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Why Innocent People Plead Guilty (nybooks.com)
324 points by colmvp on Nov 1, 2014 | hide | past | favorite | 95 comments

I'm a high school teacher, and we are looking at bringing restorative justice practices into our district. Just starting to dig into the restorative justice framework gives us a stronger way to think about dealing with discipline within a school system.

As I start to have deeper conversations with people well versed in restorative justice, I'm starting to hear really concrete ideas and practices for reforming our justice system in the US.

Edit: To clarify, restorative justice avoids the punitive approach to dealing with crime. Instead, it asks what harm has been done to what relationships when a crime has been committed. The first goal is then to work to restore those relationships. This is an incredibly valuable perspective in schools, where relationships are central to so much of what should be happening in a learning environment. It's a pretty good lens for examining situations in the larger community as well.

One resource, from a school-based perspective: http://www.healthiersf.org/RestorativePractices/

And a more general perspective: http://www.restorativejustice.org/

I hope you succeed in changing the system. School for most kids is "prison-lite". Like if you don't show up on time for roll call, you get punished by being held in recess or forced to pick up garbage around the school.

And this is not some third world school I am talking about. This is schools in cupertino, one of the wealthiest and most "progressive" areas in the world.


> Years ago, five friends and a I were put in charge of a 150 rowdy fifth-graders for a long weekend up in Canada. It was almost impossible to be heard over the din—until I stumbled onto the solution. All we had to say was, “points will be deducted,” and compliance appeared. There weren’t any points and there wasn’t any prize, but merely the threat of lost points was sufficient.

>School for most kids is "prison-lite".

The parallels are numerous. You are legally compelled show up under threat of violence (although usually targeted at the child's parents, in the form of being arrested). You are not free to leave when you desire. You lose certain basic human rights while you are there (e.g. [1,2,3,4]). You are subject to the arbitrary authority of non-elected persons. Until recently, you were subject to physical violence at the hands of these persons. Social cliques and violence are relatively common. In many situations, self-expression, experimentation, and curiosity is discouraged.

I know, as a child, public school left a bad taste in my mouth for some of these reasons.

[1] Board of Education of Independent School District #92 of Pottawatomie County v. Earls

[2] Bethel School District #43 v. Fraser

[3] New Jersey v. T.L.O.

[4] Morse v. Frederick

Reminds me of Orwell's [Such, Such Were The Joys](http://www.orwell.ru/library/essays/joys/english/e_joys).

"Luther: "High school's a lot like prison. Bad food, high fences... the sex you want, you ain't getting, the sex you're getting... you don't want."


At least there's one good thing about it: it's a great motivator to work hard and get rich if one is planning on having kids, in order to avoid sending them to public school.

N.b. to downvoters: The parent comment was a possibly poor attempt at irony. I don't actually think there's anything good about US public schools.

> I don't actually think there's anything good about US public schools.

It's a good thing no one here actually went to one isn't it.

Also discussed in the most recent This American Life: http://www.thisamericanlife.org/radio-archives/episode/538/i...

There are many cases in which one can't restore the harm. If someone dies, you can restore that. Many times the harm is psychological and is not easy to restore. I don't know if restorative justice prevent or diminish the probability of further crimes, but a good justice system employ punishment as an excellent inhibitor of crime. People are sensible to long term sentences in jail.

The real problem is that we allow the prosecuting attorney to "strike" possible jurors from the juror pool.

The defense should get this advantage, but the prosecution should not. If the prosecution has to stack the jury to get a conviction, it doesn't have a proper case.

Another problem is that the prosecution is looking for easily influenced jurors rather than diligent ones.

Once had a hung jury on this where one juror was voting guilty and wouldn't budge. Our take: "Look, yes, he is guilty of possession. He had the drugs. BUT THAT'S NOT WHAT HE'S CHARGED WITH. He's charged with conspiracy and he wasn't even in the country at the time the conspiracy was supposedly discussed. The government HASN'T PROVED ITS CASE."

Nope. Guilty. Won't budge. And she was a grand juror. So much for the safety check of a grand jury. Sigh.

I don't see how allowing prosecutors to strike jurors has anything at all to do with the problem. Prosecutors (and defense attorneys) only get a small number of peremptory strikes. They can strike more, but they have to give the judge an acceptable reason. A prosecutor cannot "stack the jury" via peremptory strikes.

