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Comment by michaelfeathers | Hacker News Reader

It's a nice narrow fix and I hope it passes, but the real elephant in the room is 'plea bargaining.' That needs reform at the federal level.

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Federal prosecutors' primary tactics mirror those of the medieval siege. They do their best to fling arrows at the castle by generating enormous amounts of discovery material They starve defendants with insanely over-broad civil asset forfeiture laws. They charge crimes on the prosecutor's whims: HSBC bankers get away with laundering hundreds of billions for Iran, but go after Aaron Swartz with utter malice. Of course, these whims are driven (as always) by personal ambition, outright greed, and a strategy towards personal profit. They strip the defendant of all his most essential Constitutional rights, and then bully him into accepting the arbitrary conditions imposed by one in a position of power, desecrating the right to a trial by peers--a right we gained in the 13th century.

We must pass laws mandating adequate funding for the judiciary, and mandating that after the prosecution's total expenditures surpass $50,000, the prosecution must contribute the amount it spends on its own expenses, minus the first $50,000, to a legal defense fund for the defendant.

This will ensure the government will not resort to dirty tactics like inundation with discovery materials, since they will just have to pay for the defendant's lawyers to read them all. They will not be able to subjugate defendants with their might, because defendants will have the means available to them to stand up to it.

This would basically mean you could never get a large company or criminal organization for anything. If you're trying to uncover e.g. systematic FCPA violations, you can't help but make the case complex.

Fine, and so the case is complex and expensive. If the accused truly are guilty, then they will be afforded due process of law and then convicted. The case may cost twice as much for the government to prosecute, but the large company will forfeit any profits derived from that criminal activity.

Besides, the DoJ consumes an absurdly low proportion of the Federal budget [1]. Even if this law doubled the DoJ's budget (impossible; they still have to pay for facilities, support staff, etc.), it is a worthy price to pay for a safeguard of the liberties we've enjoyed for nearly a millennia.

1: http://www.justice.gov/ag/annualreports/pr2012/section3.pdf#... -- page III-18. Total appropriations received: ~$27 billion, $18 billion of which went to supporting the goal, "Prevent Crime, Protect the Rights of the American People, and Enforce Federal Law". The total of Federal expenditures for FY12 was $3,538.3 billion (http://www.fms.treas.gov/annualreport/cs2012/finhigh.pdf).

I quite like this proposal.

That sounds like a problem with the sentences and not with the plea.

--> Current world: Defendants have a choice between accepting a certain jail term of Y or risking trial where they'll get in a range from 0-X (where X >> Y).

--> Your world: Defendants must risk trial where they'll get in a range from 0-X.

How is the second one better? If you want to reduce X, then just reduce X. The same argument goes if you say that Y must be some fraction of X --- if I were a defendant, I'd want at least an option of a very small Y (and if X is too high, just reduce X).

In addition to all the efficiency arguments (jurors, court costs, etc), guilty pleas save victims and witnesses from having to show up in court, be aggressively cross-examined by defense counsel, and suffer again. Why is it beneficial for somebody who knows he's guilty and knows he'll be convicted to have to inflict pain on his victims again?

[Edit: replied to wrong post]

By the time that you have gotten to the point where you are considering a plea bargain vs. a trial you have already lost. Even if you are innocent of the crime, the plea bargain can look really tempting.

In cases like this, offering a low-ball plea bargain (e.g. '6 month sentence or go to trial and risk 35 years') can mean that the prosecutor's office would rather not go to trial (because they have a weak case). Seems to me that if the case is weak, then prosecutor shouldn't be pursuing it.

[Though, maybe if it's a case of significant loss to the victim (e.g. murder), then pursuing the case even when it's weak may make sense.]

Why? He could have sidestepped any plea bargaining if he wished. I'm not sure what you're suggesting they do.

His price for not admitting felony guilt was to face 13 felony counts and a potential of 35+ years in jail at trial. That's unconscionable.

That's extortion.

I think they call it 'plea bargaining' now for some reason.

To be fair it's doubtful that most of that would have actually held up in court. That woman who bullied that 13-year-old to committing suicide a couple of years ago was similarly charged under a very broad interpretation of wire fraud and was only ultimately convicted of a misdemeanor.

Though he gets bankrupted from legal costs either way for sure

Which needs to bring along with it some combination of an increase in the amount of resources the courts have to handle trials, decrease in the number of victimless "crimes", and better ways to reduce recidivism. Otherwise, the system would collapse under the weight of all of the trials and prisoners.

Agreed. The current system which, effectively, allows prosecutors to force pleas is not balanced in any manner.

Getting rid of plea bargaining doesn't make the problem better; it makes it worse by removing any compromise between walking away and the maximum sentence.

From my own experience: in mental committment proceedings, there is no halfway point between letting the defendant stay free and committing them to a mental hospital. Consequently, the prosecutor's office simply never negotiates; they take every case to trial.

> Getting rid of plea bargaining doesn't make the problem better

He didn't say that and I hope you know the difference. Reform is desperately needed.

Here's the thing: Getting rid of pea bargaining will mean every case must go to court. Since the courts are unable to deal with that many cases the prosecutors will be MUCH more selective when deciding which cases to take on. Fewer people will get charged and fewer people will go to jail.

You go to jail once you're charged, not when you are convicted. My hometown is currently running into budgetary problems and has scaled back the court system to funnel more funds to the jail housing everyone awaiting trial.

That's not necessarily better. The purpose of plea bargaining is to work the huge mass of petty criminals through the system. The legal presumption of innocence notwithstanding, these people all did the crime, and it's generally a legit crime. Getting rid of plea bargaining means that prosecutors will focus on the big fish, but also means that lower level crimes (shoplifting, pick pocketing, etc) essentially become unenforceable.

Yes, that's an issue, but allowing prosecutors to force any conviction that they want to by escalating charges is too far from just by any standard. It completely sidesteps fairness.

Beyond that, one could argue that the federal government should not be addressing petty crime at all.

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