In 1984, a commission found that federal sentencing was too arbitrary (making us a "nation of men" rather than a "nation of laws") and so mandatory federal sentencing guidelines were enacted by Congress (the supreme court later made them not-quite-mandatory, but the restriction on judges is still pretty great).
However, judicial discretion was an important check against prosecutorial zeal, and the unintended consequence of reducing arbitrariness at the judicial level has been an increase in control at the prosecutorial level. Systemically, prosecutors are incentivized to put people away, as their careers aren't shielded like those of judges. We may be more a "nation of laws" than before 1984, but combined with punishments most people would consider unjust we've drifted toward being a police state.
In my opinion, if there's one thing to take away from this terrible tragedy, it's that we need a commission to study this systemic effect and recommend ways to make the justice system more just. I can't make myself blame the prosecutors involved when most federal prosecutors are similarly heavy-handed (and, quite possibly, were acting within a reasonable interpretation of the the law).
> I can't make myself blame the prosecutors involved when most federal prosecutors are similarly heavy-handed
I can. Just because there are 1000 bullies doesn't make each one of them less of a bully. The system has its constraints but it is still up some human to pick cases from the pile and decide if and how many charges to press.
Now it seems the country is a in a pretty good state if there are no harsher and more terrible criminals left to prosecute than a 25 year old downloading scientific articles, which even the original victim claims have been retrieved and there is no need to do anything.
Whoever authorized the prosecution of that case and spent tax money on it, and everyone else in between who _didn't_ say "Wait a minute, this is crazy, surely there are some cases to spend the money on" is responsible.
The trouble is, many, possibly most, people are prone to be bullies under the wrong circumstances. See the Stanford prison experiment, and Stanley Milgram's torture experiment.
When the entire system of incentives for prosecutors rewards bullying, extortion, and intimidation, and punishes leniency or compassion, we shouldn't be surprised by the results.
I agree with you. I have no better way of writing it.
This is not just about Aaron's persecutor but all persecutors behaving in this manner and I'm hoping she will be the first of many being taken out of office for good.
"I can't make myself blame the prosecutors involved when most federal prosecutors are similarly heavy-handed (and, quite possibly, were acting within a reasonable interpretation of the the law)."
A person who works to enforce immoral laws or immoral sentences is an immoral person and should be treated as such. We need direct accountability at every level, otherwise the buck is passed around in a circle indefinitely.
To reinforce your point, following the herd is not an excuse.
To take the most extreme example of this. The Germans have a word, Schreibtischtäter, which roughly means 'desk based murderer'. It was coined during the period when former NAZI officials were being tried for their part in the holocaust. As I understand it, it was used not only for people who literally signed death warrants, but also for people who did things like arranging the logistics of transporting people to the death camps. The relevance of this being that the wide scale systematic nature of the atrocity could only work if all these secondary people were complicit in it.
The wide scale systematic corruption of justice that is plea bargaining only happens because most prosecutors are complicit. While it is not genocide, it is, in effect, denying a lot of people the right to a fair trial, which is one of the founding principals of any modern society.
The article has is completely right. If the nominal penalty is 100 years and somebody gets 12 years after a plea bargain, that person is still locked away for a long time and the prosecutor can say "See, we're not so bad, we granted an 78% reduction of the sentence".
Pathetic.
As I said before, in most other civilized countries the maximum penalty is between 10 and 20 years prison (and that is for 1st degree murder).
While I agree many of our punishments are too harsh, it seems absurd to me that Anders Breivik, who murdered 77 people in Norway, only received a sentence of 21 years in prison.
Maybe because I'm American. Are Norwegians ok with this?
I am a Norwegian and this is to me a completely sensible decision. I agree with the intent of the law and don't think there should be exceptions for extreme cases.
The other replies have outlined the fact that Breivik won't get out of prison unless he happens to not present a danger to society. Punishment has three purposes: Punishing the criminal to deter repeat offenses, having a preventive effect on other criminals and protecting society. All of these reasons are sufficiently represented after Breivik's trial.
Increasing the term to life with no parole wouldn't have any effect except increase the stakes for someone who happened to be wrongfully convicted. 20 years in prison is in effect a life sentence in the sense that the life of the criminal would never be the same afterwards. And as others have said, our justice system is focused on rehabilitation, not "getting back at" the criminals. People who do these kinds of violent crimes don't care if the sentence is 20 or 100 years.
I have to say that as someone from the UK I've been really impressed with the level headed approach taken by Norway to this case.
As any court lawyer will tell you "Hard cases make bad law" - what we suffer from in the UK is a very reactive approach to law making where individual exceptional cases often drive the creation of laws through a media driven frenzy to have the government be seen to "do something". More often or not, as Norway has demonstrated, the right thing to do is to simply apply the laws that already stand.
I am impressed myself. Actually I find it really surprising that there haven't been more angry voices shouting for blood and that reason has won out. I have never seen a high-profile case play out in this way before, and I am really happy that the Norwegian people is largely standing by its principles.
Well said. The distinction Americans (myself as one of them) seem to have lost is the one between "rehabilitation" and "revenge."
We call prisons "correctional facilities" because at one point in time their purpose was to correct the behavior of offenders so that they could be reintegrated into society. Today they would be better termed "revenge facilities", because 1) nobody who enters a run-of-the mill American prison for any appreciable length of time is going to leave a productive member of society, and 2) as the Swartz case aptly demonstrates, there's no longer a sense of just and fair punishment, only maximum, nuclear, life-crushing revenge. (30+ years for downloading academic documents, millions of dollars for sharing a handful of songs on Kazaa--and that's just the HN-flavor "crimes".)
