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There are a number of reasonable explanations for why those found guilty with public defenders face more severe consequences, even outside the ability to obtain more effective representation.

In particular, that is not balancing for the crimes of the accused. Certain crimes are committed disproportionately more often by certain demographics. Burglary, for instance, has the highest recidivism rate there is and is also going to be something engaged in almost exclusively by the sort of individuals that would not have the means to hire private representation.

Recidivism is also heavily dependent upon demographics, and once again individuals without means tend to return to crime more often than individuals with means. While each judge has their own 'style' of sentencing, in general an individual they believe less likely to return to crime is more likely to be sentenced to probation, than an individual who they see as more likely to return to crime.

Another reason prosecutors are incentivized to make (and accept) plea deals is because if every accused in the US demanded a trial by jury, our entire justice system would collapse in on itself which would necessitate immediate reform. We don't have anywhere near the resources to actually handle all the people we arrest and charge if they actually attempted to defend themselves. Kind of interesting in that in a way it's like a nationwide prisoner's dilemma.

You just described the implicit racism in the system and why white people get softer punishments because they evoke empathy from the judge.

Yes, the system needs immediate reform, such as ending the "war of drugs" and not criminalizing being poor or brown. If the US stopped persecuting phony crimes, it could afford to prosecute real crimes.

There are definitely problems dealing with race in the judicial system, but I think the comment above was focusing on economic disparities rather than race.

Not all justice systems are the same, some States and even cities have much better systems than others. Saying the entire system is flawed goes too far. The system is very imperfect but fixable.

It’s not so much that the police are so good at their jobs but that they focus on easy cases, either through sting operations or possession crimes. It might be hard to prove that a gang member committed a particular robbery, but if you found him with a gun when you went to serve your arrest warrant (this happens all the time), then it’s a slam dunk to charge him with the robbery and felon-in-possession. The average sentence on the FIP is like six years, probably more than the robbery

As to people with lawyers having better success: people who can afford lawyers tend not to commit crimes that are easy to prove. They’ll disproportionately be charged with white collar crimes, where the difference between legal and illegal conduct often could be what the accused was thinking when he took a certain action.

Thoughts on https://www.youtube.com/watch?v=USkEzLuzmZ4?

You've argued over the years that the justice system is in fact a justice system, not merely a legal system. In other words, you believe it's mostly fair.

I feel like I'm probably misrepresenting your position. But the overall point is that many of your comments carry a tone of "Well, there's a logical basis for why the courts work this way."

I've been trying to square your experience with anecdotal evidence, which seems to universally agree that the system is stacked against you. Those who go to court with a public defender are doomed.

In case you happen to enjoy that video, there's another on bail: https://www.youtube.com/watch?v=IS5mwymTIJU

One of my worst fears is being accused of some kind of crime, like cybercrime or anything else. I've seen how HN and Reddit treat the accused. I've done it myself: I know that the point of an indictment is to indict someone, yet when I read FBI testimony stating that the founder of Silk Road hired hitmen, I start to feel differently about him.

https://news.ycombinator.com/item?id=15414170

As cheesy as it sounds, I care about being honorable. I'd never engage in ransomware or embezzlement or anything else, let alone hurt anybody. But I know that if someone were to accuse me of those things, people would automatically think less of me, regardless of whether I did it or not. And that's why it's terrifying. Especially for those without money.

So I thought I'd ask you to please justify this system. Fundamentally, morally: is it sound?

The fact that 95% of cases end in plea deals, and that N% of that subset didn't commit any crimes -- should we feel ok with that? Yet on the flipside, it seems to work, and we seem to live in a pretty decent and free society. I'm not sure how much or little we should credit the courts for that.

The reason I'm asking you in particular is because you're one of a few people on HN with enough experience to give a thoughtful answer. You've been involved with it, and you know the territory.

> You've argued over the years that the justice system is in fact a justice system, not merely a legal system. In other words, you believe it's mostly fair.

To the contrary, I think it's incredibly unfair. But probably for different reasons than you do. For example, thousands of people every year are sentenced to an average of over six years in prison for possessing a firearm as a felon. It's "fair" in the sense that the error rate for those convictions is almost certainly negligible, because proof only requires showing possession and a fact that's a matter of public record. But in my opinion the crime and the sentence are unfair: we shouldn't take away the rights of people who have served their time, and six years is a sentence more appropriate for murder than possession of anything.