You are essentially proposing that juries be selected by the defense. That would not result in impartial juries. It would result in juries that are prejudiced in favor of the defendant.

The real problem is mandatory minimum sentences.

> It would result in juries that are prejudiced in favor of the defendant.

Um, yes, exactly. As opposed to now where the jury is prejudiced against the defense. Most jurors believe that you are guilty by virtue of being in the defendant chair; that needs some counteraction.

The government already has all the advantages--reports, police, enormous resources, and the charging authority.

Giving the defense a prejudiced jury would be a good starting point for counterbalance.

And, I don't think you would find the juries being that prejudiced at the end of the day, anyway. Most people are far too docile and believe the prosecution without any level of skepticism.

I see what you're saying, but I think it lacks perspective. Yes. the government has a lot of advantages, such as the ones you list. But remember that

a) A criminal jury verdict has to be unanimous. So the "defense's" jurors have to vote to convict along with the "government's." This is clearly designed to benefit the defense.to

b) The "beyond a reasonable doubt" standard of proof. Defendant friendly, to say the least.

c) Jurors are notoriously unpredictable. I don't know of any lawyer (and I know a lot of lawyers), whether a defense attorney or prosecutor, who would tell you that they can reliably predict what any given juror will do. The best you can do is ask questions like "do you think that anyone convicted of a crime is probably guilty" or "would you feel comfortable sending someone to jail" and remove the jurors who give the "wrong" answers to those questions. And note that these would typically be "strikes for cause," and therefore don't count against either side's total number of peremptory strikes.

Item A is not precisely accurate communication, because it is not voting in the sense of other voting. A criminal jury verdict has to be unanimous, but we send them to a sealed room and tell them 'Come back when you have a unanimous verdict.', rather than "Oh, you voted and disagreed? Well, Not Guilty then."

There is a strong understanding among the populace that a jury is a majoritarian body, that unanimity is a legal fiction, and that juries which can't effectively suppress dissenting opinions are failures in their social function, and we demand both extended "deliberation", and a completely new trial to correct their issue.

We even reinforce this understanding in caselaw; A last-ditch effort to un-"hang" a jury is termed an Allen Charge, which is apparently when the judge instructs the jury's minority vote that their position isn't reasonable while glaring at them menacingly.

>That would not result in impartial juries. It would result in juries that are prejudiced in favor of the defendant.

Yeah, and that's a good thing. The prosecution should work hard and provide facts to PROVE the defendant done the crime, not pick jurors to help them in burrying anyone they set their targets on.

Well as I understand the article argues that all of this happens before the jury has any say? So you are talking of a separate problem?

Well anything that increases the prosecution's chances of winning a case will increase their power in plea bargaining as well.

The prosecution doesn't really fear losing a case. If the prosecution actually lost more cases that went to trial they would be far less aggressive when seeking plea bargains.

Wouldn't this make them more aggressive when seeking plea bargains? As they /really/ don't want to go to trial for fear of losing the case?

Are you talking about state or federal?

The article is largely talking about the federal penalties for going to trial, where you have to be 80% sure you will win before it makes sense to reject a plea bargain and go to trial.

Federal. Of the people on the jury, there were only 3 that activated brain cells. The rest were like "Well, the prosecution says he's guilty and he's a bad man and hangs out with bad men, so I guess he's guilty."

Um, NO.

He may be guilty as sin, but the government has to prove it's case. If it doesn't prove the case, he walks irrespective of whether he is a bad man because sometimes he ISN'T a bad man.

The jury system seems crazy to me - do you really want to put these important decisions on a bunch of random, in the worst case easily influenced people? I expect judges to see through the prosecution's or defendant's bullshit, they should have the competence, experience and knowledge to find a fair ruling. Locking a bunch of people in a room and telling them to stay there until everyone's on the same page feels a little bit like amateur hour.

Your anecdote seems to confirm this.

In Norway, at the lower court instance, cases are judged by a panel of three judges, of which two are lay-judges selected from the jury pool. The professional judge can thus be out-voted, but has the ability to correct blatant errors during deliberations. For certain more serious cases, the panel can consist of five judges, of which three are lay-judges.

For the second court instances, which handles appeals from the lower court or serious cases (potentially leading to 6 years or more imprisonment, which in Norway pretty much limits it to murder, serious drug related offences, rape or other serious sexual offences or particularly serious robbery cases), there is a jury and a panel of three professional judges. The jury is selected from the same pool as the lower instance, but generally the selection takes into account experience, so that it generally consists of people with experience as lay judges from the lower court instances.