I really applaud the Norwegians for staying true to their principles in the face of a monstrous tragedy.
We really only have two options. Removing the convicted criminal completely from society forever - or rehabilitation. We have chosen the latter.
The horrible crime Breivik is convicted of is far beyond anything our lawmakers ever took into account, so this is a painful edge case, testing the bounds of our judicial system. Yet, apart from emotional outcries in the days and weeks immediately following the atrocities, changing the system has not been on anyone's agenda.
That said - if the authorities consider the rehabilitation to have failed, and the criminal is still dangerous after his sentence is served, they can keep him locked up for another ten years. And another ten years. And another ten years. But that is not punishment.
If he after 21 years is considered harmless he will be let out. And we must, reluctantly, accept that this is the price we pay for our low crime rates and low number of repeat offenders.
Michael Moore visited one of our minimum security prisons, where criminals may serve the last parts of their sentence. They are being slowly re-integrated into society through useful work and humane living conditions:
Be careful not to apply this to generally. American society is not like Norweigan society - we have a higher division between rich / poor, fewer social safety nets, and higher crime rates. Not only that, our prisons (because of how we run them) are basically places for criminals to mingle with other criminals and become better criminals. Not to mention we have a societal bias against anybody who came out of prison - for the aforementioned reason. We know our prisons don't rehabilitate.
I'm not sure simply applying the Norweigan solution would actually work here - there needs to be a more systemic societal change in order for that to work.
Having said that, consider me impressed with your society's level head.
Of course. The American system is in dire need of reform in the direction of actual rehabilitation, but adopting a carbon copy of the Norwegian system overnight would be a terrible idea. The current economic system of the United States pushes millions of people into a level of poverty completely unheard of in my own country. To this class, pursuing a lifelong criminal career may seem to be a reasonable option.
You face the same issues in the gun control controversy. I'm very much in favour of liberal gun laws in Europe. But there is a huge difference between giving guns to hunters and recreational marksmen - and giving guns to inner-city youth participating in organized crime, impoverished lumpenproles or xenophobic, rural jingos.
For what it's worth, the 'xenophobic rural jingos' in and of themselves don't cause a lot of gun crime. The drug trade is the primary source of gun violence in the US.
>>>> That said - if the authorities consider the rehabilitation to have failed, and the criminal is still dangerous after his sentence is served, they can keep him locked up for another ten years.
Hmm... how that works I wonder? I.e. somebody can be kept in the prison forever even if original sentence was, say, 10 years? How do you know if one is rehabilitated or not? It's not like criminal psychopath would have any problem telling whoever is in charge any words they want to hear and present as "sincere" picture of rehabilitation as he'd be required to get out.
And how keeping somebody in prison for 10 years is not punishment?
The punishment can only last 21 years. If someone is kept in preventive detention the only puropose is to protect other citizens. The best comparision would be forced treatment of the criminally insane. Once they're deemed fit to return to society, they are free to go.
So it is basically the same as a life sentence, but with possibility of parole after 10 years with yearly parole hearings. I wonder what is the actual terms served (including those dying in prison) for crimes like aggravated murder, terrorism, etc.
He got "forvaring": a sentence with nominal duration, but which can be extended indefinitely [5 years at a time] if, after the expiration of the current period, the danger of repeating the offence still exists [i.e., the offender is still deemed to be dangerous to the society].
I believe that he's, for all practical purposes, locked away for lifetime. Given what happened to the 1st team of psychiatrists who evaluated him [0], I don't think any public official will be brave enough to declare ABB being "safe" for the society, ever.
[0] The 1st team declared him insane and got a huge amount of public criticism, which also lead to further debate about the role/power of psychiatrists in the courts. On a scale 1-100, they gave him a score that basically placed him in the "vegetable" range. It was unacceptable for the public that a "vegetable" can plan for so long such an attack. Obviously, the court had the same problem, and appointed another team of psychiatrists.
He was smart individual, who believed in his cause and acted upon it with his best intentions.
I can not imagine why he would be insane other than his beliefs do not resonate with widely accepted beliefs.
In my country if you say to doctor that you believe in aliens, you are labeled mentally insane and proscribed some mind numbing drugs.
Still, I pay tax for brave men and women to go and kill people in other countries and that is obviously fine.
I can not imagine why he would be insane other than his beliefs do not resonate with widely accepted beliefs.
How you personally define insanity might not make this apparent, but what you've said is a tautology. The inability to conform to societal norms is basically the yardstick for every mental illness.
I had a hard time wrapping my head around it when the mental disorders was defined to me as any inability to function within the bounds a society, because there are people on the mental disorder spectrum that can competently (if imperfectly) navigate society most of the time. Unfortunately the Wikipedia definition [1] doesn't capture the idea as well as I wish and I've completely forgotten how I used to articulate this concept back in the psychology/sociology classes I took.
Tautology it is, I never knew such a word existed :)
Thank you.
Recently I started to learn more about "mentally ill" people and it have brought me to understanding that what they say is most sane thing I ever heard, they do not hide or pretend or make up story just to go on and work/pay taxes/watch another TV series.
They Say directly what world is afraid of, what everyone wants just to hide, put away. And they act upon it if you ignore it. And in a sense, they express all our problems we want to stash away. They will continue do so, until we take all the monsters out of closet and will have a good talk about it.
