It has been a tough week for notorious, misbehaving young people — well, outside of Quebec anyway. On Monday in a New Jersey courtroom, Dharun Ravi was sentenced to 30 days in jail for having briefly spied, twice, via webcam, on his Rutgers University roommate’s romantic encounters. He was 18 at the time. And on Tuesday, Swansea University, in South Wales, made it clear that 21-year-old Liam Stacey is forever unwelcome on its campus, where he was nearly done studying biology. Mr. Stacey just served half of a 56-day jail sentence for publishing some flamboyantly racist tweets. “Go suck a ni–er d-ck you f–king aids ridden c–t,” one read.

Both individuals are unredeemed pariahs. Yet on either side of the Atlantic, and across the political spectrum, their cases have sparked an interesting debate over whether criminal justice was the proper means through which to express polite society’s revulsion at their actions. I think it was not, for the simple reason that the charges bore little relationship to the true nature of the outrage.

[. . .]

The context of Mr. Stacey’s crimes is less tragic. On March 17, before a television audience of millions, Premier League soccer player Fabrice Muamba collapsed of a heart attack. (He has since made a remarkable recovery.) In response, an admittedly soused Mr. Stacey Tweeted the following: “LOL. F–k Muamba he’s dead!!! #Haha.” That astoundingly insensitive missive was what elicited society’s outrage; it is still quoted at least 100 times in the media for every mention of the torrent of racist abuse that followed, when fellow tweeters complained.

Twitter is not, generally speaking, a racism-free zone; earlier in this year’s NHL playoffs, it hosted some jaw-dropping invective against Washington Capitals forward Joel Ward. And British white trash can match or exceed anything their North American counterparts are capable of. So here it is even clearer: Mr. Stacey’s problem wasn’t “inciting racial hatred,” the charge of which he was convicted, but doing it at the wrong time and getting noticed.

In the end, while two months was a remarkably harsh sentence for mere words, it’s hard to feel sorry for Mr. Stacey. One can argue for unfettered free speech, and equal application of the law, without defending this particular oik.

Even if the composition of the bench mirrored precisely the general population, this would still not address the complaint voiced by one former judge — himself a Sikh — that minority members feel “less understood or valued” by judges who aren’t of their own minority group. If nobody can understand or value anybody else unless they are members of the same minority group, we would have to take the additional step of matching judges to the personal characteristics of defendants or litigants. Whites would have to be judged by whites, blacks by blacks, aboriginals by aboriginals, and so on. In short, we’d need complete apartheid in our judicial system — hardly a formula for societal harmony.

Besides, litigants don’t come packaged in neat compartments. What if a gay, black, francophone, atheist male sued a straight, white, disabled, anglophone, Catholic female? It would clearly be impossible to find a judge whose personal characteristics matched both litigants. Would we need to appoint a panel of eight to ensure that all bases were covered?

The idea that people are incapable of empathy, understanding or compassion toward others different from themselves is manifestly false. We cry at movies precisely because we are able to empathize with the characters onscreen, even though we ourselves have never experienced the same trials, tribulations or skin colour. If white Canadians were genuinely indifferent or hostile toward the plight of different peoples, Canada would never have adopted a clause in its Charter of Rights and Freedoms outlawing discrimination and promoting affirmative action; it would not have enacted anti-discrimination laws in every province; and The Globe and Mail would not be clamouring for more minority judges.

It’s heartwarming to see all these journalists and twitterers who never did anything morally wrong in high school.

I mean, most of the high school students I knew were pretty much selfish and immoral herd beasts. But maybe things were different elsewhere.

[Responding to a comment from @jbouie] No, just saying that it’s not really backed up. You and I both know what the quality of eyewitness evidence is when given . . . immediately, and by the time it’s 50 years old and delivered in re a presidential election . . . the Swift Boaters had more . . . eyewitnesses who corroborated that Kerry was “lying”. Wouldn’t exactly be surprised to find that those who remember . . . Romney as ringleader were maybe not planning to vote for Mitt Romney.

I don’t think they’re lying as much as motivated cognition plus memory from 50 years ago is not reliable. Dito swiftboaters.

I don’t even think that’s only explanation; just think I can’t reliably distinguish from “they’re remembering accurately”

Note: I actually watched lots of formerly bullied girls become bullies themselves in girls’ camp when social dynamic of cabin . . . shifted for some reason. In most cases difference between bullied and bullies was group support/encouragement, not . . . some fundamental difference in their character. I never saw a bullied girl turn down the opportunity to bully someone else.