Which means you'll usually face a jury where the members have previously participated in deliberations with a legally trained professional judge.

If the professional judges do not agree with the finding of the jury, they can set it aside if unanimous (in the case where the jury votes to acquit) or with two votes in the case where the jury votes guilty (and the professional judges wants to set the guilty verdict aside).

If the judgement is set aside, something which is very rare and usually happens only if the jury made obvious substantial errors, the case is retried with three professional judges and four lay judges.

It has warts, but the system with lay judges means that you don't face a group of people who don't understand the system with no corrective input, yet at the same time it still quite frequently happens that the lay judges overrule the professional judges (and the judgement is only rarely overruled), or that the panel is split with a mix of lay judges on professional judges in the majority.

The republican system of election combined with a consumerist society benefits from uneducated, easily influenceable masses.

The jury system is related to the original democratic ideals: educated, responsible citizens which can be trusted (in aggregate) to take good decisions.

What you want is a society where you have more jury like systems, which would encourage the education of the people and especially educating their critical sense.

You also want low enough penalties so that jury mistakes are not too dangerous.

I'm really confused by this anecdote that you're pulling from. How do you know all this about what the jurors were thinking? Were you on the jury? Was it a grand or petit jury? Remember that there is a huge difference in the functions of a grand and a petit jury. The latter hears all the evidence and decides whether to convict based on proof "beyond a reasonable doubt." The former decides whether to indict, and hears only government evidence (and not necessarily evidence that would be admissible at trial) and only needs to make a decision by a preponderance of the evidence.

Perhaps off topic, but charges of conspiracy can be upheld where any elements of the conspiracy took place, whether or not all of the participants were in that place at the time.

If he received a phone call from a co-conspirator, he can be found guilty of conspiracy charges, whether or not he was in the country at the time the other crimes were committed.

That may be, but then the prosecution would have to provide evidence such contact. They did not.

It was very clear that someone didn't take whatever threat (aka plea bargain) the government provided, and the government wanted to make an example of him.

Fair enough. I obviously didn't intend to speak on the case at large, or even necessarily defend the guy who very likely was the lout you portrayed him as, just wanted to pick that one nit.

Mandatory minimums seems rather cruel. In my country - Denmark - sentences are usually limited to 15 years (life in prison, actually means that after 16 years, your case will be reheard by the judicial system; in serious crimes, these verdicts are usually predictable (i.e. keeping the convicted in prison)).

The fact that a state can demand a mandatory minimum sentence of 15 years for selling heroin is outrageous. That's not to say, that there aren't convictions here that don't have the appearance of mandatory minimums, but not by law, merely by practice.

(Also, I find no evidence to suggest that mandatory minimums have done anything to reduce crime in the US.)

You are correct - but the US system is different. The main goal of Denmark's prison system is likely centered around making sure people are reformed when they get out. The loss of freedom itself is the main punishment. The US system focuses much less on reforming people, but instead focuses on punishment. Loss of freedom isn't enough.

Mandatory minimums do have cruel outcomes: Usually the minimums were put in place as a political ploy (we'll make sure those bad people get put away for a long time - to keep your kids safe at night). I'm pretty sure that evidence doesnt' exist - any that does is likely against mandatory minimums.

So the only reason mandatory minimums are not unconstitutional is because of the word 'and'? I guess you can then make any cruel punishment constitutional by making it usual.

Heh. Unfortunately it is more complicated than that. I think the line includes cruelty along with the 'and' to attempt to put some sort of limits on punishment and to make sure the punishments matches what society knows as 'uncruel', though in practice it doesn't work out as well as imagined.

I'm not sure if anyone has appealed mandatory minimums on the basis that they are cruel and unusual punishment: They probably have research to back up their claim. This is probably the true reason they aren't unconstitutional - because you have to appeal and sue (sometimes pretty far) to try to get those turned over. The other option is for the public to pressure legislature into changing the laws, and considering the current climate in Washington, I doubt that is going to happen soon enough.

And the US pays for it with ridiculous re-offending rates...

Not only for selling of drugs - for possession. 2-8 years just for having a few grams of cocaine on you. Then there's the fines that can get you stuck in a imprisonment loop (jailed for not paying -> out of jail -> unpaid fines -> jailed for not paying -> repeat). Insane.

