9 ms·

How mandatory minimum sentences distort plea bargaining

151 points by josephby 14y ago

nextstep 14y ago
End the war on drugs, relieve all the unnecessary burden on the courts, and then end plea bargaining.
- betterunix 14y ago
  Ending plea bargaining first would imply the end of the war on drugs. This nation would be unable to continue without its courts, and if plea bargaining ended, our courts would be overwhelmed within a day. Politicians would have no choice but to let drug offenders go free, because they would otherwise have to deal with a population that is asking why murderers and child rapists are not being arrested or prosecuted.
GotAnyMegadeth 14y ago
I was innocently reading this article, hearing my own internal voice in my head, when all of a sudden Serj Tankian screamed "mandatory minimum sentences" at me...
- jonathanjaeger 14y ago
  Yeah, and this song from The Wire soundtrack made me think the same thing: http://www.youtube.com/watch?v=SgBq_feHYQ4 http://www.youtube.com/watch?v=SgBq_feHYQ4
arbuge 14y ago
The suggestions at the end of the article to remedy this are pretty lame. The author misses his own point IMHO. Do away with the whole war on drugs and legalize them, and you'll have far fewer cases crowding courtrooms. That will in turn pave the way for reform of the plea bargaining process, which becomes feasible once the case pressure is off.
- SideburnsOfDoom 14y ago
  In fairness though, The Economist has argued against the WoD in other articles at length over the years. They may be assuming that the reader knows this, and wish to concentrate on this one topical point of the WoD's corrosive effects.
- InvisibleCities 14y ago
  But how will we keep our private prisons profitable?
  - erichocean 14y ago
    Not to mention pay for those inflated prison guard pensions?
- Spooky23 14y ago
  That's a great point -- in reality, alot of the systematic injustices baked into the system are measures taken to deal with the sea of drug cases that clog the courts.
  - arbuge 14y ago
    It's at least part of the reason. There are other factors of course - one that leaps out at me is the political ambitions that many prosecutors have. In a country where being seen as tough on crime is usually a ticket to higher office, that's a problem.
richeyrw 14y ago
I remember reading somewhere that everyone should always demand a jury trial as an act of non-violent protest. Currently, as I recall, only 5% of eligible cases go to juries. So obviously if everyone did it (or even if it only went to 10% or 15%) it would bring the criminal justice system to a screeching halt. As I recall it was aimed at the War on Drugs, but as this article points out, unintended consequences have bleed out all over the justice system like the death scene in a B-movie.
- kijin 14y ago
  I read about that idea, too, and it looks like an interesting way to protest. But it's also a rather expensive way to protest. Jury trials take many months (during which you may be unable to do anything productive) as well as many hours (that your lawyer bills you for). They will take even longer if the criminal justice system actually grinds to a "screeching halt" as intended. Few people can afford such an expensive method of protest.
  - alan_cx 14y ago
    If it all happened at once, no one would pay. The system would stop, and government would have to act. Part of the deal of government acting would be all those defendants with drawing from the jury trial. Of course, there is always a chance that the US government would declare requesting a jury trial as an act of terror...
    - rprospero 14y ago
      Why would the government have to act, simply because the system stopped? I'd assume that they'd just tell everyone, "Okay, your jury trial is on March 19th, 2843. We'll be holding you without bail until then." There's no reason to declare requesting a jury trial a terrorist act if they can already hold everyone indefinitely.
      - e1ven 14y ago
        While it's not foolproof, in the US, you do have a right to a "speedy trial". https://en.wikipedia.org/wiki/Speedy_Trial_Clause https://en.wikipedia.org/wiki/Speedy_Trial_Clause
pygy_ 14y ago
The petition asking for Steve Heymann's firing still lacks 14.500 votes, and it won't make it in tome at the current rate. From what I read he was more instrumental than Ortiz in the aggressiveness the prosecution. https://petitions.whitehouse.gov/petition/fire-assistant-us-attorney-steve-heymann/RJKSY2nb https://petitions.whitehouse.gov/petition/fire-assistant-us-... No need to be a US citizen to sign. An email address is enough. Once again, sorry for insisting, but I think it's important. Not that the witch hunt is very useful in itself, but it keeps people involved and the more shit we stir, the most likely things will move.
