Comment by jMyles | Hacker News Reader

Comment by jMyles | Hacker News Reader

There's no question that the "justice" system is just completely broken. The only reason we even comply with it at all is not a sense that it is creating peace and order in society, but simply that the people who administer it are hellishly violent to people who try not to comply (or, in some cases, even people who are just merely critical, as evinced by, for example, retaliatory actions taking by police departments in response to facebook posts).

Nevertheless, articles like this are good for putting things into focus. The graphic showing the assessment that "Mr. Talaska needed to do the work of five full-time lawyers to serve all of his clients" is convincing and powerful.

But at the end of the day, the question is this: what are we going to do in order to replace this system? Can we effectively build an alternate system (perhaps based on restorative justice) in parallel, and then hope for a clean drop-in replacement? Is there precedent for such a thing in history?

A runaway justice system seems like such a difficult thing to fix, but I think it's becoming clearer and clearer that it's a top priority for the health and direction of the United States, if they are to survive at all.

Not practical for many reasons, but: Ban plea bargains and automatically exonerate anyone that sits more than 30 days awaiting trial. The system would probably adjust to fit crimes worth going after.

Maybe there's some less drastic version of this that forces the state hand.

Can you expand on why plea bargains are bad?

Because the accused thinks he doesn’t have a chance at trial with an overworked public defender, he takes the plea and is - for all intents and purposes - denied due process. If plea bargains were harder to execute, then DAs would be forced to be more choosey about the cases they decide to prosecute, knowing that flimsy cases would clog the system and cause many cases to be stayed due to the unreasonable passage of time...

I've had the misfortune of knowing people who rejected the plea bargain. It's always a gamble of being found not guilty, because in the punishment phase, it's always 3x or more of the previous offer.

Maybe that is something interesting to look at? Cap the punishment to some lower multiple of any plea bargain offered?

A reasonable multiplier here would be 1.

Anything more is coercion to give up your rights.

The issue with this is of course that if people exercise their rights, the courts would be swamped.

Even if I knew I was guilty and that the state had all the evidence to prove it, why would I ever take a plea deal that was no better than the worst-case trial outcome?

DA could make a mistake; I might come up with a particularly recalcitrant jury; I might end up with an appealable matter.

You wouldn't. That's fine. That's your right. The state has no right to punish you for exercising it.

Except, practically today they do punish, and practically the system would grind to a halt otherwise.

The accused should not suffer because the courts are clogged. In Canada, a gigantic decision came from our Supreme Court recently that puts an upper limit on the amount of time that can pass before a mistrial has occurred. It has forced the provinces to re-examine their funding of the justice system and in particular public defenders.

Either the courts need more money, or the laws need to change to reduce the number of accused...

I think there's a valid place for "Hey, we can make this a bit easier and more efficient for everyone and here's what we, the state, are prepared to give up in order to facilitate that."

Imagine applying that to the right to free speech instead of the right to due process for a moment.

"Hey, we can make this a little easier for everyone, you can stop advocating for <favorite political cause, say, doing away with plea deals> and we will reduce your prison sentence".

A fundamental part of rights is that the government can't coerce you into giving them up.

If you really want to go down this path, what would almost pass muster in my point of view is having non indigent defendants who are found guilty have to pay for the extra court resources they used. Even then I think it's a pretty clear violation of their rights, but at least it has some rational basis behind it.

They've built an incentive system to prevent people from actually defending themselves in a court of law.

Only 3% of federal cases go to trial. Imagine having the option of 2 years in a minimum security or possibly face 10 years in a higher security prison. If you have a family, even if innocent, you take the 2 years.

"Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt, defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law including the proof beyond a reasonable doubt standard, and judges dedicate their time to administering plea allocutions rather than evaluating the constitutional and legal aspects of the government’s case and police conduct. Equally important, the public rarely exercises the oversight function envisioned by the Framers and inherent in jury service."

https://www.forbes.com/sites/walterpavlo/2018/07/31/are-inno...

https://www.theatlantic.com/politics/archive/2017/05/plea-ba...

