Confessions of an Ex-Prosecutor (2016)
reason.com
reason.com
Also those deals come with stipulations and caveats. Sometimes, turning evidence is done in exchange for lighter sentences. Being able to prosecute and jail a worse criminal in exchange for letting off a lesser one. Or there's reoffending clauses. Less jail time but if they reoffend in a certain period, they have to serve the full sentence.
Also, you say it should be about how long it would take to rehabilitate a person, that's different for every person. In a crime of passion, where someone accidentally kills someone else, should any jail time be given? It requires a certain set of circumstances. A set that may never be repeated again.
Mmm...
just, Devil's Advocate.
What if the defendant is maintaining innocence because they are innocent?
“Maintaining innocence when you know the State has decided you are guilty shows a lack of willingness to subordinate yourself to the State.”
Taking all that into account, a known lighter sentence makes more sense than an unknown heavier sentence.
Yeah, but that hinges entirely under the assumption that the accused is guilty.
What if they're legitimately not?
The existence of plea bargains does not make you more likely to get convicted of a crime you didn't commit if you are pleading innocent.
Let's say you are wrongly charged with a crime and the evidence is enough that the prosecution is moving forward. The max sentence is 30 years, and you're offered a plea of 2 years.
There is a chance the system will utterly fail you, and a chance that the system will correctly find you innocent.
You don't know those odds. You only know your fears. And the prosecution has a LOT of tools to raise those fears. Society has given you LOTS of reasons to trust those fears. But one thing you won't have is security that your innocence means you will not be found guilty.
2 years is a major problem, but...marriages have survived that. You'll be around to see your kids/nieces/nephews hit most of their major life milestones, and more importantly, a lot of day-to-day normality of what you call life.
30 years...your life has ended. Every relationship is over, every daily experience, everything you define as you.
You have a LOT on the line, and the system...enh, it has very little on the line. What odds of failure of the system do you find worth the risk?
If anyone takes a plea deal when they are innocent, they may very well be saving themselves some real pain. Or they may be needlessly damning themselves to life as a (ex)con. We don't know. But that it seems a viable option EVEN WHEN INNOCENT is definitely a problem. Making the system more reliable should definitely happen, but that won't remove the imbalance of incentives.
What it does do is reduce the sentences for wrongly convicted innocents to ones that are reasonable for the crimes that they supposedly committed.
If a guilty person who pleads guilty gets two years for a particular crime, why should an innocent person wrongly convicted get twenty years for the same supposed crime?
But that is how the plea system operates. That is why the sentences are so long.
If the maximum penalty approximated what people are actually sentenced to, the prosecutor would have less leverage in plea bargaining and a much higher percentage of people would go to trial. Or the pleas would have to be more generous which would under-punish actually-guilty people who take the plea -- and reintroduce the incentive for innocent people to plead guilty.
The only way to get rid of that incentive is to get rid of plea bargaining. (Which would then allow maximum sentences to be much lower.)
Sure, if the plea system disappeared tomorrow, then initially sentences would probably be universally high. But at least wrongly convicted innocents wouldn't be treated more harshly than the guilty.
In time, different (probably mainly political) forces would bring down sentences to what society considers acceptable (two years in our example). Even if sentences didn't go down, at least they'd be aligned with society accepts for both guilty and wrongly convicted innocents. In any case, the absolute length of sentences is outside the scope of my argument.
Objecting to one criminal justice reform because it might exacerbate how the criminal justice system is also completely unfair in another, equally terrible way isn't very convincing, when you could actually be advocating to eliminate both problems.
And hey, no more innocent people railroaded into guilty pleas like they are under the current system. https://www.nybooks.com/articles/2014/11/20/why-innocent-peo...
Quite the opposite (in terms of pleas and cash bail). See https://en.wikipedia.org/wiki/Bail and https://en.wikipedia.org/wiki/Plea_bargain.
For example in England plea bargains are based on timing of plea only and are limited to one third off the sentence only. Bail is given by default and a cash bond is not required.
> Which country would you say does it right?
I'm not sure I'm qualified to say that some country does it right, but England for example is quite the opposite of the US in terms of "presumption of innocence" really having a meaning. The system hasn't ground to a halt, yet innocent people don't rot in jail awaiting trial just because they're poor, and don't have to plead guilty for fear of getting a 10x sentence.
The rest of your post just goes back to my previous comment about max sentences. If we reduce the max sentence for that hypothetical crime from 20 years to 3 years, then our system would be the same in that people who plead guilty would receive two thirds the sentence that those found guilty at trial.
Also, one of the reasons that the UK is able to handle this increased case workload (although a majority of cases are still plead down) is they spend a relatively high amount per capita when compared with other countries. Once again, I am not against a holistic change that reforms the whole justice system. But doing away with the plea system doesn't have the benefits that you suggest and has various downsides that you are skipping over.
I mean, I'm sure at the moment of death risk the ultimate FOMO kicks in, but in the abstract? The rest of my life in prison sounds a lot worse when it's a long life rather than a still-long-to-experience-but-overall-short one. Always felt like a terrible motivation tactic.
Yes, it does.
You seem to only be considering the effect of your option to enter a plea bargain, and not other people’s option to do so, and the incentives that may create for them when the government has decided to target you.
But innocent party A can't choose not to have a third-party B take a plea deal in which testimony that reinforces the prosecution of A is rewarded with a lighter sentence for B than a guilty plea without such testimony would get.
No, it's not. The status quo practice of plea deals not only encourages false guilty pleas, it also encourages false testimony that confirms prosecution narratives against other people who do not plea guilty, because the extent and effect of cooperation with prosecution is often a factor in getting a plea deal and the sentence received in it.
