Why does Sweden Have One of the Highest Sexual Assault Rates in the World?

Every year when comparative crime statistics are updated, there's a head-scratcher: why does the nation of Sweden have one of the the highest rates of sexual assault in the world? The Wikipedia article "Rape in Sweden" consists of little other than a long series of convoluted explanations for this puzzling state of affairs, including expansive legal definitions of sexual assault, awareness campaigns to encourage reporting, and other factors. The problem, of course, is that all Nordic countries have similar cultural and legal environments, but Sweden's rate of sexual assault is 6 or 7 times higher than all neighboring countries. According to a Gatestone Institute report by Swedes Ingrid Carlqvist and Lars Hedegaard:

[I]n 2008, Sweden's neighbor Denmark only had 7.3 rapes per 100,000 inhabitants compared to 53.2 in Sweden?

Danish legislation is not very different from Sweden's, and there is no obvious reason why Danish women should be less inclined to report rape than their Swedish counterparts.

In 2011, 6,509 rapes were reported to the Swedish police -- but only 392 in Denmark. The population of Denmark is about half the size of Sweden's, so even adjusted for size, the discrepancy is significant.

The report cites a statistic from the Swedish National Council on Crime Prevention that 58% of these sexual assaults were by strangers, which is a lot. The report goes on to suggest a different explanation for Sweden's dubious distinction: immigration. This is total immigration and emigration from Sweden for the past 150 years:


After observing that Sweden, like many other European countries, does not keep records on the ethnicity of criminals (how can you be accused of discrimination when you don't keep the numbers that would reveal it?), the Gatestone Report notes that there have been a few -- very few -- academic studies on the prevalence of sexual assaults by immigrant Swedes. The ones that were performed came to rather startling conclusions:

Since 2000, there has only been one research report on immigrant crime. It was done in 2006 by Ann-Christine Hjelm from Karlstads University.

It emerged that in 2002, 85% of those sentenced to at least two years in prison for rape in Svea Hovrätt, a court of appeals, were foreign born or second-generation immigrants.

A 1996 report by the Swedish National Council for Crime Prevention reached the conclusion that immigrants from North Africa (Algeria, Libya, Morocco and Tunisia) were 23 times as likely to commit rape as Swedish men. The figures for men from Iraq, Bulgaria and Romania were, respectively, 20, 18 and 18. Men from the rest of Africa were 16 times more prone to commit rape; and men from Iran, Peru, Ecuador and Bolivia, 10 times as prone as Swedish men.

Now, I don't read Swedish, and can't thus vouch for the accuracy of these statistics. But the previous article from the conservative Gatestone Institute largely checked out, so I am willing to bet they are right.

In any case, I cannot find any detailed refutation of this report, which is packed with statistics, citations and references to original-language sources. It seems to have been met, as is usual with these sorts of reports, with uncomfortable silence. The report cites a telling story of Swedish journalists misleading their readers about who exactly committed a highly-publicized gang-rape:

This month, all major Swedish media reported on a brutal gang rape on board the Finnish Ferry Amorella, running between Stockholm and Åbo in Finland. Big headlines told the readers that the perpetrators were Swedish:

  • "Several Swedish Men Suspected of Rape on the Finland Ferry" (Dagens Nyheter).
  • "Six Swedish Men Raped Woman in Cabin" (Aftonbladet).
  • "Six Swedes Arrested for Rape on Ferry" (Expressen).
  • "Eight Swedes Suspected of Rape on Ferry" (TT – the Swedish News Agency).

On closer inspection, it turned out that seven of the eight suspects were Somalis and one was Iraqi. None of them had Swedish citizenship, so they were not even Swedish in that sense. According to witnesses, the group of men had been scouring the ferry looking for sex. The police released four of them (but they are still suspects) whereas four (all Somalis) remain in custody.

In any event, if it is the case that immigrant males from Arab nations are "23 times as likely" to commit rape as Swedish males once they reach Sweden, wouldn't that perhaps be of relevance, considering that Sweden is currently slated to import tens of thousands more young males from Arab countries? What can Sweden do to reduce the risk of this group of immigrants behaving in a similar fashion? Should immigrants receive special instruction on Swedish laws about sexual assault? I consider these to be important public-safety questions that deserve discussion, not paranoid right-wing fantasies.

