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Confessions of an Ex-Prosecutor (2016) (reason.com)
204 points by Tomte 7 months ago | hide | past | web | favorite | 220 comments



One thing I would love to see taken off is plea deals. It's abused often, "plead guilt and do 2 yrs take a chance that if you lose we will give you the maximum 20 yrs" If someone deserves 20 yrs, then they don't deserve 2 yrs no matter the cooperation. If someone deserves 2 yrs, they don't deserve 20 yrs. Time served should be all about serious of crime and how long we think it would take to rehabilitate the person. It's all fucking games.


I live somewhere (Scotland) where there are no plea bargains. The whole concept seems bizarre to me, essentially negotiating punishment (especially having the prosecution involved in deciding the punishment).


Scotland seems to have negotiated mechanisms that are similar to plea bargaining. It appears that prosecutors can make deals with defendants to replace more serious charges with less serious charges, which carry less jail time, if the defendants agree to plead guilty to those charges. Scotland also appears to give a substantial sentence reduction for defendants who plead guilty early.

"PLEA AND CONFESSION BARGAINING IN SCOTLAND" [1]

"Tensions and balances, costs and rewards: the sentence discount in Scotland" [2]

"Furious 'stalking' victim slams courts for striking plea bargain with man who 'made her life a misery'" [3]

[1] https://www.ejcl.org/103/abs103-8.html

[2] https://core.ac.uk/download/pdf/1422462.pdf

[3] https://www.dailyrecord.co.uk/news/scottish-news/crown-offic...


Scotland absolutely has plea bargains, and it's quite prevalent. The distinction with the U.S. system is that the judge is not as involved in the negotiations.[1]

  The process of charge and fact bargaining is entirely
  dependent on informal negotiations between the
  prosecution and the defence. There is no involvement
  on the part of the judge. Scotland does not operate
  a system of American-style sentence bargaining. This
  means that the prosecution cannot guarantee to the
  accused that a particular sentence will result if he
  pleads guilty (unless the bargain means that the
  court’s sentencing powers are reduced because, for
  example, the offence to which the accused eventually
  pleads guilty has a maximum sentence).
(https://www.ejcl.org/103/art103-8.pdf)

Also, IIUC in Scotland the prosecutor can often impose civil fines and other remedies in lieu of prosecution and do so completely independently of a court. Whereas in the U.S. such arrangements are less often in lieu of prosecution; rather they're terms of an actual conviction and still involve a court formalizing things.

Really it seems the difference between the Scottish and U.S. system is largely semantics, and of course the fact that the criminal justice system in the U.S. is just plain harsh. Our harsher penalties compounded by charge stacking effectively gives courts huge leeway in terms of sentencing. Nobody would agree to plea for a small penalty if a court could unilaterally impose the harshest option. Combined with our constitutional law that all but prohibits a prosecutor from imposing penalties unilaterally (voluntarily or not), and it's clear why our plea bargaining process involves the judge and so-called sentence bargaining more so than in other similar systems.

[1] Or rather, the court gives little or no weight to the terms of the "contract" between the defendant and prosecutor, which can increase the risk for the defendant. Whereas in the U.S. the court has much less discretion to ignore the terms of a plea bargain, and in addition the judge will often mediate, which of course all but guarantees his imprimatur. Therefore there's less risk for a defendant and he will be more likely to take a plea deal.


Scotland is also somewhat unique for having "the Scottish verdict":

* You're not guilty, but don't do it again.

https://en.wikipedia.org/wiki/Not_proven


According to my defense attorney friend, a 2 plea and 20 trial offer means a few things:

- It’s considered a 2-year crime.

- The 20 (that seemed high to him for a 2 year plea) is a fuck you for going to trial when you are almost undoubtedly guilty. As someone else mentioned, it seems to show a lack of remorse.

- Note that both sentences will probably have time off for good behavior as well as possible probation. This can make each of the sentences less daunting (e.g., “2 years” might end up as 6 months served and 1.5 years probation).

- Cooperating is a totally different issue. They use that to get a bigger fish (usually).


>The 20 (that seemed high to him for a 2 year plea) is a fuck you for going to trial when you are almost undoubtedly guilty

Innocent until proven guilty is supposed to be the fundamental value of our justice system, this is the core issue I personally take with plea deals.


I don’t understand why you say that. Basically the prosecution has a lock on evidence that makes them think they can comfortably convict. They offer the defendant a standard plea to 2.

The issue typically isn’t innocence (they’re guilty), it’s an issue of how the defendant handles his guiltiness.

If there is a lack of evidence or a strong alibi, then typically the DA won’t threaten a trial — they will drop it or offer a lesser crime (depends on the context).

DAs don’t make a career of threatening trials for cases that aren’t locks. They want high conviction rates.


The intuitive concept of justice that the average person has involves a couple things.

- You need to be proven guilty even if you are, in fact, guilty.

- You should be punished for your crimes, not for "how you handle your guiltiness", not for going to trial, not for other things but for your crimes.

Certainly, most people going into the criminal justice system are guilty, there's little doubt about the circumstances and Perry Mason-style trials seldom if ever occur. But so what. That doesn't change the points above imo.

The most horrendous thing is that even when you are talking about guilty people, those who just knuckle under to the system can wind-up with minimal punishment and those who resist get punished more for this than for their crimes. Tell me again why this is just and reasonable.


> You should be punished for your crimes, not for "how you handle your guiltiness", not for going to trial, not for other things but for your crimes.

The way my friend explains it is that many people -- DA, judge, and defense attorney (my friend) -- try to make it so obvious that a plea is in their best interest. It would defy logic not to take it.

Again, the way he explains it, some of these folks are extremely unintelligent. They lack critical thinking skills. They don't trust anyone in a suit or with an education. Trying to explain how good a deal is can apparently be very difficult. As such, the big sentence isn't actually one anyone wants to give unless the defendant basically gives the middle finger to the system.

Some hedges:

- I'm not talking about marginal edge cases or cases where there is substantial doubt about what happened -- those tend to be much more subtle on all sides.

- I'm not talking about cooked up charges. Some DAs may threaten a case for a big charge, but they will plea down to whatever the evidence will make obvious.

- I'm not talking about smart criminals. There are not a small number of them. They typically take the plea if they are guilty.

- I'm not talking about rigged systems (they exist). The victims in those systems are fucked no matter what.

If you believe what you say, then talk to your local, state, and federal representatives and ask them to fund the legal system better. This will alleviate the clogged dockets and will (theoretically) discourage excessively punitive sentences for someone who wants a trial in their slam dunk case. I get the sense that some folks here on HN seem to think that trying a case comes at no expense, and that's simply not the case -- there needs to be some efficiency and some encouragement to be efficient when the outcome is obvious.

Look, I totally agree that a lot of the legal system can be incredibly unfair. That doesn't mean that incentivizing reasonable behavior by various actors in the system is wrong.

> Tell me again why this is just and reasonable.

Another way to say this is why can a criminal whose guilt is not in doubt by any party delay justice for someone else later in the queue just because he wants to make a scene in court.

Please go have a coffee with a public defense lawyer and talk to him/her about how efficient or inefficient the plea/trail sentences are. Other than in corrupt systems, all the ones I have spoken to think it's fairly reasonable (not the laws necessarily, but the sentencing).


Given the justification for plea deals is the crowded dockets, alternatively, you could talk to your representatives to reform the laws so fewer acts are crimes that get people arrested in the first place.

Also alternatively, instead of using life-ruining threats to 'incentivize' defendants, the only actors in the system being strong-armed here, into 'reasonable' capitulations to do whatever the prosecutor wants, you incentivize prosecutors to better behavior by abolishing plea deals so they have to focus finite resources on prosecuting only the most important cases against the most dangerous individuals, and not to add as many people as possible to the USA's disproportionately massive prison population. [0]

Also also alternatively, instead of fretting about a zero-sum game where defendants suffer from 'delayed justice' due to other defendants enjoying their right to a day in court, you could try to eliminate cash bail and let people back into the community until they've actually been convicted of a crime, so they don't have to await their trial from a jail cell. [1]

And being stubborn, illogical, mistrusting, or giving an abstract concept the metaphorical middle finger is one of the weakest possible reasons to punish someone with excessive jail time that you actually know they don't deserve, in an unaccountably secretive, opaque legal game of chicken where you're trying to make the defendant blink first.

[0] https://www.prisonpolicy.org/reports/pie2018.html

[1] https://reason.com/blog/2018/01/25/government-is-gutting-the...


Can I vote for you somewhere?


Yes, it’s the little up arrow next to their username. It’s called an “upvote”. :P


I voted twice now :)


Look, I totally agree that a lot of the legal system can be incredibly unfair. That doesn't mean that incentivizing reasonable behavior by various actors in the system is wrong.

Disagree. I would say that when the present overall law enforcement system is mockery of justice, then the grease used to speed the wheels of this machine is inherently despicable. I'm moderately familiar with the system, I know this keeps the whole process humming along. But smooth functioning can't really be evoked to defend keeping this beast on it's present track.


> As such, the big sentence isn't actually one anyone wants to give unless the defendant basically gives the middle finger to the system.

