Ham Sandwich Nation: Due Process When Everything Is a Crime(columbialawreview.org)
columbialawreview.org
Ham Sandwich Nation: Due Process When Everything Is a Crime
http://columbialawreview.org/ham-sandwich-nation_reynolds/
21 comments
Now that I'm on a regular computer, this is the section that goes into detail about strict liability: http://lawcomic.net/guide/?p=1008
It describes, as an example, someone who picks up a feather that a bird discarded in the ordinary course of its life and someone else whose supplier delivered product in violation of a state rule. Both examples happen to deal with permutations of endangered species acts but the chapter discusses the broader concept of "overcriminalization."
(Hat tip to author Nathan Burney.)
It describes, as an example, someone who picks up a feather that a bird discarded in the ordinary course of its life and someone else whose supplier delivered product in violation of a state rule. Both examples happen to deal with permutations of endangered species acts but the chapter discusses the broader concept of "overcriminalization."
(Hat tip to author Nathan Burney.)
In some of my not-entirely-sober states of mind I have sometimes thought of ways to eliminate prosecutorial overreach. (It's a problem outside US too.)
A very simple approach would be that for each count that the defense can strike off as irrelevant or spurious, they would also get to strike off any other charge of their choosing. That alone would make prosecutors extremely wary of bringing up random charges in hopes of seeing which they can make stick. They would need to have solid evidence for each charge or risk having the most serious ones nullified.
On the other hand, I'm not naive enough. The cure could well be worse than the poison it was meant to address.
A very simple approach would be that for each count that the defense can strike off as irrelevant or spurious, they would also get to strike off any other charge of their choosing. That alone would make prosecutors extremely wary of bringing up random charges in hopes of seeing which they can make stick. They would need to have solid evidence for each charge or risk having the most serious ones nullified.
On the other hand, I'm not naive enough. The cure could well be worse than the poison it was meant to address.
This is just trying to treat the symptom: the issue is not that we try multiple things at once, its that that becomes a real option when we have too many laws. As mentioned below, I think no one has a real issue with someone being tried for 4 murders and 1 rape. Seems totally reasonable to me that if they only find him guilty of 3 of those murders justice was still served. If prosecutors were only operating under a much smaller and more well defined and understood set of laws, they simply wouldn't be able to over-prosecute. Its harder easier to find any given person guilty given 10 laws vs given 1 law.
Just look at the situation with traffic violations: most cops will tell you that if they want to cite you for something, they can find something to cite you on. The solution is not to come up with clever tricks where they lose points if they cite you for too many of these, or citation 1 disqualifies citation 2 or whatever, its to just limit the number of traffic laws so that police are only capable of acting on real issues.
Just look at the situation with traffic violations: most cops will tell you that if they want to cite you for something, they can find something to cite you on. The solution is not to come up with clever tricks where they lose points if they cite you for too many of these, or citation 1 disqualifies citation 2 or whatever, its to just limit the number of traffic laws so that police are only capable of acting on real issues.
I say we go with an even more radical solution, based on the chief protection against that harm in medieval Iceland.
Let's require that the Speaker of the House recite from memory 1/4 of the federal code (including regulatory laws) every year, so that over the course of 4 years, the entire code of laws gets recited. Anything accidently omitted gets stricken from the law books.
Congress should open with this. And if one human cannot be expected to know the law, then nobody else should be either.
Let's require that the Speaker of the House recite from memory 1/4 of the federal code (including regulatory laws) every year, so that over the course of 4 years, the entire code of laws gets recited. Anything accidently omitted gets stricken from the law books.
Congress should open with this. And if one human cannot be expected to know the law, then nobody else should be either.
"Ooops forgot murder!"
(or if you are more cynical, "lobbying regulation")
(or if you are more cynical, "lobbying regulation")
Wouldn't be a good idea to forget that one in medieval Iceland....
Now, keep in mind that manslaughter was relatively minor at the time, but secret murder was really, really bad. The difference was that manslaughter was where a killing was announced and taken credit/responsibility for. If you hid the fact, that was cause to have everything you own taken by the victim's family and have any legal protections you might have had in the past revoked, meaning anyone could kill you and nobody could give you shelter.
Now, keep in mind that manslaughter was relatively minor at the time, but secret murder was really, really bad. The difference was that manslaughter was where a killing was announced and taken credit/responsibility for. If you hid the fact, that was cause to have everything you own taken by the victim's family and have any legal protections you might have had in the past revoked, meaning anyone could kill you and nobody could give you shelter.
As ama729 hinted at but didn't call out explicitly, this would give the Speaker unilateral authority to overturn any law. That's tremendous power in one individual.
It's not so different, conceptually, from the pardon power.
An interesting point. The pardon power is presently a check on the legislative, though. Vesting it in the person in charge of the legislative would be a tremendously significant change in ways entirely unrelated to the desired pressure towards fewer laws.
I'm not going to say this couldn't possibly be a good idea, but it'd need very close scrutiny and probably other changes.
I'm not going to say this couldn't possibly be a good idea, but it'd need very close scrutiny and probably other changes.
Your idea is already addressed by standard criminal procedure, except for the bizarre part about letting the defense strike off any charge of its choosing.
In a nutshell: after the arraignment but before trial, they have a court hearing (the "preliminary hearing" aka "probable cause hearing", see http://en.wikipedia.org/wiki/Preliminary_hearing for a layman's description) in which the prosecution is required to lay out sufficient evidence to justify each charge. They don't have to provide evidence sufficient to prove guilt (yet, because that is the jury's function) but they have to show sufficient evidence that a jury could find guilt. Charges which do not satisfy even this basic level of substantiation are dropped by the court.
Edit: You can downvote this comment all you want; it doesn't change the fact that preliminary hearings have been a basic part of US criminal jurisprudence for decades, functioning more or less exactly as described above.
