>This is kind of tautological.

It is kind of tautological. What it isn't is consistent with the existing CFAA and the drug laws.

>This might seem excessive if you aren't familiar with teh criminal justice system, but it's not that long since we were willing to hang horse thieves and nobody found that idea remarkable.

The days of hanging horse thieves were also the days when black people were slaves, women couldn't vote and "witches" were burned at the stake, and nobody at the time found those things remarkable either. We've made a lot of progress since then. I believe we can still make some more.

>Well, how about that CEO in Iowa who robbed $216 million from a pension fund and was sentenced yesterday to 50 years in prison; what do you think an appropriate maximum should be for financial crimes like that?

I didn't mean to suggest that all nonviolent crimes should not be felonies, merely that felony nonviolent crimes should be the exception rather than the rule. I don't have a problem with felony penalties for serious financial crimes. Profit motive and intent to cause non-speculative provable high damages tends to remove things from the realm of mistakes that generally honest people can sometimes make.

> What about the situation where the maximum penalty is not that high, but someone commits multiple offenses?

If you mean actually multiple offenses (e.g. someone steals a set of lock picks and then uses them to break into a toolshed; it's two separate offenses), I don't have a problem with that. If you mean someone did one thing but it violates thirteen overlapping laws, that seems ridiculous to me. Prosecutors should not be allowed to charge a single underlying action with more than one crime; pick one and commit to it. Moreover, we shouldn't have such a degree of overlap in the law. It should not be the case that "everyone is guilty of something." That only enables prosecutors to find someone they don't like and then look for (and easily find) something they can be charged with rather than uncovering a criminal act and charging the person who committed it.

>Have you ever read the sentencing guidelines or looked at cases where they're argued at appeal? They are very narrowly defined and specific.

Some of them are narrow and specific. Some of them aren't. The ones that aren't are still problematic. Here are some examples from "Computer Fraud":

A substantial part of a fraudulent scheme was committed from outside the United States? [You don't live in the United States, or your "accomplice" doesn't, or you went on vacation with your laptop a couple of times.]
The offense otherwise involved sophisticated means? [She's a witch! Burn her!]
Offense involved an intent to obtain personal information? [Almost all computers contain personal information; good luck arguing that it wasn't your "intent" to "obtain" it in any given case.]

Moreover, even for the ones that are individually narrow, the "check the box" cumulative method causes them to become broad in the aggregate. Rather than having a narrow crime and if you didn't do it you go free, we instead get a broad crime that makes everyone guilty and the only question is how many boxes the prosecutor can check to ratchet up the penalty.

>I have read plenty of cases being prosecuted as attempted murder that don't make the news

It doesn't surprise me that prosecutors would file charges like that, but do these non-murderers actually plead guilty to murder or get convicted of it?

>The point of a plea bargain is that if you are probably not going to win at trial because the evidence is against you, then by accepting responsibility and saving the state the cost of a trial you are offered a sentence that reflects the reduced burden on the public. It seems to me that you want to have your cake and eat it.

It makes sense to offer someone a slightly reduced penalty to avoid a trial. When someone is all but guaranteed to be found guilty, the prospect of not having to go through the ordeal (because hey, it's not just the government that feels the burden of a trial) and receiving e.g. a six month sentence instead of the eight months they would get at trial is a fair bargain, and it doesn't significantly coerce anyone inclined to defend themselves into taking the deal. The issue is that the delta is too large: When you get offered six months and the sentencing guidelines say you would get multiple years if you lose at trial on top of your own personal expense of defending yourself, it stops making sense to try to defend yourself unless you are almost certain that you can win, and sometimes even then the burden of the trial (which is multiplied because the stakes are so high it allows you to spare no expense) can still exceed the burden of the sentence offered in the plea bargain.

>AT first blush, but when you figure in the opportunity cost of pleading guilty then it's not that good a deal.

I'm not sure what you mean by opportunity cost. The alternative to a plea is to go to trial and risk a much higher penalty if you lose. You have to discount as best you can the chance of winning by the cost of losing bigger than you would with a plea.

>One of the flaws in your analysis is the assumption that the probability of victory is easily calculable.

Why do you imagine accuracy is necessary for the conclusion? If all you know is that your lawyer tells you that it's more likely than not but also very much not guaranteed that you'll prevail in court, does that leave you in a substantially different decision making posture from knowing that the chances are exactly 75.4%? If anything the inability to predict accurately is likely to make people more risk averse and more likely for an innocent person to accept a plea.

And this calculus is exacerbated by the fact that the prosecutor has about as good an idea as defense counsel how strong their case is and will tailor the plea offer to the strength of their case, with the result that the people more likely to be innocent are still offered plea bargains specifically calculated in order to make them take the offer rather than go to trial.

>Basically the guilty have no incentive to skip the trial because they might get lucky.

I don't understand how you can say that risking an order of magnitude higher penalty is "no incentive" -- the numbers speak for themselves. If there is no incentive then why does almost no one go to trial?

>I mean, how exactly do you expect prosecutors to negotiate guilty pleas if they don't actually have anything to offer? That'd be like haggling with someone who just keeps demanding the same price over and over.

They should be able to offer a small reduction from what the result is expected be at trial. Offering to cut the penalty more than in half is entirely too coercive; the expected penalty at trial should be less than double what plea offers are currently. For the criminals who are caught dead to rights, it would still make perfect sense to take the deal in exchange for a small reduction, because by stipulation they can't win and their lawyers should know that. In contrast, if prosecutors have charged a case where the defendant has a significant chance to prevail, that case should go to court -- and if that happens too often to be economical then either the law needs to be changed or prosecutors ought to stop charging so many questionable cases.