2 years for the crime, 18 for pissising off your friend. Does your friend think he is a God of some sort?


My friend has no issues trying the case — he’s good, and he gets paid for it.

It’s typically the judge with an overflowing docket and the understaffed DA that prefer the plea.

From everything I have personally witnessed regarding this matter, none of it is a god complex on any side (some DAs can be d-bags, but most of them aren’t) — it’s more of an issue of logistics.


> They offer the defendant a standard plea to 2.

Which deprives the public of a trial. If someone is going to prison, everybody has a right to know the circumstances leading up to it -- and both sides of it, not just the prosecutor's version which the defendant is coerced to sign onto. Convictions without trials aren't an efficiency, they're the suppression of the truth.

> The issue typically isn’t innocence (they’re guilty), it’s an issue of how the defendant handles his guiltiness.

That isn't how overcharging works.

There are a lot of very broad crimes that everybody commits all the time and hardly anyone gets charged with.

So when a prosecutor decides they don't like you, and there is a 50% chance they can prove the thing they claim you did, they offer you the plea. If you want your day in court (because you didn't do that thing), they also tack on seven more charges which everybody is guilty of, so that you're found guilty of something even if they can't actually prove the thing that caused them to notice you to begin with.

They may also charge you with something else they only have a 5% chance of proving but which carries extremely severe penalties. Which, even if they can't prove it, subtracts 5% times a massive penalty from the expected value of demanding your day in court.

> If there is a lack of evidence or a strong alibi, then typically the DA won’t threaten a trial — they will drop it or offer a lesser crime (depends on the context).

That happens after plea bargaining. And that's the problem. If they say "agree to six months or go to trial" then you have to take the six months or prepare for trial, which may cost a quarter of a million dollars or more and untold hours of your own labor. Then, after you've paid the time and money to prepare your defense, they drop the charges, leaving you with the bill.

Or drop all of the serious charges they could never prove but which you had to prepare to defend against in case they tried to.

It can be cheaper for an innocent person to spend the six months in prison.


A number of things for you to consider:

1). Under USA jurisprudence, LEO's and prosecutor's are allowed to lie to the defendants. In other jurisprudence regimes, that is such a no-no that cases have been dismissed when evidence of such behaviour has been found and this is irrespective of any possible guilt on the part of a defendant.

2). As mentioned by others here, the fundamental rule of jurisprudence is supposed to be innocent until proven guilty beyond a reasonable doubt, which by it nature requires a jury trial.

3). Typical practice under USA Jurisprudence for prosecutor's and LEO's is that it is preferable to get a plea bargain than actually do the hard yards to find the actual perpetrator of some crime and then collect enough actual valid evidence to demonstrate that the person is guilty beyond a reasonable doubt.

4). Both state and federal agreements (business and otherwise) requires keeping all those "wonderful" private prisons full. This is to ensure that both state and federal entities get the best deal for the money that are paying out for these privately run prisons.

5). As intimated by others here, there has been extensive analysis of both state and federal laws that basically show that every person in the USA has broken at least one of the many tens of thousands of laws on the books that come with felony penalties. The vast majority of these laws are not even know by the vast majority of the population of citizens.

Have you ever been on a jury that has to consider the facts about a matter of any serious crime? It is a sombre responsibility and takes a great deal of effort to unemotionally consider the facts as presented. It is a not a duty that I wish to repeat.


Irrelevant. We're concerned here about the edge cases.

Yes, sure, there's a lot of obviously guilty people that get charged for the obviously illegal and obviously immoral thing they obviously did, and then they get the obvious punishment, fine, great.

> DAs don’t make a career of threatening trials for cases that aren’t locks.

That's not remotely the same thing as "no DAs ever threaten trials for cases that aren't locks". That does happen, all the time, and to the people who get caught up in it, the fact that the DA doing it isn't making a career of it is cold comfort.

It also doesn't consider a wide number of other structural issues involved with prosecutor discretion, or with the systemic imbalances in the system, as discussed in, eg, the linked article.


> The issue typically isn’t innocence (they’re guilty),

By definitiion, they're not, until proven.


Isn't the point that those things should be decided by a judge, not by a prosecutor?


Until you are judged guilty by a jury of your peers or (at your option) the judge/magistrate/etc. after having had your day and chance to fairly air your side, it shouldn’t matter two flying fcks what the prosecution thinks. Innocent until proven* guilty.


> The 20 (that seemed high to him for a 2 year plea) is a fuck you for going to trial

So you get an 18-year "fuck you" for invoking your Sixth Amendment right to a trial by an impartial jury of your peers?


.... when the evidence is stacked heavily agaisnt the defendant. For more marginal cases, the offers tend to be much less punitive.

Look, I'm not a lawyer. You may want to go talk to one -- especially a public defense lawyer. Your eyes will be open about how fantastically reasonable the system usually (intentional hedge word -- not all DAs or judges are reasonable, but most are) is.


So every non-violent drug offender should just take their multi-year sentence to third-world-tier prisons and their felon status too and be happy with it?


Pretty much. Once you’re negotiating with a DA, you’re going to jail. They’re never gonna let you go.


I suppose my comment was intended to highlight the relative absurdity of punishing non-violent drug offenses with jail time.

It quite literally creates career criminals out of non-criminals, since, once they have a crime on their record, virtually all avenues of employment are closed off to them besides violent/property crime.


"Fantastically reasonable" is an interesting way of describing the legal system punishing the greatest number of prisoners in the world.


Oh please.., tell me nobody serious actually believes this nonsense. People go to prison and while innocent of all crimes accused. That attitude of certainty in any situation should bar a person from a career in the justice system.


While I agree that innocent people do go to jail sometimes, I think this is much rarer than you make it out to be. The instances I have heard of it, either the system was (or one or more actors in that system were) corrupt, or the defendant had incompetent counsel.


https://www.innocenceproject.org/how-many-innocent-people-ar...

The current estimate is roughly 1%.

Sending someone to prison is basically taking some or all of their life. We currently have an estimated 20,000 innocent people in jail. That's not rare, and it's disgusting that this complete ethical failure of the American justice system is defended here.


How did I make it out to be? Also how do you respond, "this is much rare than you make it out to be" from reading my comment. (Assumptions) while attempting to justify madness is a scapegoat at best from changing ones view; from understanding the human error of the poor process. Now I have no way to know the frequency if it's rare or common. Unrelated to my past comment, I don't believe in free will and think the whole justice system is madness.


> fuck you for going to trial when you are almost undoubtedly guilty.

Even if this concept is defensible (which is arguable), something like 1 year extra is plenty of excess punishment compared to the cost of a trial.


Under the federal sentencing guidelines a guilty plea is given a very specific weighting. Most of the time a judge will utilize the guideline's scoring system. In that system forcing a trial would never result in a 2 year sentence growing to 20. (I assume that in most state's the process is similar.)

The real issue is the huge number of charges prosecutors can bring, charge stacking, and the rules for how aggregating factors can increase penalties. That's how a prosecutor can tip the scales so egregiously. The fix is that we need less harsh penalties and rules against charge stacking. To prevent an overcorrection we need to make sure that police departments and prosecutors enforce the [less harsh] penalties more consistently.

Penalties are so harsh today that police and prosecutors don't even care about misdemeanor convictions. If there's no potential for a felony charge the police will literally walk away. Similarly, prosecutors don't want to waste time on penny-ante misdemeanor and felony cases and will let defendants off with a minimum penalty. That creates a self-fulling prophecy that without harsh sentences criminals get off scot free. It's why California is suffering from a property crime wave--police and prosecutors are habituated to ignoring property crimes now that the penalties are less severe, which means there's no deterrence. We could have deterrence without harsher penalties if they actually did their jobs.


Maybe.

There are a lot of issues involved, and contrition (or lack thereof) is one of them.

Most of the judges prefer pleas for obviously guilty people since they clog the docket. Going to trial just because you can even though your case is a slam dunk guilty verdict is an abuse of privelege, imho.

If a case is not a slam dunk, the judges often don’t give the max out of spite — it all depends on the details of the case.

If you have some free time, go watch a few criminal court trials. Some of these things will make of scratch your head and wonder why the person didn’t plea (e.g., clear cctv footage of the crime being committed with multiple eyewitnesses who corroborate).


"Clog the docket"? Why isn't the court system appropriately scaled to give each defendant their Sixth Amendment right to a fair trial? Because fuck them, that's why.


Because many elected officials and many voters aggressively try to cut the budget for the judiciary.

As I said elsewhere, if you don't like the system, please call your local, state, and federal representatives and request that they support more funding for the judiciary.

Every case going to trial would cost an incredibly unreal amount of money -- there needs to be some streamlining somewhere, and the question is where and how.


If every case going to trial would cost an unreal amount of money, then the solution is to either reduce everyone's Constitutional rights, or do things differently, not browbeat defendants into a Sophie's Choice between their rights and a 10x-disproportionate jail term.


> Every case going to trial would cost an incredibly unreal amount of money

There are other ways of avoiding the trial than threatening the accused. Also there are countries that don't seem to have this problem. Perhaps a look outside the US might suggest some alternative ways of behaving that might be used.


