If a process is corrupt or unreliable, then what’s the point of having the process at all? How can we judge whether, in Robert’s words, whether justice is being done? “Most of the people we deport should have been deported anyway” is not a justification of a bad process. It ignores the question of whether we would have gotten the same–or better–results with a fair process, and it ignores Type I errors.

So: you care about Type I error? Why? Do you care about it more, or less than Type II? Do you think Type I error is the main issue that constitutes problems with due process, as I understood you to be implying before?

And while we’re at it, would you mind distinguishing who you are quoting, when you quote multiple people in the same post?

mythago said:
Complaints about unfairness are not merely complaints that the result was wrong. They go to the validity of the system itself.

I disagree. There are two kinds of general unfairness complaints: results and process. But in reality the results complaints are much more common, because few people tend to complain about something that gives them what they ultimately hoped to achieve.

If you look at most people who are are complaining about process, they are doing so because of the results. Your example below is somewhat of an unusual exception; I’m not sure how it really applies to the immigration argument.

Take your example regime, Killemallistan. Imagine that the police in that country arrest a man for embezzlement, not because of any evidence, but because his cousin refused the advances of the chief of police. They torture him into confessing,

OK, right here you sort of lost me. It’s difficult to separate “torture into confessing” from the rest of the example. And AFAIK we’re not talking about torture based confessions, right? We’re talking about immigration decisions. Why are you going down this road?

I’m going to address thius part of your post as its own standalone hypothetical:

and bring him before a judge who says “If you were arrested you must be guilty,” convicting the man of embezzlement. If the man’s employer later stumbles across evidence that the man WAS an embezzler, it’s all good?

Let’s see if we can agree on one thing first: Do you agree that the worst case is “if the man’s employer later stumbles across evidence that the man WAS NOT an embezzler”? That any situation where a convicted defendant is actually guilty is “better” than an otherwise-identical situation where the convicted defendant is actually innocent?

Finding people guilty who are guilty, and finding people innocent who are innocent.

If you mean the specifics of immigration courts, then reaching decisions that accord with the will of Congress when they passed whatever rule or policy is being adjudicated.

And please note in my previous posts, I stated what your opinion seemed to be. Are you bothering to read anything *I’m* writing?

If there is a conflict between a court having fair rules, or doing justice, it is better if the court does justice.

“Doing justice” meaning what in this context, setting aside the whole issue of the false dilemma posed?

“Ron, IMO the concept of a USSC-driven revocation of birthright citizenship for illegal immigrants’ kids is so far-fetched as to be almost pointless to discuss. It’s much more likely that it would pass via a constitutional amendment (which will almost certainly not happen. And yes, the ‘much more likely’ still applies.)

”

Thats true. But then again a few short years ago most of us thought we had private property rights too before the USSC magically swept them away in the Kelo decision.

Sailorman Writes:

October 9th, 2007 at 1:01 pm
Joe, did you read my “info for those who don’t know the lingo” paragraphs, that attempt to explain type I and II error in the legal context? If you still don’t get it I’ll explain more, but I suspect you missed them. Let me know.

I missed that paragraph. So the legal profession uses Type 1 and Type 2 as a term of art? I Didn’t know that. They’re somwhat similar to the way they’re used in statistics.

Mythago:

Oh, I see. It’s not that you have problems with ad hominem attacks or unfair categorizations, it’s just that you feel they’re sort of your intellectual property.

This was merely an explanation of why I assumed you were less interested in Type I error, based on the earlier content of your posts. Note the word “appear”, which acts as a qualifier (are you even paying attention to what anyone else is typing? that’s an ad hominem, I know, but I’m honestly beginning to wonder here. I don’t know why you’d miss that.)

(It’s also more than a little disingenuous to take a swipe at rape-shield laws as part of your argument, then pull a no-tagbacks by saying ‘but that’s for a different thread’.)

I like rape shield laws. I think they’re justified. I’ve said as much in a variety of threads. But they are what they are, and their effect on Type I and Ii error is what it is. And as such it serves as an interesting example of how people’s preference for varying levels of type I and II error can change through the subject matter.

I don’t control the threads here, and–in theory at least–this thread is about something else. Feel free to “tag” me back if you want to, though I doubt we disagree on the rape shield subject.

It is important to have rules for a court system. Those rules should be as fair as is reasonably possible. The court system should follow those rules as well as it can. We know from our understanding of human nature and history, though, that there is no perfectly fair set of rules. We also know that no court system will be able to follow the rules perfectly.

