How plea agreements, never contemplated by the Framers, undermine justice
5th July 2011
No one ever proposed a radical restructuring of the criminal justice system, one that would replace jury trials with a supposedly superior system of charge-and-sentence bargaining. Like the growth of government in general, plea bargaining slowly crept into and eventually grew to dominate the system.
This is because prosecutors have an incentive to get through lots of cases quickly with as high a conviction rate, no matter for what, as possible, because they’re using it as a stepping-stone to the next political office. The system is structurally defective. (Just like our legislative process.)
From a defendant’s perspective, plea bargaining extorts guilty pleas. People who have never been prosecuted may think there is no way they would plead guilty to a crime they did not commit. But when the government has a “witness” who is willing to lie, and your own attorney urges you to accept one year in prison rather than risk a 10-year sentence, the decision becomes harder. As William Young, then chief judge of the U.S. District Court in Massachusetts, observed in an unusually blunt 2004 opinion, “The focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused.”
The trope ‘Admit your guilt and you’ll get a lighter sentence; be a butt about it and we’ll throw the book at you’ is a standard one in cop shows, to the point where more people consider it some sort of law of nature. The fact that juries are composed of people from the left side of the IQ bell curve — and that everyone is aware of that fact — certainly doesn’t help. Having watched ‘juries’ deliberate through one-way glass during trial practice exercises in law school, the last thing I would want is for my fate to be in the hands of a typical jury.
One point often stressed by progressives is that trials bring scrutiny to police conduct. But when deals are struck in courthouse hallways, judges never hear about illegal searches or detentions. This only encourages further misconduct. Conservatives, meanwhile, are right to wonder whether overburdened prosecutors give the guilty too many lenient deals. Why should an armed robber get to plead guilty to a lesser crime such as petty theft?
Modern courts aren’t about justice, they’re about resolution. Getting the case resolved is what goes on ‘your permanent record’ as an attorney or judge; justice doesn’t enter into it.
It is remarkable how few people will openly defend the primary method by which our courts handle criminal cases. The most common apologia for plea bargaining is a pragmatic argument: Courthouses are so busy that they would grind to a halt if every case, or even a substantial share of them, went to trial. But there is nothing inevitable about those crushing caseloads. Politicians chose to expand the list of crimes, eventually turning millions of Americans into criminals. Ending the disastrous war on drugs would unclog our courts in short order.
Shooting one-in-ten legislators whose session ended with more laws on the books than when they started would be another effective method, and (I suggest) much more satisfying to the public.
But that’s me.