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'.
Except, they should have to do productive activities for society in exchange for that debt forgiveness.
Personally I would rather abolish prisons altogether and allow prisoners to be supervised to act as unpaid employees to someone who is competent at managing humans.
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.
All of the safeguards you mention turn on preventing false convictions. They do nothing to deal with the fact that having to go through the trial is itself a punishment.
As for low clearence rates for crimes, that only tells us anything if no charges are being laid even where police have found good evidence.
If police can't keep up, you probably need more and better police before you think about more prosecutions.
Much appreciated. Yes, I think you're right that that is weak / doesn't count as evidence for my thesis; ideally, we'd want to find some instrument re charging decisions over time (the recent spate of far-left DA's might be a good one) and then look at the impact on likely measures of the social effects of crime, but I got lazy and just flopped to the guard of the first thing I could think of.
I have proposed something like this for years, especially to make plea bargains less coercive.
My proposal is that the prosecution should have to pay the proportion of defense costs defined by "final sentence"/"maximum sentence for all filed charges".
Plea bargains are a serious problem of their own. If prosecutors can so overcharge you that you don't dare refuse a plea bargain then an indictment is as good as a conviction.
I would solve it by outlawing plea bargaining for felonies, so they have to take every case to trial.
I would also limit the overuse of pre-trial detention (as has happened to the January 6 defendants). I would propose that if you're behind bars for the greater of 30 days or 1/4 of the maximum sentence for the crime you're charged with, you get automatic dismissal of all charges with prejudice.
Often bail isn't explicitly "denied" but is just set too high, for political reasons. Compare the $1M bail Kyle had to raise with the school shooter the other day who walked the same day.
Oddly enough, they did have this to some extent in some medieval Western European countries. If you accused someone of a crime and failed to prove it, you had to suffer the punishment for the crime instead. Obviously this is a bit harsher than we would advocate today. But even (especially?) in the high profile Rittenhouse case we see the prosecutor playing fast and loose with the rules requiring sharing of evidence in a timely manner with the defense. As a minimum, fundamental rules like this should be enforced with real penalties, which they almost never are today.
Yes, Arnold, you have a good point about distorted incentives. But it's just one of the many issues we can question about most legal systems (broadly defined to include rule-making and rule-enforcement). I'd have preferred a review of Huemer's book rather than focusing on Bryan's question. I'm afraid that since Huemer is a philosopher, his ideas about the legal system may be far from what well-intended politicians, lawyers, and economists would think as reasonable reforms.
Anyway, since the reform of the legal system is a big issue, I suggest you focus on the Rittenhouse case as an extraordinary example of how the U.S. judiciary system is being destroyed by the new barbarians --the ones you are afraid to talk about.
I have always believed this ought to be the rule -- and then some. So for example if the police get a search warrant and tear everything in your business to bits -- and find no evidence of crime (or at least nothing close to justifying the damage done) then they should have to pay you damages as if the search had been illegal, straight out of the police budget.
It would be tempting to take it out of the prosecutor's own pocket too, at least if malice can be shown (as for example, Kyle Rittenhouse probably can).
It happens, though rarely. I know someone who was given millions following abuse by the investigative bureaucracy. Problem is - I don't know if anyone in that bureaucracy was held accountable as an individual.
Right. It's even worse than that. To the extent you are trying to go beyond compensating the accused and discourage weak or malicious prosecutions, the fallout of attempts to bring indirect pressure on district attorneys by paying related settlement amounts out of the general budget of their offices still falls mainly on both innocent staff who must now be furloughed and the general public who experiences an increase in disorder from a less resourced and capable prosecuting office.
You could try to take the money directly from the salary of the prosecutor or district attorney, but if you are aware of the problem of under-charging that is happening in Blue cities like San Francisco right now and resulting collapse in local social welfare, just wait and see how much worse it can get when prosecutors face the prospect of losing money out of their own pocket if a trial doesn't go their way, which it can for plenty of reasons even if the prosecutor didn't do anything wrong.
As with many situations, there really is no way to deal with the problem of needing virtuous people of high character to be your governing officials. If you can't trust or rely on most officials exercising wise, virtuous, fair, and disinterested judgment in the fulfilment of their duties, then they have no business having any discretion or power altogether, and should instead become mere administrative bureaucrats following codes of rules and regulations to the letter.
But there is no way around the fact that the most just regulation of human affairs requires case-by-case judgment by empowered virtuous officials, and that bureaucratic regimes with dumb one-size-fits-all / zero-tolerance policies are a very poor substitute for that, and something one tolerates because one can't do better anymore.
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'.
> term of incarceration at a fixed exchange rate
Except, they should have to do productive activities for society in exchange for that debt forgiveness.
Personally I would rather abolish prisons altogether and allow prisoners to be supervised to act as unpaid employees to someone who is competent at managing humans.
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.
All of the safeguards you mention turn on preventing false convictions. They do nothing to deal with the fact that having to go through the trial is itself a punishment.
As for low clearence rates for crimes, that only tells us anything if no charges are being laid even where police have found good evidence.
