5 ms·

The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted. This is loo

by refurb 3y ago

The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted. This is looking at it backwards. It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence. That distinction makes a difference. The way the author looks at it is like how the government look at spending cuts. "Last year my budget went up 20% and this year it's only 10%, so you're cutting my spending by 10% next year??".

LightHugger 3y ago
It makes a difference in that one way is a useful psychological manipulation and one is not. There is no difference in the way you seem to suggest.
- refurb 3y ago
  How is offering a lesser punishment "manipulation"? As a defendant, it's simply a choice - "Do I think I can beat this case?". If you don't think you can, then you take the lesser punishment. If you think you can beat it, you decline it because the better choice is "no punishment at all".
  - emmelaich 3y ago
    Because it encourages the threat of a far greater punishment.
  - KingMob 3y ago
    > How is offering a lesser punishment "manipulation"? It's part of a larger manipulative pattern. Since you can increase the penalties for jury convictions to absurd levels, like the USA has done, even a "lesser" plea bargain punishment can still be more punitive than most nations' jury conviction punishments. Plus, as the length of a jury conviction punishment increases, the threshold at which one's willing to risk a jury trial has to go up, thus pressuring people into taking plea bargains they might not under another country's judicial system.
    - refurb 3y ago
      > Since you can increase the penalties for jury convictions to absurd levels What? Juries follow the law and the prescribed punishments. Maybe you're thinking of civil penalties?
      - watwut 3y ago
        Juries do not decide punishments. They are often times NOT allowed to even know what punishments are (the thinking is that they would be more likely to acquit when those punishments would feel too hard for them).
        refurb 3y ago
        They do in some cases. But your response misses the point entirely. How can a prosecution threaten a longer sentence when they don’t determine it?
        watwut 3y ago
        > How can a prosecution threaten a longer sentence when they don’t determine it? They do determine it in plea guilty process, actually. That being said, what they primary do is to manipulate charges - they add or remove charges to get the sentence they want. That process has nothing to do with what you actually done or not done. Charges are made big if you want trial. Charges are small if you accept plea guilty. For practical purposes, prosecutors are key decision makers.
  - southerntofu 3y ago
    It's not just "can i beat this case"? It's also, "how much will it cost me?" and "how long will i stay imprisoned for before i'm found not guilty?". Of course, there's the chance you're found guilty although noone would dare say you committed the crime (Leonard Peltier), or the chance that you'll submit to much harsher punishment than what was decided by the judge (Georges Ibrahim Abdallah). But even when you're white and you're not facing a political repression case, there's a good chance pleading guilty for a fine and a suspended sentence looks better than spending a whole year in jail awaiting the trial that will exonerate you. There's plenty of research in that area, feel free to look it up. https://www.npr.org/2023/02/22/1158356619/plea-bargains-criminal-cases-justice https://www.npr.org/2023/02/22/1158356619/plea-bargains-crim...
  - dcminter 3y ago
    Would you prefer a 10% chance of a death penalty or a 100% chance of a 1 year prison sentence? Exaggerated, but it makes the point clear.
ajb 3y ago
Given that 97% of convictions are based on plea bargains, why would you imagine that sentencing is calibrated based on the 3% jury trials? There are obvious political incentives for this not to be the case, given how much voters are annoyed by convicts getting off lightly. Also, the main point is that confessions based on threats are much poorer evidence of guilt than a proper trial.
- refurb 3y ago
  > Given that 97% of convictions are based on plea bargains, why would you imagine that sentencing is calibrated based on the 3% jury trials? Because that's not how you measure options. If I'm collecting a debt of $1,000 from you, and I come to you and say "hey, if you pay it this week, I'll settle for only $700", would you say "This person is stealing $300 from me!"? Of course not. You always owed $1,000. This is an offer to pay less. Just like those charged with a crime always faced a specific punishment. If you offer a lesser punishment, it's not a threat of a harsher punishment because you always faced it, even if plea bargains never existed.
  - thaumasiotes 3y ago
