I'm sure he sees absolutely nothing weird in that. The Spanish Inquisition managed to get similar rates. I'm very surprised the Dutch (as in: my) government is agreeing to this extradition. It's very well possible that this is in part because of the current animosity between Putin and the rest of the world.
It's quite possible the guy is guilty but Ari Baranoff is on the record as having said that he will not be given a fair trial.
If this were a discussion of Japanese conviction rates based primarily on (coerced) confessions or something like that, then yes, a 99.6% conviction rate would be suspicious. But you have to remember two things here:
(1) 99.6% is not that much higher than the usual federal prosecution rates (I think they get a net of ~96% when I looked it up a few months for a different discussion),
(2) and when Baranoff says “We don’t build our cases on one piece of evidence. Our cases are built on evidence that is curated over many years. We take our time to build these cases to make sure we have them right.” (the part you didn't quote), he's not kidding. That's exactly what they do with cyber-crime cases. They spend years investigating an organization or figure, flipping people, running markets or forums, extracting records from ISPs and Amazon and Google, and so on and so forth. Look at the whole tangle of carding cases in the 2000s with cardingplanet/shadowcrew/etc. For that matter, look at the Ulbricht Silk Road case right now - the agencies involved spent years busting random vendors, looting people's emails (eg Ashley Barr's Gmail was searched on only the vaguest possible suspicion), flipping multiple employees... Read the trial transcripts if you have a few days to spare.
If anything, I'd say that a rate of 99.6% says bad things about them, but for an entirely different reason than you: because it implies that they're inefficiently overdoing their cases, goldplating them & gilding the lily.
A particular instance I'm privy to the details of was a friend accepting a bargain on a resisting arrest charge (it probably got reduced to a more minor charge in the bargain) that only led to community service (and probation), when the reality is that the police officer had assaulted the defendant and they were covering it up. It simply wasn't worth the risk of going to jail and the certainty of financial trouble for him and his kids to fight the city on it. But the city got a conviction against a troublesome black, or whatever euphemism they're using these days, and didn't have to admit wrongdoing on the part of a police officer, so all good, right?
I'm not saying all plea bargains are bad, I'm just saying that the US makes suspicious use of them and some of them have been noted to be abusive (eg, that they charge ridiculous things for the trial and agree to plea down to what the charges should've been in the first place).
I view this as semi-rampant prosecutor misconduct, rather than a fundamental problem with plea bargains, though plea bargains make this kind of misconduct easier, if not otherwise policed.
I'm of the opinion that trials should be system where both sides should be allowed to put as much money as they want into a trial, but that they need to put that money into a pot that is divided equally between the defense and prosecution. You cannot have justice when there is financial asymmetry.
This would allow trials to be as cheap or as expensive as necessary to determine the truth. It provides a great disincentive for either side to pour money into the process if they know they are in the wrong going into a trial.
In your proposed system, what's the incentive that prevents the guilty accused from allocating infinite resources to their case? Why not do that? These are people who've drawn off-suit seven deuce in the poker game of justice. What would they have to lose?
Absolutely nothing, and that's just fine.
Let them have their day, even 10 days in court. If they're guilty it will still stick. If not they should walk, no matter how long it takes to get to that point.
The way to deal with the overload is a many pronged problem, for one you could decide not to have so many crimes on the books, second you could decide which crimes are to be dealt with using fines and which are to be dealt with using prison time, and prison time could be seen as a measure of correction rather than one of punishment or revenge.
That would mean that there would be a lot less prisoners and that in turn would upset a whole pile of applecarts but on the whole that's not a bad system to have.
At least you won't have 1% of the population (and 2% of the adult population) behind bars which is generally considered to be a good thing because it takes people out of circulation causing a domino effect into the next generation. Kids of convicts are more likely to become convicts themselves.
http://www.tdcj.state.tx.us/gokids/gokids_articles_children_...
Compromising the right to a fair trial on cost basis because you're scared the 'guilty accused' will hog the system has a much higher cost in the longer term.
I will happily pay taxes to support a justice system that gives the accused every opportunity to prove their innocence.
An arbitrary cut-off is indeed a strange thing to have, probably some element of practicality went into designing it. Where I live there are a number of courts where one can appeal, I personally think that the ideal would be a court where no conviction would ever be overturned should be the cut-off. We're definitely not there and that system isn't perfect (nor will it likely every be), but it is one of the reason why I am mordicus against the death penalty.
Too many cases got overturned many many years later and in plenty of those cases the accused had already been executed. See also: project innocence.
Justice systems will always be imperfect but regardless of that we should strive to improve them and find better ways to release those that are innocent as fast as possible (and, incidentally, to make them whole).