And now let's look at it from a left-wing angle. Unless your trust in the Swedish justice system is absolute, you might be tempted to raise another question: is the fact that 85% of all men in prison for serious sexual assault in Sweden are foreigners a true representation of social reality? Or is it possible that they are being singled out or discriminated against? Perhaps Swedish judges are less likely to believe foreigners' explanations for disputed sexual encounters. Perhaps the language barrier or lack of resources plays a role. Perhaps immigrant suspects are getting longer sentences than ethnic Swedes for similar crimes ?

European journalists immediately assume that the over-representation of black Americans in prison signals racism in the justice system. Could something similar be going on in Sweden? Why aren't crusading journalists like Mikeal Blomkvist trying to find this out? Is it because they trust the Swedish justice system to always reach the right conclusions, no matter what? Is it because they are afraid of finding out that the conviction rates actually do reflect reality?

An another question: conservative (but not just conservative) Europeans denounce the mainstream press for actively downplaying immigrant crime, giving citizens an inaccurate picture of what is actually happening in their societies. And looking into the matter, it is clear that European journalists actually do this. It's not just a crazy accusation by right-wing tub-thumpers. If you refer to rape suspects who don't even have Swedish citizenship as "Swedish men", you are lying to your readers. Since this actually happens, the conversation should move on: why does it happen? Perhaps journalists have an explanation for deceiving their readers on this point. Perhaps this explanation might be convincing. But they never even give one. They simply deceive their readers, and then when caught, perhaps make a few hasty edits.

Can anyone point me to an example of a European journalist giving an open, honest, forthright, thoughtful explanation of why many press organs downplay immigrant crime?

Fragen über Fragen, as the German saying goes: Question upon question...

Stolen Mataré and the Weirdness of Art Theft Investigation

From Interpol's most recent flyer showing the most-sought-after works of stolen art, I see that a sculpture by Düsseldorf-based artist Ewald Mataré is on the list:


One of the interesting things about these posters is how little information there is about the stolen artworks. You learn only the name and place of the theft (e.g., Rome -- a 'church') and some descriptions, not even the title of the artwork. Ordinarily when you're spreading information about a crime, you add as many details as possible. Not here. 

I wonder what the strategy behind this is? Interpol obviously knows the details but is choosing not the share them. There must be some reason for this. Perhaps to make it easier for someone to report or return the work of art anonymously? But that's just a guess.

Another interesting wrinkle is the American authorities' method of investigating the biggest art theft in modern history (by value, at least), the 1990 theft at the Isabella Stewart Gardner Museum in Boston, Massachusetts. Two men posing as cops stole art worth hundreds of millions -- 2 Rembrandts, a Manet, a Degas, a Vermeer. Still unaccounted for. Hints of mob involvement. The US authorities have repeatedly announced they think they know who committed this theft:

In March 2013, the FBI said it believed it knows the identity of the thieves. They believe that the theft was carried out by a criminal organization based in the mid-Atlantic and New England, and that the stolen paintings were moved by a criminal organization through Connecticut and the Philadelphia area in the years following the theft. The FBI believes some of the art may have been sold in Philadelphia in the early 2000s.


On August 11, 2015, FBI special agent Peter Kowenhoven revealed that the two suspects of the theft, previously identified by the FBI but not revealed publicly, are deceased. In an interview with the Associated Press, Kowenhoven declined to identify the individuals.

They have questioned people, but have not arrested or prosecuted anybody. Again, the puzzling ambiguities. Why announce that you think you know who did it without any searches or prosecutions? It's one thing to not have enough evidence, but what purpose is served by announcing that you don't have enough evidence? Just recently it turned out that one of the security guards who were 'overpowered' during the incident was seen buzzing someone into the museum against policy the day before the theft. But he was not arrested.

What tactical purpose does all this caginess serve? Anyone have an idea?

When Can German Police Stop and Question You?