- deelowe 14y ago
  This doesn't solve anything. Most people could give a crap about Ortiz getting fired. She's a symptom of the problem. Firing her doesn't cure the disease.
  - runjake 14y ago
    Just as the government can make an example of a person -- the people can make an example of a government representative.
  - pygy_ 14y ago
    > Most people could give a crap ... I suppose you meant "couldn't". As written above, I'm well aware that getting rid of them will not solve the problem. It's more about making noise (which is all I can do from Europe regarding US politics).
    - deelowe 14y ago
      Yes, thanks for the correction.
  - arthurrr 14y ago
    But you have to start somewhere. There's never going to be a silver bullet that fixes the system. Because some people (the ones in power) do not consider the system to be broken.
  - 14y ago
brudgers 14y ago
Justice should not be a market transaction for the sake of efficiency. Plea bargaining is coercive. The buyer cannot walk away. Justice cannot be built upon caveat emptor. Yet, that's what we've got. The seller may withhold material facts. The answer to a broken justice system is not more injustice.
- wisty 14y ago
  Maybe it should. We could have a few other suggestions: Waive your fourth amendment rights. If a policeman wants to search you or your home, you can either let him, or force him to come back with a warrant. But if they need to get a warrant, and discover you had done something wrong, you're in for a heavier penalty. Waive your fifth amendment rights. You have the right to remain silent. But not answering questions will get you a heavier penalty if you are found guilty. Waive your sixth amendment rights. We already waive the right to a fair trial. Why not waive the right to counsel? If you lawyer up, you're obviously trying to obstruct justice. If you're found guilty, that's a heavier penalty. Of course, most of those are horrible ideas. They may make it easier to lock people up, but it also makes it easier for the police and prosecution to do a shoddy job and still get convictions.
  - brudgers 14y ago
    If asserting one's rights is punishable, then they are not rights.
    - betterunix 14y ago
      Welcome to the reality of an expansive legal system. Sure, you cannot be punished for exercising your rights, but what that really means is that the police will try hard to find something to charge you with when you dare to stand up for yourself. It's not like you are being punished for exercising your rights, you were just punished for breaking the law.
    - wisty 14y ago
      That's often the view of the Supreme Court. But for some reason, they don't apply that logic to plea bargaining.
tokenadult 14y ago
From the end of the article: "A more sensible idea would be to require the state to provide the defence with all its evidence—particularly any exculpatory evidence—during the plea process, rather than simply during or before trial." There are a lot of pro-and-con arguments about charge bargaining (determining by negotation before trial what charges will be filed) and plea bargaining (determining by negotiation before trial what charges will be pleaded guilty to, to minimize the uncertainty of BOTH sides about the result at trial). Yes, in general the defense bar would like a world in which fewer charges can be brought, because there are fewer crimes defined by statute, and pleas of guilty are less costly, because fewer charges result in severe sentences. The criminal prosecution bar would like a world in which charges and pleas reflect the general reality of who is causing societal harm (as society currently defines that) without massively burdensome trials. The general public just want to do what they feel is right, untroubled by people they think are wrong-doers (to them). The Economist, a publication I generally like to read (I subscribe to the print edition) tends to take a position that "decriminalization" (their word choice is not usually "legalization") of many currently illegal drugs would be a helpful social policy around the world. That may be. Richard Branson's blog post "Time to end the war on drugs" from a little more than a year ago about Portugal http://www.virgin.com/richard-branson/blog/time-to-end-the-war-on-drugs http://www.virgin.com/richard-branson/blog/time-to-end-the-w... suggests that Portugal's policy of decriminalization with administratively