How mandatory minimum sentences distort plea bargaining | Hacker News Reader

How mandatory minimum sentences distort plea bargaining

economist.com

151 pointsjosephby78 comments

The re-titling of this article here on HN(#) I feel misses an important point that it's trying to make. While we are all affected by the death of Aaron Swartz as a member of our community, when it comes to issues of prosecutorial / judicial excess, hackers are an extreme minority. Most victims of overly aggressive prosecution are disadvantaged racially, socio-economically, educationally, and are often addicts in need of medical treatment. Aaron was privileged in all these ways which most people in the grips of our legal system are not; and while his privileges don't lessen the tragedy of his death or the injustice of his situation, they are the reason his name has national recognition at this point. Describing the situation as "Aaron Swartz was Screwed by the War on Drugs" ignores the millions of other nameless, faceless people who have also been screwed by it. It's fine to use Aaron as an example. If his privilege can be leveraged to effect greater change in society then there is some positive to be found in it, but I get a bad taste in my mouth when I see many people limiting their concerns solely to other hackers.

(#) EDIT: The original title from The Economist has been restored since I posted this.

Well 1030(a) violations didn't used to have a mandatory minimum sentence, but they got added after congress was afraid Kevin Mitnick could launch nuclear missiles from a pay phone.

When I was charged with a 1030(a) crime, I faced a mandatory minimum of 6 months in prison. No plea bargain could reduce that. If I was convicted, I was likely facing the exact same sentence because my damages were so low that I wouldn't normally qualify for any prison time at all under federal sentencing guidelines. So the main reason to plea bargain was to avoid paying an attorney or using a public defender. It also got the case over within 6 months rather than 2 years so I could move on with my life quicker.

It could get even worse as Congress keeps wanting to increase the mandatory minimums and don't really understand the laws or the internet. http://www.volokh.com/2011/05/24/congress-considers-increasi...

The suggestions at the end of the article to remedy this are pretty lame. The author misses his own point IMHO. Do away with the whole war on drugs and legalize them, and you'll have far fewer cases crowding courtrooms. That will in turn pave the way for reform of the plea bargaining process, which becomes feasible once the case pressure is off.

In fairness though, The Economist has argued against the WoD in other articles at length over the years. They may be assuming that the reader knows this, and wish to concentrate on this one topical point of the WoD's corrosive effects.

But how will we keep our private prisons profitable?

Not to mention pay for those inflated prison guard pensions?

That's a great point -- in reality, alot of the systematic injustices baked into the system are measures taken to deal with the sea of drug cases that clog the courts.

It's at least part of the reason. There are other factors of course - one that leaps out at me is the political ambitions that many prosecutors have. In a country where being seen as tough on crime is usually a ticket to higher office, that's a problem.

I remember reading somewhere that everyone should always demand a jury trial as an act of non-violent protest. Currently, as I recall, only 5% of eligible cases go to juries. So obviously if everyone did it (or even if it only went to 10% or 15%) it would bring the criminal justice system to a screeching halt.

As I recall it was aimed at the War on Drugs, but as this article points out, unintended consequences have bleed out all over the justice system like the death scene in a B-movie.

I read about that idea, too, and it looks like an interesting way to protest. But it's also a rather expensive way to protest. Jury trials take many months (during which you may be unable to do anything productive) as well as many hours (that your lawyer bills you for). They will take even longer if the criminal justice system actually grinds to a "screeching halt" as intended. Few people can afford such an expensive method of protest.

If it all happened at once, no one would pay. The system would stop, and government would have to act. Part of the deal of government acting would be all those defendants with drawing from the jury trial.

Of course, there is always a chance that the US government would declare requesting a jury trial as an act of terror...

Why would the government have to act, simply because the system stopped? I'd assume that they'd just tell everyone, "Okay, your jury trial is on March 19th, 2843. We'll be holding you without bail until then."

There's no reason to declare requesting a jury trial a terrorist act if they can already hold everyone indefinitely.

While it's not foolproof, in the US, you do have a right to a "speedy trial".

https://en.wikipedia.org/wiki/Speedy_Trial_Clause

> While it's not foolproof,

I hereby nominated you for "Understatement of the Year".