The state and its functionaries should definitely not be rewarded on metrics that might disadvantage the innocent.
Besides, what is the downside for prosecution (as individual) for a wrongful convictions?
The innocent accused are paying the steepest price today, they end up pleading guilty, lose their livelihood, rights, and lots more.
If the system would grind to a halt it would grind to a halt for everybody, not just for the guilty. And maybe that would allow for a better system rather than one where might makes right and the amount of money you can muster for your defense is the biggest factor in determining the outcome.
You make it seem as if the plea bargaining system is used as an efficiency gain where those that 'know they're guilty' are going to plead guilty and all those that know they are not are going to have their day in court. If that were the case I would not have a problem with it, alas it is very far from the truth.
Increase burden on court system: decrease resources allocated to the innocent accused.
So they serve a sentence they shouldn't be serving and they end up being branded convicts for life.
Have a read:
http://www.nybooks.com/articles/archives/2014/nov/20/why-inn...
You're also very happy to mis-frame my point, repeatedly suggesting that I believe there's no meaningful injustice in the status quo. That is not what I believe. I've been pretty clear about the fact that there is a significant problem that urgently needs correction. It's just not exactly the problem you care about, and so you caricature my points to try to win the argument.
Once again: regardless of how often the innocent accept bogus plea agreements, those innocent who choose to fight their cases are greatly harmed by a system that eliminates plea bargains.
So plea bargaining as we see it at present does not appear to help those innocent who fight their cases. Because it's all about winning for the state, not about guilt or innocence.
That has always been bullshit, the way you and most of the Internet are misusing this quotation.
Why 10 to 1? Why not 1 to 1 or 1e100000 to 1?
This ratio is purely arbitrary.
Obviously, if you really followed through with the gist of your argument, we should never convict anyone, because better to let everyone go than miss the one injustice in a thousand years.
Unless you can make a case for a specific ratio, 10 to 1 has no special meaning.
The quotation only argues that the balance should be biased towards aquittal. Nothing more.
They do now, but I think it's still different from our system: http://ir.lawnet.fordham.edu/ilj/vol34/iss2/5/
Their court system, however, has some fundamental differences from ours.
My understanding was that plea bargains are criticised in the context of being offered as an alternative to fighting the case against a very significantly tougher sentence, so that you might win but you're much worse off if you lose. The criticism is then that there is certainly duress - not literally forcing your hand, but forcing a choice that is unreasonable given the nature of the crimes and (so is the claim) encourages confessions by people that are innocent or even just an overall sentencing distribution that ends up being a bad fit for the crimes.
I could have understood wrong previous discussion of this though, or perhaps the problematic cases are not widespread.
Adding an alternative is not coercion.
This means that instead of justice being about truth finding it ends up being about conviction rates, which is gamifying the justice system in a way that is very detrimental to society. Couple it with such things as three strikes laws, http://en.wikipedia.org/wiki/Prison%E2%80%93industrial_compl... and a system that is punitive rather than corrective and you have a major problem.
Plea bargaining could be put to good use but in practice it is used as a means of intimidation and to short-circuit the justice system.
It's not simply the existence plea bargains that is coercion, I don't think anyone would argue that, and it's easy to find situations where plea bargains can be good things.
But, this is not the point of the criticism - it is also easy to think of situations where plea bargains could be used to distort justice rather than to make it efficient. Wikipedia has a good discussion of this at https://en.wikipedia.org/wiki/Plea_bargains#Controversy .
You can disagree that these criticisms are a problem in practice, that is fine and something that could be discussed, but you must recognise that plea bargains could in principle be used in a coercive way, and that many people fear that this happens in practice.
What is the substantial difference of facing a possible 50 years for breaking some law, vs facing a possible 50 years for breaking some law (but we'll give you 10 if you plead guilty)?
The penalty faced, the court case, none of that changes because you have a prosecutor that says "you face (max sentence) if you go to trial" - which is a factual statement, judges have great leeway in setting sentences between minimum and maximum within the guidelines.
So again, where's the coercion? The fundamental dynamic of a person pleading their case in court, with the possibility of a lot of time in prison if they lose, has not changed due to the existence of the alternative.
Aaron Swartz was in trouble the moment the system got ahold of him, not the moment the prosecutor said he could be facing the maximum sentence in prison.
Even if they win it will leave them bankrupt.
From your words it is almost as if you think that there is no cost for the defendants associated with accepting the plea or the existence of the plea, but in real life there most definitely is. All of the resources of the system can be brought to bear on those few that have the temerity to refuse the plea.