If police can't keep up, you probably need more and better police before you think about more prosecutions.
Much appreciated. Yes, I think you're right that that is weak / doesn't count as evidence for my thesis; ideally, we'd want to find some instrument re charging decisions over time (the recent spate of far-left DA's might be a good one) and then look at the impact on likely measures of the social effects of crime, but I got lazy and just flopped to the guard of the first thing I could think of.
I have proposed something like this for years, especially to make plea bargains less coercive.
My proposal is that the prosecution should have to pay the proportion of defense costs defined by "final sentence"/"maximum sentence for all filed charges".
Plea bargains are a serious problem of their own. If prosecutors can so overcharge you that you don't dare refuse a plea bargain then an indictment is as good as a conviction.
I would solve it by outlawing plea bargaining for felonies, so they have to take every case to trial.
I would also limit the overuse of pre-trial detention (as has happened to the January 6 defendants). I would propose that if you're behind bars for the greater of 30 days or 1/4 of the maximum sentence for the crime you're charged with, you get automatic dismissal of all charges with prejudice.
"if you're behind bars for the greater of 30 days or 1/4 of the maximum sentence... automatic dismissal of all charges".
Sounds right, unless you get automatic appellate review of all denials of bail, w/ court costs automatically billed to the prosecuting office.
Often bail isn't explicitly "denied" but is just set too high, for political reasons. Compare the $1M bail Kyle had to raise with the school shooter the other day who walked the same day.
Oddly enough, they did have this to some extent in some medieval Western European countries. If you accused someone of a crime and failed to prove it, you had to suffer the punishment for the crime instead. Obviously this is a bit harsher than we would advocate today. But even (especially?) in the high profile Rittenhouse case we see the prosecutor playing fast and loose with the rules requiring sharing of evidence in a timely manner with the defense. As a minimum, fundamental rules like this should be enforced with real penalties, which they almost never are today.
This kind of thing was natural when prosecutions were private affairs. When the state took over, it set the rules in it's own favour.
Yes, Arnold, you have a good point about distorted incentives. But it's just one of the many issues we can question about most legal systems (broadly defined to include rule-making and rule-enforcement). I'd have preferred a review of Huemer's book rather than focusing on Bryan's question. I'm afraid that since Huemer is a philosopher, his ideas about the legal system may be far from what well-intended politicians, lawyers, and economists would think as reasonable reforms.
Anyway, since the reform of the legal system is a big issue, I suggest you focus on the Rittenhouse case as an extraordinary example of how the U.S. judiciary system is being destroyed by the new barbarians --the ones you are afraid to talk about.
"the new barbarians --the ones you are afraid to talk about".
Yeah, until folks like Arnold start daring to such brats, they'll continue to torch the whole system.
I have always believed this ought to be the rule -- and then some. So for example if the police get a search warrant and tear everything in your business to bits -- and find no evidence of crime (or at least nothing close to justifying the damage done) then they should have to pay you damages as if the search had been illegal, straight out of the police budget.
It would be tempting to take it out of the prosecutor's own pocket too, at least if malice can be shown (as for example, Kyle Rittenhouse probably can).
It happens, though rarely. I know someone who was given millions following abuse by the investigative bureaucracy. Problem is - I don't know if anyone in that bureaucracy was held accountable as an individual.
"And the judges shall make diligent inquisition: and, behold, if the witness be a false witness, and hath testified falsely against his brother;
Then shall ye do unto him, as he had thought to have done unto his brother: so shalt thou put the evil away from among you.
And those which remain shall hear, and fear, and shall henceforth commit no more any such evil among you."
Deuteronomy 19:18-20
The only problem is the state doesn’t pay anything, the taxpayers do.
Right. It's even worse than that. To the extent you are trying to go beyond compensating the accused and discourage weak or malicious prosecutions, the fallout of attempts to bring indirect pressure on district attorneys by paying related settlement amounts out of the general budget of their offices still falls mainly on both innocent staff who must now be furloughed and the general public who experiences an increase in disorder from a less resourced and capable prosecuting office.
You could try to take the money directly from the salary of the prosecutor or district attorney, but if you are aware of the problem of under-charging that is happening in Blue cities like San Francisco right now and resulting collapse in local social welfare, just wait and see how much worse it can get when prosecutors face the prospect of losing money out of their own pocket if a trial doesn't go their way, which it can for plenty of reasons even if the prosecutor didn't do anything wrong.
As with many situations, there really is no way to deal with the problem of needing virtuous people of high character to be your governing officials. If you can't trust or rely on most officials exercising wise, virtuous, fair, and disinterested judgment in the fulfilment of their duties, then they have no business having any discretion or power altogether, and should instead become mere administrative bureaucrats following codes of rules and regulations to the letter.
But there is no way around the fact that the most just regulation of human affairs requires case-by-case judgment by empowered virtuous officials, and that bureaucratic regimes with dumb one-size-fits-all / zero-tolerance policies are a very poor substitute for that, and something one tolerates because one can't do better anymore.