Public service time! In the USA, there is a cottage industry of people spreading the word about what rights citizens have during encounters with police. One of the best videos is from 'Flex Your Rights'. It's just below. The video addresses automobile stops and house searches, but I decided to concentrate on this post on police stopping and questioning people on foot. The video starts just as a a police car pulls up to question a young black male. The cops are investigating illegal graffiti in the area. The lawyer comments on each step of the transaction: 

So what's the situation in Germany? A popular German legal website has a short but informative article here (g). The basic ground rules:

Police must always give you a reason for stopping and questioning you. However, this reason does not alway have to be a concrete suspicion. In certain circumstances police are permitted to stop people as a preventive measure to avoid dangers to public safety (Gefahrenabwehr). These are not intended to assist in investigating a crime, but rather preventing one.

For this justification to apply, it needs to be shown that a danger to public safety exists at a particular location -- for instance, a demonstration in which disturbances are likely to take place, or a well-known drug market where crimes are routine.

Such places are often named specifically in your local state's local-policing law -- for instance Bavaria allows suspicionless public-safety searches where large numbers of prostitutes gather. Also, in special circumstances police can declare entire regions of a city 'danger zones', as Hamburg did in 2014 during left-wing demonstrations.

And what if the police do stop you based on general location? You are required to answer basic questions: your name, your address, your nationality, date and place of birth. The police can ask you to present an identification card (either the German national identity card or a passport), but you are not required to carry this identification around with you everywhere, so if you don't have it with you, that is not against the law.

The police may ask you further questions, such as where you are coming from and where you are going, but you are not required to answer them. A lawyer quoted in the article recommends that you do answer them in a polite but very curt manner, since this is likely to de-escalate the situation.

Note that this applies only when the police stop you without any concrete suspicion you have committed a crime. If they do have such a suspicion, they may be entitled to ask more questions.

The police are also permitted to engage in questioning of random people without individualized suspicion of crime at airports and train stations and trains. The purpose of these stops is usually to try to find illegal immigrants. A German court has found that stopping someone based solely on their appearance or skin color is unconstitutional according to the German Basic Law. (The lawyer in me says they will almost certainly find other ways to justify the search, though.)

Understanding Comparative Crime Rates

Some comments I've been getting here and elsewhere show some people may be unfamiliar with demographic statistics. So here's a short post to put things in perspective:

  1. The Country of Utopia has 1 million inhabitants, split between two population groups: the Martians and the Plutonians.
  2. There are 900,000 Martians and 100,000 Plutonians.
  3. In 2014, there were 27 murders committed by Martians, and 30 murders committed by Plutonians.
  4. So, the raw number of murders committed by each population group is similar. However, raw numbers are meaningless.
  5. The most common measure in criminology, sociology, and demographics is rate per year per 100,000 people. Almost every population-level statistic you see uses this measure.
  6. So, in 2014 there were 3 murders per 100,000 committed by Martians, and 30 murders per 100,000 committed by Plutonians.
  7. This means the murder rate among Plutonians is about 10 times higher than the murder rate among Martians. (This is generally the ratio in the USA when it comes to murder rates among whites and blacks.)
  8. This also means that only .003% of Martians and .03% of Plutonians committed murder in 2014.
  9. In other words, when it comes to murder, the vast majority of both Martians and Plutonians are law-abiding citizens.

So, the statement that 'those Plutonians are all criminals' is an moronic over-generalization. The statement: 'there is a much higher rate of murder among Plutonians' is accurate.

Now if only .03% of Plutonians are murderers, why is it that some Plutonian neighborhoods may be unsafe to visit? That's because the murder rate within the Plutonian population is not evenly distributed. 50% of Plutonians are female, and 50% of Plutonian males are under 10 or over 45. These groups present very low risk of violent crime. For simplicity's sake we'll leave out socio-economic status (poorer people universally have higher crime rates) and focus only on age. 90.5% of all homicides are committed by males, and the vast majority are committed by young males. So to continue with our example:

  1. Let's say that 24 of the 30 homicides were committed by Plutonian men between 10 and 45 years of age: that is, 25,000 people.
  2. That means the murder rate among young Plutonian males is 96 per 100,000. That is 3.2 times higher than the general murder rate for all Plutonians, and 32 times higher than the rate among all Martians.
  3. Let's assume the same effect holds for Martians (not 100% true but close): the murder rate for young Martian males is 3.2 times the overall base rate of 3, or 9.6 per 100,000.