mandatory treatment http://www.rollingstone.com/culture/lists/top-10-marijuana-myths-and-facts-20120822/myth-holland-and-portugal-have-legalized-marijuana-19691231 http://www.rollingstone.com/culture/lists/top-10-marijuana-m... reduces drug use in Portugal while reducing burden on the criminal justice system. Coming back to the submitted article's last suggestion, "A more sensible idea would be to require the state to provide the defence with all its evidence—particularly any exculpatory evidence—during the plea process, rather than simply during or before trial," it is mandatory in the United States for the prosecution to share its evidence with the defense before trial. Failure to do that can result in the reversal of a conviction. But a defendant like Aaron Swartz was able to lawyer up enough, and do enough pretrial investigation, to be quite aware of what exculpatory evidence was on his side. He had other channels for protesting about the issues that concerned him, and he had the choice before him of doing what Thoreau, Gandhi, and King did of protesting a law he thought was unjust by publicly accepting imprisonment for it after a trial. Even after criminal law reform, there are still going to be people who think that their approach to solving personal problems shouldn't be subject to criminal sanctions, with laws still being on the books against their overt behavior. This problem of many possible charges and a drive on both sides in the criminal justice system to bargain can be reduced, but it cannot be eliminated, maybe especially in cases like that of Aaron Swartz.
bo1024 14y ago
Terrible journalism on this issue makes me really angry. First sentence: > AARON SWARTZ , who committed suicide two weeks ago, had been arrested for illegally downloading millions of articles from JSTOR, an archive of academic journals. Dead wrong.
- thingylab 14y ago
  You just did the equivalent of a user calling tech support saying "my computer doesn't work".
- danso 14y ago
  Not sure what's so completely wrong about that statement. Though I learned in journalism school that you should always say "allegedly" after the phrase "arrested for"...I figured the Economist, based in London, would be even more uptight about that given their libel laws.
  - bo1024 14y ago
    He wasn't "allegedly" arrested for downloading files illegally. He was never accused of or charged with copyright infringement. He was accused of various forms of "hacking" and trespassing.
    - danso 14y ago
      > had been arrested for illegally downloading millions of articles from JSTOR The OP, as you pointed out, says illegally downloading. The illegal part, ostensibly, comes from the alleged "hacking". There is nothing about copyright infringement implied here, though yes, that's the natural connotation of "illegal download"
alt2319 14y ago
Well 1030(a) violations didn't used to have a mandatory minimum sentence, but they got added after congress was afraid Kevin Mitnick could launch nuclear missiles from a pay phone. When I was charged with a 1030(a) crime, I faced a mandatory minimum of 6 months in prison. No plea bargain could reduce that. If I was convicted, I was likely facing the exact same sentence because my damages were so low that I wouldn't normally qualify for any prison time at all under federal sentencing guidelines. So the main reason to plea bargain was to avoid paying an attorney or using a public defender. It also got the case over within 6 months rather than 2 years so I could move on with my life quicker. It could get even worse as Congress keeps wanting to increase the mandatory minimums and don't really understand the laws or the internet. http://www.volokh.com/2011/05/24/congress-considers-increasing-penalties-adding-mandatory-minimum-sentences-to-the-computer-fraud-and-abuse-act/ http://www.volokh.com/2011/05/24/congress-considers-increasi...
kscaldef 14y ago
The re-titling of this article here on HN(#) I feel misses an important point that it's trying to make. While we are all affected by the death of Aaron Swartz as a member of our community, when it comes to issues of prosecutorial / judicial excess, hackers are an extreme minority. Most victims of overly aggressive prosecution are disadvantaged racially, socio-economically, educationally, and are often addicts in need of medical treatment. Aaron was privileged in all these ways which most people in the grips of our legal system are not; and while his privileges don't lessen the tragedy of his death or the injustice of his situation, they are the reason his name has national recognition at this point. Describing the situation as "Aaron Swartz was Screwed by the War on Drugs" ignores the millions of other nameless, faceless people who have also been screwed by it. It's fine to use Aaron as an example. If his privilege can be leveraged to effect greater change in society then there is some positive to be found in it, but I get a bad taste in my mouth when I see many people limiting their concerns solely to other hackers. (#) EDIT: The original title from The Economist has been restored since I posted this.