I think the under-funding of public defenders is a travesty. But most public defenders will admit that most of their clients are guilty, and they spend most of their time ensuring their clients plead to the right charges and get a fair shake at sentencing. It's "fair" in the sense that the system mostly convicts the right people (except at the margins, which is why public defenders should get more funding) but it's "unfair" in the sense that sentences are too long and many of these crimes shouldn't be crimes.

> One of my worst fears is being accused of some kind of crime, like cybercrime or anything else.

You should be afraid! Take, for example, 18 U.S.C. 1001, which makes almost any sort of false statement vaguely related to the federal government a felony. It's "fair" in the sense that there is almost never any doubt that the accused made the false statement in question (either in a recorded interview with an FBI agent, or in in writing in some official paperwork). But it's "unfair" in that it's often used to trap (or, more often, threaten) people who only did something marginally wrong. E.g. lying to a federal agent to conceal a workplace affair.

> Yet on the flipside, it seems to work, and we seem to live in a pretty decent and free society. I'm not sure how much or little we should credit the courts for that.

That's a really fundamental question. I think the way to look at it is to look at what happens in places without enforcement of certain kinds of conduct. E.g. sex crimes in rural India or Pakistan. Why do victims plead for enforcement of the laws on the books in such situations? Partly retribution. Probably not really deterrence--even with enforcement, the odds of getting caught are so low that there can't be much of a real deterrent effect. The biggest value of punishing crimes is, in my opinion, creating social norms. The overwhelming majority of people aren't "good" or "bad," but they will readily follow social norms that are visibly enforced. The primary benefit of putting people in prison for robbery thus is showing everyone that it's conduct that is so unacceptable that we put people in prison for it.

Why do you say "probably not deterrence" and then write a paragraph arguing in favor of deterrence?

Usually what people mean by deterrence is the idea that people won't commit crimes because of the fear of punishment weighted by the risk of getting caught. I don't think that has much real effect, because the risk of getting caught is generally low. I'm talking about something somewhat different, which is that we use punishment of certain conduct to reinforce (or to establish) the social norm that the conduct is bad and shameful.

Take something like sexual harassment. Overt sexual harassment was much more common in the 1980s than today. One could hypothesize that this is because we started punishing sexual harassment by firing people for doing it. That begs the question: would men sexually harass their coworkers if there was no risk of punishment? Most men would say no. But are men today just better people than men 40 years ago? Probably not. Rather, what we've done through punishment is create a social norm. In most people, violating a social norm creates negative feelings even in the absence of punishment.

What I'm describing is like deterrence, but different in important ways. Classic deterrence suggests a rational calculus: if the benefit is greater than the punishment weighted by the risk of getting caught, people will engage in the behavior. That suggests that you can decrease crime through harsher sentences and more aggressive enforcement. But that doesn't square with observed reality: in many European countries, for example, the maximum sentence for murder is only 15 years, but people commit far fewer murders than in the U.S.

If you view the point of the criminal justice system as establishing social norms, then the length of punishment and aggressiveness of enforcement matter a lot less. So long as both are enough to clearly establish the social norm, that's sufficient to discourage ordinary people from engaging in the undesirable conduct.

> If you view the point of the criminal justice system as establishing social norms, then the length of punishment and aggressiveness of enforcement matter a lot less.

The more basic type of deterrence is a strong justification for our justice system, but your point that it also exists to adjust social norms is excellent, and often not considered. You referred to prosecutors, but it's not just the government that doles out social norms...

Back in the 1950s and 60s, civil rights leaders would drive from town to town defending black people accused of crimes. They were great lawyers, but due to a variety of reasons (the big one being racism), they lost case after case. The vast majority of their cases actually.

Even though they lost many cases, the very fact that these well spoken lawyers were representing people of color started setting social norms. They were fighting back. They cross-examined white witnesses, and showed everyone was entitled to a good lawyer, and that the word of a white person could not be trusted any more than a person of color.

The point is that courts are often used as a vehicle for larger social change. It's generally free to engage (minus your time), you get an public audience, you get agents of the state to make official pronouncements (e.g., the judge, jury, prosecutor), and even the accused and lawyers get to say their bit in a (relatively) safe environment.

