We need for people who commit crimes to be more reliably punished, even if the individual punishment is lighter. We need to reduce the expense of punishment.
The current tendency is for heavier punishment; ever heavier penalties rather than more reliable enforcement.
I would prefer restricting prosecutors to one charge per criminal act.
Most of the people in prison for drug offenses were arrested for violent crimes.
It means that prosecutors charge criminals with everything they think plausible, then make plea bargains to avoid trial and get the arrestee off the streets. The arrestees plead guilty to the drug charges.
So they are mostly guilty of something else, whether convicted of it or not?
Would that mean that if drugs were legalized, the prosecutors would just find something else to let them plead down to, or would just be frustrated? If it is just a bargaining ploy, why does the plead-down charge have to be plausible? Charge them with the real offense, plus something implausible with a lower sentence. Then let them plead down to the implausible, or go to trial and drop the implausible.
Why can’t it be the charge the prosecutor actually thinks they are guilty of, but with a definite short sentence? Mandatory minimum maybe?
Frankly it's much easier to prove that someone was found in possession of drugs, than to prove a violent crime if either there were no witnesses, or the witnesses are afraid to speak.
That account is different from Bob's. You version seems to be, we need a crime that is easy to prove so we don't need to prove the crimes that are hard to prove. So we need to keep all those drug convictions in jail, because the justice system is unable to convict them of what they are actually guilty of.
They’re most likely guilty of both the violent crime and the drug offense. The drug offense is a lesser charge.
The prosecutors don’t want to take any of the charges to court; that’s expensive and time consuming. They charge with both, and then try for a plea bargain.
> Even without those changes, abolishing plea bargaining raises the cost to the prosecution of charging someone with a crime, since unless the defendant decides to plead guilty without the incentive of a reduced sentence there will be a trial and trials absorb prosecutorial resources. If charging people becomes more expensive to the organization that does it the number charged should go down.
Let me ask you this question point blank: Are you actually trying to come up with realistic proposals, or are you just trying to engage in ideological grandstanding?
I liked your book on different legal systems and so want to believe you're arguing in good faith; however, it becomes very difficult to maintain that belief when you keep producing nonsense like the above paragraph.
Given that 98% of cases end in plea bargains, your emphasis on reducing the number of cases prosecuted suggests (even under generous assumptions) you think it's reasonable for 90% of victimful crimes to simply be ignored.
I am trying to explore possible ways of replacing a system which makes it fairly easy for a prosecutor to impose substantial costs on someone who has done nothing wrong.
Why is the paragraph nonsense? Do you disagree with the claim that raising the cost of prosecution would make prosecutors more selective in choosing who to prosecute?
See the last paragraph of my response. You seem to imply it's reasonable (or simply not care) if 90% of victimful crimes are simply ignored. To take your logic to its conclusion why not eliminated prosecution entirely and thus also save tax money by eliminating the judicial system?
That seems like a very uncharitable interpretation. He’s just doing his economist shtik - if this changes, what else changes, in what direction. I didn’t read him as advocating that the proposal be adopted, but rather analyzing the direction of change.
I wonder how many innocent people accept plea bargaining because they believe that they might end up with stiffer sentences if they try to fight it. I remember my dad telling me that most people arrested are guilty, unlike what we see on TV. Who benefits from plea bargaining? The tax payers?
As I pointed out in _Price Theory_, it probably results in more severe punishment on average, since the prosecution can concentrate its resources on the few defendants who don't plead guilty. The knowledge that if you don't plead they will do so makes you willing to accept a more severe sentence than you would get if nobody pled and they had to spread their resources over many more cases.
Professional jurors, a panel of judges, and attorneys who are advocates but not in a confrontational way.
In other words, the aim would be to determine the truth, to determine what is best for society and the individual involved, and pass judgement (the idea would be restortive justice when possible and to protect society when needed but without dehumanizing the individual).
The process would be all written with perhaps an exception of an illiterate person who would then verbally give answers but they could be transcribed.
In other words, no expense courthouse needed, heck, this could all be done by digital nomads even, or people at home office.
