Explain to me, game-theoretically, what the public policy answer is for prosecuting criminal conspiracies who have amassed enormous fortunes from their crimes?
I'm sympathetic to the idea that "ill-gained funds" shouldn't be accessible to a defendant for their defense; but it does pose some moral problems.
When my dad was indicted by the FBI, part of the process (because he was a fugitive) was for them to seize all his funds. This was personally problematic because his funds were also my mom's funds (due to having a joint account); which left my mom very suddenly with no money, and two children (one of which, me, being a newborn).
I got the distinct impression (which I admit was based on only hearing one side of the story) that the FBI intentionally made life difficult for my mom in an effort to entice her cooperation in locating my dad (ignoring the fact that a husband who flees on the day of his son's birth to avoid prosecution from the FBI isn't necessarily in said wife's good graces).
If the funds had been proven to be ill-gained, then the defense would already be over (since proving that funds are ill-gained both requires proving the crime and proving that the funds came from the crime.)
So any meaningful proposal here isn't about actual ill-gained funds, its about alleged ill-gained funds, and that's the source of the problem.
It's not really germane to this discussion; I was just giving an example of the fact that it can be tricky for the government to seize assets in a prosecution (considering the fact that it can be difficult to de-complect where funds come from).
How do you differentiate a criminal spending ill-gained funds from an innocent spending his rightful property?
In those cases, usually you can distinguish ill-gained funds from rightful property only after the court decision, and the presumption of innocence would require allowing the innocent to spend his property on the defence until (and if) [s]he is convicted.
Spend enormous amounts on their prosecution. If, indeed, these guys are such a threat to public safety and order that we need to put them away, then the cost is justified. If the cost is not justified, then the defendant is not such a threat -- in which case taking their money away is unjustified.
The real problem here is that the prosecution strategy is, "prevent the defendant from exercising their rights." That is why prosecutors typically pile up the charges, to scare people into signing a plea bargain instead of exercising their right to a jury trial. Basically, these are people who think the Ox-Bow Incident was a criminal justice field guide.
Alleged criminal conspiracies. If the prosecution of an alleged criminal is undermined by his being able to afford competent defense, we've got a bigger public policy issue.
I agree with the general sense of your post, and its implications about current drug policy, but I think tptacek is right about what our focus should be in this specific trial.
To be intellectually honest about this specific case we're discussing, DPR did by definition commit most of the drug charges. Even if you believe the only morally problematic charge is 5.b of count 1 (that the defendant hired a hitman to murder a troublesome user--I do hope you find that charge problematic!), which is certainly only alleged at this point, it is fact that the Silk Road aided and abetted drug trafficking, which is criminal in the U.S.
So while I certainly agree that people need to be entitled to a competent defense (and I am glad DPR will have competent attorneys to dispute the murder charge), emphasizing the alleged nature of a criminal conspiracy that we realistically know to be largely true doesn't seem to be the best place to focus on rights of the accused. In reality, the vast majority of people wrongfully convicted are going to be the ones who can't afford competent defense. So to me this case almost raises the opposite question from yours: if the prosecution of guilty defendants is undermined by their being able to afford better attorneys than the government, and if the defense of wrongfully accused defendants is undermined by their inability to afford competent defense, then we've got bigger problems with the nature of criminal trials!
I agree with your last point, and was making it in a roundabout way. "How do we convict this guy if he can afford a good lawyer?" and "We'll definitely convict this guy because he can't afford a good lawyer." are both troubling thoughts. Why not freeze the assets of everybody charged with a felony and appoint public defenders?
The rest of your post I have some difficulty with. It's almost as though you're saying we don't even need a trial here because the facts are so obviously established. I don't believe it's yet been established in a court of law that any crime was committed, much less that this person committed it.
One answer to this is that the DOJ can't in fact freeze the assets of anybody; they have to convince a court to do so, and it's for this reason among many that the courts are an entirely separate branch of government. To the extent that you can't trust the courts to be impartial, there's really no part of the criminal justice system you can trust.
