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How and why the US Justice Department over-prosecutes

susiebright.blogs.com

41–50 of 130 posts

Re: How and why the US Justice Department over-prosecutes

#41
post #28

How can it be fixed?

How about expanding the right to council to equivalent resources? That way if the government spends a million trying to convict someone, they have to make an equivalent level of resources available to the defense.

The effect of this would be the government would be prosecuting either cheapest cases (read: defendants most likely to be intimidated, confused and railroaded with minimal effort, including weak, mentally unstable, drug addicts, etc.) or very high-profile cases on which careers are made. Other ones would be completely neglected due to high costs and low cost/benefit ratio, or delegated to the cheapest personnel government service can find.

Since pleading out is much less expensive that jury trial, the current trend of forcing defendant to plead out will become overwhelming - basically, a mere fact jury trial would mean complete failure for a prosecutor ("you let that sucker have jury trial and cost our department whole next year budget?! good luck getting promotion anytime this century!"). They would behave accordingly - given that by now we have 5000 federal crimes and more will be inevitably created just for this purpose, standard scenario would be "we got you for 95 counts of federal crimes, summarily you could get 280 years in jail. Even if jury throws out 90% of them, you are still in for 30 years. How about accepting this one 2 year charge on the cheap and we are done here and now?"

Also, government wouldn't usually spend a million. Locking down someone's assets costs nothing do the government. Setting excessive bail and denying him opportunities to defend himself is also very cheap. So this measure would create incentive to concentrate on such methods of winning the case - why bother with expensive forensics if you can bankrupt him with asset forfeiture and he'd have no money to pay for a lawyer that would ask questions requiring expensive forensics? It's not the question of money, unfortunately. It's the question of vastly asymmetric power.

Re: How and why the US Justice Department over-prosecutes

#42
post #11

Why is this on the front page? This is barely even about Aaron Schwartz -- he wasn't disabled, friendless, or prone to drooling for example. Less of these kinds of posts, please. That said, I'm glad it was here if only to read jamesagilar's pointing out that "aaronsw turned down a slap on the wrist plea bargain". Thanks James!

It is on the front page because this is happening in the USA every day, every hour. But we usually hear about it only when somebody high-profile enough is hurt by the criminal prosecution machine. But make no mistake of thinking the same machine doesn't hurt people 24/7 - we just don't hear about it often. Maybe if we did, we could get some way to fix it or at least make it less cruel and inhumane. Most of the readers here, I presume, are lucky enough to have very small chance of being pulled into the criminal prosecution machine unless they do something out of the ordinary - like Aaron Swartz did. But it still exists right next to us and we better not forget about it.

Re: How and why the US Justice Department over-prosecutes

#45
post #10

Earlier quoted context omitted.

As Lessig reported, the plea bargain would have meant pleading guilty to a felony. http://lessig.tumblr.com/post/40347463044/prosecutor-as-bull... In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial…

From what I understand, he committed a felony and would most probably have been labelled a felon either way. I don't see this as a reason to tie up government resources in a trial whose outcome is basically a foregone conclusion. I do not endorse what he did being a felony . But that issue is only marginally relevant to the discussion of the prosecutor's behavior.

He was accused of committing a felony. There's quite a difference.

Re: How and why the US Justice Department over-prosecutes

#46
post #21

Earlier quoted context omitted.

This is because the prosecuters are not human, they are preditors going after the weakest in society, it is much easier to score on their carreers than taking on the stronger. Here in Europe we know very well where this all leads to, my ancestors have lived through it numerous times, the last time in the 30's and 40's.

You should look up Godwin's law. Once you understand it you'll also understand why few thinking persons will take your comment seriously.

I'm sure "thinking persons" would have considered this, but just in case:

"Never forget".

Godwin's Law wants you to. Worse still his "law" encourages the mocking of those who want say if they think something is getting a bit Nazi. Which you have done by implying a disconnect between his comment, thinking persons, seriousness and understanding.

Why?

Perhaps so no one dares point it out if it looks like its happening again? Or something else? Who would want that, and why?

I'd prefer to be wrong, than get caught short. Citing this nonsense "law" is like getting people to shut up on so called "patriotic" grounds. It circumvents logic, reason and debate. Its silences people.

Look at it, it is Nazi in its self. Do and think as you are told.

Have to wonder, if we get more suicides of this type and people cite this case as a parallel too much, will that get a law too? Will people be told to shut up?

Re: How and why the US Justice Department over-prosecutes

#47
post #10

Slightly less sinister hypothesis: aaronsw turned down a slap on the wrist plea bargain. The prosecutor charged the maximum because it is a waste of time to take a guy to federal court over a $20k fine and a year of probation. You know that maximum about malice, incompetence, etc.? I'm not saying I _know_ for sure but it strikes me that most people think they are doing good in the world and I don't get why this prose…

As Lessig reported, the plea bargain would have meant pleading guilty to a felony. http://lessig.tumblr.com/post/40347463044/prosecutor-as-bull... In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial…

> As Lessig reported, the plea bargain would have meant pleading guilty to a felony

Felonies can be expunged. See Randall Schwartz's case, for example.

Re: How and why the US Justice Department over-prosecutes

#48

How can it be fixed?

Tricky, at the very least.

First, you have the problem that legislators have to outdo themselves in their "tough on crime" poses, leading to ever more draconian laws and potential sentences. Don't see a trivial way out of that apart from changing the political climate, but it's probably the biggest factor. Without the risk of completely out-of-whack penalties, the leverage of prosecutors diminishes.

'"We now have an incredible concentration of power in the hands of prosecutors," said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that "in the wrong hands, the criminal justice system can be held hostage."'

http://www.nytimes.com/2011/09/26/us/tough-sentences-help-pr...

Of course, the media could help by not hyping "ever increasing" criminality, which isn't true. Crime levels have been dropping not just in recent times, but pretty much throughout history, and are at historically unprecedented lows. Civic activism/awareness?

http://www.nytimes.com/2011/10/09/books/review/the-better-an...

Reduce or eliminate plea bargains. Justice should be justice, not a grimy barter deal. The ratio of guilty pleas to verdicts is now 30:1(!)

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?artic...

Adjust the incentives for prosecutors. Make these sorts of convictions and/or pleas less positive and/or drastically increase the disincentives for shenanigans that are found out.

EDIT: Have prosecutors, as public servants, be responsible for finding the truth, not for getting convictions. It is in the public's interest to get to the truth, not to convict or force guilty pleas of innocents.

Re: How and why the US Justice Department over-prosecutes

#49
post #45

Earlier quoted context omitted.

From what I understand, he committed a felony and would most probably have been labelled a felon either way. I don't see this as a reason to tie up government resources in a trial whose outcome is basically a foregone conclusion. I do not endorse what he did being a felony . But that issue is only marginally relevant to the discussion of the prosecutor's behavior.

He was accused of committing a felony. There's quite a difference.

Then he should have gone to trial.

Re: How and why the US Justice Department over-prosecutes

#50
post #47
post #10

Earlier quoted context omitted.

As Lessig reported, the plea bargain would have meant pleading guilty to a felony. http://lessig.tumblr.com/post/40347463044/prosecutor-as-bull... In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial…

> As Lessig reported, the plea bargain would have meant pleading guilty to a felony Felonies can be expunged. See Randall Schwartz's case, for example.

Oh yeah, I guess a felony is no big deal then. How foolish of Aaron.
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