It is also important that the court system reach just outcomes. When it is looking at people who are guilty of the crimes they are accused of, it should find them guilty. When it is looking at people who are innocent, it should find them innocent. We also know from history and human nature that no court system will achieve this perfect justice.

If there is a conflict between a court having fair rules, or doing justice, it is better if the court does justice.

You demand a system that is “impartial, fair and consistent”. I suggest that this is a conceptual error, and that human systems are not capable of maintaining these categorical qualities simultaneously. I suggest that what is important is justice.

joe - I’m saying that you can’t have a good result if you have a manifestly broken and arbitrary process.

This is so grossly not what I said that, although I’d sworn off trying to get you to stop dishonestly mischaracterizing posts, I’ve gotta join Sailorman: please knock it the fuck off.

Sailorman, can you please explain what you mean by Type I and Type II errors? The only time I saw that nomenclature it was in reference to rejecting or failing to reject the null hypothesis in hypothesis testing and I’m not sure how that applies here. I’m not sure about other readers but your use of the terms do not help make your point clear to me.

Sorry, Robert, could you put that into English? Do you think that courts would all be better off if they followed the whims of the judge instead of some wacky, you know, laws?

Since you appear to be approaching this from the pro-illegal-immigrant viewpoint

Oh, I see. It’s not that you have problems with ad hominem attacks or unfair categorizations, it’s just that you feel they’re sort of your intellectual property. (It’s also more than a little disingenuous to take a swipe at rape-shield laws as part of your argument, then pull a no-tagbacks by saying ‘but that’s for a different thread’.)

So are you saying that you actually care about the number (large as it is) of people who we could prosecute and/or deport, that we don’t prosecute and/or deport?

Why, yes. Sorry to disappoint.

Complaints about unfairness are not merely complaints that the result was wrong. They go to the validity of the system itself. Take your example regime, Killemallistan. Imagine that the police in that country arrest a man for embezzlement, not because of any evidence, but because his cousin refused the advances of the chief of police. They torture him into confessing, and bring him before a judge who says “If you were arrested you must be guilty,” convicting the man of embezzlement.

If the man’s employer later stumbles across evidence that the man WAS an embezzler, it’s all good?

a system with lots of type 1 error and little type 2 error is a very liberal system. Since you appear to be approaching this from the pro-illegal-immigrant viewpoint, it seemed fair to assume that wouldn’t bother you.* Generally speaking, a DP argument focuses on Type 2 error, as there’s no entity who does a good job asserting a “too much type 1 error” complaint.

So are you saying that you actually care about the number (large as it is) of people who we could prosecute and/or deport, that we don’t prosecute and/or deport? If you don’t care about it–which I strongly suspect is the case–why bring it up?

You’re a lawyer, so I truly can’t fathom your argument (or at least what I believe you’re arguing), which is that as long as we aren’t making too many errors we must assume there is due process.

Can you PLEASE stop with this bullshit? I’ve called you on it above; now you’re continuing with a bizarre ad hom. I considered a reply in kind (”you’re a lawyer, so I can’t believe you’d fail to understand…”) but please. It is fucking ridiculous, and beneath you. Please stop, now.

The issue isn’t merely error–if by “error” you mean “the result would have been the same either way”. The issue is having an impartial, fair and consistent system of immigration courts.

Impartiality and consistency are means to an end, which is that elusive “fairness.” Complaints about partiality or inconsistency are at heart complaints that the result “should have” been different than it was.

Do you see another goal of the process? DO you think the process is a goal unto itself?

*Info for those who don’t know the lingo: Type 1 error is “failing to convict the guilty;” and Type 2 error is “accidentally convicting the innocent.” Generally speaking, there’s a balance between the two and in a given system a change will trade one for the other rather than reducing total error. However, different SYSTEMS can easily have different amounts of total error. Also, some changes to a system will reduce total error without changing the 1/2 ratio; I’ve posted on that w/r/t rape law on my own blog, most recently here: http://moderatelyinsane.blogspot.com/2007/09/more-on-bias-neutral-improvements-for.html

Authoritative regimes tend to reduce Type I error by increasing Type II error (”kill ‘em all and let God sort them out;” or “we may have to imprison a lot of innocent Muslims to catch a terrorist, but it’s justified.”) The “potential terrorist” sweeps post 9/11 were an excellent example.

