There's a concept in American criminal law of lesser included offenses (https://en.wikipedia.org/wiki/Lesser_included_offense). To simplify, a lesser included offense contains the same, but fewer, elements as the greater. (Murder might necessarily involve a battery, therefore battery is a lesser included offense of murder.)
When charged with the more serious crime which includes a less serious crime, you would not be charged with each and every lesser included offense, but rather they merge together into a single charge. This has another implication as well: if the jury decides that the prosecution has proved the elements of a lesser included offense but not the charged offense, you could be found guilty of the lesser included offense, even though that lesser offense was only implicitly charged.
In your example, the elements of breaking and entering and theft may not line up so simply: if each of them contains an element the other does not, (and B&E and theft do not line up) they could indeed be charged separately, because the law says that that element should also be punishable. Attempted ____ is a lesser included offense of whatever crime the person was attempting, but conspiracy is not, because we decided as a society to punish more strongly planned criminality.
In the shooting, Forcillo fired two volleys, one while Yatim was brandishing a knife and another volley after he was incapacitated on the ground. The jury found that the first volley was justified, whereas the second volley was not. However, it had been successfully argued that the first volley killed Yatim, and so Forcillo was convicted of attempted murder and not murder.
And the US has started to demand extraditions of people as fugitives, even though they've never set a foot on US soil and their company falls under a completely different jurisdiction. See Kim Dotcom.
If you ask me, that's crazy. Then again, for someone living in the US it's probably just normal. Anyway, if you wear a tie and are white, there's not much to worry about in the US ... unless you're some sort of leftist hacktivist or reverse engineer a device you've purchased or develop p2p software, of course.
The penalties in the American justice system parallel the pricing of medical care and the rationale used to justify them is the same as well.
# Health care :
"WTF?! My 1-hour doctor's visit came out to $18,000?!"
"Nah don't worry! Nobody actually pays that amount. The doctor just put that there as a starting point when negotiating with the insurance company!"
# Criminal justice:
"WTF?! The penalty for stealing a loaf of bread is 10 years in prison[1]?"
"Nah don't worry! Nobody actually serves that amount. The prosecutor just put that there as a starting point when negotiating with your legal representation!"
[1]: I have no clue what the actually penalty would be, and it would vary state by state, but you get the idea.
...or any citizen activist, really. The citizen journalists who broke the Planned Parenthood story last year were indicted with "tampering with government records" for faking identities so they could go undercover.
And two years ago, a story broke that the IRS was targeting certain nonprofits because of their names and political leanings.
Nobody has been held criminally accountable or 'overzealous' prosecution in either case. There was one early retirement (not even officially a resignation) after the IRS scandal.
s/tends/seems/
The US (at the federal level...I don't know if this happens with state/local charges too) uses a completely brain dead algorithm for coming up with the maximum penalty used in Department of Justice press releases announcing indictments which results in a great exaggeration in most cases.
The article "Crime: Whale Sushi. Sentence: ELEVENTY MILLION YEARS" [1] has a good explanation of this.
> See Aaron Schwartz.
(Swartz, not Schwartz) Here's an article that looks at how actual sentences are calculated, as opposed to how press release sentences are calculated, as applied to Swartz: [2].
> And the US has started to demand extraditions of people as fugitives, even though they've never set a foot on US soil and their company falls under a completely different jurisdiction. See Kim Dotcom.
You make it sound like this is something new and/or that it is just the US that does this. In fact, it is old and common. In general if you do something against the laws of country A affecting people in country A, from country B, and those things are also against the law in country B when directed against B's people, and A and B have an extradition treaty, it is quite common for A to request extradition from B and for B to agree.
Contrary to popular belief on the Internet (not meant to imply that you have this belief...I'm speaking generally here), the US is not the only country with copyright laws or whose copyright laws criminalize large scale commercial infringement. The acts Dotcom is charged with and for which the US is requesting extradition are acts that are also illegal in New Zealand.
