For their part, progressives maintain a strong commitment to procedural and substantive justice, and they are particularly sensitive to society’s tendency to mistreat politically vulnerable populations, including racial minorities, immigrants, dissidents, and the impoverished. Among other things, it is easier to exploit those populations—i.e., to abuse, arrest, incarcerate, and dispossess them through fines, fees, and forfeitures—than wealthy white people, and so they tend to bear the brunt of the criminal legal system’s worst injustices. Progressives rightly condemn that discrimination and insist upon equal—and equally fair—treatment for all, regardless of race, nationality, socioeconomic status, or sexual identification.
Notwithstanding libertarians’ and progressives’ respective commitments to non‐aggression and equal justice, our criminal justice system has become a runaway conviction machine, gobbling up more than 10 million people every year and spitting out convicts with chilling efficiency. Indeed, the criminal justice system has become an industry unto itself, employing more than three million people with an annual budget of around a third of a trillion dollars. And the workers within that system—police, prosecutors, and prison officials—represent an extremely potent political force, augmented by their membership in public‐employee unions that represent one of the nation’s strongest political lobbies.
Which brings us to what is arguably the system’s greatest but least appreciated pathology: The practical elimination of citizen participation in the administration of criminal justice.
Consider how vital jury trials were understood to be, not just by the Founders but throughout centuries of English common law dating back to well before Magna Carta. It is no coincidence that nearly half the Bill of Rights is devoted to criminal procedure, and most of those provisions deal with trials specifically. Indeed, the Constitution itself devotes more words to the subject of trials than to any other right, and the right to a criminal jury trial is the only one mentioned both in the body of the Constitution and the Bill of Rights. But jury trials are nearly extinct on American soil, having been replaced by an ad hoc, extra‐constitutional, and often jaw‐droppingly coercive process for adjudicating criminal charges that we refer to euphemistically as “plea bargaining.”
Unknown at the Founding, plea bargaining arose in response to the need to process a rapidly increasing number of criminal defendants through a legal system that was carefully designed to promote fairness and transparency over the government’s preference for speed, convenience, and certainty. Thus, as America’s criminal codes expanded, drawing more and more people into an increasingly professionalized and industrialized system, the need for a more efficient way of processing criminal charges became acute.
Over time, prosecutors found that with the application of enough pressure, nearly any defendant could be induced to confess, thereby sparing the government the trouble and expense of a public jury trial. That pressure can be generated in any number of ways: for example, by detaining defendants before trial in a hellscape like Rikers Island; by providing systematically underfunded and inadequate defense counsel to indigent defendants; by increasing a defendant’s exposure to punishment through creative charge‐stacking; by threatening to prosecute family members if the defendant refuses to plead guilty; and by establishing vastly excessive mandatory minimum sentences to make an example of those who exercise their right to trial and lose. Indeed, so adept are prosecutors at deploying such inducements—and so indifferent has our judiciary become to their palpably coercive effect—that fully 95 percent of all criminal convictions today are obtained from people “choosing” to exchange the possibility of acquittal and freedom via jury trial for the certainty of conviction and punishment by pleading guilty. Why on earth would so many people have so little interest in exercising one of the most hallowed and hard‐won rights in the Constitution? The answer is simple: Pressure, and lots of it.
The problems with American‐style plea bargaining are legion, and I have discussed them elsewhere both in short and long form. But I will focus here on a particular issue that relates to the problem of mass incarceration.
Once a society becomes overcriminalized to the point where most adults have committed an offense for which they could in theory be convicted—as nearly everyone agrees is the case here in America—it becomes impossible to prosecute every violation. And that presents a stark question, namely, which laws should be enforced, and against whom? Self‐evidently, we do a poor job of answering that question, given that roughly 80 percent of the more than 10 million annual arrests in America are for misdemeanors, while more than one‐third of murders, one‐half of all violent crimes, and four‐fifths of property crimes go unsolved.
