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Comment by swombat | Hacker News Reader

Looking at the other side of the coin, perhaps also worth asking (even if the answer is a negative):

Given what we know about the coercive nature of the plea system in the US, which frequently forces people to plead guilty even when they're innocent, to avoid a very expensive, long, and likely "unhappy-ending" trial, is it possible that these FBI agents are actually innocent and simply being coerced into filing guilty pleas to turn 20 year sentences into 5 year sentences?

I mean, this is almost a banana republic we're talking about here after all. What was the percentage of people putting in guilty pleas who are innocent? I can't find the article but I recall it was quite high. If we apply this line of thinking to people we like, we should also apply it to people we don't like.

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I assume the number you're referring to is from Judge Jed S. Rakoff's editorial: http://www.nybooks.com/articles/archives/2014/nov/20/why-inn... ("How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent...")

So between 92% and 98% of the time, plea bargaining gets things right. The "beyond a reasonable doubt" jury trial standard is unlikely to be more than 95% and is in practice probably 90% or lower: http://federaltaxcrimes.blogspot.com/2014/09/proof-beyond-re.... So if the 2-8% error rate is correct, it's not clear that plea bargaining leads to more innocent people being convicted than jury trials.

Moreover, it's unclear to me that you can do much better than 90-95% accuracy. Say you set the threshold at 99.9%, only convicting when the proof is overwhelming. What would be your rate of false negatives (i.e. where you let a guilty person go)? And how would society react to that? There's a false negative rate beyond which people will push back on the court system as being too lenient on the accused. You can already see this in areas of the law where proof is difficult. For example, I think the crazy administrative proceedings for rape cases in college campuses arose, in part, because of the difficulty of holding guilty people accountable in the court system.

How does that rate of between 2 and 8% innocents jailed compare to other countries?

It would seem to be terribly high, if you take the number of people in jail in the USA as an input and you work out the numbers that comes down to 2% of 2.3M which is 46,000 and 8% of 2.3M which is 184,000!

I'd be curious to see those numbers. I'd imagine the U.S. justice system is far more widely studied than that of other countries.

http://www.worldcat.org/title/wrongful-conviction-internatio...

That should have something in it that allows comparisons to be made.

That's crazy, total Canadian prison population (which is at an all time high) is 15000 people. Granted, it has 10% of the population, but you're saying there might be, per capita, more innocent people in American jails than people in Canadian prison.

The U.S. puts about 600,000 people per year in prison: http://www.bjs.gov/content/pub/pdf/p12tar9112.pdf. In Canada, it's 90,000: http://www.statcan.gc.ca/pub/85-002-x/2014001/article/11918/.... The definitions of "custody" might not be quite the same, but on a per capita basis that's roughly 50% more in Canada.

See: http://www.nytimes.com/2008/04/23/world/americas/23iht-23pri... ("If lists were compiled based on annual admissions to prison per capita, several European countries would outpace the United States.")

What differs is that we keep them there much longer. Cocaine trafficking will get you a few years in Canada in most provinces, versus 5 years minimum in the U.S. and potential 10 or 20 depending on quantity and prior convictions. There is no three strikes law in Canada. In the U.S. many states will give you a life sentence for three violent felonies (in California, even three non-violent felonies).

In custody doesn't even necessarily involve being charged.

"Q: How many men and women are in a Canadian prison on a given day? A: In 2010/2011,on a given day 38,219 adults [1] and 16,279 youth (aged 12 to 17 years) [2] were in custody in Canada (federal and provincial), for a total of 54,498 inmates.

2,818 were in custody in British Columbia’s provincial correctional system. [1] 13,758 were in federal custody. [1] In total, just over 24,461 adults were admitted to provincial or territorial jails in 2010/2011. [1]

However there were only 10,916 admissions into provincial or territorial custody to serve a sentence. The difference is accounted for by the number of people held in remand while awaiting their trial or sentencing.[3] "

http://ccphe.ubc.ca/resources/general-information-on-canadia...

That at least answers the question, even though it doesn't agree with what I read earlier.

"The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent."