    This isn't related to your earlier comment. You originally claimed this: > It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence. The plea bargain is an offer of a "lesser" sentence, where "lesser" refers to a comparison to the trial sentence. It is not a comparison to the trial sentence from a counterfactual world in which plea bargains don't exist. As ajb points out, given that all US sentences derive from plea bargains, the sentence associated with a plea bargain already is the sentence that is felt to be appropriate for the crime. In the counterfactual word, you'd expect the counterfactual trial sentence to be about equal to the real-world plea bargain sentence.
    - refurb 3y ago
      > the sentence associated with a plea bargain already is the sentence that is felt to be appropriate for the crime That's not true. Plea bargains can be incredibly minor punishments versus the crime. Plea bargains are the flip side of the prosecutions options. If the prosecutor thinks it's a slam dunk, they have little incentive to offer a plea bargain at all - if they do, it may be a very severe sentence. If the prosecution thinks their odds of a win are low, they may offer a very lenient sentence, even for very serious crimes. But who goes to trial comparing their outcome to other trials? A individual is looking at a specific situation - their own trial. They have no idea about the circumstances of other trials - whether defendants were truly innocent, or how much evidence the prosecution had. You may be charged with murder, and another defendant got a plea bargain of only 1 year in prison for manslaughter. But the prosecution has a rock solid case so your plea bargain is life in prison. It's a singular decision of the defendant, usually with input from their lawyer. They'll need to determine their own likelihood of being found "not guilty" and decide if the risk is worth it versus the reduced sentence being offered.
throwaway290 3y ago
> It's not a threat of a "more severe sentence", it's a threat of a default sentence The "default" is updated when you learn about plea bargain... You are now comparing options relative to plea sentence. If the best option "walk free" is uncertain even if you're not guilty (what if the other guy has a better lawyer or something) then plea sentence is the best certain option.
eviks 3y ago
The default sentence depends on the charges, charges depend on the persecutor, which are motivated to increase those to get the easier deal of a plea bargain, so it is exactly the much higher cost of a trial and a higher risk of a more severe sentence that is the selling point for the accused if you don't look at it backwards
- refurb 3y ago
  But the prosecutor doesn't decide the sentence. The judge or jury do. And prosecutors need to be careful. If they go for a more serious charge, but can't prove it, the defendant may be found not guilty when they would have been found guilty of a lesser charge (this happened to me on a jury - we found them not guilty of 1st degree murder, but likely would have found them guilty of manslaughter, but that wasn't an option).
  - eviks 3y ago
    Not really, there are mandatory minimums and various sentencing guidelines, so the judge is not doing completely random stuff independent of the charges the prosecutor brings. And you example is a bit backwards: the trial happened after the plea bargain failed, so this has little effect on the threat to bring more (or more serious) charges, but even if it does: the "careful" sub-range is still measured in multiples/years, so a huge risk
    - refurb 3y ago
      sub-range is still measured in multiples/years, so a huge risk And the plea bargain is what? It’s often not that different. You might go to trial facing up to 10 years (but your lawyer says 5 is likely) or a plea bargain to 4.
      - eviks 3y ago
        Yes, if your made up numbers are 1 year apart, you won't see much difference The "careful sub-range" is what affects the likely 5 number ("careful" in that it doesn't allow the lawyer to call bs on the charge and say that the likely sentence is now lower since there is a higher likelihood of not being convicted), not the not very relevant maximum of 10
southerntofu 3y ago
I feel like you are looking at it backwards. When the prosecutor proposes a plea bargain, it's usually because they don't have enough proof to get a proper conviction through a juge/jury, or at least it is so here in France. A plea bargain is used to convict innocent people, by giving them a choice between a plea punishment, and the punishment of having to go through pre-trial detention and various forms of abuses before being able to prove their innocence. That the entire police-justice system works by treating you as guilty until proven innocent is crazy and is in itself a very strong sentence. That is, unless you are rich of course in which case pre-trial detention is likely non-existent and you can commit most crimes and get away with it.
- watwut 3y ago
  Majority of cases are settled by plea bargain 96% or something like that. It is used whether there is evidence or not, because it is fast and cheap.
rambambram 3y ago
There is - at least on paper - a big distinction between a prosecutor and a judge. It's called 'trias politica'. Maybe you should look it up.