(Now, it probably does more to encourage true guilty pleas and true incriminating testimony, and so in net probably makes justice more accurate than would otherwise be the case; but it toys the balance in favor of the prosecution for both the innocent and the guilty to do that, which can be seen as violating the principle that protecting against wrongful convictions is off greater priority than assuring the guilty are convicted.)
I mean, the court system isn't perfect, but do you have a better idea? What would you do when we a court finds somebody guilty who maintains that they're innocent?
If you accept a trial's outcome that the accused is guilty, it follows logically that they deserve to be punished more for denying it (or at least, more than they would be punished if they confessed.) If you don't accept the trial's outcome because you can never be 100% sure, then how do you propose to run a criminal justice system?
No, it doesn't; it seems illogical, I would say, to impose additional punishment for people asserting their Constitutional right to compel the government to prove criminal allegations beyond a reasonable doubt without relying on testimony provided by the accused. It is contrary to the entire idea of a Constitutional right.
By 10x? No, I don't agree with that.
Except we know lots of innocent people have been convicted and later (often MUCH later) exonerated.
The fallibility of the court system is a strong argument not to load up penalties because someone simply exercised their Constitutional right to a trial.
"They're more guilty for denying it" is equivalent to "they're less guilty for repenting", in the same sense that "I'm taller than you" is an equivalent statement to "you're shorter than me."
It hinges on the idea that, if you were omniscient and knew the actual truth of what happened, you would probably feel more lenient towards a defendant who confessed their crime, versus one who denies it (again, imagine you're omniscient and you know the truth, that they really are guilty.)
To tie the logic together, the key point is that court system thinks of itself as omniscient. There's no concept in the courts of "guilty but they maintain their innocence" as a separate state from "guilty". The courts aren't supposed to issue guilty verdicts if there's reasonable doubt. If you were found guilty, legally speaking you are guilty, so it follows that you must be lying if you say you're not.
I'm not defending the practice... well, I defend the notion of guilty pleas getting shorter sentences because it makes for a better overall system by placing incentives on not tying up the courts any more than they need to. But I don't think of it as "let's be harsher on those that deny their crimes" so much as "let's be more lenient on those who admit them". It just happens that those statements are isomorphic.
That's not what I was responding to originally (see fake-name's post, it's what I was replying to.) I was responding to the notion that the fallibility of the courts are the reason why we shouldn't be "less lenient" on those who maintain their innocence (because we can't be sure of their guilt.)
You seem to be going farther than that: that we shouldn't be less lenient on those who maintain their innocence, even if we 100% know that they're guilty.
That, of course, is a matter of opinion and there's no way to "prove" it per say, so you're right in that sense.
Note that absolutely does not follow. There's a difference between wrong and lying; a court may find, in a case where self-defense was claimed, that the defendant was not in reasonable, imminent fear of the kind of unlicensed harm which warrants self-defense, and it may be correct in so doing. But that does not mean that the defendant does not honestly believe they had a reasonable fear of such imminent harm, and is lying when they said they did.
> well, I defend the notion of guilty pleas getting shorter sentences because it makes for a better overall system by placing incentives on not tying up the courts any more than they need to.
Creating a material incentive to reduce through accountability of the executive to the public—criminal procedure doesn't just protect the defendant, it protects the public from being deceived by the executive about their response to crime—doesn't make a better system, it makes a worse system. Furtherz it encourages overcriminalization by the legislature.
Assuming 20% of innocent people get convicted are you willing to risk the rest of your life?
I've only known 3 people who've been to jail and 2 of the 3 was innocent. Not in a they maintained there innocence way. But in a there was proof they were innocent. They just weren't able to get a hold of that proof until after they were convicted.
But.
Right now, sitting right here, not having to face such a decision except as a thought experiment I would say that if I were sure of my innocence, I wouldn't consider it a risk. If I were innocent, I would go to trial and expect to be exonerated.
Yet pleading guilty only because you get a payoff for it doesn't really say anything about your remorse either.
Not attacking you or your position (whatever that may be) - I know you're just explaining the reason we have this system, but it's also worth pointing out that said rationale isn't uncontested.
This is why parole hearings exist. You don't need to decide the number in advance.
Do you really think there's a minimum number of years to rehabilitate someone from theft? Vandalism? Murder?
If you believe it's solely about how long it takes to rehabilitate people, then sentencing shouldn't exist. Prisons should be run drastically different. And records shouldn't be made public because one of the main causes of recidivism is the stigma you get from being a felon.
Can it really be that you can trade punishment for efficiency (of the legal system)? Is that really why you're allowed to do that? It seems like a terrible time for people to be playing poker, yet that's what it looks like.
One interesting twist is helping the prosecution. If you turn in a fellow bad guy, by giving evidence that helps put him away, should you be allowed to trade in your own punishment for his? Presumably the same argument applies, right? Whatever you did was just as wrong, why should you get anything different? But you need some incentive...
- It’s considered a 2-year crime.
- The 20 (that seemed high to him for a 2 year plea) is a fuck you for going to trial when you are almost undoubtedly guilty. As someone else mentioned, it seems to show a lack of remorse.
- Note that both sentences will probably have time off for good behavior as well as possible probation. This can make each of the sentences less daunting (e.g., “2 years” might end up as 6 months served and 1.5 years probation).
- Cooperating is a totally different issue. They use that to get a bigger fish (usually).
Innocent until proven guilty is supposed to be the fundamental value of our justice system, this is the core issue I personally take with plea deals.
The issue typically isn’t innocence (they’re guilty), it’s an issue of how the defendant handles his guiltiness.