[. . .]

[in response to @pjdoland] I am sure that many of my bullies have forgotten it. I don’t think they’re sociopaths. I think they’re humans who grew up.

All the research on memory shows that it’s incredibly unreliable, and very easy to create factitious memories . . . that seem perfectly real. The odds that either Kerry or the Swift Boat vets accurately recalled what happened are zero.

And people who come out of the woodwork decades later with memories that impeach a presidential candidate are almost . . . certainly, either individually or as a group, altering those memories in ways that help the candidate they like.

. . . or they are embellishing memories. Seriously, this is a huge problem with eyewitness testimony, particularly in old trials.

If you tell people what happened, they will report it as if they recall it–they will in fact recall it.

A personal example: my mother was in hospital for an undiagnosed abdominal ailment that turned out to be appendicitis.

I spent the worst 13 hours of my life in the ER with her and would have sworn that it was seared—seared!–into my memory.

But as it happened, I kept a record of what was happening in RT, in case I wanted to write about it. (Fucking journalists, right?)

Three weeks later, I’d forgotten most of the stuff on the list. Some of it came back to me when I read it.

Some of it I still have absolutely no idea what I’m talking about. (I googled snoring? Why?) Memory is not what we think.

It’s a narrative that is constantly being recreated as we tell it, not a record.

The malleability of memory is something that none of us particularly want to face up to: we like to think of ourselves as reliable witnesses to our own lives, yet the evidence is that we are very much not. Some of us are a bit better at accurate recollection, while others consciously remember things as they should have happened instead of how they actually happened.

This, of course, should require us to move the entire “history” section over into the “fiction” part of the mental library…

Margaret Atwood is delighted that Conrad Black is coming back to Canada. “He has a lot to say and contribute,” she e-mailed from New York on Wednesday. But she thinks the Harper government may not be delighted. Lord Black, she notes, “is now a very informed and outspoken commentator on prison reform, and does not think the government’s expensive mega-jails plan will work.”

Believe it or not, Ms. Atwood and Lord Black have become BFF. When Payback, her book on debt, came out in 2008, he gave it a favourable review from his jail cell. She likes his book too. “Conrad Black’s A Matter of Principle is a fascinating, erudite, & defiant prison memoir — must-read for lawyers, politicos, & gossips alike!” she tweeted after it came out last fall. Lord Black even made a guest appearance in the new documentary based on her book. At the premiere, she declared that he is “a new and different kind of Conrad.”

[. . .]

During his 37 months as a guest of the U.S. Federal Bureau of Prisons, Lord Black experienced several jailhouse conversions. Most notably, he became an impassioned advocate for prison reform. U.S. prisons, he argues, are full of millions of innocent, near-innocent, impoverished, unlucky wretches who are victims of “the carceral state.” He is convinced that the war on drugs is an abject failure, and he has called the Harper government’s crime policies “sadistic and malicious.” Not even Mr. Mulcair went that far.

Lord Black has also fallen out of love with the United States, a nation he once idolized. “Its greatness survives, certainly, despite chronic misgovernment, but my affection for it has faded,” he has written. Last fall he wrote that after his release, “I will leave the United States forever, all passion spent.” He has also rekindled a genuine appreciation for Canada, a nation he harshly criticized for years. The rapacious capitalism he once celebrated is less attractive to him now. He seems to have developed — dare I say it? — a social conscience.

It’s the dinner party question that every barrister gets regularly asked — how do you defend people guilty of such terrible crimes as murder, rape and paedophilia? It’s a simple enough question, and one I expect to hear often now that the Anders Breivik trial is under way, but there’s not a simple answer. The query raises issues that go far beyond mere problems of professional ethics. It touches upon matters of fundamental constitutional importance to us all.

The shortest answer is to say that we don’t defend people who are guilty of these crimes; we defend people who are accused of them and who tell us they are not guilty. Contrary to just about every drama series on TV, barristers do not provide their clients with defences. It’s the other way around: clients give us their instructions, and we are bound to act strictly upon them. The joke among barristers is that if we were in the business of providing our clients with defences, we’d come up with something a damn sight better than they do.

[. . .]

But while we are obliged to take our clients’ cases and to act on their instructions, we are certainly not obliged to act as their mouthpiece. Quite the contrary, the court is not to be used as a soapbox from which the defendant spouts political views. We are obliged to defend the man accused of racially motivated crime if he is adamant he is not guilty, but not if he wants to use us to justify his racist views. And if we did, the judge would stop us.