I also do think that his acts are a consequence of his sincere beliefs and feeling of being powerless and censored [0].
And this is where the issue of being insane gets shady. A person acts from their beliefs, and the question is: how deviant these beliefs must be before the person is deemed insane? Not only that, but you must also ask for the justification for the belief.
Believing you'll wake up in the morning when you go to sleep: sane. (Justification: no evidence to the contrary; for a healthy person.)
Voices telling a schizophrenic person to murder somebody: insane. (Because the justification isn't "real" to "normal" people).
Believing that your homeland is under silent invasion of Muslims, with the help of politicians [1]: unknown. There are arguments both ways.
Believing that massacre/violence is the only remaining for you to escape censorship [0] and be heard: unknown, but probably insane. He probably could have attained a larger audience and influence had he been a better writer, like "Fjordmann" [extreme right opinions, no history of violence]. (In other words, he blamed external circumstances ONLY, instead of also trying to find the fault within himself.)
[0] As a foreigner who has lived in Norway for 8 years now, I have probably a different view than most Norwegians. Immigration is a touchy topic here, and "censorship" in the media is real, but very subtle: Whenever somebody criticizes immigration policies, even if it's most obviously NOT directed against a particular group, they're often dismissed as "racists", putting the end to the discussion. (Pure ad-hominem argument.) It doesn't help that such labels often come from members of the 3 currently ruling parties. (And remember that ABB's goal was to inflict long-term damage to the future development of a prevalent currently ruling party - Arbeiderpartiet.)
So, censorship is present here, only that it's in the form of public bullying and ad-hominems. There's rarely somebody who'll risk being called "racist" two times in the public.
It's almost impossible to have a factual, objective debate about immigration here. A debate which is truly needed, see the next footnote.
[1] Norwegian media paint an extremely biased picture of (muslim/african) immigrants here, in that that immigrants are most often mentioned in negative context. Also, there's almost a class difference in crimes: east europeans are thieves, burglars, pickpockets; africans and muslims are murderers, robbers, rapists.
Then they write about how police has difficulties keeping them out of the country, and you only rarely get to read about immigrants that get deported because they are criminals (yes, it happens very much!). On the other hand, they write often about cases where decent (law-obiding, well-integrated) foreigners get deported because they broke the "buerocratic" immigration rules, or were "just" illegal immigrants.
The picture painted by the mainstream media could be summarized as such: "The government's immigration policy is to throw out decent, law-obiding foreignesr, and to protect the worst of criminals."
You rarely get to read about "immigrant success stories" in the mainstream media, even though most immigrants end up being "ordinary, boring (as in unexciting, average) people".
[2] Also, in recent issue of "Morgenbladet", there was an interview with a left-oriented person (forgot the name) who declared himself a communist. His theory is that the governments of the EU indeed do stimulate immigration from 3rd world countries, but the ulterior motive is to split the working class and lower labour costs. He is not against immigration, though, but for more cohesive society.
So, is he insane for believing that Europe is under muslim invasion / in silent war with them (one of the claims that he was deemed insane for)? I don't friggin' know.
Norwegian media bubble (Aftenposten, Dagbladet, VG) is a dangerous one. There are other newspapers, sure, but much lesser read.
To conclude with my last $.02 for what they're worth.. I'm far from being an expert in any of {sociology, psychology, media}, but in my eyes, ABB and his actions are by large the product of:
1. Norwegian mainstream media, i.e., their way of covering immigration issues,
2. The inability and/or unwillingness of politicians to have an orderly debate about immigration, not only with their citizens, but also between themselves. You know there's something wrong when those throwing "racist" labels (instead of arguments) win.
As you surely know, Breivik will be in a closed psychiatric ward after the end of his sentence until he is not a danger anymore, which means until he dies. In a justice system aimed at the safety of the public and rehabilitation, this makes sense. The public is safe and shit like plea bargain coercion is impeded. This is why I consider the Norwegian system a good one (Austrian here).
Exactly. And that is a very important distinction.
After 21 years he will have served his term. If afterwards he cannot be released into society he needs to be kept separate, but that is no longer a punishment. As such he will (or should) be treated well during this "safe keeping" following his sentence.
I gather most of them are, but you're missing part of the sentence: he's been sentenced to "forvaring", aka "indeterminate penalty". This means a baseline 21 years (as 21 years is the maximum determinate penalty outside of crimes against humanity) but it can be extended indefinitely, 5 years at a time.
It's not a penalty though. People who are severely mentally ill wouldn't just be allowed to wander about in society either. If someone poses a thread to them selves or others, then they would be kept under guard. But that is not to punish them.
How is this better than a life sentence? I think it's kind of disingenuous to pass this off as a "Well they're staying true to their morals!" if the end effect is that this guy spends his entire life in prison, with no chance of getting out in 20-30 years.
Those sentenced under forvaring can apply for parole after 10 years, and after 21 years the case is reviewed every 5 years (to decide whether the inmate is still dangerous to society) and parole can be applied for every year.
There is very much a chance of getting out in the timeframe, if the inmate reforms.
That's not accurate. He got the maximum sentence in Norwegian law, and the imprisonment can be extended indefinitely - it's unlikely he'll ever be released.
What do you propose? Putting the man in prison for life, or even executing him, is still poor punishment for killing 77 innocents, many of them children.
No sentence that can be carried out will match the magnitude of his crime. So why should 21 years be "absurd", but life in prison, or death, be "not absurd"?