How quickly you would change your tune when innocently imprisoned after being falsely accused. 'Slam dunk guilty' indeed. Of course you'd go to trial. Or would you? 2 or 20?


Second answer since I missed your initial point...

If I am actually innocent, there are most likely three scenarios:

1. The DA drops the charges. This is a very common outcome when the case is not a slam dunk.

2. I was a witness to the crime and/or I was in the vicinity of the crime, and for some reason I was not willing to mention this to the DA. This happens a fair bit (esp. the vicinity one), but this is not a "slam dunk guilty" case, and every lawyer will tell you this. My guess is that I would talk to the DA via my lawyer, because I aggressively avoid hanging around places that are likely to have crime (even the white collar variety), and I have nothing to hide.

3. I was framed. This is tricky. My reaction would depend on the context, but again, I keep a healthy distance from people who regularly and knowingly commit crimes.

It seems like a lot of people think that DAs just sit around looking for fake charges to drop on innocent people. This simply does not happen as much as some commenters seem to think it does. Does it happen? Sure. Is this something I ever worry about? No, never.

Do you know of any/many completely innocent people who were wrongly jailed?

The worst I know of is a guy who was trafficking 9,000 pounds of marijuana and got fingered for the whole thing rather than charged as one of three. His issue? He didn't sing and the others did. He got what many would call an unreasonably long sentence given the circumstances (iirc, he did 2 years). Note that a crime had actually been committed (and he admitted to it, at least to friends), so it's not like he was innocent.


You appear to lack knowledge, experience and fantasy, and yet you hold some pretty strong convictions. Based on what I wonder but given that you are so set in your ways I'm not sure what the expected ROI is on trying to educate you. May I suggest project innocence as a starting point?

https://www.innocenceproject.org/

With the note that that is the tip of the proverbial iceberg but if that doesn't convince you that you are flat-out wrong I don't know what will.


If I did the crime, I would plea, and it's not even close (requisite hedge: assuming that the plea offer is reasonable -- it might not be for a high profile case that the DA wants to try for political points).

As I have said elsewhere, when the facts are not as clear, the plea offers tend to contrast less starkly with a court sentence as well.

You seem to think that there are a lot of cases where the DA is just making up charges against a totally innocent person. That just happens very rarely. There are some weird domains like CPS/child abuse that have must-try cases for political reasons, but the various actors all know what's going on there and conduct themselves accordingly.

Look, IANAL. I am just telling you what my best friend has told me over the past two decades. If you want to learn more about this, go talk to a defense attorney and ask them their opinion on this matter. I think you will be (pleasantly?) surprised at how reasonable the system usually is.


His point was, what if you DID NOT do the crime?

If I were arrested and charged for a crime I did not do, having to choose between 6 months guilty (_and a felon for life_), or the chance of zero-or-20 years would be Very Difficult. On the one hand, I don't have the money to pay for a good attorney -- which means I'm more likely to lose, bankrupt my family, screw any chance of retirement, etc. On the other hand, pleading guilty to a crime which I know I am innocent of rankles me because of the injustice, but it also is the (game theory wise one) choice that gets me back to my family faster. (Of course then, being a felon, good luck getting a job, so my chances of a good life later are also totally messed up.)

You're looking at this from the perspective of someone who is guilty, and Might Get Away With it. Of course a plea makes sense there. Try looking at it from the perspective of someone falsely accused, though, whose option is either a public defender or being falsely convicted.


Serious question, what crime do you think you could get accused of with "slam dunk" level of evidence that you were actually innocent of?

It takes some serious mental gymnastics (e.g., your doppelganger commits a crime right as you walk by) or you living in a massively corrupt area.

As far as money goes, you can get a publicly appointed attorney that the state pays for if you cannot afford an attorney on your own. Some of these folks are really good, some aren't. That said, if you're totally innocent, no lawyer who has passed the bar should have any trouble getting the charges dropped. Again, DAs don't just sit around trying to frame people for crimes they didn't commit -- they have enough actual work to do.


" Again, DAs don't just sit around trying to frame people for crimes they didn't commit"

Es a "for example" I suggest that you read about Mike Nifong's (DA on the Duke LaCrosse rape case) actions and his despicable lying. [1]

This may seriously change your opinion on the subject.

DA's regularily lie and cheat for political gain.

[1] https://en.wikipedia.org/wiki/Duke_lacrosse_case


I’m very familiar with this case. Note that there obviously was not a slam dunk level of evidence, the defendants were declared innocent, and the DA was disbarred. Sounds like the system works to me (although with undue stress).

What percentage of cases do you think are like this? My guess is sub 0.01% — it’s just not that common according to the defense attorneys I know. When it does happen, bar complaints fly. My friend tells me that there definitely are wrongful convictions, but it is often not that the person was innocent of a crime, but that they were convicted of the wrong charge. As far as I am concerned, these types of cases seem to be very much the exception rather than the rule — no system is perfect, and I am fully aware of that.

I have said elsewhere that a corrupt district or DA is a caveat to my stance. Ditto with high profile “must try” cases (I was a juror in one of those). That was a district with a corrupt DA — it happens. The cool thing to me is that the dude was disbarred — the system worked.

I will also add that I think universities interpret rules far too generously (more like guilty until proven innocent), and I don’t agree with that at all, but that does not always become a legal matter. When it does, it is often a must-case for political reasons, and plea deals getnwokky then. I’ve said all of this elsewhere.


Serious question, is it your contention that no lawyer has ever lost a case defending an innocent person, in the entire history of the bar association, because that's just impossible?

Cuz the vast majority of these were not plea bargains: https://en.wikipedia.org/wiki/List_of_wrongful_convictions_i...


> That said, if you're totally innocent, no lawyer who has passed the bar should have any trouble getting the charges dropped.

That's...amusing.

> Again, DAs don't just sit around trying to frame people for crimes they didn't commit

Mostly not, it's more likely to be child who conceive of the frame and manufacture evidence (both planting physical evidence and falsifying testimonial evidence.) Plenty of groups of cops have been found doing this, sometimes to cover premeditated police crimes, and sometimes to cover for police errors.

And sometimes the FBI simply invents entire fields of forensic science so that they can have “experts” testify in their (and state) trials to support the guilt of whomever law enforcement is directed at.

The idea that it is trivial for a minimally qualified lawyer to ensure that the factually innocent walk free in America is laughably naive.


Honestly, I don’t even care that someone is slam dunk guilty. They have an absolute affirmative right to a jury trial and trying to manipulate them away from exercising that right is unequivocally evil.

Guess what, jury nullification is a thing. So even if they’re 110% guilty and the evidence is incontrovertible, the jury of their peers may judge that the law in question was unjust and the charge unfair and acquit them anyway.

They have the right. Period. No equivocation.


> Going to trial just because you can even though your case is a slam dunk guilty verdict is an abuse of privelege, imho.

It's a right, not a privilege. There is a fundamental difference.

Economy of justice is an important consideration in the civil system but if there are too many criminal cases for courts to providing way the process to which there is a constitutional right, that's a problem of the legislative branch criminalizng too much conduct or underfunding courts or the executive branch engaging in overzealous prosecution. Rigorous questioning of criminal cases isn't just a right of the accused, it is the manner in which the public if assured that real crimes are being properly prosecuted rather than the government lazily scapegoating convenient, vulnerable targets while the real perpetrators go free.


Consider this. You are guilty of at least one felony offence under the laws of both state and federal legislation of the USA. Irrespective of what you may think about your innocence, the excuse that you did not know the law is irrelevant before the courts (unless you are a LEO), you are still guilty and the appropriate penalty is spending time in prison.

All it will take is some LEO or prosecutor to decide to come after you and you will be facing the very thing that any others have faced.


> abuse of privelege

Due process and a fair trial are rights, not privileges.


> an abuse of privelege

What privilege?


Tell us your thoughts on voting.


Innocent people plead guilty all the time though.


This is why people don’t respect lawyers.


Yeah I always thought this was weird. I haven't had much contact with the actual criminal system, but the way it's portrayed in popular culture makes it look all wrong.

Can it really be that you can trade punishment for efficiency (of the legal system)? Is that really why you're allowed to do that? It seems like a terrible time for people to be playing poker, yet that's what it looks like.

One interesting twist is helping the prosecution. If you turn in a fellow bad guy, by giving evidence that helps put him away, should you be allowed to trade in your own punishment for his? Presumably the same argument applies, right? Whatever you did was just as wrong, why should you get anything different? But you need some incentive...


Another unfortunate factor is.... if you take the plea for 2, case closed. If you don't take the plea, then that makes a lot more work for everyone involved (justice department) to take it to trial.


I wonder how much time and money is saved by plea deals.

No plea deals or minimal plea deals would be an incentive to go to trial even if the evidence is overwhelming as you have nothing to lose and everything to gain.

I think you see this in high profile murder cases because the plea deal is usually life in prison, which is not much of a bargain for most people so they might a well roll the dice like OJ did and hope the prosecution screws up.

I think they're drastically different from the trial punishment for a reason.


I'd remove pleading as well. Why should we gamify trial outcomes by forcing the accused to place a bet against what a judge or jury will decide when it should be based on the evidence?