If there is a lack of evidence or a strong alibi, then typically the DA won’t threaten a trial — they will drop it or offer a lesser crime (depends on the context).
DAs don’t make a career of threatening trials for cases that aren’t locks. They want high conviction rates.
By definitiion, they're not, until proven.
- You need to be proven guilty even if you are, in fact, guilty.
- You should be punished for your crimes, not for "how you handle your guiltiness", not for going to trial, not for other things but for your crimes.
Certainly, most people going into the criminal justice system are guilty, there's little doubt about the circumstances and Perry Mason-style trials seldom if ever occur. But so what. That doesn't change the points above imo.
The most horrendous thing is that even when you are talking about guilty people, those who just knuckle under to the system can wind-up with minimal punishment and those who resist get punished more for this than for their crimes. Tell me again why this is just and reasonable.
The way my friend explains it is that many people -- DA, judge, and defense attorney (my friend) -- try to make it so obvious that a plea is in their best interest. It would defy logic not to take it.
Again, the way he explains it, some of these folks are extremely unintelligent. They lack critical thinking skills. They don't trust anyone in a suit or with an education. Trying to explain how good a deal is can apparently be very difficult. As such, the big sentence isn't actually one anyone wants to give unless the defendant basically gives the middle finger to the system.
Some hedges:
- I'm not talking about marginal edge cases or cases where there is substantial doubt about what happened -- those tend to be much more subtle on all sides.
- I'm not talking about cooked up charges. Some DAs may threaten a case for a big charge, but they will plea down to whatever the evidence will make obvious.
- I'm not talking about smart criminals. There are not a small number of them. They typically take the plea if they are guilty.
- I'm not talking about rigged systems (they exist). The victims in those systems are fucked no matter what.
If you believe what you say, then talk to your local, state, and federal representatives and ask them to fund the legal system better. This will alleviate the clogged dockets and will (theoretically) discourage excessively punitive sentences for someone who wants a trial in their slam dunk case. I get the sense that some folks here on HN seem to think that trying a case comes at no expense, and that's simply not the case -- there needs to be some efficiency and some encouragement to be efficient when the outcome is obvious.
Look, I totally agree that a lot of the legal system can be incredibly unfair. That doesn't mean that incentivizing reasonable behavior by various actors in the system is wrong.
> Tell me again why this is just and reasonable.
Another way to say this is why can a criminal whose guilt is not in doubt by any party delay justice for someone else later in the queue just because he wants to make a scene in court.
Please go have a coffee with a public defense lawyer and talk to him/her about how efficient or inefficient the plea/trail sentences are. Other than in corrupt systems, all the ones I have spoken to think it's fairly reasonable (not the laws necessarily, but the sentencing).
Also alternatively, instead of using life-ruining threats to 'incentivize' defendants, the only actors in the system being strong-armed here, into 'reasonable' capitulations to do whatever the prosecutor wants, you incentivize prosecutors to better behavior by abolishing plea deals so they have to focus finite resources on prosecuting only the most important cases against the most dangerous individuals, and not to add as many people as possible to the USA's disproportionately massive prison population. [0]
Also also alternatively, instead of fretting about a zero-sum game where defendants suffer from 'delayed justice' due to other defendants enjoying their right to a day in court, you could try to eliminate cash bail and let people back into the community until they've actually been convicted of a crime, so they don't have to await their trial from a jail cell. [1]
And being stubborn, illogical, mistrusting, or giving an abstract concept the metaphorical middle finger is one of the weakest possible reasons to punish someone with excessive jail time that you actually know they don't deserve, in an unaccountably secretive, opaque legal game of chicken where you're trying to make the defendant blink first.
[0] https://www.prisonpolicy.org/reports/pie2018.html
[1] https://reason.com/blog/2018/01/25/government-is-gutting-the...
Disagree. I would say that when the present overall law enforcement system is mockery of justice, then the grease used to speed the wheels of this machine is inherently despicable. I'm moderately familiar with the system, I know this keeps the whole process humming along. But smooth functioning can't really be evoked to defend keeping this beast on it's present track.
2 years for the crime, 18 for pissising off your friend. Does your friend think he is a God of some sort?
It’s typically the judge with an overflowing docket and the understaffed DA that prefer the plea.
From everything I have personally witnessed regarding this matter, none of it is a god complex on any side (some DAs can be d-bags, but most of them aren’t) — it’s more of an issue of logistics.
Yes, sure, there's a lot of obviously guilty people that get charged for the obviously illegal and obviously immoral thing they obviously did, and then they get the obvious punishment, fine, great.
> DAs don’t make a career of threatening trials for cases that aren’t locks.
That's not remotely the same thing as "no DAs ever threaten trials for cases that aren't locks". That does happen, all the time, and to the people who get caught up in it, the fact that the DA doing it isn't making a career of it is cold comfort.
It also doesn't consider a wide number of other structural issues involved with prosecutor discretion, or with the systemic imbalances in the system, as discussed in, eg, the linked article.
Which deprives the public of a trial. If someone is going to prison, everybody has a right to know the circumstances leading up to it -- and both sides of it, not just the prosecutor's version which the defendant is coerced to sign onto. Convictions without trials aren't an efficiency, they're the suppression of the truth.
> The issue typically isn’t innocence (they’re guilty), it’s an issue of how the defendant handles his guiltiness.
That isn't how overcharging works.
There are a lot of very broad crimes that everybody commits all the time and hardly anyone gets charged with.
So when a prosecutor decides they don't like you, and there is a 50% chance they can prove the thing they claim you did, they offer you the plea. If you want your day in court (because you didn't do that thing), they also tack on seven more charges which everybody is guilty of, so that you're found guilty of something even if they can't actually prove the thing that caused them to notice you to begin with.