Constitutional protection in the US is gone, full stop, and has been for a long time. The document is purely historical and "cultural", in that it does inform public opinion, but does not, in any way, constrain the government -- it's actual purpose.

Prisoner's Dilemma, though -- if you're the only guy who participates, you end up worse off. It would take a reasonably large number to tip, and you get progressively worse off until a critical value is reached, as your trial will be delayed more.

I can't help thinking the payoffs ought not to be in Prisoners' Dilemma form though; i.e. there should be a realistic chance a defendant facing a mandatory minimum sentence most juries would consider excessive might expect to be acquitted by jury nullification.

Justice should not be a market transaction for the sake of efficiency. Plea bargaining is coercive. The buyer cannot walk away. Justice cannot be built upon caveat emptor. Yet, that's what we've got. The seller may withhold material facts. The answer to a broken justice system is not more injustice.

Agreed. The whole idea of justice-as-transaction is an obscene perversion of true justice.

Maybe it should. We could have a few other suggestions:

Waive your fourth amendment rights. If a policeman wants to search you or your home, you can either let him, or force him to come back with a warrant. But if they need to get a warrant, and discover you had done something wrong, you're in for a heavier penalty.

Waive your fifth amendment rights. You have the right to remain silent. But not answering questions will get you a heavier penalty if you are found guilty.

Waive your sixth amendment rights. We already waive the right to a fair trial. Why not waive the right to counsel? If you lawyer up, you're obviously trying to obstruct justice. If you're found guilty, that's a heavier penalty.

Of course, most of those are horrible ideas. They may make it easier to lock people up, but it also makes it easier for the police and prosecution to do a shoddy job and still get convictions.

If asserting one's rights is punishable, then they are not rights.

Welcome to the reality of an expansive legal system. Sure, you cannot be punished for exercising your rights, but what that really means is that the police will try hard to find something to charge you with when you dare to stand up for yourself. It's not like you are being punished for exercising your rights, you were just punished for breaking the law.

That's often the view of the Supreme Court. But for some reason, they don't apply that logic to plea bargaining.

I completely agree that if you're the target of an investigation and force the police to get a warrant and then assert the 5A right, you're in for a world of hurt if things go south.

I do not, however, think retaining counsel will engender the ire of the police or the prosecution. If it would have any effect, I think it would be in the fact that one the whole 99.9%+ of non-lawyers would make terrible defense counsel and the prosecution would get away with things a barred attorney would be objecting to (within reason from the judge, of course).

I doubt anyone disagrees with your idealism, but take the example of a guilty man who has a small but real chance of avoiding any repercussion due to mistrial. It benefits the prosecution, the defendant, and society if there can be a way to mitigate that risk by shortening his punishment.

The real question becomes how do you propose fixing the cons that arise from this obvious benefit?

What is the obvious benefit and how are you quantifying it?

how are you quantifying it

It's a silly question, so I'll give a silly answer.

Suppose we have a man who, from the ages of 30 to 60, is likely to kill a person each year with probability 1/$age. Now suppose he's on trial for murder (a crime he is guilty of) and there's a 99% chance he spends life in prison and a 1% chance he spends no time in prison due to a mistrial. The overall probability he will kill again is ~ 0.7%

Suppose instead that we put him in jail for 10 years with 100% probability (ie, a deal that a logical actor would take facing life in prison with 99% probability) and each year he spends in jail his desire to kill decreases by a factor of 2. Now his overall probability of killing again is ~ 0.04%.

So the killer's situation has improved and society's situation has improved.

</silly answer>

Perhaps silly, but let me explain a little more. Here's the scenario I envisioned after reading your original comment:

Say you have 10 people who have committed a crime and under the current system 9 get convicted and go to jail for 10 years and and 1 gets off on a technicality. So, there's collectively 90 years of prison time being served.

Now imagine we introduce plea bargaining and offer 5 years to all those accused and all 10 take it. The conviction rate goes up, but the total amount of jail time being served is drastically down.

Now I don't know what kind of "discounts" plea deals usually offer, or what it increase the conviction rate to, but I doubt it's an "obvious" win if you're counting by the number of years convicted offenders are removed from society.

