US The Aaron Swartz case and plea deals

[das_nut]

Attorney General Eric Holder on Wednesday said the suicide death of internet activist Aaron Swartz was a “tragedy,” but the hacking case against the 26-year-old was “a good use of prosecutorial discretion.”

The attorney general was testifying at a Justice Department oversight hearing before the Senate Judiciary committee and was facing terse questioning from Sen. John Cornyn (R-Texas).

Cornyn said the prosecution was based on “prosecutorial zeal” and “I would say even misconduct.”

Cornyn asked the attorney general: “Have you looked into that particular matter and reached any conclusions?”

Holder replied:

Let me first say that Mr. Swartz’s death was a tragedy. My sympathy goes out to his family and to his friends — those who were close to him. It’s a terrible loss. He’s obviously a very bright young man and had I think a good future in front of him. As I talked to people who’ve looked into this matter, these news reports about what he was actually facing is not consistent with the interaction was between the government and Mr. Swartz. An offer, a plea offer, was made to him of 3 months before the indictment. This case could have been resolved with a plea of 3 months. After … the indictment, an offer was made that he could plead and serve 4 months. Even after that, a plea offer was made of a range of from zero to 6 months that he would be able to argue for a probationary sentence. The government would be able to argue for up to a period of 6 months. There was never an intention for him to go to jail for longer than a 3-, 4- potentially 5-month range. That is what the government said specifically to Mr. Swartz. Those, those offers were rejected.

Cornyn, echoing a growing number of people, suggested the government was bullying Swartz by ratcheting up the charges.

The Texas lawmaker asked: “Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a 3- or 4-month prison sentence?”

This case has made me think about plea deals.

The typical plea deal tends to be along the lines of pleading guilty and getting a much reduced sentence, or taking the risk of going to trial and facing a very long and severe sentence. Prosecutors have an incentive to bring up an array of severe charges in hopes of scaring the defendant into pleading guilty ahead of trial.

Is this fair? Now in Aaron's case, he was obviously guilty of violating the intent of his access to the computer system in question. But it is open to debate if such guilt rose to the level of a criminal (instead of civil) violation. Yet the prosecutor was willing to threaten Aaron with 35 years and million dollar fines in the hope that Aaron wouldn't take the risk of being found guilty at trial and instead agree to a plea.

Now, what would happen if a person was innocent of a crime? What would the average person do if faced with the decision of maybe going to prison for years and being fined millions, or going to jail for a few months? I don't think it's that unlikely to argue that many people would avoid the uncertainty of a trial and agree to the plea - even if that person knew they were innocent.

It seems to me that our criminal justice system, by heavily relying on plea deals (9 out of 10 cases result in plea deals), is biased towards locking up innocent people. This isn't right.

Nor is it efficient to have prosecutors willing to accept a plea for only a few months, yet people who decide to take similar cases to court (and end up losing) will end up receiving a far more severe sentence. If the prosecutor was willing to accept a deal where Aaron Swartz may have even received a suspended sentence, why did the same prosecutor threaten Aaron with a multi-decade punishment and million dollar fines?

There's also some discrimination involved in the plea deal. Having a good lawyer is going to help those charged with a crime who plea out. Obviously, having a good lawyer is going to be dependent on ones finances, and in the US, wealth correlates to both race and gender. In addition, those of certain races may decide that the are less likely to receive a fair verdict in the courtroom and are more likely to take a plea.

It seems that the system is designed for failure.

Maybe its time to get rid of plea deals.

Thoughts?

 

[mlp]

The entire judicial system would collapse without plea deals, and, in the case of civil actions, settlements (only about 3% of civil cases go to trial). I don't think lay people have any understanding of how crowded court dockets are or how expensive and burdensome trials are.

Heck, it's hard to put a jury together for the number of cases that go to trial now - almost everyone tries to get out of jury duty.

Go ahead and get rid of plea deals, but prepared to up the amount of public funds going into the judicial system a hundred fold or more. (That's not 100%, that's multiplied by 100.)

Actually, that's an overly optimistic projection - the more crowded a court docket is, the more often you have to prepare for trial, only to have it postponed over and over again, each time requiring renewed trial prep.

 

[das_nut]

The entire judicial system would collapse without plea deals, and, in the case of civil actions, settlements (only about 3% of civil cases go to trial). I don't think lay people have any understanding of how crowded court dockets are or how expensive and burdensome trials are.

Are trials more expensive than locking people up?

The US is the #1 nation in the world for per-capita incarceration rates. We have a higher percentage of people locked up than any other country. Yet our crime rates are no better.

 

[mlp]

Are trials more expensive than locking people up?

Well, it's not exactly an either/or proposition.

The US is the #1 nation in the world for per-capita incarceration rates. We have a higher percentage of people locked up than any other country. Yet our crime rates are no better.

If our crime rates were low, one would expect our incarceration rates to be low. Likewise, with high crime rates, one would expect high incarceration rates, unless one's law enforcement and judicial systems are entirely ineffectual and/or corrupt, as is the case in many developing countries.

You're coming at this from angles that don't make much sense.

 

[das_nut]

Well, it's not exactly an either/or proposition.

If plea deals tend to lead to more false convictions (and evidence is hinting that it may), then yes, it's an either/or deal.

If our crime rates were low, one would expect our incarceration rates to be low. Likewise, with high crime rates, one would expect high incarceration rates, unless one's law enforcement and judicial systems are entirely ineffectual and/or corrupt, as is the case in many developing countries.

Are you ignoring the feedback between incarceration and crime?

 

[mlp]

If plea deals tend to lead to more false convictions (and evidence is hinting that it may), then yes, it's an either/or deal.

