Can crimes be discussed literally?

Suppose I were to say that the American legal system is a criminal organization. The usual response would be that this is a crazy accusation.

Now, suppose I were to point out that it is standard practice for American lawyers to advise their clients to lie under oath in certain circumstances. I expect that this would still generally be perceived as a heterodox, emotionally overwrought, and perhaps hysterical conspiracy theory.

Then, suppose I were to further clarify that people accepting a plea bargain are expected to affirm under oath that no one made threats or promises to induce them to plead guilty, and that the American criminal justice system is heavily reliant on plea bargains. This might be conceded as literally true, but with the proviso that since everyone does it, I shouldn't use extreme language like "lie" and "fraud."

This isn't about lawyers - some cases in other fields: 

In American medicine it is routine to officially certify that a standard of care was provided, that cannot possibly have been provided (e.g. some policies as to the timing of medication and tests can't be carried out given how many patients each nurse has to care for, but it's less trouble to fudge it as long as something vaguely resembling the officially desired outcome happened). The system relies on widespread willingness to falsify records, and would (temporarily) grind to a halt if people were to simply refuse to lie. But I expect that if I were to straightforwardly summarize this - that the American hospital system is built on lies - I mostly expect this to be evaluated as an attack, rather than a description. But of course if any one person refuses to lie, the proximate consequences may be bad.

Likewise for the psychiatric system.

In Simulacra and Subjectivity, the part that reads "while you cannot acquire a physician’s privileges and social role simply by providing clear evidence of your ability to heal others" was, in an early draft, "physicians are actually nothing but a social class with specific privileges, social roles, and barriers to entry." These are expressions of the same thought, but the draft version is a direct, simple theoretical assertion, while the latter merely provides evidence for the assertion. I had to be coy on purpose in order to distract the reader from a potential fight.

The End User License Agreements we almost all falsely certify that we've read in order to use the updated version of any software we have are of course familiar. And when I worked in the corporate world, I routinely had to affirm in writing that I understood and was following policies that were nowhere in evidence. But of course if I'd personally refused to lie, the proximate consequences would have been counterproductive.

The Silicon Valley startup scene - as attested in Zvi's post, the show Silicon Valley, the New Yorker profile on Y Combinator (my analysis), and plenty of anecdotal evidence - uses business metrics as a theatrical prop to appeal to investors, not an accounting device to make profitable decisions on the object level.

The general argumentative pattern is:

A: X is a fraudulent enterprise.
B: How can you say that?!
A: X relies on asserting Y when we know Y to be false.
B: But X produces benefit Z, and besides, everyone says Y and the system wouldn't work without it, so it's not reasonable to call it fraud.

This wouldn't be as much of a problem if terms like "fraud", "lie," "deception" were unambiguously attack words, with a literal meaning of "ought to be scapegoated as deviant." The problem is that there's simultaneously the definition that the dictionaries claim the word has, with a literal meaning independent of any call to action.

There is a clear conflict between the use of language to punish offenders, and the use of language to describe problems, and there is great need for a language that can describe problems.

For instance, if I wanted to understand how to interpret statistics generated by the medical system, I would need a short, simple way to refer to any significant tendency to generate false reports. If the available simple terms were also attack words, the process would become much more complicated.

Related: Model-building and scapegoating, Blame games, Judgment, Punishment, and the Information-Suppression Field, AGAINST LIE INFLATION, Maybe Lying Doesn't Exist

16 thoughts on “Can crimes be discussed literally?

  1. Doug S.

    "Inaccurate" might be a word you could use, but I think this kind of usage might be subject to the euphemism treadmill.

    Reply
    1. Benquo Post author

      That doesn't distinguish between false assertions motivated to deceive, and other false assertions.

      Reply
  2. Jonathan Monroe

    Interesting post. I agree with you that elite wrongdoing can't be discussed literally (and that the breakdown of this norm such as with MeToo or the short period of open season on corporate crime after Enron is a Big Deal) for reasons the post hints at. Of course, the central example of "crime" (violent and property crime committed by non-elites) can be discussed literally outside of a few ultra-woke contexts. So the title is both over-inclusive and under-inclusive (because a lot of elite wrongdoing, such as sexual harassment or the culpable incompetence of pre-2008 bank executives is non-criminal).

