Archive for October 2014
Jed Rakoff writes in the NY Review of Books:
The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.
To the Founding Fathers, the critical element in the system was the jury trial, which served not only as a truth-seeking mechanism and a means of achieving fairness, but also as a shield against tyranny. As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.
The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage. In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.
In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.
While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.
It was not always so. Until roughly the end of the Civil War, plea bargains were exceedingly rare. A criminal defendant would either go to trial or confess and plead guilty. If the defendant was convicted, the judge would have wide discretion to impose sentence; and that decision, made with little input from the parties, was subject only to the most modest appellate review.
After the Civil War, this began to change, chiefly because, as a result of the disruptions and dislocations that followed the war, as well as greatly increased immigration, crime rates rose considerably, and a way had to be found to dispose of cases without imposing an impossible burden on the criminal justice system. Plea bargains offered a way out: by pleading guilty to lesser charges in return for dismissal of the more serious charges, defendants could reduce their prison time, while the prosecution could resolve the case without burdening the system with more trials.
The practice of plea bargaining never really took hold in most other countries, where it was viewed as a kind of “devil’s pact” that allowed guilty defendants to avoid the full force of the law. But in the United States it became commonplace. And while the Supreme Court initially expressed reservations about the system of plea bargaining, eventually the Court came to approve of it, as an exercise in contractual negotiation between independent agents (the prosecutor and the defense counsel) that was helpful in making the system work. Similarly, academics, though somewhat bothered by the reduced role of judges, came to approve of plea bargaining as a system somewhat akin to a regulatory regime.
Thus, plea bargains came to account, in the years immediately following World War II, for the resolution of over 80 percent of all criminal cases. But even then, perhaps, there were enough cases still going to trial, and enough power remaining with defense counsel and with judges, to “keep the system honest.” By this I mean that a genuinely innocent defendant could still choose to go to trial without fearing that she might thereby subject herself to an extremely long prison term effectively dictated by the prosecutor.
All this changed in the 1970s and 1980s, and once again it was in reaction to rising crime rates. 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. Since these guidelines were not as draconian as the mandatory minimum sentences, and since they left judges with some limited discretion, it was not perceived at first how, perhaps even more than mandatory minimums, such a guidelines regime (which was enacted in many states as well) transferred power over sentencing away from judges and into the hands of prosecutors.
One thing that did become quickly apparent, however, was that 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.
The reason for this is that the guidelines, like the mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains. 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. While much of this may be one-sided and inaccurate—the National Academy of Science’s recently released report on the unreliability of eyewitness identification well illustrates the danger—it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe overconfident, of the strength of his case.
Against this background, the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.
In this typical situation, the prosecutor has all the advantages. . .
As Lord Acton observed, “Power corrupts. Absolutely power corrupts absolutely.” US prosecutors have way too much power and we have repeatedly seen how they have become corrupted—and, even worse, they never suffer sanctions for such things as hiding evidence from the defense, sending innocent people to prison (including to death row). For a prosecutor to get so much as a rebuke is rare, and for them actually have to pay a price for their crimes—for that is what they are—is so rare one can say that it essentially does not happen, even in the most egregious cases.
How appropriate: All week I’ve been having to wait on connections, sometimes more than a minute. Claire Cain Miller writes in the NY Times:
America’s slow and expensive Internet is more than just an annoyance for people trying to watch “Happy Gilmore” on Netflix. Largely a consequence of monopoly providers, the sluggish service could have long-term economic consequences for American competitiveness.
Downloading a high-definition movie takes about seven seconds in Seoul, Hong Kong, Tokyo, Zurich, Bucharest and Paris, and people pay as little as $30 a month for that connection. In Los Angeles, New York and Washington, downloading the same movie takes 1.4 minutes for people with the fastest Internet available, and they pay $300 a month for the privilege, according to The Cost of Connectivity, a report published Thursday by the New America Foundation’s Open Technology Institute.
The report compares Internet access in big American cities with access in Europe and Asia. Some surprising smaller American cities — Chattanooga, Tenn.; Kansas City (in both Kansas and Missouri); Lafayette, La.; and Bristol, Va. — tied for speed with the biggest cities abroad. In each, the high-speed Internet provider is not one of the big cable or phone companies that provide Internet to most of the United States, but a city-run network or start-up service.
