This Needs Fixin'

I don’t want to think about the ongoing coup this morning, so here’s something that’s been bouncing around in my head for a while.

We need to change how the U.S. legal process works.

Currently, the actual process of making a legal judgement has two phases:

• trial
• remedy

The trial phase mixes up all sorts of issues that really need to be separated out for clarity.

It covers all the pre-remedy issues:

• what happened and who did what?
• were any of those things illegal?
• were there mitigating circumstances?
• is everyone legally competent?
• is anyone legally immune?

That’s a lot of very different kind of questions that all have to get addressed in a single step. The current system has prioritizations in it, to make this possible, and those are really where the problem is.

Having all those issues mixed up prevents the courts from providing clarity to victims of crimes and to the public.

For example, immunity is the highest priority. If an accused is immunized for their conduct, then that is taken to mean that whole process stops there.

(Leaving aside for the moment that the entire concept of legal immunity should probably be scrapped as fundamentally inimical to a democratic State.)

It means they’re immune from the process, whereas it should mean they’re immune from punishment.

Because there are reasons other than punishment that we need the legal process.

This is especially true in political cases, for example, having to do with corruption or abuse of power.

In the current system, an accused may well be legally immunized (especially if they’re the President these days) but the public very much does need to know the facts of the case and whether the conduct was illegal.

They may not want to vote for a corrupt politician, for example, even if that person was legally immune or they’re actions weren’t technically illegal.

They may decide that the law or immunity rules need changing.

But those issues are cut off by having the process stop at a finding of immunity or incompetence.

So we need to rearrange the legal process to have at least three phases:

• facts
• law
• remedy

Those phases would address:

• who did what?
• was any of it illegal?
• what should be done about it?

And we should move all the immunity, competence and mitigating factors questions to the remedy phase to allow the facts and law to be discovered and decided before the process can be stopped.

Which would serve the public interest more than the current process does.

Now, I realize that serving the public interest isn’t really all that popular a thing in U.S. government these days.

But some day we will have a chance to make this a decent country again, and this is an issue we should think about for when that day comes.

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