So this means that all things considered, if you want to minimize your risk of being the victim of a homicide, you should probably avoid neighborhoods with large concentrations of young Plutonian males, since they have the highest homicide rate in Utopia. Nevertheless, of course, even in this sub-group, the vast majority of young Plutonians are law-abiding, so your risk of being killed is still very low (especially since these rates are for an entire year and you'll just be there a day). However, assuming that the rates for other crimes show similar characteristics for the rate of homicide (again, this is generally true, but lots of caveats apply), your risk of being the victim of some crime in a high-young-male-Plutonian neighborhood may well be non-trivial.

I hope that clarifies things.

84% of People Killed by US Police This Year Were Armed

Blog_police_killings_washington_postBoth the Washington Post and the Guardian have been trying to create national databases of the number of people killed by police in the USA, since the federal government doesn't do this. The Guardian reporters did a Reddit AMA about their series here. The graphic was the result of number crunching done by Bob Somerby and graph by Kevin Drum, who comments:

[A]bout 16 percent of the victims weren't carrying a deadly weapon at the time they were killed. That breaks down like this:

  • 26 blacks out of 132, or about 20 percent.
  • 35 whites out of 253, or about 14 percent.
  • 17 Hispanics out of 83, or about 20 percent.

These percentages are roughly similar across races, but don't account for total population. When you account for that, unarmed blacks are killed at about 4x the rate of whites and 2x the rate of Hispanics.

Blacks are over-represented given their share of the population, but it's impossible to say whether that's true given their much higher share of violent crime, as I've pointed out recently. Obviously each death of an person at the hands of police warrants concern, investigation, and perhaps changes in policy, especially if they're unarmed. But is there a massive epidemic of unarmed black people being gunned down by police in America? No. 

China Rethinking Capital Punishment?

The New York Times notes China's softening stance on the death penalty: 

Last month, China’s Supreme People’s Court overturned the death sentence of a woman who brutally killed and dismembered her husband. The landmark decision to send the high-profile case back to a provincial court was yet another sign that the country’s embrace of the death penalty is loosening.

China is believed to execute more people each year than the rest of the world combined, and 43-year-old Li Yan initially seemed a likely candidate for death row. In 2010, she beat her husband to death with an air gun, chopped him into pieces and boiled his body parts. But police photos and a medical report backed up Ms. Li’s claims that her husband had abused her — stubbing out cigarettes on her body, banging her head against the wall and threatening her with the air gun. The Supreme Court determined, rightly, that these circumstances justified a retrial.

China is putting the brakes on the death penalty. According to Liu Renwen, a legal scholar at the Chinese Academy of Social Sciences, between 2007 and 2011 the annual number of executions in China fell by half. Many violent offenders are now given so-called suspended death sentences, which are invariably downgraded later to life in prison. Such restraint has drawn broad public support.


Interviews conducted by criminologists suggest that international criticism has had an impact as well. In 1977, a mere 16 countries had abolished the death penalty; today 140 countries — over two-thirds of the world’s nations — have done so in law or practice. Chinese legal scholars and judges are fully aware of their country’s role as the outlier.

In 2006 a group of reform-minded justices began formally advocating moderation in punishment. Led by Xiao Yang, then the Supreme People’s Court chief justice, they pushed the maxim “kill fewer, kill cautiously.” The following year, the high court began reviewing all capital cases, creating a strong disincentive for lower courts to hand out death sentences. The substitution in many cases of suspended death sentences — which in practice means offenders spend about 25 years in prison — was the result.

The shift met resistance from hard-liners who warned of a spike in crime. But pandemonium did not ensue. Some criminologists now argue that the harsh campaigns of the past in fact sparked violent crime, by making criminals reluctant to leave witnesses behind.

Readers! Your clairvoyant blog host, Me, totally predicted this in my 2010 book (pp. 234-235):

[China]  has one unified national penal code (adopted in 1979 and modified many times since), and a political structure which insulates ruling elites from popular opinion. Were China’s ruling elites to be convinced that abolition was a desirable step, they would be able to implement it without fearing a formal political backlash. Even if Chinese leaders were not swayed by humanitarian concerns, there is a pragmatic case for the move: abolition of capital punishment by China would generate an avalanche of favorable coverage from the international media, and would be a potent weapon against critics of China’s human rights policies. In par- ticular, China could point to the continued use of capital punishment by the United States to parry American denunciations. Given the sensitivity of Chinese officialdom to critiques of its human rights policies, it would seem that abolishing capital punishment would be a low-cost way to project a more sympathetic image on the world stage.

