OSD 174: The process is the punishment

On the logistics of red flags.

The U.S. Constitution guarantees a right to a jury trial for all criminal defendants. But for the past several decades, about 95% of criminal convictions have been obtained through plea bargains. That’s curious. The right to a jury trial is so important that it’s hard-coded into the country’s founding law, but simultaneously so unappealing that 95% of convicts say, “Nah let’s skip the trial, just lock me up.” Why is that?

There’s an efficiency argument about this. If prosecutors only charge people who are likely to lose at trial, and if a defendant knows they’re caught dead to rights, it’s easier for everyone to skip the trial. There’s a book from 1979 called The Process Is The Punishment which makes the point that it’s extremely costly for defendants to interact with the court system — lost time at work, legal fees, childcare logistics, etc. — and that therefore a defendant’s incentive is to make the process as short as possible. It may even be, the argument goes, that a more thorough process would be more unjust on net, because it would prolong time spent dealing with the system.

But there’s a counter to this too. Clark Neily is a lawyer who does a lot of writing on the subject of coercive plea bargaining, and he notes a couple key facts. First, it’s not that you get a stable charge and then decide how to plead. The charge will change depending on how you plead. Prosecutors have wide latitude to throw more charges at defendants who dare not to waive their constitutional right to a jury trial. And it’s not just trimming around the edges, the extra charges can be effectively life-ending. For example:

Clark Neily @ConLawWarrior

@billybinion Coercive plea bargaining has become the lifeblood of our criminal justice system. It’s rampant and it’s a disgrace. The standard offer in the Varsity Blues college admissions scandal was 2 months, and Ds were expressly threatened with 20 YEARS if they refused. That’s despicable.

Second, prosecutors have other forms of leverage too, such as extracting guilty pleas by threatening to charge defendants’ family members:

Clark Neily @ConLawWarrior

@billybinion Drop what you’re doing and read this case about prosecutors using threats against a defendant’s family member to exert plea leverage, which is about the most coercive pressure one can imagine. Yet multiple circuits have approved it. Utterly disgraceful.

Through that lens, it’s obvious why 95% of convicts plead guilty. Would you prefer taking your chances at trial against charges that would put you in prison for 20 years, or just plead guilty, serve two months, and be done with it? Any rational person would choose the latter, no matter how unfair the underlying case is.

The entire body of law around due process in a jury trial will not help you, because you “voluntarily” skipped the trial. The Schoolhouse Rock version of how a trial works isn’t wrong so much as it is unused. About 95% of convicts go through a shadow court system that they don’t write jingles about. In that system, the one that actually exists on the ground, police point at you and say “You’re guilty”, then you say, “You’re right, I tap out.” End of trial.

This is relevant for the current kerfuffle around red flag laws. This thread is a good example:

alexandriabrown @alexthechick

Sorta Twitter Law School - let's talk Red Flag Laws and ex parte orders and due process and how anyone who tells you don't worry, the process won't be abused and there are robust due process protections is, at best, wildly naïve and, more likely, is lying to your face.

Due process is great. And it would be dangerous to strip people of their gun rights without due process protections. But the deeper issue is that if this works anything like the rest of the court system already works, it will be so unworkable that defendants will “voluntarily” give up their rights en masse. And that means the question of who loses their rights becomes one for prosecutors, not courts.

How many people who lose one or two guns to a false positive red flag will be willing (or able) to lose several work days and thousands of dollars in attorney’s fees to recover their $900 worth of guns?

Even if they wanted to, how feasible would it be for the system to allow that? Courts exist to run trials, but they would not actually be able to function if everyone who’s entitled to a trial chose to have one. The “everybody pleads guilty” thing is baked into the logistics. Jury trials are statistically a dying breed (excerpt from an article in Judicature, a journal at Duke Law School):

There are a number of different metrics pertaining to trials in the federal district courts. One metric focuses on civil and criminal trials completed per year, where a trial includes any hearing or proceeding in which evidence is introduced. There were 20,581 such trials in federal district courts in 1997, 15,830 in 2005 and 11,754 in 2016. Thus, by this measure, trials diminished by approximately 43 percent in just under 20 years.

But many of the trials were not case dispositive (i.e., they did not involve liability or guilt determinations). Jury trials constituting liability or guilt determinations show a much larger decrease over time. For example, there were 4,765 civil jury trials on the merits in 1990 and 1,758 such cases in 2016, representing a decrease of more than 60 percent. Similarly, there were 5,061 criminal jury trials resolving guilt or innocence in 1990 but only 1,889 such trials in 2016, a decrease of 63 percent. The statistics for the last 16 years are set forth in Appendix 1 (previous page). Even during this more abbreviated period, the number of civil jury trials on the issue of liability decreased by 48 percent, and the number of criminal jury trials on the issue of guilt decreased by 46 percent, such that the total “on the merits” jury trials in federal court decreased by 47 percent.

…

Still another measure of trial activity is the total number of juries picked to serve in civil and criminal cases in the federal district courts. That number has declined, markedly and quite steadily[.] In 1996, a total of 10,338 juries were selected, but in 2016 the total was just 3,887. Thus, during a 20-year period, the number of juries picked in federal courts decreased by 63 percent.

There are a lot of people who support red flag laws with the best of intentions. And intuitively, the idea sounds reasonable — flag people who are imminently a danger to themselves or others, hold a fair adjudication to look into the allegations, and proceed accordingly. But that presupposes the existence of a system for adjudication that does not in fact exist. The system that does exist can only do one thing — make people give up quickly. If it tried to work how the textbooks say it does, it would grind to a halt.

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This week’s links

John Correia: a rebuttal to Mas Ayoob’s video on carrying a reload

Respectfully diverging views from these two. Here’s Mas’s video in favor of carrying a reload.

PHLster’s basics of concealment mechanics

A highly generalizable system for figuring out how to comfortably wear a gun.

T.Rex Arms: everyone’s first cringe rifle build

We feel seen 🙈

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