How mandatory minimum sentences distort plea bargaining

http://www.economist.com/news/united-states/21570742-how-mandatory-minimum-sentences-distort-plea-bargaining-thumb-scale

by josephby • 13 years ago

151 78 13 years ago

economist.com

GotAnyMegadeth• 13 years 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• 13 years ago

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

arbuge2• 13 years 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• 13 years 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• 13 years ago

But how will we keep our private prisons profitable?

erichocean4• 13 years ago

Not to mention pay for those inflated prison guard pensions?

Spooky23• 13 years 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.

arbuge2• 13 years 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• 13 years 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• 13 years 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_cx2• 13 years 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...

rdl• 13 years ago

Prisoner's Dilemma, though -- if you're the only guy who participates, you end up worse off. It would take a reasonably large number to tip, and you get progressively worse off until a critical value is reached, as your trial will be delayed more.

notahacker• 13 years ago

I can't help thinking the payoffs ought not to be in Prisoners' Dilemma form though; i.e. there should be a realistic chance a defendant facing a mandatory minimum sentence most juries would consider excessive might expect to be acquitted by jury nullification.

pygy_2• 13 years 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-... 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.

deelowe3• 13 years 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.

pygy_2• 13 years 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).

arthurrr• 13 years 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.

josefresco• 13 years ago

To say the prosecutors directly involved in this case do not hold any responsibility is quite shocking. Throwing your hands up and saying "it's not my fault it's the system" is a complete BS excuse in my view.

These prosecutors and even MIT staff (among others) had on multiple occasions the opportunity to alter the course of this case. Law enforcement and the justice system is not, and in my view should not be a massive array of machines coldly executing laws and prosecuting offenders without any variance.

Sometimes while seemingly unfair to the individual simply "doing their job", prosecuting a "cog" or part of this apparently flawed system of justice can be the impetus for change and send a message to the others to use proper judgement when deciding to pursue cases and what charges they actually bring.

runjake• 13 years ago

Just as the government can make an example of a person -- the people can make an example of a government representative.

betterunix6• 13 years ago

Firing her would give other prosecutors a reason to think twice about aggressively pursuing a case. Something along the lines of, "Ortiz was fired over this sort of thing; maybe I should not try to abuse the law the way she did."

It might be overly optimistic to think that, but really, the government needs an occasional reminder that it serves the people and that angering us is a bad idea.

brudgers7• 13 years 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.

hawkw• 13 years ago

Agreed. The whole idea of justice-as-transaction is an obscene perversion of true justice.

wisty2• 13 years 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.

brudgers7• 13 years ago

If asserting one's rights is punishable, then they are not rights.

pc86• 13 years ago

I completely agree that if you're the target of an investigation and force the police to get a warrant and then assert the 5A right, you're in for a world of hurt if things go south.

I do not, however, think retaining counsel will engender the ire of the police or the prosecution. If it would have any effect, I think it would be in the fact that one the whole 99.9%+ of non-lawyers would make terrible defense counsel and the prosecution would get away with things a barred attorney would be objecting to (within reason from the judge, of course).

jpwagner6• 13 years ago

I doubt anyone disagrees with your idealism, but take the example of a guilty man who has a small but real chance of avoiding any repercussion due to mistrial. It benefits the prosecution, the defendant, and society if there can be a way to mitigate that risk by shortening his punishment.

The real question becomes how do you propose fixing the cons that arise from this obvious benefit?

elmuchoprez2• 13 years ago

What is the obvious benefit and how are you quantifying it?

alan_cx2• 13 years ago

I would rather a guilty man gets off than an innocent being wrongly convicted every single time. Law is there to protect the innocent first, if not, then it has no purpose. The guilty and always be gotten later on, the wrongly convicted innocent is ruined for life. If the innocent cant rely on the justice system, again, it is fundamentally broken.

brudgers7• 13 years ago

[IANAL]

In common law "guilty man" has already been convicted. It is the accused who plea bargain.

[/IANAL]

But I will take a bite at your idealism and for the sake of conversation presume you are speaking of morality and forgo debating whether there is a persistent nexus between one's legal and moral responsibilities - the heart of the Swartz tragedy.

When our guilty man bargains in his interest, it is an individual choice. When the government presses for plea bargains in order to reduce the number cases which go to trial, it is a matter of policy - a policy based upon facts unrelated to the guilt or innocence of the guilty man. The policy treats the morally innocent and morally guilty identically. This should give us pause.

