
Plea Bargaining and Torture in light of the Aaron Swartz case - soundsop
http://blogs.law.harvard.edu/philg/2013/01/15/plea-bargaining-and-torture-in-light-of-the-aaron-swartz-case/
======
jforman
In 1984, a commission found that federal sentencing was too arbitrary (making
us a "nation of men" rather than a "nation of laws") and so mandatory federal
sentencing guidelines were enacted by Congress (the supreme court later made
them not-quite-mandatory, but the restriction on judges is still pretty
great).

However, judicial discretion was an important check against prosecutorial
zeal, and the unintended consequence of reducing arbitrariness at the judicial
level has been an increase in control at the prosecutorial level.
Systemically, prosecutors are incentivized to put people away, as their
careers aren't shielded like those of judges. We may be more a "nation of
laws" than before 1984, but combined with punishments most people would
consider unjust we've drifted toward being a police state.

In my opinion, if there's one thing to take away from this terrible tragedy,
it's that we need a commission to study this systemic effect and recommend
ways to make the justice system more just. I can't make myself blame the
prosecutors involved when most federal prosecutors are similarly heavy-handed
(and, quite possibly, were acting within a reasonable interpretation of the
the law).

~~~
rdtsc
> I can't make myself blame the prosecutors involved when most federal
> prosecutors are similarly heavy-handed

I can. Just because there are 1000 bullies doesn't make each one of them less
of a bully. The system has its constraints but it is still up some human to
pick cases from the pile and decide if and how many charges to press.

Now it seems the country is a in a pretty good state if there are no harsher
and more terrible criminals left to prosecute than a 25 year old downloading
scientific articles, which even the original victim claims have been retrieved
and there is no need to do anything.

Whoever authorized the prosecution of that case and spent tax money on it, and
everyone else in between who _didn't_ say "Wait a minute, this is crazy,
surely there are some cases to spend the money on" is responsible.

~~~
MaysonL
The trouble is, many, possibly most, people are prone to be bullies under the
wrong circumstances. See the Stanford prison experiment, and Stanley Milgram's
torture experiment.

When the entire system of incentives for prosecutors rewards bullying,
extortion, and intimidation, and punishes leniency or compassion, we shouldn't
be surprised by the results.

------
linuxhansl
Even six months in prison is no walk in the park.

The article has is completely right. If the nominal penalty is 100 years and
somebody gets 12 years after a plea bargain, that person is still locked away
for a long time and the prosecutor can say "See, we're not so bad, we granted
an 78% reduction of the sentence".

Pathetic.

As I said before, in most other civilized countries the maximum penalty is
between 10 and 20 years prison (and that is for 1st degree murder).

~~~
tlrobinson
While I agree many of our punishments are too harsh, it seems absurd to me
that Anders Breivik, who murdered _77 people_ in Norway, only received a
sentence of 21 years in prison.

Maybe because I'm American. Are Norwegians ok with this?

~~~
Julianhearn
20 years for 77 murders, equals 3 months for each life. That also excludes all
the other crimes he committed. If he knew he would get 20 years per person
would he have murdered anywhere near 77 people? Plus how do the families of
victims feel if their lives are only worth 3 month each?

~~~
henrikschroder
I'm sorry you got downvoted, but you are in a nutshell describing the vast
difference in the purpose of the justice system between Northern Europe and
the US.

You frame it as a question of headcount and worth and vengeance. And from that
standpoint you conclude that the _vengeance_ exacted on Breivik was not
enough, given his crimes.

But over here, the purpose of punishments in the justice system is ultimately
about protecting society and rehabilitating criminals. Vengeance plays no
part. And if he can be a productive member of society again after
rehabilitation in prison, that's better than him taking up resources as a
prisoner.

~~~
Julianhearn
If its just about protecting society and rehabilitating why is the recommended
sentence longer for murder than for say rape? The simple answer is that murder
is seen as a worst crime, so you serve more time. So how can killing 77 not be
worst than killing one person? There is more to the justice system than just
protecting society and rehabilitation. If breivik was fully rehabilitated and
no longer a threat after one year why not let him out?