To give a tangible example, Aaron Swartz was offered a plea bargain for six months in federal prison, on charges that carry a maximum sentence of 35 years imprisonment.

In simple game theoretic terms, it's usually optimal to take the plea bargain even if you're innocent, you've got good representation and your case is strong. A certainty of a short sentence is preferable to the possibility of your life being ruined.

Not easy to sum up here. Search a bit, and you'll find very little in defense of them outside of "courts are too busy without them". You find many reasons they aren't good, however.

Essentially, a plea bargain has less protection around it. Police can legally lie to you about evidence, witnesses, etc. Then throw you in a room with a prosecutor where you weigh risk of a trail vs what's offered, probably with only an overworked public defender to help advise you.

I believe in other countries (UK?) the police aren't allowed to lie to you about evidence, potential consequences, etc.

There is an incentive for the prosecutor to charge the defendant with as many crimes as possible, possibly felonies when misdemeanors are more appropriate. Let the defendant plead down to those misdemeanors, get a win, but at the same time deprive a scared defendant out of his right to a proper trial. Mandatory minimum sentencing makes this even worse for the defendant. Throw the dice with a potential three years behind bars on a felony, or take the deal and walk out after a few weeks but with a permanent record.

Piling on charges over charges for the same deed is something that doesn't happen outside the US, AFAIK. If you kill somebody and steal a car to drive his body into the desert to bury it, you won't get charged for theft, "Withholding Evidence", "Obstruction Of Justice" and what not, not even for trying to break out of jail later. You will be charged for the murder.

I think the US does more of it, but it does happen elsewhere. Here's one in Denmark: https://www.theguardian.com/world/2018/apr/25/peter-madsen-s...

Murder, sexual assault, desecrating a corpse. That was a particularly gruesome case though.

The US does tend to do a lot of upgrading charges from misdemeanor to felony, or felony b to felony a, etc. Often based on unrelated prior convictions.

Why not? You have literally committed those additional crimes, and maybe the state can't get you on the murder, but they can get you on the disposing the body, stealing the car, or whatever else. I don't think it should be the case that if acquitted of the worst of the crimes, you walk on all of them.

I do think that the sentencing should default to concurrent for tightly related crimes, of course.

It’s not just stacking charges, it’s picking worse ones when lesser charges might suffice.

A common one in VA... Resisting arrest is a misdemeanor, but if you happen to bump into a polic officer while resisting, it’s a near automatic “assaulting a police officer” felony charge. You don’t have to knowingly/willingly assault them in the laymen’s sense, just bump them in a way that they could be injuries (actual injury not required). That felony has a minimum sentence of six months in jail, up to 5 years.

That seems like a legislative issue to me. Lobby to change the law to require intent or actual injury to make it felony assault/resisting.

A plea bargain is essentially a punishment for insisting on your right to a trial. There’s nothing wrong with allowing people to plead guilty, but the part where you offer the accused a lighter sentence for doing to (equivalently, threaten a heavier sentence for wanting a trial) is awful.

> The system would probably adjust to fit crimes worth going after.

Or reinterpret what a "speedy trial" is (as would juries)

If I understand right, this was roughly the system 50-60 years ago. From memory, the average murder trial took under 2 weeks, and very few went to appeal.

We've replaced that with a system which in some ways has much higher standards. There appear to be decades worth of appeals possible on death row, involving all kinds of experts. But the flip side of this is that most trials don't happen, thanks to plea bargains.

Keep educating anyone who might ever serve on a jury about jury nullification https://en.wikipedia.org/wiki/Jury_nullification and make then feel ok about using it aggressively. If people used this every time it looked like the 'justice' system was extorting defendants the practice would stop pretty fast.

A less aggressive step could be that the max penalty could only be 10% more than the best plea bargin offer.

