5 ms·

I don't understand why the system works this way. Shouldn't the goal be to achieve justice? I.e. if someone committed a crime that actually deserves 20 years in

by arikrak 14y ago

I don't understand why the system works this way. Shouldn't the goal be to achieve justice? I.e. if someone committed a crime that actually deserves 20 years in prison, why should the government settle for only 2 years? And if the person is innocent of any real crime, why should he do any time? Instead it's based around some kind of competition of prosecution vs. defense, so they can compromise on smaller prison terms. It probably save everyone lots of money, but I don't see the where the justice is. Maybe if they had a simpler and less money-dominated legal system (with less lawyers), they could try to achieve real justice.

jhuni 14y ago
The pprison industry is very profitable. Justice has nothing to do with it.
- arikrak 14y ago
  I don't think the prison companies are the ones in charge of prosecution or judging.
  - jlgreco 14y ago
    No, but the judges who they bribe are certainly involved.
  - krichman 14y ago
    They're certainly lobbying for more laws and stricter enforcement.
  - veidr 14y ago
    They aren't in charge of it, per se, but the lobbying by them and the prison workers unions are definitely in large part responsible for how insane it is here, as opposed to literally any other modern democracy. There are other factors too, of course. But the perverse societal incentives of the American "prison-industrial complex" are a powerful (and malignant, in my view) force.
pjscott 14y ago
Suppose that you're The Man in charge of a criminal justice system, and let's pull numbers out of a hat. A trial takes 5 court-days, you have one courtroom, and you've got 100 cases to try this month. What do you do? You can't just let the backlog of cases get longer and longer; the law says you've got to give everybody a "speedy and public trial". Dropping most of the cases would be unsatisfying, and would probably get you kicked out of office by an angry public. Again, what do you do? You look for a third option, or you get replaced with someone who will. The main thesis of Torture and Plea Bargaining is that plea bargaining became widespread as a quick, easy alternative to increasingly long, expensive jury trials. In order to get people to give up their right to trial, you coerce them with the threat of excessive punishment. And the reason this keeps on happening is because it's a lot easier than major reform.
- maratd 14y ago
  > What do you do? 1. Build another courthouse. 2. Increase the number of judges. 3. Increase the number of hours judges work. Many work half the day and don't work every working day. 4. Provide the option of night court. Even evening court would make a hell of a difference. 5. Remand more cases to municipal courts, which are less busy. 6. Reduce the number of law enforcement agents. 7. Remove the myriad laws which serve little purpose other than to incarcerate the unlucky. 8. Shall I go on? There are a ton of solutions, but plea bargain is a very special solution. It allows the prosecutor to pat himself on the back and get wonderful stories about him published in the press. After all, every plea bargain is a conviction and with a 90%+ plea bargain rate, guess who looks like a hero? It really just makes me sick. Nothing will happen until we all begin to believe that there are better solutions and that they are right in front of us.
  - pjscott 14y ago
    Throwing resources at the problem is expensive, and runs into budget problems. Reducing the number of police is politically hard to do. Loosening the laws -- or, as your political opponents will inevitably call it, "being soft on crime" -- is similarly difficult. The most difficult question here is not what we want to change, but how to change it.
csense 14y ago
My guess as to the logical basis for plea bargaining is the notion that there's two types of criminals. Type A criminals see nothing wrong with hurting others through criminal actions, and will not hesitate to do so if they believe it will get them material benefits and/or thrills (and think they can get away with it). They have no conscience or restraint. They are a danger to society and should go away as long as possible. Think of someone who kills a family member to collect life insurance money. Type B criminals are basically ordinary people who are careless, make a bad decision, aren't aware that a certain action is illegal, or perhaps are consumed by emotional passion. They genuinely regret their actions and the consequences thereof. Think of a drunk driver who accidentally kills a pedestrian. The theory behind the guilty/not-guilty plea is that Type A criminals will never confess, since they have no conscience or remorse. But Type B criminals will want to try to become a good person again, and the first step to this is admitting their past mistakes. That's the theory. It doesn't always match reality. For example, the Type B criminal may be so troubled about what he's wrought that he blurts out a confession before getting a plea agreement in writing, in which case the state can still throw the book at him. Or an innocent person might confess as purely a risk mitigation measure: If you were some alternate universe's Aaron Swartz, you decided not to commit suicide, and you had a choice between pleading and getting guaranteed 6 months, or having a trial and a 50% chance of a not-guilty verdict but a 50% chance of 35 years in prison, you might be very tempted to choose the former. Interesting mental exercise: I arbitrarily set the odds of winning a trial at 50-50. What do your odds of winning have to be before you choose to roll the dice?
- Tossrock 14y ago
  The odds are much lower than that. Average conviction rate for federal crimes stands at 80+%.
  - csense 14y ago
    I say 50%; you say 80%. We could both be right. Here's why: The odds you would use in the grandparent post's calculation would be different from the average conviction rate, because you'd have knowledge of the specific facts of your particular case, which would affect your estimate. Despite all the noise HN's made about this case, I actually believe that most of the people who are punished by our justice system (1) are actually guilty of the crime(s) they're accused of (Aaron probably was), and (2) don't have mitigating factors that might cause the case to be dismissed by the judge when he/she becomes aware of all the facts, acquitted by a sympathetic jury, given a small fine or other slap-on-the-wrist sentence, or successfully appealed (Aaron's case clearly did have such mitigating factors). Let's say hypothetically that, of every 100 defendants who go before the court, W=70 of defendants are rightfully convicted, X=10 are wrongfully convicted, Y=10 are rightfully found innocent, Z=10 are wrongfully found innocent. I'm using the term "innocent" here to lump together category (1) above, "factually innocent" (he/she didn't do it) and