival. Strangers are guilty of causing your starvation just for existing. So people have an instinct to turn off their empathy and kill strangers. White people who live in densely populated areas have an instinct to stop having children and start culling, and are easily incited to war based on selfless moral principles.

Suppose there are two clans of 100 people each, 200 people total, and the land can only feed 50 people. It is better that 50 members of your clan should die killing all 100 members of the competing clan, with the result that 50 members of your clan get all the food and survive. Rather than 75 members each from both clans sit around and starve, leaving only 25 members of your own clan. Young men are so programmed to take risks and die selflessly.

If you are going to starve anyway, dying in war has no cost. But it has the benefit that the few survivors may be from your clan rather than competitors. When people are capable of producing more offspring than the land can support, and with no other natural predators, the job of culling men falls to other men. In primitive society, natural selection favors those who are easily turned into childless workers, soldiers, and blind killing machines against their neighbors. (Beauty is not an indication of genetic fitness, but an arbitrary force to reduce reproduction and animate people into conflict.)

In today’s societies with trade and specialization and invention (distributed information processing), strangers are a benefit rather than competitors for food. The more strangers there are, the better off you are (see Julian Simon’s “The Ultimate Resource”). You logically should want strangers to have private property, because they are employed for your benefit as distributed decision makers. Therefore individual rights and the public benefit coincide.

But even today in a society of trade and no starvation, people are still inclined to hallucinate that strangers are a problem. They will indulge their natural impulses to harm you while imagining they are being moral and improving the world. People have trouble telling the difference between their own primitive impulses and morals, and will be consumed with their own moral superiority at the same time as being disastrously wrong. Wars are started by those who go on to lose them.

People want courts that protect everyone’s rights, for the obvious selfish reason they want their own rights protected. But most people don’t mind others being tortured if it doesn’t happen to them. They see grouping into factions and social processes and political power, rather than courts and law, as the way to have it happen to others and not to them. They never guess that harming the minority faction hurts them also.

Courts and laws substitute for human nature and protect us from each other, from Madison’s “stronger faction”, from Hamilton’s “major voice of the community”. We have courts not just because social processes produce bad results, but because individual preferences want bad results. Courts protect people not just from the lynch mob, but because even perfectly informed people will want to kill the innocent.

Individual rights are your rights against stronger people and lynch mobs attacking you and taking your property, not just as criminals, but in the political process (like animals in the wild as James Madison said in Federalist 51). Courts exist to obtain a different outcome from social processes, to protect individuals from the majority, not to provide the public with the same outcomes the majority would get without courts (and the same outcomes they would want even with perfect information on guilt).

Courts and laws are supposed to force people to act as trading partners, instead of war and killing strangers every day (particularly middlemen who transmit information to optimize production). And they are supposed to substitute for and protect against human instincts in social processes which manifest in war and aggression. But voters don’t think about distributed decision making and economics, they think about war and justice, and their neighbors owning things they hunger for. The collective decision makers – the overseers in a democracy – not only lack information, but they lack the sense of what the punishment should be based on that information, when it comes to strangers.

Because people’s instincts also misguide them what the public benefit is – what court outcomes and punishments benefit the public – is why they need to follow the law, and let the law dictate outcomes. The public value of different outcomes is supposed to be conveyed to the decision maker through the laws. So people have to follow law, rather than their own impulses which are to go to war to prevent starvation, rather than protect the rights of strangers to prevent starvation.

Therefore decisions have to be made through stiff legal processes, rather than spontaneous social processes or even voting majorities. And the outcomes necessary for a civilization to survive may even be disapproved by the majority, such as for not punishing enough criminals or Jewish people.

CHAPTER 4 – THE LEGAL PROCESS WHICH VOTERS MUST OVERSEE

A legal decision has three elementary steps, 1) hear testimony, 2) decide some accepted set of facts based on that testimony, 3) apply the law to that set of facts to decide the punishment.