If evidence to convict is not sufficient or present, why do we require a conviction?


Can you think of any practitioner or other serious critic of the US justice system who thinks the fundamental problem is plea deals? They always seem to be trotted out in these discussions as somehow obviously bad and unfair on the level of, say, abusive civil forfeiture. But the objection you are describing is the difference between a possible, usually highly unlikely maximum sentence and a sentence arrived at in a plea deal. Only one of those is a real thing, though.


> But the objection you are describing is the difference between a possible, usually highly unlikely maximum sentence and a sentence arrived at in a plea deal. Only one of those is a real thing, though.

The maximum penalty does actually happen though, it's just not common. The problem is that you don't know if it will happen to you before the trial, so its existence is extremely coercive. It scares the crap out of people -- and people are risk averse. They'll take a 100% chance of 2 years over a 1% chance of 30 years, even if the expected value is lower, because on the off chance the coin comes up tails six times in a row, they lose their entire life.


That's not a particularly important detail of my question.


It may not be the fundamental problem, but plea deals are still horribly unjust. They are punishment for asserting your rights. They should never have been allowed and should be abolished.


Ok, you feel strongly about plea deals but I still don't understand what the theory of supposed injustice is supposed to be. Why aren't people like Ken White railing against plea deals? Or maybe some are? Etc.


Harvard's Bill Stuntz wrote about plea bargains extensively before his death.[1] His last book was the "Collapse of American Criminal Justice."

The issue isn't the plea bargain itself, but the incentives to make lots of 'suboptimal' deals. I've seen similar, recent arguments about whether #MeToo perpetrators should be allowed to settle with victims, because of our public interest in identifying attackers.

All things being equal, negotiated resolutions are great. But politics, over-criminalization, career incentives, and budget pressure swamp any real negotiating power by defendants. No one wants to kill any individual's deal. But the deals are the best way to 'see' the effect of the system's incentives.

[1] https://www.jstor.org/stable/4093405?seq=1#page_scan_tab_con...


Thanks, I'll check it out. Curiously, Stuntz's names pops up in one of the article linked in thread by the cursory googlemaster as a supporter (presumably in fair conditions) plea bargains.



I haven't gone through every single one of these with a fine toothed comb but none seem to have a problem with plea bargaining itself - the root problems they describe are things like draconian sentences, overly broad prosecutorial discretion, outright fabrication of evidence, etc. The remedy suggested by the poster above - just getting rid of plea bargains isn't going to help in the cases described by these articles.


The injustice is that they result in punishment for asserting your right to a trial.


This 'argument' reminds me a bit of

https://www.youtube.com/watch?v=AZy_VR1ifPc


Scare quotes and an undescriptive link to a random YouTube video... if you want to actually have a conversation here, this is not the way to do it.


I asked you a question and you basically repeated 'it is wrong'. And they're not 'scare quotes', your response is not an argument and not an invitation to conversation.


You asked what was unjust about it and I answered. It’s repetitive because I assumed you had missed it in my first comment, otherwise you wouldn’t have asked.

If this answer is not satisfactory to you then perhaps you could tell me what you’re after. Because as far as I can tell, this is a really simple question and answer. What is unjust? Punishing people for asserting their right to trial. Boom, done. If you want more, ask for it.


I think it's something about remorse. Maintaining innocence when you know you're guilty shows a lack of remorse about what you've done. Admitting what you did and that you did it shows you at least know it's wrong and that you deserve some punishment.

Also those deals come with stipulations and caveats. Sometimes, turning evidence is done in exchange for lighter sentences. Being able to prosecute and jail a worse criminal in exchange for letting off a lesser one. Or there's reoffending clauses. Less jail time but if they reoffend in a certain period, they have to serve the full sentence.

Also, you say it should be about how long it would take to rehabilitate a person, that's different for every person. In a crime of passion, where someone accidentally kills someone else, should any jail time be given? It requires a certain set of circumstances. A set that may never be repeated again.


> I think it's something about remorse. Maintaining innocence when you know you're guilty shows a lack of remorse about what you've done. Admitting what you did and that you did it shows you at least know it's wrong and that you deserve some punishment.

Yeah, but that hinges entirely under the assumption that the accused is guilty.

What if they're legitimately not?


Hopefully, if they are innocent, that will bear out in court.


But are you willing to risk 20 years to prove you're innocent?

Assuming 20% of innocent people get convicted are you willing to risk the rest of your life?

I've only known 3 people who've been to jail and 2 of the 3 was innocent. Not in a they maintained there innocence way. But in a there was proof they were innocent. They just weren't able to get a hold of that proof until after they were convicted.


Never having been faced with that situation, I can't say for sure what I would do with absolute certainty.

But.

Right now, sitting right here, not having to face such a decision except as a thought experiment I would say that if I were sure of my innocence, I wouldn't consider it a risk. If I were innocent, I would go to trial and expect to be exonerated.


Then they still have more options?

The existence of plea bargains does not make you more likely to get convicted of a crime you didn't commit if you are pleading innocent.


The problem is the unknowns.

Let's say you are wrongly charged with a crime and the evidence is enough that the prosecution is moving forward. The max sentence is 30 years, and you're offered a plea of 2 years.

There is a chance the system will utterly fail you, and a chance that the system will correctly find you innocent.

You don't know those odds. You only know your fears. And the prosecution has a LOT of tools to raise those fears. Society has given you LOTS of reasons to trust those fears. But one thing you won't have is security that your innocence means you will not be found guilty.

2 years is a major problem, but...marriages have survived that. You'll be around to see your kids/nieces/nephews hit most of their major life milestones, and more importantly, a lot of day-to-day normality of what you call life.

30 years...your life has ended. Every relationship is over, every daily experience, everything you define as you.

You have a LOT on the line, and the system...enh, it has very little on the line. What odds of failure of the system do you find worth the risk?

If anyone takes a plea deal when they are innocent, they may very well be saving themselves some real pain. Or they may be needlessly damning themselves to life as a (ex)con. We don't know. But that it seems a viable option EVEN WHEN INNOCENT is definitely a problem. Making the system more reliable should definitely happen, but that won't remove the imbalance of incentives.


There's that as well. I hadn't thought about that when I posted.


The root of the problem here is that innocent people can potentially be convicted. Getting rid of the plea system doesn't change that. It just increases the odds that everyone, both the innocent and guilty, go to trial.


> Getting rid of the plea system doesn't change that.

What it does do is reduce the sentences for wrongly convicted innocents to ones that are reasonable for the crimes that they supposedly committed.

If a guilty person who pleads guilty gets two years for a particular crime, why should an innocent person wrongly convicted get twenty years for the same supposed crime?


There is nothing to guarantee that if the plea system magically disappeared overnight that both the innocent and guilty would get two years instead of twenty. It therefore sounds like your argument isn't really with the plea system. It is with overly harsh maximum sentences.


> It therefore sounds like your argument isn't really with the plea system. It is with overly harsh maximum sentences.

But that is how the plea system operates. That is why the sentences are so long.

If the maximum penalty approximated what people are actually sentenced to, the prosecutor would have less leverage in plea bargaining and a much higher percentage of people would go to trial. Or the pleas would have to be more generous which would under-punish actually-guilty people who take the plea -- and reintroduce the incentive for innocent people to plead guilty.

The only way to get rid of that incentive is to get rid of plea bargaining. (Which would then allow maximum sentences to be much lower.)


No. The root of my argument is that the plea system causes a disproportionate distortion/inflation of sentences for those wrongly found guilty.

Sure, if the plea system disappeared tomorrow, then initially sentences would probably be universally high. But at least wrongly convicted innocents wouldn't be treated more harshly than the guilty.

In time, different (probably mainly political) forces would bring down sentences to what society considers acceptable (two years in our example). Even if sentences didn't go down, at least they'd be aligned with society accepts for both guilty and wrongly convicted innocents. In any case, the absolute length of sentences is outside the scope of my argument.


You seem to be focused on the idea of fairness in the justice system, so let me try to rephrase part of the problem here. Without the plea system the justice system would grind to a crawl as there would be no incentive for anyone to ever admit guilt. That would lead to innocent people sitting behind bars for even longer as they await a trial because they either weren't offered bail or couldn't afford it. Much less has to go wrong for those people compared with the numerous failures that would need to result for an innocent person to be convicted and sentenced.


People's inability to afford bail isn't an argument for plea bargains, that's an argument for letting people go on their own recognizance and abolishing cash bail, instead of keeping half a million unconvicted people in American jails.

Objecting to one criminal justice reform because it might exacerbate how the criminal justice system is also completely unfair in another, equally terrible way isn't very convincing, when you could actually be advocating to eliminate both problems.

And hey, no more innocent people railroaded into guilty pleas like they are under the current system. https://www.nybooks.com/articles/2014/11/20/why-innocent-peo...


After rereading my comment, I did kind of garble my point. I wasn't meaning to imply that bail is an argument in support of pleas in general. My point was that you can't change part of a system without thinking of the possible effects. Removing the plea system without a plan how to handle the roughly 10 fold increase in criminal trials or how that increase might affect people awaiting trial is like removing a leg of a table without considering how stable it would be with three legs. When proposing a reform you should either be practical, like reducing maximum sentences, or at least holistic if the reforms are impractical. Arguments for simply removing the plea system without considering how it would affect courts or bail is neither practical nor holistic.


