Columnist George Will argues high plea rates can be explained by, “to a significant extent, coercion”
In this new Washington Post piece, headlined “How government’s excessive reliance on plea deals can undermine justice,” George Will highlights the ABA’s recent Plea Bargain Task Force Report (discussed here) to lament how prevalent pleas have become in our criminal justice systems. Here are some excerpts:
Herewith a two-question quiz: What is the only right affirmed both in the 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….
Last year, 98.3 percent of federal criminal convictions, and about 95 percent 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….
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….
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.
I wish Will had mentioned the problems of acquitted conduct sentencing enhances in his discussion of the various forces that contribute to the very high rate of guilty pleas. I raise the issue in part because as long as significant sentencing increases based on acquitted conduct remains permissible, prosecutors will always have a great incentive to bring as many charges as possible even if some plea cases were to “be randomly sent to trials.”
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