Tuesday, February 05, 2013

Three to Read: Crime and Punishment Edition

A  couple of weeks ago, Prof. Glenn Reynolds (a.k.a. the Instapundit) posted a short paper on SSRN called  Ham Sandwich Nation: Due Process When Everything is a Crime in which he discusses the problem of prosecutorial discretion.  Reynolds notes that our criminal justice system is not really one in which the accused is realistically afforded a trial by a jury of his peers, rather "What we really have is a plea bargain system with a thin froth of showy trials floating on top."  While the plea bargain system is clearly an issue in the judicial system, complaints about the system mask a larger problem--the elimination of the average citizen from yet another governmental function.

Although Reynolds is not the first to note that our criminal justice system is largely one based on plea bargains, his paper and the death of Reddit creator Aaron Swartz by suicide days after he rejected a plea bargain on a series of charges that could have (but most likely would not have) sent him to prison for 35 years, have created something of a dialogue.

As this Boston Globe story by Leon Neyfakh attempts to discuss, increasing the role of the citizen might be one way in which to limit the overcharging that happens with prosecutors.  Noting first that we have a criminal justice system and a political system that rewards tough on crime behavior by our law enforcement branches, Neyfakh also notes that
While the police who investigate and arrest us are bound by strict limits on what they can do, and courts must abide by procedures designed to treat defendants fairly, there are hardly any guidelines in place to protect us during the charging phase. The result—as any “Law & Order” fan knows—is a system where the prosecutor loads up as many charges as possible to force a guilty plea, and moves on to the next case.
Thus, at one key phase of the criminal prosecution phase, there is almost no limit, practical or legal, that can be a check on the power of the government.  Why?   A plea bargain system of justice is the most efficient way to appear "tough on crime" and to address the thousands of laws that create criminals out of all of us.  See, Harvey Silvergate's Three Felonies A Day:  How the Feds Target The Innocent.  Neyfakh discusses a number of ideas to change the jury system, to increase the role of the grand jury or to change the manner in which the grand juries operate.  Today, in those states with a grand jury process, it is said that a good prosecutor can get a ham sandwich indicted if he so wanted.  Changes in the grand jury system, so that average citizens have more of a say in who gets charged and what they get charged with, might be one means to reaffirming the role of the citizen in the judicial system as well as serving as a check on the prosecutor gone wild.

While there is nothing inherently wrong with a plea bargain, particularly for those who are truly guilty, there is an incentive created in a system in which plea bargains are the primary means of obtaining a conviction.  For a prosecutor with political ambitions and/or prejudices, her discretion allows for her to make decisions which can all but guarantee a plea from an alleged criminal without the trouble and expense of a trial for the state.  The prosecutor simply loads up the charges, listing lesser offenses along with some offenses which, if the matter actually went to trial would get tossed pretty easily, all in an effort to say to a defendant, "if I convict you on all these charges you will get 50 years in prison.  But here is a deal where you can plead guilty to this charge and get little or not jail time."  Of course, in such a situation, particularly for those people (most people) who cannot afford a costly legal defense, taking the deal is preferable.  As little more that state-sanctioned blackmail (the term for this should not be plea bargain but rather it should be "prison-mail").