I'm sorry but you are quoting an article that doesn't give a proper citation for this at all, so please don't rely on these probably woefully underestimated numbers. I'd be happy to have it pointed out to me if I missed their source though, but for now;

What few criminologists? How do they know there are only a few? Did they do a survey or what papers are they basing this on?

This lack of sourcing undermines the rest of your comment, not to mention you imply that the jury trial standard is "90% or lower" when you don't even specify that what you link is related to tax crimes only...

"Moreover, it's unclear to me that you can do much better than 90-95% accuracy."

Again, you basically smushed these numbers in to fit your narrative, and they are not reliable at all, so your entire argument falls flat.

" What would be your rate of false negatives (i.e. where you let a guilty person go)? And how would society react to that?"

In a society that values the principles of law and the rule of law, it is better to let a guilty man go than an innocent one, given that they should be innocent until proven guilty. Unfortunately our society seems less and less inclined to care about the rule of law, so I'm guessing "society" wouldn't give a fuck about a few more guilty people being let free, just like they don't really seem to give a fuck about innocent people being jailed.

Sorry if I'm being to negative, I just really don't understand where you were trying to go with your comment and it's bad statistics. Feel free to elaborate and correct me.

> I'm sorry but you are quoting an article that doesn't give a proper citation for this at all, so please don't rely on these probably woefully underestimated numbers.

Underestimated?

They're already huge!

Exactly, I saying they are larger than even the "huge" numbers let on.

I referenced the Rakoff article because it was on HN recently and is very likely the one 'swombat was referring to in his comment. The editorial by Judge Rakoff was against plea bargaining, and the judge is a scholar of criminal justice, so I think it's reasonable, for the purposes of HN discussion, to use the 2-8% figure with a qualifier as I did ("if the 2-8% error rate is correct").[1]

You also misinterpreted the contents of my link. It's on a tax crime blog, but the text is clear that the author is talking about perceptions of the reasonable doubt standard in general ("In a criminal tax prosecution, just as any other criminal prosecution, the Government bears the burden of proving guilt beyond a reasonable doubt.")

> In a society that values the principles of law and the rule of law, it is better to let a guilty man go than an innocent one, given that they should be innocent until proven guilty.

Every heuristic system of decision will have false positives and false negatives. You can ensure zero false positives, but at the cost of 100% false negatives. If you have any criminal justice system, you'll put innocent people in prison. The social debate is just about how many you're willing to put in prison to reduce the false negative rate to a socially acceptable level.

[1] This exchange in the New York Book Review regarding Judge Rakoff's editorial is also worth reading: http://www.nybooks.com/articles/archives/2014/dec/18/plea-ba.... It contains letters from Robert Swartz (Aaron Swartz's father), and Judge Michael M. Baylson, as well as a response by Judge Rakoff.

"I think it's reasonable, for the purposes of HN discussion, to use the 2-8% figure with a qualifier as I did ("if the 2-8% error rate is correct")."

I understand that, and what I am saying is that I don't care if the person who wrote the editorial was a judge or any other person, his numbers aren't cited in any way shape or form and are left to rest completely on his laurels. That's fine for an op-ed, but you then latching onto those numbers, even with a qualifier, still undermines your position on the matter.

"You also misinterpreted the contents of my link."

Indeed, I seem to have focused too much on the tax crime angle, so I'll cede this point, but I still think that the numbers backing your linked blog are dubious, eg;

"In one study of his 10 of his colleagues by Judge Weinstein..."

"In a larger survey of federal judges throughout the country... Of the 171 judges who responded"

"ther attempts at empirical studies of these issues show that judges and suggest that jurors are all over the lot on the issue."

All I am saying is this: Show me the empirical studies and not the hugely biased numbers from some small pool of judges being asked how they rate their average conviction probability.

Sorry for the haste and missteps in my original comment.

While I concede the limitations of the data I relied on, I think they're illustrative of the general point. You, on the other hand, have provided zero evidence, empirical or anecdotal, for your conjecture that a high percentage of people pleading guilty are innocent.

Your bias comment also makes no sense. The bias in Judge Rakoff's article, to the extent it exists, is to cite higher than a 2-8% number because he's arguing against guilty pleas. And in the surveys the bias runs in the opposite direction: to make the reasonable doubt standard seem more stringent than it actually is. A judge saying that he only requires 75% probability of guilt to sustain a conviction is contrary to his self-interest.