A legal proceeding (in a local “trial court” or “originating venue”) has three stages of such legal decisions, where three different people take the sub-steps of finding fact and measuring it against law, the accuser, the judge, and the jury. The first A stage is decided by the accuser, the second B stage is decided by a judge, the third C stage is decided by a jury.

(None of them is decided by the voter or in the public square, not any more than they decide for the farmer or baker. Rather, the public demand for justice is obtained – or often obstructed – by the designated decision makers applying the law to the information at their unique vantage point.)

The three stages are A) the accuser says what he believes the facts to be and how they violate the law, B) the judge decides whether to accept or reject those facts and whether they seem to violate the law, C) the jury decides whether to accept those facts and whether they violate the law. In stage A the accuser decides whether to file a case, in stage B the judge decides whether the preliminary accusations merit further proceedings or should be dismissed. Stage C is the proceeding in front of the jury to decide what the facts are and decide the punishment.

This is distributed decision-making, where each decision maker has a different set of facts visible at his vantage point, different knowledge, and different incentives. The judge brings the expertise on the law (and rations court resources). The jury is supposed to be the least corruptible, deciding facts without bias, and then measuring those facts against law with no personal benefit or incentive from deciding one outcome versus another.

(Every decision maker is supposed to provide an off-ramp to roadblock the public blood instinct, while the political process prefers a railroad.)

The average person has trouble thinking about these different stages and decision makers. He just wants to know “What did the accused do?” And then decide whether the accused is guilty, as if there is one set of facts and decision maker – the social collective – one vantage point shared by everyone. What does the cop say he did? Okay, then lock him up. If we think he is guilty, and the court found him guilty, then courts are functioning correctly and officials get reelected.

Genuine court processes are incompatible with this collective decision-making instinct, where everyone knows the same set of facts as if there is one vantage point, and everybody can decide anything for anyone else. Historically in a tribe, or a shire reeve before the Magna Carta, the cop would simply be the executive of the majority’s collective will.

Notice the weak point in process, the sort of synthetic price system to create distributed decision makers. The cop is not supposed to decide whether people broke the law, and certainly not punish them for having the wrong religion, he is supposed to collect information. The main decision he makes is whether he asks the judge for permission to collect information, to harass someone.

But the trick to move the actual decision to the cop is to fix all the other decisions by using his role as information collector to fake information, to obtain the outcome he wants. This also helps the other elected officials – the mayor, the judge, the prosecutor – because it doesn’t force one of the three to lose an election for being wrong, when the court outcome disagrees with the cop’s allegations which have already been sold to the voter.

The synthetic price system fails, because the cop is paid for his information in proportion to whether it obtains the outcome the voters want based on their information, not based on the benefit of the law applied to the actual information. And the other elected officials are paid based on whether they are in conflict with the public narrative, the cop’s narrative, which is the only narrative newspapers can publish immune from lawsuits.

The idea that the different decision makers, accuser and jury, have different sets of facts and different incentives, is as easy to gloss over as saying the homebuilders should just build a home for everyone. And police should put the bad people in prison, we all know who those bad people are. Everything is collapsed and oversimplified in the mind, so that imposing those decisions on other people – leaving it to the cop and voter – would be disastrous.

When the US Constitution was written, it was assumed that only very philosophical men with a strong interest in protecting their own property and rights against kings and the public mob would vote. They were forced to think about courts and rights, because they had to design a new system of laws. They did not have the choice to just look at the outcomes of courts that already existed. Alexander Hamilton’s “the people” were not like today’s average voter, but would be more accurately defined as “rich people who are not the king”.

Today there are millions of voters who know nothing about courts (who don’t need to know anything), and who nobody cares what courts do to those same voters as individual nobodies. And there are more laws and infractions than can ever hope to receive a fair trial even if people wanted for there to be. So people want courts that enact their popular will like an executive, rather than protect their individual rights by enforcing the laws (which laws enable society to survive despite people’s impulses).

It is hard for voters to oversee something which it is hard to think about or even write about, and when they don’t even understand what they are being asked to do, whether demand outcomes, or demand courts follow the law. And when elected officials encourage them to vote based on outcomes rather than whether rules were followed. Elected officials get elected by promising and lying about outcomes, rather than by promising something so boring as following the law to let juries decide.

