4 ms·

Unfortunately, this isn't really practical. - It requires solidarity by criminal defendants, many of whom will go to jail for a long time absent a plea agreeme

Unfortunately, this isn't really practical. - It requires solidarity by criminal defendants, many of whom will go to jail for a long time absent a plea agreement. It is literally, the prisoner's dilemma. - Absent posting bail, you stay in jail until you go to trial (which can be a long time in a scenario where everyone is in fact going to trial). The "excessive bail" clause of the 8th Amendment, in practice, has been eviscerated. Bail is routinely set so high that the only way it is affordable is to pay a bondsman. This means that it's easy to punish people prior to a trial for exercising their rights. A stay in jail prior to trial can be as or more destructive than being convicted - you likely lose your job, your housing, possibly custody of your children, all without any process. The judicial system has ~ a thousand years practice at maintaining control and getting the outcomes (overall) that the State desires. It is not a simple matter to "force" it to do anything.

tibbon 15y ago
Additionally, this doubts the ability of the US Justice system to keep up if its pushed. Yes, its already pretty slow and inefficient, but most other countries would probably think that it would be impossible to prosecute and detain as many people as the US already does. Just because its hard to imagine scaling the system up even more, doesn't mean they couldn't scale it. Politics around "we need more jails to keep dangerous criminals away from your children" almost always result in more jails and more prosecution. Logic rarely prevails. I feel confident that the US would just attempt (unfortunately) to double their capacity.
- monsterix 15y ago
  "Logic rarely prevails" --> That comment reminded me of a piece on incarceration: http://www.pluggd.in/incarceration-the-extreme-end-of-social-media-a-worldwide-challenge-297/ http://www.pluggd.in/incarceration-the-extreme-end-of-social... Isn't it surprising that there are so many ideas floating around to disrupt Hollywood, transform other forms of Governance, disrupt traditional business models but no-one talks about forcing change in law/judiciary itself. At best, a startup would talk about saving a few hundred dollars in legal fees through some free advice/content on Google. Why is this so?
  - unimpressive 15y ago
    I don't know. One of my "frighteningly ambitious startup ideas" would be a product that lets one man fight an army of lawyers and legal red tape. That way the bar to sue competitors out of existence raises dramatically. Dramatically enough to give start-ups a chance of actually defeating entrenched monopolies with large legal teams.
    - nkassis 15y ago
      Does something like legal insurance exist? I mean for most small start-ups having a lawyer and money to pay him when needed might be hard but I imagine most don't have problems with this all the time and pooling money to pay for lawyers when needed might be possible. Just an idea.
    - neilk 15y ago
      That's fascinating... but how? Short of AI I don't see how automation helps. It's illegal to practice law without a license, so you can't find some dramatically lower-cost way to do legal advice and advocacy either. Perhaps insurance against red tape? Like a retainer fee, but built to scale up to zillions of clients.
      - GFischer 15y ago
        I've read here that there have been studies on Legal AIs: http://news.ycombinator.com/item?id=2380043 http://news.ycombinator.com/item?id=2380043 Some comments are quite disheartening: "It seems that we want to think of a world that is logical and populated with verifiable facts. However, the world of the lawyer is fundamentally illogical (as are most humans most of the time) and facts only exist when either agreed to by the parties or determined by judge or jury. This observation that "legal logic" is not quite the same as traditional rational-thought logic has led to an interesting "legal reasoning" subfield of AI over the past decade or so (with some precursors dating back further) that tries to formalize exactly what logic it is following, and how it differs from traditional rationality. That area develops alternative logics, reasoning procedures, etc., in order to do things like simulate case outcomes, suggest possible arguments to make, evaluate alternative strategies, etc. Until relatively recently many people did think that the right way to make a legal reasoning system was to treat the law as logical rules, and the legal reasoning problem as a problem of rational inference over rules+evidence... which turns out not to be that accurate an account of how law actually operates."
- DennisP 15y ago
  But it would cost a lot to scale it, so voters would have to accept a lot more taxes and/or debt. Most states are in financial difficulty already.
campnic 15y ago
I think this assumes that there is no concerted effort by a group of people to be arrested. If a group of people had this mission in mind and committed a crime to become incarcerated in an already overwhelmed part of the US, wouldn't that be enough to start? I think the issue is that the word defendant carries a connotation of guilty. Even reading some of the comments on the article, people are saying that people should feel lucky to get a plea deal. Its baffling to me how it can be seen as acceptable to threaten life in prison to get someone to take a guilty plea with probation. As an innocent person I don't think I could risk it with my family hanging on the balance.
mindslight 15y ago
Here's a glimpse at a root of the problem: > Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). "eviscerate" it? That surely couldn't happen - courts are bound to reasonable jurisprudence. So clearly we'll either end up directly fixing the problem, or we'll have to modify the constitution, which is serious business, and would clearly have to be done right. Except we already know what will happen: > The Supreme Court ruled that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment. Two unquestionably wrong decisions for the purpose of expedience - what's a third? Of course courts grant themselves ever-more power! But NYT spins it as if this system were actually accountable to the poor soles [sic] caught up in it, perpetuating the false hope that it's possible to swing for the fences and change the government from within its rules.
- rprasad 15y ago
  The punishment for theft historically was (1) execution, (2) then whipping, the stockades, or some other physical abuse, and (3) more recently, imprisonment. Consequently, in the historical scheme of things, imprisonment is considered humane under the Constitution. More recent SCOTUS decisions are starting to swing toward more humane imprisonment terms, but it may be a long time before SCOTUS actually rules on this issue. Progress will come from the state and local levels.
  - philwelch 15y ago
    You know, whipping and stockades might have been more immediately abusive, or cynically speaking, more visible to the outside world, but at least they were brief. I wouldn't be surprised if it turns out the psychological and physical harm of long-term incarceration was actually worse. (It might be more effective, on account of the criminals being physically restricted from committing crimes in the outside world, but it might also be more damaging.)
DavidWoof 15y ago
Sure, it's prisoner's dilemma, but one in which a small number of defectors doesn't affect the outcome, while in classic prisoner's dilemma there's a competition to be the single defector. In this case, there's no necessary advantage to being an early defector. In fact, the best strategy is to hold out rejecting the plea until the very last minute, forcing the prosecutors to compete in offering better and better deals to handle the disruption. And even late defections serve the purpose of disrupting the system. So you don't need the complete cooperation that classic prisoner's dilemma requires, but you do need some threshold of cooperation. If you had some high profile support along with significant community pressure, something along the lines of the "stop snitching" campaign, it could probably be done.
- DennisP 15y ago
  So it's a collective action problem, but not exactly prisoners' dilemma. Collective action problems can sometimes be solved. And there's another factor: everything is local. You don't need collective action across the entire U.S., just within a particular jurisdiction. That starts to make it look more feasible. You'd start with the most vulnerable jurisdictions...those where the author states it would disrupt the system if only two or three times as many people insisted on a jury trial. From that group, select the places with the populations most annoyed at the system. Focus there and start heavy promotion. Build a community effort. The very act of doing that will help build community ties, a nice side effect. Once you succeed in the most vulnerable district, move on to the next. Each success will improve your odds of further success, since it will change people's perceptions of risk.
rmc 15y ago
Ah now, the judicial system is much better now than it was 1,000, 500, or 200 years ago. It's still not great, but it's getter better.