The reason the United States lags many countries in both speed and affordability, according to people who study the issue, has nothing to do with technology. Instead, it is an economic policy problem — the lack of competition in the broadband industry. [Which is weird, because businessmen all say that they love competition, that competition is what makes America great, and so on—but they do everything in their power to avoid having to compete. – LG]
“It’s just very simple economics,” said Tim Wu, a professor at Columbia Law School who studies antitrust and communications and was an adviser to the Federal Trade Commission. “The average market has one or two serious Internet providers, and they set their prices at monopoly or duopoly pricing.” . . .
And the lack of competition is thanks to Congress, the FTC, the FCC, and other regulatory agencies who are not doing their jobs and thereby steadily weakening the US.
Even now the FCC is working its head off to destroy net neutrality. But note what Tom Wheeler of the FCC points out:
“Stop and let that sink in: Three-quarters of American homes have no competitive choice for the essential infrastructure for 21st-century economics and democracy,” Tom Wheeler, chairman of the F.C.C., said in a speech last month.
I also just got Yosemite—and after reading the article I went to System Preferences > iCloud, and yes, indeed, Apple was industriously copying my private data to the cloud without permission or notification: Contacts, Calendar, and some other programs. I unchecked those and I hope that my data are staying on my computer.
It seems pretty damn high-handed of Apple to help itself to my data and transfer it to the cloud, particularly without asking and without notifying me.
Craig Timber reports in the Washington Post:
After security researcher Jeffrey Paul upgraded the operating system on his MacBook Pro last week, he discovered that several of his personal files had found a new home – on the cloud. The computer had saved the files, which Paul thought resided only on his own encrypted hard drive, to a remote server Apple controlled.
“This is unacceptable,” thundered Paul, an American based in Berlin, on his personal blog a few days later. “Apple has taken local files on my computer not stored in iCloud and silently and without my permission uploaded them to their servers – across all applications, Apple and otherwise.”
He was not alone in either his frustration or surprise. Johns Hopkins University cryptographer Matthew D. Green tweeted his dismay after realizing that some private notes had found their way to iCloud. Bruce Schneier, another prominent cryptography expert, wrote a blog post calling the automatic saving function “both dangerous and poorly documented” by Apple.
The criticism was all the more notable because its target, Apple, had just enjoyed weeks of applause within the computer security community for releasing a bold new form of smartphone encryption capable of thwarting government searches – even when police got warrants. Yet here was an awkward flip side: Police still can gain access to files stored on cloud services, and Apple seemed determined to migrate more and more data to them.
The once-clear line between devices – such as Macs or iPhones – and proprietary cloud services is all but vanishing, security experts warn. And it isn’t just Apple doing it. Microsoft, Google and others increasingly are relying on cheap, easily accessible storage capacity to roll out new features for customers. Apple’s automatic saving function allows users to switch seamlessly between devices, without fear of losing documents or edits.
That’s great news if your Mac gets stolen and you need to buy a new one. But security experts such as Paul are asking, at what price in privacy?
“For me,” said Green in an interview, “this is really shocking. I’ve been taking a lot of confidential notes in business meetings in TextEdit” – one of the programs that automatically saves some files to iCloud.
Confusion about how devices and cloud services interact apparently was a factor in the theft of intimate photos of dozens of Hollywood celebrities, such as Jennifer Lawrence, last summer. Their phones were secure, but the photos also were stored in online Apple accounts that, while protected by passwords, were vulnerable to hackers, experts say. It’s not clear the victims had any idea their personal photos were on the cloud, but they were — within the reach of highly skilled Internet creeps.
Paul’s concern is less freelance Internet creeps than the U.S. government, which as he noted in his blog post collects data from U.S. technology companies, including Apple, through the National Security Agency’s PRISM program. . .
Jake Bernstein reports in ProPublica:
A U.S. Senate subcommittee will hold a hearing Nov. 21 on issues of regulatory capture following stories by ProPublica and This American Life about secret recordings made by an examiner at the Federal Reserve Bank of New York.
Sen. Tim Johnson, D-S.D., chairman of the Senate Committee on Banking, Housing and Urban Affairs and Sen. Sherrod Brown, D-Ohio, who chairs the panel’s Financial Institutions and Consumer Protection subcommittee, announced the hearing today.
Witnesses have not been named. In a statement, Johnson said the ProPublica and This American Life reports “are troubling because they raise new questions about regulators being captured by the financial institutions they regulate.”
