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Comment by michaelfeathers | Hacker News Reader

How can it be fixed?

Tricky, at the very least.

First, you have the problem that legislators have to outdo themselves in their "tough on crime" poses, leading to ever more draconian laws and potential sentences. Don't see a trivial way out of that apart from changing the political climate, but it's probably the biggest factor. Without the risk of completely out-of-whack penalties, the leverage of prosecutors diminishes.

'"We now have an incredible concentration of power in the hands of prosecutors," said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that "in the wrong hands, the criminal justice system can be held hostage."'

http://www.nytimes.com/2011/09/26/us/tough-sentences-help-pr...

Of course, the media could help by not hyping "ever increasing" criminality, which isn't true. Crime levels have been dropping not just in recent times, but pretty much throughout history, and are at historically unprecedented lows. Civic activism/awareness?

http://www.nytimes.com/2011/10/09/books/review/the-better-an...

Reduce or eliminate plea bargains. Justice should be justice, not a grimy barter deal. The ratio of guilty pleas to verdicts is now 30:1(!)

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?artic...

Adjust the incentives for prosecutors. Make these sorts of convictions and/or pleas less positive and/or drastically increase the disincentives for shenanigans that are found out.

EDIT: Have prosecutors, as public servants, be responsible for finding the truth, not for getting convictions. It is in the public's interest to get to the truth, not to convict or force guilty pleas of innocents.

How about expanding the right to council to equivalent resources? That way if the government spends a million trying to convict someone, they have to make an equivalent level of resources available to the defense.

Seems like a good idea but I can imagine government accounting gimmicks.

I'm very curious about something that I read in Lessig's post about not being able to reach out to others for funds without incurring the ire of the District Court Judge. I wonder what that is about?

The effect of this would be the government would be prosecuting either cheapest cases (read: defendants most likely to be intimidated, confused and railroaded with minimal effort, including weak, mentally unstable, drug addicts, etc.) or very high-profile cases on which careers are made. Other ones would be completely neglected due to high costs and low cost/benefit ratio, or delegated to the cheapest personnel government service can find.

Since pleading out is much less expensive that jury trial, the current trend of forcing defendant to plead out will become overwhelming - basically, a mere fact jury trial would mean complete failure for a prosecutor ("you let that sucker have jury trial and cost our department whole next year budget?! good luck getting promotion anytime this century!"). They would behave accordingly - given that by now we have 5000 federal crimes and more will be inevitably created just for this purpose, standard scenario would be "we got you for 95 counts of federal crimes, summarily you could get 280 years in jail. Even if jury throws out 90% of them, you are still in for 30 years. How about accepting this one 2 year charge on the cheap and we are done here and now?"

Also, government wouldn't usually spend a million. Locking down someone's assets costs nothing do the government. Setting excessive bail and denying him opportunities to defend himself is also very cheap. So this measure would create incentive to concentrate on such methods of winning the case - why bother with expensive forensics if you can bankrupt him with asset forfeiture and he'd have no money to pay for a lawyer that would ask questions requiring expensive forensics? It's not the question of money, unfortunately. It's the question of vastly asymmetric power.

It would just be a factor of two in costs. Surely you're exaggerating its effect.

Additionally I would propose that in some random subset of accepted plea bargains, a trial is forced and if the plea is consistently unreasonably far from the plea, there should be some negative consequence for the prosecutor.

It's all about incentives and incentives not always work arithmetically. Also note, that symmetrical funding will mean costs inflation - if defendant gets a million, prosecutor probably would have to spend more on prosecution, since now he has to overcome a million-dollar lawyers. So those cases that get to trial would be much more than twice expensive as before - because while prosecutors have huge resources behind them, they rarely use all of them, unless the other side has equally huge resources. If you force resource match, every case would require all huge resources. And this means incentive to not let that happen would increase dramatically, because the difference is between quick case close in couple of days and prolonged attrition battle with complete involvement of all resources.

>>>> Additionally I would propose that in some random subset of accepted plea bargains, a trial is forced

So, let's say the defendant pleads out and the jury can not convict him because of whatever stupid thing. How it makes prosecutor necessarily bad? Remember in the recent case of Blagoyevich outright selling senate seat the jury could not convict him because one of the jurors thought it's just politics as usual and there's nothing criminal was going on? How something like that makes prosecutor bad? Juries are never certain. It would be hugely unfair and would definitely drive good ones from the job, because good people are usually sensitive to unfairness. Bad people would stay and manipulate the system so that their cases either don't get randomly selected somehow or get to a sympathetic judge, or some such.

