Schneier on Security

Matt Macy • April 11, 2012 5:09 PM

One other thing to take in to account is how "just" the justice system is. By many metrics the US Justice system is one of the most deeply flawed in the developed world. For one who is not wealthy enough to have a PR agent to counter the negative press resulting from the established relationship between the DA's offices and their local papers and to retain an attorney that is sufficiently successful that he never needs to take court appointed cases and thus cannot be pressured by the calendar court in to coercing a plea bargain, the odds of success against an emotionally invested DA are essentially zero. It is difficult to say how well the judicial system actually works and how fair it is because so few cases, which serve as de facto audits of the system, are tried. The system is reliant on plea bargains, which, because of the ease with which prosecutors can over charge and the high trial penalty, amount to coerced confessions.

In addition, there are no credible checks on prosecutors - in the US prosecutors are essentially never prosecuted for misconduct and cannot be held civilly liable. The checks on judges are expensive to exercise and are often mostly symbolic.

To give an idea of where the US stands I'll present some of the checks that are in place in a country that recently had the reputation of its court system tarnished in the US as a result of its (thanks to extensive expenditures by her parents on PR) suboptimal handling of the Amanda Knox case.

Italy's justice system has a number of checks on the extent to which individuals can abuse their power: a) Selective prosecution is illegal e.g. if the plaintiffs were committing a crime against the defendant - they need to prosecuted too. This prevents DA's offices from effectively being used, inadvertently or deliberately, to advance criminal interests. In the US it is accepted that the prosecutor prosecutes who he wants - regardless of the context. b) If the total sentence for the charges exceeds 5 years then the case has to go to trial. This limits the extent to which prosecutors can cheaply rack up "convictions" by coercing confessions through overcharging (it is common in the US for a prosecutor to give a defendant a dozen charges and then offer a plea for one - putting a very high penalty on losing at trial). c) In Italy prosecutors are actually charged and prosecuted for misconduct, in the US a prosecutor typically has to have numerous instances of alleged misconduct over the course of decades before a state bar will do anything. Nifong's case was extremely unusual - not in what he did, but in that the plaintiffs had the money for truly indpendent counsel and the PR muscle to get him removed. d) In Italy the appeals courts look at the actual merits of the case as opposed to simply the legal basis on which the case was tried and consequently actually overturn a statistically significant number of convictions. In the US, appeals courts are not permitted to "second guess" juries. In short, I would say that the Italian legal system recognizes that prosecutors and judges are fallible people just like the defendants themselves. The US justice system with fewer than 3% of cases going to trial at the federal level and fewer than 4% of cases going to trial at the state level and virtually no oversight over prosecutors or judges presupposes that members of the justice system are vastly more ethical than the man on the street. In my personal experience, and from reading about the court's conduct in countless cases, I would say that, if anything, they are less.

There are also a number of things that the Italy does to facilitate the successful reintegration of former prisoners in to society. This likely contributes to its much lower recidivism rate.

Italy doesn't have a voter base that wants to subsidize a large prison construction industry or prison guards' union by imprisoning over 1% of its adult population like the US. By comparison it has a relatively limited number of cells available. Probably as a consequence, property crime is higher than in the US. However, violent crime is actually much lower. For example, the per capita murder rate in San Francisco, a relatively ordinary large US city, is higher than in Naples, the heart of the Camorra - center of substantial amounts of child poverty and perhaps one of the most poorly run cities in Europe. People learn by example, and the US Justice system by dint of its arbitrariness, the length of its sentences, and the way it makes prisons a revolving door, teaches the lower classes that people are disposable.

Matt Macy • April 12, 2012 9:35 AM

@jacob:
1. It is an interesting possibility, but bringing it up could easily derail any sort of constructive discussion.
2. This is an established convention and is part of what is referred to as "overcharging" as a means of coercing a plea.
3. Prosecutors measure themselves by aggregate sentences that they've imposed on defendants, not by social outcomes.
4. More poor people with a propensity to theft being in prison correlates strongly with lower property crime rates. It isn't necessarily economically positive because it doesn't take in to account the high cost of incarceration. If someone who has shop lifted several hundred dollars worth of items ends up spending years in prison as a result. the cost of punishment in tax dollars grossly outweighs the cost in shrinkage. Of course there is the question of deterrence value of longer prison sentences, but it isn't clear how high that is for serial offenders that the "corrections" system has made no effort to rehabilitate.

There doesn't seem to be any correlation between longer prison sentences and mass incarceration in general with violent crimes. Those seem to be more a function of demographics and cultural mores (i.e. the perceived value of individual's life to society).
5. It isn't just a question of humanity, if it is simply a question of maximizing the number of prisoners then there is actually a financial incentive to *increase* crime by socially crippling those in the corrections system and ensuring that they will be perpetual recidivists. Notice that prison guards' unions, prison builders, and private prisons are compensated by raw numbers of prisoners not by successful outcomes. I'm not suggesting that the state try to compensate them by some abstract metric, I'm just pointing out that the incentive system rewards behavior by state actors that runs actively counter to those of society at large. It may seem like an academic point, but in general an incentive system plays a decisive role in a group's conduct - and here the incentive system is an obviously toxic one.

Matt Macy • April 12, 2012 9:45 AM

@Jason
The statistical claims being invalid weakens the argument but does not invalidate the entire premise of the article.

Matt Macy • April 12, 2012 12:24 PM

@Trogdor:
What point are you trying to make? The use of the phrase "after all" and your reference to the most high profile and volatile case in the United States, if not the world, at the moment, indicates that you may be trying to bait me. Prosecutors can and do get highly invested in cases where no physical harm has occurred. Local politics frequently plays a larger role than the underlying crime.

Matt Macy • April 13, 2012 4:27 PM

@LevelHead
You know a lot of people who relished their time while incarcerated? Have you established a correlation between the discomfort of time served and reduced recidivism?