That’s why the Breivik trial seems so strange to the eyes of an English lawyer: because what is being proffered by Breivik does not appear in any legal sense to amount to self-defence. No individual has the right to resort to mass murder to defend his country, as he claimed when he concluded his ludicrous evidence. The court does indeed seem to being used by him as a platform for him to express his twisted views and while it has had the very good sense to impose a broadcast blackout, I cannot imagine that an English court would allow the defendant to give that evidence, or to call the sort of witnesses he plans to call. I hope I never have the occasion to be proved right.

The Conservative government’s omnibus crime bill passed the Commons on Monday night. No matter the problem, the solution this unimaginative legislation provides is the same: longer sentences.

[. . .]

An important one that seems to have escaped the government’s thinking is whether, absent any other constructive reforms, it is a good thing to increase the powers of the police and prosecutors, and the effect it will have on the administration of justice. The government prefers to talk about criminals, as if everyone picked up by the police is guilty. Never discussed is the impact increased sentences will have on the accused but not convicted, namely, those presumed innocent.

In the daily operation of the criminal justice system, more severe penalties enhance the power the police and prosecutors have over the accused, or those merely suspected. The Americans have gone to such an extreme that the presumption of innocence is becoming only a notion; so severe are the penalties that police and prosecutors are able to bully even the innocent into pleading guilty. The trial in American criminal justice has been usurped by the plea bargain, in which the prosecutors hold most of the cards.

Canada is not there (yet), but it has happened here. In Ontario, the Goudge inquiry into parents falsely convicted of killing their own children established the pattern. Parents were threatened by prosecutors with such severe consequences that they pleaded guilty to crimes they did not commit, in the meagre hope of salvaging something of their lives.

[. . .]

There really isn’t very much “omni” in the omnibus crime bill. It’s about one thing — harsher punishments. It does nothing to alleviate the disgusting pre-trial (pre-trial!) conditions of remand that prevail in too many jails. It does nothing to mitigate the crisis in legal aid. It does nothing to lessen the likelihood of wrongful convictions. As Chief McFee notes, it does nothing for prevention.

Quis custodiet ipsos custodes? Who will guard the guards themselves? Who watches the watchmen? That’s the ancient maxim. The crime bill shows that those guarding the guards are not on duty.

The Protestant revolution was, in part (it never does to strain these analogy/simile things too much) that the Bible, when in the vernacular, as clear an outline of God’s will as any should need. Intervention was not needed, a man could commune directly with the Word and the Will of God.

On the matter of the law I am a Protestant. As rigid and unyielding as any Puritan, Lutheran or Calvinist. With a twist of course: the law must be written so that it can be understood directly, without that intervention of the priestly caste of lawyers, accountants, diversity advisors or bureaucrat’s helplines.

If you cannot write a law with the clarity of “thou shalt not kill” then go away and think through what it is that you’re trying to enact, the language that you are using to do so until you can, with clarity, tell us what it is that we must not do at fear of time in pokey.

That modern society is complex is no excuse. If you cannot write simple and simply understood laws then better that we have fewer laws.

That the Puritans went gargantuanly off the rails by using their new found revelations of God’s Will to tell everyone else what to do is true. But I do find it interesting that our new would be ruling class, the nomenklatura, are adopting such a Catholic view of the law. We’ll make it all so complex that no individual can understand it and thus there is the necessity of that nomenklatura to tell people what to do in detail by “interpreting” it.

You don’t have to be a little Englander, or even right wing, to recognise that it is an affront to democracy that unelected and completely unaccountable judges, who have absolutely no democratic mandate, are able to override the decisions of elected representatives. It is appalling that European judges can make significant political decisions over a body of citizens across Europe to whom they will never have to answer.

But there is a more fundamental reason that liberals should be sceptical of human-rights law: because it makes us all less free. Human rights are not ‘rights’ in a liberal sense at all. They bear no resemblance to the ‘rights’ fought for by the radical liberals of the English Civil War, or the French and American revolutions, which sought to limit the power of the state and protect the autonomy of citizens. Instead, human rights treat people as fundamentally vulnerable and in need of state protection. This view of human vulnerability, in the eyes of the human-rights lobby, justifies the granting of absolute power to the state to set the boundaries of freedom.