quahada 14y ago
"Prosecutors will always wield a great deal of power in the American criminal system; but before a defendant agrees to plead guilty, he ought to know whether the state holds four aces or a busted flush." I am not a lawyer, so I'm shocked to learn that you can plead guilty to a crime without the opportunity to review all of the evidence against you.
- betterunix 14y ago
  Perhaps you should take a closer look at the justice system. What typically happens is that you are offered a plea bargain, and if you refuse to take it, the government will add more criminal charges to the case. There have even been cases where the government delays prosecution until a convict is released, and then arrests him and sends him right back to court. The ultimate problem here is an overly expansive legal system, which is made worse by an obscenely powerful executive branch of government. We are desperately in need of reform, but we are a nation that is populated by right-wing law-and-order types, and whose politicians are mostly from that same category (yes, that includes the Democrats, who have no aversion to using paramilitary police teams to serve search-and-arrest warrants and who appoint people like Carmen Ortiz).
  - quahada 14y ago
    Interesting. I think part of the fundamental problem is that more criminal activity advances the careers of people who work in the criminal justice system. They have an incentive to turn small crimes into big ones. Then they cry about how much crime there is. Then they demand harsher penalties & laws to criminalize more things. This is a positive feedback loop. The system has gone out of control.
  - erichocean 14y ago
    we are a nation that is populated by right-wing law-and-order types You do realize that trial lawyers vote overwhelmingly for Team Blue, right? And that the legal profession as a whole votes overwhelmingly for Team Blue? And that law schools themselves are overwhelmingly Team Blue voters? I get the whole "Red Team supports putting (their idea of) moral laws into the legal code", and that sucks, but the law problem exists because both teams are pushing it down the wrong track. Don't for a second think you can just blame flyover country for the current state of the legal system.
sv123 14y ago
For anybody not familiar with how messed up the war on drugs is, these are both great primers: http://www.breakingthetaboo.info/ http://www.breakingthetaboo.info/ http://www.thehouseilivein.org/ http://www.thehouseilivein.org/
murbard2 14y ago
Economist David Friedman has a good take on it. Athenian justice had a way to deal with this issue. http://daviddfriedman.blogspot.com/2013/01/overcharging-aaron-swartz-case.html http://daviddfriedman.blogspot.com/2013/01/overcharging-aaro...
SparrowOS 14y ago
niggers are people who don't know God is just. Aaron was a nigger. reverse engineering is for niggers. God says... melted compass distinctly effort rashness 99 celebration entreated weaving instructest calculated nevertheless horror steeping deserving lashed applauded eating dinner wax perverted vomited goal also' knewest ignorant tellest recalling rob rejection pauses wrote heads_I_win_tails_you_lose prosper discussed steal thorns praises pangs Jerusalem fellow-sinners flew plausibility concludeth awakest knowingly renew handling horse digest Behold equably preachings partly original stumbled declare badge price shifted others' buildings spectator follies impatience slumber length fer_sure heinous rejoicest sings degraded loved tamed perfecting XI fore-perceiving mayest deeps possess ball Albania Father That's_gonna_leave_a_mark seizes ravish into formation abstemious defiled returning omnipotent murmured revelations especially hinder hidest Armenia on_occassion sips Clearly artifice fortitude devoutness stoked rough genius thereof omitted seducing what crosses Swaziland Scriptures sail foulness spreadest note-book 1 grossness possesseth one_more_time odours Thereupon Books threefold dividing epic_fail reckoned conversion intense devoted sober nowhere infused Rebuke quit sharpen belong unpraised accompany