Reading your silly answer, I think you're arguing something even less "obvious", which is that willingness to commit a crime is a direct function of age. And if that's the case, and if we're measuring benefit by a decrease in one's willingness to commit a crime, well then your system makes sense because any jail time is essentially better than none because the majority of the decrease in willingness to commit a crime happens at the front end of the sentence anyways. But I think that requires a broad assumption about the correlation of age and crime.

That's a fair point. I would argue that we're not trying to optimize time in prison but benefit to society. Your argument relies on a linear(ish) relationship between the two.

Your argument depends upon omniscience. It's not silly. It's absurd.

That's why the question is silly. The absurd answer illustrates a point. Fiction can illustrate a philosophy.

The question doesn't seem silly to me. I didn't see any obvious benefit.

It took a lot of work to find a possible candidate for an obvious benefit. Yet, given the recent utilitarian turn of your comments, I doubt that a Hobbesian analysis was the basis for the claim.

You're assuming that he won't murder anyone in prison.

I would rather a guilty man gets off than an innocent being wrongly convicted every single time. Law is there to protect the innocent first, if not, then it has no purpose. The guilty and always be gotten later on, the wrongly convicted innocent is ruined for life. If the innocent cant rely on the justice system, again, it is fundamentally broken.

...rather a guilty man gets off than an innocent being wrongly convicted...

obviously. but you have to actually show that the possibility of a "plea bargain" trades one-for-one (or anything unreasonable) for your argument to be convincing.

The idea that convicting the innocent is the ultimate injustice is not an argument, it is a moral stance.

That moral stance accepts the possibility of human error to a degree which makes it impossible to meet the standard you propose.

a "jury of your peers" is no more infallible

There aren't degrees of infallibility and a jury of one's peers may be less fallible.

>Law is there to protect the innocent first, if not, then it has no purpose.

No, actually. The primary purpose of the law is to maintain order. Protection of the innocent is a highly desirable feature, but if too many of the guilty are released people look to their friends and family to deal with transgressors.

If protecting the innocent was not of the utmost importance, then a modern justice system would be a waste of resources and vigilante lynch mobs would be used instead.

The reason we don't do that is because we as a society have largely agreed that the innocent should be protected. That is the purpose of our system.

Nonsense. There are systems all over the world that give only a passing nod to protection of the innocent, and they still work because the guilty are punished most of the time.

As I said, the basic purpose of the law is to provide order.

Would you like to live under such systems? What is the distinguishing characteristics between such systems?

The recognized importance of the protection of innocents is the demarcation line between a system that maintains order, and a system that maintains order in a civilized fashion.

North Korea is one hell of an orderly country. As they embrace generational punishment, they have zero respect for the protection of the innocents. The extent to which other non-extreme examples are more civilized is the extent to which they respect the importance of protecting the innocents more than North Korea does.

>Would you like to live under such systems?

Not particularly. As I pointed out, protection of the innocent is a highly desirable feature of a legal system. But to say that "Law is there to protect the innocent first, if not, then it has no purpose" is just wrong.

Our system of laws are designed with such an intention. Clearly laws can be constructed with no such intention, though frankly I don't see the point. I think I would rather live in Somalia than North Korea.

And yet those systems still have a point, one which is more important that protecting the innocent.

[IANAL]

In common law "guilty man" has already been convicted. It is the accused who plea bargain.

[/IANAL]

But I will take a bite at your idealism and for the sake of conversation presume you are speaking of morality and forgo debating whether there is a persistent nexus between one's legal and moral responsibilities - the heart of the Swartz tragedy.

When our guilty man bargains in his interest, it is an individual choice. When the government presses for plea bargains in order to reduce the number cases which go to trial, it is a matter of policy - a policy based upon facts unrelated to the guilt or innocence of the guilty man. The policy treats the morally innocent and morally guilty identically. This should give us pause.

Our very notions of moral justice require its agents to treat the morally innocent and the morally guilty differently. An agent who treats the morally innocent and morally guilty identically cannot be dispensing moral justice. As such an agent, the government is neither moral nor immoral. It is amoral. The facts of the case cease to matter. Convictions justify the means of coercion.

