[tptacek]

I find wildly erratic punitive sentencing for accused offenders who choose to go to trial alarming.

But I'm not alarmed that the majority of offenders plea out.

Trials are enormously expensive, and, in a coldly rational statistical sense, most of the accused are in fact guilty --- the fact patterns in many of these cases and the evidence supporting them are very straightforward. That there would be some incentive for the accused to spare the system the expense of litigation doesn't bother me, especially because the more resources get freed up from pointless controversies, the more resources are available to handle meaningful ones.

So, I think we agree that there's a problem, but not what its causes are.

Either way: plea out or not, these cases don't get brought without "untainted" evidence. The problem is that the DOJ's definition of "untainted" is subtly broken. "Fruit of a poisonous tree" is a good Google search to follow up on this.

[Vivtek]

Whether it goes to trial or not, whether the evidence is untainted or not, the primary problem with the war on drugs is the extrajudicial punishment system that is seizure of property on mere suspicion. Giving the DEA tips is paramount to simply declaring that anybody you dislike is no longer part of American society - and there's very little recourse, just as with the no-fly list.

I'm still not sure how it has come to pass that Americans simply blithely accept all this.

[tptacek]

This comment mixes up too many issues (the war on drugs, civil asset forfeiture, the DEA intelligence program from today, the no-fly list) for me to respond to. Some of these programs are much more problematic than others, and they're not actually all related.

If you wanted to find a quick way to synthesize a dispute where none needed to exist, taking a shotgun to the whole of American criminal justice would be one way to accomplish that.

[Vivtek]

Huh. I hadn't thought to be accused of manufacturing a dispute, and I note that you seem to have done just fine responding.

I suppose my point was that there is an underlying cause here, of encroaching authoritarianism in American jurisprudence that I find both alarming and surprising, but if you feel threatened by that, then by all means feel free not to take it as delivered to your address.

[ferdo]

> the war on drugs, civil asset forfeiture, the DEA intelligence program from today, the no-fly list

They're all related. They're all policies and actions of overly zealous bureaucrats with too much power and little to no accountability.

[tptacek]

They're not related. For instance, the problem with civil asset forfeiture is financial incentives; the problem with the war on drugs was a single major public policy error, &c.

[ferdo]

They're related in their origin.

If 4 different terror operations were coming from Al Qaeda affiliated cells, we'd say they were all Al Qaeda related. If 4 different drug dealers were busted that were all being supplied by one source, we'd call it a drug ring.

All of the operations mentioned - the war on drugs, civil asset forfeiture, the DEA intelligence program from today, the TSA - are a ring of government operatives that are terrorizing, robbing and imprisoning Americans.

[fnordfnordfnord]

Asset forfeiture can make it impossible to hire a competent defense atty, investigators, experts, etc.

[gknoy]

> in a coldly rational statistical sense, most of the accused are in fact guilty

Without a trial, how do we know that?

If I am accused of something terrible, of which I am innocent, but a plea bargain gets me back to my family in N years instead of Never (or 10*N), I'm likely to lie and plead guilty. We've seen that the government doesn't merely use plea bargaining as a cost reduction tool, but rather as a very large hammer with which to ensure that people get punished in extreme ways.

While there are good police and prosecutors, as a system they are driven to increase convictions rather than to find the _guilty_. Given the chance, they can find something to convict nearly anyone of, and guilty verdicts can be nearly guaranteed against even people who are innocent by heaping up enough charges that either defense is too expensive or the penalty of losing at trial too large.

[tptacek]

You absolutely don't know that someone is likely to be guilty in any specific case. It's a statistical, macro-lens point.

[yew]

In a coldly rational sense, the shape of the legal system contributes to the cultural context that informs the future actions of the courts and their apparatus.

True, if primary cause isn't challenged the legal system doesn't consider antecedents as evidence; but the courts only make decisions - they have no input into the consequences of those decisions, other than the making of them.

[tptacek]

I am not advocating that people look at the entire justice system through a lens of cold rationalism, but projecting a single observation through that lens.

[yew]

I'm not disagreeing with your observation - just making one of my own. I happen to think they're mutually informative.

[jeltz]

In many countries you cannot plea out. Everything has to reach court, and I as living in one of these countries think is a good think. This prevents extortion and bullying by prosecutors. Your sentence should not depend on your skills at negotiation and knowledge of judicial processes.

[tptacek]

What are some of those countries? Let's be specific and see if we can generate an apples-apples comparison.

[jeltz]

I know for sure Sweden but I think most civil law countries lack the concept of a plea bargain, which means most of world. For example France introduced limited plea bargains first in 2004.

https://en.wikipedia.org/wiki/Plea_bargain#Use_in_civil_law_...

Edit: Seems a bunch of civil law countries have introduce plea bargains the last 15 years, but before that almost none of them had it. This makes it a bit hard to find a concrete list of examples since almost all hits are about the countries introducing it with little discussion about why some countries do not do the same.

[apalmer]

The DOJ's definition isn't "subtly" broken. It is completely a willful attempt to circumvent established law and precedent with a very convoluted trail of reasoning. Also not sure if this is really DOJ's definition, or certain branches of law enforcement.