Nothing will change until the people comprising our institutions change. Bad actors will always find a way to exploit the legal system, regardless of how cleverly things are worded.
I'm a criminal barrister in England, where we don't have this problem to anything like the same extent (although it's present to a lesser extent). In terms of within-Overton window solutions that may help with some of these:
1. If there's insufficient evidence to secure a conviction, applications to dismiss (our version of motions to dismiss) are generally made about 6-8 weeks after the initial charge. It's not a high bar for the prosecution to cross, but it's a good way of binning off anything that's completely without merit.
2. We don't have cash bail, and the default position is that everyone will be on bail without payment of a surety/security unless there's some reason to remand them. I can't stress enough how this causes essentially no problems; the police can just go and arrest people who don't show up to court, not to mention they run the risk of being tried in their absence. Remanding people prior to being convicted of anything is, objectively, an absurd violation of people's rights in a society that views imprisonment as punitive, and it's baffling that no-one really questions it either here or in the US.
3. You can recover a portion of the costs of your defence if you're acquitted after a trial. It used to be the whole amount, but was reduced for budgetary reasons.
4. We still have private prosecutions, and they're not uncommon (although a small minority of all criminal cases); most notably, there was a (failed) private attempt to prosecute Boris Johnson while he was in office.
Outside the US Overton Window factors that help us are:
5. Prosecutions generally aren't very politicised. The CPS (the bureaucracy we have instead of DAs) get a bit of political pressure, but its head (the DPP) is generally someone outside of politics and the civil service with sufficient clout to tell anyone outside the organisation to get stuffed.* The last DPP was different, as she'd previously worked for the CPS and it got more politicised, but no-one wants to go back to that so we should hopefully be fine. The US doesn't have much tradition of an above-politics class of people, and I don't think the suggestion would be popular. You could still have outside counsel, but not without a split legal profession.
6. All prosecutions are done by outside counsel hired for the case, and in the event they disagree with the CPS, it's ultimately outside counsel's decision that's final. Given most of us prosecute and defend, there's not a lot of motivation to be unreasonable. The public choice theory motivations are not embarrassing yourself in front of your colleagues/a judge by prosecuting something ridiculous, especially as a lot of barristers have one eye on being a judge.
7. We have an unelected judiciary that's mostly outside of partisan politics, who aren't afraid to go against the CPS or be seen as lenient. Again, I don't think this is achievable without a class system, and even here it's starting to break down and probably cutting against the trend of history.
8. Prosecutors have to be satisfied that any charges they bring in are proportionate and in the public interest. This mostly isn't justiciable, but synchronises with the civil service's obsessive blame culture in such a way that judicial criticism of prosecution decisions on these grounds is normally sufficient to stop a case. Barristers will also want references from judges in order to either become judges or KCs (senior barristers), so don't want to antagonise them too much and/or get a reputation for poor judgment by prosecuting stupid cases.
*The current leader of the Labour Party was formerly the DPP, but it would have been close to unthinkable for the then Labour government to subject him to political pressure; the result is that if it had happened, and he'd publicised that it had happened, it would probably have ended up helping his political career. One advantage of the Westminster system is that previous governments tend to be so despised that in the long term opposing them for reasons that attract public sympathy tends to be beneficial.
Fascinating discussion, thank you - though I'm not convinced by your solutions, which seem to leave the appointment, punishment, and power structure of prosecutors and judges unaltered. Unless you change that, you're liable to end up with the same system with slightly different names attached to its various parts. Minimising direct democratic involvement might work, but with the risk that the cure is worse than the disease. And leaving the related problems you mention - ever lengthening trials and ever more complex laws - unaffected, if the experience of the UK is any guide. Maybe it's just sewer maintenance - all you can really do is try to clean the crap off the walls faster than it builds up. And no matter how hard you try, you'll never get rid of the stench.
I spent a good deal of my first book sketching a legal system in which there is no government and the court system is produced on a competitive market:
I believe the entire system so rotten that piecemeal fixes are a waste of time. But that hasn't stopped me from thinking of some. One of my favorites involves plea deals and overcharging.