It should not in general be in the best interests of the federal court system to allow federal prosecutors to abuse asset seizures to prevent defendants from mounting competent defenses. Among other things, such abuses set judges up for costly appeals.
Civil forfeiture requires only reasonable suspicion (preponderance of evidence) and does not require criminal conviction. So the bar for taking the assets is much lower than the bar for conviction.
>>> It should not in general be in the best interests of the federal court system to allow federal prosecutors to abuse asset seizures to prevent defendants from mounting competent defenses. Among other things, such abuses set judges up for costly appeals.
It is very well in the interest of the prosecutors, in order to extort plea bargain. And appealing the guilty plea would probably have a very low chance for success.
At some stage, there is a constitutional rights issue. An attornery is a representative of the person in court. Ie, he is the mechanism for the client to express freely his position (defense). Limiting this is a free-speach issue, at some stage. You are forcing the defendent to speak through someone paid for by the government. While this is arguably true today for people in poverty, it seems a bit more uncouth to force this for each and every citizen under all conditions. Even those without resources, for example, could in theory arrange for a pro-bono intervention. But such intervention must by necessity free-ride on fee-earning clients. And without a viable business, there would be no-one to do the pro-bono work.
> Why not freeze the assets of everybody charged with a felony and appoint public defenders?
Agreed, but that would either bankrupt the government or make defense attorney a much less lucrative career and, therefore, greatly decrease the number of available defense attorneys.
> It's almost as though you're saying we don't even need a trial here because the facts are so obviously established. I don't believe it's yet been established in a court of law that any crime was committed, much less that this person committed it.
Not at all what I meant. On the contrary, I meant that cases when we the outside viewers realistically know that the defendant isn't clean are probably not the best cases for highlighting the need for a competent defense.
"If" is not necessary here - current criminal prosecution system massively (90% of cases) relies on plea bargains which often are achieved by overcharging and making defendant's life as miserable as possible until they accept the deal. Including seizures, forfeitures and other tactics that hinder defendant's ability to hire council and may ruin their entire lives even if the are proven innocent.
I stipulate that a practice of deliberately undermining defenses is problematic, but that doesn't respond to my question. What's the right public policy? Let's shift the frame to someone unsympathetic at the head of a lucrative conspiracy --- a murderous cartel, say, or an arms dealer.
It basically catches the new 'little rich' in exchange for bulldozing over the majority of people caught up by the criminal system. The ones who have personal fortunes under $10 million or have little experience with it. Taking 9/11 at face value, it's like how the response to 9/11 cost the USA so much more than the actual effects of 9/11.
After you starting dealing with the 'experienced rich' you find they start becoming skilled in hiding such financial resources. It's even harder when it's an entire multi-national organization and you are not an English speaking country or China. It's the story of marrying a wealthy daughter of some incredibly wealthy family, and finding out in the divorce she only has $5000 to her actual name, and your the one who will be paying alimony to her.
Going to the root of the problem in the first place, how do these large criminal organizations even exist? It's because government law going against technological reality have created large market opportunities to exploit in the first place. Governments have created the fertile land for these creatures to exist.
What's the policy harm in allowing them to submit a request to unfreeze assets to pay for legal counsel, expert witnesses, etc?
Do you honestly believe that proposed harm is worse for society than sham trials, where we're getting convictions simply because people can't defend themselves properly?
Flight risk isn't the issue; the issue is that if you can "cheat" society out of $40MM and then outspend the DOJ 100:1 on your defense, the incentives are set (a) for you to seriously consider doing that, and (b) having embarked on any criminal conspiracy, to "go big" at all costs.
Sounds like if you can "outspend" the DOJ and be assured of winning than A: the DOJ has very weak cases or B: the justice system is extremely non-functional.
Seizure is not a just way to hack the system back into a functional state.