by refurb 3y ago

LightHugger 3y ago

It makes a difference in that one way is a useful psychological manipulation and one is not. There is no difference in the way you seem to suggest.

refurb 3y ago
How is offering a lesser punishment "manipulation"? As a defendant, it's simply a choice - "Do I think I can beat this case?". If you don't think you can, then you take the lesser punishment. If you think you can beat it, you decline it because the better choice is "no punishment at all".
- emmelaich 3y ago
  Because it encourages the threat of a far greater punishment.
- KingMob 3y ago
  > How is offering a lesser punishment "manipulation"? It's part of a larger manipulative pattern. Since you can increase the penalties for jury convictions to absurd levels, like the USA has done, even a "lesser" plea bargain punishment can still be more punitive than most nations' jury conviction punishments. Plus, as the length of a jury conviction punishment increases, the threshold at which one's willing to risk a jury trial has to go up, thus pressuring people into taking plea bargains they might not under another country's judicial system.
  - refurb 3y ago
    > Since you can increase the penalties for jury convictions to absurd levels What? Juries follow the law and the prescribed punishments. Maybe you're thinking of civil penalties?
    - watwut 3y ago
      Juries do not decide punishments. They are often times NOT allowed to even know what punishments are (the thinking is that they would be more likely to acquit when those punishments would feel too hard for them).
      - refurb 3y ago
        They do in some cases. But your response misses the point entirely. How can a prosecution threaten a longer sentence when they don’t determine it?
        watwut 3y ago
        > How can a prosecution threaten a longer sentence when they don’t determine it? They do determine it in plea guilty process, actually. That being said, what they primary do is to manipulate charges - they add or remove charges to get the sentence they want. That process has nothing to do with what you actually done or not done. Charges are made big if you want trial. Charges are small if you accept plea guilty. For practical purposes, prosecutors are key decision makers.
- southerntofu 3y ago
  It's not just "can i beat this case"? It's also, "how much will it cost me?" and "how long will i stay imprisoned for before i'm found not guilty?". Of course, there's the chance you're found guilty although noone would dare say you committed the crime (Leonard Peltier), or the chance that you'll submit to much harsher punishment than what was decided by the judge (Georges Ibrahim Abdallah). But even when you're white and you're not facing a political repression case, there's a good chance pleading guilty for a fine and a suspended sentence looks better than spending a whole year in jail awaiting the trial that will exonerate you. There's plenty of research in that area, feel free to look it up. https://www.npr.org/2023/02/22/1158356619/plea-bargains-criminal-cases-justice https://www.npr.org/2023/02/22/1158356619/plea-bargains-crim...
- dcminter 3y ago
  Would you prefer a 10% chance of a death penalty or a 100% chance of a 1 year prison sentence? Exaggerated, but it makes the point clear.

ajb 3y ago

Given that 97% of convictions are based on plea bargains, why would you imagine that sentencing is calibrated based on the 3% jury trials? There are obvious political incentives for this not to be the case, given how much voters are annoyed by convicts getting off lightly. Also, the main point is that confessions based on threats are much poorer evidence of guilt than a proper trial.