Liberal regimes tend to prefer Type I error over Type II error (”better than 100 guilty go free than that an innocent man be convicted.”) Exclusionary rules in evidence are a great example. As a point of interest, though, some liberals feel very differently when it comes to rape law. But that’s a different thread.

I boggle that you think any systemic entity capable of having all of these attributes simultaneously and categorically. They must be traded off against one another.

You can call them a list of desirable traits in specific decisions, if you like. (”This was a fair ruling.”) That’s the kind of impartiality and fairness that Sailorman is looking for, I think, which is why he’s focusing on whether correct decisions are being reached.

I agree that it’s important to have proper process and such, but I also think that the primary criteria for judging the quality of a judicial system is the quality of its rulings, not the optimality of the process’ alignment to a rulebook.

I’m honestly not following you here. An argument is valid or invalid depending on whether a conservative would like it?

The issue isn’t merely error–if by “error” you mean “the result would have been the same either way”. The issue is having an impartial, fair and consistent system of immigration courts. That’s why I keep saying you appear to be arguing that the end justifies the means. You’re a lawyer, so I truly can’t fathom your argument (or at least what I believe you’re arguing), which is that as long as we aren’t making too many errors we must assume there is due process.

As for ‘back up my claims’, I guess I could ask you to go first–beauty before age and all that–although I could cite you plenty of articles on how broken our immigration system is, if you truly aren’t aware of that. Personally, I’ve been involved in the system both as the spouse of a potential immigrant, and as an attorney volunteering for a legal clinic that assisted people with immigration problems. The staff attorneys at that clinic had inhuman levels of patience. (I know I wouldn’t remain that calm trying to handle a system that has not managed to implement a special visa for victims of human trafficking seven years after Congress approved it, for example.)

mythago Writes:
October 2nd, 2007 at 6:33 pm
Which is a fancier way of saying that the ends justify the means and due process doesn’t matter. As long as we can say the results are the same, who cares, eh?

If that’s what I meant to say, I’d have said it.

I’m not sure why, but you seem to be doing a lot of “what you’re really saying is…” and it is getting sort of annoying. Especially since I responded in some detail to you, AND posed some followup questions based on your post, none of which you have answered. Is this some sort of sound bite war?

“Most of the people who got deported would have been deported under a fair system” is not a measure of accuracy. For starters, it assumes that no mistakes are made in the other direction.

I made that assumption to use the bias to your benefit, not mine. Most people who are concerned about DP focus on Type II error (the innocents who are mistakenly held to be guilty. In this case, that would represent the people entitled to stay who are mistakenly deported.

Your point has no meaning unless you mean to apply it to Type I error. It is true that I intentionally didn’t go into the number of “should be deported” people who the courts are allowing to stay in the U.S. But complaining about high levels of Type I error in the immigration courts is a conservative argument, not a liberal one. Are you sure you want to go there?

It also assumes that unfairly imprisoning, prosecuting or attempting to deport people who are legally entitled to remain here is not all that important.

I’m not sure where you’re getting that. Certainly the prosecutorial type II error is also relevant.

But would you care to point out some statistics to back up your claims? Because after all, ANY system is going to have type II error at the prosecution stage, and the arrest stage, and the conviction stage. The question isn’t whether a system HAS such error–they all do–but rather which system has LESS.

And that goes back to the question I asked before: why do you make the claims you do?

Ron, IMO the concept of a USSC-driven revocation of birthright citizenship for illegal immigrants’ kids is so far-fetched as to be almost pointless to discuss. It’s much more likely that it would pass via a constitutional amendment (which will almost certainly not happen. And yes, the ‘much more likely’ still applies.)

Of course it’s speculation as to how SCOTUS would actually rule; but the excited notion that Wong Kim Ark is the tool that will happily kick all those anchor babies back to Mexico is a pipe dream.

Under current law, yes. I didn’t mean to imply differently.

There’s really not as much wiggle room as you are making it out to be.

It’s not something that can be quantitatively measured. There’s as much or as little wiggle room as 5 out of 9 Supreme Court Justices decide there is. Any opinion on what way that would go would be pure speculation. But the justices could easily decide against birthright citizenship for the children of illegal aliens without violating stare decsis.

That’s because the child IS an American citizen.

But be aware that between that and the grounds on which Wong Kim Ark was decided, there’s a lot of wiggle room for the Supremes to go ahead and declare that children of illegal aliens are not automatically citizens under the Constitution.

There’s really not as much wiggle room as you are making it out to be.