category (2), "morally/technically innocent" (he/she did it, but it shouldn't be a crime / sentence is far too harsh / prosecutor/police tactics were unconstitutional / jury didn't believe the evidence was good enough / good defense attorney managed to inject reasonable doubt / jury nullification [1], etc.) Let's say you're being prosecuted. You know the above numbers (or they're your best estimates based on the available data and reasonable modeling assumptions). You know you're in the "innocent" category, that is, that you'll either be in X (wrongfully convicted) or Y (rightfully found innocent). Your chance of being wrongfully convicted is thus X/(X+Y) = 50%, as I stated. But from the point of view of all cases, the overall conviction rate is (W+X)/(W+X+Y+Z) = 80%, as the parent stated. The above numbers aren't based on any actual facts; they're made up to agree with both the parent's stated 80% number for overall conviction rate, and the grandparent's stated odds of a particular defendant's chance of winning of 50%. These computations are an example of Bayesian reasoning [2]. [1] http://en.wikipedia.org/wiki/Jury_nullification http://en.wikipedia.org/wiki/Jury_nullification [2] http://yudkowsky.net/rational/bayes http://yudkowsky.net/rational/bayes
btilly 14y ago
I don't understand why the system works this way. Shouldn't the goal be to achieve justice? You will never understand any system run by humans unless you understand the incentives that the humans running the system have. And those incentives are rarely what people claim in public. In theory prosecutors exist to see justice done and the laws of the USA enforced. In practice those laws are passed by politicians to give vested interests (eg the copyright industry) tools to accomplish what they want. And prosecutors in turn are motivated to demonstrate their ability to secure convictions - the more numerous and stricter the better. We are lead to think that courts are about justice. They are not. They are about creating a predictable (if arcane) set of rules understood by the legal profession. This set of rules is based on a ritual verbal combat. Originally this was a physical combat, and God was supposed to decide. However all vestiges of the actual physical combat have now been lost. (The last case that I'm aware of in any common law jurisdiction where a case was settled by willingness to engage in actual combat is http://en.wikipedia.org/wiki/Ashford_v_Thornton http://en.wikipedia.org/wiki/Ashford_v_Thornton in 1818.) Ironically many lawyers and justices believe that an adversarial system actually does result in justice, while at the same time studying all of the ways to get the outcome you want regardless of the merits, and acknowledging the advantage that a good lawyer provides. The whole system is complicated by the fact that it is in theory accountable to the people. And from time to time the people do get upset enough at how things work that we put enough pressures to cause the system to be modified. Thus we create the Constitution, which is supposed to limit power. However the problem is that the limitations are inconvenient to those in power, so they are inevitably eroded. Thus the ability of Congress to regulate commerce between the states, with the Indian tribes, and with foreign nations eventually becomes the power of Congress to regulate anything that touches on commerce in any way. (Some of the laws that Aaron was charged under were justified in this way.) Your Constitutional protection against unreasonable search and seizure is too inconvenient, so courts accept that your possessions can be sued, and since you're not being sued, you have no standing to protest as your possessions are seized by the government. (This is not directly relevant to Aaron's case, but it is a travesty.) And, of course, the people cannot protest what they do not know about, so government passes laws directly and indirectly that are not available to the people. For example find me the law or regulation which requires that you show ID in order to get on an airplane - you can't. (This is an issue that Aaron cared deeply about - see the PACER incident.) Aren't these outrages? They should be. But apparently they are not outrageous enough for the public to try to change them. And so the bar continues to inexorably move in the direction that incentives point insiders towards. Sorry for the rant. Apparently you hit a nerve that I didn't know I had.
mpweiher 14y ago
Ahh, but the goal isn't to achieve justice, at least not for all the participants. A prosecutor's goal is to get convictions and/or pleas, if possible at minimum cost. In Germany, for example, the prosecutor is primarily obliged to get at the truth. Furthermore, prosecutors have no discretion as to whether to prosecute, any major offense must go to trial, so there is nothing the prosecutor could offer. For the same reason, there is little incentive for the prosecutor, because trials with guilty pleas (which still happen quite frequently) are only somewhat shorter than trials without them. The judge still has to consider all the evidence, of which the guilty plea is just one piece. On the other hand, procedures are such that trials are dispatched quickly at reasonable cost. There is virtually no room for the procedural/technical shenanigans that drag out litigation in the US and make it so expensive. http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1532&context=fss_papers http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?artic...
- arikrak 14y ago
  > On the other hand, procedures are such that trials are dispatched quickly at reasonable cost. There is virtually no room for the procedural/technical shenanigans that drag out litigation in the US and make it so expensive. That's the key issue. If legal costs weren't so high, they could try to achieve actual justice. Also, if it weren't so dragged out, people could get back to their lives more quickly. Even if someone did commit a misdemeanor, why should they have to spend 5 years with it hanging over them, not knowing what the verdict will be?
sliverstorm 14y ago
if someone committed a crime that actually deserves 20 years in prison, why should the government settle for only 2 years? Part of the theory, as I understand it, is supposed to be the question of the strength of the case. E.g., if the prosecution believes the defendant is guilty but is only 50% sure they can secure a guilty verdict, offer a plea for 10 years. It's just the opposite of why a defendant would take a plea bargain. He has 20 years levied against him, but he is only 20% confident he can win in court, so 10 years might look attractive.
- barrkel 14y ago
  Trouble is, if the prosecution has the discretion to increase the charges and make the sentence run longer, they can manipulate the payoff and thereby force the "bargain" to be the allegedly just sentence, with the threat of an unjust sentence to force the defendant's hand.
  - sliverstorm 14y ago
    I'm not trying to justify. Just answer.