I have no statistics, but I think the penalties in the States are much higher than in other countries. And my hunch is this is more of a historical/cultural thing, than any real cost/benefit analysis on what is best for society.
20 years for 77 murders, equals 3 months for each life. That also excludes all the other crimes he committed. If he knew he would get 20 years per person would he have murdered anywhere near 77 people? Plus how do the families of victims feel if their lives are only worth 3 month each?
I'm sorry you got downvoted, but you are in a nutshell describing the vast difference in the purpose of the justice system between Northern Europe and the US.
You frame it as a question of headcount and worth and vengeance. And from that standpoint you conclude that the vengeance exacted on Breivik was not enough, given his crimes.
But over here, the purpose of punishments in the justice system is ultimately about protecting society and rehabilitating criminals. Vengeance plays no part. And if he can be a productive member of society again after rehabilitation in prison, that's better than him taking up resources as a prisoner.
If its just about protecting society and rehabilitating why is the recommended sentence longer for murder than for say rape? The simple answer is that murder is seen as a worst crime, so you serve more time. So how can killing 77 not be worst than killing one person? There is more to the justice system than just protecting society and rehabilitation. If breivik was fully rehabilitated and no longer a threat after one year why not let him out?
> If he knew he would get 20 years per person would he have murdered anywhere near 77 people?
"In for the penny, in for the pound"?
If you get 20 for each, then after the 3rd or 4th you may as well go for as many as you want. Larger penalties don't discourage that sort of event at all.
Do you think he kept a head count and had set a limit beforehand based on the expected prison sentence? According to himself, he didn't expect to get out of there alive, and was prepared for life inprisonment if he did.
The dominant version of American plea bargaining makes simi
lar demands [to the Inquisition]: it requires the prosecutor to usurp the determinative and sentencing functions, hence to make himself judge in his own cause. I cannot emphasize too strongly how dangerous this concentration of prosecutorial power can be. The modern public prosecutor commands the vast resources of the state for gathering and generating accusing evidence. We allowed him this power in large part because the criminal trial interposed the safeguard of adjudication against the danger that he might bring those resources to bear against an innocent citizen-whether on account of honest error, arbitrariness, or worse. But the plea bargaining system has largely dissolved that safeguard.
I don't understand why the system works this way. Shouldn't the goal be to achieve justice? I.e. if someone committed a crime that actually deserves 20 years in prison, why should the government settle for only 2 years? And if the person is innocent of any real crime, why should he do any time?
Instead it's based around some kind of competition of prosecution vs. defense, so they can compromise on smaller prison terms. It probably save everyone lots of money, but I don't see the where the justice is. Maybe if they had a simpler and less money-dominated legal system (with less lawyers), they could try to achieve real justice.
Ahh, but the goal isn't to achieve justice, at least not for all the participants. A prosecutor's goal is to get convictions and/or pleas, if possible at minimum cost.
In Germany, for example, the prosecutor is primarily obliged to get at the truth. Furthermore, prosecutors have no discretion as to whether to prosecute, any major offense must go to trial, so there is nothing the prosecutor could offer. For the same reason, there is little incentive for the prosecutor, because trials with guilty pleas (which still happen quite frequently) are only somewhat shorter than trials without them. The judge still has to consider all the evidence, of which the guilty plea is just one piece.
On the other hand, procedures are such that trials are dispatched quickly at reasonable cost. There is virtually no room for the procedural/technical shenanigans that drag out litigation in the US and make it so expensive.
> On the other hand, procedures are such that trials are dispatched quickly at reasonable cost. There is virtually no room for the procedural/technical shenanigans that drag out litigation in the US and make it so expensive.
That's the key issue. If legal costs weren't so high, they could try to achieve actual justice. Also, if it weren't so dragged out, people could get back to their lives more quickly. Even if someone did commit a misdemeanor, why should they have to spend 5 years with it hanging over them, not knowing what the verdict will be?
Suppose that you're The Man in charge of a criminal justice system, and let's pull numbers out of a hat. A trial takes 5 court-days, you have one courtroom, and you've got 100 cases to try this month. What do you do? You can't just let the backlog of cases get longer and longer; the law says you've got to give everybody a "speedy and public trial". Dropping most of the cases would be unsatisfying, and would probably get you kicked out of office by an angry public. Again, what do you do? You look for a third option, or you get replaced with someone who will.
The main thesis of Torture and Plea Bargaining is that plea bargaining became widespread as a quick, easy alternative to increasingly long, expensive jury trials. In order to get people to give up their right to trial, you coerce them with the threat of excessive punishment. And the reason this keeps on happening is because it's a lot easier than major reform.
3. Increase the number of hours judges work. Many work half the day and don't work every working day.
4. Provide the option of night court. Even evening court would make a hell of a difference.
5. Remand more cases to municipal courts, which are less busy.
6. Reduce the number of law enforcement agents.
7. Remove the myriad laws which serve little purpose other than to incarcerate the unlucky.
8. Shall I go on?
There are a ton of solutions, but plea bargain is a very special solution. It allows the prosecutor to pat himself on the back and get wonderful stories about him published in the press. After all, every plea bargain is a conviction and with a 90%+ plea bargain rate, guess who looks like a hero? It really just makes me sick. Nothing will happen until we all begin to believe that there are better solutions and that they are right in front of us.
