
Incarceration as Incapacitation: An Intellectual History - barry-cotter
https://americanaffairsjournal.org/2018/08/incarceration-as-incapacitation-an-intellectual-history/
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mchannon
Two overlooked areas that explain the rise of the high-throughput prosecutor:

 _1\. The war on drugs_

If you look at the statistics, the biggest surprise is how many offenders
aren't in prison for drugs, and how many of them are in for violent offenses.
It doesn't square with the romanticism that most prisoners are nonviolent drug
offenders.

We saw a similar spike in crime during prohibition, where alcohol wasn't
obviously involved, but the fact it was illegal gave rise to the violent
crime. The overlooked fact is that the drug war makes for a lot of violent
crime, even though "drugs" never shows up on the police report or indictment.

 _2\. Plea bargaining, or how to be a used car salesman_

Picture yourself in trouble. Maybe you robbed somebody or killed somebody. And
now the system has you. You face up to life in prison. With anticipation, the
prosecutor gives you a plea offer. Plead guilty, you get 15-20 years. Plead
not guilty, she'll add in more charges to put you away for good.

Or at least that's what she says will happen. If you're like 99% of people in
that boat, you'll never find out, because that 15-20 sounds a helluva lot
better than life.

But no one ever studies that 1% of the population that tells the prosecutor to
pound sand with her deal. For this edge case, there's a nonzero chance the
prosecutor will dismiss the counts the day right before the trial begins
because the evidence or witnesses didn't materialize. Or even if you're found
guilty, and the prosecutor is livid they had to spend 3 weeks in court
convincing a jury you're guilty on all counts, the judge might see some
mitigating circumstances or simply be in a good mood when it's time for you to
be sentenced. Maybe you'll get life, or maybe you'll only get 5 years because
the victim was unsympathetic and there were mitigating circumstances.

When plea bargaining was a novelty, prosecutors didn't know about demand-based
pricing. They'd handicap the most likely outcome and discount it in order to
save themselves the work.

Nowadays, they're just like used car salespeople. What they'd get at trial no
longer factors into their offers. Like any other monopoly, the highest offer
you'd take is what you'll have to pay in order to avoid trial.

The information asymmetry makes it all possible. If a disinterested
professional, not a prosecutor, not a defense attorney, appraised your case at
12.3 years if taken to trial, you'd tell the prosecutor to take her 20 year
offer and shove it.

But no disinterested professionals exist. So we send people away for longer
and longer periods, swelling our prison population.

Behold the unreasonable effectiveness of information asymmetry.

This doesn't explain the full effect- we're not just seeing longer sentences
but more prisoners. Here's how this happens: the prisoner boom comes from the
increased idle time prosecutors can achieve through ubiquitous plea
bargaining. No longer having to triage which cases they have time to take to
trial, they can write 100 plea deals in the time it takes to get one trial
done. If society were to curtail plea deals, even some minor aspect like
refusing to allow bargainers to waive appellate rights, the numbers would
start reverting to lower levels immediately.

If you think everybody accused deserves to be punished harshly, you'd probably
think this system works well. If you think the lowest quality cases ought not
be prosecuted and we should have fewer prisoners serving less time, then it
thus becomes an act of altruism for a guilty individual to plead not guilty
and take it to trial.

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sandworm101
There are counties in the US that have not heard a jury say "not guilty" for
decades. Dont assume prosecutors cannot win even a very shaky case. Bargaining
is the better bet.

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mchannon
By the time it gets to a jury, it's typically a lock.

But prosecutors lose plenty of cases by surrendering before it gets to a jury.
Doesn't count against their sky-high conviction rate, either.

For that vanishingly small number of people who refused to take a plea and
walked, go tell them bargaining was the better bet.

Bargaining wasn't the better bet in my case either, no matter how many lawyers
pressured me to take one.

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TheForumTroll
Are there any differences on "prisoner" and "slave" ?

~~~
taneq
Prisoners have probably done something to deserve it?

~~~
GW150914
Putting aside innocent people in jail, what about the people in for drug
crimes, immigration issues, and non-violent offenses? Actually putting _that_
aside, what exactly does someone need to do to “deserve” slavery? What’s the
bar? I also don’t see any reformstive power to slavery, and the penal system
is supposed to be at least partly about reform.

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talenos
American Affairs is a really interesting journal