Other countries seem to manage just fine. As crunchatized mentions, that's because their bail system isn't also broken.


I am really not familiar with how the the legal system works outside of the common law world. As far as I'm aware, Canada and England work very similarly with pleas reducing sentencing, the vast majority of cases not going to trial, and a cash bail system. Which country would you say does it right?


> As far as I'm aware, Canada and England work very similarly with pleas reducing sentencing, the vast majority of cases not going to trial, and a cash bail system.

Quite the opposite (in terms of pleas and cash bail). See https://en.wikipedia.org/wiki/Bail and https://en.wikipedia.org/wiki/Plea_bargain.

For example in England plea bargains are based on timing of plea only and are limited to one third off the sentence only. Bail is given by default and a cash bond is not required.

> Which country would you say does it right?

I'm not sure I'm qualified to say that some country does it right, but England for example is quite the opposite of the US in terms of "presumption of innocence" really having a meaning. The system hasn't ground to a halt, yet innocent people don't rot in jail awaiting trial just because they're poor, and don't have to plead guilty for fear of getting a 10x sentence.


We were discussing the removal of these systems. In a spectrum with no plea system/cash bail on one side and the American system on the other, those countries are much closer to us then no plea/cash bail side. I stand by my statement that "Canada and England work very similarly with pleas reducing sentencing, the vast majority of cases not going to trial, and a cash bail system."

The rest of your post just goes back to my previous comment about max sentences. If we reduce the max sentence for that hypothetical crime from 20 years to 3 years, then our system would be the same in that people who plead guilty would receive two thirds the sentence that those found guilty at trial.

Also, one of the reasons that the UK is able to handle this increased case workload (although a majority of cases are still plead down) is they spend a relatively high amount per capita when compared with other countries. Once again, I am not against a holistic change that reforms the whole justice system. But doing away with the plea system doesn't have the benefits that you suggest and has various downsides that you are skipping over.


the real root of the problem is i cant think of a single crime where you should be behind bars for 30 years. if your going to take away someones life why not just shoot them.


I've always been amused by police procedurals where they are like "it's 15 to life, but if you cooperate we can take the death penalty off of the table".

I mean, I'm sure at the moment of death risk the ultimate FOMO kicks in, but in the abstract? The rest of my life in prison sounds a lot worse when it's a long life rather than a still-long-to-experience-but-overall-short one. Always felt like a terrible motivation tactic.



But it's literally a heavily studied question in decision theory, and there are tons of statistics that people are too scared by the potential consequences to fight for their own right, when they know they're innocent. Sure, if you are pleading innocent there's potentially no or a lower effect - but the probability of a defendant pleading innocent is _significantly_ impacted by the existence of plea bargains.


> The existence of plea bargains does not make you more likely to get convicted of a crime you didn't commit if you are pleading innocent.

Yes, it does.

You seem to only be considering the effect of your option to enter a plea bargain, and not other people’s option to do so, and the incentives that may create for them when the government has decided to target you.


But it does make you more likely to be convicted of a crime you didn’t commit, which seems like a bad thing.


A likelihood that is 100% informed by a choice you make.


> A likelihood that is 100% informed by a choice you make.

No, it's not. The status quo practice of plea deals not only encourages false guilty pleas, it also encourages false testimony that confirms prosecution narratives against other people who do not plea guilty, because the extent and effect of cooperation with prosecution is often a factor in getting a plea deal and the sentence received in it.

(Now, it probably does more to encourage true guilty pleas and true incriminating testimony, and so in net probably makes justice more accurate than would otherwise be the case; but it toys the balance in favor of the prosecution for both the innocent and the guilty to do that, which can be seen as violating the principle that protecting against wrongful convictions is off greater priority than assuring the guilty are convicted.)


What’s your point?


100% of innocent people can choose not to take a plea deal. The fact that some innocent people might take plea deals anyway is a way of managing your downside. That seems reasonable.


> 100% of innocent people can choose not to take a plea deal

But innocent party A can't choose not to have a third-party B take a plea deal in which testimony that reinforces the prosecution of A is rewarded with a lighter sentence for B than a guilty plea without such testimony would get.


So you're saying that plea deals encourage people to lie under oath? That seems like an entirely different problem from innocent people pleading guilty.


You think it’s reasonable to threaten innocent people with long prison terms to convince them to plead guilty to a crime they didn’t commit?


Then we all hope the trial will reveal that they're not guilty?

I mean, the court system isn't perfect, but do you have a better idea? What would you do when we a court finds somebody guilty who maintains that they're innocent?

If you accept a trial's outcome that the accused is guilty, it follows logically that they deserve to be punished more for denying it (or at least, more than they would be punished if they confessed.) If you don't accept the trial's outcome because you can never be 100% sure, then how do you propose to run a criminal justice system?


> If you accept a trial's outcome that the accused is guilty, it follows logically that they deserve to be punished more for denying it (or at least, more than they would be punished if they confessed.)

No, it doesn't; it seems illogical, I would say, to impose additional punishment for people asserting their Constitutional right to compel the government to prove criminal allegations beyond a reasonable doubt without relying on testimony provided by the accused. It is contrary to the entire idea of a Constitutional right.


"If you accept a trial's outcome that the accused is guilty, it follows logically that they deserve to be punished more for denying it (or at least, more than they would be punished if they confessed.) "

Except we know lots of innocent people have been convicted and later (often MUCH later) exonerated.

The fallibility of the court system is a strong argument not to load up penalties because someone simply exercised their Constitutional right to a trial.


>If you accept a trial's outcome that the accused is guilty, it follows logically that they deserve to be punished more for denying it (or at least, more than they would be punished if they confessed.)

By 10x? No, I don't agree with that.


Can you explain how it follows logically? I don’t see anything resembling a logical argument for that. Seems more like it follows emotionally.


It's certainly not an emotional argument, because I actually feel kind of repulsed by the idea, but I'll try my best to outline the logic:

"They're more guilty for denying it" is equivalent to "they're less guilty for repenting", in the same sense that "I'm taller than you" is an equivalent statement to "you're shorter than me."

It hinges on the idea that, if you were omniscient and knew the actual truth of what happened, you would probably feel more lenient towards a defendant who confessed their crime, versus one who denies it (again, imagine you're omniscient and you know the truth, that they really are guilty.)

To tie the logic together, the key point is that court system thinks of itself as omniscient. There's no concept in the courts of "guilty but they maintain their innocence" as a separate state from "guilty". The courts aren't supposed to issue guilty verdicts if there's reasonable doubt. If you were found guilty, legally speaking you are guilty, so it follows that you must be lying if you say you're not.

I'm not defending the practice... well, I defend the notion of guilty pleas getting shorter sentences because it makes for a better overall system by placing incentives on not tying up the courts any more than they need to. But I don't think of it as "let's be harsher on those that deny their crimes" so much as "let's be more lenient on those who admit them". It just happens that those statements are isomorphic.


> If you were found guilty, legally speaking you are guilty, so it follows that you must be lying if you say you're not.

Note that absolutely does not follow. There's a difference between wrong and lying; a court may find, in a case where self-defense was claimed, that the defendant was not in reasonable, imminent fear of the kind of unlicensed harm which warrants self-defense, and it may be correct in so doing. But that does not mean that the defendant does not honestly believe they had a reasonable fear of such imminent harm, and is lying when they said they did.

> well, I defend the notion of guilty pleas getting shorter sentences because it makes for a better overall system by placing incentives on not tying up the courts any more than they need to.

Creating a material incentive to reduce through accountability of the executive to the public—criminal procedure doesn't just protect the defendant, it protects the public from being deceived by the executive about their response to crime—doesn't make a better system, it makes a worse system. Furtherz it encourages overcriminalization by the legislature.


You’ve done a great job of explaining how all of this logically follows from being lenient to criminals who admit guilt, but that is the sticking point. What’s the logical argument for doing that?


Ah, sure, I'm making the assumption that one would agree that's a good thing.

That's not what I was responding to originally (see fake-name's post, it's what I was replying to.) I was responding to the notion that the fallibility of the courts are the reason why we shouldn't be "less lenient" on those who maintain their innocence (because we can't be sure of their guilt.)

You seem to be going farther than that: that we shouldn't be less lenient on those who maintain their innocence, even if we 100% know that they're guilty.

That, of course, is a matter of opinion and there's no way to "prove" it per say, so you're right in that sense.


I see. I agree that if you accept that premise then the rest follows, but that premise seems to be the important thing here.


The prosecution has the full backing of the state and for all intents and purposes has an unlimited budget. The accused often is stuck with an overworked public defender. The odds are against anyone whether innocent or guilty once you’ve been arrested. There have been plenty of instances of dirty cops get caught planting evidence on camera, prosecutors withholding evidence, and striking people of color from juries because they thought they were less likely to convict and (rightfully) who are less trusting of police.

Taking all that into account, a known lighter sentence makes more sense than an unknown heavier sentence.