It's not just the error rates. Criminal trials are enormously expensive. Every time an accused person goes to trial on incontestable facts, they are taking resources away from people have been accused without facts or law backing the prosecutors up. The results are an even more kafka-esque nightmare for the innocent accused, who must wait in holding cells for court dockets to open up to make time for their exoneration.

I recently defended a Client for a misdemeanor charge for violating his DUI hardship Drivers License restrictions (allowed driving for work, school, groceries, ect...). It was sad really, Client was a flight attendant, in uniform, arrested right outside the airport catching an international flight (had docs in hand). At the sounding I announced ready for trial and waived jury trial. The Judge berated the poor prosecutor like a child, "you do know you have to prove the charge right? I have never seen such a waste of tax payer dollars." She was right, but I couldn't believe the Judge said that or the prosecutor didn't move to have her recused, I even stuck up for the prosecutor, saying he was smart and fair with me but his hands were tied by his supervisors, and ultimately on trial day the prosecutor got supervisor approval to dismiss. But imagine what a waste of time/money if the trial went forward, especially if I elected trial by jury.

The problem is that our system is incredibly racist and classist. Here's an example of a teenager who spent 3 years at Ryker's Island before his trial: http://www.newyorker.com/magazine/2014/10/06/before-the-law. If he had plead guilty, he would have spent _less_ time in prison. The poor don't get to sit at home and wait for their trial, they get to sit in prison and wait for their trial. The rich get to go home and live their lives while their lawyers push back.

In case you didn't see it, there's an unhappy update to that story: http://www.newyorker.com/news/news-desk/kalief-browder-1993-...

I hope to see heads roll over this. Some have spent more time in pretrial detention than their maximum potential sentence would have been if found guilty. I don't understand how this could go on for so long when we have a 6th amendment.

That's so sad. I don't know what we expect from our jails but it's pretty plain that it either hardens or breaks people.

Which way do you want to have it? Kalief Browder endured the kafka-esque nightmare product of an overburdened criminal court system. Plea bargains keep 95+% of the overall case load out of that system. You can have less plea bargaining and more court overhead, or you can have more plea bargaining and fewer delays for trials.

There is a huge problem with the US criminal court system (I personally think it's almost entirely product of ludicrous oversentencing, the product of the 1970s-1980s "war on crime"). But I don't think it's helpful to point fingers at parts of the process that are unrelated to those problems.

> You can have less plea bargaining and more court overhead, or you can have more plea bargaining and fewer delays for trials.

That sounds like a classic false dichotomy. How about less plea bargaining and more resources for the courts so they don't have require massive delays to deliver justice.

I doubt you'd feel the current system was just if you experienced what Browder went through. How about a little empathy.

Can I ask that before accusing me of lacking empathy you read my whole comment, and not just the part you disagree with? I certainly don't think the current system is just. I simply disagree with you about the best way to fix it. In particular: my argument is that your proposed fix will actually make things worse for the Kalief Browders of the country.

It'll only make it worse for the accused if we stop (as we have) enforcing the right to speedy trials. The real problem is that there aren't any downsides for prosecutors when they overreach.

It's perfectly fair that they get a pass for presenting society's side in a trial but when they get to wield plea bargains for the sole benefit of their own career it's nearly privateering.

Sure, but again, I think that's a consequence of absurd sentencing laws --- laws that are not in fact even reflective of how offenders are sentenced, but leave prosecutors with wildly inflated sentencing parameters to use as negotiating leverage.

There is a third option, of course - make laws sensible again and don't prosecute people for petty crimes that don't really hurt anyone (or the society) (Aaron Swartz, most drug-related crimes, ...).

Yes, that's what I think the right solution is too. I think the reason people get prosecuted for petty crimes is that our current sentencing laws have raised the stakes for both sides to nosebleed levels.

I think if we dialed sentences back to reasonable levels, a huge fraction of offenders would be able to plead out to non-custodial sentences, and because their BATNAs would be improved, people facing marginal charges would have a much easier time squaring off against prosecutors who would be much more likely to back down if a trial win was still likely to do little more than produce a probation sentence.