Not only that, but mandatory minimum is basically the legislator not trusting the judges to give the right penalty.

And they're unfair because they restrict the ability for the judge to individualize the penalty.

Well maybe sometimes judges shouldn't be trusted.

A judge's sentencing can vary from one day to the next and can depend on factors as trivial as how enjoyable his/her lunch was.

Sure, and then you get judges who try to give a guy 3 months for raping a 14-year-old.

Mandatory minimums are also intended to make justice less arbitrary.

Why the downvotes? That actually happened last year. Look it up.

In my view the right to a jury trial doesn't just protect the innocent, but provides the system with much needed oversight. In a trial, the prosecution has to make its case, not just before the judge and jury, but in principle, before the entire public. And the public gets to see the quality of the evidence being presented.

Bypassing the trial lets the prosecution work in darkness, and darkness invites corruption or incompetency, even if only in the name of getting the job done more efficiently.

I'm thinking out loud here, but maybe the problem isn't the plea bargain, but the pleading process itself. It might be less subject to abuse if the prosecution had to present its evidence before the court and in public, and if the judge could reject the plea and compel a trial.

Motions can be passed prior to trial to question the validity of certain charges.

The problem is there are a lot of federal judges who let prosecutors continually change the charges, change the rational for the charges, add on whole new charges in an attempt to force a plea bargin etc...

I've studied quite a bit of criminal justice and constitutional law, but one thing that still eludes my understanding is the incentive structure.

Why do prosecutors seek to put innocent people in prison? What's in it for them?

Your question presumes that prosecutors are looking for the truth, right and wrong, innocence and guilt.

They are not.

Their job is to prosecute. Hence we've seen terrible stories about people prosecuted and jailed for years because prosecutors knowingly refuse to turn over exonerating evidence.

Judges are also part of this problem. They are paid by government. Their instructions (Rules of Criminal and Civil Procedure) come from government. They have often worked as prosecutors for the government. So their loyalty is to the government. We don't have an independent judiciary. It's been wholly captured by the government.

Getting to the question as to why the innocent plead guilty, when you're faced with the cost of an attorney it's often cheaper and easier to take a plea than to fight. The stress, emotional and mental toll of a legal fight are horrendous. And there is very little guarantee that a defendant will win.

The deck is stacked against you when you go to court. Prosecutors and judges are not there to have a colloquy about the law, the facts, the issues of the case, nor to debate the motivation and intent of the defendant. The prosecutor is there to win. The judge is there to ensure that the well-oiled machine keeps running and that jurors deliver the needed verdict.

>Your question presumes that prosecutors are looking for the truth, right and wrong, innocence and guilt.

>They are not.

>Their job is to prosecute

That's not entirely true. Their job (or at least their office's job) is also to decide when and where to seek prosecution. In theory, determining truth and innocence is a significant part of their job.

The trouble is when that runs up against a politicized, failure intolerant culture that would much rather reward a prosecutor with a strong string of wins (however questionable their methods) over one with the courage to simply present the best case they have and let the jury decide on the facts like they are supposed to.

> Their job (or at least their office's job) is also to decide when and where to seek prosecution. In theory, determining truth and innocence is a significant part of their job.

There are a couple of problems with this:

1. When everyone is guilty of something, prosecutorial discretion is a disaster, not a desirable feature of the system. It's nothing other than the power to bankrupt and/or imprison whoever you don't like.

2. They don't do things by assessing truth and innocence. When my great-grandfather's mind went, some member of another branch of the family got appointed conservator of his estate, and proceeded to embezzle over $600K in "gifts" to herself and her family. My mother discovered this by coincidence, assembled a huge pile of damning evidence, and went to a prosecutor, who said he wouldn't bother charging her because she was a middle-aged woman and getting a conviction would be almost impossible.

My mother ended up suing, and on advice of counsel settled for the documented value stolen, rather than the full legal liability (which is a multiple of the losses). The theory there, as I recall, was "judges hate it when you go to trial even after being offered a settlement, so you should take the settlement".

If a prosecutor's chief career metric is his conviction rate, then he doesn't have much incentive to reelease exonerating evidence.

I wonder if changing the rules would help. Releasing such evidence and causing the case to collapse would not reduce the conviction percentage. Perhaps it could even be counted as a win, increasing the metric, because justice was done.