The way this works is to simply get everyone to admit that the truth is the truth, it should be known without adversial fights, if a person doesn't want to cop to what they did, fine, they've got the right to remain silent, or plead the fifth, but that speaks for itself. They shouldn't be allowed to lie nor should an attorney on their behalf be allowed to present a bunch of nonsense "alternative theory."
The whole system now is terrible.
The day I went to plead out for a felony in California, I was bussed super early in the morning to a court house, put in a freezing cold room, allowed to talk to my attorney for 5 minutes, and I plead guilty to a charge that was true (but there were factual mistakes in the pleading which I just went ahead and lied and plead guilt about because the process is so ugly, dehumanizing, and brutal, you just want it over).
you're treated like an animal and end up hating everyone so much that it's no wonder the recidivism rate is so high. Part of why I left California (and the states in general) is that I was so dehumanized, victimized, abused, mistreated, and such that I hate the police, the government so so so much, that undoubtably I'd get in trouble again. I mean, I'm a pretty peaceful person, but when I read a news report about a cop getting murdered, I don't get sad. Let's leave it at that.
Yes, I'm insanely damaged, but recognizing this, I left the state to stay out of trouble.
And this after only a jail term of about 3 months, I didn't even go to prison or anything, I can't image that. The system is designed to make prison guards, judges, and lawyers, etc., wealthy (or at least making good money relatively speaking and get pensions for life) and it's not designed to make the people safer or better off, they are just the thing the system parasites off, just like the criminals.
I’m not sure plea bargaining is the problem, and you could easily replace it with reducing sentences for people who plead guilty. The problem is having too many offences on the books that shouldn’t be there, and remanding too many people before trial. Once you’ve solved that, it’s mostly a problem of making trials fair enough that people don’t mind saying, “I’ll see you in court” unless they’re actually guilty. In theory, a trial process that acquits the innocent, and imposes zero costs on them (so loser pays and no remanding people who aren’t an imminent and serious danger to others) solves the issue of innocent people pleading guilty.
I’d be really sceptical of the idea that hordes of innocents are pleading guilty to things though; it’s a narrative that it’s easy and helpful for the (in fact) guilty to jump on.
An old Michael Gibson story had a judge just tell the bailiff to go in the street and pick the first people he saw for a jury. There was a legal French term for it. Gibson was a lawyer as well as the last living Golden Age mystery writer.
If I were subpoenaed by Congress and showed up like Fetterman attires himself, the panel would view me as disrespectful, unprofessional, and this would certainly affect impression of my testimony.
Ireland doesn’t do plea bargaining. Then again we don’t really like to jail people either.
Plea bargaining does seem like an affront to justice, the innocent defendant having to plead guilty, and the system about getting somebody rather than nobody.
Has anyone done a broad comparison of countries that do or do not do plea bargaining? The arguments I sketched suggest that it would be very hard for the US to do without it, so how do other countries manage?
The obvious answer is that they have lower crime rates, but I don't think it is true. The U.S. has an anomalously high murder rate but, judging by the victimization surveys, the rate of other crimes is similar to that in European countries.
> The U.S. has an anomalously high murder rate but, judging by the victimization surveys, the rate of other crimes is similar to that in European countries.
Well Steve Sailer's theory is that it's harder to cook murder statistics since you can't just make bodies disappear.
That is why reported murder rates are more reliable than reported rates for other crimes. But my source is the victimization survey, which, for obvious reasons, doesn't include murder, and is not based on police reports.
So I am not sure what your or Steve's point is. Who is assuming to be cooking what statistics?
I don’t have a comparison to hand, but can explain the nuts and bolts for how England copes without plea bargaining:
Most people plead guilty to what they’re charged with; only about 4% of people have trials (caveat: the stats are badly organised and include a lot of driving offences). This is purely down to getting a reduced sentence, as generally the evidence against you will be obvious enough that a trial is pointless, and pleading guilty at your first appearance gets your sentence reduced by 1/3. We probably try more minor cases without juries than the US (there’s no right to a jury for common assault, speeding, low level criminal damage, harassment etc) which may help, but that’s still not a lot of cases going to trial. We also have much lighter sentences than the US, so most people who plead guilty to most things won’t actually go into a prison (and a lot of those who do will get time served).