[1] https://popehat.com/2013/02/05/crime-whale-sushi-sentence-el...
[2] http://volokh.com/2013/01/16/the-criminal-charges-against-aa...
and
if you wear a tie and are white, there's not much to worry about in the US
The first of these claims seems to contradict the second.
Like rape, for example. Germany just made it illegal: http://www.independent.co.uk/news/world/europe/rape-law-germ...
http://www.gallup.com/poll/165626/death-penalty-support-lowe...
I don't know what it is, but Americans - especially the Bible Belt voting bloc (for lack of more nuanced regional targeting) - feel not only "just" in passing judgement on others, but divinely so, and therefore questioning them is questioning God. It's scary. (It's also the same voting bloc backing Trump. We could chat all day about misappropriated rage and the decline of financial stability and the middle class, but the result of decades of it is where we are now.)
Yeah, but the US is shaped by the Old Testament morals of puritan religious nuts who left Europe...
The typical pattern in most of Europe is that a life sentence means you serve N years (with N being determined at the time of sentencing, either by law or by the court, often from a range of allowed values). After N years, you can apply for review, and may be released if the reviewing body decides that further incarceration serves no legitimate penological interest. If release is denied, at some later time (how "later" is determined varies from country to country), you can try again, and so on until you eventually get released or die.
The European Court of Human Rights has an interesting factsheet summarizing their rulings on life sentencing cases from around Europe here: http://www.echr.coe.int/Documents/FS_Life_sentences_ENG.pdf
I think the bigger issue is that our sentences can be insanely long. In Germany you can get parole after 15 years even for murder. In New York, embezzling $1 million can get you 25 years in prison.
For example, battery and murder will generally merge, but a breaking and entering leading up to the homicide will not.
You mean being charged for the crimes you are accused of? Are there countries where crimes are 'buffet style' where once you commit a bad one you might as well commit a whole bunch because the single crime covers the rest?
And, while not quite answering what you're asking, it's useful to look at how other countries deal with multiple offences.
In England a person accused of one crime can ask for other crimes to be "taken into consideration". (TIC).
This gives them the opportunity to have a clean slate when they've served their sentence (thus supporting rehabilitation); it gives police a better detection rate; it gives victims some small amount of comfort to know that the person who offended against them has been caught.
The sentence for one offence and a bunch of TICs is longer than one offence by itself, but short than if each TIC was prosecuted as a separate offence.
There have been some problems with the system, but these tend to be vigorously investigated.
Description of the system: http://www.cps.gov.uk/legal/l_to_o/offences_to_be_taken_into...
Description of one example of a problem with the system: http://www.bbc.co.uk/news/uk-england-london-26793254
In a lot of countries, this is considered a single criminal act. You might have broken numerous laws, but you would wind up with one charge, with the others more circumstances of your guilt and punishment. You'd only get another charge if you left the place and committed a different criminal act.
In the US, however, it is quite possible for you to get charged with numerous crimes. Breaking and entering, destruction of property, some sort of hacking law (for the security system), and a drug law or two, including possession of a controlled substance (or dealing a controlled substance). All of the charges would have their own penalties and fines, though they may be part of the same criminal proceeding.
That's also the reason why the US has almost 25% of the world's prison population and the highest percentage of prison inmates per capita of any country in the world, with a growing tendency. People in the US are not inherently more criminal or violent than elsewhere, the US sense of justice is just very special and not shared by the rest of the world.
I see a considerable amount of apathy towards serving in a jury. Why is it seen as such an inconvenience? I can understand if it causes financial problems, but I've seen jury dodging at all levels.
When it comes down to it, if you were accused of a crime wouldn't you want people who cared on the jury? If so you must serve on the jury and must do it dutifully.