* Every charge must be brought to trial and judged by a jury. Plea deals don't exist.
* Acquitted charges subtract their maximum possible penalties from the actual convicted penalties.
* If the net penalty comes out negative, the prosecutor owes the difference. Financially, it's doubtful it would come from the prosecutor's pocket, just the department budget. Prison time is different. I wouldn't mind seeing a few over-zealous prosecutors serving sentences for overreaching, but that's not gonna happen.
It leads to another fantasy idea: all penalties are monetary only. Thefts are easy: damages, stolen value, prosecution expenses, time off work, everything that would not have been spent if there had been no crime. Murder adds all likely future income. But it does make it easier to have negative net penalties for acquittals.
That leads to yet another fantasy idea. Anyone who can't pay their verdict debt is an outlaw, defined here as someone who is not allowed to file charges for damages less than his outlaw debt. At its extreme, a murderer could not complain for being locked up, while a minor burglar who owes $5000 could not complain about anyone stealing the furniture in his house, or his wallet, phone, etc.
But the reality is that as long as bureaucrats and politicians aren't held responsible, they will act irresponsibly.
No, of course not. You're thinking that rich folk can just pay their restitution and literally get away with murder. (I suggest that Epstein's client list, Whitey Bulger, and the number of unpunished police killings show that is close to reality with the US legal system today, just not based on wealth.) But anyone who literally paid his murder restitution would be such a clear threat to everyone that his mere presence would justify self-defense without waiting for any specific action.
In connection with Mencken's idea, I also note H. Beam Piper's _Lone Star Planet_, where one could assault or kill a politician and the trial, while in law a trial of the accused, was in reality a trial of the victim to see if he'd gotten what came to him.
Private prosecution would simply compound the already unequal treatment the rich and not-rich obtain in the US. Imagine any rich asshole could prosecute anyone they don't like for any reason, bankrupting them in the process. In fact, we had just such a prosecution recently in the case of Steven Donziger: the state refused to prosecute him so the judge appointed private attorneys to prosecute with the expected result -- a horrible travesty of justice where the judge and "prosecutors" were colleagues and they acted together as joint judge, jury and "executioner".
Otherwise, great piece. I do like the Scottish system of innocent, not proven and guilty. Far more sophisticated and humane.
This is the most thorough and insightful analysis I've seen about malicious prosecution, which is only going to become more of a problem now that politicized lawfare is becoming the norm. Your proposed solutions are also better than anything else I've seen. I hope your essay gets a much wider audience!
The problem with potentially holding prosecutors accountable for bringing a case is that prosecutors will be less likely to bring any case. We want crimes prosecuted.
An interesting point you don’t raise is that federal prosecutors almost always get convictions, because they don’t bring cases they can’t win. So even though they have wide discretion, there seems to be little to no abuse in prosecuting innocents. (There might be abuse or politics involved in whom *not to* charge.)
Allowing private citizens to bring charges is open to all sorts of abuses, but we can perhaps address them. 1. Only allow them to bring felony charges. 2. Only allow a private citizen to bring one charge every 10 years (kind of like bankruptcy). 3. If the defendant is found obviously innocent, the person who brought the lawsuit gets whatever penalty the defendant would have received.
An ambitious district attorney could exploit your point #1, and go after someone who will make it to the papers, so he/she gets name recognition before elections. The lawyer jokes are all basically reality!
Are you assuming that the election is after the indictment but before the trial? After the trial works against an innocent target only if the electorate dislikes the target enough to approve.
FWIW, in Hungary, prosecutors' pay is heavily dependent on a KPI that could be translated as "indictment efficiency", so for them to prosecute a case that does not lead to conviction results in substantial financial loss (the fewer cases they have, the greater the impact of losing one). Thus, they have a direct financial disincentive to frivolously prosecute or to stack charges unnecessarily. This does lead to the result that indictment efficiency is unusually high by international standards in Hungary (hovering around 95%), which some people interpret as evidence to the deficiency in due process protections in Hungary and weak rule of law, but I disagree with them; I think that Hungarian prosecutors are, indeed, more careful than usual with prosecuting cases.