Throwing resources at the problem is expensive, and runs into budget problems. Reducing the number of police is politically hard to do. Loosening the laws -- or, as your political opponents will inevitably call it, "being soft on crime" -- is similarly difficult.
The most difficult question here is not what we want to change, but how to change it.
If it was easy, it would have been done. The only things in life worth doing are hard.
> The most difficult question here is not what we want to change, but how to change it.
Oh, this one is super simple. The next time you get a parking ticket, speeding ticket, criminal complaint, etc.
Don't check the "guilty" box. Go to court. When the nice prosecutor tells you he'll help you out and waive most of the penalties if you only make a small donation, say "No, thank you. I want a trial." Get your trial. You'll probably lose. And that's fine.
Because if even 10% of us do this ... their entire corrupt system will implode on itself. Assert your rights and the system will revert to the way it was intended to work. No, it's not easy. Yes, it requires personal sacrifice, mostly paid with your time. But it is simple. And it does work.
I haven't pled guilty to any ticket in a very long time.
Number 7 with bells on it! So many laws on the book just waiting to be used against you should you be unlucky. Either enforce them all, all of the time (evenly too, including on the top end of town) or repeal them. If in doubt, repeal them.
if someone committed a crime that actually deserves 20 years in prison, why should the government settle for only 2 years?
Part of the theory, as I understand it, is supposed to be the question of the strength of the case. E.g., if the prosecution believes the defendant is guilty but is only 50% sure they can secure a guilty verdict, offer a plea for 10 years.
It's just the opposite of why a defendant would take a plea bargain. He has 20 years levied against him, but he is only 20% confident he can win in court, so 10 years might look attractive.
Trouble is, if the prosecution has the discretion to increase the charges and make the sentence run longer, they can manipulate the payoff and thereby force the "bargain" to be the allegedly just sentence, with the threat of an unjust sentence to force the defendant's hand.
My guess as to the logical basis for plea bargaining is the notion that there's two types of criminals.
Type A criminals see nothing wrong with hurting others through criminal actions, and will not hesitate to do so if they believe it will get them material benefits and/or thrills (and think they can get away with it). They have no conscience or restraint. They are a danger to society and should go away as long as possible. Think of someone who kills a family member to collect life insurance money.
Type B criminals are basically ordinary people who are careless, make a bad decision, aren't aware that a certain action is illegal, or perhaps are consumed by emotional passion. They genuinely regret their actions and the consequences thereof. Think of a drunk driver who accidentally kills a pedestrian.
The theory behind the guilty/not-guilty plea is that Type A criminals will never confess, since they have no conscience or remorse. But Type B criminals will want to try to become a good person again, and the first step to this is admitting their past mistakes.
That's the theory. It doesn't always match reality. For example, the Type B criminal may be so troubled about what he's wrought that he blurts out a confession before getting a plea agreement in writing, in which case the state can still throw the book at him. Or an innocent person might confess as purely a risk mitigation measure: If you were some alternate universe's Aaron Swartz, you decided not to commit suicide, and you had a choice between pleading and getting guaranteed 6 months, or having a trial and a 50% chance of a not-guilty verdict but a 50% chance of 35 years in prison, you might be very tempted to choose the former.
Interesting mental exercise: I arbitrarily set the odds of winning a trial at 50-50. What do your odds of winning have to be before you choose to roll the dice?
To the degree that your contention is true, we can call a prosecutor "bad" who turns B's into A's through careerism or other motivation to intransigence. That some prosecutors will seek to decide for themselves who is an A and who is a B is an occupational hazard for them, and politically I would call it a form of mental illness.
I recall reading a critique of the US prison system which said it has a tendency to turn B's into A's. I'm not sure how true this is, and I can't quite recall the exact mechanism which was outlined -- I think it was something along the lines of giving B's months or years of 24/7 exposure to an environment where being an A is common and socially acceptable.
I say 50%; you say 80%. We could both be right. Here's why:
The odds you would use in the grandparent post's calculation would be different from the average conviction rate, because you'd have knowledge of the specific facts of your particular case, which would affect your estimate.
Despite all the noise HN's made about this case, I actually believe that most of the people who are punished by our justice system (1) are actually guilty of the crime(s) they're accused of (Aaron probably was), and (2) don't have mitigating factors that might cause the case to be dismissed by the judge when he/she becomes aware of all the facts, acquitted by a sympathetic jury, given a small fine or other slap-on-the-wrist sentence, or successfully appealed (Aaron's case clearly did have such mitigating factors).
Let's say hypothetically that, of every 100 defendants who go before the court, W=70 of defendants are rightfully convicted, X=10 are wrongfully convicted, Y=10 are rightfully found innocent, Z=10 are wrongfully found innocent. I'm using the term "innocent" here to lump together category (1) above, "factually innocent" (he/she didn't do it) and category (2), "morally/technically innocent" (he/she did it, but it shouldn't be a crime / sentence is far too harsh / prosecutor/police tactics were unconstitutional / jury didn't believe the evidence was good enough / good defense attorney managed to inject reasonable doubt / jury nullification [1], etc.)
Let's say you're being prosecuted. You know the above numbers (or they're your best estimates based on the available data and reasonable modeling assumptions). You know you're in the "innocent" category, that is, that you'll either be in X (wrongfully convicted) or Y (rightfully found innocent). Your chance of being wrongfully convicted is thus X/(X+Y) = 50%, as I stated.
But from the point of view of all cases, the overall conviction rate is (W+X)/(W+X+Y+Z) = 80%, as the parent stated.