tibbon 15y ago

Additionally, this doubts the ability of the US Justice system to keep up if its pushed. Yes, its already pretty slow and inefficient, but most other countries would probably think that it would be impossible to prosecute and detain as many people as the US already does. Just because its hard to imagine scaling the system up even more, doesn't mean they couldn't scale it. Politics around "we need more jails to keep dangerous criminals away from your children" almost always result in more jails and more prosecution. Logic rarely prevails. I feel confident that the US would just attempt (unfortunately) to double their capacity.

monsterix 15y ago
"Logic rarely prevails" --> That comment reminded me of a piece on incarceration: http://www.pluggd.in/incarceration-the-extreme-end-of-social-media-a-worldwide-challenge-297/ http://www.pluggd.in/incarceration-the-extreme-end-of-social... Isn't it surprising that there are so many ideas floating around to disrupt Hollywood, transform other forms of Governance, disrupt traditional business models but no-one talks about forcing change in law/judiciary itself. At best, a startup would talk about saving a few hundred dollars in legal fees through some free advice/content on Google. Why is this so?
- unimpressive 15y ago
  I don't know. One of my "frighteningly ambitious startup ideas" would be a product that lets one man fight an army of lawyers and legal red tape. That way the bar to sue competitors out of existence raises dramatically. Dramatically enough to give start-ups a chance of actually defeating entrenched monopolies with large legal teams.
  - nkassis 15y ago
    Does something like legal insurance exist? I mean for most small start-ups having a lawyer and money to pay him when needed might be hard but I imagine most don't have problems with this all the time and pooling money to pay for lawyers when needed might be possible. Just an idea.
  - neilk 15y ago
    That's fascinating... but how? Short of AI I don't see how automation helps. It's illegal to practice law without a license, so you can't find some dramatically lower-cost way to do legal advice and advocacy either. Perhaps insurance against red tape? Like a retainer fee, but built to scale up to zillions of clients.
    - GFischer 15y ago
      I've read here that there have been studies on Legal AIs: http://news.ycombinator.com/item?id=2380043 http://news.ycombinator.com/item?id=2380043 Some comments are quite disheartening: "It seems that we want to think of a world that is logical and populated with verifiable facts. However, the world of the lawyer is fundamentally illogical (as are most humans most of the time) and facts only exist when either agreed to by the parties or determined by judge or jury. This observation that "legal logic" is not quite the same as traditional rational-thought logic has led to an interesting "legal reasoning" subfield of AI over the past decade or so (with some precursors dating back further) that tries to formalize exactly what logic it is following, and how it differs from traditional rationality. That area develops alternative logics, reasoning procedures, etc., in order to do things like simulate case outcomes, suggest possible arguments to make, evaluate alternative strategies, etc. Until relatively recently many people did think that the right way to make a legal reasoning system was to treat the law as logical rules, and the legal reasoning problem as a problem of rational inference over rules+evidence... which turns out not to be that accurate an account of how law actually operates."
DennisP 15y ago
But it would cost a lot to scale it, so voters would have to accept a lot more taxes and/or debt. Most states are in financial difficulty already.