So, if you're going to start a drug cartel, you should make it as big as possible to fiercely defend a war chest that you can use in the event that you're prosecuted.
I respect you, and the tone you're using with me makes me think that perhaps I am missing something here. But I'm not getting what you're attempting to hint at.
Yes, if you believe you're going to end up in court, and having lots of money is useful for defeating charges, then yes, you should try to get money. That seems pretty simple and not worthy of enacting seizure laws.
If the justice system is so broken that people guilty of massive crimes can pay $50M and get out of charges, then THAT needs to be fixed. You're not seriously suggesting that seizure is a just way to hack around a broken system?
Thomas has a very instrumentalist / consequentialist / realist view of things. It sometimes makes him sound almost amoral. He sometimes gets caught up on the "is" side of "is / ought" discussions, which, as we know, have no resolution because they're two separate worlds.
You know, this may be true (minus the instrumentalism, which is a label I think applies better to the prevailing sentiment of HN), but I don't think it's "amoral" to ask whether the operators of massive criminal enterprises should be able to use the fruit of those operations to reduce the feasibility of prosecution. If you make $10MM selling illegal firearms, the proceeds of that operations aren't "yours"; they're assets generated by criminal activity.
You may be innocent of the charges. If you are, you should get the assets back. To the extent that asset forfeiture makes that process fraught, that's a problem that deserves careful scrutiny.
I submit that I don't sound "amoral" so much as that I don't have exactly the same set of biases that most vocal people on HN seem to have. I don't start from the premise that all prosecution is unjust or malicious; in fact, I think I start from the opposite premise. So when something happens like "all the assets of a business are seized as part of a prosecution", I ask myself, "why would people who have chosen to spend a significant part of their life working at sub-market compensation to help fight crime choose to do that?" Sometimes the answers seem clear to me; in other cases, like the Carmen Ortiz-managed prosecution of Aaron Swartz, they are less clear.
I didn't mean "amoral" as an insult, and I don't think you're amoral. You just seem that way sometimes (to me) in your apparent reluctance to view things[1] from the perspective of how they might be improved (i.e. how they "ought" to be), and rather argue about consequences (the way things are), with little regard for the justice of the larger machine that generates those consequences.
[1] Social / political / judicial / law enforcement things in particular. You've argued lots of times about how things can be positively changed wrt crypto, security etc.
PS: I don't think it's bias. Your perspective is also biased; it's just differently biased than the group average here. Your perspective is welcome and often refreshing.
I feel like I'm very concerned about the justice of the overall system, but that instances of injustice within it don't generally indict the whole system.
I admittedly don't have any evidence of this, but I suspect that "lets become as big and rich as possible" is usually high on the list of priorities for cartels and mobs already, for plenty of other reasons.
What exactly does all of that money buy you for a defense?
What I mean is, are we talking about somebody using their fortune to bribe and buy witnesses? Use their wealth to construct alibis?
Or are we talking about somebody using their fortune to hire a better lawyer than the DOJ can hire? Hire better expert witnesses than the DOJ can hire?
If all of the transactions are legitimate and all that money bought him was a world-class defense.. then I say "tough noogies" to the DOJ. Being able to afford the next Johnnie Cochran doesn't seem problematic to me; the only thing that concerns me is that poor people cannot receive a similarly competent defense.
Legal strategy is only partly about manipulating the perception of truth. The other, often significantly more effective tactic, is to drown your opponent in requests and subpoenas, each of which requires non-trivial resources to respond to.
It's incredibly cash-intensive, you effectively declare legal nuclear war and just go all out. It's virtually impossible to counter without special legislation already in place to counter exactly that sort of threat, e.g. anti-SLAPP laws.
How could that do anything other than delay the inevitable? Sooner or later you are going to be in front of a judge and a jury. They can spam all they want, it isn't going to stop the trial from happening.
I think you can then use the whole charade as an argument that the prosecution made lots of mistakes, increasing the chance for a favorable outcome or conditions for appeal.