On the other hand, the prosecutor gets involved in criminal cases even during the investigation phase, before charging the suspect and there is some incentive (which I do not fully understand) to try very hard to formally charge someone, once the police investigation named them as a suspect. I had a frivolous criminal case initiated against me by the copyright holders' association (the local stooges of RIAA and MPAA), which were careful enough to make their complaint against an "unknown perpetrator" (otherwise, I could have counter-attacked claiming false accusation, which is a criminal offense in Hungary; unfortunately, wasting law enforcement resources isn't, unlike in Ontario, where it is), but provided enough information that the investigator made me a suspect fairly quickly. Even though the police investigator transfered the documents to the prosecutor's office with the suggestion of dropping the case, increasingly higher-ranking prosecutors insisted that the police continues the investigation trying to gather further evidence. It did go all the way up to the Prosecutor General of Hungary, which is quite ridiculous in the light of very few of such cases ever reaching court and all being lost in cases that did get tried; the copyright holders' association was basically harrassing people voluntarily hosting some services that facilitated p2p file sharing so that the latter stopped on their own volition, judging that even a small risk of being involved in a criminal case was not worth what they (we) basically did on an altruistic basis for fun. They used to threaten prosecution, which was enough to frighten most people into stopping. A few of us called the bluff at considerable legal expense, most of which was not legally recoverable. But in my case, I managed to crowd-fund the legal defense and hire a very competent lawyer, who found sufficient attack surface on this scheme which resulted in the investigating police officer being fired from the police and one of the expert witnesses (provided by the copyright holders' association) actually serving jail time for wilfully misleading the investigation and failing to declare conflict of interest. After this, the practice of such harrassment in Hungary stopped for good, of which I am quite proud.
Is requiring a judge to take testimony adequate to prove guilt intermediate between requiring jury trials for all and the current system? I do agree that multiple charges in the same trial is excessive.
Are there any good studies on length of sentence/time served vs. rate of crime? I.e., does arresting one criminal just provide a job opening for the next, or is it an actual deterrent? Maybe in the next edition of your book you can compare the efficacy of different legal systems.
Private prosecution is a great idea, but to prevent its misuse I would limit standing so that only the victim or those who suffered loss or were put in fear as a result of the crime could prosecute. In the case of a dead victim (whether or not from the crime itself) I would let his friends or family prosecute.
But I would also outlaw plea bargaining, because there is no other way to prevent point 2, which makes an accusation as good as a conviction.
Finally I would give the jury, not the judge, the power to decide a sentence, thus avoiding the situation where juries convict because they don't know how severe the resulting punishment will be. The law could still place upper limits on the punishment for a crime.
> But I would also outlaw plea bargaining, because there is no other way to prevent point 2, which makes an accusation as good as a conviction.
Plea bargaining developed as a solution to a specific problem, specifically, trials taking too long and clogging up the justice system. Do you have an alternative solution to this problem?
> Finally I would give the jury, not the judge, the power to decide a sentence, thus avoiding the situation where juries convict because they don't know how severe the resulting punishment will be.
The problem with this is that it makes sentences highly random, since you never know what a particular jury will decide is a reasonable punishment.
The alternative solutions are to make trials much shorter, possibly at the cost of less accurate results, are to have many fewer of them. I am in favor of legalizing victimless crimes such as drugs, gambling and prostitution, not sure how much that would reduce the number of indictments — a quick google suggests that victimless crimes represent something between ten and fifty percent of criminal charges.
Penalizing either the government or the prosecutor for charging people who turn out to be innocent should also reduce the number of indictments.
I don't know and can think of no good way of finding out how common it is for a prosecutor to charge someone whom he would not charge if he did not have the option of stacking charges and getting the defendant to plea bargain on a charge on which he would probably be acquitted.
To convict both fewer innocent and fewer guilty people. Also to change what is a crime.
Morally speaking, arresting and imprisoning someone for something he has a right to do is a crime, a crime committed by the state. In my view that includes the usual categories of victimless crimes. So abolishing that set of laws would sharply reduce the number of crimes — legally speaking and, more important, morally speaking.