I would be much more okay with plea bargains if the system required that the prosecutor only allow you to plea to charges they had filed against you, and refused to allow them to file more serious versions of the charges once they offered a bargain, ie, that the bargain was exclusively setting the terms of the sentence for the crimes you were being charged for in exchange for not forcing a trial to determine your guilt.
The problem arises when you view the system dynamics as a whole. The government using plea bargains to minimize the number of cases that go to trial (over 96% of the cases never go to trial). That allows them to spend significantly more on each case that does go to trial. That significant expenditure increase dramatically increases the likelihood of a guilty verdict.
As much as we would like to believe than the amount of money spent by each side doesn't truly determine the outcome of court cases (and elections, patents applications, etc), that would be naive. It's similar to why we need public defenders to ensure a fair trial.
The result is a situation where a minority of cases go to trial, the government virtually always wins them (in large part due to having spent more money on them). That success rate is used to frighten everyone else into taking plea bargains, which reinforces the system.
Just to prove this, imagine if the rates were reversed and 96% of people went to trial. That increased case load would significantly hinder the ability of the prosecutors, and the conviction rate at trial would decrease dramatically. This would then encourage people to go to trial more, causing a reinforcement effect in the other direction.
I'm not necessarily advocating that everyone go to trial and increase the costs of prosecution because the pendulum might swing too much the other way and our justice system could fail to secure important guilty verdicts.
I do think that there is a massive asymmetry currently between public defenders and prosecutors that is to the detriment of society (exploding prison populations, devastated inner city communities, etc). This system of plea bargains is a large part of this asymmetry due to its effects on per case resource expenditure).
This would be an interesting economics / criminal justice model to create. Creating a simplified, theoretical model on the effect of expenditure on verdict, and then using game theory to find the equilibrium plea bargain rates and predicted number of incorrect verdicts (both false positives and false negatives).
What's the role "plea bargaining" plays here? He could legitimately be facing a double-digit custodial sentence no matter how cooperative he is.
> He could legitimately be facing a double-digit custodial sentence no matter how cooperative he is.
That's roughly the problem right there.
For all I know he's as guilty as they come. But on the off chance that he's not guilty there is an extremely large chance that that will never be taken into serious consideration because of the plea bargaining system. It basically makes the justice system a casino where the house wins when you refuse to play and will likely win bigger when you do.
Do you truly believe that a Russian 'hacker' on American soil in the current political climate will be given a fair trial?
A 20 year old street level cannabis dealer caught with a couple eighths could be faced with a plea structure requiring them to choose between a felony guilty plea with a 6 month custodial sentence, or a trafficking conspiracy indictment with double-digit years attached to it. That is an unjust predicament to put the accused in†.
This person isn't a 20 year old street level cannabis dealer. If this person is guilty, they are guilty of a spectacular offense. What role does plea bargaining have in this case?
† The problem isn't the plea bargain, though: it's the outrageous sentence attached to the more severe charge.
As for whether or not this person is guilty, my point is that even if he is not he will likely accept a plea bargain because the alternative will be one that is unacceptable.
That means his guilt won't enter into the equation at all, it's not as if he's going to win even if not guilty in an all-out confrontation with the DOJ, which is likely exactly what will happen if he does not accept, aka being made an example out of.
Whether or not he's a 20 year old street level canabis dealer or someone guilty (partially guilty?) of a spectacular computer crime (which we all know carry penalties roughly in line with similar non-violent white collar crimes) shouldn't make any difference in principle.
How is that dilemma happening in a case where someone is being accused of stealing, for profit, millions of identities? Wouldn't the injustice of the outcome be inverted if a plea deal, secured for the purposes of burnishing the prosecution's career stats, let the accused off with a slap on the wrist?
Agreed.
> How is that dilemma happening in a case where someone is being accused of stealing, for profit, millions of identities?
> How is that dilemma happening in a case where someone is being accused of stealing, for profit, millions of identities? Wouldn't the injustice of the outcome be inverted if a plea deal, secured for the purposes of burnishing the prosecution's career stats, let the accused off with a slap on the wrist?
You mean like in this case:
http://www.slate.com/blogs/future_tense/2014/11/28/hacker_fi...
That's only a couple of months ago.
Though I highly doubt this case will be as extreme.
Second: as always, the media refuses to report on the real sentencing structure used in these cases, and instead negligently repeats the fallacy that like charges in felony cases are served consecutively, which is not the case. Ken White at Popehat --- a former prosecutor and no friend to the prosecutorial status quo in the US --- explained this brilliantly here:
https://www.popehat.com/2013/02/05/crime-whale-sushi-sentenc...
