The origin of the law of torture: A cautionary tale
daviddfriedman.substack.com
The origin of the law of torture: A cautionary tale
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Re: The origin of the law of torture: A cautionary tale
#2The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted.
This is looking at it backwards. It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence.
That distinction makes a difference.
The way the author looks at it is like how the government look at spending cuts. "Last year my budget went up 20% and this year it's only 10%, so you're cutting my spending by 10% next year??".
Re: The origin of the law of torture: A cautionary tale
#3The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted. This is looking at it backwards. It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence. That distinction makes…
It makes a difference in that one way is a useful psychological manipulation and one is not.
There is no difference in the way you seem to suggest.
Re: The origin of the law of torture: A cautionary tale
#4The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted. This is looking at it backwards. It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence. That distinction makes…
Given that 97% of convictions are based on plea bargains, why would you imagine that sentencing is calibrated based on the 3% jury trials? There are obvious political incentives for this not to be the case, given how much voters are annoyed by convicts getting off lightly.
Also, the main point is that confessions based on threats are much poorer evidence of guilt than a proper trial.
Re: The origin of the law of torture: A cautionary tale
#5The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted. This is looking at it backwards. It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence. That distinction makes…
Given that 97% of convictions are based on plea bargains, why would you imagine that sentencing is calibrated based on the 3% jury trials? There are obvious political incentives for this not to be the case, given how much voters are annoyed by convicts getting off lightly. Also, the main point is that confessions based on threats are much poorer evidence of guilt than a proper trial.
> Given that 97% of convictions are based on plea bargains, why would you imagine that sentencing is calibrated based on the 3% jury trials?
Because that's not how you measure options.
If I'm collecting a debt of $1,000 from you, and I come to you and say "hey, if you pay it this week, I'll settle for only $700", would you say "This person is stealing $300 from me!"?
Of course not. You always owed $1,000. This is an offer to pay less.
Just like those charged with a crime always faced a specific punishment. If you offer a lesser punishment, it's not a threat of a harsher punishment because you always faced it, even if plea bargains never existed.
Re: The origin of the law of torture: A cautionary tale
#6The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted. This is looking at it backwards. It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence. That distinction makes…
It makes a difference in that one way is a useful psychological manipulation and one is not. There is no difference in the way you seem to suggest.
How is offering a lesser punishment "manipulation"? As a defendant, it's simply a choice - "Do I think I can beat this case?".
If you don't think you can, then you take the lesser punishment.
If you think you can beat it, you decline it because the better choice is "no punishment at all".
Re: The origin of the law of torture: A cautionary tale
#7And then there was Guantanamo, which proves all this stuff in the article is far from being universally accepted.
Re: The origin of the law of torture: A cautionary tale
#8This seems like a really shallow take masquerading as a deep one.
The core assertion that offering a lesser punishment in exchange for cooperation is a form of “torture” strikes me as an extreme exaggeration.
Re: The origin of the law of torture: A cautionary tale
#9Earlier quoted context omitted.
It makes a difference in that one way is a useful psychological manipulation and one is not. There is no difference in the way you seem to suggest.
How is offering a lesser punishment "manipulation"? As a defendant, it's simply a choice - "Do I think I can beat this case?". If you don't think you can, then you take the lesser punishment. If you think you can beat it, you decline it because the better choice is "no punishment at all".
Because it encourages the threat of a far greater punishment.
Re: The origin of the law of torture: A cautionary tale
#10Earlier quoted context omitted.
Given that 97% of convictions are based on plea bargains, why would you imagine that sentencing is calibrated based on the 3% jury trials? There are obvious political incentives for this not to be the case, given how much voters are annoyed by convicts getting off lightly. Also, the main point is that confessions based on threats are much poorer evidence of guilt than a proper trial.
> Given that 97% of convictions are based on plea bargains, why would you imagine that sentencing is calibrated based on the 3% jury trials? Because that's not how you measure options. If I'm collecting a debt of $1,000 from you, and I come to you and say "hey, if you pay it this week, I'll settle for only $700", would you say "This person is stealing $300 from me!"? Of course not. You always owed $1,000. This is an…
This isn't related to your earlier comment.
You originally claimed this:
> It's not a threat of a "more severe sentence", it's a threat of a default sentence (the same sentence the accused would get if plea bargaining didn't exist at all). The plea bargain is an offer of a lesser sentence.
The plea bargain is an offer of a "lesser" sentence, where "lesser" refers to a comparison to the trial sentence.
It is not a comparison to the trial sentence from a counterfactual world in which plea bargains don't exist.
As ajb points out, given that all US sentences derive from plea bargains, the sentence associated with a plea bargain already is the sentence that is felt to be appropriate for the crime. In the counterfactual word, you'd expect the counterfactual trial sentence to be about equal to the real-world plea bargain sentence.