I am willing to accept that some may see this as an "obvious benefit" - e.g. Thomas Hobbes accepted the amoral government as the least worse among the alternatives and with such a sovereign, the morally guilty man bargaining for a lesser sentence is always just:

  "A Mans Covenant Not To Defend Himselfe, Is Voyd."

Of course, given Hobbes view of morality, we may be better just sticking with the legal sphere:

For Morall Philosophy is nothing else but the Science of what is Good, and Evill, in the conversation, and Society of mankind. Good, and Evill, are names that signifie our Appetites, and Aversions; which in different tempers, customes, and doctrines of men, are different...

Here I was, thinking the we wanted to eliminate the risk of an innocent man who accepts a plea bargain because he fears that he will lose a trial. That happens all the time, far more frequently than guilty men being released due to a mistrial.

Society is actively harmed when innocent men accept plea bargains and admit (falsely) to committing a crime. People lose their faith that the justice system actually protects them when their friends are all imprisoned despite having done nothing wrong. Take, for example, the widespread fear among the police of a public with lots of cameras -- it's not that the majority of cops are worried about their corruption being caught on camera (most cops are not corrupt), it's that they fear that a recording of their actions will be edited to make it appear that they were corrupt. Only someone who has lost their faith in the criminal justice system would engage in such an act, and such people have lost their faith because they keep seeing people go to prison without receiving a trial, regardless of guilt of innocence.

The petition asking for Steve Heymann's firing still lacks 14.500 votes, and it won't make it in tome at the current rate. From what I read he was more instrumental than Ortiz in the aggressiveness the prosecution.

https://petitions.whitehouse.gov/petition/fire-assistant-us-... No need to be a US citizen to sign. An email address is enough.

Once again, sorry for insisting, but I think it's important.

Not that the witch hunt is very useful in itself, but it keeps people involved and the more shit we stir, the most likely things will move.

This doesn't solve anything. Most people could give a crap about Ortiz getting fired. She's a symptom of the problem. Firing her doesn't cure the disease.

> Most people could give a crap ...

I suppose you meant "couldn't".

As written above, I'm well aware that getting rid of them will not solve the problem. It's more about making noise (which is all I can do from Europe regarding US politics).

Yes, thanks for the correction.

But you have to start somewhere. There's never going to be a silver bullet that fixes the system. Because some people (the ones in power) do not consider the system to be broken.

To say the prosecutors directly involved in this case do not hold any responsibility is quite shocking. Throwing your hands up and saying "it's not my fault it's the system" is a complete BS excuse in my view.

These prosecutors and even MIT staff (among others) had on multiple occasions the opportunity to alter the course of this case. Law enforcement and the justice system is not, and in my view should not be a massive array of machines coldly executing laws and prosecuting offenders without any variance.

Sometimes while seemingly unfair to the individual simply "doing their job", prosecuting a "cog" or part of this apparently flawed system of justice can be the impetus for change and send a message to the others to use proper judgement when deciding to pursue cases and what charges they actually bring.

I didn't say that at all. I'm just more interested in real change vs. a witch hunt.

Just as the government can make an example of a person -- the people can make an example of a government representative.

Firing her would give other prosecutors a reason to think twice about aggressively pursuing a case. Something along the lines of, "Ortiz was fired over this sort of thing; maybe I should not try to abuse the law the way she did."

It might be overly optimistic to think that, but really, the government needs an occasional reminder that it serves the people and that angering us is a bad idea.

I was innocently reading this article, hearing my own internal voice in my head, when all of a sudden Serj Tankian screamed "mandatory minimum sentences" at me...

Yeah, and this song from The Wire soundtrack made me think the same thing: http://www.youtube.com/watch?v=SgBq_feHYQ4

For anybody not familiar with how messed up the war on drugs is, these are both great primers: http://www.breakingthetaboo.info/

http://www.thehouseilivein.org/

End the war on drugs, relieve all the unnecessary burden on the courts, and then end plea bargaining.