Nope, you have just incentivized prosecutors to release guilty defendants to fix the numbers.

A truly democratic government also represents the collective will of the people. In America, we don't have a truly democratic government, but I think it's close enough to hold, to the extent that the justice system serves the desire of the people for the appearance of justice. The people can't know whether justice is happening, so its appearance has to substitute for this knowledge. This feedback optimizes the system to provide this appearance. I think we see major shocks when independent research and especially new methodologies for examining evidence (like DNA) disrupt the appearance that the justice is what's actually happening to the expected degree.

> Their job is to prosecute.

I understand, but how did this become gospel?

Of course I understand the principles of an adversarial system of trials. My question was how did this lead to prosecutors believing their job is to seek convictions rather than justice.

Well, if the adversarial system is effective, then it's the combination of prosecutors driving for convictions and defense attorneys driving for acquittals that produces justice. Hypothetically, only the judge is concerned with justice. And even then, only obliquely, because they only oversee justice of the trial process, not justice in general.

There are fundamentalists in law, just like in religion. A conviction exonerates the lawyer from any responsibility for injustice. After all, the opponent was declared or admitted guilt. Just as a religious leader exonerates himself from responsibility for enabling pogrom or ethnic cleansing as being the written will of the almighty.

It happened when their primary career performance metric became convictions.

On paper,the prosectors' job is to seek stice.

Seek justice, I mean.

Conviction rates are a career metric for prosecutors.

A striking incidence of Goodhart's Law: (though it's questionable if this was a good measure in the first place)

> When a measure becomes a target, it ceases to be a good measure.

Interestingly, even if we added wrongful conviction rates as a disincentive, it would probably not affect the end result. It isn't impressive being an 80% prosecutor. It's much better to aim to be a 95% prosecutor and take the risk of a wrongful prosecution. Go big or go home.

I wonder if there's a better way of determining if someone is good at a job. I mean, it is natural for us to like people who do really difficult things, but if many people take great risks, there's likely to be at least one who just happens to succeed due to circumstances. Did he succeed because he's better or because there's a 5% chance of succeeding and he just happened to do so? It seems like he succeeded against all odds, but what if that was just pure luck and it seems impressive because we don't see it as throwing a hundred darts (a hundred prosecutors) at a board and seeing one strike the bull's eye (one with no wrongful convictions)?

This isn't an entirely perverse incentive. For most crimes, I would imagine that prosecuting the correct perpetrator would be the one most likely to result in a conviction.

And rate, vs count, is also the correct metric. Unfortunately, prosecutors are often under a lot of pressure from the public (i.e., us) to put somebody away. What's a prosecutor to do after Nancy Grace tells us who the murderer is?

>I would imagine that prosecuting the correct perpetrator would be the one most likely to result in a conviction.

Why would you imagine that? Why would you assume that there was even a crime at all for there to be a 'correct perpetrator'?

>Unfortunately, prosecutors are often under a lot of pressure from the public (i.e., us) to put somebody away. What's a prosecutor to do after Nancy Grace tells us who the murderer is?

This is significant in the six cases a year that get big television coverage, but this has happened to millions of people and the media/public generally have little/nothing to do with it.

Of course it's always presented this way, but do voters really think this way? I surmise that a number of other factors are more important in elections than conviction rates.

And even if that were true, why charge obviously innocent people at all? Not charging them won't affect the conviction proportion.

They don't charge obviously innocent people. In the wrongful conviction context, you're usually talking about someone who had prior criminal history, was associated with bad people, and was in the area of the crime scene at the wrong time. Obviously they deserve justice, but it's not like police are charging random law-abiding citizens.

How obviously innocent would you like? How about playing in a youth league basketball game at the time of a murder, with the game on video provided by the team coach, and still ending up on death row at the age of 16. http://en.wikipedia.org/wiki/Shareef_Cousin

edit - there is also Krishna Maharaj, who it seems was completely fitted up by the Florida police and who still has a life sentence despite 6 separate witnesses putting him 30 miles away from the murder he was originally sentenced to death for. http://www.reprieve.org.uk/cases/krishnamaharaj/

Or there is Dan Taylor, who's seemingly watertight alibi is that he was already in jail when the murder he was convicted for happened. Still didn't help him any despite police records confirming this - http://www.chicagotribune.com/news/watchdog/chi-0112190353de...