I was on a civil trial (bad baby, plaintiffs lawyers trying to get an additional $115M from the insurance company of two doctors and a nurse after getting so much from the hospital that it closed), that lasted 23 days. The repetition was just deadly. Same stuff over and over and over. Dueling experts, etc. The whole case could have been resolved in 2-3 days at most. Unfortunately for the plaintiffs, I suppose, the repetition may have hurt their case badly. We came in (only needed 6 of 8 for a verdict for the plaintiffs but it was 8-0) and found only against one doctor (and I still think it was wrong by the law) for $15M.
I had already figured that after 5-6 years of arguing they had a high-low agreement, so when the lawyers came in to talk to us, I asked. The defendant's lawyer just winked, so I said "Did we hit the bottom?" and he looked around, then said "pounded is a better word."
Meanwhile, the plaintiff lawyers (one high-powered shark and one RN who had added a JD [she evidently went around looking for potential malpractice cases]) kept asking why we came in so low? Didn't we 'believe' their evidence? I really wanted to tell them that there was not a single moron on the jury, and that treating us like we were all morons didn't help them, but I passed.
Anyway, seriously, everything we heard that mattered at all could have been done in 2 8-hour days, plus the 2 hours for the verdict and damages award.
It is an N of 1 report, but my recent jury experience suggests it would be pretty hard to get trials to be a lot shorter. (I don't think you could have a single jury hear multiple cases in the US system since a big part of voire dire was making sure we didn't know anyone involved - not only would that take longer, but in small communities, you'd exclude a bunch of jurors). In the case I was on the jury, we had a very simple criminal charge. Choosing the jury took the entire morning (presumably there were also some pretrial motions in the case being heard without us). The case itself involved 3 witnesses, and some videos (from police body cams). Then more arguing among the lawyers without us present. Then we got the charge and went off to deliberate. We were at 5-1 in an initial poll and after an hour of discussion, broke for the evening at 6 pm. We reconvened the next morning at 9 a.m., and went until 11 to reach a verdict (not guilty - just took a long time to persuade the one juror who wanted to convict). This was a really straightforward case and it took 1.5 days from jurors reporting to discharge of the jury. We didn't waste time, the judge was very efficient, and the lawyers didn't waste time. It just takes time to talk though the case to come to a unanimous verdict.
Again, N of 1, but I think this is pretty typical from the criminal defense lawyers and prosecutors I've talked to.
In England, jury-swearing takes about 30 minutes max, because we’ve scrapped challenges without cause. You get the jury pool in, the prosecutor reads out a list of names involved in the case and anyone who knows them raises their hand. Then you swear all the jurors in.
That's largely true (in my limited experience as a law clerk to a federal judge in the 1980s and in practice for a few years then) for federal courts. In state courts, judges often give lawyers lots more leeway. In the case I was on as a juror, the lawyers actually asked us hypotheticals, which I thought was really bizarre but seems to be normal in local practice.
You're right that finding a jury, especially in smaller communities, would be very difficult. I was called for jury duty last year and of a decent-sized pool quite a few people were culled because they knew someone involved - lawyers, defendant, witnesses.
An alternative would be to have "professional" juries. Getting the composition right would be very difficult, but if we could achieve that I think the throughput on cases could get a lot faster. Of course, such a jury would have enormous power and may fully defeat the "jury of your peers" idea.
The Channel Islands (possessions of the English crown, not part of the UK but affiliated) have "jurats", an intriguing role - 2 sit withe each judge and decide on the facts. They are elected (essentially for life) by a body consisting of the legislature plus a few more officials. The judges from there I have spoken to like it very much and the population seems to like it too. A very different way to get the same thing we strive to get from a jury.
We need for people who commit crimes to be more reliably punished, even if the individual punishment is lighter. We need to reduce the expense of punishment.
The current tendency is for heavier punishment; ever heavier penalties rather than more reliable enforcement.
I would prefer restricting prosecutors to one charge per criminal act.
Most of the people in prison for drug offenses were arrested for violent crimes.
“Most of the people in prison for drug offenses were arrested for violent crimes.”
Does that mean you favor releasing those who were not arrested for violent crimes?