They may also charge you with something else they only have a 5% chance of proving but which carries extremely severe penalties. Which, even if they can't prove it, subtracts 5% times a massive penalty from the expected value of demanding your day in court.
> If there is a lack of evidence or a strong alibi, then typically the DA won’t threaten a trial — they will drop it or offer a lesser crime (depends on the context).
That happens after plea bargaining. And that's the problem. If they say "agree to six months or go to trial" then you have to take the six months or prepare for trial, which may cost a quarter of a million dollars or more and untold hours of your own labor. Then, after you've paid the time and money to prepare your defense, they drop the charges, leaving you with the bill.
Or drop all of the serious charges they could never prove but which you had to prepare to defend against in case they tried to.
It can be cheaper for an innocent person to spend the six months in prison.
1). Under USA jurisprudence, LEO's and prosecutor's are allowed to lie to the defendants. In other jurisprudence regimes, that is such a no-no that cases have been dismissed when evidence of such behaviour has been found and this is irrespective of any possible guilt on the part of a defendant.
2). As mentioned by others here, the fundamental rule of jurisprudence is supposed to be innocent until proven guilty beyond a reasonable doubt, which by it nature requires a jury trial.
3). Typical practice under USA Jurisprudence for prosecutor's and LEO's is that it is preferable to get a plea bargain than actually do the hard yards to find the actual perpetrator of some crime and then collect enough actual valid evidence to demonstrate that the person is guilty beyond a reasonable doubt.
4). Both state and federal agreements (business and otherwise) requires keeping all those "wonderful" private prisons full. This is to ensure that both state and federal entities get the best deal for the money that are paying out for these privately run prisons.
5). As intimated by others here, there has been extensive analysis of both state and federal laws that basically show that every person in the USA has broken at least one of the many tens of thousands of laws on the books that come with felony penalties. The vast majority of these laws are not even know by the vast majority of the population of citizens.
Have you ever been on a jury that has to consider the facts about a matter of any serious crime? It is a sombre responsibility and takes a great deal of effort to unemotionally consider the facts as presented. It is a not a duty that I wish to repeat.
Even if this concept is defensible (which is arguable), something like 1 year extra is plenty of excess punishment compared to the cost of a trial.
There are a lot of issues involved, and contrition (or lack thereof) is one of them.
Most of the judges prefer pleas for obviously guilty people since they clog the docket. Going to trial just because you can even though your case is a slam dunk guilty verdict is an abuse of privelege, imho.
If a case is not a slam dunk, the judges often don’t give the max out of spite — it all depends on the details of the case.
If you have some free time, go watch a few criminal court trials. Some of these things will make of scratch your head and wonder why the person didn’t plea (e.g., clear cctv footage of the crime being committed with multiple eyewitnesses who corroborate).
As I have said elsewhere, when the facts are not as clear, the plea offers tend to contrast less starkly with a court sentence as well.
You seem to think that there are a lot of cases where the DA is just making up charges against a totally innocent person. That just happens very rarely. There are some weird domains like CPS/child abuse that have must-try cases for political reasons, but the various actors all know what's going on there and conduct themselves accordingly.
Look, IANAL. I am just telling you what my best friend has told me over the past two decades. If you want to learn more about this, go talk to a defense attorney and ask them their opinion on this matter. I think you will be (pleasantly?) surprised at how reasonable the system usually is.
If I were arrested and charged for a crime I did not do, having to choose between 6 months guilty (_and a felon for life_), or the chance of zero-or-20 years would be Very Difficult. On the one hand, I don't have the money to pay for a good attorney -- which means I'm more likely to lose, bankrupt my family, screw any chance of retirement, etc. On the other hand, pleading guilty to a crime which I know I am innocent of rankles me because of the injustice, but it also is the (game theory wise one) choice that gets me back to my family faster. (Of course then, being a felon, good luck getting a job, so my chances of a good life later are also totally messed up.)
You're looking at this from the perspective of someone who is guilty, and Might Get Away With it. Of course a plea makes sense there. Try looking at it from the perspective of someone falsely accused, though, whose option is either a public defender or being falsely convicted.
It takes some serious mental gymnastics (e.g., your doppelganger commits a crime right as you walk by) or you living in a massively corrupt area.
As far as money goes, you can get a publicly appointed attorney that the state pays for if you cannot afford an attorney on your own. Some of these folks are really good, some aren't. That said, if you're totally innocent, no lawyer who has passed the bar should have any trouble getting the charges dropped. Again, DAs don't just sit around trying to frame people for crimes they didn't commit -- they have enough actual work to do.
That's...amusing.
> Again, DAs don't just sit around trying to frame people for crimes they didn't commit
Mostly not, it's more likely to be child who conceive of the frame and manufacture evidence (both planting physical evidence and falsifying testimonial evidence.) Plenty of groups of cops have been found doing this, sometimes to cover premeditated police crimes, and sometimes to cover for police errors.
And sometimes the FBI simply invents entire fields of forensic science so that they can have “experts” testify in their (and state) trials to support the guilt of whomever law enforcement is directed at.
The idea that it is trivial for a minimally qualified lawyer to ensure that the factually innocent walk free in America is laughably naive.
Es a "for example" I suggest that you read about Mike Nifong's (DA on the Duke LaCrosse rape case) actions and his despicable lying. [1]
This may seriously change your opinion on the subject.
DA's regularily lie and cheat for political gain.