Are voters supposed to be making sure courts use the facts, which newspapers have been immunized to recite as true quoting local executive-branch officials? The answer is no, but every voter would say yes.

It is easy to teach kids in school that a jury decides, which they will eventually grow up to dislike and wish it wasn’t so. It is unheard of to teach kids in school that the reason a jury decides, is because they themselves are stupid and evil to vote on who goes to prison, and must decide rules rather than outcomes. They are taught to let the baker decide, but not the jury.

When voters oversee courts, they want courts that act more like elected executive-branch officials without the extra steps. They see courts as more like getting married, where people decide outside of court who wants to get married, and then they go to the judge to ask him to put the government stamp on it. Like “Free Mumia” or “Free Julian Assange”, they would prefer to petition the executive who goes to prison, like they did with the shire reeve 1,000 years ago. People actually want an executive officer who simply enacts their democratic will, rather than a judge who makes the decision in an aloof manner like a money-lender or private businessman.

And the purpose of courts is specifically to ignore this, specifically to resist the public and the collective will, and to instead create distributed decision makers with private fact sets. And to measure those facts law against the genetic code of law rather than human instinct, to create the outcome which benefits the public. Where which outcomes are beneficial is dictated not by direct public oversight, but by law passed by the legislature, and validated through natural selection for survival of the civilization with the best laws, even if the citizens hate their laws.

But as we will see, not only the public, but court officers themselves such as prosecutors and lawyers see this as unfortunate and unnatural drudgery, which everyone involved would rather dispense with while keeping up only the minimal appearances. And instead just go through a more natural social process, and make the people who matter happy with the politically popular outcome. People actually believe due process is a cost without a benefit, a traditional ritual imposed for no reason, when everyone knows what the outcome should be, and even the witch herself eventually confesses.

where the public is interested in the outcome, the pressure is on courts to deliver those popular decisions instead of doing their job. At each stage there will be pressure to insert the facts the public believes, and create the outcome the public wants, and insulate that outcome against appeals courts needing only appeal to the voters.

Or absent the public caring, court officers arrange the outcome that is most convenient to the lawyers, and screw the people whose lives are affected. In cases where the public is not interested, court officers are left to ignore the law with only the most superficial appearance of rituals, while doing whatever is in their own backroom interests.

And there are various points in the process, where outcome can be fixed along lines of political convenience, whether in response to the public, or based on some backroom dealings among the local lawyers’ clique. And there are various tricks to make sure these outcomes are insulated against interference from higher courts.

And this is facilitated by useful idiots like Justice Antonin Scalia who have never been arrested or even known anyone who was, who put into law (Hudson v. Michigan) the assumption that local politics will influence police to tell the truth so that decisions are made in court processes, when the opposite is true, the people want no such thing. Scalia thinks a “living constitution” no longer needs due process, because the human genetic code and the fatal flaws of collective decisions, have improved since the days of witch trials.

CHAPTER 5 – OVERSIGHT BY HIGHER COURTS

Legal appeals are not as simple as people say it, where you tell a court the facts. And if the court gets it wrong, then you appeal to a higher court by telling them the facts also. (Don’t even dream of the public ever hearing about your case to take an interest in it, the way you have heard about some lucky, popular person’s case.)

There are basically two kinds of laws, laws governing what ordinary people can do in the street like smoking weed, and laws saying what courts have to do, such as they have to let defendants question witnesses. The second group of laws describes the process courts must follow, and is how courts enforce the first group of laws. We can call this street law and process law.

When you appeal, you appeal to a higher court that the lower court didn’t follow process law. More specifically, your lawyer first argues to the judge in lower court that the process is not being followed. And if the judge disagrees and still gets it wrong, your lawyer can appeal this decision about the process to a higher court. This is basically distributed decision making, where the trial court judge decides the process, and a higher court judge reviews narrow, isolated disputes about how the process was run. An appeal is a different judge looking at the same set of facts as the lower court.