In a nutshell: after the arraignment but before trial, they have a court hearing (the "preliminary hearing" aka "probable cause hearing", see http://en.wikipedia.org/wiki/Preliminary_hearing for a layman's description) in which the prosecution is required to lay out sufficient evidence to justify each charge. They don't have to provide evidence sufficient to prove guilt (yet, because that is the jury's function) but they have to show sufficient evidence that a jury could find guilt. Charges which do not satisfy even this basic level of substantiation are dropped by the court.
Edit: You can downvote this comment all you want; it doesn't change the fact that preliminary hearings have been a basic part of US criminal jurisprudence for decades, functioning more or less exactly as described above.
I'm not sure you grasped the parent comment's point. The idea was that there would be a penalty to include charges that could be struck out at a preliminary hearing.
As it stands, there is incentive to threaten a defendant with onerous charges that would never stand up in court. Most cases are settled by plea bargains. I'm not clear on the statistics, but I think this means they never reach preliminary.
Under the parent's proposal, the prosecution could not introduce spurious charges without risking losing their actual legitimate charges.
I don't know what the unintended consequences would be, but striking off the charges is not a "bizarre" part of the proposal. It's the point of the proposal.
As it stands, there is incentive to threaten a defendant with onerous charges that would never stand up in court. Most cases are settled by plea bargains. I'm not clear on the statistics, but I think this means they never reach preliminary.
Under the parent's proposal, the prosecution could not introduce spurious charges without risking losing their actual legitimate charges.
I don't know what the unintended consequences would be, but striking off the charges is not a "bizarre" part of the proposal. It's the point of the proposal.
>You can downvote this comment all you want; it doesn't change the fact that preliminary hearings have been a basic part of US criminal jurisprudence for decades, functioning more or less exactly as described above.
Neither does it change the fact that preliminary hearings do NOT solve the problem he describes.
Neither does it change the fact that preliminary hearings do NOT solve the problem he describes.
I agree and disagree with you.
What you describe is clear and straightforward for "traditional" crimes, but when your talking about highly abstract/technical or transactional crimes, I don't think that any non-millionaire could afford representation capable of dealing with multiple counts of honest services fraud, very technical violations of something like a firearms law.
I also think that in the federal space, things like lying to a federal agent should not be crimes -- look at the Martha Stewart case. We should be convicting people of crimes they commit, not for statements made during an investigation.
What you describe is clear and straightforward for "traditional" crimes, but when your talking about highly abstract/technical or transactional crimes, I don't think that any non-millionaire could afford representation capable of dealing with multiple counts of honest services fraud, very technical violations of something like a firearms law.
I also think that in the federal space, things like lying to a federal agent should not be crimes -- look at the Martha Stewart case. We should be convicting people of crimes they commit, not for statements made during an investigation.
Do preliminary hearings tend to happen before plea bargains are offered? So if you are faced with 10 charges adding up to 500 years on jail, those have already been vetted by the court as having sufficient evidence and aren't just a scare tactic to get you to waive the trial?
I'd go further. The jury must convict on all presented charges or none. Throwing 900 charges at someone, as the article says, is a way to force a plea bargain from someone who may well be innocent. (And removing a charge after failing the plea bargain tactic, but before court can't be allowed either.)
That is an extremely dumb idea. And I say that from the POV as someone who used to represent criminal defendants.
A person can be guilty of multiple crimes for the same act. Under the basic principles of criminal constitutional law, all crimes for the same act must be charged at the same time. Your solution would mean that someone guilty of rape, murder, and larceny would go completely free if they were found guilty of the two more serious crimes (rape and murder) but not guilty (or no verdict) for the least serious crime.
A person can be guilty of multiple crimes for the same act. Under the basic principles of criminal constitutional law, all crimes for the same act must be charged at the same time. Your solution would mean that someone guilty of rape, murder, and larceny would go completely free if they were found guilty of the two more serious crimes (rape and murder) but not guilty (or no verdict) for the least serious crime.
> Under the basic principles of criminal constitutional law, all crimes for the same act must be charged at the same time
You're just referencing double jeopardy, and mean that you have to simultaneously present all charges that you ever want to charge them with, right?
In your hypothetical, just ignore the larceny. In the event that they're found guilty of rape and murder, you can't really say that justice wasn't done. In the event they can beat the serious charges, you shouldn't think that getting them on the larceny would have been actual justice.
To the extent you may be right that it's a fundamentally bad idea, then the fact that one minor act can be turned into so many "independent" charges demonstrates the problem with a proliferation of laws that cover any possibly wrong action five times over.
You're just referencing double jeopardy, and mean that you have to simultaneously present all charges that you ever want to charge them with, right?
In your hypothetical, just ignore the larceny. In the event that they're found guilty of rape and murder, you can't really say that justice wasn't done. In the event they can beat the serious charges, you shouldn't think that getting them on the larceny would have been actual justice.
To the extent you may be right that it's a fundamentally bad idea, then the fact that one minor act can be turned into so many "independent" charges demonstrates the problem with a proliferation of laws that cover any possibly wrong action five times over.
[deleted]
One possible fix would be for Prosecutors to have a karma rating and each time someone is found not guilty of any charge it brings them down a notch. At a certain point then they would have their law license suspended for a time.
That's almost how the current system works, and is a source of much of it's woes. There is no actual "karma rating", but prosecutors are very mindful of their success rates as they are generally considered to be a measure of their worth as a prosecutor and the basis on their future career advancement.
Because of that, once they prosecute someone, they must succeed -- and this leads to situations like the prosecution withholding or trying to hide evidence proving innocence.
Because of that, once they prosecute someone, they must succeed -- and this leads to situations like the prosecution withholding or trying to hide evidence proving innocence.
Right, a 100% conviction rate could mean any of 1) they are very good at picking their battles, 2) they are very good at convicting innocent people, 3) they are extremely over-conservative in the cases they pursue. Only 1 is a good thing, although lesser degrees of 3 might be as well, depending. 2 is outright bad.