What percentage of cases do you think are like this? My guess is sub 0.01% — it’s just not that common according to the defense attorneys I know. When it does happen, bar complaints fly. My friend tells me that there definitely are wrongful convictions, but it is often not that the person was innocent of a crime, but that they were convicted of the wrong charge. As far as I am concerned, these types of cases seem to be very much the exception rather than the rule — no system is perfect, and I am fully aware of that.
I have said elsewhere that a corrupt district or DA is a caveat to my stance. Ditto with high profile “must try” cases (I was a juror in one of those). That was a district with a corrupt DA — it happens. The cool thing to me is that the dude was disbarred — the system worked.
I will also add that I think universities interpret rules far too generously (more like guilty until proven innocent), and I don’t agree with that at all, but that does not always become a legal matter. When it does, it is often a must-case for political reasons, and plea deals getnwokky then. I’ve said all of this elsewhere.
Cuz the vast majority of these were not plea bargains: https://en.wikipedia.org/wiki/List_of_wrongful_convictions_i...
If I am actually innocent, there are most likely three scenarios:
1. The DA drops the charges. This is a very common outcome when the case is not a slam dunk.
2. I was a witness to the crime and/or I was in the vicinity of the crime, and for some reason I was not willing to mention this to the DA. This happens a fair bit (esp. the vicinity one), but this is not a "slam dunk guilty" case, and every lawyer will tell you this. My guess is that I would talk to the DA via my lawyer, because I aggressively avoid hanging around places that are likely to have crime (even the white collar variety), and I have nothing to hide.
3. I was framed. This is tricky. My reaction would depend on the context, but again, I keep a healthy distance from people who regularly and knowingly commit crimes.
It seems like a lot of people think that DAs just sit around looking for fake charges to drop on innocent people. This simply does not happen as much as some commenters seem to think it does. Does it happen? Sure. Is this something I ever worry about? No, never.
Do you know of any/many completely innocent people who were wrongly jailed?
The worst I know of is a guy who was trafficking 9,000 pounds of marijuana and got fingered for the whole thing rather than charged as one of three. His issue? He didn't sing and the others did. He got what many would call an unreasonably long sentence given the circumstances (iirc, he did 2 years). Note that a crime had actually been committed (and he admitted to it, at least to friends), so it's not like he was innocent.
https://www.innocenceproject.org/
With the note that that is the tip of the proverbial iceberg but if that doesn't convince you that you are flat-out wrong I don't know what will.
As I said elsewhere, if you don't like the system, please call your local, state, and federal representatives and request that they support more funding for the judiciary.
Every case going to trial would cost an incredibly unreal amount of money -- there needs to be some streamlining somewhere, and the question is where and how.
There are other ways of avoiding the trial than threatening the accused. Also there are countries that don't seem to have this problem. Perhaps a look outside the US might suggest some alternative ways of behaving that might be used.
Due process and a fair trial are rights, not privileges.
What privilege?
All it will take is some LEO or prosecutor to decide to come after you and you will be facing the very thing that any others have faced.
Guess what, jury nullification is a thing. So even if they’re 110% guilty and the evidence is incontrovertible, the jury of their peers may judge that the law in question was unjust and the charge unfair and acquit them anyway.
They have the right. Period. No equivocation.
It's a right, not a privilege. There is a fundamental difference.
Economy of justice is an important consideration in the civil system but if there are too many criminal cases for courts to providing way the process to which there is a constitutional right, that's a problem of the legislative branch criminalizng too much conduct or underfunding courts or the executive branch engaging in overzealous prosecution. Rigorous questioning of criminal cases isn't just a right of the accused, it is the manner in which the public if assured that real crimes are being properly prosecuted rather than the government lazily scapegoating convenient, vulnerable targets while the real perpetrators go free.
The real issue is the huge number of charges prosecutors can bring, charge stacking, and the rules for how aggregating factors can increase penalties. That's how a prosecutor can tip the scales so egregiously. The fix is that we need less harsh penalties and rules against charge stacking. To prevent an overcorrection we need to make sure that police departments and prosecutors enforce the [less harsh] penalties more consistently.
Penalties are so harsh today that police and prosecutors don't even care about misdemeanor convictions. If there's no potential for a felony charge the police will literally walk away. Similarly, prosecutors don't want to waste time on penny-ante misdemeanor and felony cases and will let defendants off with a minimum penalty. That creates a self-fulling prophecy that without harsh sentences criminals get off scot free. It's why California is suffering from a property crime wave--police and prosecutors are habituated to ignoring property crimes now that the penalties are less severe, which means there's no deterrence. We could have deterrence without harsher penalties if they actually did their jobs.
The current estimate is roughly 1%.
Sending someone to prison is basically taking some or all of their life. We currently have an estimated 20,000 innocent people in jail. That's not rare, and it's disgusting that this complete ethical failure of the American justice system is defended here.
So you get an 18-year "fuck you" for invoking your Sixth Amendment right to a trial by an impartial jury of your peers?
Look, I'm not a lawyer. You may want to go talk to one -- especially a public defense lawyer. Your eyes will be open about how fantastically reasonable the system usually (intentional hedge word -- not all DAs or judges are reasonable, but most are) is.
It quite literally creates career criminals out of non-criminals, since, once they have a crime on their record, virtually all avenues of employment are closed off to them besides violent/property crime.
"PLEA AND CONFESSION BARGAINING IN SCOTLAND" [1]
"Tensions and balances, costs and rewards: the sentence discount in Scotland" [2]
"Furious 'stalking' victim slams courts for striking plea bargain with man who 'made her life a misery'" [3]
[1] https://www.ejcl.org/103/abs103-8.html
[2] https://core.ac.uk/download/pdf/1422462.pdf
[3] https://www.dailyrecord.co.uk/news/scottish-news/crown-offic...