Interesting Twitter thread about why this happens: https://mobile.twitter.com/SethAbramson/status/1021187217664...


But they don't have an unlimited budget. There are a certain number of prosecutors working for the county and they all have a certain number of hours in the work week. There is a limit to what they can do. They will not bring a case to trial if they don't feel they have a good chance of conviction. And they will offer pleas deals to reduce their workload. They're not going to waste time on a marginal case.


What's wrong with our laws and our country if we have so many criminals that we can't afford to prosecute them? We should fix that problem instead of papering over it.


The problem is our insane drug laws. I don't believe we have enough criminals to have such a high incarceration rate.


A plea bargain and the ability to threaten the accused with long prison sentence means they can get convictions for marginal cases.


> Maintaining innocence when you know you're guilty shows a lack of remorse about what you've done.

Yet pleading guilty only because you get a payoff for it doesn't really say anything about your remorse either.

Not attacking you or your position (whatever that may be) - I know you're just explaining the reason we have this system, but it's also worth pointing out that said rationale isn't uncontested.


"...I think it's something about remorse. Maintaining innocence when you know you're guilty shows a lack of remorse..."

Mmm...

just, Devil's Advocate.

What if the defendant is maintaining innocence because they are innocent?


Perhaps a rephrase which solves your objection:

“Maintaining innocence when you know the State has decided you are guilty shows a lack of willingness to subordinate yourself to the State.”


> you say it should be about how long it would take to rehabilitate a person, that's different for every person.

This is why parole hearings exist. You don't need to decide the number in advance.


That is if you aren't jailed without chance for a parole until X years.

Do you really think there's a minimum number of years to rehabilitate someone from theft? Vandalism? Murder?

If you believe it's solely about how long it takes to rehabilitate people, then sentencing shouldn't exist. Prisons should be run drastically different. And records shouldn't be made public because one of the main causes of recidivism is the stigma you get from being a felon.


Agreed. I don't see how justice and bargains are compatible.


Something that makes me uncomfortable which is not directly touched upon on this article: in America, being a prosecutor is often a stepping stone to being a politician. Which (among other career imperatives) is an incentive to be a 'showboat' and win notable convictions.

The desire to convict also leads to some decisions that seem very wrong-headed from a common-sense perspective, like prosecuting young people for child porn for taking pictures of themselves, or imprisoning victims of domestic violence for not giving testimony...


> prosecuting young people for child porn for taking pictures of themselves

I've read about children and adolescents who were added to that sex offender registry because of minor indiscretions and had their adult lives ruined as a result. I can't imagine what being branded a pedophile and child molester will do to their reputations.


Almost happened to a friend of mine for urinating in an alley way (whilst drunk). There were no children around and he wasn’t showing off. A cop just happened to pull down the alley and his first threat was that of being added to the list.


Are you talking about in the US? I thought we had an amendment that said that while we might be compelled to show up as a witness at court, we can't be compelled to testify if we think it might implicate ourselves?


Yes I'm talking about victims being jailed for not co-operating as witnesses. Here's an article about it: "Across the country, domestic violence victims who turn to law enforcement for help can be punished if they later decide that a criminal justice response isn’t in their best interest." http://www.slate.com/articles/news_and_politics/trials_and_e...


You don't have to testify against yourselves, but, if given immunity, you have to testify against someone else (barring exceptional circumstances).

This can put crime victims in the legal position of being forced to testify against their accuser, even if they are afraid or do not want to, under threat of contempt of court charges.


A victim of domestic violence would be fearing retaliation, not self incrimination.


All people should fear self incrimination. Prosecutors don't know you, your history, or care. If they suspect they can get a conviction from anyone, they will try, regardless of their role in unrelated cases. One normal healthy human accidental inconsistency in your story can ruin you forever. Accidental self incrimination of the innocent is not to be taken lightly. Always have a lawyer present when talking to a prosecutor.


That's easily standardly solved by immunity grants.


Indeed. In the case of an immunity grant, a judge will compel you to testify or throw you in jail for contempt of court iirc (ianal). But these are all things your lawyer, which you should already have long before you get an immunity grant, will tell you


Well just don't mention that part.


If and when the court removes the self-incrimination threat, usually by granting use immunity, you can still be compelled to testify. The privilege only protects against self-incrimination.


> I thought we had an amendment that said that while we might be compelled to show up as a witness at court, we can't be compelled to testify if we think it might implicate ourselves?

It only protects you from being compelled to be a witness against yourself; because of indirect use, you can refuse testimony that isn't directly against yourself based on that protection, but only so long as you haven't been granted immunity that protects you against those derivative uses.


That's easy for the court to bypass though. Simply provide immunity for charges arising from the testimony.


Nonetheless, there can be other evidence or witnesses


Why is it that the legal profession is split between prosecutors and defense lawyers? I ask this question in two senses: first, historical - how did it come about? and second, moral - what is the justification? After all, doesn't this division promote exactly the kind of tribalism based on prejudice (an assumption of the guilt or innocence of the defendant) we wouldn't want in a legal system - the kind of tribalism this article points out when it talks of "the brotherhood of prosecutors"? Why don't we require those who prosecute to also sometimes defend; those who defend, also to prosecute?


It is all part of what is known as the 'Adversarial System' that we use for our legal system. There are lots of arguments for why it is used, and in fact, one of the main purposes is to mitigate that kind of 'tribalism' you describe. The alternative system is known as an 'inquisitorial system', and puts the state in charge of everything. By explicitly acknowledging that the defense and prosecution are working against each other, you can help make sure that the motivations are clear and not misleading.

https://en.wikipedia.org/wiki/Adversarial_system


Adversarial is good. What the OP may be suggesting is: take a pool of lawyers, and have them be either prosecutors or defense lawyers, on any given day.

It has some practical issues (defense lawyers are not paid by the state, prosecutors are).


A robust adversarial system can be good. What most folks experience in the US isn't a robust system that is anywhere near fair to both sides.

Many defense lawyers are paid for by the state. Not all, but most. But they aren't really paid equally in most cases: Defense lawyers provided by the state tend to be overworked and not have enough time to adequately help folks. I'm not sure anywhere has laws that mean they get as much money and time as the prosecution has to put towards a case. They aren't paid on par with private defense lawyers either, unfortunately.

An adversarial system is only good if both parties have similar support. When one side is obviously disadvantaged when the defendant is too poor to hire a lawyer outright, the benefits of the adversarial system are fewer.


From what little, and indirect, contact I've had with the US criminal justice system my impression is most defense lawyers are paid for by the state (e.g. the public defenders office).

A quick search turns up this[1] report from 2000 that says:

Over 80% of felony defendants charged with a violent crime in the country’s largest counties and 66% in U.S. district courts had publicly financed attorneys.

Having said that, the report is from 2000 and it seems the data is from the mid to late '90s. So things may have changed since then but I don't see any evidence of that.

I'm not sure that combining the prosecutor's and public defender's office would work, but having a system where the lawyers end up switching between prosecution and defense cases does seem like it may help avoid pushing them into extreme views for either side.

1. https://www.bjs.gov/content/pub/pdf/dccc.pdf


It's funny that this suggestion seems so radical considering that a somewhat related discipline, debate, requires participants to argue both pro and con throughout the course of a competition. I remember realizing that by arguing both sides of an argument, it was forcing me to concentrate on the mechanics of argument rather than the actual topic. It didn't matter which side of the argument was better, only which side was argued better.

Similarly, I'd expect lawyers who were forced to alternate between prosecuting and defending to concentrate more on the mechanics of the process and less on the result.


Competitive debate is a performance for a self-selected audience. Voters and especially defendants are more interested in the results than the mechanics.


Basically make the state hire lawyers and mandate any lawyer can't work one side or the other more than 2/3 of the time per year (or some such)


Do you really want your criminal defense to be handled by someone for whom up to 2/3 of their job may require close cooperation and good working relationships with the police?


Yes. Former prosecutors make good defense lawyers because they more-intimately know how the other side thinks.


There is a difference between former prosecutors (who have knowledge of a prosecutor but not the political and institutional incentives of a prosecutor) and someone who much of their current workload is as a public prosecutor.

Yes, a former prosecutor is a great person to get as a defense attorney. That's not the question I asked.


You asked a question about a hypothetical, but I don't know why a relationship with police should necessarily inhibit good representation.

That said, it's not like the defense/prosecutor caseload would be the only thing to change if this hypo came to be. It wouldn't happen in a vacuum, no "suppose everything was the same tomorrow except everybody's calendar got mixed up!"


Well, sure, if we enter a world where criminal convictions aren't politically useful stepping stones in the way successful criminal defenses aren't, the plan is great.


To me, it's kind of like, "know thy enemy." If you've worked with them, you know their dirty tricks. If they know they're going to be up against you, they may be less inclined to use them because they know that you know what they're up to.


Actually, most defense lawyers are paid by the state too:

> At felony case termination, court-appointed counsel represented 82% of State defendants in the 75 largest counties in 1996 and 66% of Federal defendants in 1998.

https://www.bjs.gov/content/pub/pdf/dccc.pdf


> It has some practical issues (defense lawyers are not paid by the state, prosecutors are).