campnic 15y ago

I think this assumes that there is no concerted effort by a group of people to be arrested. If a group of people had this mission in mind and committed a crime to become incarcerated in an already overwhelmed part of the US, wouldn't that be enough to start? I think the issue is that the word defendant carries a connotation of guilty. Even reading some of the comments on the article, people are saying that people should feel lucky to get a plea deal. Its baffling to me how it can be seen as acceptable to threaten life in prison to get someone to take a guilty plea with probation. As an innocent person I don't think I could risk it with my family hanging on the balance.

mindslight 15y ago

Here's a glimpse at a root of the problem: > Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). "eviscerate" it? That surely couldn't happen - courts are bound to reasonable jurisprudence. So clearly we'll either end up directly fixing the problem, or we'll have to modify the constitution, which is serious business, and would clearly have to be done right. Except we already know what will happen: > The Supreme Court ruled that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment. Two unquestionably wrong decisions for the purpose of expedience - what's a third? Of course courts grant themselves ever-more power! But NYT spins it as if this system were actually accountable to the poor soles [sic] caught up in it, perpetuating the false hope that it's possible to swing for the fences and change the government from within its rules.

rprasad 15y ago
The punishment for theft historically was (1) execution, (2) then whipping, the stockades, or some other physical abuse, and (3) more recently, imprisonment. Consequently, in the historical scheme of things, imprisonment is considered humane under the Constitution. More recent SCOTUS decisions are starting to swing toward more humane imprisonment terms, but it may be a long time before SCOTUS actually rules on this issue. Progress will come from the state and local levels.
- philwelch 15y ago
  You know, whipping and stockades might have been more immediately abusive, or cynically speaking, more visible to the outside world, but at least they were brief. I wouldn't be surprised if it turns out the psychological and physical harm of long-term incarceration was actually worse. (It might be more effective, on account of the criminals being physically restricted from committing crimes in the outside world, but it might also be more damaging.)

DavidWoof 15y ago

Sure, it's prisoner's dilemma, but one in which a small number of defectors doesn't affect the outcome, while in classic prisoner's dilemma there's a competition to be the single defector. In this case, there's no necessary advantage to being an early defector. In fact, the best strategy is to hold out rejecting the plea until the very last minute, forcing the prosecutors to compete in offering better and better deals to handle the disruption. And even late defections serve the purpose of disrupting the system. So you don't need the complete cooperation that classic prisoner's dilemma requires, but you do need some threshold of cooperation. If you had some high profile support along with significant community pressure, something along the lines of the "stop snitching" campaign, it could probably be done.

DennisP 15y ago
So it's a collective action problem, but not exactly prisoners' dilemma. Collective action problems can sometimes be solved. And there's another factor: everything is local. You don't need collective action across the entire U.S., just within a particular jurisdiction. That starts to make it look more feasible. You'd start with the most vulnerable jurisdictions...those where the author states it would disrupt the system if only two or three times as many people insisted on a jury trial. From that group, select the places with the populations most annoyed at the system. Focus there and start heavy promotion. Build a community effort. The very act of doing that will help build community ties, a nice side effect. Once you succeed in the most vulnerable district, move on to the next. Each success will improve your odds of further success, since it will change people's perceptions of risk.

rmc 15y ago

Ah now, the judicial system is much better now than it was 1,000, 500, or 200 years ago. It's still not great, but it's getter better.