You can buy this masterpiece by clicking on the box to the right. Whatever the price in your local currency, it's a bargain at twice that price!

The Savagery of U.S. Criminal Justice, Part II

Another bizarre threat served up by the United States federal criminal-justice system:

The shuttered Hump restaurant in Santa Monica and two of its sushi chefs have been indicted by a federal grand jury on charges including selling sei whale meat, an announcement from the U.S. attorney's office in Los Angeles says.

Typhoon Restaurant Inc., the parent company of the Hump, and Kiyoshiro Yamamoto and Susumu Ueda were named in the nine-count indictment. Other charges include conspiracy to import and sell meat from the endangered sei whale and lying to federal investigators. 

The Hump closed in 2010 after an associate producer of the documentary "The Cove," which investigated the killing of dolphins in Japan, orchestrated a video sting. The Times reported that two participating activists asked if they could order whale meat as part of an omakase meal and a waitress served eight pieces, according to a federal affidavit. DNA tests confirmed the meat came from a sei whale, which is protected under the Marine Mammal Protection Act. It's illegal to sell any kind of whale meat in the U.S.

If convicted, Yamamoto faces up to 67 years in prison, and Ueda faces a maximum 10-year term. Typhoon would face fines totaling $1.2 million.

Yes, you read that right: 67 years for selling whale meat, conspiracy to sell whale meat (which, in the wonderful world of American criminal justice, is actually a separate crime), and lying to federal investigators. So, a chef sells endangered whale meat once to undercover investigators, and now faces 67 years in prison.

To add some context, the chance of this fellow actually getting a 67-year-sentence is low. A federal judge will do the sentencing, and has discretion to impose a much lower sentence than the theoretical maximum. What's happening here is that prosecutors have stacked up as many separate charges as possible to terrorize this man into cutting a deal. If you were faced with this tactic, you would think as follows: There's probably a 90% chance I'll get a sentence of something like 5 years, a 9 percent chance I'll get no prison time, and a 1% chance of getting a sentence of 50+ years (this just an illustration, federal sentencing law is actually more complex than this).

What would you do to avoid even a slight possibility that the rest of your life will be utterly destroyed? A lot. You would take a deal for, say, 8 years. At least then you can be certain of the outcome. If you hadn't been threatened with 67 years in prison, you might have risked a trial, or at least insisted on a deal for 2 or 3 years in prison. But the prosecution can bludgeon you into throwing several extra years of your life away by threatening you with an insanely long sentence that is, at least, theoretically permissible.

And to think that Americans pride themselves on being rugged individualists with a distrust of government power.

German Internet User Threatened With Bankruptcy and Jail for Posting Video

The problem of outdated laws inflicting unpredictable, massive penalties on people who use the Internet in unapproved ways (see Aaron Swartz) is also acute in Germany. Case in point: In 2000, a highly unusual-looking man, seeking attention, went out onto the streets of Berlin to dance in a techno-parade. Another attendee filmed him doing his thing. This is the result:

Notice that there's no attempt to conceal the filming. The filmer, Matthias Fritsch, decided to post the video online, figuring it might amuse other people. Indeed it did: the man in the video became known as the Technoviking, and his moves spawned an Internet subculture. Fritsch even made a modest amount of money from all the YouTube views.

And now, thirteen years later, he faces bankruptcy and jail. The Daily Dot reports:

[Fritsch stated:] "I am being accused for creation and publication of images connected to the Technoviking, therefore infringement of personality rights. They also say I am earning a lot of money by that. They argue that [I] gave him the name Technoviking, create 3D characters, comics and more to constantly increase the popularity in order to market Technoviking and therefore cause damage to the protagonist"

If Fritsch loses, so does the Internet. He'll have to scrub any original content he created that featured the Technoviking's likeness, and he'll be barred from creating new content. Worse, the lawsuit accuses him of creating numerous other derivative works, most of which Fritsch says he never touched....

Failing to do that, Fritsch would face a €250,000 ($334,441 U.S.) fine and up to six months in jail. Fritsch said the lawsuit only includes content he allegedly posted, so no matter the result of the trial, other Technoviking remixes around the Web are safe—for now.

