Fear of the legal system 11/19
what if "loser pays" applied to prosecutors?
Why do people tolerate – and even energetically defend – a system of justice that virtually everyone thinks would hellishly mistreat them if they were innocent?
He praises a new book by Michael Huemer.
My immediate reaction is that an encounter with the legal system is inherently asymmetric. If you are found guilty, you get punished. If you are found not guilty, you get. . .nothing. That asymmetry creates distorted incentives.
This suggests that the solution is something like “loser pays” for prosecutors. Have the state pay if it loses a case. This might alter the plea-bargaining calculus. “I’m not going to plea to a lesser charge. Go ahead and charge me with the serious crime. When the verdict goes my way, you’ll have to pay me big bucks.”
A lot of generalized writing critical of plea bargaining is low quality because it fails to get into the specific details and weeds of what is actually happening in the typical contemporary case. Just as with Qualified Immunity or Mass Incarceration, even libertarian legal writers who should know better often repeatedly - one suspects intentionally - elide the contextual basis for the present predicament.
For plea bargaining in particular, one example out of many is that critic writers often omit the fact that modern forensic tools and ubiquitous electronic records and recording devices mean a lot of criminals are simply caught red-handed in a completely obvious way. This is like getting photographed running a red light by one of those automated machines. Yes, those aren't perfect, nothing is, but still, the situation is one of near certain conviction at any trial, so the arguments involving hypothetical middling probabilities do not really apply in these 'edge' cases, which, however, are quite commonly encountered in the context of bargains.
As to the elided context, briefly, the contemporary practices of plea bargaining, allowing law enforcement officers the legal defense of qualified immunity, and imposing / threatening unusually severe prison terms are indeed quasi-lawless or disproportionate coping mechanisms designed to mitigate the fallout from the other quasi-lawless judicial inventions of the kind that characterized the Warren Court.
That is, the actions of the Warren Court and other judicial innovations and discoveries completely upset the general social equilibrium in terms of the optimized balance between the methods, tactics, and powers of the criminal justice system and the goal of maintaining public order, safety, and security, and in short order this proved unsustainable and politically intolerable. But just reversing these legal pronouncements was also not feasible, so, it took some time for legislatures and law enforcement officials to adapt and adjust to the new reality to restore equilibrium, and as reluctant as judges might have been to admit the errors of their prior edicts, they were happy to do so tacitly and by implication in blessing-off on the new approaches.
One might say that "two wrongs don't make a right," which is of course certainly true. Nevertheless while two wrongs in opposition are still on net wrong, they can be less wrong than the wrongness of a single, un-opposed wrong. If one is trying to improve things, it is simple error to advocate for merely the abolition of the mitigating half of the wrongness tango, and one should instead call for the abolition of both dance partners, together, simultaneously. This is precisely the error I think Huemer is making.
Unfortunately, because these pragmatic realities are not how the legal arguments are framed or handled, we have to go through the absurd charade of people trying to defend the legally indefensible and pretending they are doing so in good faith. That's how the game is played, and "don't hate the player, hate the game." Many systems of law seem to rely on a certain amount of pretense, charade, and legal fiction, but like water that can quench your thirst at some point you are drowning to death in it.
Furthermore, as with any freedom or power, all discretionary authorities and legal defenses are of course susceptible to being abused by scoundrels and bad actors resulting in the occasional scandalous injustice. Once upon a time people used to correctly say tolerating bad speech was the price worth paying of good free speech, and while that logic is no longer in vogue, it is still the valid way to reason about costs and benefits and the imprudence of throwing the law-and-order baby out with the anecdotal bathwater.
Now, since a common rationale for plea bargaining is that is allows the state to avoid the huge burden of going to trial, and a common pitfall is that too much prosecutorial discretion in offering pleas leads to situations of obvious and wrongful coercive pressure to induce confessions of guilt.
So, one minor reform which would nevertheless be both fair and an improvement over the current situation would be to set the maximum sentence for conviction on all charges at whatever is offered in a plea bargain plus half the cost of prosecuting the trial, up to a maximum official standard set by law at a reasonable budgeted amount given the severity of the charge. You could also give convicted defendants a choice between paying off this liability via a debt nondischargeable in bankruptcy or via a term of incarceration at a fixed exchange rate.
Of course, one might ask, why should simple trials with strong evidence on relatively minor charges be so incredibly burdensome to begin with? That wasn't the case in the not-too-distant past, and, in my judgment, there is no strong case that there was a sudden and dramatic decrease in the manifest injustices of the criminal justice system, and certainly not without an offsetting degeneration in public security. Well, it's a long story, but the thing to notice is that few advocates of reform seem to have any interest in tackling or addressing this particular and significant problem, as if the attitude was, "Well, that's the state's problem, not mine." The trouble is, practically, crime is a problem for everyone, not just 'the state'.
I think it is helpful to expand the inquiry here. We're talking about criminal law. Crimes are crimes (plausibly) since they're a drain on society; for example, violence or theft or arson each exact a social cost. Everybody in society, even criminals, thus benefits from a criminal justice system insofar as it deters or otherwise prevents crime. (Cf. e.g. Shavell on optimal deterrence https://dash.harvard.edu/bitstream/handle/1/17367410/Shavell_802.pdf?sequence=3 ).
The benefits of a criminal justice system are thus distributed widely, but the costs of a criminal justice system that produces false positives fall narrowly. This mischief is addressed by, among other things, the high burden of proof in criminal cases; doctrines like the rule of lenity and due process; and our system of appeals (we give the most appeals to criminal defendants of anywhere in the world -- if in state court, you typically get a direct appeal, state habeas, state habeas appeal, federal habeas, federal habeas appeal, then a second or successive federal habeas). Under this system, you always have a good chance of getting out if you can prove actual innocence (cf. Friendly, _Is Innocence Irrelevant?_), and once sprung you have several options to sue the town or city for damages.
Before endorsing a system like loser pays, it would be good to consider how the system currently performs in normal cases -- are we charging enough people? Catching enough crime? My suspicion is that, if anything, we're not charging enough; see the abysmal murder clearance rates in major cities. This suggests we should be punishing the people we do catch harder, or else spending more money on police presence.
But then how to square with the observation that people widely think they'd be treated unfairly if processed through the judicial system? I think a media effect is at play, both insofar as people tend to read about unusual cases, and insofar as, more recently, the Maoist media has been jettisoning traditional notions of due process and putting thumbs on the scale against 'undesirable' defendants, like Kyle. Neither of these circumstances obtain in the normal run of criminal cases, which are usually pretty cut and dry.
Having so located the problem, I'd propose reforming media coverage (e.g., by new defamation laws, or some sort of law to create civil liability for misleading jurors) rather than mucking about with the justice system.