From: grarpamp <[email protected]>
Subject: Re: <nettime> A CEO who resisted NSA spying is out of prison.
>$5000 to just enter not guilty and likely pay an attorney to defend
>it / accept dismissal may seem realistic. Thing is, that doesn't
>leave much payout to defendant. And a fair number of those pleas
>will be going to trial. That entails conviction risk, and regardless
>of time dealt, that risk will carry a higher price.
You are looking at this idea from the standpoint of a single defendant. I am
looking at this from the standpoint of the entire (U.S. federal) court system.
I am aware that most defendants will, in fact, be guilty of the crime charged.
Ordinarily, what happens is that the prosecution offers a plea deal that they
consider realistic, and the defendant eventually agrees to some deal, with no
trial involved. That is why about 70,000 new defendants get convicted in the
Federal system each year: As I recall reading, about 3,500 demand, and
receive, jury trials. The remainder, 66,500, are convicted through plea deals.
Currently, many and in fact most of these defendants consider themselves fated
to be convicted, and they see no 'upside' to pleading not-guilty and receiving
a trial. But I propose that an amount, for purposes of argument $5,000, be
offered. It will be paid after the defendant enters a not-guilty plea to a
Federal felony, and is sentenced (if he is convicted) or after he is
acquitted. Further, the defendant may direct that the money be paid to a third
party, but NOT any government agency, court, or otherwise.
Many defendants who are already resigned to being convicted may have little
or no money: To them, an offer of $5,000 is an amazing windfall. A person who
is facing a (current average) sentence of 3 years (36 months) would get
$5000/36 months, or $139 dollars per month, which buys a substantial amount of
commissary. (In prison, they have a store called a 'commissary', where they
sell food, clothing, shoes, electronics, OTC medicine, etc. Prisoners who have
this much money live much happier lives in prison, compared to those who
don't.) He has a powerful motivation to accept the money. Moreover, he knows
that every other defendant is being offered the same deal. He knows that if he
pleads not guilty and demands and receives a jury trial, which is his right, he
will receive the money. He will get the money...AFTER he receives the trial.
He will, if necessary, be defended by a 'Federal Public Defender', who is
paid by the
government.
>> It could be arranged as a charitable contribution ('to encourage
>> employment of the jury system',) and thus be
tax-deductible.
>Nonprofits, NGO's and crowdfunding appear to be a hot ticket these
>days. Set one up, pick some jurisdiction somewhere, camp out on the
>courthouse steps with your cash and attorneys in hand and see what
>works.
Well, that's the general idea. But most of the work will be done by mail: New
cases can be discovered using a system called PACER (www.pacer.gov) which
allows anyone to identify new criminal (or civil, which is irrelevant here)
cases. Form-letters can be sent to defendants, and their attorneys.
>Also, no figures were presented regarding cost per case in court
>system. That matters too. You might be initially faster to jam it,
>but don't be too sure they won't deputize and set up courts on the
>front lawn in response.
Cost-per-case won't be especially relevant. While the number of physical
courtrooms is one limitation, more important is the fact that it is very hard
to put on a jury trial. There is a lot of paperwork, witnesses must be
corralled, jurors must be selected. It ties up a lot of people for days.
Further, the Federal courts are already clogged with civil cases: There simply
is not a lot of 'give' in the current Federal Court system to add a flood of
new cases. Even if, hypothetically, the number of trials could be doubled,
from 3,500 to 7,000, that would still be a reduction of a factor of 10 from
today's 70,000 defendants. While it is still conceivable that some defendants
will take deals anyway, those deals will probably have to be much better than
would have previously been given.
There is also an addition 'attack' that can be added, if it turns out to be
desirable. Regrettably, there are many homeless people who, for one reason or
another, would actually be better off if they got sentenced to a few months or
years in prison. "Three hots and a cot", so the saying goes. Doubtless some
substantial proportion of prisoners are exactly such people. But what if it
were publicized that a person could do a 'note-robbery' of a bank, collect the
money, and either flee or stay right there, in the bank. They will get $5,000
after a Federal felony trial. For some of these people (tens of thousands?)
this would amount to a very attractive offer. It would even more thoroughly
flood the Federal 'justice' system.
>You might have better success paying that $5k to vote however you
>want them to for the next decade (say defunding things)
after their
>case/time as it might currently go is up. Or as someone said, run
>nullification TV ads and mailing campaigns. Etc.
>Not sure what this has to do with cypherpunks, unless you count
>anonymous bitcoin donations from these CEO's, etc to your project.
If you had made this claim 8 months ago, you would have been widely seen as
having a valid point. The problem is, a lot has happened since then, primarily
flowing from Snowden's leaks. Storage of most/all emails, backdoors in
encryption systems, cell-phone metadata collection and (possibly) cell-site
location monitoring, as well. Ultimately, most of the stories contain a 'then
X was served with a subpoena', or 'somebody was leaned on by the Feds', or 'the
ISP was convinced to turn over secret information'. These events had their
negative consequences because some government had the power to extort
cooperation. Even if the public doesn't hear about these details, they exist.
The power of government is the ability to threaten people or companies with
compliance, sometimes (but not always) because they did something illegal, even
if they did nothing wrong. See, for example, Joseph Nacchio, Quest CEO who was
victimized apparently for
refusal to turn over phone data.
We don't advocate encryption simply because it's fun: We advocate
encryption because it has a tendency to either defeat, or make it harder for,
the enemy. And 'the enemy', more times than not, is a government. And if that
'enemy' has the ability to threaten, to strongarm, to 'rubber-hose' either our
allies or the people we turn to for services, our positions are vastly more
tenuous.
>Last, Joe crack dealer isn't newsworthy or profitable and will be
>let go to make a docket slot for Joe CEO. So you might have trouble
>getting funded from that sector without some rethink.
There is no doubt that ultimately, there WILL be some prosecutions, some of
which are high-level prosecutions. Keep in mind that as a libertarian, I would
be ecstatic if the Federal government totally lost the ability to enforce
anti-drug laws. But I think that it would be possible to do more than that:
To disable governments' ability to act in any and all ways that violate
libertarian principle. And, I would rather take my chances if 93% of the
prosecutions are disabled, than if 0% are disabled. I think you need to
consider this matter quantitatively, not merely qualitatively.
Jim Bell