Only with respect to any plea deal that actually results in a false conviction. Trials also result in false convictions, by the way. I think that you need more than "hints" to make a case that taking everything to trial would be more cost effective, and considering the cost of taking everything to trial....

Are you ignoring the feedback between incarceration and crime?

Are you ignoring the correlation between high crime rates and high rates of imprisonment?

 

[das_nut]

Only with respect to any plea deal that actually results in a false conviction. Trials also result in false convictions, by the way. I think that you need more than "hints" to make a case that taking everything to trial would be more cost effective, and considering the cost of taking everything to trial....

Try a bit of googling. The question of why innocent people plead guilty to crimes they haven't committed have been asked and answered multiple times. One very obvious example is capital murder cases - many people will take a sure prison sentence over the chance of being executed.

It's similar, in many ways, to the prisoner's dilemma. That's a well-studied problem in psychology, and results are obvious when you apply what we know to plea bargains.

Are you ignoring the correlation between high crime rates and high rates of imprisonment?

Of course not. But imprisonment and high crime rates are a self-reinforcing cycle. Our current (US) justice system amplifies the effect of high crime rates. Not to mention that high-crime rates can provide an incentive to punish people, regardless of guilt or innocent, to appease the community.

 

[mlp]

Try a bit of googling. The question of why innocent people plead guilty to crimes they haven't committed have been asked and answered multiple times. One very obvious example is capital murder cases - many people will take a sure prison sentence over the chance of being executed.

It's similar, in many ways, to the prisoner's dilemma. That's a well-studied problem in psychology, and results are obvious when you apply what we know to plea bargains.

I'm not arguing that. What I'm saying is that approaching it from a dollars spent perspective doesn't work in your favor.

 

[das_nut]

I'm not arguing that. What I'm saying is that approaching it from a dollars spent perspective doesn't work in your favor.

It doesn't?

What's the average cost of a trial?

What's the average cost of a plea deal, including incarceration, increased chance of recidivism, and the removal of a person from society?

 

[mlp]

It doesn't?

What's the average cost of a trial?

What's the average cost of a plea deal, including incarceration, increased chance of recidivism, and the removal of a person from society?

The issue isn't "average" cost of one trial, one plea deal.

It's total cost:

A. The cost of taking all cases to trial, reduced by the cost of taking the percentage of cases to trial which are currently going to trial (the net increase in cost of taking all cases to trial), plus the costs of incarceration, increased chance of recidivism, removal from society of those individuals who are innocent but are found guilty and who would have taken a lesser sentence if they had been offered a plea deal, versus

B. The cost of incarceration, increased chance of recidivism and removal of a person from society with respect to those persons who take a plea deal even though they are innocent.

 

[das_nut]

The issue isn't "average" cost of one trial, one plea deal.

It's total cost:

A. The cost of taking all cases to trial, reduced by the cost of taking the percentage of cases to trial which are currently going to trial (the net increase in cost of taking all cases to trial), plus the costs of incarceration, increased chance of recidivism, removal from society of those individuals who are innocent but are found guilty and who would have taken a lesser sentence if they had been offered a plea deal, versus

B. The cost of incarceration, increased chance of recidivism and removal of a person from society with respect to those persons who take a plea deal even though they are innocent.

Well, for pleas, we have a few costs. First, we have the cost (savings) of not going to trial. That's a plus. We also have the cost (and benefits) of a shorter prison term - this may be a plus or minus. After all, a guilty person who tends towards a high recidivism rate doesn't really save us money if we give her (or him) a shorter sentence.

For a no-plea scenario, we have a few other costs. Fist is the cost of a trial - if we don't avoid it (some cases will be dropped if there are no plea deals). So does this come out to a plus or minus? What percentage of cases would be dropped without trial if plea deals were prohibited? Does the case get dropped earlier (saving the cost of the plea deal?) or not? Then we have incarceration - longer, on average, but in the long term, maybe sentencing guidelines would be forced down since everyone would be subject to the same possible penalties. That's hard to say. There's also the cost of letting the guilty go (obviously a negative), and the cost (benefit) of letting the innocent go. Also there's recidivism - if we end up locking the guilty up for longer, it may save society money in the long term.

Now, all the above should indicate to you that the cost/benefit calculation may be a tad more complicated than you're assuming.

 

[mlp]

But not in favor of your argument, that it would be cost effective to take all cases to trial.

And, BTW, sentencing guidelines aren't material for the purposes you mention in the foregoing post - the discretion is in the crimes being charged.

There is plenty wrong with the system. Getting rid of plea deals isn't the way to fix it, and trying to use a cost argument in favor of getting rid of plea deals simply falls flat.

 

[das_nut]

But not in favor of your argument, that it would be cost effective to take all cases to trial.

I never argued that. IMO, without plea bargains, some cases would be dropped since the chance of loss of a conviction is just too great.

And, BTW, sentencing guidelines aren't material for the purposes you mention in the foregoing post - the discretion is in the crimes being charged.

But sentencing guidelines does come into play when figuring out costs.

 

[mlp]

I was referring to this statement of yours: "maybe sentencing guidelines would be forced down since everyone would be subject to the same possible penalties" and pointing out that, with or without the possibility of plea deals, the discretion of prosecutors lies in the charges they bring.

You're getting a bunch of things that don't benefit your basic proposition muddled into the argument you're trying to present. You should regroup and try to approach it from a different direction than cost/benefit - that's a loser for you.

 

[das_nut]

But without the possibility of plea deals, there's no longer the expectation that most cases will plead out.

Which means that prosecutoral discretion in charging individuals gets a lot more burdensome for the prosecutor. Sure, they can still charge an individual with a crime, but that crime will go to court, and the prosecutor may lose.

 

[mlp]

I'm thinking that you're wasting your time here, having a discussion with someone who isn't capable of a rational discussion, so I'll do you a favor and disengage.