"I can't say how far his intentions go for removing content that is posted by other people," Fritsch said. "It would be a Don Quixote action to try removing Technoviking from the Web."

Fritsch, who still won't reveal the Technoviking's identity despite the lawsuit, said he's not really worried about the trial. He doesn't take credit for the Technoviking character, which he believes was born out of the collaborative creativity of millions of Internet users.

"I am only worried that the judge might not understand contemporary web-culture and therefore judges from an old fashioned perspective," Fritsch said. "Artists are not rich usually and I am one of those artists. To put me in a financial emergency is really something I wouldn't like.

Technoviking's lawyer is almost certainly suing under German Persönlichkeitsrecht, which gives people control over how their own image is disseminated. The most famous case is the so-caller Herrenreiter (g) (dressage rider) decision from 1958, in which a professional horse rider's image was used without his permission in advertisements for a tonic thought to increase male potency. You could also sue for this under the common law, since this is appropriation of someone's unmistakable image without consent or payment to use in advertisements for a consumer product.

However, the common law has a different answer when it comes to people who are voluntarily putting themselves on display in public. In this case, the law generally says that if you volunarily go outside and expose your image to thousands of strangers, you are demonstrating that you don't wish that what you're doing should be kept secret, and therefore your image can be taken and used by others. There is, however, an exception for voyeuristic videos that attempt to reveal parts of your body you would wish to be kept secret (such as upskirt videos). That's obviously not an issue here. Some courts also have an exception when your image is used without your consent for a profit-making enterprise that you certainly would have demanded money for participating in had you known about it.

Under the common law, then the Technoviking video can be legally shared. Technoviking went out into a public festival, where certainly knew he might be filmed, and started dancing. He was sharing his image with thousands of strangers, and obviously enjoyed himself doing so. The artist was not using the Technoviking's image to sell a product, and the money he earned from it was merely incidental to its unexpected success. And it was, of course, money for something he created -- the video of an interesting person dancing on the street.

The idea that this could lead to jail time is an absurd consequences of Germany's outdated privacy and intellectual property laws, which also subject you to hefty fines, believe it or not, if someone else (g) posts a copyrighted picture to your Facebook page. The problem here is uncertainty. Germans are normally obsessed with Rechtssicherheit, the notion that the law must be stable and clear, so that private persons can regulate their affairs in peace. But there's a huge hole in that protection when it comes to Internet users. The persistence of these old, overbroad definitions are a constant background threat that chills Internet freedom. Any of you who have a Facebook account could theoretically face a lawsuit tomorrow for something innocent you shared with your friends years ago. All that needs to happen is for someone to find out about it and contacts one of the many German lawyers who specialize in harassing German internet users with ludicrously exaggerated damages claims for infringements both real and alleged.

This is why I have a soft spot for the Pirate Party, for all their shenanigans. None of the mainstream German parties was giving much thought to these issues before the Pirate Party came along. This was due probably in equal measure to technological ignorance, the inherent conservatism of the German legal system, and effective lobbying by the content industry. The Pirates found resonance because they pointed out that outdated laws were making potential criminals of literally millions of citizens, an absurd state of affairs in a country that claims to be governed by the rule of law. The Pirates, in the best tradition of third parties, forced the mainstream to finally face an issue they'd been all to happy to ignore.

Prosecutors are Demi-Gods in the United States

The American criminal justice system stands out not only for the severity of its criminal sentencing, but for the incredible leeway it gives to prosecutors. Prosecutors exercise sole discretion over what charges to file against defendants and what deals to cut with them, if any. There are no formal requirements that prosecutors treat like crimes alike, and no rule against a prosecutor singling out one defendant for an extremely severe sentence to 'set an example'.

Although constitutional rules require prosecutors to turn over exonerating evidence to the defense, it is the prosecutor's own prerogative to decide what evidence must be turned over, and what can be kept secret. Not surprisingly, prosecutors often abuse this prerogative and conceal favorable evidence from the defense. If this fact is discovered at all, it may be only after the defendant has spent years in prison, and it often results in no punishment at all for the prosecutor. This is mainly owing to the fact that prosecutors, as government officials, enjoy immunity for actions they take during the course of duty, and this legal protection is nearly impossible to overcome. In 2011, for instance, the United States Supreme Court ruled that a Louisiana prosecutors who confessed to intentionally suppressing blood testing showing a defendant's innocence -- thereby sending him to death row to wait for execution for 14 years -- could not be held liable in a civil court.