It's worth remembering though: most people incarcerated in the US are not incarcerated for drug crimes. Domestic violence and property crimes appear to dominate US metro incarcerations.

I think you misunderstand the problem. If you can afford to buy your way out of jail, you have a much easier time awaiting your trial. This isn't about plea-bargains vs trials, it's about properly setting bail so that everyone has the same opportunity to post bail and await for a fair trial at home.

I had a some what similar issue in immigration law a number of years back. In short, my Client was convicted of a crime in NJ, after serving the sentence, he was detained by ICE and transferred to Krome Detention Facility in Miami, FL. He sat there for over 18 months detained waiting for the removal (deportation) proceedings, there are no speedy trial rights in deportation.

The real irony here is before I took the case, the Client tried to waive the proceeding motioning the Court for voluntary departure [1], basically agreeing to pay his own way back to his home country without trial, but ICE objected because they wanted to win at trial and have my Client barred from reentry. The twist is, without an attorney my Client won the trial because by law was clear the underlying crime did not subject my Client to removal proceedings...and of course without any legal justification ICE appealed which is around the time I took the case pro bono...after everything my Client still wanted to just voluntarily leave the Country, forego the appeal just to get the hell out of Krome/detention and even having lost the trial ICE and not much of a chance on appeal, against my advice I motioned again for Voluntary Departure and ICE still objected.

[1] http://www.uscis.gov/tools/glossary/voluntary-departure

It's definitely very possible, though I have two cautions.

1) Police do not take investigating their own lightly and thus most likely have very strong evidence.

2) I don't know the details of these fellows' careers, but presumably they know procedure, know good defense attorneys and would be far more capable of assisting in their own defense than the average citizen.

The evidence is pretty damming. There are emails that various Bitcoin companies have released publicly showing how these two agents tried to extort them. The way the investigation started to begin with is because they were reported to the authorities by an exchange for acting shady that links them to the transactions in the blockchain and the block chain doesn't lie.

Hey, if it gets crooked cops booked that's one of the best arguments for Bitcoin that I know of.

It kills me that our legal system is like this. You should never has to "give in" simply because you face a harsher sentence if you exercise your right to defend yourself. I don't see why our justice system simply lowers sentences or fine individuals rather than tacking on ridiculous sentences.

their trial was delayed so that the Silk Road trial defendant could not have counterpoint to offer in defense..seems like that move points towards that the fed gov thought agent was guilty

Would you be coerced to plea guilty knowing you were innocent?

Apparently that's very common in the US. Innocence is certainly no guarantee you'll win in the US criminal court system.

Absolutely. Litigation is ruinously expensive and prosecutors have an almost flawless conviction rate. When you're placed in such a shitty situation where you get the choice of ruining your life a little and ruining your life a lot(and possibly your family and friends' lives as they try to help you along), it's not as cut and dry as "would you plead guilty knowing you were innocent". People do this every day. It's why prosecutors pile charges on, and it works.

> prosecutors have an almost flawless conviction rate.

This is because anytime there is an absolute chance they'll lose, they drop the case.

And if the case is less than a 100% guaranteed slam dunk, they'll ask for a plea so it'll never go to trial.

Prosecutors cherry pick their trials. It's not possible for every prosecutor everywhere to keep a 98%+ average trial conviction rate in a normal system.

Sounds like sensible and desirable behaviour to me. You might even call it "normal".

Edit: I'd really like to see how all the downvoters would like to defend their stance. It's obvious that prosecutorial misconduct is not happening when prosecutors abandon cases that are marginal, but when they are harassing people they don't have a chance of getting convicted.

Well I didn't downvote you, but: "Desirable behaviour" would be for a prosecutor to seek truth, not conviction. That's what I would call "normal". And guess what: there are countries in this world where prosecutors think like that: they are glad to drop charges as soon as they see someone's innocent.

That's exactly what I've written.

Unless you want to assume that the court is so broken, it will willy-nilly convict innocents.

But then it doesn't matter much what the prosecutor does, then the justice system is utterly broken.

You don't have to assume; paying attention would suffice.

Racial disparities, emphasis on victimless crime, asset forfeiture, prison overcrowding, and oh, the fact that USA has a much higher incarceration rate than any comparable polity ever in the history of the human race.