But is the deal being offered truly fair?  We are not always talking about some drug dealer who may have killed a rival, so the prosecutor, in the face of little or no evidence of the murder charge, offers a felony drug conviction.  In that case, everyone knows the dealer is guilty of a least the drug crimes.  But what about the case of Aaron Swartz?*  Could Swartz have committed a crime?  Probably--at least trespassing by breaking into a switching room to which he was not allowed. He was also probably guilty of illegal downloading and/or hacking. But 35 years on 13 charges seems excessive.  Given that Swartz was embarking on a plan to regularly hack networks to publicly reveal data, a mindset that Orin Kerr discusses at length, some sort of punishment was certainly warranted.  Kerr also warns of turning Swartz into a cause celebre or thinking his case is an outlier.  Swartz had set out on a plan to challenge, among other laws, the Computer Fraud and Abuse Act.  Swartz was almost certainly guilty of one or more crimes under that act (which Kerr does argue is in need of some serious reworking).
But the broader point is that if we think agressive prosecution tactics such as this are improper, we shouldn’t be focused just on the Aaron Swartz case. Rather, we should be shining a light on the federal criminal system in its entirety. These sorts of tactics have been going on for years, without many people paying attention. If we don’t want a world in which prosecutors have these powers, we shouldn’t just object when the defendant in the crosshairs is a genius who went to Stanford, hangs out with Larry Lessig, and is represented by the extremely expensive lawyers at Keker & Van Nest. We should object just as much — or even more — when the defendant is poor, unknown, and unconnected to the powerful. To do otherwise sends an extremely troubling message to prosecutors that they need to be extra sensitive when considering charges against defendants with connections. We have too much of a two-tiered justice system already, I think. So blame the system and aim to reform the system; don’t think that this was just two or three prosecutors that were doing something unusual. It wasn’t.
Kerr's solution is pretty simple--eliminate duplicative charges.
[m]ultiple overlapping crimes gives prosecutors an unfair advantage at trial that in turn pressures defendants unfairly to take a guilty plea. That’s the case because the jury is easily misled. When the jury sees a multi-count indictment involving many different crimes, the jurors have two natural reactions. First, they think they can “split the difference” and convict on some but not all. This is just wrong, as it turns out; at sentencing, a conviction as to only one crime is treated just as severely as a conviction as to all crimes. But the jury doesn’t know that, giving the prosecution an advantage. And relatedly, the jury likely thinks that the defendant’s conduct is extra serious if it is charged under lots of criminal offenses instead of one. The existence of multiple overlapping crimes therefore gives the prosecutors an unfair advantage; the answer is to narrow that advantage by eliminating entirely duplicative crimes.
Reynold suggested two things that are simple and quite easy to implement:

  • Juries could be informed of plea bargains that were rejected so that they might ask the question of why a prosecutor is seeking 20 years at trail but was willing to accept five in a plea bargain.  
  • Implement a type of loser pays systems so that if a prosecutor is unable to get a guilty verdict at trial, the state would be obligated to pay some or all of the legal fees of the defendant.

But as this post from Grits for Breakfast dealing with Texas criminal justice system points out, the fix probably won't come from the courts, but has to come from the legislature.

Which felons go to prison, which ones get probation and who is even charged are all local decisions.... The Legislature can't control elected DAs and judges, but it does have both direct and indirect means to set the parameters of local decisions. 

Sure, there are budgetary decision, but what is necessary is systemic change.  Thus the legislature needs to be pressured to make these changes.

The Larger Issue
While depending on who you ask, you might get different answers about how to address the problem be it legislative or populist, legal or libertarian, the fact is that the plea bargain system does produce incentives that eliminate the role of the citizen.

However, while these questions of incentives and checks on the power of the prosecutor are important, they point to a deeper problem we have in this country.  The effort by so called experts, elites and/or self-important government "servants" to take the reins of power out of the hands of the citizen and keep if for themselves.

The jury system in the United States is not just about having a "jury of your peers" to prevent overreach by the government.  The jury is the democratic aspect of judicial system.  If you look at our three branches of government, the legislative, the executive and the judicial, there is and must be a role for the citizen in all three, be it by direct election, indirect election or direct participation in the process, the Constitution enshrines in each branch a role for the citizen.  The jury system is how the average citizen can ensure that the law is fairly and justly applied since the jury has a pretty strong tendency (and incentive) to be fair and just, far more than a prosecutor (who has different motives) or even a judge (who may be prone to his/her own biases and just plain human error)

Everywhere you look in our government, we see the distancing of the core government functions away from the citizen.  The expansion of the regulatory state (in addition to the problems highlighted by Reynolds, Silvergate in the justice system and many, many others in all arenas  means that the average citizen has no way of knowing the law as well as removing from the purview of the common man the ability to act as a check on the power of government, in what ever form that the "government" takes--legislator, bureaucrat or prosecutor.  When the legislature delegates lawmaking power to un-elected, faceless bureaucrats, there is no method by which a voter can hold his representatives accountable or easily know the law under which he lives.  Similarly, when there is no check on judicial and prosecutorial discretion  the plea bargain system eliminates the common man from the judicial process.

More and more, we have a government by the elites--the lawmakers, the rule makers, and the law enforcers.  Where is the citizen?  Is the jury system complicated and slow?  Probably, but that is hardly a justification to circumvent democratic institutions.  While complaints about the plea bargain system are well-founded, the real complaint should be more about how the average citizen is being eliminated more and more from the public role he/she was granted by the Constitution.

* There is no hard evidence of Swartz's suicide being the consequence of the charges against him.  Reportedly Swartz had a history of depression.  It is possible that his criminal case may have exacerbated his despressive symptoms or it maybe completely unrelated.

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