Is there a way to compare / access the success rates of different prosecutes?
I was just thinking about this. Why do we allow multiple charges per trial?
What would happen if we only allowed one charge per trial, and it was a prosecutor's job to determine (along with existing duties) which one of the possible charges would be tried? Double jeopardy would be prevented by requiring submission to the court of all considered charges; attempting to bring a new charge for an already-adjudicated matter would be handled like a failure to disclose exculpatory evidence is today - the charge would be thrown out and the prosecutor would be reprimanded however that happens today.
What would happen if we only allowed one charge per trial, and it was a prosecutor's job to determine (along with existing duties) which one of the possible charges would be tried? Double jeopardy would be prevented by requiring submission to the court of all considered charges; attempting to bring a new charge for an already-adjudicated matter would be handled like a failure to disclose exculpatory evidence is today - the charge would be thrown out and the prosecutor would be reprimanded however that happens today.
So if we were (for example) sure a person had committed rape, and had good evidence they also committed murder, it is up to the prosecutor to decide if they should risk pursuing a murder charge, risking a person going free for a rape which they would certainly be convicted for?
Also, if you do murder someone, you may as all rape them too, as it can't lead to any more sentence?
Also, if you do murder someone, you may as all rape them too, as it can't lead to any more sentence?
We allow multiple charges today because a person can be guilty of multiple different crimes for the same act.
Your suggestion makes no sense. It would incentivize people to commit as many crimes simultaneously as possible, knowing that they could only ever be charged for one of them.
Your suggestion makes no sense. It would incentivize people to commit as many crimes simultaneously as possible, knowing that they could only ever be charged for one of them.
>We allow multiple charges today because a person can be guilty of multiple different crimes for the same act.
There is no logical necessity that "multiple different crimes for the same act" HAVE to be tried in the same trial, which was the whole point of what he said.
>Your suggestion makes no sense. It would incentivize people to commit as many crimes simultaneously as possible, knowing that they could only ever be charged for one of them.
Again you tollaly miss not only the point, but also his suggestion completely. He doesn't say a person has to be charged with "only one" of the crimes he did, but that each crime charge should have it's own trial proceedings.
There is no logical necessity that "multiple different crimes for the same act" HAVE to be tried in the same trial, which was the whole point of what he said.
>Your suggestion makes no sense. It would incentivize people to commit as many crimes simultaneously as possible, knowing that they could only ever be charged for one of them.
Again you tollaly miss not only the point, but also his suggestion completely. He doesn't say a person has to be charged with "only one" of the crimes he did, but that each crime charge should have it's own trial proceedings.
There is no logical necessity that "multiple different crimes for the same act" HAVE to be tried in the same trial, which was the whole point of what he said.
Of course not. But in the real world, pragmatism applies. Related crimes will almost always be tried together; it is only in extremely rare circumstances where one or more charges will be tried separately from related charges.
Again you tollaly miss not only the point, but also his suggestion completely. He doesn't say a person has to be charged with "only one" of the crimes he did, but that each crime charge should have it's own trial proceedings.
This would only be possible if the defendant waived their right to a speedy trial. The flipside to allowing only one charge per trial is that a defendant's risk of criminal punishment could extend for years for the period between arraignment (the charging hearing) and judgement (the verdict), rather than weeks or months as is the case today.
Of course not. But in the real world, pragmatism applies. Related crimes will almost always be tried together; it is only in extremely rare circumstances where one or more charges will be tried separately from related charges.
Again you tollaly miss not only the point, but also his suggestion completely. He doesn't say a person has to be charged with "only one" of the crimes he did, but that each crime charge should have it's own trial proceedings.
This would only be possible if the defendant waived their right to a speedy trial. The flipside to allowing only one charge per trial is that a defendant's risk of criminal punishment could extend for years for the period between arraignment (the charging hearing) and judgement (the verdict), rather than weeks or months as is the case today.
No, I actually meant that for a particular act, you could be held accountable for one crime committed during the act and that's it. The idea being the prosecutor would pick the most serious charge likely to win conviction and focus their attention on that. I thought it would streamline the entire process and result in a higher quality trial, since attention would not have to be split amongst several charges.
I was thinking of two situations: multiple homicides resulting in e.g. multiple life sentences - this has always seemed like silly theatrics to me - and the situation where e.g. a traffic stop for a busted taillight might lead to charges of driving on a suspended license, drugs possession because the friend-of-a-friend you're giving a ride to had weed on him and threw it under the seat, and resisting arrest because you argued with the cop. I was NOT thinking about gamer criminals trying to execute multi-crime combo moves, or about the scenario where someone was killed and rape was certain but murder iffy.
So overall the one charge approach has a lot of problems. It was a poorly formulated idea and I should not have posted it.
Thanks for attempting to find reason in it, though.
I was thinking of two situations: multiple homicides resulting in e.g. multiple life sentences - this has always seemed like silly theatrics to me - and the situation where e.g. a traffic stop for a busted taillight might lead to charges of driving on a suspended license, drugs possession because the friend-of-a-friend you're giving a ride to had weed on him and threw it under the seat, and resisting arrest because you argued with the cop. I was NOT thinking about gamer criminals trying to execute multi-crime combo moves, or about the scenario where someone was killed and rape was certain but murder iffy.
So overall the one charge approach has a lot of problems. It was a poorly formulated idea and I should not have posted it.
Thanks for attempting to find reason in it, though.
> Why do we allow multiple charges per trial?
Because it saves the state (and, hence, the public) -- both the court and the prosecution -- witnesses, and the defendant time, and money and reaches finality sooner to consider related charges in a single proceeding rather than serial proceedings.
That's why we actually go further than allowing multiple charges per trial, but require, in many circumstances, related charges to be prosecuted in the same trial or not at all.
And, also, why we do the same thing in the civil system (though in that case, you have to consider another party -- the potential private plaintiff -- who has the same savings, since the state is no longer paying both the court and the prosecution.)