The examiner, Carmen Segarra, secretly recorded approximately 46 hours of meetings with colleagues at the New York Fed and executives from Goldman Sachs as she examined Goldman’s policies, particularly those relating to conflicts of interest. She was fired after seven months on the job.
The recordings show regulators reluctance to push Goldman too hard for information and the New York Fed’s struggles to beef up its supervision of some of the nation’s biggest banks.
Segarra was dismissed after resisting pressure from higher-ups to change her conclusion that Goldman’s policies were insufficient.
Since the financial crisis of 2008, the New York Fed has received new responsibility for supervising Wall Street’s biggest and riskiest financial institutions. That is despite an internal confidential report in 2009 that concluded that the New York Fed was too deferential to the institutions it oversaw and had a culture in which examiners feared speaking out.
The New York Fed has said Segarra was fired for performance reasons alone and issued a statement defending its record of bank oversight. [Yeah, right—I do not trust the NY Fed (or the SEC for that matter), and quite clearly the NY Fed fired the examiner simply because the examiner was being honest about Goldman Sach’s situation, something the NY Fed apparently feels is a firing offense. I do agree that some need to be fired for this, but it is not the examiner. – LG]
More on bad-faith politics, including flat-out lying, but a veteran lobbyist who endorses tactics that would shame most. Eric Lipton reports in the NY Times:
If the oil and gas industry wants to prevent its opponents from slowing its efforts to drill in more places, it must be prepared to employ tactics like digging up embarrassing tidbits about environmentalists and liberal celebrities, a veteran Washington political consultant told a room full of industry executives in a speech that was secretly recorded.
The blunt advice from the consultant, Richard Berman, the founder and chief executive of the Washington-based Berman & Company consulting firm, came as Mr. Berman solicited up to $3 million from oil and gas industry executives to finance an advertising and public relations campaign called Big Green Radicals.
The company executives, Mr. Berman said in his speech, must be willing to exploit emotions like fear, greed and anger and turn them against the environmental groups. And major corporations secretly financing such a campaign should not worry about offending the general public because “you can either win ugly or lose pretty,” he said.
Think of this as an endless war,” Mr. Berman told the crowd at the June event in Colorado Springs, sponsored by the Western Energy Alliance, a group whose members include Devon Energy, Halliburton and Anadarko Petroleum, which specialize in extracting oil and gas through hydraulic fracturing, also known as fracking. “And you have to budget for it.”
What Mr. Berman did not know — and what could now complicate his task of marginalizing environmental groups that want to impose limits on fracking — is that one of the energy industry executives recorded his remarks and was offended by them.
“That you have to play dirty to win,” said the executive, who provided a copy of the recording and the meeting agenda to The New York Times under the condition that his identity not be revealed. “It just left a bad taste in my mouth.” . . .
The lobbyist is pretty clearly a sociopath. And it’s heartening that at least one executive saw the lobbyist’s approach for what it is. The complete speech is provided here, and note this introduction:
Speech by Richard Berman to Western Energy AllianceHere is a complete transcript of a speech that Richard Berman, the founder and chief executive of Berman and Company, gave in June 2014 in Colorado Springs to a group of energy executives. He urged them to contribute several million dollars to a nonprofit organization he runs, with a promise that he would hide the origin of the money. The nonprofit would then create a campaign to attack environmental groups raising questions about fracking. The speech offers a rare glimpse into how Mr. Berman operates. This transcript was provided to The Times, which also has a copy of the actual recording. The transcript was shared with Mr. Berman, by The Times, before its publication.
A few items from The Watch, Radley Balko’s column in the Washington Post, today by Lucy Steigerwald:
- The Federal Bureau of Investigation (FBI) is requesting greater scopein their power to hack computers outside of their jurisdiction, including ones where the physical location of it is unclear.The American Civil Liberties Union (ACLU) says the FBI is being awfully vague about why this is so essential.
- Other FBI news: In July several agents cut the internet to several suites in a Vegas hotel, then disguised themselves as the men come to fix it, all in order to gather evidence of illegal, high-stakes sports betting. One of the men’s lawyer says that this tactic sets an alarming precedent for law enforcement, and the case should be tossed out.
- Sen. Patrick Leahy (D-Vt.) is mad about all of this FBI stuff, and he is also not happy about the time the Drug Enforcement Administration (DEA) made a fake Facebook page under a very real woman’s name in order to snag drug suspects. Leahy says such things may “erode the public’s trust in the judgment and integrity of law enforcement officers.”
