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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The Lost Art of Congressional Oversight

Most people probably didn't notice, or it may have passed most people's radar even if they are relatively diligent Congressional watchers, but on Wednesday, something interesting happened on Capitol Hill--a Congressman announced that he would begin doing his job--overseeing the executive agency his committee is supposed to manage.  Florida Rep.Jeff Miller (R), chairman of the House Veteran's Affairs Committee announced that he is ready to up his and his committee's oversight of the Department of Veterans' Affairs.  According to a committee press release:

“Lengthy delays or not responding to requests at all has become the norm,” stated Rep. Jeff Miller, Chairman of the House Committee on Veterans’ Affairs. “First we were told $20 million was spent in FY2011 on conferences; then we were told it was a little over $100 million; finally we were told that no accurate, reliable figure on conference expenditures exists. Because of these discrepancies, Ranking Member Filner and I asked for clarification of VA’s total conference spending for that year and prior years, as well as a breakdown of all individual conferences, and still have yet to receive any information.”

Miller's specific context is recently provided and widely divergent statemetns of spending on departmental conferenes, which ranged from $20 million, to over $100 million and on Wednesday, the Committee was told that the figure was $86 million.   Mark Tapscott of the Washington Examiner, calling Miller an MVP wrote:

The third VA figure of $86 million was presented at Wednesday's hearing. Miller's exasperation was clearly evident when VA's No. 2 official, W. Scott Gould, couldn't explain the variation among the estimates.

Instead of merely venting his anger, Miller responded to the VA obstacles by declaring, "The truce is over. Expect much more oversight from this committee."

Miller was still fuming after the hearing, telling The Washington Examiner's Mark Flatten that the committee "got the same old crap that VA has been giving us for two years, and I am tired of it." 

Perhaps to remove any doubt about his intention, Miller added that the committee "will be digging in every possible corner that we can for issues that are not being served for the veterans. If you have leadership within the VA that have arrogant attitudes, the veterans are not being well-served."

Tapscott goes on to note that the current VA Secretary, retired Army General Eric Shinseki, seemed like a man who could clean up the VA, a department that seems rife with mismanagement apparent by its inability to quantify even a basic budget line item of internal conferences.  But even the effective Shinseki seems to have not made a dent.  

You could lay the blame on many different places and Shinseki and his predecessors do indeed to shoulder some of the blame.  But ultimately, the real failing is at the Congressional level.  Almost by necessity (and probably not fully necessary--but that is a subject for another post) Congress has to delegate a lot of detail work to the executive  branch to flesh out the details of legislation.  This process, known as rulemaking, means that Congress needs to be active--truly active-- in their oversight duty to make sure that Congressional intent is carried out.  Of course, Congressional intent may be hard to discern from the actual legislation, which makes oversight even more important.  When rules and regulations are proposed by various executive branch agencies, those rules are subject to review and rejection by Congress under the Administrative Procedures Act.  However, such rejection almost never happens.

Similarly, management of the federal budget--a task clearly and Constitutionally delegated to Congress--is hardly ever exercises after an appropriations bill is passed.  Rep. Miller is responding to an obvious problem, that agency officials cannot even answer basic questions about their budget and as a result Miller is now proposing greater oversight of the VA by his Committee.  While Miller is to be applauded for this, what is truly troubling is that his vow is making news.  

Increased Congressional oversight is not and should not be news.  It is an art and a duty that should be exercised as diligently as possible and as often as possible.  Congressional oversight, if it means that senior executive branch officials are spending twenty, thirty or even fifty percent of their time responding to Congressional inquiries, is not simply "a duty" of Congress, but arguably is "the" duty of Congress.  Take the example of a typical household budget.  That budget and the expenditures made under it have to be reviewed regularly, scrutinized, refined if necessary and certainly altered to fit that actual reality of the situation.  A private company has budgetary review all the time, no matter how big the company is.  However, in the regular effort to be reelected, and the constant campaigning that accompanies that, the lost art of Congressional oversight gets dismissed in the shuffle of campaign events, other duties, and the apparent feeling of trust of executive branch bureaucrats.  

While we want to be trusting of government officials, members of Congress and their staff don't have that luxury.  Congress must be skeptical of every dollar spent.  In the end, only vigilance will save the tax payer money, and only vigilance will keep the government on task.