I find this worldview of David Friedman's puzzling as well. I feel like you can only think in this way if you have lived an extremely insulated existence. I have never been mugged, but I have experienced in real life how evil people can be, and I think once you are exposed to that, you can never espouse the idea of dropping crimes.
> So abolishing that set of laws would sharply reduce the number of crimes
You admit that victimless crimes constitute less than 50% of crimes. It would take a lot more than that to make up the time plea bargains save the judicial system. Not to mention that legalizing drugs would lead to more drug addiction and thus more victimful crimes, see what's currently happening in SF.
I'm not arguing that one factor would reduce the number of crimes enough to balance the effect of ending plea bargaining. I'm exploring the possibility that some combination of factors reducing the number of cases and factors reducing the length of trials might.
If all you want is a way of getting more criminals convicted, all you have to do is reduce the standard of proof — at the cost of getting more innocent people convicted. If you don't see a problem with a system where it is easy for a prosecutor to use the legal system to punish someone who has done nothing wrong, why bother with trials at all? Just have the prosecutor figure out who are guilty and lock them up.
Why would you expect legalizing drugs to lead to more victimful crimes? Legal drugs should be much cheaper, so much less reason to steal to pay for them. My understanding is that that fits the Portuguese experience with legalization.
If I am correct, the reduction in cases would be more, not less, than the current number of victimless crime cases.
“When you look at a bullet hole you can see which way the bullet was going by which way the splinters point; they all pointed in.”
I feel compelled to comment - it wouldn’t make sense for the Black Panthers to shoot through their own walls... what with windows and all.
At any rate, great read. I notice that nobody questions the use of juries but perhaps, while we’re being so open minded, we might examine the preposterousness of the concept of a “jury of your peers” in 2023...
Nothing will change until the people comprising our institutions change. Bad actors will always find a way to exploit the legal system, regardless of how cleverly things are worded.
I'm a criminal barrister in England, where we don't have this problem to anything like the same extent (although it's present to a lesser extent). In terms of within-Overton window solutions that may help with some of these:
1. If there's insufficient evidence to secure a conviction, applications to dismiss (our version of motions to dismiss) are generally made about 6-8 weeks after the initial charge. It's not a high bar for the prosecution to cross, but it's a good way of binning off anything that's completely without merit.
2. We don't have cash bail, and the default position is that everyone will be on bail without payment of a surety/security unless there's some reason to remand them. I can't stress enough how this causes essentially no problems; the police can just go and arrest people who don't show up to court, not to mention they run the risk of being tried in their absence. Remanding people prior to being convicted of anything is, objectively, an absurd violation of people's rights in a society that views imprisonment as punitive, and it's baffling that no-one really questions it either here or in the US.
3. You can recover a portion of the costs of your defence if you're acquitted after a trial. It used to be the whole amount, but was reduced for budgetary reasons.
4. We still have private prosecutions, and they're not uncommon (although a small minority of all criminal cases); most notably, there was a (failed) private attempt to prosecute Boris Johnson while he was in office.
Outside the US Overton Window factors that help us are:
5. Prosecutions generally aren't very politicised. The CPS (the bureaucracy we have instead of DAs) get a bit of political pressure, but its head (the DPP) is generally someone outside of politics and the civil service with sufficient clout to tell anyone outside the organisation to get stuffed.* The last DPP was different, as she'd previously worked for the CPS and it got more politicised, but no-one wants to go back to that so we should hopefully be fine. The US doesn't have much tradition of an above-politics class of people, and I don't think the suggestion would be popular. You could still have outside counsel, but not without a split legal profession.
6. All prosecutions are done by outside counsel hired for the case, and in the event they disagree with the CPS, it's ultimately outside counsel's decision that's final. Given most of us prosecute and defend, there's not a lot of motivation to be unreasonable. The public choice theory motivations are not embarrassing yourself in front of your colleagues/a judge by prosecuting something ridiculous, especially as a lot of barristers have one eye on being a judge.
7. We have an unelected judiciary that's mostly outside of partisan politics, who aren't afraid to go against the CPS or be seen as lenient. Again, I don't think this is achievable without a class system, and even here it's starting to break down and probably cutting against the trend of history.