> Also note, that symmetrical funding will mean costs inflation - if defendant gets a million, prosecutor probably would have to spend more on prosecution, since now he has to overcome a million-dollar lawyers.

I don't see how that makes sense.. If the prosecutor completely relies on having far more resources than the defendant, then surely the case is weak enough to lose?

It would definitely mean that prosecutors give up on more of their weaker cases.

> So, let's say the defendant pleads out and the jury can not convict him because of whatever stupid thing. How it makes prosecutor necessarily bad?

That's why I mentioned "consistently" bad...

Remove draconian sentences from copyright criminal law and computer hacking law.

This is difficult because the copyright lobby has some of the finest politicians money can buy, and because both legislators and the general public don't understand computers and are firmly convinced that anyone who understands computers has godlike powers.

Require federally funded research to be public domain.

This might actually be politically feasible. On or near the front page of this writing is a White House petition to do it.

I suspect that "computer hacking" law would have fewer special interests around it, and that was the the thing that he was charged with.

At root this is a philosophical problem. The professional philosophers have created a disarray in the field of values, claiming that they are subjective and arbitrary, and that's resulted in the inability of people to rally around common, objective values of right and wrong. And when you say something like this, you generally just get what these philosophers have said repeated back to you, and some weak-kneed alternative to saying "this is right, that is wrong", which is precisely why we are where we are.

Is that actually, causally, the reason for the U.S.'s rather harsh justice system? I mean, postmodernism is not exactly popular in the US. Are law-and-order populist politicians pushing "tough on crime" agendas and long sentences all secretly fans of French philosophers? If anything, the problem is that they are too sure of their own values, and willing to enforce them with imprisonment.

It's uncertainty about the right values that permits the false ones to prevail.

Certainty about the wrong values has caused its share of bad values prevailing.

So? You can't claim certainty is per se evil without lapsing into hypocritical contradiction. Those who zealously preach anti-certainty are hypocrites, intrinsically.

OK, so relativism has self-referential problems. Fine. But what does this have to do with the price of tea in China?

I was responding to the OP, he'll have to answer my "so", I have no idea what his point was.

No offense, but I think I'll listen to systems thinkers and legal experts rather than philosophers for a little while.

And this is different from the status quo how? How does running to the same group of "experts" who have engineered our social systems help? Note how conditioned the response is: you see a problem with the system, you're conditioned to trust in the system (and its approved representatives) to give you answers.

You're part of the problem of course. You and everyone like you. By rejecting philosophy you reject ethics and therefore any possible means of addressing these systematic problems.

I am of course in the minority, but it's not the minority who's created these major systemic problems. We try to point them out and are ignored (and here, downvoted), and you bumbling fools keep doing things that wreck civilization. Inadvertently of course. But good intentions count for zero, you still bear partial responsibility for widespread injustice.

The problem lies in Democracy, it is not for nothing that it is called the least worst ruling system.

The difference between most democracies and dictatorships is that a dictatorship is despotism by minority and most democracies despotism by majority, not often are democracies systems of fairness.

No, it's not with democracy, it's with the values of the populace. If you have a predominately good people, then many political systems can work; if you have a predominately duped and corrupt people, no system can work.

If you think that the problem with the U.S. is that everyone is hopelessly enamored with Rorty or other postmodernists, then, I think maybe you are out of touch with "reality" just a little bit. :) I don't think the NRA is going to start quoting Derrida any time soon.

No, I don't think that. If you think that I do based on so little evidence, then you're clearly out of touch with reality, a lot.

But you're not making any sense.

To you. Ergo you ask questions, you don't insert your premises where you fail to comprehend mine.

What are you talking about? I have training in philosophy but I have no idea what you're talking about; I'm not sure what professional philosophers have to do with this situation at all.

What an ironic question.

What do you think the rational purpose of philosophy is?

So you're serious? You think the US laws were written by postmodernists and that most US citizens are relativists? Really? This seems like a weird version of a tin foil hat conspiracy theory.

So, you're a philosophy buff, but you can't help yourself regarding ignorant presumption about another person's thoughts.

I don't think philosophy has taught you much about being careful with ideas. That too is ironic. I shouldn't have to disclaim your ignorant presumptions every time you open your ignorant, presumptuous mouth.

Also, I asked you a basic question. I asked you what the purpose of philosophy was. Why are you evading the question?

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