Or Jonathan Fleming, holidaying in Florida with family during a murder in Brooklyn. Police withhold the evidence proving his alibi. http://edition.cnn.com/2014/04/08/justice/new-york-wrongful-...

Krishna Maharaj was definitely in the hotel room where the murder occurred before it happened and had business dealings with the victim that had gone poorly.

Dan Taylor gave a detailed confession.

I'm not saying they're guilty, but it's not like the cops just picked them up at random.

Dan Taylor didn't confess and then get picked up. Dan Taylor got picked up and then confessed to something it was clearly impossible for him to have done. Even if they proceed to convict you, the police do not think you are guilty if they have you in the cells at the time the crime occurred.

As for Krishna Maharaj, whether he knew the victim of the murder is fairly incidental to having 'admissions by former Miami police and those closely associated with law enforcement that they framed Maharaj and had a deal to help cover up Colombian cartel murders'.

> They don't charge obviously innocent people.

Most might not, but some most certainly do.


The guy in that story was in possession of both the murder weapon and a ring taken from the victim. He was exonerated because the prosecutor failed to disclose evidence of a blood stain on the victims clothing that wasn't a match for his. That failure can't be condoned. But it's also ridiculous to act like the police just grabbed some guy off the street that was obviously innocent.

That's what I said about understanding what the injustices really are. The challenge isn't as simple as what you're saying: "just don't charge innocent people." The challenge is getting prosecutors to give defendants their due process, even when the defendants have damning evidence against them, when they have criminal records, when they are caught up in shady circumstances.

I read an article the other day about a guy who was convicted of murdering a pizza delivery driver in front of his wife and kids. There were questions about whether he had been the one to shoot, but there is no doubt that he and his friends were in the process of robbing the driver when one of their party shot the driver.

As I understand things, if an innocent (?) party dies while you're committing a felony, you're officially guilty of murder. I assume armed robbery of a pizza delivery guy is a felony (?), so why would the question of who pulled the trigger come up?

I don't actually like the you're-guilty-of-murder-if-your-cocriminal-kills-someone rule, but that seems like exactly the sort of case it's intended to work with.

Yes, he was convicted of felony murder. The specific controversy was that he was sentenced to life imprisonment, despite being 16 at the time: http://rt.com/usa/aclu-pledges-help-without-parole-225.

Although, he was re-sentenced to a 30-60 year sentence with possibility of parole after a 2012 Supreme Court case: http://www.thealpenanews.com/page/content.detail/id/624360/N.... Big victory for criminal justice reformers. :-/

I have no problem believing what you are saying, but at least statistically, there must be exceptions.

Which is actually an interesting thing to consider when you are applying laws to millions of people.

(still, from where I sit, convincing people that prison should not be a hell pit is a much bigger win right now than sweating false convictions)

There is, of course, the whole bell curve of erroneous outcomes. But you can't know a priori who are the genuinely innocent people. The reason justice reform is so hard is because it's hard to get police and prosecutors to assiduously assure people's due process rights when the overwhelming percentage of people they deal with are bad people.

I think prosecutorial misconduct is absolutely unacceptable. But I can also see why it happens, without assuming that it could only happen if large numbers of prosecutors were evil people who would convict someone they knew was innocent just to inflate their quota.

Yeah, I'm not shaking my pitchfork, I guess I'm thinking there is an interesting discussion to be had about how you make a system that is probably pretty good 10 or 100 or 1000 times better.

Or just target someone who you don't think will be able to adequately defend themselves, either in court or the press. Disproportionately, this means, poor people, minorities, immigrants, etc.

Because they believe that the accused is guilty.

I think it's interesting that you have so many responses to your comment and none of them propose that possibility. Yes, there are corrupt prosecutors, or prosecutors who just don't care. But I think most of them do care, and think they're doing the right thing. The police won't arrest you unless they think you're probably guilty. The prosecutor won't go after you unless they think you're probably guilty. The evidence points in that direction, or else they wouldn't get far. You may be innocent, but they're not working on that angle. From where they sit, you look guilty, and things like exonerating evidence will be seen through that lens, as a way for a guilty person to go free, not a way for an innocent person to avoid punishment for a crime he didn't commit.

This is simultaneously reassuring (these are regular, good people) and terrifying (how do you fix the system then?).