8. Prosecutors have to be satisfied that any charges they bring in are proportionate and in the public interest. This mostly isn't justiciable, but synchronises with the civil service's obsessive blame culture in such a way that judicial criticism of prosecution decisions on these grounds is normally sufficient to stop a case. Barristers will also want references from judges in order to either become judges or KCs (senior barristers), so don't want to antagonise them too much and/or get a reputation for poor judgment by prosecuting stupid cases.
*The current leader of the Labour Party was formerly the DPP, but it would have been close to unthinkable for the then Labour government to subject him to political pressure; the result is that if it had happened, and he'd publicised that it had happened, it would probably have ended up helping his political career. One advantage of the Westminster system is that previous governments tend to be so despised that in the long term opposing them for reasons that attract public sympathy tends to be beneficial.
Fascinating discussion, thank you - though I'm not convinced by your solutions, which seem to leave the appointment, punishment, and power structure of prosecutors and judges unaltered. Unless you change that, you're liable to end up with the same system with slightly different names attached to its various parts. Minimising direct democratic involvement might work, but with the risk that the cure is worse than the disease. And leaving the related problems you mention - ever lengthening trials and ever more complex laws - unaffected, if the experience of the UK is any guide. Maybe it's just sewer maintenance - all you can really do is try to clean the crap off the walls faster than it builds up. And no matter how hard you try, you'll never get rid of the stench.
I spent a good deal of my first book sketching a legal system in which there is no government and the court system is produced on a competitive market:
http://www.daviddfriedman.com/The_Machinery_of_Freedom_.pdf
This post is on less radical changes.
I believe the entire system so rotten that piecemeal fixes are a waste of time. But that hasn't stopped me from thinking of some. One of my favorites involves plea deals and overcharging.
* Every charge must be brought to trial and judged by a jury. Plea deals don't exist.
* Acquitted charges subtract their maximum possible penalties from the actual convicted penalties.
* If the net penalty comes out negative, the prosecutor owes the difference. Financially, it's doubtful it would come from the prosecutor's pocket, just the department budget. Prison time is different. I wouldn't mind seeing a few over-zealous prosecutors serving sentences for overreaching, but that's not gonna happen.
It leads to another fantasy idea: all penalties are monetary only. Thefts are easy: damages, stolen value, prosecution expenses, time off work, everything that would not have been spent if there had been no crime. Murder adds all likely future income. But it does make it easier to have negative net penalties for acquittals.
That leads to yet another fantasy idea. Anyone who can't pay their verdict debt is an outlaw, defined here as someone who is not allowed to file charges for damages less than his outlaw debt. At its extreme, a murderer could not complain for being locked up, while a minor burglar who owes $5000 could not complain about anyone stealing the furniture in his house, or his wallet, phone, etc.
But the reality is that as long as bureaucrats and politicians aren't held responsible, they will act irresponsibly.
Would it in your system be basically legal (slap on the wrist) for Elon Musk to hunt poor people for sport? That sounds like a hard sell.
No, of course not. You're thinking that rich folk can just pay their restitution and literally get away with murder. (I suggest that Epstein's client list, Whitey Bulger, and the number of unpunished police killings show that is close to reality with the US legal system today, just not based on wealth.) But anyone who literally paid his murder restitution would be such a clear threat to everyone that his mere presence would justify self-defense without waiting for any specific action.
George Saintsbury mentioned a French Count just before the Revolution who was said to shoot roofers off the tops of houses for sport.
In connection with Mencken's idea, I also note H. Beam Piper's _Lone Star Planet_, where one could assault or kill a politician and the trial, while in law a trial of the accused, was in reality a trial of the victim to see if he'd gotten what came to him.
My guess is that Piper got the idea from Mencken, but it could independent invention.
I came here to post this.
PS. Jay, we played a game with your Munchkin card at BasedCon, thanks!
I too came here to mention H. Beam Piper’s novel.
Private prosecution would simply compound the already unequal treatment the rich and not-rich obtain in the US. Imagine any rich asshole could prosecute anyone they don't like for any reason, bankrupting them in the process. In fact, we had just such a prosecution recently in the case of Steven Donziger: the state refused to prosecute him so the judge appointed private attorneys to prosecute with the expected result -- a horrible travesty of justice where the judge and "prosecutors" were colleagues and they acted together as joint judge, jury and "executioner".