> The primary benefit of putting people in prison for robbery thus is showing everyone that it's conduct that is so unacceptable that we put people in prison for it.

Sure, but nobody is proposing repeal of the law against robbery.

And when you look at something like felon in possession of a weapon, the same argument doesn't apply. Felons mostly acquire weapons for self defense like anybody else. Even most felons aren't murderers. And felons have more enemies than most -- former rivals, compatriots who may think you ratted them out, or prosecutors told them you ratted them out whether you did or not.

When the choice is a 5% chance of going back to prison for having a weapon or a 70% chance of getting beat down for not having one, so many people break the law that no social norm can be established.

So the only effect of laws like that is to make things too easy for prosecutors. Round up some ex-convicts at random and you can throw half of them back in prison for years without ever showing that they harmed anyone.

At best prosecutors are only doing this to "bad people" for some entirely subjective definition of bad, but we all know this is exactly the sort of thing that leads to selective prosecution of minorities and dissidents.

The question is how to get rid of laws like that when they have bipartisan support. Republicans like to be "tough on crime" and Democrats like anything that smells like gun control.

> the only effect of laws like that is to make things too easy for prosecutors

No question that judicial and prosecutor efficiency are important factors in deciding to prosecute, but they are not the only ones. Prosecutors often take on difficult cases when there is strong political support for it.

For example, after years of dragging their feet, NYC prosecutors tried to convict someone (anyone) involved in the 2008 financial crisis. They got a few people on the sides, but their effort was mostly seen as a failure. Still, it was probably better that they tried and failed rather than not tried at all.

Another example is the war on drugs in the 1990s. As far as efficiency and resources, it was a horrible program, not easy or efficient by any measure, but the country was terrified of drug use and it's related crime. The goal was based more in societal norms than efficiency.

Last example, Mayor Guiliani's tactics of removing small crimes (illegal street vendors, minor trespassing, graffiti) was based in the theory that you can improve entire neighborhoods and reduce major crimes by eliminating the smaller ones. Again, unclear if this tactic really worked, but it's clear that his aim was not purely judicial efficiency, it was economic development.

These cases were not efficient at all, but there was strong demand to

A five-second Google search proves you wrong, black people face a far higher rate of false-conviction:

http://www.law.umich.edu/special/exoneration/Documents/Race_...

Two things:

Sting operations are vastly more expensive. They are very rare. Most all police arrests come after the perpetrator has been reported to them by some member of the public. Police then interview/search that person and either find something (guns drugs etc) or the person admits something. Stings and such are the 1% cases.

>>"people who can afford lawyers tend not to commit crimes that are easy to prove".

Yes they do. That rich people are rarely charged is no indication that they are not committing such crimes. London sewage has tested highest in cocaine. Richer cities consume proportionally more cocaine and other drugs. The rich people that live in them presumably are committing more crimes (possession) than those in poorer cities.

http://www.bbc.co.uk/news/uk-33009682

> Now, perhaps the police are very good at their jobs and really do get the right guy 90+ of the time

Far from all arrests even result in charges. So, if most of the police failures are identified by the DA before charges are filed, it would still look this way even if the police false positive rate was high.

You are overlooking that the police and the DA both have limited resources and must be selective with what cases they pursue. If one assistant DA can only have four misdemeanor trials a month they aren't going after cases that are 50/50. In a high population area there is enough crime for the DA to keep a 90% conviction rate by only going after the easiest cases to prove.

Right. The theoretically most efficient system would see a 100% conviction rate across the board, because everyone from the investigators to the judges executed perfectly and delivered a criminal to sentencing.

> people defended by public defenders are significantly more likely to go to jail than people with a private lawyer

It has long been acknowledged that poverty is correlated with both criminal activity and conviction. Just mentioning this does not make it a causal relationship.

And how has it been acknowledged? Through the courts? If so then see above...

Sure, so we'd expect the class of people who would hire a lawyer to be disproportionately represented in jail. This statistic though is about people who are being defended at trial (or in the judicial system) and the rate at which they go to prison. In other words, even if there were a million people defended by public defender and only a thousand by private lawyers, comparing the likelihood for each class to go to prison is still informative.