Many defense lawyers are paid by the state: they're called public defenders.


I disagree with the other responses. It's a simple question of practicality. If we entrusted attorneys with both criminal defense and prosecution on some kind of ad-hoc contract basis, there'd be way too much temptation to mix things up in an illegal and unethical way. You'd have the ability to discern the prosecution's case on a case you're defending, and to a lesser extent the reverse. You'd be able to make all kinds of deals through horse-trading that make the current plea-bargaining system look half-respectable.

It's not a yin-and-yang sort of situation with representation either. All government attorneys should be on the same team, but defendants often have conflicting interests (which one of you had the murder weapon?) that can often make the most contentious parts of the case take place between defendants.

Prosecutors enjoy unfettered power to the point of being above the law, and defense attorneys do not. Until that changes, it doesn't matter who shuffles between the job titles.

One other aspect of the original article- like many defense attorneys, this one was a former prosecutor. One major reason for the change is an increase in income. Even if no such ties actually exist between the newly transitioned defense attorney and their former chums at the state attorney's office, they trade on such ties and judges will treat their clients colored by such ties. It's a corruption in the system, one among many.

DISCLAIMER: I've been represented by both an ex-prosecutor and non-ex-prosecutors.


There's no split. They're all members of the same Bar associations, go to the same continuing legal education seminars, read the same legal journals, and meet up for drinks after the trial. Prosecutors frequently leave their jobs to become defense attorneys, and vice versa. Defense attorneys will do their best even when they assume the client is guilty; they're ethically required to do so, and they get paid the same either way.


The caseloads of public defense attorneys (particularly in historically segregated states) are significantly more burdensome than that of prosecutors. Furthermore, prosecutors have access to free investigation services--the cops--whereas defense attorneys, particularly the overloaded ones, don't have much if any budget for that kind of work. Sometimes they'll pay out-out-pocket to track down witnesses using private investigators, but for obvious reasons that doesn't scale.

Some cities like San Francisco have laws that enforce rough parity in budgeting and caseload, but even then public defenders are at a huge disadvantage (e.g. prosecutors benefit from the police budget).

For practical reasons there's no way to address this adequately. The underclass is too numerous, and disparity in wealth too great, to think we can fix this administratively. The best first step is to make the stakes less severe by lowering penalties. Not everything needs to be a 1st degree felony. The next step is to be more consistent--pursue misdemeanor charges and lesser felonies more vigorously so that outcomes are more consistent, regardless of the wealth or stature of the client. Tweak the system so that it will tend toward more equal outcomes, rather than trying to brute force it.


> Why is it that the legal profession is split between prosecutors and defense lawyers?

Criminal law (not the whole of the legal profession) is split between those things because either you work for a public prosecutor or you don't; it's not at all uncommon for people to do both over a career, but outside of some special cases, you wouldn't do both as part of the same job (the military justice system is an exception, here.)

EDIT: Actually, I think the parenthetical above is wrong; I think all the military branches have a separate offices for prosecutors and defense counsel within their respective JAG Corps.


You had it correct pre-edit. The JAGs requires its officers to serve in multiple roles. Generally, they end up doing prosecution, defense, and both sides of civil litigation based on the current needs of their respective branch. Very few JAGs are permitted the opportunity to specialize; generally you have to either be amazing at that particular practice area or be politically connected.


> Generally, they end up doing prosecution, defense, and both sides of civil litigation based on the current needs of their respective branch.

I know that they ended up doing that, and I thought it was a fairly dynamic movement between roles. But the quick research I did indicated judge advocates are assigned to particular offices, and that it while the way roles were divided between various offices was different in each service, the criminal prosecution and defense functions were consistently in different offices, which would suggest that the role changes were more like a change of assignment within the service than different tasks within he same assignment.

But, yeah, I'm going on pretty shallow information there.


For the most part, prosecutors are government employees or even elected officials. It would be difficult to defend accused people without running into a conflict of interest with your employer.

While defense lawyers are frequently appointed and sometimes claim from a government-funded pool, again, it would be nearly impossible to defend accused people in the same jurisdiction in which you prosecuted similar cases.

For example, a DUI client's best defense might be to attack the county crime lab as unreliable. Once the lawyer does that, his words would be fed back to him if he tries to prosecute a person accused of DUI.

Thus, you tend to get lawyers one one side or the other -- either defense/prosecution, or (for similar reasons) plaintiff/defense on the civil side.


Perhaps if when in the public defender role the lawyer is successful in showing the crime lab to be unreliable, it is a good thing if that crime lab's work holds less weight in subsequent trials?

Of course other bad incentives will probably pop up, but it seems like this is one way to promote truth over politics in our justice system.


Very little of what you just said actually applies to the practice of litigation in the US.

For starters, most defense lawyers aren't "appointed" from a government-funded pool; they're actually employees of the government: public defenders. (Pool defenders are the minority in the US, generally found in smaller jurisdictions without the budget for standalone public defender offices.) Public defenders frequently attack the crime labs and police departments, despite the fact that both departments are also part of their employer.

On the civil side, outside of specialized areas like insurance litigation or torts, most litigation lawyers do not specialize as plaintiff or defense lawyers. They represent their clients, and this means that they will be the plaintiff's lawyer in some cases and the defense's lawyer in others. (In the case of tort litigation, the "side" depends on the client base. If the lawyer's clients are businesses, they'll almost always be on the defense side. However, if their clients are individuals, they could be on either side.)


I didn't say defense lawyers are "appointed from a government-funded pool." I said many are "appointed," which is the term used in Gideon v. Wainright and Miranda. "Appointed" covers public defenders and assigned counsel. Both are (under)paid from government funds, but their attorney-client obligations run to the accused, not the government.

As for the the rest, "the Defense bar"[0] and "Plaintiff's lawyers"[1] are pretty common terms. Sorry if your speciality is left out. The point is that a lawyer's responsibilities to clients will get hairy if they try to play both sides of common divides like prosecution/(criminal)defense and plaintiff/(corporate) defense.

[0] https://www.dri.org/ [1] https://www.google.com/search?q=plaintiff%27s+lawyer+site%3A...


I'm a lawyer...I've practice both as a public defender and in civil litigation. You're technically correct about everything you've cited but still completely wrong about your conclusion.

Lawyers are professionals, and while you will get a few bad apples who play politics, the overwhelming majority of them will have no problem representing both sides--as long as it's in different cases. (Professional has a specific legal meaning in the US, meaning at a very high level that lawyers have ethical obligations to their clients.)


It certainly doesn't have to be that way. In the UK barristers who both prosecute and defend are common (though perhaps less than they once were).


In response to your second question, it's been said the American justice system is the worst possible justice system, with the exception of all of the world's other justice systems.

I think the root problem is that the world is not fair and never will be. Justice (like health/immortality) is an ideal to be pursued, not a destination to be reached. The system we have is at least a somewhat reasonable approximation for fairness in that both sides have their points borne out by an invested party.


   "American justice system is the worst possible justice system, with the exception of all of the world's other justice systems"
That's a reworking of a quote attributed to Winston Churchill : "Democracy is the worst form of government, except for all the others". Not a sentiment typically attributed to the US justice system.

As a justice system, the US is one of several with roots in English common law, and has its variant strengths and weaknesses compared to the others.


I don't know if anybody ever said that. And if somebody ever did, the person apparently haven't travelled much.


Which countries have superior judicial systems and why?


The burden of proof is for op for making such a bold, generalized claim.

Can op brove that the us system is superior to the one in canada, france, the uk or germany ?

Good luck.


Well, for one there is the whole common law vs. civil law issue.

Most people on HN would agree that a logical, consistent, codified legal system should be superior to an ad-hoc, bazaar-style system.



That's my point, since it's not the original quote and "Democracy" is not a country.


Highly recommended: the scholarship of Georgetown Law professor Paul Butler. He's an African-American former prosecutor who writes about the criminal justice system from that perspective---as someone who has been on the prosecutorial side and now rejects the whole thing on the basis of its racial injustice. Really incredible work.


Also (defense attorney) Bryan Stevenson's Just Mercy and (ACLU / academic) Michelle Alexandar's New Jim Crow

http://newjimcrow.com/

http://bryanstevenson.com/the-book/


This is Ken White, who runs popehat.com, which is a great read about legal stuff, if you haven't seen it.


He's also an entertaining follow on Twitter.


Prosecutors: "Eh, I'm sure he's guilty of something."


”I market myself to potential clients as a "former federal prosecutor....it makes potential clients charged with crimes trust me more”

I dont know if that is the case for everyone. Make no mistake about it: prosecutors destroy lives, families, and careers for a living, and the vast majority of those on the receiving end have not committed conduct worthy of such destruction. They know this, and they still do it anyway. For some it’s just a paycheck, and others just enjoy making people suffer. But regardless of why they do it, I certainly wouldn’t knowingly allow someone that can sleep at night after throwing thousands of people to the wolves to be in the same room with me, let alone trust them with my criminal defense (or anything else for that matter).


I think someone should note that in most cases it wouldn't be possible for pressure of this magnitude to settle as a plea without the Police over charging in the beginning. Yes, as a felon I have personal experience.


