Thursday, January 24, 2013

Overcharging: The Aaron Swartz Case

As many readers of this blog probably know, Aaron Swartz, a young, talented, and prominent figure in the internet world, recently committed suicide after being charged with multiple offenses against the Computer Fraud and Abuse Act and threatened, if he refused a plea deal, with a total penalty of fifty years in prison. I did not know Aaron, although we had a friend in common who has expressed his reaction to the tragedy in strong and moving terms. Further, I have no definite view on exactly what the relevant law, on I.P. and on access to computers, ought to be, although I have discussed both in writing and teaching.

What I would like to comment on is the issue of overcharging. In theory, most crimes have a range of possible penalties—one to five years in prison, a fine of a thousand to two thousand dollars, or something similar. In practice, prosecutors can and do make a single criminal act the basis for multiple charges—Aaron Swartz was charged with 13 felonies—with at least the possibility of consecutive sentences, making possible sentences far outside the specified range. One reason to do so is to persuade the defendant to plead guilty to one or more of the charges in exchange for the implicit promise of a shorter sentence, presumably what was happening in the Swartz case. This does not seem like a desirable practice—even when used against less sympathetic defendants. I do not know whether what Aaron Swartz did ought to have been punished at all, but I think it would be hard to find anyone, including the prosecutor, willing to argue that it ought to have received the punishment that the prosecutor threatened to impose.

How might one prevent it? One possibility would be to try to eliminate the practice of plea bargaining. On its face, it is a pretty ugly procedure—among other things, a way of getting an innocent defendant to confess in court to a crime he did not commit in order to avoid the risk of a much more severe punishment. In other contexts that would be described as suborning perjury, itself a criminal offense—in this case by the prosecutor.

Eliminating plea bargaining raises two problems. The first is that it would greatly increase the number of trials, since most criminal cases currently are settled out of court. That could be dealt with either by greatly reducing the number of things treated as crimes—eliminating the war on drugs would be a good first step in that direction—or by substantially increasing expenditure on courts. Courts at present absorb only a very small fraction of government expenditure, so the increase would cost considerably less than many things the government now does and could save money by not doing—such as enforcing drug prohibition.

The second problem is how to do it. Plea bargaining involves only an implicit agreement between prosecutor and defendant, which makes it hard to enforce a rule against it. And it makes little sense to refuse to accept a guilty plea.

One possibility, suggested by the previous paragraph, would be to treat offering a plea bargain as subornation of perjury by the prosecutor and punish it accordingly. A more plausible alternative might be a rule under which a defendant could not plead guilty until the prosecutor had entered his charges and the only guilty plea that the court would accept would be to the offenses as charged.

Short of abolishing plea bargaining, how could we make overcharging impossible, or at least not in the interest of prosecutors? One possibility would be to limit prosecutors to treating a single act as a single crime, although defining what was or was not a single act might raise problems. Alternatively, one might permit multiple charges, but specify that if the defendant was convicted of more than one only the most serious conviction would count. But that would not solve the problem of overcharging on a single charge, treating the computer equivalent of a panty raid  as interstate transportation of stolen property worth more than five thousand dollars (I am thinking of a famous early computer law case; those who have read The Hacker Crackdown may recognize it).

My current research on legal systems very different from ours suggests two approaches  based on the legal system of Periclean Athens, which I sometimes describe as the legal system of a mad economist—ingenious in ways that sometimes probably worked, and sometimes probably did not. One is to punish the prosecutor for a failed prosecution, at least if it failed badly enough. In the Athenian system, which used very large juries, if the (private) prosecutor failed to get at least a fifth of the jurors to vote for conviction he was fined a thousand drachma. A modern equivalent might be a rule under which a District Attorney who failed to convict on more than a specified fraction of his charges, or repeatedly prosecuted charges that resulted in a unanimous jury vote for acquittal, was automatically removed from office. Like the Athenian rule, it would provide a prosecutor an incentive not to make charges that he did not have a reasonably good chance of proving.  Of course, it would also have the disadvantage of giving a prosecutor who had made charges an even stronger incentive than under present rules to convict the defendant, whether or not he was guilty.

An alternative would be the Athenian rule for setting criminal punishment. The prosecutor proposes a punishment, the defendant proposes a punishment, and the jury that has voted for conviction must choose between them. That was, famously, the rule that got Socrates killed. Instead of offering an alternative somewhat milder than execution, such as exile, he first suggested that he deserved a reward rather than a punishment then, at the urging of friends, proposed a fine which his friends were prepared to pay.

Despite the unfortunate outcome in that case, that rule does give the prosecutor an incentive not to seriously overcharge. A jury asked to choose between putting Aaron Swartz in prison for fifty years for what was essentially an act of civil disobedience or giving him a one month suspended sentence and a hundred dollar fine would probably have chosen the latter.


Rasputin said...