The process of charge and fact bargaining is entirely
dependent on informal negotiations between the
prosecution and the defence. There is no involvement
on the part of the judge. Scotland does not operate
a system of American-style sentence bargaining. This
means that the prosecution cannot guarantee to the
accused that a particular sentence will result if he
pleads guilty (unless the bargain means that the
court’s sentencing powers are reduced because, for
example, the offence to which the accused eventually
pleads guilty has a maximum sentence).
Also, IIUC in Scotland the prosecutor can often impose civil fines and other remedies in lieu of prosecution and do so completely independently of a court. Whereas in the U.S. such arrangements are less often in lieu of prosecution; rather they're terms of an actual conviction and still involve a court formalizing things.
Really it seems the difference between the Scottish and U.S. system is largely semantics, and of course the fact that the criminal justice system in the U.S. is just plain harsh. Our harsher penalties compounded by charge stacking effectively gives courts huge leeway in terms of sentencing. Nobody would agree to plea for a small penalty if a court could unilaterally impose the harshest option. Combined with our constitutional law that all but prohibits a prosecutor from imposing penalties unilaterally (voluntarily or not), and it's clear why our plea bargaining process involves the judge and so-called sentence bargaining more so than in other similar systems.
[1] Or rather, the court gives little or no weight to the terms of the "contract" between the defendant and prosecutor, which can increase the risk for the defendant. Whereas in the U.S. the court has much less discretion to ignore the terms of a plea bargain, and in addition the judge will often mediate, which of course all but guarantees his imprimatur. Therefore there's less risk for a defendant and he will be more likely to take a plea deal.
* You're not guilty, but don't do it again.
The maximum penalty does actually happen though, it's just not common. The problem is that you don't know if it will happen to you before the trial, so its existence is extremely coercive. It scares the crap out of people -- and people are risk averse. They'll take a 100% chance of 2 years over a 1% chance of 30 years, even if the expected value is lower, because on the off chance the coin comes up tails six times in a row, they lose their entire life.
The issue isn't the plea bargain itself, but the incentives to make lots of 'suboptimal' deals. I've seen similar, recent arguments about whether #MeToo perpetrators should be allowed to settle with victims, because of our public interest in identifying attackers.
All things being equal, negotiated resolutions are great. But politics, over-criminalization, career incentives, and budget pressure swamp any real negotiating power by defendants. No one wants to kill any individual's deal. But the deals are the best way to 'see' the effect of the system's incentives.
[1] https://www.jstor.org/stable/4093405?seq=1#page_scan_tab_con...
https://www.jstor.org/stable/796954
https://reason.com/archives/2011/07/05/the-devils-bargain
https://www.nytimes.com/2011/09/26/us/tough-sentences-help-p...
https://www.nytimes.com/2012/03/11/opinion/sunday/go-to-tria...
https://www.nybooks.com/articles/2014/11/20/why-innocent-peo...
https://www.themarshallproject.org/2014/12/26/plea-bargainin...
https://www.wsj.com/articles/the-injustice-of-the-plea-barga...
https://www.theatlantic.com/magazine/archive/2017/09/innocen...
https://www.injusticewatch.org/interactives/2018/plea-bargai...
If this answer is not satisfactory to you then perhaps you could tell me what you’re after. Because as far as I can tell, this is a really simple question and answer. What is unjust? Punishing people for asserting their right to trial. Boom, done. If you want more, ask for it.
No plea deals or minimal plea deals would be an incentive to go to trial even if the evidence is overwhelming as you have nothing to lose and everything to gain.
I think you see this in high profile murder cases because the plea deal is usually life in prison, which is not much of a bargain for most people so they might a well roll the dice like OJ did and hope the prosecution screws up.
I think they're drastically different from the trial punishment for a reason.
If evidence to convict is not sufficient or present, why do we require a conviction?
The desire to convict also leads to some decisions that seem very wrong-headed from a common-sense perspective, like prosecuting young people for child porn for taking pictures of themselves, or imprisoning victims of domestic violence for not giving testimony...
This can put crime victims in the legal position of being forced to testify against their accuser, even if they are afraid or do not want to, under threat of contempt of court charges.
It only protects you from being compelled to be a witness against yourself; because of indirect use, you can refuse testimony that isn't directly against yourself based on that protection, but only so long as you haven't been granted immunity that protects you against those derivative uses.
I've read about children and adolescents who were added to that sex offender registry because of minor indiscretions and had their adult lives ruined as a result. I can't imagine what being branded a pedophile and child molester will do to their reputations.
I think the root problem is that the world is not fair and never will be. Justice (like health/immortality) is an ideal to be pursued, not a destination to be reached. The system we have is at least a somewhat reasonable approximation for fairness in that both sides have their points borne out by an invested party.
Most people on HN would agree that a logical, consistent, codified legal system should be superior to an ad-hoc, bazaar-style system.
Can op brove that the us system is superior to the one in canada, france, the uk or germany ?
Good luck.
"American justice system is the worst possible justice system, with the exception of all of the world's other justice systems"
As a justice system, the US is one of several with roots in English common law, and has its variant strengths and weaknesses compared to the others.
It has some practical issues (defense lawyers are not paid by the state, prosecutors are).
> At felony case termination, court-appointed counsel represented 82% of State defendants in the 75 largest counties in 1996 and 66% of Federal defendants in 1998.
Yes, a former prosecutor is a great person to get as a defense attorney. That's not the question I asked.
That said, it's not like the defense/prosecutor caseload would be the only thing to change if this hypo came to be. It wouldn't happen in a vacuum, no "suppose everything was the same tomorrow except everybody's calendar got mixed up!"