    Most of your examples are bad because there is a specific problem about the use of the word "lie" to describe non-deceptive falsehoods, related to your linked post about how Simulacrum Level 3 is honest in a way SL1 is and SL2 isn't. What I mean by non-deceptive falsehoods is close to the colloquial use of "white lie" - a statement which is literally false, but because there is common knowledge between the speaker and listener that the literal meaning will not be believed:
    - there is no intent to deceive, in the sense of inducing a false belief. (The defendant doesn't try to convince the judge that he really isn't being coerced)
    - there is minimal risk of anyone actually being deceived (The judge knows the defendant is being coerced)
    - accurate communication is still possible via subtext ("I wish to accept the proffered plea agreement")
    This gets worse when you attach a crime to the "lie". Marking a non-deceptive false statement isn't real sin, so doing it under oath isn't real crime, and prosecuting defence lawyers for suborning perjury in plea bargains would be an act of vile tyranny.

    It is perfectly possible to discuss the actual sin in all of your examples (the routine making of false statements) literally - it is just that such discussions don't go anywhere because non-rationalists consider operating at SL3 when you could be operating at SL1 to be non-sinful, and treat demands to move to SL1 as a sign of autism (see your post on medicalising integrity).

    Reply
    1. Benquo Post author

      No intent to deceive seems either false or meaningless here. What's the motive for asking the defendant to say something false, if no one is thereby deceived?

      Reply
      1. Kenny

        I'd guess it's less a motive to ask for something as a motive to continue doing something that previously was NOT previously false or misleading.

        I imagine it's common knowledge that the defendant's oath affirming that "no one made threats or promises to induce them to plead guilty" effectively includes a disclaimer 'except the prosecuting attorney or organization'. Legally (i.e. according to legal professionals), plea bargaining doesn't consist of 'threats' or 'promises'. There's definitely tension here, or at least some people do reasonably consider it to exist.

        I think maybe some EULA's are now 'accepted' without asking that someone explicitly certify that they've _read_ the agreement (completely, and understood it).

        Maybe the underlying dynamic is that meanings often 'erode' (or 'accrete'). And, without frequent standardization (which could be very helpful) or modification, various certifications _become_ false, in a literal sense, without any one prior point obviously being _too_ false to maintain.

        Reply
        1. Benquo Post author

          It's definitely not common knowledge in the technical sense of "everyone knows that everyone else knows, and so on to all levels of reflection." One important function of requiring defendants to affirm that no threats or promises have induced them to plead guilty, is to allow people to defensibly and plausibly assert that in the US system it is forbidden to extract a confession through actual or threatened torture, without clarifying the terms of art they are using, when the colloquial construal of that assertion is straightforwardly false.

          When checking whether something is deceptive, you have to look at those kinds of applications, not just the "intended" (i.e. most sympathetic) use case.

          Reply
          1. Kenny

            > ... the colloquial construal of that assertion is straightforwardly false.

            I don't think this is true, or certainly not true for most people, let alone all people. A threat of imprisonment is NOT considered a threat of torture, legally OR colloquially.

          2. Benquo Post author

            A threat of imprisonment is NOT considered a threat of torture, legally OR colloquially.

            The question isn't whether most people would answer in the affirmative to the question, "is a threat of imprisonment a threat of torture"? And we've already established that the legal definitions are constructed to differ substantially from the colloquial ones, specifically to allow the criminal courts, police, and prisons, more freedom of action than it's customary to verbally ascribe to them.

            The question is, under the ordinary colloquial definitions of "torture" and "threat," is a threat of imprisonment - in the actually existing USA with its actually existing prison system - a threat of torture? And the answer is obviously yes, even if it's customary to unsee this fact.

            Unless, of course, those words don't really have definitions at all, as commonly used, and are merely speech acts.

          3. Kenny

            @Benquo

            > under the ordinary colloquial definitions of "torture" and "threat," is a threat of imprisonment - in the actually existing USA with its actually existing prison system - a threat of torture?

            I don't think the answer is 'yes', let alone obviously.

            I think those words do have (rough) definitions but yours are very different than other people's.

    2. Benquo Post author

      Overall it seems to me like there's something funny going on with this comment, and I'm not sure how to articulate it, so I'll try to point out a few examples in the hopes that that helps someone generalize:

      the central example of "crime" (violent and property crime committed by non-elites)

      Judging crimes by centrality and noncentrality is in very important tension with having an ostensibly uniform legal code.

      a lot of elite wrongdoing, such as sexual harassment or the culpable incompetence of pre-2008 bank executives is non-criminal

      Some of that is noncriminal, but much of it is merely either difficult to prosecute, or passed over routinely by prosecutorial discretion - which, again, is in substantial tension with the rationale for prosecution according to an uniform legal code.

