An interview with Aaron Swartz‘s defense attorney reveals that, though the government was threatening Aaron with between 30 and 50 years in prison if he went to trial and was convicted, a prison sentence of as little as six months was being discussed as part of a plea bargain (Wall Street Journal; Boston Globe). This reminded me of the classic “Torture and Plea Bargaining” by John H. Langbein (University of Chicago Law Review 1978). Back around 1995 I wrote a summary of Langbein’s paper:

The Catholic Church decided in the Middle Ages that too many people were getting convicted of crimes that they hadn’t committed. They instituted a rule that said nobody could be convicted without either two eyewitnesses or a confession. Convictions became difficult to obtain. Since it was not possible to obtain extra witnesses, the Church decided to torture defendants until they confessed.

Today we have a legal system with many safeguards for defendants’ rights. However, in our heart of hearts, we don’t believe that we could convict enough defendants if we actually gave all of them all of their rights. Consequently, we set nominal penalties for crimes at absurdly high levels, e.g., “life plus 100 years.” The actual penalty received by 95% of the people who commit such crimes is in fact 12-15 years. This is what they get if they agree to a plea bargain. However, if they choose to exercise their right to trial, they face the nominal penalty of life plus 100.

Having these really high penalties is more subtle than physical torture, but the basic idea is the same and probably a fair number of sensible people are pleading guilty to crimes they didn’t commit.