But that's not all. Prosecutors can engage in overcharging: threatening defendants with extra crimes despite weak evidence, in order to force them to accept plea bargains. They can also charge defendants with every single act of illegality and seek consecutive sentences, creating the potential for huge punishments. This is also true if all of the violations were only part of one scheme. For instance, if you ran a scam sending out fraudulent letters, the prosecutor can decide to charge you for every single piece of mail the operation sent out, attaching a penalty to each one. So, for example, if you send out 60 fraudulent letters during your scheme, and the maximum sentence for each letter is 5 years in prison, then there is nothing stopping the prosecution from charging you with 60 separate offenses, and asking for a 5-year consecutive sentence on each one, for a total of 300 years in prison. Although this would raise a few eyebrows, and the judge would be likely to impose a much lighter sentence, there's nothing preventing the prosecution from asking for this insane punishment, and judges will often agree to sentence offenders to extremely long consecutive sentences.

The fact that prosecutors are immune from any effective accountability helps to explain the case of Aaron Swartz, the activists who recently committed suicide while facing prosecution for hacking into a database of academic articles. Glenn Greenwald reports:

The Wall Street Journal reported this week that - two days before the 26-year-old activist killed himself on Friday - federal prosecutors again rejected a plea bargain offer from Swartz's lawyers that would have kept him out of prison. They instead demanded that he "would need to plead guilty to every count" and made clear that "the government would insist on prison time". That made a trial on all 15 felony counts - with the threat of a lengthy prison sentence if convicted - a virtual inevitability.

Just three months ago, [prosecutor Carmen] Ortiz's office, as TechDirt reported, severely escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which "carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony", meaning "the sentence could conceivably total 50+ years and [a] fine in the area of $4 million." That meant, as Think Progress documented, that Swartz faced "a more severe prison term than killers, slave dealers and bank robbers".

Swartz's girlfriend, Taren Stinebrickner-Kauffman, told the WSJ that the case had drained all of his money and he could not afford to pay for a trial. At Swartz's funeral in Chicago on Tuesday, his father flatly stated that his son "was killed by the government".

Ortiz and Heymann continue to refuse to speak publicly about what they did in this case - at least officially....

A petition on the White House's website to fire Ortiz quickly exceeded the 25,000 signatures needed to compel a reply, and a similar petition aimed at Heymann has also attracted thousands of signatures, and is likely to gather steam in the wake of revelations that another young hacker committed suicide in 2008 in response to Heymann's pursuit of him (You can [and I hope will] sign both petitions by clicking on those links; the Heymann petition in particular needs more signatures)....

In sum, as Sen Jim Webb courageously put it when he introduced a bill aimed at fundamentally reforming America's penal state, a bill that predictably went nowhere: "America's criminal justice system has deteriorated to the point that it is a national disgrace" and "we are locking up too many people who do not belong in jail." The tragedy of Aaron Swartz's mistreatment can and should be used as a trigger to challenge these oppressive penal policies. As Moynihan wrote: "those outraged by Swartz's suicide and looking to convert their anger into action would be best served by focusing their attention on the brutishness and stupidity of America's criminal justice system."

I have signed both petitions. Of course, Obama is not going to fire the prosecutor for simply pursuing Draconian punishments -- he probably considers that part of her job. And firing one prosecutor doesn't solve any of the systemic problems. But at least it's shone a bit of sunlight on this area. The more I study other criminal justice systems, the more I become aware of how many aspects of the U.S. system are preposterously outdated, inefficient, and/or unjust. There's a German saying: Der als Normalität getarnte Wahnsinn: Insanity disguised as normality. Hmm, that might make a good subtitle.