Because it saves the state (and, hence, the public) -- both the court and the prosecution -- witnesses, and the defendant time, and money and reaches finality sooner to consider related charges in a single proceeding rather than serial proceedings.
That's why we actually go further than allowing multiple charges per trial, but require, in many circumstances, related charges to be prosecuted in the same trial or not at all.
And, also, why we do the same thing in the civil system (though in that case, you have to consider another party -- the potential private plaintiff -- who has the same savings, since the state is no longer paying both the court and the prosecution.)
Note that if there are multiple charges, prosecuting all of them at once benefits the accused as well, who needs to mount only one defense, as opposed to facing multiple trials for multiple charges.
The latter is the case at times especially where federal charges are brought against someone who's been found not guilty on state/local charges within the US. While I understand the tactic, it has significant abuse potential.
The latter is the case at times especially where federal charges are brought against someone who's been found not guilty on state/local charges within the US. While I understand the tactic, it has significant abuse potential.
Well, there may be good reasons for multiple charges. For example, rape and murder might be tried together.
However, if we stopped allowing lesser included charges, that would be a good thing. For example, let's stop giving juries the ability to say "It wasn't murder, but manslaughter since intent wasn't proven."
However, if we stopped allowing lesser included charges, that would be a good thing. For example, let's stop giving juries the ability to say "It wasn't murder, but manslaughter since intent wasn't proven."
I think there must be legitimate instances of multiple charges per a trial. I like the idea in the comment you responded to, I think that would be effective enough.
I posted these here just a few days ago:
- Accused can choose to take the plea but continue the trial. If he loses he just serves the plea.
- A conviction on a crime caps the max penalty for that crime: this means if a rich daddy's boy gets away with 60 days probation for a DUI, any future DUI conviction cannot be bigger than 60 days probation.
- Accused can choose to take the plea but continue the trial. If he loses he just serves the plea.
- A conviction on a crime caps the max penalty for that crime: this means if a rich daddy's boy gets away with 60 days probation for a DUI, any future DUI conviction cannot be bigger than 60 days probation.
[deleted]
It is kind of shocking to me that the state isn't liable for defendants' legal fees in the face of an acquittal. If I sue someone in civil court on frivolous grounds, they can countersue me yet no parallel exists in the criminal realm. Perhaps more than just an acquittal is necessary and you'd have to show some sort of prosecutorial overreach to collect. But, in that case, the damages should include compensatory and punitive damages.
> It is kind of shocking to me that the state isn't liable for defendants' legal fees in the face of an acquittal.
The state is, even if you're found guilty. You just need to be in a position where you couldn't afford an attorney yourself.
The state is, even if you're found guilty. You just need to be in a position where you couldn't afford an attorney yourself.
That's different than what the parent comment is talking about though. The parent is pointing out the absurdity of the state not having to pay the fees of someone acquitted. I'm assuming they even believe that if Bill Gates was wrongfully prosecuted and acquitted, the state should be liable for those costs. I agree, as it would act as a deterrent prosecution (which, given that the entire settlement system of civil procedure is based in the assumption that reducing the burden on the courts of a full docket - deterring riskier less certain prosecutions works toward the same goal).
> It is kind of shocking to me that the state isn't liable for defendants' legal fees in the face of an acquittal. If I sue someone in civil court on frivolous grounds, they can countersue me yet no parallel exists in the criminal realm.
That's...not really true. First, plaintiffs aren't generally liable for respondents costs in a civil suit if the plaintiff loses, so the idea that the fact that prosecuting authorities aren't responsible for defendants costs whenever the defendant is acquitted in a criminal case is unexpected given the civil parallel is bizarre.
Second, while it is possible to sue someone for abusing the system in a civil case (but just because they lost alone) and be awarded legal costs, the prevention of such abuse in the criminal system is generally provided by the early parts of the criminal process (indictment or preliminary hearing) where the the prosecution is required to demonstrate probable cause before being allowed to even proceed to trial at all.
I suppose you could make a case that a prosecution that fails to pass a preliminary hearing out to bear responsibility for the defendant's reasonable legal costs incurred to that point, and that that would be parallel to the kind of protections that exist in the civil system. You might even go farther and extend this by requiring a "preliminary hearing" reviewing the indictment even in cases where an indictment is required (where the defense would have assistance of counsel at the preliminary hearing), since in practice indictment has generally become a weaker protection than a preliminary hearing, even though its intended as a stronger protection against abuse (hence, why it is required for federal felonies.)
That's...not really true. First, plaintiffs aren't generally liable for respondents costs in a civil suit if the plaintiff loses, so the idea that the fact that prosecuting authorities aren't responsible for defendants costs whenever the defendant is acquitted in a criminal case is unexpected given the civil parallel is bizarre.
Second, while it is possible to sue someone for abusing the system in a civil case (but just because they lost alone) and be awarded legal costs, the prevention of such abuse in the criminal system is generally provided by the early parts of the criminal process (indictment or preliminary hearing) where the the prosecution is required to demonstrate probable cause before being allowed to even proceed to trial at all.
I suppose you could make a case that a prosecution that fails to pass a preliminary hearing out to bear responsibility for the defendant's reasonable legal costs incurred to that point, and that that would be parallel to the kind of protections that exist in the civil system. You might even go farther and extend this by requiring a "preliminary hearing" reviewing the indictment even in cases where an indictment is required (where the defense would have assistance of counsel at the preliminary hearing), since in practice indictment has generally become a weaker protection than a preliminary hearing, even though its intended as a stronger protection against abuse (hence, why it is required for federal felonies.)
The incentives don't line up properly if the state pays because the lawyer is the decision maker in these cases. Unfortunately DAs are rather underpaid and so it would probably be a nonstarter to to make them pay the defendant's legal fees.
Why not make the jurisdiction that the prosecutor works for responsible for paying attorney fees if the person is acquitted?