151 points by josephby 14y ago

nextstep 14y ago

End the war on drugs, relieve all the unnecessary burden on the courts, and then end plea bargaining.

betterunix 14y ago
Ending plea bargaining first would imply the end of the war on drugs. This nation would be unable to continue without its courts, and if plea bargaining ended, our courts would be overwhelmed within a day. Politicians would have no choice but to let drug offenders go free, because they would otherwise have to deal with a population that is asking why murderers and child rapists are not being arrested or prosecuted.

GotAnyMegadeth 14y ago

I was innocently reading this article, hearing my own internal voice in my head, when all of a sudden Serj Tankian screamed "mandatory minimum sentences" at me...

jonathanjaeger 14y ago
Yeah, and this song from The Wire soundtrack made me think the same thing: http://www.youtube.com/watch?v=SgBq_feHYQ4 http://www.youtube.com/watch?v=SgBq_feHYQ4

arbuge 14y ago

The suggestions at the end of the article to remedy this are pretty lame. The author misses his own point IMHO. Do away with the whole war on drugs and legalize them, and you'll have far fewer cases crowding courtrooms. That will in turn pave the way for reform of the plea bargaining process, which becomes feasible once the case pressure is off.

SideburnsOfDoom 14y ago
In fairness though, The Economist has argued against the WoD in other articles at length over the years. They may be assuming that the reader knows this, and wish to concentrate on this one topical point of the WoD's corrosive effects.
InvisibleCities 14y ago
But how will we keep our private prisons profitable?
- erichocean 14y ago
  Not to mention pay for those inflated prison guard pensions?
Spooky23 14y ago
That's a great point -- in reality, alot of the systematic injustices baked into the system are measures taken to deal with the sea of drug cases that clog the courts.
- arbuge 14y ago
  It's at least part of the reason. There are other factors of course - one that leaps out at me is the political ambitions that many prosecutors have. In a country where being seen as tough on crime is usually a ticket to higher office, that's a problem.

richeyrw 14y ago

I remember reading somewhere that everyone should always demand a jury trial as an act of non-violent protest. Currently, as I recall, only 5% of eligible cases go to juries. So obviously if everyone did it (or even if it only went to 10% or 15%) it would bring the criminal justice system to a screeching halt. As I recall it was aimed at the War on Drugs, but as this article points out, unintended consequences have bleed out all over the justice system like the death scene in a B-movie.

kijin 14y ago
I read about that idea, too, and it looks like an interesting way to protest. But it's also a rather expensive way to protest. Jury trials take many months (during which you may be unable to do anything productive) as well as many hours (that your lawyer bills you for). They will take even longer if the criminal justice system actually grinds to a "screeching halt" as intended. Few people can afford such an expensive method of protest.
- alan_cx 14y ago
  If it all happened at once, no one would pay. The system would stop, and government would have to act. Part of the deal of government acting would be all those defendants with drawing from the jury trial. Of course, there is always a chance that the US government would declare requesting a jury trial as an act of terror...
  - rprospero 14y ago
    Why would the government have to act, simply because the system stopped? I'd assume that they'd just tell everyone, "Okay, your jury trial is on March 19th, 2843. We'll be holding you without bail until then." There's no reason to declare requesting a jury trial a terrorist act if they can already hold everyone indefinitely.
    - e1ven 14y ago
      While it's not foolproof, in the US, you do have a right to a "speedy trial". https://en.wikipedia.org/wiki/Speedy_Trial_Clause https://en.wikipedia.org/wiki/Speedy_Trial_Clause

pygy_ 14y ago

The petition asking for Steve Heymann's firing still lacks 14.500 votes, and it won't make it in tome at the current rate. From what I read he was more instrumental than Ortiz in the aggressiveness the prosecution. https://petitions.whitehouse.gov/petition/fire-assistant-us-attorney-steve-heymann/RJKSY2nb https://petitions.whitehouse.gov/petition/fire-assistant-us-... No need to be a US citizen to sign. An email address is enough. Once again, sorry for insisting, but I think it's important. Not that the witch hunt is very useful in itself, but it keeps people involved and the more shit we stir, the most likely things will move.

deelowe 14y ago
This doesn't solve anything. Most people could give a crap about Ortiz getting fired. She's a symptom of the problem. Firing her doesn't cure the disease.
- runjake 14y ago
  Just as the government can make an example of a person -- the people can make an example of a government representative.
- pygy_ 14y ago
  > Most people could give a crap ... I suppose you meant "couldn't". As written above, I'm well aware that getting rid of them will not solve the problem. It's more about making noise (which is all I can do from Europe regarding US politics).
  - deelowe 14y ago
    Yes, thanks for the correction.
- arthurrr 14y ago
  But you have to start somewhere. There's never going to be a silver bullet that fixes the system. Because some people (the ones in power) do not consider the system to be broken.
- 14y ago

brudgers 14y ago

Justice should not be a market transaction for the sake of efficiency. Plea bargaining is coercive. The buyer cannot walk away. Justice cannot be built upon caveat emptor. Yet, that's what we've got. The seller may withhold material facts. The answer to a broken justice system is not more injustice.