It means that prosecutors charge criminals with everything they think plausible, then make plea bargains to avoid trial and get the arrestee off the streets. The arrestees plead guilty to the drug charges.
So they are mostly guilty of something else, whether convicted of it or not?
Would that mean that if drugs were legalized, the prosecutors would just find something else to let them plead down to, or would just be frustrated? If it is just a bargaining ploy, why does the plead-down charge have to be plausible? Charge them with the real offense, plus something implausible with a lower sentence. Then let them plead down to the implausible, or go to trial and drop the implausible.
Why can’t it be the charge the prosecutor actually thinks they are guilty of, but with a definite short sentence? Mandatory minimum maybe?
Frankly it's much easier to prove that someone was found in possession of drugs, than to prove a violent crime if either there were no witnesses, or the witnesses are afraid to speak.
That account is different from Bob's. You version seems to be, we need a crime that is easy to prove so we don't need to prove the crimes that are hard to prove. So we need to keep all those drug convictions in jail, because the justice system is unable to convict them of what they are actually guilty of.
They’re most likely guilty of both the violent crime and the drug offense. The drug offense is a lesser charge.
The prosecutors don’t want to take any of the charges to court; that’s expensive and time consuming. They charge with both, and then try for a plea bargain.
By the way, description is not endorsement.
They were mostly arrested for something else. The drugs go with the territory.
The lesser charge has to be real, or we are deep in an Orwellian nightmare. “You’ve broken the unwritten law!”
> Even without those changes, abolishing plea bargaining raises the cost to the prosecution of charging someone with a crime, since unless the defendant decides to plead guilty without the incentive of a reduced sentence there will be a trial and trials absorb prosecutorial resources. If charging people becomes more expensive to the organization that does it the number charged should go down.
Let me ask you this question point blank: Are you actually trying to come up with realistic proposals, or are you just trying to engage in ideological grandstanding?
I liked your book on different legal systems and so want to believe you're arguing in good faith; however, it becomes very difficult to maintain that belief when you keep producing nonsense like the above paragraph.
Given that 98% of cases end in plea bargains, your emphasis on reducing the number of cases prosecuted suggests (even under generous assumptions) you think it's reasonable for 90% of victimful crimes to simply be ignored.
I am trying to explore possible ways of replacing a system which makes it fairly easy for a prosecutor to impose substantial costs on someone who has done nothing wrong.
Why is the paragraph nonsense? Do you disagree with the claim that raising the cost of prosecution would make prosecutors more selective in choosing who to prosecute?
See the last paragraph of my response. You seem to imply it's reasonable (or simply not care) if 90% of victimful crimes are simply ignored. To take your logic to its conclusion why not eliminated prosecution entirely and thus also save tax money by eliminating the judicial system?
That seems like a very uncharitable interpretation. He’s just doing his economist shtik - if this changes, what else changes, in what direction. I didn’t read him as advocating that the proposal be adopted, but rather analyzing the direction of change.
I wonder how many innocent people accept plea bargaining because they believe that they might end up with stiffer sentences if they try to fight it. I remember my dad telling me that most people arrested are guilty, unlike what we see on TV. Who benefits from plea bargaining? The tax payers?
As I pointed out in _Price Theory_, it probably results in more severe punishment on average, since the prosecution can concentrate its resources on the few defendants who don't plead guilty. The knowledge that if you don't plead they will do so makes you willing to accept a more severe sentence than you would get if nobody pled and they had to spread their resources over many more cases.
A simple solution presents itself to me.
Professional jurors, a panel of judges, and attorneys who are advocates but not in a confrontational way.
In other words, the aim would be to determine the truth, to determine what is best for society and the individual involved, and pass judgement (the idea would be restortive justice when possible and to protect society when needed but without dehumanizing the individual).
The process would be all written with perhaps an exception of an illiterate person who would then verbally give answers but they could be transcribed.
In other words, no expense courthouse needed, heck, this could all be done by digital nomads even, or people at home office.
The way this works is to simply get everyone to admit that the truth is the truth, it should be known without adversial fights, if a person doesn't want to cop to what they did, fine, they've got the right to remain silent, or plead the fifth, but that speaks for itself. They shouldn't be allowed to lie nor should an attorney on their behalf be allowed to present a bunch of nonsense "alternative theory."