They were sure enough to seriously upset and damage a person's life when they pressed charges, and they better be willing to at least cover the cost of a defense when they're wrong.
They were sure enough to seriously upset and damage a person's life when they pressed charges, and they better be willing to at least cover the cost of a defense when they're wrong.
Because an acquittal is not a finding of innocence. It is merely a finding that a person was not determined guilty to the level required by law, i.e., beyond a reasonable doubt. It is entirely possible for everyone to be "pretty sure" that a defendant is guilty but for the defendant to walk simply because they couldn't cross the evidentiary threshold.
In those rare instances where actual innocence are found, the jurisdiction does end up paying for the defendant's attorneys fees, and more, as a result of the civil lawsuit the defendant inevitably files.
In those rare instances where actual innocence are found, the jurisdiction does end up paying for the defendant's attorneys fees, and more, as a result of the civil lawsuit the defendant inevitably files.
> Because an acquittal is not a finding of innocence. It is merely a finding that a person was not determined guilty to the level required by law
If you're innocent until proven guilty, and they never prove you guilty....I'd call you innocent.
If you're innocent until proven guilty, and they never prove you guilty....I'd call you innocent.
"Innocent until proven guilty" is simply an admonishment given to juries because many law-and-order types assume that defendants are guilty simply because they are being tried. Legally, a person is simply "not guilty" unless and until they are proven guilty.
"Innocence" is a specific legal term which means that person is not only "not guilty" but further that there is sufficient proof that they did not commit the crime alleged.
"Innocence" is a specific legal term which means that person is not only "not guilty" but further that there is sufficient proof that they did not commit the crime alleged.
Fair enough, that actually all sounds right to me. Like when defendants receive a verdict of "guilty" or "not guilty."
I totally agree - but this does have downsides too, prosecutors will be fired if their loose rate (i.e. cost) is too high, which will lead to only prosecuting guaranteed wins.
I still think that's a better system though...
I still think that's a better system though...
I mean, it creates some perverse incentives, such as giving a financial reason to withhold evidence from the defense.
Of course, you could require that a) there's a fine for being caught at that and b) the department also has to pay for the appeal and initial case and prepay for any retrials.
Overall, I think it would be a large improvement, though.
Of course, you could require that a) there's a fine for being caught at that and b) the department also has to pay for the appeal and initial case and prepay for any retrials.
Overall, I think it would be a large improvement, though.
It would also ramp up the already absurd focus on quick, cheap plea bargains.
One thing to think about is that it lowers the cost of a defense if you're relatively sure you'll win.
Under the current system, a plea bargain is something like "Take 2 years in jail and pay $50-100k less or face 10 years in jail at trial, where you probably can't even afford a real defense."
Under the new system, a plea bargain would have to offer considerably more to the point it's obviously problematic, because acquitted defendants wouldn't still be out the money required to beat the system. Further, it's likely poor people will have better access to top notch lawyers if the lawyer can expect to recoup their cost from the state (rather than just not being paid by the poor person).
Under the current system, a plea bargain is something like "Take 2 years in jail and pay $50-100k less or face 10 years in jail at trial, where you probably can't even afford a real defense."
Under the new system, a plea bargain would have to offer considerably more to the point it's obviously problematic, because acquitted defendants wouldn't still be out the money required to beat the system. Further, it's likely poor people will have better access to top notch lawyers if the lawyer can expect to recoup their cost from the state (rather than just not being paid by the poor person).
The other nice thing: you could actually get lawyers to work on the grounds of "you only pay if we win" for criminal cases. This would, presumably, mean "state-provided" defense lawyers would be the best available, as opposed to whoever they can scrounge up as a public defender.
Also, presumably, the cost of good legal defense should be less than the $20,000 cost/year for incarceration.
Also, presumably, the cost of good legal defense should be less than the $20,000 cost/year for incarceration.
Why? Defense attorneys would have no incentive to settle when they would get paid far more for winning the case.
> which will lead to only prosecuting guaranteed wins.
Um, good? Marginal cases probably shouldn't be prosecuted unless there is a non-trivial public value to doing so.
I'm also a big fan of the fact that prosecutors should have no discretion in terms of jury makeup. If you can't make your case without stacking the deck, you should lose.
Um, good? Marginal cases probably shouldn't be prosecuted unless there is a non-trivial public value to doing so.
I'm also a big fan of the fact that prosecutors should have no discretion in terms of jury makeup. If you can't make your case without stacking the deck, you should lose.
> Unfortunately DAs are rather underpaid ...
What's worse, that DAss offices are lacking in resources or that public defenders' offices are lacking in resources?
http://www.nytimes.com/2013/08/24/us/public-defenders-are-ti...
http://www.americanbar.org/news/abanews/aba-news-archives/20...
Then there's all the underfunded PDs' offices for states/counties/cities that just don't have the resources to defend their clients.
Maybe a better system would involve both the prosecuting and defending attorneys be both paid for by the state from a pool of volunteers and both given the same compensation for their time?
What's worse, that DAss offices are lacking in resources or that public defenders' offices are lacking in resources?
http://www.nytimes.com/2013/08/24/us/public-defenders-are-ti...
http://www.americanbar.org/news/abanews/aba-news-archives/20...
Then there's all the underfunded PDs' offices for states/counties/cities that just don't have the resources to defend their clients.
Maybe a better system would involve both the prosecuting and defending attorneys be both paid for by the state from a pool of volunteers and both given the same compensation for their time?
They actually do that in smaller counties (in CA, this is very popular in the Far North counties). It's a crapshoot; you frequently end up with people volunteering to be DAs for the political advantages, which makes prosecutorial grandstanding and abuses even worse.
When DAs cause trouble, the judges need to step in. There is no system of rules that can succeed where all of the power players are corrupt.
If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.
Attributed to Cardinal Richelieu, or possibly one of his agents.
edit - I think if Richelieu could see today's security apparatus he would be very pleased with how far we have managed to move forward his ideas.