Otherwise, great piece. I do like the Scottish system of innocent, not proven and guilty. Far more sophisticated and humane.
This is the most thorough and insightful analysis I've seen about malicious prosecution, which is only going to become more of a problem now that politicized lawfare is becoming the norm. Your proposed solutions are also better than anything else I've seen. I hope your essay gets a much wider audience!
This post grew out of the final part of the previous post, "How Not to Weaponize the Legal System," via a link provided by a commenter.
Lots of fodder for ideas here.
The problem with potentially holding prosecutors accountable for bringing a case is that prosecutors will be less likely to bring any case. We want crimes prosecuted.
An interesting point you don’t raise is that federal prosecutors almost always get convictions, because they don’t bring cases they can’t win. So even though they have wide discretion, there seems to be little to no abuse in prosecuting innocents. (There might be abuse or politics involved in whom *not to* charge.)
Allowing private citizens to bring charges is open to all sorts of abuses, but we can perhaps address them. 1. Only allow them to bring felony charges. 2. Only allow a private citizen to bring one charge every 10 years (kind of like bankruptcy). 3. If the defendant is found obviously innocent, the person who brought the lawsuit gets whatever penalty the defendant would have received.
An ambitious district attorney could exploit your point #1, and go after someone who will make it to the papers, so he/she gets name recognition before elections. The lawyer jokes are all basically reality!
Are you assuming that the election is after the indictment but before the trial? After the trial works against an innocent target only if the electorate dislikes the target enough to approve.
FWIW, in Hungary, prosecutors' pay is heavily dependent on a KPI that could be translated as "indictment efficiency", so for them to prosecute a case that does not lead to conviction results in substantial financial loss (the fewer cases they have, the greater the impact of losing one). Thus, they have a direct financial disincentive to frivolously prosecute or to stack charges unnecessarily. This does lead to the result that indictment efficiency is unusually high by international standards in Hungary (hovering around 95%), which some people interpret as evidence to the deficiency in due process protections in Hungary and weak rule of law, but I disagree with them; I think that Hungarian prosecutors are, indeed, more careful than usual with prosecuting cases.
On the other hand, the prosecutor gets involved in criminal cases even during the investigation phase, before charging the suspect and there is some incentive (which I do not fully understand) to try very hard to formally charge someone, once the police investigation named them as a suspect. I had a frivolous criminal case initiated against me by the copyright holders' association (the local stooges of RIAA and MPAA), which were careful enough to make their complaint against an "unknown perpetrator" (otherwise, I could have counter-attacked claiming false accusation, which is a criminal offense in Hungary; unfortunately, wasting law enforcement resources isn't, unlike in Ontario, where it is), but provided enough information that the investigator made me a suspect fairly quickly. Even though the police investigator transfered the documents to the prosecutor's office with the suggestion of dropping the case, increasingly higher-ranking prosecutors insisted that the police continues the investigation trying to gather further evidence. It did go all the way up to the Prosecutor General of Hungary, which is quite ridiculous in the light of very few of such cases ever reaching court and all being lost in cases that did get tried; the copyright holders' association was basically harrassing people voluntarily hosting some services that facilitated p2p file sharing so that the latter stopped on their own volition, judging that even a small risk of being involved in a criminal case was not worth what they (we) basically did on an altruistic basis for fun. They used to threaten prosecution, which was enough to frighten most people into stopping. A few of us called the bluff at considerable legal expense, most of which was not legally recoverable. But in my case, I managed to crowd-fund the legal defense and hire a very competent lawyer, who found sufficient attack surface on this scheme which resulted in the investigating police officer being fired from the police and one of the expert witnesses (provided by the copyright holders' association) actually serving jail time for wilfully misleading the investigation and failing to declare conflict of interest. After this, the practice of such harrassment in Hungary stopped for good, of which I am quite proud.
Is requiring a judge to take testimony adequate to prove guilt intermediate between requiring jury trials for all and the current system? I do agree that multiple charges in the same trial is excessive.
