WASHINGTON — Herewith a two-question quiz: What is the only right affirmed both in the unamended Constitution of 1787 and in the Bill of Rights? And what governmental practice produces the most pervasive and glaring civil rights deprivations?
The answer to the first question is: the right to trial by jury. (Article III, Section 2: “The trial of all crimes, except in cases of impeachment, shall be by jury”; Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”) The answer to the second is: plea bargaining as currently practiced, which often effectively nullifies this right.
A just-published report by an American Bar Association task force says plea bargaining has not only become the primary way to resolve criminal cases, “some jurisdictions have not had a criminal trial in many years.” Think about that: Years can pass without a defendant exercising the constitutional right to an adversarial process conducted in public in front of a neutral judge and a jury of the defendant’s peers.
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Eighteen percent of the more than 2,000 persons known to have been exonerated of crimes — not just found to have been convicted in flawed legal proceedings: exonerated — had pleaded guilty. As of 2020, according to the Innocence Project, of 375 convicts exonerated by DNA evidence, 11.7% had pleaded guilty. Many of the exonerees, caught up in an intimidating process that can be fast-moving and bewildering, were from racial minorities.
Last year, 98.3% of federal criminal convictions, and about 95% in the states, resulted from bargained guilty pleas. Why? To a significant extent, coercion.
This often begins with detention in frightening conditions: To be arrested is to be suddenly plunged into control by a government speaking an often arcane legal language. Then there is “stacking” — prosecutors piling on charges which, in a context of mandatory minimum sentences, force defendants to choose between risking potentially life-ruining trials and pleading guilty to lesser charges, even if innocent.
This “trial penalty” for exercising a fundamental constitutional right is intolerable. In terms of justice, what is the superiority of confessions achieved by the coercion of “stacking” in a courthouse negotiation, and those achieved in the bad old days by beatings with truncheons in the backrooms of police stations?
The task force’s report stresses that plea bargaining has legitimate uses. It incentivizes defendants to accept responsibility for criminal conduct, and offers finality to their victims and the community. Furthermore, prosecutorial resources are scarce, and plea bargaining is a mechanism for efficiently resolving cases. No value in life, however, invariably supersedes all others, and the pursuit of efficiency has too often become “the driving force of criminal adjudication,” supplanting transparency and justice.
A consequence of excessive plea bargaining is, the ABA’s report says, that “police and government misconduct often goes unchecked because so few defendants proceed to pre-trial hearings where such misconduct is litigated.” Furthermore, prosecutors become less skeptical of their witnesses, and less scrupulous about not advancing weak cases. Defense lawyers become less rigorous in investigating cases that seem destined for a plea deal. With such deals, defendants waive the right to confront adverse witnesses, and perhaps to challenge unconstitutionally procured evidence and to receive materials prosecutors acquired during discovery.
The task force recommends, among other reforms, that “sentences should not be punitively inflated simply because a defendant exercised” the right to a trial. So, judges should be allowed to judge, departing from any mandatory minimum sentences in order “to avoid a substantial differential between the trial sentence and any lesser sentence offered as part of a plea bargain.” And there never should be the “inherently coercive” use of the threat of capital punishment or life without parole to induce a guilty plea.
Policies pursued by ideologically blinkered progressive mayors and district attorneys (hello, Chicago, Philadelphia, San Francisco, etc.) have, to say no more, coincided with surges of violent crime. This is, therefore, an unpropitious moment to pursue criminal justice reforms that sensible progressives might favor — e.g., concerning plea bargaining — but that opportunistic politicians can stigmatize as coddling criminals.
Undaunted, the Cato Institute’s Clark Neily and others suggest that plea bargaining on today’s “industrial scale” could be countered by a “trial lottery”: A small percentage of cases in which plea agreements have been reached should be randomly sent to trials. How often would the government be unable to secure a conviction after it has managed to induce a pre-trial guilty plea? Let’s find out.
Washington Post columnist George Will’s email address is email@example.com.