An argument against the Athenian solution:

For pretty natural reasons the majority of criminal defendants will be both dumb and shortsighted. It doesn't seem particularly fair to them to introduce even more complex and game-like elements to court proceedings, since that's precisely the sort of thing that dumb and shortsighted people have trouble with.

I don't really think the public defendant will help much with this, since the incentives for them and their clients are so misaligned to begin with.

Daublin said...

It's a great question. A few notes:

- The U.S. does have formal restrictions against double jeopardy, but they seem insufficient to prevent these bonanzas of every crime getting 15 different charges.

- Sometimes it goes the other way, too. The prosecution has to decide whether to go for a greater or a lesser charge. Sometimes they choose the greater, and the crook gets off.

- There is a related issue of selective enforcement. When you see 15 different charges for basically the same thing, I bet that in many cases, 10 out of the 15 are for things that almost anyone could have been charged with.

Laird said...

Whatever happened to the concept of a "lesser included offense"? I thought a jury could acquit for, say, first degree murder but convict on a lesser offense such as manslaughter. Is it really necessary for a prosecutor to separately charge a defendant with all potential crimes, even lesser included ones, to avoid the result Daublin posited?

jdgalt said...

I strongly favor ending plea bargaining, for several reasons including some that you cited in opposition to the idea.

#1 is that it would result in every case going to trial, unless the prosecution drops all charges before that point. This to me is the point. By bringing all cases to trial, every defendant gets his due process rights, as opposed to now where nearly all defendants are bluffed (or if you prefer, blackmailed) out of asserting them.

Indeed, the only argument I can think of against bringing every case to trial is "efficiency" -- in quotes because those who so argue are really defending a distorted notion of "efficiency" in which the defendant's time, money, and lost opportunity are not counted, so the only thing that matters is letting prosecutors railroad as many bodies into prison as they can. The public is not divided into police and criminals, even if the police are trying to make it so by declaring war on everyone but themselves.

The other good reason to eliminate plea bargaining is that it allows prosecutors to "exercise discretion" by threatening some defendants with more severe punishments than others. Only a judge or jury should ever have that power. Not a prosecutor, and not a cop.

jdgalt said...

[Sorry, I hit Send one paragraph too soon.]

Where a statute gives prosecutors too much flexibility by allowing the possibility of excessive punishment, we need judges willing to strike it down (8th Amendment) and juries willing to nullify. It's too late for either Congress or prosecutors to be trusted to do the right thing.

Milhouse said...
This comment has been removed by the author.
Milhouse said...

Plea bargaining involves only an implicit agreement between prosecutor and defendant, which makes it hard to enforce a rule against it. And it makes little sense to refuse to accept a guilty plea.

Actually Jewish law does not accept guilty pleas. Nor does it accept confessions as evidence. People make false confessions all the time, for all sorts of reasons; it might be because they've been offered a deal they couldn't refuse, or it might be that they feel guilty and want to be punished. Or, as Maimonides wrote: "perhaps he is one of those sufferers, bitter of soul, who await death, who are constantly thrusting swords in their bellies or throwing themselves off roofs, so this one will come and say something that he did not do, so that he will be killed." (Sanhedrin 18:13) The news nowadays regularly features instances of "suicide by cop"; in countries where capital punishment is routine and confessions are accepted as conclusive evidence of guilt, there would surely be many instances of "suicide by executioner".

A guilty plea should not relieve the state of its burden of establishing guilt beyond reasonable doubt; one can't force a person to put up a defense if he doesn't want to, but at least the evidence against him should be examined on its own merits

Joe said...

I'm very glad to David and others discussing how to fix the system.

Nancy Lebovitz said...

This is a description of the German legal system, which is set up to make plea bargaining impossible.

I haven't read the whole thing, but part of it is that trials are kept short and simple enough (in what looks like reasonable ways) so that the government doesn't have an incentive to discourage plaintiffs from going to trial.

TGGP said...

Wouldn't an economic analysis of law suggest that plea bargaining is often the most efficient solution? In a theoretically perfect system nobody would ever bother with a trial, since they would always reach a plea bargain at least as good as what each expects at trial.

David Friedman said...


In your theoretically perfect system, what are the incentives of the people responsible for prosecution? If you assume that they want to maximize total welfare, your argument may well be correct, but I don't think that's a plausible account of real world systems. Plea bargaining economizes on resources spent trying cases, but that's only part, probably a small part, of what is at stake in designing a legal system.

Raphfrk said...

Another benefit of plea bargaining would be more consistent sentencing.

If there is a 50% chance of a not-guilty verdict and a 10 year sentence, then plea bargaining should result in people agreeing to a 5 year sentence.

Ofc, ideally, as much of the randomness should be left unset before the bargain is made.

For example, it would have to be decided before the jury is selected or the judge. In theory, even the prosecutor should be unknown, but that is harder to achieve.

David G said...

People have been complaining about plea bargaining since Colonial times. One use of plea bargaining you haven't discussed is the offer of a lesser sentence in exchange for evidence against accomplices.

Godfrey Miller said...

Thank you for your considered analysis!