That would still allow for pleas, but would remove the ridiculous asymmetry that currently exists.

We could leave in the 30 day rule though which would significantly improve the system.

Great ideas.

“An affluent society ought not be miserly in support of justice, for economy is not an objective of the system.”

Everyone will say it is not practical because of cost, but I’m quite sure if we spent half the money we do on guns and missiles (and maybe paid back some loans so we didn’t spend so much on interest) there would be enough money.

You might get a SF tenderloin situation, where when random homeless people attack you unprovoked and the police do shit all, same with brazen, obvious property theft and shitting on the street.

The populace will get pissed off and demand something to be done when every day crime like that is not dealt with.

Yes there is a mental health aspect with some of it, and they need proper mental hospitals with permanent or temporary care for those people who need it, but statistics show there will always be that %1 antisocial portion of the populace that will do that crap if no enforcement exists for them.

Perhaps a less drastic version is that the police have to register all of the evidence at their disposal, for review by the court, before any pleading can occur. This prevents the police from using plea bargaining to hide a lack of evidence.

Ideally, in a common law system, they're supposed to provide all of their evidence in order to secure the arrest warrant in the first place. What a cluster.

In the US the police can legally lie to you about evidence, potential punishment, charges, etc.

For meaningful change to happen, it must come from a cultural shift in society. A better system cannot be designed from the top down.

A good place to start is to shift the very conception of "justice" from "make the bad guy pay" to "make the victim whole." (This is your restorative justice, I believe.)

If a larger and larger proportion of society sees justice in a different light, then things will change. Juries will no longer hand down indictments or convictions for whole classes of victimless crimes. More focus will be placed on arrangements between criminal and victim that are agreeable to both parties, rather than a heavy-handed sentence from the state to "send a message."

What is the restorative justice solution for murder, rape, or battery causing permanent physical harm?

I agree our justice system is somewhat out of hand, but I also believe that there is a (tiny) sliver of the human population who need to be removed from walking the streets freely.

Where the victim can't be made whole due to irreversible harm, salvage what remains of the situation and rehabilitate the offender.

That may require imprisonment but the imprisonment should be focused on rehabilitating the imprisoned so that they can be quickly released and become productive members of society.

If an offender can't or won't be rehabilitated, only then should they be left to rot. They should at least be kept in humane conditions however.

Check out the podcast “Ear Hustle” for a window into the world of criminals who have been able to walk back the behaviors that caused their crimes. There are certainly individuals who never look inward and take responsibility for their actions, but many figure things out after 5-10 years and have no opportunity to repent for another 25.

> A good place to start is to shift the very conception of "justice" from "make the bad guy pay" to "make the victim whole."

I'm a full supporter of the eye-for-an-eye school of justice as retribution, and I still find the US system far too severe and unfair (other countries' too, but less so).

I think people just have the wrong idea about how the system works (or doesn't), how terrifying it must be to be tried for a felony even if you're innocent. And for most felonies, with the exception of rape and (attempted) murder, even eye-for-an-eye would prescribe a far lower sentence.

What's needed isn't for the conception of justice to change, but for people to realize how broken the current system is.

Since the vast majority of crimes are committed by people with much less means than the victims, you cannot make the victim whole.

If you think otherwise: courts are public, go and sit in one a few hours. This idea that perpetrators can make victims whole, even partly, won't surive 30 minutes.

Did you mean to reply to my parent post? Because 'eye for an eye' is certainly not intended to make the victim whole.

You’re describing the civil court system.

The system's not fair and is favored to those with the most money. Government has unlimited money.

They really don't though. Thus one defendant for so many cases.

The government, of course, is the persecution in these cases. The defending lawyer is the bone they throw their victims.

But the judges keep convicting, keep the system going, despite the large scale violations of the constitutional rights of so many.

Legally, the government is the prosecution, though some would argue that persecution is additionally correct, though with a different meaning.

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