Are there any good studies on length of sentence/time served vs. rate of crime? I.e., does arresting one criminal just provide a job opening for the next, or is it an actual deterrent? Maybe in the next edition of your book you can compare the efficacy of different legal systems.
Private prosecution is a great idea, but to prevent its misuse I would limit standing so that only the victim or those who suffered loss or were put in fear as a result of the crime could prosecute. In the case of a dead victim (whether or not from the crime itself) I would let his friends or family prosecute.
But I would also outlaw plea bargaining, because there is no other way to prevent point 2, which makes an accusation as good as a conviction.
Finally I would give the jury, not the judge, the power to decide a sentence, thus avoiding the situation where juries convict because they don't know how severe the resulting punishment will be. The law could still place upper limits on the punishment for a crime.
> But I would also outlaw plea bargaining, because there is no other way to prevent point 2, which makes an accusation as good as a conviction.
Plea bargaining developed as a solution to a specific problem, specifically, trials taking too long and clogging up the justice system. Do you have an alternative solution to this problem?
> Finally I would give the jury, not the judge, the power to decide a sentence, thus avoiding the situation where juries convict because they don't know how severe the resulting punishment will be.
The problem with this is that it makes sentences highly random, since you never know what a particular jury will decide is a reasonable punishment.
The alternative solutions are to make trials much shorter, possibly at the cost of less accurate results, are to have many fewer of them. I am in favor of legalizing victimless crimes such as drugs, gambling and prostitution, not sure how much that would reduce the number of indictments — a quick google suggests that victimless crimes represent something between ten and fifty percent of criminal charges.
Penalizing either the government or the prosecutor for charging people who turn out to be innocent should also reduce the number of indictments.
I don't know and can think of no good way of finding out how common it is for a prosecutor to charge someone whom he would not charge if he did not have the option of stacking charges and getting the defendant to plea bargain on a charge on which he would probably be acquitted.
So your solution seems to amount to "let more people get away with crimes".
To convict both fewer innocent and fewer guilty people. Also to change what is a crime.
Morally speaking, arresting and imprisoning someone for something he has a right to do is a crime, a crime committed by the state. In my view that includes the usual categories of victimless crimes. So abolishing that set of laws would sharply reduce the number of crimes — legally speaking and, more important, morally speaking.
I find this worldview of David Friedman's puzzling as well. I feel like you can only think in this way if you have lived an extremely insulated existence. I have never been mugged, but I have experienced in real life how evil people can be, and I think once you are exposed to that, you can never espouse the idea of dropping crimes.
> So abolishing that set of laws would sharply reduce the number of crimes
You admit that victimless crimes constitute less than 50% of crimes. It would take a lot more than that to make up the time plea bargains save the judicial system. Not to mention that legalizing drugs would lead to more drug addiction and thus more victimful crimes, see what's currently happening in SF.
I'm not arguing that one factor would reduce the number of crimes enough to balance the effect of ending plea bargaining. I'm exploring the possibility that some combination of factors reducing the number of cases and factors reducing the length of trials might.
If all you want is a way of getting more criminals convicted, all you have to do is reduce the standard of proof — at the cost of getting more innocent people convicted. If you don't see a problem with a system where it is easy for a prosecutor to use the legal system to punish someone who has done nothing wrong, why bother with trials at all? Just have the prosecutor figure out who are guilty and lock them up.
Why would you expect legalizing drugs to lead to more victimful crimes? Legal drugs should be much cheaper, so much less reason to steal to pay for them. My understanding is that that fits the Portuguese experience with legalization.
If I am correct, the reduction in cases would be more, not less, than the current number of victimless crime cases.
I was trying to respond to you above.
“When you look at a bullet hole you can see which way the bullet was going by which way the splinters point; they all pointed in.”
I feel compelled to comment - it wouldn’t make sense for the Black Panthers to shoot through their own walls... what with windows and all.
At any rate, great read. I notice that nobody questions the use of juries but perhaps, while we’re being so open minded, we might examine the preposterousness of the concept of a “jury of your peers” in 2023...