The above numbers aren't based on any actual facts; they're made up to agree with both the parent's stated 80% number for overall conviction rate, and the grandparent's stated odds of a particular defendant's chance of winning of 50%.
These computations are an example of Bayesian reasoning [2].
That might make sense for type B criminals, but type A criminals may still be choose to get away with the lower sentence. And it doesn't address the issue of innocent (or mostly innocent) people who confess to a crime they didn't commit. I don't know how common that is, but that's a big deal.
They aren't in charge of it, per se, but the lobbying by them and the prison workers unions are definitely in large part responsible for how insane it is here, as opposed to literally any other modern democracy.
There are other factors too, of course. But the perverse societal incentives of the American "prison-industrial complex" are a powerful (and malignant, in my view) force.
I don't understand why the system works this way. Shouldn't the goal be to achieve justice?
You will never understand any system run by humans unless you understand the incentives that the humans running the system have. And those incentives are rarely what people claim in public.
In theory prosecutors exist to see justice done and the laws of the USA enforced. In practice those laws are passed by politicians to give vested interests (eg the copyright industry) tools to accomplish what they want. And prosecutors in turn are motivated to demonstrate their ability to secure convictions - the more numerous and stricter the better.
We are lead to think that courts are about justice. They are not. They are about creating a predictable (if arcane) set of rules understood by the legal profession. This set of rules is based on a ritual verbal combat. Originally this was a physical combat, and God was supposed to decide. However all vestiges of the actual physical combat have now been lost. (The last case that I'm aware of in any common law jurisdiction where a case was settled by willingness to engage in actual combat is http://en.wikipedia.org/wiki/Ashford_v_Thornton in 1818.) Ironically many lawyers and justices believe that an adversarial system actually does result in justice, while at the same time studying all of the ways to get the outcome you want regardless of the merits, and acknowledging the advantage that a good lawyer provides.
The whole system is complicated by the fact that it is in theory accountable to the people. And from time to time the people do get upset enough at how things work that we put enough pressures to cause the system to be modified. Thus we create the Constitution, which is supposed to limit power.
However the problem is that the limitations are inconvenient to those in power, so they are inevitably eroded. Thus the ability of Congress to regulate commerce between the states, with the Indian tribes, and with foreign nations eventually becomes the power of Congress to regulate anything that touches on commerce in any way. (Some of the laws that Aaron was charged under were justified in this way.) Your Constitutional protection against unreasonable search and seizure is too inconvenient, so courts accept that your possessions can be sued, and since you're not being sued, you have no standing to protest as your possessions are seized by the government. (This is not directly relevant to Aaron's case, but it is a travesty.) And, of course, the people cannot protest what they do not know about, so government passes laws directly and indirectly that are not available to the people. For example find me the law or regulation which requires that you show ID in order to get on an airplane - you can't. (This is an issue that Aaron cared deeply about - see the PACER incident.)
Aren't these outrages? They should be. But apparently they are not outrageous enough for the public to try to change them. And so the bar continues to inexorably move in the direction that incentives point insiders towards.
Sorry for the rant. Apparently you hit a nerve that I didn't know I had.
> Your Constitutional protection against unreasonable search and seizure is too inconvenient, so courts accept that your possessions can be sued, and since you're not being sued, you have no standing to protest as your possessions are seized by the government
> Your Constitutional protection against unreasonable search and seizure is too inconvenient, so courts accept that your possessions can be sued, and since you're not being sued, you have no standing to protest as your possessions are seized by the government.
It's possible to sue inanimate objects? How des said objects defend themselves? A publicly appointed defense lawyer, or am I missing something?
What Attorney Stephen Heymann did to James and Schwartz is a very old story. I can't believe nobody has brought up the parallel yet, but this story is very much like Les Miserables. In "Les Mis," an ex-convict who decides to lead an upstanding life is dogged by an law enforcement officer who sees the ex-con's bending of the rules to help others as criminal.
Attaching serious criminal charges to the act of feeding an automated system input that the automated system does nothing to verify is crazy (that is, it isn't wire fraud to use a variety of email addresses on a system that does nothing other than note the address that was input).
The indictment uses language like "Although a MAC address is intended to be a permanent and globally unique identification". And yet nobody serious about security has any expectation that a MAC address is permanent or globally unique (it is well understood that they aren't particularly useful for authentication).
If the government wants to attach serious charges to accessing computer systems, there should at least be some sort of notification that the provider of the system considers the system to be protected under federal law, not this running backwards to say that accepting an email address or having the capability to block a MAC address somehow makes a network 'protected'.
To be perfectly clear, I'd be entirely fine with a broadly applicable lesser charge that applied more generally to computer tampering, for cases where the prosecutor wanted to argue that a user exceeded intended access and such.
> The expert witness that was working with the defense states that JSTOR did not require passwords from computers on MITs network
The problem with this logic is that it assumes the content hoster has the responsibility to actively keep attackers away. Sure, it's a great idea, but is it really their duty to stop from being victimized?
If a bank left their assets in the middle of the lobby they'd be stupid, but it would still be theft on the part of the robber when it inevitably gets stolen.
A better analogy might be that having stolen some magazines from a bookstore (a surprisingly large number of magazines...), the thief was charged with breaking and entering and safe cracking, rather than shoplifting.
And people that attach computers to the public internet absolutely do need to be treated as responsible for the information that those computers transmit. If they want to claim that they intend to limit access to the information, they need to take meaningful steps to actually put limits in place.