And there is another kind of appeal for everything that is not covered by this first type where your lawyer argues with the first judge and says he got some decision wrong. This second kind of appeal covers everything from when cops lied or there is new evidence, to your lawyer showing up to court drunk and never even arguing with anybody. And you basically have to start a whole new court proceeding, or ask to initiate a whole new series of steps – accusations – to get to a new trial and introduce new facts. It is basically a new civil case against the people who convicted you.

The purpose of all this is the same as in industrial production, to be very efficient and distributed and atomistic, and process as much information as possible (and to really give more people a fair trial than the public ever would). There is supposed to be one decision maker who makes each decision based on one set of information, one time, using a predetermined set of rules. If someone cheats, like if someone walks out of the grocery store without paying, you have to call the cops and start a new court proceeding, and suddenly what was supposed to be an efficient transaction all becomes very expensive. So first you argue with the security guard, then the manager, then finally you call the cops, and maybe even go to trial. Or maybe the security guard just lets you go because it is not worth it. And if some sadistic cop cheats and harms you, usually they just let the cop go also.

In the case of the retail theft, local politics favors punishing cheaters above a certain threshold, to deter theft and keep the general level of cheating at some minimum level, below which it is not cost-justified to reduce it any further. When cops and prosecutors cheat in court they actually want them to get away with it, because it obtains the outcome the local voters want. They want to look the other way, to allow that a convenient level of cheating takes place, the minimum level necessary to get reelected. But higher court judges will cite costs and every other argument including total nonsense, rather than say this real reason why are letting cops and prosecutors get away with breaking the rules.

The long and short of it is, there is not even money to give everyone a trial in the first place. So that even having a trial is usually avoided by coercing witnesses to lie in plea bargains, and financially rewarding defense lawyers who persuade their clients to cooperate in arranging outcomes, foregoing due process and a public trial (with the public having little idea what is even going on after the papers initially quote the cops). So higher court judges and legislatures will try to stop you starting any new sequence of court proceedings (so they can instead use the courts to create a theater they are stopping fentanyl).

The public basically says for every 90 cents you spend giving us theater (or letting cops enjoy themselves so we don’t have to pay them), someone may be able to sneak in 10 cents of actually righting wrongs. (For comparison, probably 50% of the money you pay for a Red Bull energy drink goes to marketing to get you to buy it, including the extra rent the retailer pays to be in your line of sight. The difference is the public should not be wasting their time deciding who is guilty like watching a football game.)

Unless the public takes a great interest and is looking closely, the idea that you can appeal court errors, or even get judges to follow the rules in the first place, is a fairytale, a mirage. What the public sees when the courts put on a show, is very different from what happens most of the time. Because everyone behaves different when the public is looking, and most of the time they are not. Just like in the USSR, factories did not produce much of anything, or behaved very differently, depending on when the regional planning commissioners were visiting.

And even when the public is looking, it will just force judges to break the rules perhaps to a lesser degree to get whatever outcome the public wants. And the public likes cops lying. So to keep the whole system running and the public happy, in essence, judges like being lied to and will copy-paste lies to create the politically convenient outcome, clear out the docket, and save money.

The fair trials you learned about in school, and the appeals courts you see on TV, are a fairytale, something most people will never access in real life. The average voter looking at the court system, sees something like what a tourist sees visiting North Korea, a very sanitized and theatric version of reality.

There is no justice, because we cannot afford it. In its place we have what every communist country has, voters voting for great outcomes, and elected officials saying the outcome is great, while quietly in the shadows ordinary people are beaten and starved and their neighbors are oblivious.

So pretty much all the lies and bad decisions the elected judge and prosecutor can cram in before the appeals bottleneck (and while your underpaid lawyer is sleeping), you will be stuck with forever. From the very first lie the cop told the first moment he saw you, it will never be fixed, because that is the intentional design, for cops to lie, and for you to bite the bullet when they do, not get relief in some fairytale court. And that is why most people who have been to court, rather than see them on TV or read about them in the paper (or work in them), hate them.