wisty 14y ago
Maybe it should. We could have a few other suggestions: Waive your fourth amendment rights. If a policeman wants to search you or your home, you can either let him, or force him to come back with a warrant. But if they need to get a warrant, and discover you had done something wrong, you're in for a heavier penalty. Waive your fifth amendment rights. You have the right to remain silent. But not answering questions will get you a heavier penalty if you are found guilty. Waive your sixth amendment rights. We already waive the right to a fair trial. Why not waive the right to counsel? If you lawyer up, you're obviously trying to obstruct justice. If you're found guilty, that's a heavier penalty. Of course, most of those are horrible ideas. They may make it easier to lock people up, but it also makes it easier for the police and prosecution to do a shoddy job and still get convictions.
- brudgers 14y ago
  If asserting one's rights is punishable, then they are not rights.
  - betterunix 14y ago
    Welcome to the reality of an expansive legal system. Sure, you cannot be punished for exercising your rights, but what that really means is that the police will try hard to find something to charge you with when you dare to stand up for yourself. It's not like you are being punished for exercising your rights, you were just punished for breaking the law.
  - wisty 14y ago
    That's often the view of the Supreme Court. But for some reason, they don't apply that logic to plea bargaining.

tokenadult 14y ago

From the end of the article: "A more sensible idea would be to require the state to provide the defence with all its evidence—particularly any exculpatory evidence—during the plea process, rather than simply during or before trial." There are a lot of pro-and-con arguments about charge bargaining (determining by negotation before trial what charges will be filed) and plea bargaining (determining by negotiation before trial what charges will be pleaded guilty to, to minimize the uncertainty of BOTH sides about the result at trial). Yes, in general the defense bar would like a world in which fewer charges can be brought, because there are fewer crimes defined by statute, and pleas of guilty are less costly, because fewer charges result in severe sentences. The criminal prosecution bar would like a world in which charges and pleas reflect the general reality of who is causing societal harm (as society currently defines that) without massively burdensome trials. The general public just want to do what they feel is right, untroubled by people they think are wrong-doers (to them). The Economist, a publication I generally like to read (I subscribe to the print edition) tends to take a position that "decriminalization" (their word choice is not usually "legalization") of many currently illegal drugs would be a helpful social policy around the world. That may be. Richard Branson's blog post "Time to end the war on drugs" from a little more than a year ago about Portugal http://www.virgin.com/richard-branson/blog/time-to-end-the-war-on-drugs http://www.virgin.com/richard-branson/blog/time-to-end-the-w... suggests that Portugal's policy of decriminalization with administratively mandatory treatment http://www.rollingstone.com/culture/lists/top-10-marijuana-myths-and-facts-20120822/myth-holland-and-portugal-have-legalized-marijuana-19691231 http://www.rollingstone.com/culture/lists/top-10-marijuana-m... reduces drug use in Portugal while reducing burden on the criminal justice system. Coming back to the submitted article's last suggestion, "A more sensible idea would be to require the state to provide the defence with all its evidence—particularly any exculpatory evidence—during the plea process, rather than simply during or before trial," it is mandatory in the United States for the prosecution to share its evidence with the defense before trial. Failure to do that can result in the reversal of a conviction. But a defendant like Aaron Swartz was able to lawyer up enough, and do enough pretrial investigation, to be quite aware of what exculpatory evidence was on his side. He had other channels for protesting about the issues that concerned him, and he had the choice before him of doing what Thoreau, Gandhi, and King did of protesting a law he thought was unjust by publicly accepting imprisonment for it after a trial. Even after criminal law reform, there are still going to be people who think that their approach to solving personal problems shouldn't be subject to criminal sanctions, with laws still being on the books against their overt behavior. This problem of many possible charges and a drive on both sides in the criminal justice system to bargain can be reduced, but it cannot be eliminated, maybe especially in cases like that of Aaron Swartz.

bo1024 14y ago

Terrible journalism on this issue makes me really angry. First sentence: > AARON SWARTZ , who committed suicide two weeks ago, had been arrested for illegally downloading millions of articles from JSTOR, an archive of academic journals. Dead wrong.

thingylab 14y ago
You just did the equivalent of a user calling tech support saying "my computer doesn't work".
danso 14y ago
Not sure what's so completely wrong about that statement. Though I learned in journalism school that you should always say "allegedly" after the phrase "arrested for"...I figured the Economist, based in London, would be even more uptight about that given their libel laws.
- bo1024 14y ago
  He wasn't "allegedly" arrested for downloading files illegally. He was never accused of or charged with copyright infringement. He was accused of various forms of "hacking" and trespassing.
  - danso 14y ago
    > had been arrested for illegally downloading millions of articles from JSTOR The OP, as you pointed out, says illegally downloading. The illegal part, ostensibly, comes from the alleged "hacking". There is nothing about copyright infringement implied here, though yes, that's the natural connotation of "illegal download"