Palestinians not required to ride in the back of the bus—they are not allowed to ride the bus at all
Israel has moved to a level of racism and segregation worse than the early 20th century American South—much worse, considering the level of attacks and deaths in Gaza. And we are funding that regime:
From the link:
“Since the October War in 1973, Washington has provided Israel with a level of support dwarfing the amounts provided to any other state. It has been the largest annual recipient of direct U.S. economic and military assistance since 1976 and the largest total recipient since World War ll. Total direct U.S. aid to Israel amounts to well over $140 billion in 2003 dollars. Israel receives about $3 billion in direct foreign assistance each year, which is roughly one-fifth of America’s entire foreign aid budget. In per capita terms, the United States gives each Israeli a direct subsidy worth about $500 per year. This largesse is especially striking when one realizes that Israel is now a wealthy industrial state with a per capita income roughly equal to South Korea or Spain.”
– John J. Mearsheimer and Stephen M. Walt
“The Israel Lobby and U.S. Foreign Policy
* Source: The Congressional Research Service’s report “U.S. Foreign Aid to Israel,” written by Jeremy M. Sharp, Specialist in Middle Eastern Affairs, dated April 11, 2014.
According to this report, the Obama Administration gave $3.1 billion in Foreign Military Financing (FMF) for Israel for the Fiscal Year 2014. In addition, the U.S contributed $504 million to the joint U.S.-Israel Missile Defense Program during FY 2014. If we include that number, American taxpayers give Israel $9.9 million per day.
Over the last 20 years, the U.S. has been slowly phasing out economic aid to Israel and gradually replacing it with increased military aid. In 2007, the Bush Administration and the Israeli government agreed to a 10-year, $30 billion military aid package FY 2009 to FY 2018. In 2012, the U.S. began giving Israel $3.1 billion a year (or an average of $8.5 million a day) and promised to provide that amount every year through FY 2018.
Israel is by far the largest recipient of U.S. foreign military aid (see how other nations compare). According to the CRS report, the President’s request for Israel for FY 2015 will encompass approximately 55% of total U.S. foreign military financing worldwide. According to the CRS report, “[a]nnual FMF grants to Israel represent 23% to 25% of the overall Israeli defense budget.”
Contrary to ordinary U.S. policy, Israel has been and continues to be allowed to use approximately 25% of this military aid to purchase equipment from Israeli manufacturers. According to CRS, “no other recipient of U.S. military assistance has been granted this benefit.” Thanks in part to this indirect U.S. subsidy, Israel’s arms industry has become one of the strongest in the world. “Between 2001 and 2008, it was the 7th largest arms supplier to the world with sales worth a total of 9.9 billion.”
The United States also contributes funds for a joint U.S.-Israeli Missile Defense Program designed to thwart short-range missiles and rockets fired by non-state actors (such as Hamas and Hezbollah) as well as mid- and longer-range ballistic missiles (this refers to Iran and/or Syria’s asenals). Arrow II, Arrow III, David’s Sling, and Iron Dome refer to different projects under the umbrella of this Missile Defense program. In 2014, the U.S. spent $504 million on this and plans to spend $272.7 million in 2015.
By all accounts the United States has given more money to Israel than to any other country. The Congressional Research Service’s conservative estimate of total cumulative US aid to Israel (not adjusted for inflation) from 1949 through 2014 is $121 billion.
An October 2013 Washington Report article “A Conservative Estimate of Total Direct U.S. Aid to Israel: $130 Billion,” by Shirl McArthur, puts the cumulative total even higher.
According to McArthur, “[T]he indirect or consequential costs to the American taxpayer as a result of Washington’s blind support for Israel exceed by many times the amount of direct U.S. aid to Israel. Some of these ‘indirect or consequential’ costs would include the costs to U.S. manufacturers of the Arab boycott, the costs to U.S. companies and consumers of the Arab oil embargo and consequent soaring oil prices as a result of U.S. support for Israel in the 1973 war, and the costs of U.S. unilateral economic sanctions on Iran, Iraq, Libya and Syria. (For a discussion of these larger costs, see ‘The Costs to American Taxpayers of the Israeli-Palestinian Conflict: $3 Trillion,’ by the late Thomas R. Stauffer, June 2003 Washington Report, p. 20.)”
** Source: The Congressional Research Service’s Report “U.S. Foreign Aid to the Palestinians”, written by Jim Zanotti, Analyst in Middle Eastern Affairs, dated September 30, 2013.
According to the report, . . .