Because it's very disruptive to the schedules and finances of those affected with limited assurances of how long those disruptions may last. If you're self employed, should you be expected to forego an income for days, weeks or months to serve on a jury? If you're responsible for children, should you then be expected to find and pay for safe, reliable, ad-hoc childcare for an undetermined period of time? Lst week a friend drove hours to jury duty only to be told once there that his service wasn't needed - nobody's was that day. He's an employee with a salary so he wasn't impacted financially, but something like this could have a very real impact on someone living paycheck to paycheck or someone who is only paid when they work.
I have great appreciation for the legal system and the trial by jury process - I've been called twice, but never selected to sit on a jury. But I believe that the system needs to address the impact that serving on a jury has on the lives of those tasked with serving.
I'm not sure what you think needs to be improved.
It already does. It's called being excused for hardship. If you can prove serving is an undue burden, you get excused.
Because you lose a day (at least), you are not compensated, you may get tied up for an extended time if you get selected, and most of those of us on this forum would get dismissed during jury selection. So, it's basically a hugely disruptive waste of time.
At the very least, if you simply made jury selection such that the prosecution can't dismiss jurors, that would A) make being on a jury less wasteful and B) help rebalance the power between the well-funded prosecutor and the poorly funded public defender.
Random people on a jury can be misled in many ways.
I recall a study that found a downward trend over the decades, juries are on average are getting stupider as lawyers get to pick and choose for nearly any reason, they have been progressively more bold I'm their selection of "sheeple" jurors, but I can't find any references for it unfortunately :-/
The case in question a week-long criminal trial of a police detective who tipped off a suspected child predator of his impending arrest. The charges were obstruction of justice, abuse of power and aiding in the sexual assault of a minor.
One notable difference between jury trials in Colorado and elsewhere is that Colorado gives judges the option of allowing jurors to submit their own questions of witnesses. Much of the case hinged on an email the detective had sent the child predator, so of course the defense tried to obfuscate by throwing up smoke screens to confuse the jury.
Two of us on the jury were software engineers. We were allowed to question both the defense's computer forensic expert and the state's. We were allowed to directly examine records subpoenaed from Google, Yahoo, Craigslist and various ISP's.
A Colorado jury isn't just a silent observer, we were active participants (though we never spoke—questions were written and submitted anonymously to the judge, who had discretion on which to allow, and counsel was given the chance to object to each question before it was read aloud to the witness).
In the end, we found him guilty. And I have no doubt we were correct.
"Peers" in that case, maybe should have meant "people able to understand the technicalities", engineers and software lawyers.
I'm glad you're certain in your conclusions, but in my mind there's a worry that that kind of "back-seat testimony" makes the trial less transparent and fair.
Care to elaborate on your objections? Juries exist so that it limits the ability of the State / prosecutors or defense teams from lobbying or coercing 'professional jurors'. You do not want the people who are determining if a citizen broke a law beholden / under the thumb of the state. I say this even as someone who had a jury rule against myself in a civil case that both sides (defense and plaintiff) thought that a judge would rule in my favor.
"Oh geez you've not been chosen to sit on a jury recently, your paycheck is going to be a bit short this month. Maybe if you agreed more with the prosecutors..."
Another common objection, often brought up in countries without juries, is that only a guilty person would desire a jury, because unlike a judge, it could be misled by appeals to emotion and faulty legal arguments.
Juries also seem to be unnecessary, because there are plenty of countries that don't use juries and have more just and equitable legal systems than countries that do.
These aren't exactly my views, but they are common objections raised against juries.
http://thecriminallawyer.tumblr.com/post/16202923895/interlu...
In short, you're asking jurors to take on a huge responsibility with little to no understanding of the laws they're being expected to make a decision on. In virtually every instance the jurors are left in a completely uneducated state and unable to give any proper assessment, relying basically on whatever cues they decide to pick up on instead of factual evidence. The idea of 12 Angry Men never really existed with juries and was far outside the scope of what a juror is really supposed to be doing.
> We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary, and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel, and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged.