Throwing the Mentally Ill into Prison

The Supreme Court of the United States just handed down a peculiar decision. By a vote of 6-3, it refused to decide an Idaho case in which an extremely mentally ill man was denied any chance to lodge an insanity defense and was sentenced to two life prison terms for murder. This result is possible because, 1982, the state of Idaho decided to break with thousands of years of legal tradition (pdf) and completely abolish the insanity defense. In Idaho, since 1982, mentally ill people cannot introduce evidence of their mental illness and are sentenced to precisely the same prison terms as ordinary criminals: as the law states, '[m]ental condition shall not be a defense to any charge of criminal conduct.' Idaho Code §18–207(1).* The courts of Idaho held that the legislature's decision to abolishing the insanity defense was not inconsistent with Constitutional due process

The United States Supreme Court just allowed that decision to stand. This means the other 46 American states who still permit some sort of insanity defense may, if they choose, now abolish it. They probably won't, though. Three Justices of the U.S. Supreme Court dissented from the majority's decision (pdf). And the mere fact that the Supreme Court didn't take this case does not imply any sort of judgment. They still remain free to decide the issue later -- although this case, Delling v. Idaho, was an excellent test case, since Delling was so disturbed that he had to be medicated for a year just to make him competent to stand trial. Nobody disputed that Delling was mentally ill, and that his illness was responsible for his crimes. But under Idaho law, that was irrelevant.

This is the danger of passing legislation based on a single spectacular case. In Germany, talking heads intervene after a spectacular crime and admonish the public that 'we must remain calm and assess the issue rationally without overreacting to a single incident (Einzelfall).' Examples for the skeptical here (g) and here (g). To some, this phrase may smack of elite condescension, but to others, it's a necessary corrective (these categories are hardly mutually exclusive). To understand this issue, you have to look at the date. Idaho passed this law in 1982 -- that is, just after the trial of John Hinckley, the man who attempted to assassinate President Ronald Reagan on 30 March 1981. Hinckley was found not guilty by reason of insanity after evidence was introduced that he had become obsessed with the actress Jodie Foster.

After Hinckley's acquittal, there was a backlash against the very idea of the insanity defense. Politicians and conservative commentators began thumping the tub, claiming that the insanity defense was being abused everywhere to let guilty criminals off the hook. (In fact, it is only invoked in a tiny percentage of American criminal trials, and is successful only in a minority of those). The message resonated with Americans, who thought that huge numbers of criminals were 'getting off' on insanity pleas (yet another example of the gob-smacking political ignorance of many Americans). In the aftermath of the Hinckley trial, many states and the U.S. government narrowed the insanity defense, and three states -- including Idaho -- abolished it altogether. These laws weren' the product of careful reflection or policy analysis -- they were just spasms of opportunism by politicians eager to exploit a passing public mood.

But Idaho politicians, wary of being accused of being 'soft on crime', never changed the law. Which means paranoid schizophrenic Joseph Delling faces life in prison with mental illness. A Human Rights Watch report describes the future he faces:

Without the necessary care, mentally ill prisoners suffer painful symptoms and their conditions can deteriorate. They are afflicted with delusions and hallucinations, debilitating fears, or extreme mood swings. They huddle silently in their cells, mumble incoherently, or yell incessantly. They refuse to obey orders or lash out without apparent provocation. They beat their heads against cell walls, smear themselves with feces, self-mutilate, and commit suicide.

Doing time in prison is hard for everyone. Prisoners struggle to maintain their self-respect and emotional equilibrium in facilities that are typically tense, overcrowded, fraught with the potential for violence, cut off from families and communities, and devoid of opportunities for meaningful education, work, or other productive activities. But life in prison is particularly difficult for prisoners with mental illnesses that impair their thinking, emotional responses, and ability to cope. They are more likely to be exploited and victimized by other prisoners. They are less likely to be able to adhere to the countless formal and informal rules of a strictly regimented life and often have higher rates of rule-breaking than other prisoners.

And this all came about because some long-forgotten, perhaps even long-dead Idaho lawmaker, 30 years ago, decided to score political points by introducing a bill eliminating what had been a pillar of the Anglo-American legal order for hundreds of years. I doubt that these long-ago Idaho lawmakers envisioned that the law would be used in cases such as Delling's. They thought they were sticking it to those clever, big-money defense lawyers and cynical, malingering defendants. But once the law is on the books, it's there forever. Who knows how many other mentally ill people have been sentenced to prison terms in Idaho the past 30 years because of this law?

Delling's story showcases the danger of 'legislating based on a singe case.' It's especially likely to happen in the U.S. in the area of criminal law, since accused (and especially convicted) criminals are about the safest punching bags a populist politician can find. And there's nothing to stop these politicians except for their consciences....