A quick search turns up this[1] report from 2000 that says:
Over 80% of felony defendants charged with a violent crime in the country’s largest counties and 66% in U.S. district courts had publicly financed attorneys.
Having said that, the report is from 2000 and it seems the data is from the mid to late '90s. So things may have changed since then but I don't see any evidence of that.
I'm not sure that combining the prosecutor's and public defender's office would work, but having a system where the lawyers end up switching between prosecution and defense cases does seem like it may help avoid pushing them into extreme views for either side.
Similarly, I'd expect lawyers who were forced to alternate between prosecuting and defending to concentrate more on the mechanics of the process and less on the result.
Many defense lawyers are paid by the state: they're called public defenders.
Many defense lawyers are paid for by the state. Not all, but most. But they aren't really paid equally in most cases: Defense lawyers provided by the state tend to be overworked and not have enough time to adequately help folks. I'm not sure anywhere has laws that mean they get as much money and time as the prosecution has to put towards a case. They aren't paid on par with private defense lawyers either, unfortunately.
An adversarial system is only good if both parties have similar support. When one side is obviously disadvantaged when the defendant is too poor to hire a lawyer outright, the benefits of the adversarial system are fewer.
Criminal law (not the whole of the legal profession) is split between those things because either you work for a public prosecutor or you don't; it's not at all uncommon for people to do both over a career, but outside of some special cases, you wouldn't do both as part of the same job (the military justice system is an exception, here.)
EDIT: Actually, I think the parenthetical above is wrong; I think all the military branches have a separate offices for prosecutors and defense counsel within their respective JAG Corps.
I know that they ended up doing that, and I thought it was a fairly dynamic movement between roles. But the quick research I did indicated judge advocates are assigned to particular offices, and that it while the way roles were divided between various offices was different in each service, the criminal prosecution and defense functions were consistently in different offices, which would suggest that the role changes were more like a change of assignment within the service than different tasks within he same assignment.
But, yeah, I'm going on pretty shallow information there.
Some cities like San Francisco have laws that enforce rough parity in budgeting and caseload, but even then public defenders are at a huge disadvantage (e.g. prosecutors benefit from the police budget).
For practical reasons there's no way to address this adequately. The underclass is too numerous, and disparity in wealth too great, to think we can fix this administratively. The best first step is to make the stakes less severe by lowering penalties. Not everything needs to be a 1st degree felony. The next step is to be more consistent--pursue misdemeanor charges and lesser felonies more vigorously so that outcomes are more consistent, regardless of the wealth or stature of the client. Tweak the system so that it will tend toward more equal outcomes, rather than trying to brute force it.
While defense lawyers are frequently appointed and sometimes claim from a government-funded pool, again, it would be nearly impossible to defend accused people in the same jurisdiction in which you prosecuted similar cases.
For example, a DUI client's best defense might be to attack the county crime lab as unreliable. Once the lawyer does that, his words would be fed back to him if he tries to prosecute a person accused of DUI.
Thus, you tend to get lawyers one one side or the other -- either defense/prosecution, or (for similar reasons) plaintiff/defense on the civil side.
Of course other bad incentives will probably pop up, but it seems like this is one way to promote truth over politics in our justice system.
For starters, most defense lawyers aren't "appointed" from a government-funded pool; they're actually employees of the government: public defenders. (Pool defenders are the minority in the US, generally found in smaller jurisdictions without the budget for standalone public defender offices.) Public defenders frequently attack the crime labs and police departments, despite the fact that both departments are also part of their employer.
On the civil side, outside of specialized areas like insurance litigation or torts, most litigation lawyers do not specialize as plaintiff or defense lawyers. They represent their clients, and this means that they will be the plaintiff's lawyer in some cases and the defense's lawyer in others. (In the case of tort litigation, the "side" depends on the client base. If the lawyer's clients are businesses, they'll almost always be on the defense side. However, if their clients are individuals, they could be on either side.)
As for the the rest, "the Defense bar"[0] and "Plaintiff's lawyers"[1] are pretty common terms. Sorry if your speciality is left out. The point is that a lawyer's responsibilities to clients will get hairy if they try to play both sides of common divides like prosecution/(criminal)defense and plaintiff/(corporate) defense.
[0] https://www.dri.org/ [1] https://www.google.com/search?q=plaintiff%27s+lawyer+site%3A...
Lawyers are professionals, and while you will get a few bad apples who play politics, the overwhelming majority of them will have no problem representing both sides--as long as it's in different cases. (Professional has a specific legal meaning in the US, meaning at a very high level that lawyers have ethical obligations to their clients.)
It's not a yin-and-yang sort of situation with representation either. All government attorneys should be on the same team, but defendants often have conflicting interests (which one of you had the murder weapon?) that can often make the most contentious parts of the case take place between defendants.
Prosecutors enjoy unfettered power to the point of being above the law, and defense attorneys do not. Until that changes, it doesn't matter who shuffles between the job titles.
One other aspect of the original article- like many defense attorneys, this one was a former prosecutor. One major reason for the change is an increase in income. Even if no such ties actually exist between the newly transitioned defense attorney and their former chums at the state attorney's office, they trade on such ties and judges will treat their clients colored by such ties. It's a corruption in the system, one among many.
DISCLAIMER: I've been represented by both an ex-prosecutor and non-ex-prosecutors.
I dont know if that is the case for everyone. Make no mistake about it: prosecutors destroy lives, families, and careers for a living, and the vast majority of those on the receiving end have not committed conduct worthy of such destruction. They know this, and they still do it anyway. For some it’s just a paycheck, and others just enjoy making people suffer. But regardless of why they do it, I certainly wouldn’t knowingly allow someone that can sleep at night after throwing thousands of people to the wolves to be in the same room with me, let alone trust them with my criminal defense (or anything else for that matter).