That's the whole point of the system. Prosecutors are supposed to prosecute those they believe are guilty (of course that doesn't mean negligently or willfully ignoring evidence that points toward innocence). While the system is supposed to presume innocence until proven guilty, it's the job of the prosecutor to prove guilt.

Of course you're guilty. You were arrested, and almost everyone else who came before me who was arrested was guilty.

It makes their job easier. If they have 100 cases to prosecute and they can get 95% to enter a plea deal, now they only have 5 cases to worry about. If 5% of those who plead guilty are actually innocent, the prosecutor doesn't really care because it's not a case he/she has to go to trial over.

The core of the adversarial system is that the prosecutor and defense are entirely one-sided, and the court acts as impartial referee. The opposite to this is the inquisitorial system where the court tries to find out information themselves.

A combination of "something must be done!" and "well, even if he's later let out he must have been up to no good to have even been arrested."

Looks great when they try to run for office.

I think the most basic explanation is that lower crime rates means fewer prosecutors. Prosecutors probably estimate (and probably accurately) that putting people in prison for certain crimes is politically popular. In some cases, I suspect prison and police lobbies can influence things.

Kickbacks from the prison-industrial complex, of course. They're bribed to ruin people's lives, but that's fine with the prosecutors themselves because they're sociopaths.

Most prosecutors do not seek to put innocent people in prison. Does it happen? Yes, they are people and people are not perfect. Some are far from perfect.

> Most prosecutors do not seek to put innocent people in prison.

I understand that. But some do, and they commit horrific crimes of injustice in so doing. Why?

NB: the author, Jed Rakoff, is a prominent federal judge in New York City.

We should make the maximum sentence that can be sought at trial a small multiple of the minimum sentence. So the defendant is looking at a tradeoff of at most a year in jail vs. three years in jail.

Giving defendants a choice between a certain year in jail if they plead guilty or 15 years in jail if they're convicted, it becomes basically right for them to accept the former just from a risk management perspective.

Playing a game of high-stakes poker with your freedom on the line makes a mockery of the very concept of justice.

This article is pretty much dead-on. Our laws have become more broad with absurdly high maximum penalties, and this extorts guilty pleas. For example, an internet merchant accused of failing to deliver 10 $200 orders could be charged with 10 counts of Wire Fraud and face a potential sentence of 300 years in prison (up to 30 years per count). Thus, when this hypothetical web merchant is offered a deal for 6 months, he will take it, regardless of whether he may have won at trial or not.

The system is designed to extort guilty pleas. The statistics are pretty straightforward: if you are standing in court facing charges, you've already lost. You just may not know it yet.

In a way this seems like just another example corporate culture seep into our government. The prosecutors are gaming the system HARD and completely against the spirit of the system, but it's legal so it's OKAY. Meta justice.

I know somebody who had some charges brought against them about 10 years ago. It was a he-said/she-said and the state had no real evidence. From the get go they were trying to get a plea bargain. The accuser even recanted, signing a witnessed statement to the effect that they lied about the whole thing. Still, they pressed forward. Delaying meetings, pushing out dates, and generally drawing the whole thing out. They waited until the very day the statute of limitation ran out to close the case. I've seen first hand how much leverage they have over people. These types of charges, even pending, can completely wreck your life. And the stress. I remember everyone saying he should take the plea bargain, but I agreed that if he was innocent he had a duty to tell them to stuff it and hold out. Justice, pride; I GOT it. We were young. Now though, at 30.. If I were in a similar situation I'm just not sure what I would do.

History rhymes: see this article on self-incrimination under the threat of torture.


Thanks! Excellent read. Perhaps submit that paper directly to HN?

Feel free. :) It's probably been submitted already; I think I got it from an HN thread on Aaron Swartz.

The end was interesting. Particularly the part that begins as follows:

> I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process.

Worth a read.

I did because I was offered a plea for no time (other than the night I had already spent in jail), no fine, and it would be expunged from my record in two years. At least, that's what the public defender told me during the single minute I spoke to him while walking down the hallway to court.

It didn't matter any more that I hadn't done anything (not just anything wrong, but anything - I had been arrested while sitting on the sidewalk talking to friends) the important thing was being free from a potential three year sentence for 'criminal trespassing' at 18.

Some background on the author: http://en.wikipedia.org/wiki/Jed_S._Rakoff

Will making prosecutors accountable for wrongful conviction keep them in check?

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