I think it'd be pretty hard to argue today that offers of leniency have not "substantially increased" the likelihood, indeed the occurrence, of false guilty pleas. For example, here is another recent New York Times article about low quality drug tests leading to guilty pleas, which describes one county discovering, in an unchecked email inbox, hundreds of old lab notices failing to confirm those tests, ultimately leading to convictions being overturned - all guilty pleas:
http://www.nytimes.com/2016/07/10/magazine/how-a-2-roadside-...
A rich person who can afford to hire good lawyers. If the DA is offering 2 years for a case that could go 60 then the case is not strong.
The one area I would fight even if not rich is if I was accused of a sexual crime. In the USA this is a life sentence either way. The choice is between spending your life in jail if found guilty or living under a bridge if you plea.
We're distracted by issues like 'Black Lives Matter' - which have some merit but are also potentially divisive ...
When it seems there are some pretty low hanging fruit for improvement in this country.
If BLM wants to go after something, it's not bad cops - it's this insane part of the US justice system.
BLM was founded to deal with issue of lack of accountability for a variety of things which kill black people, which is a much wider issue than "bad cops" (especially if you mean, "bad" in the sense of perpetrating violence.) And its mission is much broader than even that, now.
In fact, the event which was the direct trigger for the formation of BLM was Zimmerman getting off for killing Trayvon Martin.
BLM's gotten a lot of attention in the context of police shootings, but that's more because those are the only issues where the media is paying attention to them, not because its their sole focus.
http://nymag.com/thecut/2016/06/stanford-swimmer-brock-allen...
The proportion of state defendants who receive trials has also become very small and while the Times article primarily referenced Federal jury trials, it also referred trials in general and plea bargaining has made trials an exception rather than a rule at all levels.
See the following article:
"Ninety-seven percent of federal criminal prosecutions are resolved by plea bargain. In state courts the numbers are comparable."
http://thecrimereport.org/2014/01/07/2014-01-how-plea-bargai...
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Former Judge John Gleeson, who in March stepped down from the federal bench in Brooklyn to enter private practice, noted in a 2013 court opinion that 81 percent of federal convictions in 1980 were the product of guilty pleas; in one recent year, the figure was 97 percent.
Judge Gleeson wrote that because most pleas are negotiated before a prosecutor prepares a case for trial, the “thin presentation” of evidence needed for indictment “is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.”
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It's easy to blame prosecutors, but as the upper courts have become more political, and as politics has become more insane, this complexity has been driven into the system. A great example is public corruption -- look at recent cases in New York and Virginia. There's a good probability that if a legislator had a tip jar on his desk and didn't vote until the till hit a certain level, a subsequent conviction would be overturned.
Is there anything stopping a judge (other than time/resource availability) from doing this unilaterally?
Time and resource availability is the whole reason plea bargains happen to begin with.
Even if you hire more judges and build more courtrooms, going to trial may not help unless defendants get good lawyers who can spend a lot of time on their cases. These are not hallmarks of public defender offices in states with budget woes (i.e. almost all of them).
When a defendant changes their plea from guilty to either not guilty or no contest pursuant to a plea offer, a Judge always hears the offer and has the authority to accept or reject the offer. Moreover, pleas are evidentiary hearings so evidence of mitigating/aggravating facts can be introduced to help the judge make their decision. Typically, the facts will be limited to simply enough to establish there are facts sufficient, that if true, would result in a conviction). However, if the Judge has a problem with it (thinks the sentence is to light or to heavy) they will usually request evidence to justify the deal.
In addition to what people typically think about when they hear plea (defense and prosecutor working out a deal), often times the two parties can't come to an agreeable deal, and the defense will opt for an open plea to the court, essentially bypassing the prosecutor's offer and asking the Judge for exactly what they want, and then allowing the Judge to again make the final decision based on the evidence offered at the plea hearing.