The whole system now is terrible.
The day I went to plead out for a felony in California, I was bussed super early in the morning to a court house, put in a freezing cold room, allowed to talk to my attorney for 5 minutes, and I plead guilty to a charge that was true (but there were factual mistakes in the pleading which I just went ahead and lied and plead guilt about because the process is so ugly, dehumanizing, and brutal, you just want it over).
you're treated like an animal and end up hating everyone so much that it's no wonder the recidivism rate is so high. Part of why I left California (and the states in general) is that I was so dehumanized, victimized, abused, mistreated, and such that I hate the police, the government so so so much, that undoubtably I'd get in trouble again. I mean, I'm a pretty peaceful person, but when I read a news report about a cop getting murdered, I don't get sad. Let's leave it at that.
Yes, I'm insanely damaged, but recognizing this, I left the state to stay out of trouble.
And this after only a jail term of about 3 months, I didn't even go to prison or anything, I can't image that. The system is designed to make prison guards, judges, and lawyers, etc., wealthy (or at least making good money relatively speaking and get pensions for life) and it's not designed to make the people safer or better off, they are just the thing the system parasites off, just like the criminals.
>Penalizing either the government or the prosecutor for charging people who turn out to be innocent
This my have been mentioned elsewhere, but wouldn't that incentivize prosecutorial misconduct to secure a conviction?
I’m not sure plea bargaining is the problem, and you could easily replace it with reducing sentences for people who plead guilty. The problem is having too many offences on the books that shouldn’t be there, and remanding too many people before trial. Once you’ve solved that, it’s mostly a problem of making trials fair enough that people don’t mind saying, “I’ll see you in court” unless they’re actually guilty. In theory, a trial process that acquits the innocent, and imposes zero costs on them (so loser pays and no remanding people who aren’t an imminent and serious danger to others) solves the issue of innocent people pleading guilty.
I’d be really sceptical of the idea that hordes of innocents are pleading guilty to things though; it’s a narrative that it’s easy and helpful for the (in fact) guilty to jump on.
An old Michael Gibson story had a judge just tell the bailiff to go in the street and pick the first people he saw for a jury. There was a legal French term for it. Gibson was a lawyer as well as the last living Golden Age mystery writer.
Did the same jury hear multiple cases back when courts were doing many per day?
Yes.
If I were subpoenaed by Congress and showed up like Fetterman attires himself, the panel would view me as disrespectful, unprofessional, and this would certainly affect impression of my testimony.
Ireland doesn’t do plea bargaining. Then again we don’t really like to jail people either.
Plea bargaining does seem like an affront to justice, the innocent defendant having to plead guilty, and the system about getting somebody rather than nobody.
Has anyone done a broad comparison of countries that do or do not do plea bargaining? The arguments I sketched suggest that it would be very hard for the US to do without it, so how do other countries manage?
The obvious answer is that they have lower crime rates, but I don't think it is true. The U.S. has an anomalously high murder rate but, judging by the victimization surveys, the rate of other crimes is similar to that in European countries.
Lower incarceration rates for sure. The Republic of Ireland's incarceration rate in 2022 was 76.4 per 100,000 people, the U.K. is 100+, the US is 531.
There is a general feeling that lawlessness is on the increase in Ireland.
> how do other countries manage?
Well, most countries don't have jury trials.
> The U.S. has an anomalously high murder rate but, judging by the victimization surveys, the rate of other crimes is similar to that in European countries.
Well Steve Sailer's theory is that it's harder to cook murder statistics since you can't just make bodies disappear.
That is why reported murder rates are more reliable than reported rates for other crimes. But my source is the victimization survey, which, for obvious reasons, doesn't include murder, and is not based on police reports.
So I am not sure what your or Steve's point is. Who is assuming to be cooking what statistics?
> Who is assuming to be cooking what statistics?
For example, police departments and DAs wanting to make their clearance rates look better.
