“If only it were all so simple! If only there were evil people somewhere insidiously committing evil deeds, and it were necessary only to separate them from the rest of us and destroy them.

But the line dividing good and evil cuts through the heart of every human being. And who is willing to destroy a piece of his own heart?”

― Aleksandr Solzhenitsyn, The Gulag Archipelago 1918–1956

I’m devoting this edition to our criminal justice system and the issue of plea bargaining in particular.

Why read about prisons and plea bargains???

My last two editions were on imagination or motherhood. If you read those, maybe you’re wondering why I’m now tackling this. Fair question. The Weekend Reader is my attempt to better understand the world through curated reading. I do a lot of it, then synthesize my understanding to others. The topics follow my interests, which often relate to business, technology, and philosophy, but it turns out I also like reading about politics, comedy, farming, and lots of other topics.

I’m not promising you’ll be interested in every edition I put out. But if you read each one, you’ll get a reading diet that is broad yet deep, reflecting my desire to “read widely, read wisely.”

Here are some of the facts that led me to focus on prisons and plea bargains this week:

• There are 2.3M people in prison in the U.S. We are the most incarcerated society in the world.
• The per capita rate of imprisonment increased nearly sixfold between 1972 and 2008, from 93 per 100,000 to 536 per 100,000. (Today, the rate has fallen slightly to 458 per 100,000)

That alone is a crisis. But there is also an enormous problem represented by the incarceration rate differences between whites and minorities.

• Blacks and Hispanics make up 31 percent of the general population, but almost twice that proportion — 59 percent — of the state prison population.
• African-American males are six times more likely to be incarceratedthan white males and 2.5 times more likely than Hispanic males.
• If current trends continue, one of every three black American males born today can expect to go to prison in his lifetime, as can one of every six Latino males — compared to one of every seventeen white males.

Read that last bullet point again. It’s unbelievable to me. I was naive about a lot of these issues and I bet a lot of us are. It’s healthy to confront the facts and ask ourselves a) is this the kind of society we want to live in? b) if not, what are we going to do about it.

The U.S. has more people in prison than any other nation and has an incarceration rate higher than any other country in the world. The only country that is close is Russia.

There are as many people incarcerated in the U.S. as live in the entire cities of Denver, Boston, Washington DC, and Cincinnati combined. Oh, and about 92% of them are men — a fact that I want to dive into in a future reader about men.

The chart below gives a visual picture of who is locked up where, and for what crimes. 1.3M of the total are in State Prisons. 465,000 are in jail awaiting trial.

As you can see in the chart (click on the picture for a higher-resolution version and accompanying article), only a small percentage of crimes are drug-related. While a lot of prison reform chatter has been about releasing non-violent drug offenders, they only account for 1% of the prison population.

In my reading on this topic, one fact has gripped my imagination: 97% of people charged with crimes don’t face a jury of their peers. Instead, they take pleas offered by the prosecutors.

Why is this the case? Part of the reason is the huge increase in arrests over the past few decades — there are 10,000 to 12,000 arrests made each day. If each case had a jury trial, the judicial system would be hopelessly clogged.

But that’s just a fact, not a reason. The most compelling explanation I have read is that prosecutors have used their power to will defendants into plea bargains. I want to quote at length one of the articles below, “Why Innocent People Plead Guilty”

In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.

The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations.

Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.

But what really puts the prosecutor in the driver’s seat is the fact that he — because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought — can effectively dictate the sentence by how he publicly describes the offense.

For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range ofless than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

No doubt the great majority of those who cop pleas are guilty of some kind of crime. But the incentives built into the system also lead some innocent people to plead guilty too. Again I quote from the same article above,

How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.

What can we do? One option is to eliminate mandatory minimums and eliminate sentencing guidelines. Another option, offered by the Jed Rakoff, is to involve judges in the plea bargaining process. Another idea is to align the decision of making charges with the financial cost. In California, prosecutors are county officials but the costs of imprisonment are borne by the state, so the state forced the counties to keep individuals in county jails longer, disincentivizing their officials from pressing expensive prison-term charges. Yet another idea is to increase funding for public defenders — to give more defendants quality counsel.