Our very notions of moral justice require its agents to treat the morally innocent and the morally guilty differently. An agent who treats the morally innocent and morally guilty identically cannot be dispensing moral justice. As such an agent, the government is neither moral nor immoral. It is amoral. The facts of the case cease to matter. Convictions justify the means of coercion.

I am willing to accept that some may see this as an "obvious benefit" - e.g. Thomas Hobbes accepted the amoral government as the least worse among the alternatives and with such a sovereign, the morally guilty man bargaining for a lesser sentence is always just:

  "A Mans Covenant Not To Defend Himselfe, Is Voyd."

Of course, given Hobbes view of morality, we may be better just sticking with the legal sphere:

For Morall Philosophy is nothing else but the Science of what is Good, and Evill, in the conversation, and Society of mankind. Good, and Evill, are names that signifie our Appetites, and Aversions; which in different tempers, customes, and doctrines of men, are different...

betterunix6• 13 years ago

Here I was, thinking the we wanted to eliminate the risk of an innocent man who accepts a plea bargain because he fears that he will lose a trial. That happens all the time, far more frequently than guilty men being released due to a mistrial.

Society is actively harmed when innocent men accept plea bargains and admit (falsely) to committing a crime. People lose their faith that the justice system actually protects them when their friends are all imprisoned despite having done nothing wrong. Take, for example, the widespread fear among the police of a public with lots of cameras -- it's not that the majority of cops are worried about their corruption being caught on camera (most cops are not corrupt), it's that they fear that a recording of their actions will be edited to make it appear that they were corrupt. Only someone who has lost their faith in the criminal justice system would engage in such an act, and such people have lost their faith because they keep seeing people go to prison without receiving a trial, regardless of guilt of innocence.

tokenadult• 13 years 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-w...

suggests that Portugal's policy of decriminalization with administratively mandatory treatment

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.

mikenon• 13 years ago

In Portugal, the panel that oversees non-criminal drug cases doesn't have the ability to mandate treatment. From Richard Branson's blog post, "Under Portugal’s new regime, people found guilty of possessing small amounts of drugs are sent to a panel consisting of a psychologist, social worker, and legal adviser for appropriate treatment (which may be refused without criminal punishment), instead of jail." The Wikipedia article has some more information http://en.wikipedia.org/wiki/Drug_policy_of_Portugal#Regulat...

Camillo• 13 years ago

I don't think all prosecutors are as idealistic as you suggest. It seems that some of them are more concerned with scoring points for their political career than they are with who or what is causing actual societal harm. Of course, that might have something to do with how their incentives are structured.

nzealand• 13 years ago

At a federal level criminal defendants face increased sentences if they do not plea out. Even worse, criminal defendants will get hit with additional charges. So the choice is, either admit guilt, or we will throw every charge we can at you. Due to weakening of double jeopardy laws, defendants often first get prosecuted at a state level and then can face similar charges at a federal level. The system gives too much power to a prosecutor, whose only measure of success is number of convictions, and who will face no penalty for wrongful conviction. Lost evidence is also a problem, but I think it is secondary.

joe_the_user• 13 years ago

Yes, in general the defense bar would like a world in which fewer charges can be brought ... The criminal prosecution bar would like a world in which charges and pleas reflect the general reality of who is causing societal harm ...

Seems like you are spinning things here. Even if we are generous and say all the prosecutors in the end only, sincerely want to keep all the dangerous criminals off the streets, it easy to expect that they'd want a very large number of charges available so they would have tremendous leverage to force plea-bargaining without the inconvenience of a trial - a situation which many people would say more or less already exists today.

dizzystar• 13 years ago

In Re: Richard Branson;

One person told me years ago that the problem with drug use is a simple case of society. The way the laws are set up now encourages more drug use because you are a rebel for doing them. In places like Amsterdam or Portugal, you are not a rebel: you are sick. No one wants to be sick. That simple shift in attitude, he believed, would be enough to drop drug use significantly.

I think I agree with his logic.

bo10242• 13 years 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.

danso2• 13 years 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.

bo10242• 13 years 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.

thingylab• 13 years ago

You just did the equivalent of a user calling tech support saying "my computer doesn't work".

nextstep• 13 years ago

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

betterunix6• 13 years 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.

alt2319• 13 years 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-increasi...

kscaldef• 13 years 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.

quahada2• 13 years 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.

betterunix6• 13 years 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).

quahada2• 13 years 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.

erichocean4• 13 years 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• 13 years 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.thehouseilivein.org/

murbard2• 13 years 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-aaro...

How mandatory minimum sentences distort plea bargaining

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