“Prisons are packed because prosecutors are coercing plea deals. And, yes, it’s totally legal.”

The title of this post is the title of this new commentary authored by Clark Neily, and it has this subheading: “American prosecutors are equipped with a fearsome array of tools they can and do use to discourage people from exercising their right to a jury trial.” I recommend the full piece and here are excerpts:

America is the most prosperous country in the history of the world.  We excel at innovation and mass production — and nowhere is that more true today than our criminal justice system, which features a streamlined process for transforming millions of suspects into convicted criminals quickly, efficiently and without the hassle of a constitutionally prescribed jury trial.

It’s called coercive plea bargaining, and it’s the secret sauce that helps us maintain the world’s highest incarceration rate.

According to a recent study from the Pew Research Center, of the roughly 80,000 federal prosecutions initiated in 2018, just two percent went to trial.  More than 97 percent of federal criminal convictions are obtained through plea bargains, and the states are not far behind at 94 percent.  Why are people so eager to confess their guilt instead of challenging the government to prove their guilt beyond a reasonable doubt to the satisfaction of a unanimous jury?

The answer is simple and stark: They’re being coerced.

Though physical torture remains off limits, American prosecutors are equipped with a fearsome array of tools they can use to extract confessions and discourage people from exercising their right to a jury trial.  These tools include charge-stacking (charging more or more serious crimes than the conduct really merits), legislatively-ordered mandatory-minimum sentences, pretrial detention with unaffordable bail, threats to investigate and indict friends or family members, and the so-called trial penalty — what the National Association of Criminal Defense Lawyers calls the “substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after a trial.”…

The framers of the U.S. Constitution put citizen participation at the very heart of our criminal justice system in the form of jury trials.  With coercive plea bargaining, prosecutors have ripped that heart right out of that system and made sure that ordinary citizens have almost nothing to do with the administration of criminal justice in America.

Our system wasn’t designed to function that way, and growing public disillusionment suggests that it won’t — not for much longer, anyway.