The right and left agree that we need prison reform and criminal justice reform. The question is what kind of reform makes sense? Admittedly, this edition is heavy on calling out problems and light on solutions. I need to study the solutions more and maybe write again with options. In the meantime, please write me if you think I’m misunderstanding something here about the problem (include facts and sources!) or if you have read good ideas on the topic.

If you want to read more from me, I covered the prison crisis a few years ago, with several good recommended reads. Most are still relevant. Unfortunately, the problem hasn’t changed much. More importantly, check out the article and summaries below.

Let me end on one bright n0te. Between 2010 and 2015, the incarceration rate went down by 8%. We might be moving in the right direction.

Read widely, read wisely.
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Recommended Readings

1. The Truth About Our Prison Crisis

The New York Review of Books. (20 min)

SUMMARY

Review of competing theories to explain the exploding prison population.

Michelle Alexander says we are in a new Jim Crow era where blacks are treated differently than whites for the same crime. For drug-related crimes, incarceration rates for whites are 34 per 100,000 population, 74 per 100,000 for Hispanics, and 193 per 100,000 for blacks. “Between 1980 and 2000, the US black drug arrest rate rose from 6.5 to 29.1 per 1,000 persons; during the same period, the white drug arrest rate increased from 3.5 to 4.6 per 1,000 persons.”

John Pfaff, a professor at Fordham Law School, argues that the war on drugs has little effect on the overall incarceration rate. In state prisons (which make up 87% of the total prison population), only 16% of prisoners are there for drug-related crimes. Low-level, non-violent drug offenders make up less than 1% of the prison population.

Pfaff argues instead that overincarceration can be attributed to the decisions of prosecutors. “When a police officer makes an arrest, it is the prosecutor that decides how to proceed. “From 1994 to 2008…per capita incarceration rose every year. Over that period, reports of violent and property crimes fell steadily. So, too, did the number of arrests. The probability that a felony case, once charged, would lead to incarceration did not change. And the average time actually served stayed pretty much the same. What changed was the number of cases prosecutors charged as felonies in state courts: the likelihood that an arrest would lead to a felony charge doubled over that time.

What to do about it? Read the article for suggestions that Pfaff and others propose.

2. Why Innocent People Plead Guilty

The New York Review of Books (32 min)

SUMMARY

I don’t often recommend two articles from the same source, but I have to make an exception because this is excellent. I read this piece a few years ago and still think of it as one of the best reads on the topic of the justice/injustice of plea bargaining in modern criminal justice.

SELECTION
While the 1950s were a period of relatively low crime rates in the US, rates began to rise substantially in the 1960s, and by 1980 or so, serious crime in the US, much of it drug-related, was occurring at a frequency not seen for many decades. As a result, state and federal legislatures hugely increased the penalties for criminal violations. In New York, for example, the so-called “Rockefeller Laws,” enacted in 1973, dictated a mandatory minimum sentence of fifteen years’ imprisonment for selling just two ounces (or possessing four ounces) of heroin, cocaine, or marijuana. In addition, in response to what was perceived as a tendency of too many judges to impose too lenient sentences, the new, enhanced sentences were frequently made mandatory and, in those thirty-seven states where judges were elected, many “soft” judges were defeated and “tough on crime” judges elected in their place.

At the federal level, Congress imposed mandatory minimum sentences for narcotics offenses, gun offenses, child pornography offenses, and much else besides. Sometimes, moreover, these mandatory sentences were required to be imposed consecutively. For example, federal law prescribes a mandatory minimum of ten years’ imprisonment, and a maximum of life imprisonment, for participating in a conspiracy that distributes five kilograms or more of cocaine. But if the use of a weapon is involved in the conspiracy, the defendant, even if she had a low-level role in the conspiracy, must be sentenced to a mandatory minimum of fifteen years’ imprisonment, i.e., ten years on the drug count and five years on the weapons count. And if two weapons are involved, the mandatory minimum rises to forty years, i.e., ten years on the drug count, five years on the first weapons count, and twenty-five years on the second weapons count — all of these sentences being mandatory, with the judge having no power to reduce them.