alt2319 14y ago

Well 1030(a) violations didn't used to have a mandatory minimum sentence, but they got added after congress was afraid Kevin Mitnick could launch nuclear missiles from a pay phone. When I was charged with a 1030(a) crime, I faced a mandatory minimum of 6 months in prison. No plea bargain could reduce that. If I was convicted, I was likely facing the exact same sentence because my damages were so low that I wouldn't normally qualify for any prison time at all under federal sentencing guidelines. So the main reason to plea bargain was to avoid paying an attorney or using a public defender. It also got the case over within 6 months rather than 2 years so I could move on with my life quicker. It could get even worse as Congress keeps wanting to increase the mandatory minimums and don't really understand the laws or the internet. http://www.volokh.com/2011/05/24/congress-considers-increasing-penalties-adding-mandatory-minimum-sentences-to-the-computer-fraud-and-abuse-act/ http://www.volokh.com/2011/05/24/congress-considers-increasi...

kscaldef 14y ago

The re-titling of this article here on HN(#) I feel misses an important point that it's trying to make. While we are all affected by the death of Aaron Swartz as a member of our community, when it comes to issues of prosecutorial / judicial excess, hackers are an extreme minority. Most victims of overly aggressive prosecution are disadvantaged racially, socio-economically, educationally, and are often addicts in need of medical treatment. Aaron was privileged in all these ways which most people in the grips of our legal system are not; and while his privileges don't lessen the tragedy of his death or the injustice of his situation, they are the reason his name has national recognition at this point. Describing the situation as "Aaron Swartz was Screwed by the War on Drugs" ignores the millions of other nameless, faceless people who have also been screwed by it. It's fine to use Aaron as an example. If his privilege can be leveraged to effect greater change in society then there is some positive to be found in it, but I get a bad taste in my mouth when I see many people limiting their concerns solely to other hackers. (#) EDIT: The original title from The Economist has been restored since I posted this.

quahada 14y ago

"Prosecutors will always wield a great deal of power in the American criminal system; but before a defendant agrees to plead guilty, he ought to know whether the state holds four aces or a busted flush." I am not a lawyer, so I'm shocked to learn that you can plead guilty to a crime without the opportunity to review all of the evidence against you.

betterunix 14y ago
Perhaps you should take a closer look at the justice system. What typically happens is that you are offered a plea bargain, and if you refuse to take it, the government will add more criminal charges to the case. There have even been cases where the government delays prosecution until a convict is released, and then arrests him and sends him right back to court. The ultimate problem here is an overly expansive legal system, which is made worse by an obscenely powerful executive branch of government. We are desperately in need of reform, but we are a nation that is populated by right-wing law-and-order types, and whose politicians are mostly from that same category (yes, that includes the Democrats, who have no aversion to using paramilitary police teams to serve search-and-arrest warrants and who appoint people like Carmen Ortiz).
- quahada 14y ago
  Interesting. I think part of the fundamental problem is that more criminal activity advances the careers of people who work in the criminal justice system. They have an incentive to turn small crimes into big ones. Then they cry about how much crime there is. Then they demand harsher penalties & laws to criminalize more things. This is a positive feedback loop. The system has gone out of control.
- erichocean 14y ago
  we are a nation that is populated by right-wing law-and-order types You do realize that trial lawyers vote overwhelmingly for Team Blue, right? And that the legal profession as a whole votes overwhelmingly for Team Blue? And that law schools themselves are overwhelmingly Team Blue voters? I get the whole "Red Team supports putting (their idea of) moral laws into the legal code", and that sucks, but the law problem exists because both teams are pushing it down the wrong track. Don't for a second think you can just blame flyover country for the current state of the legal system.

sv123 14y ago

For anybody not familiar with how messed up the war on drugs is, these are both great primers: http://www.breakingthetaboo.info/ http://www.breakingthetaboo.info/ http://www.thehouseilivein.org/ http://www.thehouseilivein.org/

murbard2 14y ago

Economist David Friedman has a good take on it. Athenian justice had a way to deal with this issue. http://daviddfriedman.blogspot.com/2013/01/overcharging-aaron-swartz-case.html http://daviddfriedman.blogspot.com/2013/01/overcharging-aaro...

SparrowOS 14y ago

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