by arikrak 14y ago

jhuni 14y ago

The pprison industry is very profitable. Justice has nothing to do with it.

arikrak 14y ago
I don't think the prison companies are the ones in charge of prosecution or judging.
- jlgreco 14y ago
  No, but the judges who they bribe are certainly involved.
- krichman 14y ago
  They're certainly lobbying for more laws and stricter enforcement.
- veidr 14y ago
  They aren't in charge of it, per se, but the lobbying by them and the prison workers unions are definitely in large part responsible for how insane it is here, as opposed to literally any other modern democracy. There are other factors too, of course. But the perverse societal incentives of the American "prison-industrial complex" are a powerful (and malignant, in my view) force.

pjscott 14y ago

Suppose that you're The Man in charge of a criminal justice system, and let's pull numbers out of a hat. A trial takes 5 court-days, you have one courtroom, and you've got 100 cases to try this month. What do you do? You can't just let the backlog of cases get longer and longer; the law says you've got to give everybody a "speedy and public trial". Dropping most of the cases would be unsatisfying, and would probably get you kicked out of office by an angry public. Again, what do you do? You look for a third option, or you get replaced with someone who will. The main thesis of Torture and Plea Bargaining is that plea bargaining became widespread as a quick, easy alternative to increasingly long, expensive jury trials. In order to get people to give up their right to trial, you coerce them with the threat of excessive punishment. And the reason this keeps on happening is because it's a lot easier than major reform.

