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Comment by tptacek | Hacker News Reader

Flight risk isn't the issue; the issue is that if you can "cheat" society out of $40MM and then outspend the DOJ 100:1 on your defense, the incentives are set (a) for you to seriously consider doing that, and (b) having embarked on any criminal conspiracy, to "go big" at all costs.

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Sounds like if you can "outspend" the DOJ and be assured of winning than A: the DOJ has very weak cases or B: the justice system is extremely non-functional.

Seizure is not a just way to hack the system back into a functional state.

So, if you're going to start a drug cartel, you should make it as big as possible to fiercely defend a war chest that you can use in the event that you're prosecuted.

I respect you, and the tone you're using with me makes me think that perhaps I am missing something here. But I'm not getting what you're attempting to hint at.

Yes, if you believe you're going to end up in court, and having lots of money is useful for defeating charges, then yes, you should try to get money. That seems pretty simple and not worthy of enacting seizure laws.

If the justice system is so broken that people guilty of massive crimes can pay $50M and get out of charges, then THAT needs to be fixed. You're not seriously suggesting that seizure is a just way to hack around a broken system?

Thomas has a very instrumentalist / consequentialist / realist view of things. It sometimes makes him sound almost amoral. He sometimes gets caught up on the "is" side of "is / ought" discussions, which, as we know, have no resolution because they're two separate worlds.

You know, this may be true (minus the instrumentalism, which is a label I think applies better to the prevailing sentiment of HN), but I don't think it's "amoral" to ask whether the operators of massive criminal enterprises should be able to use the fruit of those operations to reduce the feasibility of prosecution. If you make $10MM selling illegal firearms, the proceeds of that operations aren't "yours"; they're assets generated by criminal activity.

You may be innocent of the charges. If you are, you should get the assets back. To the extent that asset forfeiture makes that process fraught, that's a problem that deserves careful scrutiny.

I submit that I don't sound "amoral" so much as that I don't have exactly the same set of biases that most vocal people on HN seem to have. I don't start from the premise that all prosecution is unjust or malicious; in fact, I think I start from the opposite premise. So when something happens like "all the assets of a business are seized as part of a prosecution", I ask myself, "why would people who have chosen to spend a significant part of their life working at sub-market compensation to help fight crime choose to do that?" Sometimes the answers seem clear to me; in other cases, like the Carmen Ortiz-managed prosecution of Aaron Swartz, they are less clear.

I didn't mean "amoral" as an insult, and I don't think you're amoral. You just seem that way sometimes (to me) in your apparent reluctance to view things[1] from the perspective of how they might be improved (i.e. how they "ought" to be), and rather argue about consequences (the way things are), with little regard for the justice of the larger machine that generates those consequences.

[1] Social / political / judicial / law enforcement things in particular. You've argued lots of times about how things can be positively changed wrt crypto, security etc.

PS: I don't think it's bias. Your perspective is also biased; it's just differently biased than the group average here. Your perspective is welcome and often refreshing.

I feel like I'm very concerned about the justice of the overall system, but that instances of injustice within it don't generally indict the whole system.

I admittedly don't have any evidence of this, but I suspect that "lets become as big and rich as possible" is usually high on the list of priorities for cartels and mobs already, for plenty of other reasons.

What exactly does all of that money buy you for a defense?

What I mean is, are we talking about somebody using their fortune to bribe and buy witnesses? Use their wealth to construct alibis?

Or are we talking about somebody using their fortune to hire a better lawyer than the DOJ can hire? Hire better expert witnesses than the DOJ can hire?

If all of the transactions are legitimate and all that money bought him was a world-class defense.. then I say "tough noogies" to the DOJ. Being able to afford the next Johnnie Cochran doesn't seem problematic to me; the only thing that concerns me is that poor people cannot receive a similarly competent defense.

Legal strategy is only partly about manipulating the perception of truth. The other, often significantly more effective tactic, is to drown your opponent in requests and subpoenas, each of which requires non-trivial resources to respond to.

It's incredibly cash-intensive, you effectively declare legal nuclear war and just go all out. It's virtually impossible to counter without special legislation already in place to counter exactly that sort of threat, e.g. anti-SLAPP laws.

How could that do anything other than delay the inevitable? Sooner or later you are going to be in front of a judge and a jury. They can spam all they want, it isn't going to stop the trial from happening.

I think you can then use the whole charade as an argument that the prosecution made lots of mistakes, increasing the chance for a favorable outcome or conditions for appeal.

Think of it as a variant on 'the market can stay irrational longer than you can stay solvent.'

When you put it that way, maybe they could unfreeze enough assets to let the defendant get up to 1:1.

Which doesn't solve much because who then controls the spending? And in addition the spending would have to be audited and controlled in some manner that's equitable for both parties.

For example, a defense lawyer could offer reduced hourly rates but include a bonus payment at the end to skew the 1:1 comparison.

In addition, party A can affect the spending of party B, which is part of what's being complained about. Because motions filed by party A can cause party B's costs to rise significantly to the point where their operation is hindered. So it most likely then becomes a race to the top, which once again will benefit the party with the larger war chest up until all assets are used up.

A set percentage of assets would feel better in my opinion, though in extreme cases it would probably still be a pretty penny.

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