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jpatokal
The study referenced is very worthwhile reading:

 _The dominant version of American plea bargaining makes simi lar demands [to
the Inquisition]: it requires the prosecutor to usurp the determinative and
sentencing functions, hence to make himself judge in his own cause. I cannot
emphasize too strongly how dangerous this concentration of prosecutorial power
can be. The modern public prosecutor commands the vast resources of the state
for gathering and generating accusing evidence. We allowed him this power in
large part because the criminal trial interposed the safeguard of adjudication
against the danger that he might bring those resources to bear against an
innocent citizen-whether on account of honest error, arbitrariness, or worse.
But the plea bargaining system has largely dissolved that safeguard._

Direct link:

[http://www.judicialstudies.unr.edu/JS_Summer09/JSP_Week_4/JS...](http://www.judicialstudies.unr.edu/JS_Summer09/JSP_Week_4/JS710Wk4.LangbeinTorandPleaBargtxt.pdf)

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arikrak
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.

~~~
csense
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?

~~~
rhizome
To the degree that your contention is true, we can call a prosecutor "bad" who
turns B's into A's through careerism or other motivation to intransigence.
That some prosecutors will seek to decide for themselves who is an A and who
is a B is an occupational hazard for them, and politically I would call it a
form of mental illness.

~~~
csense
I recall reading a critique of the US prison system which said it has a
tendency to turn B's into A's. I'm not sure how true this is, and I can't
quite recall the exact mechanism which was outlined -- I think it was
something along the lines of giving B's months or years of 24/7 exposure to an
environment where being an A is common and socially acceptable.

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barce
What Attorney Stephen Heymann did to James and Schwartz is a very old story. I
can't believe nobody has brought up the parallel yet, but this story is very
much like Les Miserables. In "Les Mis," an ex-convict who decides to lead an
upstanding life is dogged by an law enforcement officer who sees the ex-con's
bending of the rules to help others as criminal.

[http://en.wikipedia.org/wiki/Les_Mis%C3%A9rables_%28musical%...](http://en.wikipedia.org/wiki/Les_Mis%C3%A9rables_%28musical%29)

~~~
Gmo
Surely, linking to the original content (i.e. the book) would be better, don't
you think?

<http://en.wikipedia.org/wiki/Les_Mis%C3%A9rables>

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keeptrying
Thats 6 months plus a felony on his record right? For downloading a few files.
Its disgusting.

~~~
tzs
That's a rather gross mischaracterization of what he was accused of. There's a
good description here: <http://www.volokh.com/2013/01/14/aaron-swartz-
charges/>

~~~
lawnchair_larry
Doesn't look like it is to me. The charges are absurd. What is wrong with you
people?

~~~
tzs
Got any actual reasoning to offer? All you've done so far is make an
unsupported assertion.

~~~
maxerickson
The expert witness that was working with the defense states that JSTOR did not
require passwords from computers on MITs network:

[http://unhandled.com/2013/01/12/the-truth-about-aaron-
swartz...](http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-
crime/)

Attaching serious criminal charges to the act of feeding an automated system
input that the automated system does nothing to verify is crazy (that is, it
isn't wire fraud to use a variety of email addresses on a system that does
nothing other than note the address that was input).

The indictment uses language like "Although a MAC address is intended to be a
permanent and globally unique identification". And yet nobody serious about
security has any expectation that a MAC address is permanent or globally
unique (it is well understood that they aren't particularly useful for
authentication).

If the government wants to attach serious charges to accessing computer
systems, there should at least be some sort of notification that the provider
of the system considers the system to be protected under federal law, not this
running backwards to say that accepting an email address or having the
capability to block a MAC address somehow makes a network 'protected'.

To be perfectly clear, I'd be entirely fine with a broadly applicable lesser
charge that applied more generally to computer tampering, for cases where the
prosecutor wanted to argue that a user exceeded intended access and such.

~~~
mpyne
> The expert witness that was working with the defense states that JSTOR did
> not require passwords from computers on MITs network

The problem with this logic is that it assumes the content hoster has the
_responsibility_ to actively keep attackers away. Sure, it's a great idea, but
is it really their duty to stop from being victimized?

If a bank left their assets in the middle of the lobby they'd be stupid, but
it would still be theft on the part of the robber when it inevitably gets
stolen.

~~~
maxerickson
A better analogy might be that having stolen some magazines from a bookstore
(a surprisingly large number of magazines...), the thief was charged with
breaking and entering and safe cracking, rather than shoplifting.

And people that attach computers to the public internet absolutely do need to
be treated as responsible for the information that those computers transmit.
If they want to claim that they intend to limit access to the information,
they need to take meaningful steps to actually put limits in place.