Attributed to Cardinal Richelieu, or possibly one of his agents.
edit - I think if Richelieu could see today's security apparatus he would be very pleased with how far we have managed to move forward his ideas.
> I think if Richelieu could see today's security
> apparatus he would be very pleased with how far we
> have managed to move forward his ideas.
If they made missing the point an Olympic sport, you would get lost on your way to the podium to collect the gold medal.
Many interesting solutions are posited throughout the comments section. I've no doubt that many of them would help at least a bit.
But the most important change must come from within the hearts of the voters that control western governments: Voters like prosecutorial overreach, as they consider every person dragged into court "guilty of something."
Until that attitude changes, meaningful change will be difficult.
But the most important change must come from within the hearts of the voters that control western governments: Voters like prosecutorial overreach, as they consider every person dragged into court "guilty of something."
Until that attitude changes, meaningful change will be difficult.
I wonder how much of that is a result of the TV Cop Show effect? For decades now, we've had shows that portray suspects as certainly guilty, just in need of the proving. If the suspect gets away, it's due to "technicalities", and particularly "edgy" shows will paint cops as heroes who frame/murder such people. Confessions coerced out of suspects through intimidation or physical torture are portrayed as "walking a moral line", rather than being COMPLETELY over into FLIPPING ILLEGAL.
We used to have Perry Mason and Matlock, where the defense attorneys were the heroes of the show.
What happened?
What happened?
Even law enforcement characters were upright:
http://www.youtube.com/watch?v=0wL9Li0f1Po
http://www.youtube.com/watch?v=0wL9Li0f1Po
Ah, yes. The TV Cop. They're never wrong, never excessively violent, never need permission to "do their job", work happily with any TLA, have affairs with coworkers, glamorize the dirty cop, ...
I don't think I've ever seen a routine traffic stop on TV. Maybe it's not TV-worthy. But if a five-year-old asks me, "What do cops do?", which version do I give them?
I don't think I've ever seen a routine traffic stop on TV. Maybe it's not TV-worthy. But if a five-year-old asks me, "What do cops do?", which version do I give them?
The way the laws are these days, everybody is. Of course, so are the ones not dragged in.
"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted-and you create a nation of lawbreakers-and then you cash in on guilt."
-Atlas Shrugged
I generally shy away from endorsing things from Atlas Shrugged, but that rather hits the nail on the head.
There are a bunch of things which (IMO) are in this family of problems. Prosecutors discretion , everything is a crime is certainly one problem that seems to exist to a scary degree in every modern law system. Sodomy remained a crime long after it stopped being prosecuted. It had always been prosecuted selectively anyway.
A related issue of selective investigation and arrest by police. Perhaps more scary because of the Polices’ greater exposure to the public. This comes into play a lot with discrimination and political oppression.
Then we have judicial discrepency. That might be the trickiest one. Among its many effects, it allows plea bargaining to create a very big gap between a negotiated plea and the potential outcome of a court case. Take one year or risk five. Just confess and take the reduced sentence. A defining feature of show trials is forced confessions. Confess. Beg forgiveness and mercy. That is using incredible pressure to deny accused their day in court and a trial where both sides present their case.
Then after a sentence is passed, the actual length and severity of prison sentences is in practice determined by the prison system which has its own arbitrary and/or discretionary powers.
Rule of law is hard, genuinely. Could courts even handle a system without plea bargains?
A related issue of selective investigation and arrest by police. Perhaps more scary because of the Polices’ greater exposure to the public. This comes into play a lot with discrimination and political oppression.
Then we have judicial discrepency. That might be the trickiest one. Among its many effects, it allows plea bargaining to create a very big gap between a negotiated plea and the potential outcome of a court case. Take one year or risk five. Just confess and take the reduced sentence. A defining feature of show trials is forced confessions. Confess. Beg forgiveness and mercy. That is using incredible pressure to deny accused their day in court and a trial where both sides present their case.
Then after a sentence is passed, the actual length and severity of prison sentences is in practice determined by the prison system which has its own arbitrary and/or discretionary powers.
Rule of law is hard, genuinely. Could courts even handle a system without plea bargains?
"Could courts even handle a system without plea bargains?"
In a system without plea bargains, the prosecutors wouldn't be able to prosecute as many people, or as many charges. They wouldn't have the resources to go after nearly as many people. The courts would thus have less cases to hear.
Even the suggested system where the prosecution pays the legal costs of the fraction of charges they don't meet would be limiting to prosecutions. I imagine even that would be very difficult to convince legislators to agree to, as it increases costs and hence would reduce the amount of criminals that can be 'put away'.
I find the whole plea bargaining system to be obscene. Prosecutors are basically blackmailing the person into accepting a lesser charge, even if they are innocent of any charge. I remember the first few times I saw this type of thing on tv shows, I thought it was some kind of corrupt dealing: 'surely this is illegal, making a shady private deal between the suspect and the lawyer'.
In a system without plea bargains, the prosecutors wouldn't be able to prosecute as many people, or as many charges. They wouldn't have the resources to go after nearly as many people. The courts would thus have less cases to hear.
Even the suggested system where the prosecution pays the legal costs of the fraction of charges they don't meet would be limiting to prosecutions. I imagine even that would be very difficult to convince legislators to agree to, as it increases costs and hence would reduce the amount of criminals that can be 'put away'.
I find the whole plea bargaining system to be obscene. Prosecutors are basically blackmailing the person into accepting a lesser charge, even if they are innocent of any charge. I remember the first few times I saw this type of thing on tv shows, I thought it was some kind of corrupt dealing: 'surely this is illegal, making a shady private deal between the suspect and the lawyer'.
> Rule of law is hard, genuinely.
Rule of law is impossibly hard. The idea is that we are a government of laws, not a government of men, but someone has to decide what to prosecute and so in the end at most it is a plausible fiction and rule of law ends up reducing to "rule by prosecutor."