Ending plea bargaining first would imply the end of the war on drugs. This nation would be unable to continue without its courts, and if plea bargaining ended, our courts would be overwhelmed within a day. Politicians would have no choice but to let drug offenders go free, because they would otherwise have to deal with a population that is asking why murderers and child rapists are not being arrested or prosecuted.

From the end of the article: "A more sensible idea would be to require the state to provide the defence with all its evidence—particularly any exculpatory evidence—during the plea process, rather than simply during or before trial."

There are a lot of pro-and-con arguments about charge bargaining (determining by negotation before trial what charges will be filed) and plea bargaining (determining by negotiation before trial what charges will be pleaded guilty to, to minimize the uncertainty of BOTH sides about the result at trial). Yes, in general the defense bar would like a world in which fewer charges can be brought, because there are fewer crimes defined by statute, and pleas of guilty are less costly, because fewer charges result in severe sentences. The criminal prosecution bar would like a world in which charges and pleas reflect the general reality of who is causing societal harm (as society currently defines that) without massively burdensome trials. The general public just want to do what they feel is right, untroubled by people they think are wrong-doers (to them).

The Economist, a publication I generally like to read (I subscribe to the print edition) tends to take a position that "decriminalization" (their word choice is not usually "legalization") of many currently illegal drugs would be a helpful social policy around the world. That may be. Richard Branson's blog post "Time to end the war on drugs" from a little more than a year ago about Portugal

http://www.virgin.com/richard-branson/blog/time-to-end-the-w...

suggests that Portugal's policy of decriminalization with administratively mandatory treatment

http://www.rollingstone.com/culture/lists/top-10-marijuana-m...

reduces drug use in Portugal while reducing burden on the criminal justice system.

Coming back to the submitted article's last suggestion, "A more sensible idea would be to require the state to provide the defence with all its evidence—particularly any exculpatory evidence—during the plea process, rather than simply during or before trial," it is mandatory in the United States for the prosecution to share its evidence with the defense before trial. Failure to do that can result in the reversal of a conviction. But a defendant like Aaron Swartz was able to lawyer up enough, and do enough pretrial investigation, to be quite aware of what exculpatory evidence was on his side. He had other channels for protesting about the issues that concerned him, and he had the choice before him of doing what Thoreau, Gandhi, and King did of protesting a law he thought was unjust by publicly accepting imprisonment for it after a trial. Even after criminal law reform, there are still going to be people who think that their approach to solving personal problems shouldn't be subject to criminal sanctions, with laws still being on the books against their overt behavior. This problem of many possible charges and a drive on both sides in the criminal justice system to bargain can be reduced, but it cannot be eliminated, maybe especially in cases like that of Aaron Swartz.

In Portugal, the panel that oversees non-criminal drug cases doesn't have the ability to mandate treatment. From Richard Branson's blog post, "Under Portugal’s new regime, people found guilty of possessing small amounts of drugs are sent to a panel consisting of a psychologist, social worker, and legal adviser for appropriate treatment (which may be refused without criminal punishment), instead of jail." The Wikipedia article has some more information http://en.wikipedia.org/wiki/Drug_policy_of_Portugal#Regulat...

I don't think all prosecutors are as idealistic as you suggest. It seems that some of them are more concerned with scoring points for their political career than they are with who or what is causing actual societal harm. Of course, that might have something to do with how their incentives are structured.

At a federal level criminal defendants face increased sentences if they do not plea out. Even worse, criminal defendants will get hit with additional charges. So the choice is, either admit guilt, or we will throw every charge we can at you. Due to weakening of double jeopardy laws, defendants often first get prosecuted at a state level and then can face similar charges at a federal level. The system gives too much power to a prosecutor, whose only measure of success is number of convictions, and who will face no penalty for wrongful conviction. Lost evidence is also a problem, but I think it is secondary.

Yes, in general the defense bar would like a world in which fewer charges can be brought ... The criminal prosecution bar would like a world in which charges and pleas reflect the general reality of who is causing societal harm ...

Seems like you are spinning things here. Even if we are generous and say all the prosecutors in the end only, sincerely want to keep all the dangerous criminals off the streets, it easy to expect that they'd want a very large number of charges available so they would have tremendous leverage to force plea-bargaining without the inconvenience of a trial - a situation which many people would say more or less already exists today.