refurb 3y ago
> Given that 97% of convictions are based on plea bargains, why would you imagine that sentencing is calibrated based on the 3% jury trials? Because that's not how you measure options. If I'm collecting a debt of $1,000 from you, and I come to you and say "hey, if you pay it this week, I'll settle for only $700", would you say "This person is stealing $300 from me!"? Of course not. You always owed $1,000. This is an offer to pay less. Just like those charged with a crime always faced a specific punishment. If you offer a lesser punishment, it's not a threat of a harsher punishment because you always faced it, even if plea bargains never existed.
- thaumasiotes 3y ago
  This isn't related to your earlier comment. You originally claimed this: > It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence. The plea bargain is an offer of a "lesser" sentence, where "lesser" refers to a comparison to the trial sentence. It is not a comparison to the trial sentence from a counterfactual world in which plea bargains don't exist. As ajb points out, given that all US sentences derive from plea bargains, the sentence associated with a plea bargain already is the sentence that is felt to be appropriate for the crime. In the counterfactual word, you'd expect the counterfactual trial sentence to be about equal to the real-world plea bargain sentence.
  - refurb 3y ago
    > the sentence associated with a plea bargain already is the sentence that is felt to be appropriate for the crime That's not true. Plea bargains can be incredibly minor punishments versus the crime. Plea bargains are the flip side of the prosecutions options. If the prosecutor thinks it's a slam dunk, they have little incentive to offer a plea bargain at all - if they do, it may be a very severe sentence. If the prosecution thinks their odds of a win are low, they may offer a very lenient sentence, even for very serious crimes. But who goes to trial comparing their outcome to other trials? A individual is looking at a specific situation - their own trial. They have no idea about the circumstances of other trials - whether defendants were truly innocent, or how much evidence the prosecution had. You may be charged with murder, and another defendant got a plea bargain of only 1 year in prison for manslaughter. But the prosecution has a rock solid case so your plea bargain is life in prison. It's a singular decision of the defendant, usually with input from their lawyer. They'll need to determine their own likelihood of being found "not guilty" and decide if the risk is worth it versus the reduced sentence being offered.

throwaway290 3y ago

> It's not a threat of a "more severe sentence", it's a threat of a default sentence The "default" is updated when you learn about plea bargain... You are now comparing options relative to plea sentence. If the best option "walk free" is uncertain even if you're not guilty (what if the other guy has a better lawyer or something) then plea sentence is the best certain option.

eviks 3y ago

The default sentence depends on the charges, charges depend on the persecutor, which are motivated to increase those to get the easier deal of a plea bargain, so it is exactly the much higher cost of a trial and a higher risk of a more severe sentence that is the selling point for the accused if you don't look at it backwards

refurb 3y ago
But the prosecutor doesn't decide the sentence. The judge or jury do. And prosecutors need to be careful. If they go for a more serious charge, but can't prove it, the defendant may be found not guilty when they would have been found guilty of a lesser charge (this happened to me on a jury - we found them not guilty of 1st degree murder, but likely would have found them guilty of manslaughter, but that wasn't an option).
- eviks 3y ago
  Not really, there are mandatory minimums and various sentencing guidelines, so the judge is not doing completely random stuff independent of the charges the prosecutor brings. And you example is a bit backwards: the trial happened after the plea bargain failed, so this has little effect on the threat to bring more (or more serious) charges, but even if it does: the "careful" sub-range is still measured in multiples/years, so a huge risk
  - refurb 3y ago
    sub-range is still measured in multiples/years, so a huge risk And the plea bargain is what? It’s often not that different. You might go to trial facing up to 10 years (but your lawyer says 5 is likely) or a plea bargain to 4.
    - eviks 3y ago
      Yes, if your made up numbers are 1 year apart, you won't see much difference The "careful sub-range" is what affects the likely 5 number ("careful" in that it doesn't allow the lawyer to call bs on the charge and say that the likely sentence is now lower since there is a higher likelihood of not being convicted), not the not very relevant maximum of 10

southerntofu 3y ago

I feel like you are looking at it backwards. When the prosecutor proposes a plea bargain, it's usually because they don't have enough proof to get a proper conviction through a juge/jury, or at least it is so here in France. A plea bargain is used to convict innocent people, by giving them a choice between a plea punishment, and the punishment of having to go through pre-trial detention and various forms of abuses before being able to prove their innocence. That the entire police-justice system works by treating you as guilty until proven innocent is crazy and is in itself a very strong sentence. That is, unless you are rich of course in which case pre-trial detention is likely non-existent and you can commit most crimes and get away with it.

watwut 3y ago
Majority of cases are settled by plea bargain 96% or something like that. It is used whether there is evidence or not, because it is fast and cheap.

rambambram 3y ago

There is - at least on paper - a big distinction between a prosecutor and a judge. It's called 'trias politica'. Maybe you should look it up.