This is one of the insidious aspects of mandatory sentencing guidelines for example is that they shift power from judges to prosecutors.
Rule of law is impossibly hard. The idea is that we are a government of laws, not a government of men, but someone has to decide what to prosecute and so in the end at most it is a plausible fiction and rule of law ends up reducing to "rule by prosecutor."
This is one of the insidious aspects of mandatory sentencing guidelines for example is that they shift power from judges to prosecutors.
Is it? One thing that puts what could be called inappropriate power in the hands of prosecutors is the discretionary sentencing. If you could go to jail for one year or ten for the same crime, and the prosecutor promises to ask for one if you confess and apologise, they have a lot of leverage. It makes claiming innocence punishable itself.
I suppose they bypass anyway by selecting the charge/law that you are going to be prosecuted under. Hard.
I suppose they bypass anyway by selecting the charge/law that you are going to be prosecuted under. Hard.
It's only getting worse. Some DA offices are asking for DNA samples from minor offenses ( Misdemeanors ) for a decent plea or no time. When your only job is to win and put people away you're going to do whatever you can to accomplish this. It's the same as any company trying to dominate a particular industry or become the best. Our Justice system needs another change similar to the change from punishment to rehabilitation.
It's even worse than that, actually. In Pittsburgh, PA, police were taking DNA samples at roadblocked checkpoints. Not sobriety checkpoints, mind you -- roadblocks established solely for the purpose of collecting DNA from the citizenry.
That's shocking.
How long are the DNA samples kept for?
It's a bit scary that "they" seem to want everyone on their DNA databases, rather than realising the database is more effective if they try to only include the criminals.
How long are the DNA samples kept for?
It's a bit scary that "they" seem to want everyone on their DNA databases, rather than realising the database is more effective if they try to only include the criminals.
I can bet that no matter what is on the books, the real answer is close to forever about how long they are kept. The huge funneling of money into law enforcement from war on drugs and terror creates the mentality.
This isn't the whole story, but the real story is only slightly less frightening:
http://www.foxnews.com/us/2013/12/18/pa-town-latest-to-force...
http://www.foxnews.com/us/2013/12/18/pa-town-latest-to-force...
In my limited experience the notion that you can "indict a ham sandwich" is simply not true. I sat on a grand jury once for 2 weeks. Most cases brought to us were patently guilty and the ones that weren't were met with extreme scepticism. We declined to indict at least a few defendants where the evidence was weak.
Not to diminish your experience, but I read this piece recently from Ken White at Popehat, that sheds a rather different light on it.
His phrasing may not be to everybody's taste, but he does have a decent amount of relevant experience.
Rather than tread over the ground well-described by my colleagues in the criminal defense bar, today I'd like to describe something else for you: what a federal grand jury proceeding looks like. From 1995 through 2000, I presented cases of varying complexity to federal grand juries as a federal prosecutor in Los Angeles. That experience did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. The notion that the Supreme Court relies upon — that the grand jury has a "historical role of protecting individuals from unjust persecution" — is not a polite fiction. A polite fiction would have some grounding in reality. It's an offensive fiction, an impudent fiction, a fiction that slaps you across the face and calls your mother a dirty bitch.
http://www.popehat.com/2014/02/27/the-kaley-forfeiture-decis...
His phrasing may not be to everybody's taste, but he does have a decent amount of relevant experience.
Rather than tread over the ground well-described by my colleagues in the criminal defense bar, today I'd like to describe something else for you: what a federal grand jury proceeding looks like. From 1995 through 2000, I presented cases of varying complexity to federal grand juries as a federal prosecutor in Los Angeles. That experience did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. The notion that the Supreme Court relies upon — that the grand jury has a "historical role of protecting individuals from unjust persecution" — is not a polite fiction. A polite fiction would have some grounding in reality. It's an offensive fiction, an impudent fiction, a fiction that slaps you across the face and calls your mother a dirty bitch.
http://www.popehat.com/2014/02/27/the-kaley-forfeiture-decis...
Sounds about right given my experience serving for a few months every Wednesday in Brooklyn, NY. Nearly every case was a drug charge involving someone caught at JFK/LGA, FWIW, too.
The indictment rate of grand jury is about 98-99% (wikipedia). As far as I know, only prosecution presents its case, defense is not.
Wiki link: http://en.wikipedia.org/wiki/Grand_juries_in_the_United_Stat...
Wiki link: http://en.wikipedia.org/wiki/Grand_juries_in_the_United_Stat...
That's correct, but it's misleading. The grand jury is a sanity check. Prosecutors won't bring a case if they don't have enough evidence for an indictment.
If I'm not mistaken, if the prosecution can't get a grand jury to indict, they can try again later (perhaps with a slightly modified set of charges). In other words, there is no "double jeopardy" for trying to indict someone. Maybe someone who knows for sure can confirm whether this is accurate.
That's correct. But the cards are stacked heavily in favor of the prosecution in a grand jury so if you fail to indict, you're never going to get a conviction.
From my memory, having read an article by someone who knew:
The prosecutor can try again later, but must mention previous failed attempts to indict.
The prosecutor can try again later, but must mention previous failed attempts to indict.
Due Process in US is a parody. California makes it even worse with stuff like recent law about drunken sex consent. Add astronomical prices and you get toxic environment.
I have plenty of job offers, but I would never move to California.
I have plenty of job offers, but I would never move to California.
It is not criminal law, but you should see the vagueness in the Unruh (anti-discrimination) Act.
California is the only state I know of where the ACLU has been successfully sued for discrimination.
California is the only state I know of where the ACLU has been successfully sued for discrimination.
I want out as soon as I can. High cost of living is killing me, but I work at a family business and they have no interest out of state.
The US has an insanely outsize prison population. It didn't get that way without people being arrested by a growing army of militarized police, and, in most cases, plea bargaining with an aggressive prosecutor.
