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:
- "clear and convincing evidence" (current burden for civic cases)
- "evidence without dispute" (no alternate explanation for the crime exists that is deemed creditable, ie no one else could likely of done the same)
- ...some other stricter level here...
- "beyond a reasonable doubt" (current level)
- "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"
- "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:
- recorded as guilty, no punishment
- 1-3 w/ parole
- 5-15 w/ parole
- 25-life w/ parole
- 30 - life with or without parole
- 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 :).