I don't mean to say that there should be no recourse in situations where
intended access is exceeded, I mean that the bar for a 30 year felony needs to
be a little higher than "we didn't intend for our system to be accessed in
that manner".

~~~
mpyne
> And people that attach computers to the public internet absolutely do need
> to be treated as responsible for the information that those computers
> transmit. If they want to claim that they intend to limit access to the
> information, they need to take meaningful steps to actually put limits in
> place.

That goes entirely against the principles on which activists claim the Web is
based on. Instead of a democratic network where anyone with an IP address can
fire up an httpd and be (in theory) just as equal as any other DNS entry,
you're saying there needs to be technical measures put in place to enforce an
"honor code". What's next, DRM on mp3 files?

But either way, they and MIT both took _many_ "meaningful steps" against
aaronsw, and he sidestepped every one.

> I don't mean to say that there should be no recourse in situations where
> intended access is exceeded, I mean that the bar for a 30 year felony needs
> to be a little higher than "we didn't intend for our system to be accessed
> in that manner".

Luckily, 30 years wasn't the sentence in question, even with the heavy-handed
prosecution in place, and what transpired was more than "our system was
accessed once in an unintended fashion". So the bar probably does need to be
moved, but it's not as if he simply wandered near the wrong Wifi hotspot and
accidentally mirrored a website...

~~~
maxerickson
I'm saying if you choose to configure your server to answer a request, you had
better not come back later saying you didn't mean to answer that particular
request. It's exactly in the spirit of the web, publishing something at a url
is a grant of access to whatever was published.

So what was the sentence in question?

------
piokoch
"The Catholic Church decided in the Middle Ages that too many people were
getting convicted of crimes that they hadn’t committed. They instituted a rule
that said nobody could be convicted without either two eyewitnesses or a
confession. Convictions became difficult to obtain. Since it was not possible
to obtain extra witnesses, the Church decided to torture defendants until they
confessed."

That's unfortunatelly typical anti-church misconception that does not have any
support neither in fact nor in common sense.

Why Catholic church introduced demand for two wittnes, if they can do away
without that condition??? Why they created obstacle for themselves???

As a matter of fact Catholic church introduced that condition to stop feudal
unjustice and cruelty. That partly failed, since "civil power" started to use
tortures.

Catholic church created then Inquisition, so, at least, stupid monarch and
feudal masters could not kill or burn people they did not like for heresy
(Jews, for instance) and witchcraft.

Note, that most anty-witches trials were in Protestant coutries. In Catholic
countries (Poland, for instance), there was no "anty witches campaigns" and
Jews from all over the Europe were moving to Poland in large numbers (or, to
be more precise to Polish-Lithuanian Commonwealth).

------
ratsbane
Perhaps someone here who actually is a lawyer can answer this or correct my
understanding... Under current rules, any plea bargain offers by a prosecutor
can't be introduced into the trial. What if that were changed? What if, at the
same time a jury is told that the maximum sentence is 47 years imprisonment
they were also told the details of any plea-bargain negotiations, such as that
the prosecution had been willing to accept 3 months? Might this help to
mitigate the perverse effects of the plea bargain system we have now?

~~~
pyre
Well, it's usually the judge that makes the sentencing determination. A jury
is just there to determine guilt or innocence. If a jury knew that the
prosecutor was willing to take a 90% reduced sentence, but they still feel
that the defendant is guilty, that wouldn't change anything.

------
rms
Where is the interview with the defense attorney referenced in this article?

------
TruthElixirX
<http://nevertakeaplea.org/>

I have been a proponent of this since before the Aaron Swartz case. Plea
bargains are used because the system would completely grind to a halt
otherwise. And it should. The machine eats people's lives.

Never take a plea.

~~~
eurleif
>(EDITOR’S NOTE: This post is about government employees stealing money the
government itself has stolen, and since it’s about theft, it is a crime with a
victim, namely those who put money into the parking meters.)

So this is a radical libertarian (or thereabouts) thing.

Not that there's necessarily anything wrong with that. But it's worth noting
that it isn't apolitical.

~~~
monochromatic
Saying that the criminal justice system should grind to a halt goes well
beyond the radical side of libertarianism.

~~~
veidr
Well, I took it to mean that the system should grind to a halt with as much
bullshit as there is clogging it up, thereby forcing us (as a society) to
choose what is really important to prosecute.

E.g., not a guy with a little baggie of weed, or a guy downloading some
academic papers he isn't allowed to.

~~~
TruthElixirX
This is exactly what I was trying to say. Millions of dollars shouldn't be
spent prosecuting people like Aaron. It is a waste to society in several ways.