That doesn't really have anything to do with the proliferation of laws. Almost all prisoners are in prison for a narrow range of offense classes: violence, theft, and drugs. At the federal level there's also a lot of immigration violators.
The explosion in prison population is not related to an increase in the rate of arrest and conviction. It's related to a huge increase in the number of years of incarceration per offense.
The explosion in prison population is not related to an increase in the rate of arrest and conviction. It's related to a huge increase in the number of years of incarceration per offense.
One encourages the other. But yes, it's "throw 'em away forever."
They had to do something when the civil rights movement took away their ability to otherwise punish the minority populations at will.
I'm very sympathetic to this point of view, but the author starts inauspiciously when he asserts that a news anchor should have been prosecuted for using a high-capacity gun magazine as a visual aid in his newscast. Perhaps he's had his mind made up about prosecutorial discretion too long to see this episode as an example of discretion done right.
Exactly. Reynolds deliberately lies about the what the prosecutor said in his first paragraph. The prosecutor did not state that the on-air violation was clear. What he said was that the device "meets the definition" of the statute.
Gregory was displaying the "device" during a newscast.
bran·dish verb gerund or present participle: brandishing 1. wave or flourish (something, esp. a weapon) as a threat or in anger or excitement.
Did he "brandish" the device? No. Reynolds knows that, but he decides to draw a false equivalence anyway.
Gregory was displaying the "device" during a newscast.
bran·dish verb gerund or present participle: brandishing 1. wave or flourish (something, esp. a weapon) as a threat or in anger or excitement.
Did he "brandish" the device? No. Reynolds knows that, but he decides to draw a false equivalence anyway.
Chasing links from footnote 1 of the paper, one finds that the statute is supposed to prohibit possession, so whether waving it around on air counts as "brandishing" isn't obviously relevant.
http://www.washingtonpost.com/local/crime/nbcs-gregory-wont-...
http://www.washingtonpost.com/local/crime/nbcs-gregory-wont-...
So you would be willing to "displaying the device" on a street in a poor DC neighborhood since you are certain that you would be within the law?
Of course not. In a public space, without appropriate context? You know this already. Keep looking for some way to find that Reynolds is right.
If the law meant to say "display", it would have said "display". The law says "brandish". That has a meaning.
Did Gregory brandish the device with anger, or intent to threaten?
If the law meant to say "display", it would have said "display". The law says "brandish". That has a meaning.
Did Gregory brandish the device with anger, or intent to threaten?
Why would the public setting, or even context matter? If you are only "displaying" and not "brandishing," you'll be fine.
This goes hand in hand with the "3 felonies a day" Americans are committing:
http://online.wsj.com/news/articles/SB1000142405274870447150...
http://online.wsj.com/news/articles/SB1000142405274870447150...
From the essay: "Despite the problems described above, most of us remain safe. Prosecutors have limited resource [...]"
This reminds me of the issue with warrants and GPS tracking devices on cars. Police have argued that attaching a GPS tracker is no different than assigning a patrol car (or unmarked car) to tail a person. But there's a huge difference. Up until recently, our expectation was that assigning a tail was an investment of rather limited resources, thus giving us some assurance that police would be precluded from tailing anyone but bona fide suspects. With the proliferation of GPS devices -- the cost of which will most certainly continue to come down -- the number of people police can track approaches everybody. That's living in a very different world.
Wait until prosecutors have the computing power to track people's activities and flag "crimes." The "Mother Teresa" parlor game will be made automatic and expand to include everyone. That will be a very different world, too.
This reminds me of the issue with warrants and GPS tracking devices on cars. Police have argued that attaching a GPS tracker is no different than assigning a patrol car (or unmarked car) to tail a person. But there's a huge difference. Up until recently, our expectation was that assigning a tail was an investment of rather limited resources, thus giving us some assurance that police would be precluded from tailing anyone but bona fide suspects. With the proliferation of GPS devices -- the cost of which will most certainly continue to come down -- the number of people police can track approaches everybody. That's living in a very different world.
Wait until prosecutors have the computing power to track people's activities and flag "crimes." The "Mother Teresa" parlor game will be made automatic and expand to include everyone. That will be a very different world, too.
The end result if nothing changes is likely that everything we do is a crime; the only question is whether there is room to incarcerate.
most dangerous power of the prosecutor: that he will pick people he thinks he should get, rather than pick cases that need to be prosecuted.” Prosecutors could easily fall prey to the temptation of “picking the man, and then searching the law books...to pin some offense on him.” In short, prosecutors’ discretion to charge—or not to charge—individuals with crimes is a tremendous power, amplified by the large number of laws on the books.
The messy state of US law, with many preposterous and outdated laws on the books, encourages this kind of discretionary enforcement. Even police officers can often "pick the man, then figure out the crime."
The messy state of US law, with many preposterous and outdated laws on the books, encourages this kind of discretionary enforcement. Even police officers can often "pick the man, then figure out the crime."
Is this a problem in the US specifically? Has there been some kind of international comparison on legal "messiness"? Just curious, by the way, and I can't think up a good search query for that.
[deleted]
Search for "Blue Laws." We have lots of WTF laws on the books that are clearly leftovers from the 1800s.
InclinedPlane wrote a fantastic post on this exact topic a while back: https://news.ycombinator.com/item?id=4753117
There was an excellent New Yorker article about how we got here, due process vs principles:
http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120...
http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120...
[deleted]
[deleted]
This is a particular peeve of mine. Throwing someone in prison should require demonstrable harm worthy of the state swinging its hammer. Fraud is already a crime, so is theft, so is deception in its various forms. Failure to fill out a form or making a mistake in light of a rule should not carry the risk of a criminal record.
By the way, "The Illustrated Guide to Law"[0] has an outstanding section on the concept of regulatory breaches as crimes and why they shouldn't be the cause of someone being thrown into jail.
0 - http://lawcomic.net