      - there is no intent to deceive, in the sense of inducing a false belief. (The defendant doesn't try to convince the judge that he really isn't being coerced)
      - there is minimal risk of anyone actually being deceived (The judge knows the defendant is being coerced)
      - accurate communication is still possible via subtext ("I wish to accept the proffered plea agreement")

      Why the focus on the judge? The judge is just one person, with a lot of high-context knowledge of the workings of the legal system, and much more information about what's going on in any given case than almost anyone else in the world. There are hundreds of millions of other people in the US alone, who don't have those advantages in interpreting a legal case.

      there is a specific problem about the use of the word "lie" to describe non-deceptive falsehood [...] What I mean by non-deceptive falsehoods is close to the colloquial use of "white lie"

      The colloquial way of referring to a white lie literally calls it a lie! Only sophisticated folks trying to "understand" (i.e. participate in) the mores of the powerful are actually confused by this.

      My best guess as to what's going on here, substantively, is that you're doing something like grading honesty on an empirical curve, so that pretty much by definition if a game is played by enough people, it's not about deception. If you instead used a consistent natural category for deception and intent to deceive, and didn't look away from the "noncentral" cases, I expect the resulting comment wouldn't have compelled me to poke at it like this.

      Reply
  3. Jonathan Monroe

    I don't know what the motive is because I am not familiar with the case for the US system of plea bargaining, which I find indefensible (not least because of the routine suborning of what is technically perjury). But the people for whom the system works like it. My best guess is that the motivation is that it is part of a plausible-deniability shield to protect tough-on-crime locally elected prosecutors and judges from having their work unpicked by soft-on-crime unelected federal judges.

    But I do know that there is no deception going on. Everyone in the system knows that it runs on coerced confessions.

    Reply
    1. Kenny

      I find U.S. plea bargaining to be _immensely_ defensible – just on pragmatic concerns alone.

      It would be _great_ if some way could be devised to drastically lower the costs of court, which would allow us to expand court services greatly. As-is tho, it would be _impossible_ for courts to handle the current volume of cases; they're already backed-up as is! Given these constraints, plea bargaining (and selective prosecution) is a practical strategy to manage the overall caseload. There don't seem to be any other ways to do so either.

      I don't find the rhetorical inconsistencies to be particularly confusing because they're readily explained by the overall structure, behavior, and constraints of the larger system in which they're used.

      Reply
    2. Benquo Post author

      My best guess is that the motivation is that it is part of a plausible-deniability shield to protect tough-on-crime locally elected prosecutors and judges from having their work unpicked by soft-on-crime unelected federal judges.

      But I do know that there is no deception going on.

      What's the function of a plausible-deniability shield, if there's no element of deception?

      Everyone in the system knows that it runs on coerced confessions.

      Why restrict your attention to the people in the system, in the sense you're using it here (i.e. active participants)?

      Reply
  4. Jonathan Monroe

    Of course, the coercion itself (which is actual elite wrongdoing, rather than routine use of SL3) is difficult to talk about literally. As far as I can see, it can only be discussed literally in woke or libertarian spaces, in both cases because the local norms have already decided that cops and prosecutors are not valid elites.

    Reply
    1. Kenny

      I don't think it's the case that people in either woke or libertarian spaces have "already decided that cops and prosecutors are not valid elites". Maybe that's an acceptable _sentiment_ to express in those spaces.

      I can't remember woke rhetoric about plea bargaining – I'm sure it exists. I'm very familiar with libertarian rhetoric about it.

      Certainly (most of) both woke and libertarian people want cops and prosecutors to _exist_ and would prefer them to be 'valid elites' (according to their respective notions of 'validity').

      Maybe there's utility in something like 'balanced budgets' for the justice system, i.e. forcing legislators to make (more) explicit tradeoffs in the enforcement of existing laws when creating new ones or modifying existing ones. Note tho that some amount of this kind of thing _is_ done already (however badly).

      Reply
    2. Benquo Post author

      The "woke or ultra-libertarian" phrasing points out an important political clustering that I'd like to see better-explored.

      Reply

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