I don't mean to say that there should be no recourse in situations where intended access is exceeded, I mean that the bar for a 30 year felony needs to be a little higher than "we didn't intend for our system to be accessed in that manner".
> And people that attach computers to the public internet absolutely do need to be treated as responsible for the information that those computers transmit. If they want to claim that they intend to limit access to the information, they need to take meaningful steps to actually put limits in place.
That goes entirely against the principles on which activists claim the Web is based on. Instead of a democratic network where anyone with an IP address can fire up an httpd and be (in theory) just as equal as any other DNS entry, you're saying there needs to be technical measures put in place to enforce an "honor code". What's next, DRM on mp3 files?
But either way, they and MIT both took many "meaningful steps" against aaronsw, and he sidestepped every one.
> I don't mean to say that there should be no recourse in situations where intended access is exceeded, I mean that the bar for a 30 year felony needs to be a little higher than "we didn't intend for our system to be accessed in that manner".
Luckily, 30 years wasn't the sentence in question, even with the heavy-handed prosecution in place, and what transpired was more than "our system was accessed once in an unintended fashion". So the bar probably does need to be moved, but it's not as if he simply wandered near the wrong Wifi hotspot and accidentally mirrored a website...
I'm saying if you choose to configure your server to answer a request, you had better not come back later saying you didn't mean to answer that particular request. It's exactly in the spirit of the web, publishing something at a url is a grant of access to whatever was published.
When Russian authorities jailed Pussyriot for dancing on a church altar under the charges of "hooliganism and inciting religious hatred", it is clear that the authoritarian streak had gone too far.
Many people have thought Swartz's crime was to download documents. But actually, JSTOR has stated they had settled with Swartz and it was not a problem and not to press charges.
What the government actually did is to charge Swartz for WIRE FRAUD. This is for plugging his computer into the MIT LAN. WIRE FRAUD is reserved for people with criminal intent. Aaron's actions were as criminal as Pussyriot's dancing in miniskirts to draw attention to Putin's hand on the Russian government.
The US government will continue to spin this as "hacker" and "document download". Do not get drawn into this. The correct framework to think about this is when Gandhi and his supporters got clobbered by the British police for breaking a salt-making monopoly. To Gandhi, the premise was simple: salt comes from the sea and no one owns it. A law that grants monopolistic rights to limited organisations for something as universal as the sea has no justification.
It is important to note that Aaron was not talking about giving away MP3s etc. He pointed out that scientific papers that were already in the public domain were starting to get locked up behind pay walls. There is nothing right about this. When he started to figuratively walk to the ocean to make his own salt, he was charged with criminal trespass.
As a footnote, after the Salt March - where hundreds of non-violent protesters were beaten up by the police - the British was shown up to be bankrupt of moral authority. This, is the threat the DOJ faces today.
We are not allowed in this country to look across a landscape of lawfully operating organizations and businesses, choose the ones we dislike, and execute plans that abuse their computers to bring about their destruction. That is what Aaron was essentially charged with doing, and there was not NO evidence that that was his plan.
If you think educated people are upset about closed academic publishing, you should talk to the millions of Americans (I AM NOT ONE OF THEM) who are upset about abortion. Better yet, you should listen to their rhetoric, because they don't think they're liberating science and culture; they think they're standing athwart engines of mass murder. They too would like to abuse computer systems to hasten the demise of disfavored organizations, for instance by publishing patient lists stolen from computer systems.
No part of observing this means I have to accept that Aaron was handled reasonably by the prosecutors, that I believe Aaron should have been at any risk of serving prison time, or even that I think that justice demands he walk away with at least a felony conviction. Equivalently, it does not mean that 'tzs is an authoritarian.
Using the "colour of your bits"[0] metaphor, keeptrying is describing the bits, and you are describing the colour.
So, what was actually done, as keeptrying says, was download a few files on a semi-public network, but as you say, the "crimes" associated with that action can be much more significant than looking at what was done out of context.
It's much less than 35, and less than death... and it and probably indicates that in Aaron Swartz's case, the accused never entertained the idea of pleading guilty.
Getting kicked in the shins is better than a bat to the skull. Would you be surprised when people start looking for alternatives when offered that "choice"?
The options were to spend 35 years in jail or to spend 6 months + plead guilty.
Are you saying that he chose to kill himself rather than spend 6 months in jail?
I don't know what went through his mind... but I think it's unlikely that he considered the plea bargain an option.
From what I've read, he seems like an idealist and in his mind it was probably more black and white - he had to plead plead innocent and accept 35 years or at minimum the financial and emotional damage that goes with fighting it... and he was getting little or no help from the world he was trying to change.
I believe the sticking point was being labeled a felon, not the jail time. Being a felon in the US is a Big Deal, and pretty much relegates you to permanent lower-classes [0]. Aaron also seemed big on moral integrity, and it's probably hard to reconcile admitting guilt to something you don't believe is morally wrong. "Live free or die" is a phrase with deep roots in our nation's history, for example.
The consequences convicted felons face in most states include:
Disenfranchisement (which the Supreme Court interpreted to be permitted by the Fourteenth Amendment)
Exclusion from obtaining certain licenses, such as a visa, or professional licenses required in order to legally operate (making many vocations off-limits to felons)
Exclusion from purchase and possession of firearms, ammunition and body armor
Ineligibility for serving on a jury
Ineligibility for government assistance or welfare, including being barred from federally funded housing
"The Catholic Church decided in the Middle Ages that too many people were getting convicted of crimes that they hadn’t committed. They instituted a rule that said nobody could be convicted without either two eyewitnesses or a confession. Convictions became difficult to obtain. Since it was not possible to obtain extra witnesses, the Church decided to torture defendants until they confessed."