Which doesn't solve much because who then controls the spending? And in addition the spending would have to be audited and controlled in some manner that's equitable for both parties.
For example, a defense lawyer could offer reduced hourly rates but include a bonus payment at the end to skew the 1:1 comparison.
In addition, party A can affect the spending of party B, which is part of what's being complained about. Because motions filed by party A can cause party B's costs to rise significantly to the point where their operation is hindered. So it most likely then becomes a race to the top, which once again will benefit the party with the larger war chest up until all assets are used up.
A set percentage of assets would feel better in my opinion, though in extreme cases it would probably still be a pretty penny.
Freeze their assets, but allow them to use it for defense. If they hire reputable expensive lawyers, let them. If they hire disreputable lawyers, catch those lawyers on using funds for something other than legal expenses and disbar them for it. Once they are found guilty, seize the assets.
There is a known procedure that asserts control over person's or entity's finances without actually destroying their ability to conduct business - namely, bankruptcy. So, it is possible. It can be done also for the case of criminal prosecution - the funds are controlled by independent judge which allows the payments that look like legal expenses or other necessary expenses (e.g. if the defendant doesn't have money to buy food). Of course, this can be abused too, but major cases of abuse would be caught and all involved would be prosecuted, as with any law.
So I don't see the necessity to immediately block all assets for somebody prosecuted for criminal conspiracy. I think it is done with sole purpose of making life easier for law enforcement by denying the defendant the capability to hire expensive lawyers that would insist on making life hard for the prosecution.
Anyone rich knows that laundering money is a purchase and sale away: art, jewelry, plane, barge, etc.
As long as there are one or more parties disincentivized or unconcerned with participating in taxation, people will find ways to avoid handing over large sums of cash and "let the little people pay taxes." (Yup, that's how some view it.)
How about a large finders % fee for reporting cheats? Or would NARCing render it moot by social and business pressures?
This is actually extremely interesting, and a potential use for BTC that hadn't occurred to me yet -- as a flexible retainer for legal representation. You can notionally store the information necessary to access a wallet in your head, and provide it to a cooperative attorney without the need to possess anything that can be physically taken from you.
The FBI seizes money so that criminals who manage to acquire $90 million from their crimes can't use that money to pay off people in an attempt to get off. The practice is a response to organized crime prosecutions, which were historically extremely difficult because the organizations had tremendous resources at their disposal.
I agree that there is a potential for abuse, but I'm not sure I want to return to the bad old days where rich organized criminals could totally swamp prosecutors.
My understanding -- admittedly grokked from watching The Wire -- is that criminals usually have lawyers on retainer, and they pay said lawyers before their assets are seized, which in any case makes a lot more sense. There is also the case of the Antiguan bank account under a fake name that the lawyer and defendant know about.
The Dread Pirate Roberts seems to have thought he was invincible and did not take such precautions, of course.
Another poster suggests "spending enormous amounts of money on prosecutions" to counter drug funds. This is problematic because the drug trade is massive, with the market for cocaine alone estimated at >$100B/yr; estimates indicate that the illegal drug market could account for as much as 1% of all global economic activity. For comparison the NSA's budget is about $70B/yr and the DEA is more like $25B/yr.
Do you mean technically, in which case perhaps difficult, but if they've managed to track him down and take the site offline then it may well be possible, or legally, in which case surely it's no different than if a drug dealer kept his drug profits stored in gold bars rather than bank notes, and they'll still confiscate them.
I would totally expect that the $90 million is spread across and whatever they seize will be a small portion of what he has. The rest is available for him to fund his defense (he could make a deal with his lawyers to settle after the trial from these secure funds). On top of that, even if they pin a few charges on him and he spends a few years behind bars, that entire time his bitcoin holdings will be presumably appreciating in value, meaning that he'll be released from prison and could find himself still a millionaire or even a billionaire.
It won't help him if the US can seize the money - they do so whenever possible, to prevent defendants from affording a competent defence.