I don’t have a comparison to hand, but can explain the nuts and bolts for how England copes without plea bargaining:
Most people plead guilty to what they’re charged with; only about 4% of people have trials (caveat: the stats are badly organised and include a lot of driving offences). This is purely down to getting a reduced sentence, as generally the evidence against you will be obvious enough that a trial is pointless, and pleading guilty at your first appearance gets your sentence reduced by 1/3. We probably try more minor cases without juries than the US (there’s no right to a jury for common assault, speeding, low level criminal damage, harassment etc) which may help, but that’s still not a lot of cases going to trial. We also have much lighter sentences than the US, so most people who plead guilty to most things won’t actually go into a prison (and a lot of those who do will get time served).
I was on a civil trial (bad baby, plaintiffs lawyers trying to get an additional $115M from the insurance company of two doctors and a nurse after getting so much from the hospital that it closed), that lasted 23 days. The repetition was just deadly. Same stuff over and over and over. Dueling experts, etc. The whole case could have been resolved in 2-3 days at most. Unfortunately for the plaintiffs, I suppose, the repetition may have hurt their case badly. We came in (only needed 6 of 8 for a verdict for the plaintiffs but it was 8-0) and found only against one doctor (and I still think it was wrong by the law) for $15M.
I had already figured that after 5-6 years of arguing they had a high-low agreement, so when the lawyers came in to talk to us, I asked. The defendant's lawyer just winked, so I said "Did we hit the bottom?" and he looked around, then said "pounded is a better word."
Meanwhile, the plaintiff lawyers (one high-powered shark and one RN who had added a JD [she evidently went around looking for potential malpractice cases]) kept asking why we came in so low? Didn't we 'believe' their evidence? I really wanted to tell them that there was not a single moron on the jury, and that treating us like we were all morons didn't help them, but I passed.
Anyway, seriously, everything we heard that mattered at all could have been done in 2 8-hour days, plus the 2 hours for the verdict and damages award.
It is an N of 1 report, but my recent jury experience suggests it would be pretty hard to get trials to be a lot shorter. (I don't think you could have a single jury hear multiple cases in the US system since a big part of voire dire was making sure we didn't know anyone involved - not only would that take longer, but in small communities, you'd exclude a bunch of jurors). In the case I was on the jury, we had a very simple criminal charge. Choosing the jury took the entire morning (presumably there were also some pretrial motions in the case being heard without us). The case itself involved 3 witnesses, and some videos (from police body cams). Then more arguing among the lawyers without us present. Then we got the charge and went off to deliberate. We were at 5-1 in an initial poll and after an hour of discussion, broke for the evening at 6 pm. We reconvened the next morning at 9 a.m., and went until 11 to reach a verdict (not guilty - just took a long time to persuade the one juror who wanted to convict). This was a really straightforward case and it took 1.5 days from jurors reporting to discharge of the jury. We didn't waste time, the judge was very efficient, and the lawyers didn't waste time. It just takes time to talk though the case to come to a unanimous verdict.
Again, N of 1, but I think this is pretty typical from the criminal defense lawyers and prosecutors I've talked to.
In England, jury-swearing takes about 30 minutes max, because we’ve scrapped challenges without cause. You get the jury pool in, the prosecutor reads out a list of names involved in the case and anyone who knows them raises their hand. Then you swear all the jurors in.
That's largely true (in my limited experience as a law clerk to a federal judge in the 1980s and in practice for a few years then) for federal courts. In state courts, judges often give lawyers lots more leeway. In the case I was on as a juror, the lawyers actually asked us hypotheticals, which I thought was really bizarre but seems to be normal in local practice.
You're right that finding a jury, especially in smaller communities, would be very difficult. I was called for jury duty last year and of a decent-sized pool quite a few people were culled because they knew someone involved - lawyers, defendant, witnesses.
An alternative would be to have "professional" juries. Getting the composition right would be very difficult, but if we could achieve that I think the throughput on cases could get a lot faster. Of course, such a jury would have enormous power and may fully defeat the "jury of your peers" idea.
The Channel Islands (possessions of the English crown, not part of the UK but affiliated) have "jurats", an intriguing role - 2 sit withe each judge and decide on the facts. They are elected (essentially for life) by a body consisting of the legislature plus a few more officials. The judges from there I have spoken to like it very much and the population seems to like it too. A very different way to get the same thing we strive to get from a jury.