Addressing Prosecutorial Overreach and Intimidation

In the US, the justice system relies on plea bargains and summary judgements to keep the gears of justice working. If every arrest required a jury trial the costs would be significantly higher.

From the prospective of the suspect, whether or not to suspect a plea deal depends on the following equation that compares the cost of both options:
P = Probability of conviction
S(trial) = Trial sentence
S(plea) = Plea sentence
V = Psychic value of being found innocent rather than guilty
C = Cost of mounting defense

1. P*(S(trial)) + C - (1-P)*V > S(plea)

2. P*(S(trial)) + C - (1-P)*V < S(plea)
In scenario 1, it makes sense to take a plea deal. In scenario 2, it makes sense to fight the plea deal. In theory, the probability of conviction should vary with the defendant's knowledge of whether or not they actually committed the crime and many unnecessary trials can be avoided.

The issue comes because prosecutors realize early in their careers that they can make their time much easier by massively inflating the sentencing that defendants would face if the case went to a trial. Accepting a 2 year prison term can make more sense when the other option is a chance at being sentenced 30 years to life if the case goes to trial. This can be the case even if the defendant thinks they are actually innocent. This was famously done in the case of Aaron Schwartz (Who was actually guilty, but of a relatively minor crime with a poorly written statute that allowed for multiple felony charges), in which the stress induced from this overreach helped drive a young programmer and activist to suicide.

As Orin Kerr notes:
"Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But it is not particularly surprising for federal prosecutors to use those tactics. What’s unusual about the Swartz case is that it involved a highly charismatic defendant with very powerful friends in a position to object to these common practices."
The ability of prosecutors to bully defendants into plea deals doesn't mean the whole system needs to be revamped, but ways to reduce this imbalance of power should be addressed.

Some potential methods to prevent this:

1. Reduce maximum sentences for various crimes. This would be a very labor intensive process and would be difficult for politicians to back more reasonable sentencing guidelines without getting accused of being soft on crime. But there is a potential for the political environment to turn against the government in security matters. If proponents properly the frame the issue as one of preventing government misconduct there is a slim hope that this can be addressed.

2. Rather than fix individual measures, adopt a broad method such as forcing concurrent sentencing to be adopted over sequential sentencing for crimes of specific type would mean that prosecutors wouldn't be able to threaten quite as much prison time in order to force innocents to plead guilty.

California has a rule like this for single offenses where a single act or omission can only be punished in one manner.  Broadening this rule to include many individually committed crimes would prevent prosecutors from being able to throw the book at suspects. The caution would be in preventing scenarios where a criminal can commit one significant crime and then feels safe the they can commit any number of less significant crimes without many consequences. 

3. Have plea deals cap the maximum potential time served. If a plea deal is offered by the prosecution, the maximum prison time sought by the state (or equivalent punishment) can only be 5 times the time of the offenses mentioned in the plea deal offered. If significant cooperation in other investigations is involved as a condition this cooperation can be made equivalent to X years served for the purpose of the calculation.

This way, people like Michael Milken might not have been incentivized to agree to the charges which led to him serving 22 months in prison because the prosecutor was trying to use RICO to put him in prison for life*. Once the 22 months are on the table the size of the stick the prosecutor is using changes from life to under 10 years.  Because judges determine the sentencing they would have to be involved in signing off on plea agreements with pre-determined sentences, which might cause some additional complications. Maybe this should be reserved for cases defined as "high profile" when the prosecutor is also facing political pressure for a successful resolution.

There are probably other ways to make prosecutors more accountable. The path of a high profile victory against a public enemy towards a career in politics is an unfortunate one. But it isn't just the high profile cases that matter, it's the potential abuse of anyone who is being charged with trumped up charges in order to make them more pliable to a plea deal. Right now the United States has a system where if there is a target on your back, there will be laws that you violated and the prosecutor can add them up until you agree to a plea deal. 

It's a less than optimal system that badly needs to be addressed.

*Guiliani was the overreaching prosecutor in the Michael Milken case. Milken only agreed to the charges which he thought would not lead to prison time after prosecutors threatened to go after his brother.