A justice system is broken when people break the rules and subvert the intent of the system. But most of what you're pointing to is, instead, conscious policy choices.

E.g. a society is generally entitled to criminalize activities it does not want people to engage in. That some other people may perceive the crimes as "victimless" is neither here nor there. I'd imagine that very few people convicted of drug crimes are not in fact guilty of those crimes, because the evidence in those cases is usually overwhelming (e.g. caught with physical product in hand).

Similarly, the U.S. has had about 5-10x the murder rate of, say, the U.K., going back probably a century or more, long before the recent rise in incarceration rate. So the fact that the U.S. has a high incarceration rate does not by itself mean that innocent people are being put in prison.

Very little about American policy is "conscious" at the level of us simple citizens. Ignoring that, this is a neat morsel of sophistry! The hundreds of thousands of people who are imprisoned in USA, who would be free in any other nation anywhere ever, aren't "innocent". And why not? Because we define them to be guilty. Ingenious!

Except criminal justice policy is uniquely conscious at the level of citizens. Judges and prosecutors are elected local officials in most states. Three strikes laws were passed by public referendum in places like California. Polls show 80%+ support in favor of keeping hard drugs illegal.

And anyone is ever guilty only because we define it to be so. In the state of nature, robbing a store and killing the clerk is simply the stronger animal exercising its free will over the weaker. And if robbery is illegal because we say so, I fail to see how the robber is less guilty of the crime because one country punishes him with 3 years in prison while we punish him with 10.

It's not just us who consider robbery and murder to be crimes. Every criminal code in history has done the same (although there are often exceptions carved out, especially for murder in the service of the sovereign), and some have even instituted more severe penalties for these actual crimes than we have.

I don't see "don't smoke or sell pot" anywhere in the Ten Commandments.

The judge/jury/overall process seek the truth. I do not consider that the role of the prosecutor at all. I don't think legal philosophy aligns that way either?

This is one of the core debates in legal philosophy: Do you want a adversarial or inquisitorial system? Different countries come down on different sides and most legal systems exists somewhere on the continuum. The US adversarial system is far from universals.

I think it's a bit different in the United States, but in my country (D), for example, prosecutors have detailed guidelines how to proceed.

For one, they are obligated to investigate any exonerating evidence and circumstances, and any exculpatory circumstances. All of this must be revealed fully to the court and the defense, prior to the main trial.

For another, they must only charge when they believe that a conviction is more probable than an acquittal ("my chances are at best 20%, but let's see how it goes" would be clear misconduct).

In practice, the conviction rates are more than 90%, for sure (if you count a conviction for a lesser crime).

As a prosecutor once told me: trials can be freak events. After listening to the witnesses firsthand, or after some dramatic revelation, everything can look much different than it looked in the file. But other than that, they almost always win at least partially.

And another reason is workload. Apart from really high profile, highly publicized cases, resources are extremely limited and prosecutors mostly try to close the files.

Prosecutors should be focused on justice. They should not evaluate themselves, or be evaluated on, the narrow metric of conviction rates. Sometimes doing their job properly should mean being allowed to change their minds, to admit that maybe they're prosecuting the wrong person, or to conceive that the interests of justice are best served by a lighter or suspended sentence. And this is how it works in most of Europe; magistrates are entirely independent, and not beholden to political pressures or to the court of public opinion.

Every case a prosecutor takes and fails to convict is an instance in which the state inflicted harm on a citizen that was later proven to have been unjustified.

Sometimes that's a risk worth taking, but not often. Acquittals are a bad thing.

Humility is never a bad thing. Better to own up to your mistakes than to keep going out of pride.

I'm not clear why this comment was downvoted either, except perhaps that you mentioned being downvoted, which is a downvote magnet.

But I think you're right: I think it's desirable that prosecutors let go of most cases in which they're not confident of a win. That's called "prosecutorial discretion". If caseloads are high, we want them working on the clearest-cut violations --- maybe with some public policy stretch cases sprinkled in.

That is 100% correct.

