The origin of the law of torture: A cautionary tale • Hacker News Board

Re: The origin of the law of torture: A cautionary tale

#11

Post by throwaway290 » Sun, Dec 17, 2023, 10:39 AM UTC

refurb wrote: post #2

The 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's not a threat of a "more severe sentence", it's a threat of a default sentence

The "default" is updated when you learn about plea bargain... You are now comparing options relative to plea sentence. If the best option "walk free" is uncertain even if you're not guilty (what if the other guy has a better lawyer or something) then plea sentence is the best certain option.

Re: The origin of the law of torture: A cautionary tale

#12

Post by KingMob » Sun, Dec 17, 2023, 10:42 AM UTC

refurb wrote: post #6

LightHugger wrote: post #3

Earlier 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".

> How is offering a lesser punishment "manipulation"?

It's part of a larger manipulative pattern.

Since you can increase the penalties for jury convictions to absurd levels, like the USA has done, even a "lesser" plea bargain punishment can still be more punitive than most nations' jury conviction punishments.

Plus, as the length of a jury conviction punishment increases, the threshold at which one's willing to risk a jury trial has to go up, thus pressuring people into taking plea bargains they might not under another country's judicial system.

Re: The origin of the law of torture: A cautionary tale

#13

Post by refurb » Sun, Dec 17, 2023, 10:55 AM UTC

thaumasiotes wrote: post #10

refurb wrote: post #5

Earlier 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? 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 co…

> the sentence associated with a plea bargain already is the sentence that is felt to be appropriate for the crime

That's not true. Plea bargains can be incredibly minor punishments versus the crime. Plea bargains are the flip side of the prosecutions options. If the prosecutor thinks it's a slam dunk, they have little incentive to offer a plea bargain at all - if they do, it may be a very severe sentence. If the prosecution thinks their odds of a win are low, they may offer a very lenient sentence, even for very serious crimes.

But who goes to trial comparing their outcome to other trials? A individual is looking at a specific situation - their own trial. They have no idea about the circumstances of other trials - whether defendants were truly innocent, or how much evidence the prosecution had. You may be charged with murder, and another defendant got a plea bargain of only 1 year in prison for manslaughter. But the prosecution has a rock solid case so your plea bargain is life in prison.

It's a singular decision of the defendant, usually with input from their lawyer. They'll need to determine their own likelihood of being found "not guilty" and decide if the risk is worth it versus the reduced sentence being offered.

Re: The origin of the law of torture: A cautionary tale

#14

Post by eviks » Sun, Dec 17, 2023, 10:55 AM UTC

refurb wrote: post #2

The 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…

The default sentence depends on the charges, charges depend on the persecutor, which are motivated to increase those to get the easier deal of a plea bargain, so it is exactly the much higher cost of a trial and a higher risk of a more severe sentence that is the selling point for the accused if you don't look at it backwards

Re: The origin of the law of torture: A cautionary tale

#15

Post by thaumasiotes » Sun, Dec 17, 2023, 10:58 AM UTC

refurb wrote: post #13

thaumasiotes wrote: post #10

Earlier quoted context omitted.

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 co…

> the sentence associated with a plea bargain already is the sentence that is felt to be appropriate for the crime That's not true. Plea bargains can be incredibly minor punishments versus the crime. Plea bargains are the flip side of the prosecutions options. If the prosecutor thinks it's a slam dunk, they have little incentive to offer a plea bargain at all - if they do, it may be a very severe sentence. If the pro…

> If the prosecutor thinks it's a slam dunk, they have little incentive to offer a plea bargain at all - if they do, it may be a very severe sentence.

You have no idea how prosecutors act. Slam dunk cases are pled. Most cases are slam dunks.

With plea bargains determining the sentence in 97% of cases, it isn't possible for those sentences to be felt to be lighter than appropriate. That would cause a political crisis.

Re: The origin of the law of torture: A cautionary tale

#16

Post by mrkeen » Sun, Dec 17, 2023, 11:06 AM UTC

infotainment wrote: post #8

This 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.

The writer didn't say that.

> The American legal system found a less expensive alternative. Like its medieval predecessor, it substituted confession for trial. The medieval confession was motivated by the threat of torture. The 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.

Re: The origin of the law of torture: A cautionary tale

#17

Post by mrkeen » Sun, Dec 17, 2023, 11:13 AM UTC

refurb wrote: post #13

thaumasiotes wrote: post #10

Earlier quoted context omitted.

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 co…

> the sentence associated with a plea bargain already is the sentence that is felt to be appropriate for the crime That's not true. Plea bargains can be incredibly minor punishments versus the crime. Plea bargains are the flip side of the prosecutions options. If the prosecutor thinks it's a slam dunk, they have little incentive to offer a plea bargain at all - if they do, it may be a very severe sentence. If the pro…

> If the prosecutor thinks it's a slam dunk, they have little incentive to offer a plea bargain at all

> 97% of convictions are based on plea bargains

Taken together, these mean prosecutors generally don't have good enough evidence to put people away, which is the thrust of the article: it's easier to threaten someone into a confession than to have a proper trial.

Re: The origin of the law of torture: A cautionary tale

#18

Post by southerntofu » Sun, Dec 17, 2023, 11:25 AM UTC

refurb wrote: post #6

LightHugger wrote: post #3

Earlier 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".

It's not just "can i beat this case"? It's also, "how much will it cost me?" and "how long will i stay imprisoned for before i'm found not guilty?".

Of course, there's the chance you're found guilty although noone would dare say you committed the crime (Leonard Peltier), or the chance that you'll submit to much harsher punishment than what was decided by the judge (Georges Ibrahim Abdallah). But even when you're white and you're not facing a political repression case, there's a good chance pleading guilty for a fine and a suspended sentence looks better than spending a whole year in jail awaiting the trial that will exonerate you.

There's plenty of research in that area, feel free to look it up.

https://www.npr.org/2023/02/22/1158356619/plea-bargains-crim...

Re: The origin of the law of torture: A cautionary tale

#19

Post by southerntofu » Sun, Dec 17, 2023, 11:30 AM UTC

infotainment wrote: post #8

This 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.

Have you ever faced custody and pre-trial detention? It's hard to imagine until you've gone through this. But yes, offering a definitely innocent person that was abused by the System the choice between two forms of punishment is some form of "torture".

Being manipulated by the cops into a fake testimony is torture. Having the cops fake evidence and their testimonies to harass you is torture. Remaining days in a room with lights on all day, shit all over the walls in a freezing cold or hammering hot, without access to a shower or better clothes, that's torture.

And that's when you're lucky. The less lucky ones have months or years of pre-trial detention, sometimes in isolation (which is a well-studied form of torture) before they can even defend themselves.

Re: The origin of the law of torture: A cautionary tale

#20

Post by southerntofu » Sun, Dec 17, 2023, 11:33 AM UTC

refurb wrote: post #2

The 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…

I feel like you are looking at it backwards. When the prosecutor proposes a plea bargain, it's usually because they don't have enough proof to get a proper conviction through a juge/jury, or at least it is so here in France.

A plea bargain is used to convict innocent people, by giving them a choice between a plea punishment, and the punishment of having to go through pre-trial detention and various forms of abuses before being able to prove their innocence. That the entire police-justice system works by treating you as guilty until proven innocent is crazy and is in itself a very strong sentence. That is, unless you are rich of course in which case pre-trial detention is likely non-existent and you can commit most crimes and get away with it.