This might not be a popular opinion, but I feel that plea bargains are the result of an overextended legal system. The war on drugs has overburdened our courts with cases which should not exist in the first place. Imagine how many less cases there would be if there were none involving possession or sale of narcotics. Sure, there would be tangential crimes like an addict resorting to theft but those exist now and I doubt the number would increase significantly.


Probably many people know this, but since it's important to know the owners of our media and information sources:

Reason is published by the Reason Foundation which is funded by several right-wing donors, including the Koch Family Foundations. The Reason Foundation is a member of the State Policy Network whose goal (as measured by their past history) is to advance the interests of right-wing wealthy donors. And leaders at the Reason Foundation have strong ties to ALEC, an organization that coordinates and advances bills across states that benefit right-wing wealthy donors. https://www.sourcewatch.org/index.php/Reason_Foundation

So keep Reason's editorial bent in mind when you read its articles. Some are good, but Reason leadership has an agenda.


In terms of criminal justice issues, Reason's pretty okay.

Opposition of prosecutorial and police abuses aren't really pro-wealthy donor stances.

This writer in particular, Ken White, is a practicing lawyer handling (among other things) freedom of speech issues and criminal defense cases.

He isn't a Koch-funded op-ed writer or lobbyist, he has a real job helping people.


As someone who's been reading Reason for 25 years, I agree they have an agenda, but it's not a right-wing agenda. Even though plenty of their positions do coincide with those of the right wing, they function more as a gadfly than a cheerleader for either "wing".

Since the rise of Trump I find the majority of Reason articles aligned with liberal positions. They have been highly critical of him and his administration's authoritarian actions and policies.


All of which is an ad hominem: their arguments stand or fall regardless of who funds them.


That is one of those sentiments that sounds good but really isn't useful. Say, hypothetically, President Trump said, "There was no collusion!"

Would you say that there is no utility in inspecting Trump's motives and his history of telling whoppers, because, after all, the statement "There was no collusion" stands or falls on its own no matter who said it?

In the real world, as individuals we don't have the expertise nor the time to develop the expertise to evaluate fully what we read, and it is rare that we personally have firsthand knowledge of the facts in question. So we can't determine if the claims of the article stand on their own and we rely on the reputation of the author of the article to help decide the likelihood that it is true.

The person you replied to was very careful not to claim that there is anything wrong about the article.


I don't think it's right for you to be downvoted; this sort of information is welcome.

My view of the particulars, having subscribed to Reason for a few years and read it for years before that, is that Reason is a testament to the reality that broken clock politics are real. In other words, people who fund things that you and I might normally not like also occasionally fund great things.

It's a hard thing to understand. The US government funds NPR and the national park system. I imagine that most people who like those things aren't big fans of the things to which the lion's share of the money goes (wars of aggression and enriching crony capitalists).

But Reason magazine? Shit man, I'll stand behind Reason all day. It's a wonderful publication. Kudos to them for doing good things with bad money.


In my experience, their positions are often poorly argued and usually involve gross misrepresentations of alternate policy positions.

For example, the last Reason article I read completely ignored the whole reason a policy was implemented in the first place in order to make its argument. https://news.ycombinator.com/item?id=17523570


In this case, the view is traditionally left-wing; Reason is an explicitly libertarian publication ("Free Minds And Free Markets").


What do you see as left-wing? US-style libertarians are usually considered right-wing, since (unlike libertarians/anarchists of other persuasions) they tend to put a tremendous value on strong private property rights.


They're "socially liberal" often more liberal even than the US Democratic party on issues of personal freedom like sex and drugs.


This specific position (criticism of prosecutorial discretion, and the criminal justice system in general on grounds of its harshness) is a common left-wing talking point, particularly because of the racial and economic injustice it causes. Libertarians in the US are generally affiliated with the right wing, especially (as you noted) on economic issues, but on the issue in this article they are closer to the left.


First of all, the whole "left wing / right wing" spectrum is an outdated, archaic legacy of a bygone age, and has no place in modern society at all.

That said, to the extent that you can squint real hard and find some meaning in the idea of "right wing" or "left wing", American libertarians are typically described as "simultaneously left of left, and right of right".

Ultimately that just goes to illustrate exactly the point that a simple one dimensional spectrum cannot even begin to model the diversity of political beliefs in the world.



> First of all, the whole "left wing / right wing" spectrum is an outdated, archaic legacy of a bygone time and has no place in modern society at all.

Not really. It doesn't tell the whole story, but it reflects a real and current axis of variation.

> That said, to the extent that you can squint real hard and find some meaning in the idea of "right wing" or "left wing", American libertarians are typically described as "simultaneously left of left, and right of right".

American “libertarians” (that is, people referred to that way in America) are typically right-libertarians. To the extent they sometimes seem left, it's because some of the popular perception of the right is set by right authoritarians.


It doesn't tell the whole story, but it reflects a real and current axis of variation.

Actually it conflates and muddles several different axes of variation, leaving a situation where almost nobody is actually correctly described by the term "left wing" or "right wing".

American “libertarians” (that is, people referred to that way in America) are typically right-libertarians.

That is a myth which has no basis in reality. Libertarians in America adopt huge swathe of positions which are more typically associated with the "left wing" label: drug decriminalization, opposition to the death penalty, religious freedom, etc. The fact that they tend to take those same issues even further than others is how you wind up with the "left of left, and right of right" label:

Typical American "left wing" position: decriminalize weed

Typical American libertarian position: eliminate all drug laws, what you put in your body is no business of the State.

So, "left of left".

Typical American "right wing" position: "lower taxes"

Typical American libertarian position: "taxation is theft, end all taxes".

So, right of right.

You really can't model things in a sufficiently rich way to describe Libertarianism on a one-dimensional spectrum like the left/right scale. It just doesn't work.


> That is a myth which has no basis in reality.

No, it's really not.

> Libertarians in America adopt huge swathe of positions which are more typically associated with the "left wing" label

Libertarians in America are more likely to agree with the left on issues where the left believes the government should be inactive, sure, but they tend to agree with the right on what the important functions of government are.

> Typical American "left wing" position: decriminalize weed

That's just the typical American opinion, now. But, sure, most on the left would go at least that far.

> Typical American libertarian position: eliminate all drug laws

Not really; the scattered polling I've seen over the years have shown self-described libertarians as only slight more supportive of legalization of any drugs (even just marijuana) as the US public as a whole, much less the left.

Similarly on your other points.

> You really can't model things in a sufficiently rich way to describe Libertarianism on a one-dimensional spectrum like the left/right scale.

Libertarianism is at least another axis, sure, and even that is more about broad categorization. And it may not even be the second most significant axis in US politics; there's a race policy axis that has historically been stronger.


> Not really; the scattered polling I've seen over the years have shown self-described libertarians as only slight more supportive of legalization of any drugs (even just marijuana) as the US public as a whole, much less the left.

Reason is not your average rank-and-file libertarian; it's an ideological paper. Think average Republican voter vs. National Review columnists. Do a quick search for "marijuana" and you'll get stories that speak positively of legalization; search for "MDMA" and you'll get stories celebrating its approval for treatment of PTSD. Again - this article takes a position traditionally associated with the left-wing, because this particular publication takes a classical ideological libertarian position.


They call themselves libertarian, and they don't want to end drug prohibition? They're fooling themselves more than they're fooling us. That's table stakes.


Textbook No True Scotsman.


I'd have to see this scattered polling, but this really seems like a claim somewhere between "Catholics who say they don't believe in transubstantiation," and "self-identified Scots not from Scotland," considering.

https://www.lp.org/issues/war-on-drugs/


Not exactly. There's no real pre-defined Litmus test for what it means to be a True Scotsman... the whole point is that the definition is made up post-hoc. But there is a meaningful, albeit not absolute, litmus test for what it means to be a Libertarian, and that is adherence to the Non-Aggression Principle. Unfortunately the whole discussion is a bit muddled by the typical "big L" Libertarian vs "little l" libertarian dichotomy, and there is nuance to what it means to adhere to the NAP. But saying there is some nuance to the distinction is not the same thing as a No True Scotsman argument.


Everyone I know who will admit to being libertarian, got into it through his rejection of The Drug War. Could you point us to a self-described libertarian who likes drug prohibition?

This kind of bullshit, is the reason I'm an anarchist.


In terms of political alliances, American libertarians are very much right-aligned, but on specific issues they end up opposed to traditional right-wing views; criminal justice is one of them.

Part of their right-wing alignment is to downplay these kinds of issues, but Reason as an ideologically purist publication tends to play them up.


In summary, youth is a problem.


> youth is a problem

Youth is a vast treasure and a glorious opportunity. Unfortunately, it's disproportionately vested on individuals who lack the wisdom and experience that comes with age.


“Youth is the most beautiful thing in this world—and what a pity that it has to be wasted on children!” - G. B. Shaw[0]

[0] https://quoteinvestigator.com/2015/09/07/young/


Conversely... wisdom is wasted on old people.


I wouldn't presume to judge the wastefulness of the elderly, but among those with whom I am in regular contact, I would say at least that not much wisdom has been wasted.


That doesn’t follow.


Correct - it doesn't follow, it is a different assertion.




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