That said, the judges in this article come across as juvenile and thoughtless, being concerned about how boring work is without trials. How about the poor defendant who takes the plea deal even if they feel they are innocent, just because the stakes are too high? We hear a one mention of such a case, but the rest of the focus is on the poor judges and clerks who are bored or not paid enough ("my kids didn't go to camp"!).
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> “It’s a loss,” Judge Kaplan said, “because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.”
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> “It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested. Everything else is done behind closed doors.”
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> Judge Gleeson wrote that because most pleas are negotiated before a prosecutor prepares a case for trial, the “thin presentation” of evidence needed for indictment “is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.” “The entire system loses an edge,” he added, “and I have no doubt that the quality of justice in our courthouses has suffered as a result.”
---
The "my kids didn't go to camp" quote is from a stenographer and was probably chosen by the reporter just to add another angle to the story.
So, there were two quoted judges bemoaning its effects on the fairness of the justice system, two talking about how their jobs are boring without trials (the quotes included below), and four that do not clearly talk about either of those.
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> “We’d love to have more trials; most of us enjoy trials,” said Judge Alvin K. Hellerstein, who joined the bench in 1998.
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> In April, when Judge Shira A. Scheindlin resigned from the bench after more than two decades, she said the decrease in trials was one consideration for her departure. “Trials are way, way down,” she said. “The building’s quite dead.”
But yes, you picked out some countervailing quotes--perhaps I was a bit harsh.
My jury experience taught me to not worry, the law will come to you, looking for trouble where none exists. "Not guilty, your honor."
The evidence was so poor, I later question whether the defendant was offered a deal, and he said "screw you, you know I didn't do it", and so it went to trial out of spite. Because after it was over, I felt like invoicing the prosecutor on behalf of taxpayers for wasting our money.
1. It is generally accepted as true that the number of trials per year in the U.S. is shrinking (both criminal and civil). However, the data are spotty at best. Most of the data come from the National Center for State Courts, and their data are admittedly incomplete-- to the tune of no data on a number of states at all. Nor are any of the data particularly recent. My crunching of their data puts the decline at a mere ~1.8% per year, although it may well have accelerated since their last report. How much is unknown.
2. The focus on judges lamenting the decline of trials is on one hand commendable and on the other disingenuous. The fact of the matter is that the vast majority of judges across the country do not like trying cases and put tremendous amounts of pressure on the parties to settle. These tactics range from straightforward admonishments to forcing the parties into endless mediation meetings and mandatory settlement conferences.
I am sensitive to the "piling on" of charges in criminal cases, which strikes me as a patently unfair means of getting multiple bites at the apple. For example, I helped defend a case involving a tragic killing where we succeeded in dodging a first degree murder conviction only to find that during sentencing, the defendant got an extra 20 years simply because the murder was carried out using a gun.
The law enforcement always use the words like "we took this horrific sex offender off the street" and people generally cheer up such talk. In reality the guy was merely caught peeing in some bush.
We need to stand up for the rights of drug dealers, sex offenders, suspected terrorists, victims of civil forfeiture and every other criminal because that is the right thing to do. If we start supporting "vigilante" attitude of law enforcement officials sooner or later they are going to come for you and me and no one will help us then.
Currently I see ACLU doing a good job of this at the ground level and Cato Institute doing a fine job at much higher level. But they are far too small. We need to build much bigger organizations that would do this at a larger scale.
Actually we dont have to pursue all cases. Figure out the most tyrannical cities and target their prosecutors heavily. Once you shame few of them publicly and humiliate them everyone else learns the lesson.
What's perhaps more appalling is confessions made to police and prosecutors without an attorney present. The police and prosecutors can lie about the potential sentence, even threatening the suspect's life (we'll go death penalty!), drawing out a confession, and then be under no obligation to uphold their end of the "bargain".
The bottom line is that 95% of people in our prisons did not have a trial before a jury of their peers. Some of these people are very likely innocent, but because of the nature of plea bargains, they cannot challenge their sentences.