maratd 14y ago
> What do you do? 1. Build another courthouse. 2. Increase the number of judges. 3. Increase the number of hours judges work. Many work half the day and don't work every working day. 4. Provide the option of night court. Even evening court would make a hell of a difference. 5. Remand more cases to municipal courts, which are less busy. 6. Reduce the number of law enforcement agents. 7. Remove the myriad laws which serve little purpose other than to incarcerate the unlucky. 8. Shall I go on? There are a ton of solutions, but plea bargain is a very special solution. It allows the prosecutor to pat himself on the back and get wonderful stories about him published in the press. After all, every plea bargain is a conviction and with a 90%+ plea bargain rate, guess who looks like a hero? It really just makes me sick. Nothing will happen until we all begin to believe that there are better solutions and that they are right in front of us.
- pjscott 14y ago
  Throwing resources at the problem is expensive, and runs into budget problems. Reducing the number of police is politically hard to do. Loosening the laws -- or, as your political opponents will inevitably call it, "being soft on crime" -- is similarly difficult. The most difficult question here is not what we want to change, but how to change it.

csense 14y ago

My guess as to the logical basis for plea bargaining is the notion that there's two types of criminals. Type A criminals see nothing wrong with hurting others through criminal actions, and will not hesitate to do so if they believe it will get them material benefits and/or thrills (and think they can get away with it). They have no conscience or restraint. They are a danger to society and should go away as long as possible. Think of someone who kills a family member to collect life insurance money. Type B criminals are basically ordinary people who are careless, make a bad decision, aren't aware that a certain action is illegal, or perhaps are consumed by emotional passion. They genuinely regret their actions and the consequences thereof. Think of a drunk driver who accidentally kills a pedestrian. The theory behind the guilty/not-guilty plea is that Type A criminals will never confess, since they have no conscience or remorse. But Type B criminals will want to try to become a good person again, and the first step to this is admitting their past mistakes. That's the theory. It doesn't always match reality. For example, the Type B criminal may be so troubled about what he's wrought that he blurts out a confession before getting a plea agreement in writing, in which case the state can still throw the book at him. Or an innocent person might confess as purely a risk mitigation measure: If you were some alternate universe's Aaron Swartz, you decided not to commit suicide, and you had a choice between pleading and getting guaranteed 6 months, or having a trial and a 50% chance of a not-guilty verdict but a 50% chance of 35 years in prison, you might be very tempted to choose the former. Interesting mental exercise: I arbitrarily set the odds of winning a trial at 50-50. What do your odds of winning have to be before you choose to roll the dice?

Tossrock 14y ago
The odds are much lower than that. Average conviction rate for federal crimes stands at 80+%.
- csense 14y ago
  I say 50%; you say 80%. We could both be right. Here's why: The odds you would use in the grandparent post's calculation would be different from the average conviction rate, because you'd have knowledge of the specific facts of your particular case, which would affect your estimate. Despite all the noise HN's made about this case, I actually believe that most of the people who are punished by our justice system (1) are actually guilty of the crime(s) they're accused of (Aaron probably was), and (2) don't have mitigating factors that might cause the case to be dismissed by the judge when he/she becomes aware of all the facts, acquitted by a sympathetic jury, given a small fine or other slap-on-the-wrist sentence, or successfully appealed (Aaron's case clearly did have such mitigating factors). Let's say hypothetically that, of every 100 defendants who go before the court, W=70 of defendants are rightfully convicted, X=10 are wrongfully convicted, Y=10 are rightfully found innocent, Z=10 are wrongfully found innocent. I'm using the term "innocent" here to lump together category (1) above, "factually innocent" (he/she didn't do it) and category (2), "morally/technically innocent" (he/she did it, but it shouldn't be a crime / sentence is far too harsh / prosecutor/police tactics were unconstitutional / jury didn't believe the evidence was good enough / good defense attorney managed to inject reasonable doubt / jury nullification [1], etc.) Let's say you're being prosecuted. You know the above numbers (or they're your best estimates based on the available data and reasonable modeling assumptions). You know you're in the "innocent" category, that is, that you'll either be in X (wrongfully convicted) or Y (rightfully found innocent). Your chance of being wrongfully convicted is thus X/(X+Y) = 50%, as I stated. But from the point of view of all cases, the overall conviction rate is (W+X)/(W+X+Y+Z) = 80%, as the parent stated. The above numbers aren't based on any actual facts; they're made up to agree with both the parent's stated 80% number for overall conviction rate, and the grandparent's stated odds of a particular defendant's chance of winning of 50%. These computations are an example of Bayesian reasoning [2]. [1] http://en.wikipedia.org/wiki/Jury_nullification http://en.wikipedia.org/wiki/Jury_nullification [2] http://yudkowsky.net/rational/bayes http://yudkowsky.net/rational/bayes