In Re: Richard Branson;

One person told me years ago that the problem with drug use is a simple case of society. The way the laws are set up now encourages more drug use because you are a rebel for doing them. In places like Amsterdam or Portugal, you are not a rebel: you are sick. No one wants to be sick. That simple shift in attitude, he believed, would be enough to drop drug use significantly.

I think I agree with his logic.

"Prosecutors will always wield a great deal of power in the American criminal system; but before a defendant agrees to plead guilty, he ought to know whether the state holds four aces or a busted flush."

I am not a lawyer, so I'm shocked to learn that you can plead guilty to a crime without the opportunity to review all of the evidence against you.

Perhaps you should take a closer look at the justice system. What typically happens is that you are offered a plea bargain, and if you refuse to take it, the government will add more criminal charges to the case. There have even been cases where the government delays prosecution until a convict is released, and then arrests him and sends him right back to court.

The ultimate problem here is an overly expansive legal system, which is made worse by an obscenely powerful executive branch of government. We are desperately in need of reform, but we are a nation that is populated by right-wing law-and-order types, and whose politicians are mostly from that same category (yes, that includes the Democrats, who have no aversion to using paramilitary police teams to serve search-and-arrest warrants and who appoint people like Carmen Ortiz).

Interesting. I think part of the fundamental problem is that more criminal activity advances the careers of people who work in the criminal justice system.

They have an incentive to turn small crimes into big ones. Then they cry about how much crime there is. Then they demand harsher penalties & laws to criminalize more things.

This is a positive feedback loop. The system has gone out of control.

we are a nation that is populated by right-wing law-and-order types

You do realize that trial lawyers vote overwhelmingly for Team Blue, right?

And that the legal profession as a whole votes overwhelmingly for Team Blue?

And that law schools themselves are overwhelmingly Team Blue voters?

I get the whole "Red Team supports putting (their idea of) moral laws into the legal code", and that sucks, but the law problem exists because both teams are pushing it down the wrong track. Don't for a second think you can just blame flyover country for the current state of the legal system.

...so you think a party whose prominent politicians have a history of:

* Using drone strikes to kill citizens who never received a trial

* Sending paramilitary police teams in to raid medical marijuana facilities, at an accelerated rate, to promote the interests of friendly business partners

* Negotiating secret trade agreements that promote the interests of another group of friendly business partners

* Spend more on the military than on education

* Ignore the expressed will of the people

* Arrest opposition candidates who attempt to sit in the audience at presidential debates

* Continue the expansion of executive power

* Pass, and sign into law, a bill that allows indefinite imprisonment without trial

...to not be right wing? Oh, right, they support the right of gay people to marry. Congratulations, while gay people get to marry, the rest of us can be shot by soldiers serving a search-and-arrest warrant because a suspected drug dealer used to live at our address (or maybe not, whatever).

I assume "right-wing" is a synonym for Red Team, and "left-wing" a synonym for Blue Team.

But your point is a good one: both teams support some appalling legal and military policies against their own citizens.

Economist David Friedman has a good take on it. Athenian justice had a way to deal with this issue.

http://daviddfriedman.blogspot.com/2013/01/overcharging-aaro...

Terrible journalism on this issue makes me really angry.

First sentence:

> AARON SWARTZ , who committed suicide two weeks ago, had been arrested for illegally downloading millions of articles from JSTOR, an archive of academic journals.

Dead wrong.

Not sure what's so completely wrong about that statement. Though I learned in journalism school that you should always say "allegedly" after the phrase "arrested for"...I figured the Economist, based in London, would be even more uptight about that given their libel laws.

He wasn't "allegedly" arrested for downloading files illegally. He was never accused of or charged with copyright infringement. He was accused of various forms of "hacking" and trespassing.

> had been arrested for illegally downloading millions of articles from JSTOR

The OP, as you pointed out, says illegally downloading. The illegal part, ostensibly, comes from the alleged "hacking". There is nothing about copyright infringement implied here, though yes, that's the natural connotation of "illegal download"

You just did the equivalent of a user calling tech support saying "my computer doesn't work".

Reply on news.ycombinator.com