Plea Bargaining and Torture in light of the Aaron Swartz case

An interview with Aaron Swartz‘s defense attorney reveals that, though the government was threatening Aaron with between 30 and 50 years in prison if he went to trial and was convicted, a prison sentence of as little as six months was being discussed as part of a plea bargain (Wall Street Journal; Boston Globe). This reminded me of the classic “Torture and Plea Bargaining” by John H. Langbein (University of Chicago Law Review 1978). Back around 1995 I wrote a summary of Langbein’s paper:

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.

Today we have a legal system with many safeguards for defendants’ rights. However, in our heart of hearts, we don’t believe that we could convict enough defendants if we actually gave all of them all of their rights. Consequently, we set nominal penalties for crimes at absurdly high levels, e.g., “life plus 100 years.” The actual penalty received by 95% of the people who commit such crimes is in fact 12-15 years. This is what they get if they agree to a plea bargain. However, if they choose to exercise their right to trial, they face the nominal penalty of life plus 100.

Having these really high penalties is more subtle than physical torture, but the basic idea is the same and probably a fair number of sensible people are pleading guilty to crimes they didn’t commit.

See also: A 2003 look at plea bargaining by the Cato Institute.


9 thoughts on “Plea Bargaining and Torture in light of the Aaron Swartz case

  1. I plead guilty to a crime I did not commit – a felony – and served a six month jail sentence (released in three) because both the prosecutor and my public defender were telling me I’d do 10+ years if I were convicted and since it was a police officers word against mine, I had basically no chance of being acquitted (or so my public defender told me).

    This was in Santa Barbara, California. If any lawyer reading this would like to speak to me about it (the police officer blatantly lied and said he heard me making a death threat), I give my permission for the blog owner to give out my email address.

  2. In order to reverse the gains of Civil Rights and
    lack of jurors wanting to serve in courts is direct
    result of Plea Bargaining has been used to railroad
    poor and minorities since the 80s. and especially designed Laws
    that target minorities.

    Wait until 3 Strikes or Mandatory Sentencing hit you.
    or how about confiscation of your property because drugs were found in your car.

    Geeks only notice now that Copyright/Computer Fraud has been moved criminal matter instead of civil because Monsanto or others wanted to make IP higher than
    property rights.

    Now let see what you do about.
    Probably just going to blog about it for a month
    and then forget it ever happened.

  3. A for-profit prison system wants more people in jail regardless of their guilt or innocence? Say it ain’t so!

  4. Phil,

    The Federal Sentencing Guidelines would provide a base sentence of 57-71 months in prison in this case, followed by 2 or 3 years of supervised release and no computer use during this time. I have not seen a report where the prosecution offered Swartz a six-month cap in exchange for a plea. I have seen a report that the prosecution insisted on what is called an open plea to the entire indictment. This is not a plea bargain at all.

    My only conclusion from all of this is that this case was and is a political case and so was handled differently from run of the mill criminal matters. The government no doubt wanted to make an example of Swartz and his efforts in opening up PACER played into this. The Government is afraid of people like Swartz, Assange and Anonymous (and perhaps even Kim Dotcom–they are viewed essentially as one entity.

    Society’s reaction to crime ebbs and flows. In medieval England, the sole penalty for felony was death. The idea was that the punishment was so horrible that no one would commit a felony. This obviously did not work. The United States is similarly using draconian legislation to modify the behavior of people interacting through computers. This effort will fail. The greatest blow to people pirating music was iTunes offering songs for less than a dollar and not any draconian legislation.

    The Swartz case raises so many issues. Perhaps only a Constitutional Convention could address all of them (keep in mind that the federalization of crime took place under Hoover; at the founding of the Republic there were only three federal crimes).

  5. You might want to read “Three Felonies A Day: How the Feds Target the Innocent”
    “The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior.”

  6. That was fascinating. Thanks for the link. I’m shocked it’s been going on so long without being resolved. Any idea what the breaking point may be for the system to be reformed?

  7. The thing about plea bargains isn’t that we couldn’t get enough convictions, it’s that the entire legal system would grind to a screeching halt if we stopped abusing them because of the sheer number of cases that would actually have to be litigated. The vast majority of convictions (95% of felonies) are plea bargained. It’s not right, but there’s no workable alternative without some very fundamental reforms, and heaven knows politicians have no appetite for anything that might be “soft on crime”.

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