A conviction on all forty-four of the felony charges Salinas faced might still not have produced a custodial sentence, depending on the accelerators applied during sentence. First time offender? Minimal damage? No profit motive? Probation is a possibility. The sentencing guidelines are a Google search away, FWIW.
Once again, you haven't actually presented an argument for how plea deals have harmed the process of justice in this case.
We'll have to wait for a bit for that, he's appealing the extradition to the EU court.
And if and when he's extradited to the US then you'll be able to see for yourself if you think he gets a fair trial.
It's an order of magnitude better, which is mildly startling. Instead of losing 40 out of 1000 cases, they're only losing 4 out of 1000 cases. That... would be suspicious change in most statistics.
You're quoting a prosecutor, not a judge. The prosecutor absolutely should be 99.9% convinced of the guilt of the accused! Otherwise, they're taking flyers at the expense of people they themselves believe might be innocent.
Anyone who has ever suggested --- rightfully! --- that prosecutors should exercise more discretion in the cases they bring is arguing that prosecutors should be more confident about the guilt of the accused.
So that's post conviction, not prior to.
Put it differently: a prosecutor with a low conviction rate has demonstrably inflicted tremendous costs on many ultimately innocent people.
How could a low conviction rate possibly represent justice?
Is that claim about the Inquisition conviction rates based on some source?
This is a diversion, but according to what I've read, Spanish Inquisition was a lot better than its reputation, which is largely a myth (about torture etc).
http://www.crisismagazine.com/2011/the-truth-about-the-spani... says nothing about conviction rates, but it says about torture something that probably surprises people:
"Modern researchers have discovered that the Spanish Inquisition applied torture in only 2 percent of its cases. Each instance of torture was limited to a maximum of 15 minutes. In only 1 percent of the cases was torture applied twice and never for a third time."
The next time you catch yourself typing a sentence like "Modern researchers have discovered that the Spanish Inquisition applied torture in only 2 percent of its cases," read it first, then hit Post if you still think it's appropriate. Especially if the sentence you're typing is a quote from "Crisis Magazine: A Voice for the Faithful Catholic Laity."
I'm not Catholic, I'm not Spanish. I have no axe to grind except truth. Earlier I read a lot of stories about how bad the Inquisition was. That 2 percent figure is certainly less than what I had expected based on the myths I heard previously. Overall, I think it is unfair to use the Inquisition as a particularly heinous example of juridic cruelty and oppression, if it actually wasn't bad for its times - comparing it to today is anachronistic.
Wikipedia: "As with all European tribunals of the time, torture was employed. The Spanish inquisition, however, engaged in it far less often and with greater care than other courts." A couple of sources are given for this.
Anyway, I'm just curious to know if the Spanish Inquisition's conviction rate actually was 99.6 %, or something like that?
It's simply a matter of using different sources appropriately to research different subjects.
Edit: And another thing. Here in the US, we can't even agree on what constitutes "torture" now, much less assign precise frequencies of occurrence to acts that might or might not have been considered "torture" at the time of the Spanish Inquisition. Attempting to boil down a complex historical picture to a simple numeric figure like "X tortured people 2% of the time, while Y used torture in 5% of trials, therefore X was better" is a fertile ground for fallacy.
I'm also curious if someone has good sources pointing out that the conviction rate of the Inquisition really was 99.6 %.
But of course, if we go back to cybercrime, a conviction rate of 99.6 % may be indicative of two different things: either the courts will convict almost any and every prosecution, or then only rock-solid cases are even prosecuted. I tend to think that it's mostly the latter: a small proportion of all cases is ever prosecuted, but those cases are then so clear regarding "what happened" that conviction rates are high. It is then another matter "what it means", i.e. the facts are not disputed but the interpretation of law is, and this is why convictions may be repealed on appeal.
Imagine: If we only tortured 2% (assuming your statistic is correct) and we did that in such a way that the word got around, don't you think that would have a positive effect on the ratio of accused that would immediately capitulate and sign anything to avoid the torture?
I think 2% is on the high side, those must have been extremely brave people. And those that survived the first round of torture without a confession apparently were given a second helping to see if that changed their minds.
I'd love to know more about that 0.4% and what those trials did to them and how destroyed they were financially when all was said and done.
Why would a free society do this? Mainly because taking people to trial is hard and costs alot. If the plea rate dropped from 97% to 95%, the courts and prosecutors would be overwhelmed. The few politicians that have dared to introduce legislation lowering maximum sentences (which would have an effect on the guilty plea rate) have almost universally been eviscerated at the polls, so this situation is unlikely to change in our lifetimes.