That is not a remotely reasonable way of looking at the situation. Your odds in a criminal trial do not in fact reflect the likelihood that a random accused person will take a plea deal.

If we're discussing police charging into houses of people accused of nonviolent crimes armed to the teeth, we're on the same page. But otherwise, I'm not clear what your suggestion is here.

What is unreasonable about my way of looking at the situation?

Look at what happened to Aaron Swartz. If he lost at trial, he was facing a lifetime in jail. They were also seeking damages that he had no hope of paying because his finances had already been drained by the legal fight. A legal fight that was projected to cost over a million dollars more than already spent.

Or he could take a plea bargain. Which would have put him in serious debt, in jail for a few years, and made him a life-long felon.

Or he could commit suicide. Which, of course, he did.

In that surprisingly typical example, if his odds of winning were 90%, on average he spends as much time in jail if he chooses to fight. Which he couldn't afford to do. And you still have to accept that chance of losing your whole life in jail.

In that situation, I'd probably have accepted the plea bargain. No matter how much I believed myself to be in the right.

Given those incentives, it is somewhat surprising that 3% of people do choose to fight. But then again, that's down in the range of the portion of the population with serious mental illnesses.

This is plainly false. Swartz's own lawyer believed, in writing, after Swartz's death, that had Swartz gone to trial and lost, he wouldn't even been given a custodial sentence, and you can look at the sentencing guidelines and see why he reached that conclusion. The prosecutors didn't demand a lifetime in jail; at their grimmest, most hardball state, they were suggesting (a laughable, given the guidelines, the fact that it was a first offense, and a non-remunerative crime) 7 years.

You wrote other things, and I'm sorry I didn't read them carefully, because I'm a nerd and a human and I can't get past "a lifetime in jail". I'll try to revisit later and respond to them, and wouldn't want to suggest my not responding to them is an indication that they aren't good points.

You can read https://web.archive.org/web/20120526080523/http://www.justic... to see that the prosecutor's press release in 2011 said, "If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million."

That was before they added nine more felony counts on September 12, 2012. As techdirt said at the time in https://www.techdirt.com/articles/20120917/17393320412/us-go..., the theoretical amount that he could have been put away for was 50+ years with a fine of up to $4 million.

That's the lifetime that I was talking about.

The fact that they were seeking a far lesser conviction, didn't stop them from throwing around those figures. And I'm sure that Aaron Swartz had to think about those numbers.

Incidentally Aaron Swartz wasn't even the first programmer to commit suicide while being prosecuted by a team including Stephen Heymann. That dubious honor goes to Jonathan James in 2008.

All of this notwithstanding, the important point is this. For most of US history, plea bargains were illegal. The way that they now railroad people into pleading guilty en masse demonstrates that they should still be illegal. And the fact that our plea bargaining system is so lopsided means that the right to a fair trial is more theory than practice.

As a double check on that, consider https://innocenceproject.org/bad-drug-test-leads-to-wrongful.... Widely used roadside drug tests that are inadmissable in court have been found in practice to be wrong more than 1/3 of the time. And yet, 90% of people charged wind up accepting the plea bargain.

The state literally has no evidence that they can present in court. And knows that a lot of those people are actually innocent. But they all get railroaded.

Welcome to justice, American style.

Yes, the DOJ lies in these press releases. Ken White, a former federal prosecutor, wrote a sort-of-famous blog post about this:

https://www.popehat.com/2013/02/05/crime-whale-sushi-sentenc...

35 years is a "whale sushi sentence". You have multiple ways of knowing it's false, if you dig in: again, Swartz's lawyer, the prosecutors own statements, and a straightforward reading of the sentencing guidelines (2B.1).

A particularly important detail of how sentencing works: charges group. The press releases often imply that you might serve time on every count, but in reality, in almost all circumstances, you serve the sentence associated with the most severe count.

The TechDirt article makes the same mistake. TechDirt has gotten better over the last few years; Mike Masnick got tight with the Ken White / Popehat scene, and I assume they get feedback now on legal stuff. But that article is exactly the kind of thing what White is talking about when he says that the media bears some culpability in people's misunderstanding of how sentencing works.

To be clear: all I'm litigating is whether Swartz faced a "lifetime" in prison --- or, for that matter, any double-digit-years sentence whatsoever. I'm not qualified to evaluate the sentencing guidelines, but my layperson read of the guidelines results in Swartz facing 1-2 years if he'd been convicted on everything. You shouldn't take my word for it at all, but do note that my reading lines up with what Swartz's attorney said as well.

You are right. I was remembering the press releases and not paying attention to the more detailed guidelines. (Side note. I've personally eaten at the restaurant that got shut down for serving whale meat.)

Still, the fact that prosecutors seek to create this confusion in the general public makes it likely that they seek to create it in defendant. And stressed out people who should know better often wind up with bad conclusions because stressed out people under pressure don't think well.

That said, Swartz's attorney told Swarts that they would be seeking 7 years. Your lay reading may say that they wouldn't get it. But the gap between what you hear from different sources is extreme. And once you're in front of a judge, I don't trust courts to do the right thing.

The press releases are a real problem, and I don't understand what the DOJ gains by lying to the public about this stuff, since they are not in fact going to win any of these lurid fake maximum sentences, but they're setting expectations that they will.

Swartz had excellent counsel, federal criminal defense attorneys understand the sentencing guidelines the way we understand singly-linked lists.

I agree, strongly, that there is a massive power disparity between ordinary defendants and prosecutors. But I'm going to gingerly venture that you can't gauge the magnitude of that disparity by the number of cases that plead out. Some component of that is power imbalance, but the greater component of it is that law enforcement generally prosecutes lay-up cases. Many years of reading and listening to Ken White, who is no friend of the DOJ, leads me to believe this is even more true with federal prosecutions.

By contrast the example of Harris County convinces me that law enforcement prosecutes a lot of shaky cases that they know wouldn't hold up.

See https://www.texastribune.org/2017/03/07/report/ for how there is only one county in the country that actually double checks drug tests after someone has plead guilty. The result is that the one county alone manages to exonerate more people each year than the next three states combined.

There is no reason that I know of to believe that Harris County has an abnormal number of people wrongfully convicted. They are only unusual in figuring that out and turning them free later.

You're not wrong and I feel roughly about prosecutors the way I assume you do. All I'm saying is that the plea deal rate is not an especially good metric; even in optimal circumstances, most charges would plea out.

>If he lost at trial, he was facing a lifetime in jail.

This is very likely not true according to his very good attorney. He felt that there would be no custodial sentence, and that losing the case was not likely.