btilly 14y ago

I don't understand why the system works this way. Shouldn't the goal be to achieve justice? You will never understand any system run by humans unless you understand the incentives that the humans running the system have. And those incentives are rarely what people claim in public. In theory prosecutors exist to see justice done and the laws of the USA enforced. In practice those laws are passed by politicians to give vested interests (eg the copyright industry) tools to accomplish what they want. And prosecutors in turn are motivated to demonstrate their ability to secure convictions - the more numerous and stricter the better. We are lead to think that courts are about justice. They are not. They are about creating a predictable (if arcane) set of rules understood by the legal profession. This set of rules is based on a ritual verbal combat. Originally this was a physical combat, and God was supposed to decide. However all vestiges of the actual physical combat have now been lost. (The last case that I'm aware of in any common law jurisdiction where a case was settled by willingness to engage in actual combat is http://en.wikipedia.org/wiki/Ashford_v_Thornton http://en.wikipedia.org/wiki/Ashford_v_Thornton in 1818.) Ironically many lawyers and justices believe that an adversarial system actually does result in justice, while at the same time studying all of the ways to get the outcome you want regardless of the merits, and acknowledging the advantage that a good lawyer provides. The whole system is complicated by the fact that it is in theory accountable to the people. And from time to time the people do get upset enough at how things work that we put enough pressures to cause the system to be modified. Thus we create the Constitution, which is supposed to limit power. However the problem is that the limitations are inconvenient to those in power, so they are inevitably eroded. Thus the ability of Congress to regulate commerce between the states, with the Indian tribes, and with foreign nations eventually becomes the power of Congress to regulate anything that touches on commerce in any way. (Some of the laws that Aaron was charged under were justified in this way.) Your Constitutional protection against unreasonable search and seizure is too inconvenient, so courts accept that your possessions can be sued, and since you're not being sued, you have no standing to protest as your possessions are seized by the government. (This is not directly relevant to Aaron's case, but it is a travesty.) And, of course, the people cannot protest what they do not know about, so government passes laws directly and indirectly that are not available to the people. For example find me the law or regulation which requires that you show ID in order to get on an airplane - you can't. (This is an issue that Aaron cared deeply about - see the PACER incident.) Aren't these outrages? They should be. But apparently they are not outrageous enough for the public to try to change them. And so the bar continues to inexorably move in the direction that incentives point insiders towards. Sorry for the rant. Apparently you hit a nerve that I didn't know I had.

mpweiher 14y ago

Ahh, but the goal isn't to achieve justice, at least not for all the participants. A prosecutor's goal is to get convictions and/or pleas, if possible at minimum cost. In Germany, for example, the prosecutor is primarily obliged to get at the truth. Furthermore, prosecutors have no discretion as to whether to prosecute, any major offense must go to trial, so there is nothing the prosecutor could offer. For the same reason, there is little incentive for the prosecutor, because trials with guilty pleas (which still happen quite frequently) are only somewhat shorter than trials without them. The judge still has to consider all the evidence, of which the guilty plea is just one piece. On the other hand, procedures are such that trials are dispatched quickly at reasonable cost. There is virtually no room for the procedural/technical shenanigans that drag out litigation in the US and make it so expensive. http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1532&context=fss_papers http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?artic...

arikrak 14y ago
> On the other hand, procedures are such that trials are dispatched quickly at reasonable cost. There is virtually no room for the procedural/technical shenanigans that drag out litigation in the US and make it so expensive. That's the key issue. If legal costs weren't so high, they could try to achieve actual justice. Also, if it weren't so dragged out, people could get back to their lives more quickly. Even if someone did commit a misdemeanor, why should they have to spend 5 years with it hanging over them, not knowing what the verdict will be?

sliverstorm 14y ago

if someone committed a crime that actually deserves 20 years in prison, why should the government settle for only 2 years? Part of the theory, as I understand it, is supposed to be the question of the strength of the case. E.g., if the prosecution believes the defendant is guilty but is only 50% sure they can secure a guilty verdict, offer a plea for 10 years. It's just the opposite of why a defendant would take a plea bargain. He has 20 years levied against him, but he is only 20% confident he can win in court, so 10 years might look attractive.

barrkel 14y ago
Trouble is, if the prosecution has the discretion to increase the charges and make the sentence run longer, they can manipulate the payoff and thereby force the "bargain" to be the allegedly just sentence, with the threat of an unjust sentence to force the defendant's hand.
- sliverstorm 14y ago
  I'm not trying to justify. Just answer.