Reason is published by the Reason Foundation which is funded by several right-wing donors, including the Koch Family Foundations. The Reason Foundation is a member of the State Policy Network whose goal (as measured by their past history) is to advance the interests of right-wing wealthy donors. And leaders at the Reason Foundation have strong ties to ALEC, an organization that coordinates and advances bills across states that benefit right-wing wealthy donors. https://www.sourcewatch.org/index.php/Reason_Foundation
So keep Reason's editorial bent in mind when you read its articles. Some are good, but Reason leadership has an agenda.
That said, to the extent that you can squint real hard and find some meaning in the idea of "right wing" or "left wing", American libertarians are typically described as "simultaneously left of left, and right of right".
Ultimately that just goes to illustrate exactly the point that a simple one dimensional spectrum cannot even begin to model the diversity of political beliefs in the world.
Not really. It doesn't tell the whole story, but it reflects a real and current axis of variation.
> That said, to the extent that you can squint real hard and find some meaning in the idea of "right wing" or "left wing", American libertarians are typically described as "simultaneously left of left, and right of right".
American “libertarians” (that is, people referred to that way in America) are typically right-libertarians. To the extent they sometimes seem left, it's because some of the popular perception of the right is set by right authoritarians.
Actually it conflates and muddles several different axes of variation, leaving a situation where almost nobody is actually correctly described by the term "left wing" or "right wing".
American “libertarians” (that is, people referred to that way in America) are typically right-libertarians.
That is a myth which has no basis in reality. Libertarians in America adopt huge swathe of positions which are more typically associated with the "left wing" label: drug decriminalization, opposition to the death penalty, religious freedom, etc. The fact that they tend to take those same issues even further than others is how you wind up with the "left of left, and right of right" label:
Typical American "left wing" position: decriminalize weed
Typical American libertarian position: eliminate all drug laws, what you put in your body is no business of the State.
So, "left of left".
Typical American "right wing" position: "lower taxes"
Typical American libertarian position: "taxation is theft, end all taxes".
So, right of right.
You really can't model things in a sufficiently rich way to describe Libertarianism on a one-dimensional spectrum like the left/right scale. It just doesn't work.
No, it's really not.
> Libertarians in America adopt huge swathe of positions which are more typically associated with the "left wing" label
Libertarians in America are more likely to agree with the left on issues where the left believes the government should be inactive, sure, but they tend to agree with the right on what the important functions of government are.
> Typical American "left wing" position: decriminalize weed
That's just the typical American opinion, now. But, sure, most on the left would go at least that far.
> Typical American libertarian position: eliminate all drug laws
Not really; the scattered polling I've seen over the years have shown self-described libertarians as only slight more supportive of legalization of any drugs (even just marijuana) as the US public as a whole, much less the left.
Similarly on your other points.
> You really can't model things in a sufficiently rich way to describe Libertarianism on a one-dimensional spectrum like the left/right scale.
Libertarianism is at least another axis, sure, and even that is more about broad categorization. And it may not even be the second most significant axis in US politics; there's a race policy axis that has historically been stronger.
This kind of bullshit, is the reason I'm an anarchist.
Reason is not your average rank-and-file libertarian; it's an ideological paper. Think average Republican voter vs. National Review columnists. Do a quick search for "marijuana" and you'll get stories that speak positively of legalization; search for "MDMA" and you'll get stories celebrating its approval for treatment of PTSD. Again - this article takes a position traditionally associated with the left-wing, because this particular publication takes a classical ideological libertarian position.
Part of their right-wing alignment is to downplay these kinds of issues, but Reason as an ideologically purist publication tends to play them up.
Alternatively, https://xkcd.com/868/
Since the rise of Trump I find the majority of Reason articles aligned with liberal positions. They have been highly critical of him and his administration's authoritarian actions and policies.
Would you say that there is no utility in inspecting Trump's motives and his history of telling whoppers, because, after all, the statement "There was no collusion" stands or falls on its own no matter who said it?
In the real world, as individuals we don't have the expertise nor the time to develop the expertise to evaluate fully what we read, and it is rare that we personally have firsthand knowledge of the facts in question. So we can't determine if the claims of the article stand on their own and we rely on the reputation of the author of the article to help decide the likelihood that it is true.
The person you replied to was very careful not to claim that there is anything wrong about the article.
My view of the particulars, having subscribed to Reason for a few years and read it for years before that, is that Reason is a testament to the reality that broken clock politics are real. In other words, people who fund things that you and I might normally not like also occasionally fund great things.
It's a hard thing to understand. The US government funds NPR and the national park system. I imagine that most people who like those things aren't big fans of the things to which the lion's share of the money goes (wars of aggression and enriching crony capitalists).
But Reason magazine? Shit man, I'll stand behind Reason all day. It's a wonderful publication. Kudos to them for doing good things with bad money.
For example, the last Reason article I read completely ignored the whole reason a policy was implemented in the first place in order to make its argument. https://news.ycombinator.com/item?id=17523570
Opposition of prosecutorial and police abuses aren't really pro-wealthy donor stances.
This writer in particular, Ken White, is a practicing lawyer handling (among other things) freedom of speech issues and criminal defense cases.
He isn't a Koch-funded op-ed writer or lobbyist, he has a real job helping people.
Youth is a vast treasure and a glorious opportunity. Unfortunately, it's disproportionately vested on individuals who lack the wisdom and experience that comes with age.