In addition to mandatory minimums, Congress in 1984 introduced — with bipartisan support — a regime of mandatory sentencing guidelines designed to avoid “irrational” sentencing disparities…these guidelines, along with mandatory minimums, were causing the virtual extinction of jury trials in federal criminal cases. Thus, whereas in 1980, 19 percent of all federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since.

3. Innocence Is Irrelevant

The Atlantic (18 min)

SUMMARY

“This is the age of the plea bargain — and millions of Americans are suffering the consequences.” Profiles of individuals who feel compelled to plead guilty instead of face trial, even when they are innocent.

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Ideally, plea bargains work like this: Defendants for whom there is clear evidence of guilt accept responsibility for their actions; in exchange, they get leniency. A time-consuming and costly trial is avoided, and everybody benefits. But in recent decades, American legislators have criminalized so many behaviors that police are arresting millions of people annually — almost 11 million in 2015, the most recent year for which figures are available.

Taking to trial even a significant proportion of those who are charged would grind proceedings to a halt. According to Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania Law School, the criminal-justice system has become a “capacious, onerous machinery that sweeps everyone in,” and plea bargains, with their swift finality, are what keep that machinery running smoothly.

As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted.

About 80 percent of defendants are eligible for court-appointed attorneys, including overworked public defenders who don’t have the time or resources to even consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public defender complained a decade ago, is a style of defense that is nothing more than “meet ’em and greet ’em and plead ’em.”

According to the Prison Policy Initiative, 630,000 people are in jail on any given day, and 443,000 of them — 70 percent — are in pretrial detention. Many of these defendants are facing minor charges that would not mandate further incarceration, but they lack the resources to make bail and secure their freedom. Some, therefore, feel compelled to take whatever deal the prosecutor offers, even if they are innocent.

4. As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime
The Wall Street Journal (14 min)

SUMMARY
Even when people don’t go to prison, the effects of being arrested can be damaging and long-lasting.

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Over the past 20 years, authorities have made more than a quarter of a billion arrests, the Federal Bureau of Investigation estimates. As a result, the FBI currently has 77.7 million individuals on file in its master criminal database — or nearly one out of every three American adults.

Between 10,000 and 12,000 new names are added each day.

At the same time, an information explosion has made it easy for anyone to pull up arrest records in an instant. Employers, banks, college admissions officers andlandlords, among others, routinely check records online. The information doesn’t typically describe what happened next.

Many people who have never faced charges, or have had charges dropped, find that a lingering arrest record can ruin their chance to secure employment, loans andhousing. Even in cases of a mistaken arrest, the damaging documents aren’t automatically removed. In other instances, arrest information is forwarded to the FBI but not necessarily updated there when a case is thrown out locally. Only half of the records with the FBI have fully up-to-date information.

5. In the Era of ‘Prosthetic Intelligence,’ the Right to Remain Silent Is the Right To Encryption

in Motherboard (5 min)

SUMMARY

We have laws protecting us from self-incrimination. But two researchers argue “technology has enabled―if not forced―us to project our most private interior selves into places that can be observed and recorded with few legal limits.”

SELECTION

“Your electronic devices know where you are,” Eckersley and Conway lament, “where you have been, who you have talked to, what you said, what your heart rate was at the time, what you have looked at on the Web, what medication you are taking, what you have bought, what maps you have looked up, what spelling mistakes you make, and it is only accelerating.”

At this point, you can fill in your own dystopia. Suggested seeds include precrime, thoughtcrime, impersonation, algorithmic errors and bugs, and bots that can impersonate not just chat patterns but entire corpus of human prosthetic intelligence.

Eckersley and Conway’s main concern is with the nature of self-incrimination, which could fit into any number of dystopian futures. Simply, prosthetic intelligence, this part of our thinking minds that we have farmed out to technology, has no such guarantee of the right to remain silent. If the FBI is allowed to have access to encrypted information via manufactured backdoors, then our rights are in grave danger, according to the duo.

“That wonderful gadget in your pocket is not a phone,” the paper concludes. “It is a prosthetic part of your mind — which happens to also be able to make telephone calls. We need to think of it as such, and ask again which parts of our thoughts should be categorically shielded against prying by the state.”