Take, for example, the ‘right to a private and family life’ protected under Article 8 of the European Convention on Human Rights. The courts will not consider a claim under Article 8 unless it is convinced in the courtroom that you have a ‘family life’ worth protecting. How the courts have defined ‘family life’ for the purposes of Article 8 is laughably antiquated. In 2002, the courts ruled that ‘family life’ does not exist where a relationship between parents and their grown-up children is ‘only emotional’, in that the children are no longer economically dependent on their parents. Neither are unmarried parents likely to be considered a family, unless they maintain sufficient levels of contact with their children. How can any ‘liberal’ support the idea that your family life is only worthwhile if it conforms to what the state decides a family should look like?

Or take Article 10, which purports to protect our freedom of expression. Of course, the very concept of ‘freedom of expression’ owes its existence to radical liberals like John Stuart Mill and Voltaire, who argued that there can be no exceptions to free speech, otherwise you do not have free speech at all. But human-rights lawyers will tell you that Article 10, along with most other human rights, is a ‘qualified right’ because there is a long list of conditions under which the state can interfere with it. This list includes where it is necessary in the ‘interests of public safety’ or for the ‘protection of health or morals’. Such broad qualifications mean that as a means of limiting state power, ‘qualified’ human rights are all but useless.

The Harper crime policy is less than the sum of its parts because it does not add up to a crime policy that addresses, or even acknowledges, these basic facts. It squanders resources that could be used to reduce crime. Making it more difficult for people to get out from under the shadow of their much earlier offences (through a pardon or “record suspension”) makes it harder for millions of Canadians with criminal records to reintegrate into society. Adding mandatory minimum penalties will do nothing to deter offenders, who, the data demonstrate, do not expect to get caught.

But the Harper crime policy is more than the sum of its parts because it tells us that the government is committed to ignoring evidence about crime, and does not care about whether our criminal-justice system is just and humane.

The student who grows six marijuana plants in her rented apartment to share with friends will soon face a mandatory minimum sentence of nine months in prison. Meanwhile, assaults have no mandatory minimum sentences. The law says that trial judges are required to impose sentences proportional to their seriousness and the offender’s responsibility for the offence. Is someone who grows six marijuana plants much more dangerous than someone who grows five (for which there is no minimum sentence)? Or who commits an assault? The Harper Tories seemingly think so.

Update: Of course, Stephen Harper rhetorically cast the libertarians out of the Conservative party years ago. The current attempts to provide the police with powers even they have said they don’t need merely provide extra proof. Chris Selley summarizes a National Post editorial on the subject:

The National Post‘s editorialists do not understand how a government that considers the long-gun registry (and, we’d add, the mandatory long-form census) an unconscionable invasion of Canadians’ privacy and a waste of their money can possibly get behind legislation that would “give the government unprecedented access to Canadians’ online activities, by allowing police to collect the personal information of Internet users … without having to go through the cumbersome process of obtaining a warrant beforehand.” We share this frustration. But Public Safety Minister Vic Toews made it quite clear what he thinks of such complaints yesterday, when he said Canadians “can either stand with us or with the child pornographers.” In other words: “Attention, libertarian wing of the Conservative Party of Canada. We think you are immoral, and no longer desire your votes.”

The Canada in which I landed in 1956 may not have had a Charter of Rights and Freedoms, but it had rights and freedoms galore, making it the envy of the world. The Canada in which I make my home today has a Charter, but Canadians who say they had more rights and freedoms 50 years ago aren’t paranoid: They did.

There seems to be an inverse relationship between written instruments of freedom, such as a Charter, and freedom itself. It’s as if freedom were too fragile to be put into words: If you write down your rights and freedoms, you lose them. Minimally, governments will try to take away every freedom you haven’t remembered to include.

“Where does it say you have a right to breathe, sir? Surely it’s not a fundamental right. If it were, it would be in the Charter.”

The 19th century British constitutional scholar, A.V. Dicey, foresaw this. He cautioned against written constitutions for this very reason, among others.

Part of the reason for the inverse relationship between written rights and actual freedom is the court system:

When I came to Canada, a court of law was often a place where individuals went for protection against the state. These days, they’d be taking a chance. Courts are often the state’s battering rams, used for breaking down individual rights and freedoms. Climate trumps the law, obviously, considering the law isn’t the law until a judge says it is. There is global warming, as the world is warming to tyranny. A judicial climate change has turned Canada’s courts from frequent champions of individual liberty to near-permanent defenders of social policy.

A judicial expression used to call policy “an unruly horse.” If you’ve time for only one book to see how events unfold when policy starts driving the law, pick up Christie Blatchford’s account of the native land-claim standoff at Caledonia, Ont., called Helpless. It shows what happens when the justice system becomes a branch of social engineering.