Let me rewind a little bit in my own life. I probably could have fought my charges a little more, but the risk outweighed the reward. You go to trial and anything can happen. Was I 100% innocent, no. Was I 100% guilty, no. But because at the time I was arrested my co-defendant had disappeared (I believe he is still wanted but I have never followed up and the past is the past to me) the focus of the prosecutor at that moment in time was squarely on me. The prosecutors offered me a plea that was almost too good to turn down. Looking back, and after talking to a bunch of people, I probably should not have taken the plea, but you can't go through life second guessing your decisions.

Knowing what I know now, IMO, the better your plea deal the less confident the prosecutor feels about the case. I was looking at a minimum 10 year sentence. I took a plea for one year supervised probation. I took the plea for several reasons. First, going to trial would have cost me at bare minimum $50,000-60,000 in attorney costs (contrary to popular belief your ability to obtain a public defender is based on your income, and assets you have access to, and I did not qualify). As it was I had already spent close to $12,000 on attorneys. The second reason I chose the plea over trial was that going to trial would have been a long, drawn out process where the result may or may not have gone in my favor. You are putting your life in the hands of a judge or jury. In the end my decision to take the plea boiled down to cost and knowing that within 1 year I would be done with everything and could move on with my life. If I had gone to trial, it would have cost a lot more and at the time I was finishing probation I would probably just be going to court. I took it as an easy way to lick my wounds, learn from my experience, and put my life back on track quickly.

Funny side story of it all. When I first started discussing costs with my attorney I asked him what his thought was on total costs. He replied that there were two questions he had for me in determining cost. First, did I want him to play golf with both the judge and the prosecutor, or just the prosecutor. And, the second question was how many games of golf I wanted him to play with them. I laughed and told him as many as it takes. Looking back part of me thinks he may not have been joking. Our legal system is full of I'll scratch your back, you scratch mine scenarios.

> First, did I want him to play golf with both the judge and the prosecutor, or just the prosecutor. And, the second question was how many games of golf I wanted him to play with them.

Reminds me of the time I was learning to drive a stick shift in west texas. My dad was in the passenger seat, and was giving me tons of grief for rolling through a stop sign while paying too much attention to the clutch.

We stopped at a gas station, and a local cop pulled into the pump next to ours. My dad, to tease me, asked the cop how much a ticket for rolling through a stop sign would be.

The cop said "About $100. But let me give you some advice. If you offer the officer the $100 right then and there, you'll save a lot of time and paperwork, and your insurance won't have to find out about it, which can save you more in the long run. It really pays to keep some extra cash in your car."

My dad went poker-faced and said "Thank you for the advice", and then he drove us back home and said "Forget everything that man said.

If you're innocent, by the time you get to pleading, the system has already proven to you that it doesn't work. Even assuming no misbehavior (e.g. planted evidence), the police found you guilty enough to investigate, a judge found you guilty enough to arrest, and a prosecutor found you guilty enough to charge. Why would you gamble and dare think the trial in such a system would work any better?

Yes, that's the whole issue. Many times people are offered deals that look better than the ridiculous sentences they will get if they happen to lose. If you don't have a strong alibi, it's tempting to take the deal.

There was an article on HN recently about a young man who spent nearly a year in jail, waiting for trial. Basically the prosecutor came to him,said "look, you can plead guilty, they will give you a 1 year sentence, take into account that you've been here for a year, you will be released and home within a week. Or, you can go to trial, which can go for months, and then you might end up with a 3-5 year long sentence".

What would you do in this situation? Even if he was completely innocent, the temptation to go home right now, to end the nightmare, must be absolutely huge. I can only guess that there are thousands of people like this in US.

I have been. The prosecutor knew I was innocent too, but didn't care. It was a choice between paying court costs and having a suspended sentence hanging above my head, or potentially getting 3 years in prison. As a black 19 year-old in a white court in Arkansas, the smart choice was obvious.

That's totally disgusting.

Hang on, what is the evidence you have we're talking about a 'banana republic' or that the people who plead to stealing bitcoin did not, in fact, steal bitcoin but I don't know, did something else that involves not-stealing bitcoin? What is your plausible alternative theory of 'some bad actors stole bitcoin'?

Chinese purchase real estate in the US because of the strength of the rule of law. The US borrows money at low rates because investors know it will be paid back. Swombat thinks American is a banana republic because he can't see past his own hate.

I have literally no idea what you're talking about.

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