That's unfortunatelly typical anti-church misconception that does not have any support neither in fact nor in common sense.
Why Catholic church introduced demand for two wittnes, if they can do away without that condition??? Why they created obstacle for themselves???
As a matter of fact Catholic church introduced that condition to stop feudal unjustice and cruelty. That partly failed, since "civil power" started to use tortures.
Catholic church created then Inquisition, so, at least, stupid monarch and feudal masters could not kill or burn people they did not like for heresy (Jews, for instance) and witchcraft.
Note, that most anty-witches trials were in Protestant coutries. In Catholic countries (Poland, for instance), there was no "anty witches campaigns" and Jews from all over the Europe were moving to Poland in large numbers (or, to be more precise to Polish-Lithuanian Commonwealth).
Perhaps someone here who actually is a lawyer can answer this or correct my understanding... Under current rules, any plea bargain offers by a prosecutor can't be introduced into the trial. What if that were changed? What if, at the same time a jury is told that the maximum sentence is 47 years imprisonment they were also told the details of any plea-bargain negotiations, such as that the prosecution had been willing to accept 3 months? Might this help to mitigate the perverse effects of the plea bargain system we have now?
Well, it's usually the judge that makes the sentencing determination. A jury is just there to determine guilt or innocence. If a jury knew that the prosecutor was willing to take a 90% reduced sentence, but they still feel that the defendant is guilty, that wouldn't change anything.
I have been a proponent of this since before the Aaron Swartz case. Plea bargains are used because the system would completely grind to a halt otherwise. And it should. The machine eats people's lives.
While perhaps great in theory, that absolute falls apart in practice.
I was accused of a crime, for which the potential punishment would have prevented my being an active father to my soon to be kindergartner. There was a significant chance given the evidence (basically a he said/she said) that taken to trial I would have been found guilty.
Given the probabilities and the risk, the rational decision for me was to take the plea, only to ensure that I could avoid terms that would have interfered with my ability to be a father.
When throwing the book at you is not an idle threat, and the result would effect other people, you quickly realize that you must consider options that are far less idealistic.
Wait, so assuming you were NOT guilty you're saying that because you were about to be a father they managed to bully you into take a plea, so that you could ensure you could avoid terms that would have interfered with your ability to be a father ?
How's this system perpetuated by the persecution any good, in theory OR practice ?
And assuming you WERE guilty, seems like you have gotten off lighter than you were supposed to?
How's this system perpetuated by the persecution any good, in theory OR practice ?
Yes, true. It is one. IMHO the plea itself should be illegal. You either have evidence against someone or you improve the tecniques to gather and understand evidence so that in the future sort of situation is more fair.
Instead, we have this plea system where they make your life a bet where you either lose small or lose big. but you lose, whether you were guilty or not.
>(EDITOR’S NOTE: This post is about government employees stealing money the government itself has stolen, and since it’s about theft, it is a crime with a victim, namely those who put money into the parking meters.)
So this is a radical libertarian (or thereabouts) thing.
Not that there's necessarily anything wrong with that. But it's worth noting that it isn't apolitical.
Well, I took it to mean that the system should grind to a halt with as much bullshit as there is clogging it up, thereby forcing us (as a society) to choose what is really important to prosecute.
E.g., not a guy with a little baggie of weed, or a guy downloading some academic papers he isn't allowed to.
This is exactly what I was trying to say. Millions of dollars shouldn't be spent prosecuting people like Aaron. It is a waste to society in several ways.
I don't know any Libertarians that would support government employees who have stolen from parking meters. You can disagree with the meters all you want but stealing is stealing.
Yeah, I am a radical libertarian. I'm not hiding it, but this is an instance where I don't think the point I am trying to make is one that is specifically radically libertarian.
EDIT:: Which isn't to say it isn't radical, but I think several non-libertarian groups who oppose such things as the war on drugs and other victimless crimes would like to see the system grind to a halt and only important cases sought after.
My point was that non-libertarians who oppose those sorts of things probably wouldn't agree that parking meters are theft, and might be turned off by it.
I don't think he's saying it should stop. If the system becomes log jammed with cases there would be an obvious prioritization and you would see the nonsense we saw with the Schwartz case be a non-issue.
You wish. Here in Uruguay the system is log-jammed, and the result is that a typical case can take decades - ok, the average is three years, but still, you read all the time about cases being closed that took decades to resolve.
That wasn't my point. The point is right now unimportant and victimless issues get a lot of attention. If no one took a plea charges would be dropped except on really heinous acts.
However, judicial discretion was an important check against prosecutorial zeal, and the unintended consequence of reducing arbitrariness at the judicial level has been an increase in control at the prosecutorial level. Systemically, prosecutors are incentivized to put people away, as their careers aren't shielded like those of judges. We may be more a "nation of laws" than before 1984, but combined with punishments most people would consider unjust we've drifted toward being a police state.
In my opinion, if there's one thing to take away from this terrible tragedy, it's that we need a commission to study this systemic effect and recommend ways to make the justice system more just. I can't make myself blame the prosecutors involved when most federal prosecutors are similarly heavy-handed (and, quite possibly, were acting within a reasonable interpretation of the the law).