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

------
alt2319
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...](http://www.volokh.com/2011/05/24/congress-considers-increasing-
penalties-adding-mandatory-minimum-sentences-to-the-computer-fraud-and-abuse-
act/)

------
arbuge
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.

~~~
InvisibleCities
But how will we keep our private prisons profitable?

~~~
erichocean
Not to mention pay for those inflated prison guard pensions?

------
richeyrw
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.

~~~
rdl
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
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.

------
brudgers
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.

~~~
jpwagner
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?

~~~
alan_cx
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.

~~~
jpwagner
_...rather a guilty man gets off than an innocent being wrongly convicted..._

obviously. but you have to actually show that the possibility of a "plea
bargain" trades one-for-one (or anything unreasonable) for your argument to be
convincing.

~~~
brudgers
The idea that convicting the innocent is the ultimate injustice is not an
argument, it is a moral stance.

That moral stance accepts the possibility of human error to a degree which
makes it impossible to meet the standard you propose.

~~~
jpwagner
a "jury of your peers" is no more infallible

~~~
brudgers
There aren't degrees of infallibility and a jury of one's peers may be less
fallible.

------
pygy_
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-...](https://petitions.whitehouse.gov/petition/fire-assistant-us-attorney-
steve-heymann/RJKSY2nb) 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
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.

~~~
josefresco
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.

~~~
deelowe
I didn't say that at all. I'm just more interested in real change vs. a witch
hunt.

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

------
sv123
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/>

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

~~~
betterunix
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.

------
tokenadult
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...](http://www.virgin.com/richard-branson/blog/time-to-end-the-war-on-
drugs)

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

[http://www.rollingstone.com/culture/lists/top-10-marijuana-m...](http://www.rollingstone.com/culture/lists/top-10-marijuana-
myths-and-facts-20120822/myth-holland-and-portugal-have-legalized-
marijuana-19691231)

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.

~~~
dizzystar
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.

------
quahada
"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
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).

~~~
erichocean
_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.

~~~
betterunix
...so you think a party whose prominent politicians have a history of:

* Using drone strikes to kill citizens who never received a trial

* Sending paramilitary police teams in to raid medical marijuana facilities, at an accelerated rate, to promote the interests of friendly business partners

* Negotiating secret trade agreements that promote the interests of another group of friendly business partners

* Spend more on the military than on education

* Ignore the expressed will of the people

* Arrest opposition candidates who attempt to sit in the audience at presidential debates

* Continue the expansion of executive power

* Pass, and sign into law, a bill that allows indefinite imprisonment without trial

...to not be right wing? Oh, right, they support the right of gay people to
marry. Congratulations, while gay people get to marry, the rest of us can be
shot by soldiers serving a search-and-arrest warrant because a suspected drug
dealer used to live at our address (or maybe not, whatever).

~~~
erichocean
I assume "right-wing" is a synonym for Red Team, and "left-wing" a synonym for
Blue Team.

But your point is a good one: both teams support some appalling legal and
military policies against their own citizens.

------
murbard2
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...](http://daviddfriedman.blogspot.com/2013/01/overcharging-aaron-swartz-
case.html)

------
bo1024
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.

~~~
danso
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
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
> _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"