Our appetite for arresting, prosecuting, and incarcerating so many low‐level “offenders” is almost certainly stimulated by the efficiency of plea bargaining. Indeed, proponents of the status quo contend that the system would “grind to a halt” if every prosecution had to culminate in a jury trial because trials are so much more time‐consuming and expensive than plea bargaining. But the inefficiency of jury trials may be seen as a feature rather than a bug, inasmuch as it ensures that we do not initiate the potentially life‐destroying process of a criminal prosecution unless we’re prepared to pay the full cost of a constitutionally compliant conviction, which includes making twelve people to take time away from their jobs and their families in order to serve on the jury. Simply put, we shouldn’t be taking away people’s freedom if we’re not willing to incur the cost of a jury trial in order to do so.
Unfortunately, most scholars believe that plea bargaining is here to stay, as demonstrated in part by the fact that attempts to eliminate it in Alaska, El Paso, and elsewhere have failed miserably. The practice is simply too ingrained in our system, and it is simply too easy for judges, prosecutors, and defense attorneys to sidestep formal prohibitions against it.
But this doesn’t mean we must simply throw up our hands and do nothing. To the contrary, there are a number of ways that libertarian and progressive policymakers could address the national scandal of coercive plea bargaining. Let me briefly describe three of them here.
First, the president and state governors could use their pardon power to remove one of the most powerful levers available to prosecutors, the so‐called “trial penalty.” The trial penalty is the difference between the punishment a defendant will receive if he goes to trial versus the lighter sentence he will receive if he pleads guilty. Unlike England and Germany, America places no limits on that differential, and massive trial penalties, such as the 12,000 percent markup (two months versus 20 years) with which many defendants in the Varsity Blues college‐admissions investigation are being threatened are perfectly routine.
If they cared, governors and the president could fix this problem with the stroke of a pen. They would simply require prosecutors to report the sentence imposed after any trial, together with the substance of any plea offers made to the defendant along the way. Suspiciously large differentials between post‐trial sentence and plea offer could be flagged and investigated, and sentences deemed unduly coercive could be commuted in order to avoid penalizing the defendant for exercising his right to trial. What’s particularly appealing about this approach is that the prosecution has already expressed its view—embodied in the initial plea offer—about what would be an appropriate punishment. So it’s not as if defendants would be getting some kind of illegitimate break on their sentence; instead, they simply wouldn’t be getting punished for exercising their right to trial.
The second thing we can do to ameliorate coercive plea bargaining is to provide jurors with sentencing information so they know what the consequences will be for the defendant if they convict. Surprisingly, jurors are generally not given that information, and indeed prosecutors will go to extraordinary lengths to ensure they remain ignorant of it. But as explained in this forthcoming law review article by Professors Dan Epps and William Ortman, there are many good reasons to make sure jurors understand the stakes in any given case so they can better fulfill their historical role of ensuring not merely that there is sufficient evidence to support a conviction, but that the punishment the government proposes to inflict will be just.
Finally, we should require that prosecutors put personal skin in the game when they choose to shortcut constitutionally prescribed safeguards by inducing defendants to waive their right to a jury trial and plead guilty instead. As explained in harrowing detail by former federal prosecutor Mark Godsey in his book Blind Injustice, prosecutors suffer from an array of cognitive biases that cause them to systematically overestimate the strength of their case and discount its weaknesses. One way to counter those biases would be to establish a policy whereby any prosecutor who enters into a plea agreement with a defendant who turns out to be innocent—something that appears to happen regularly in our system—will presumptively be fired and perhaps disbarred or even incarcerated. Prosecutors who prefer not to expose themselves to those risks—or who feel insufficiently confident about a particular defendant’s guilt—can simply decline to make a plea offer and let the case proceed to trial before an appropriately informed jury. The point of this proposal is push the majority of cases back to being decided by a jury. Right now, however, the jury is out, and that’s a problem.
While these may seem like strong measures, think of it this way: If the criminal justice system were a sick patient, what illness would be most analogous to the pathology of coercive plea bargaining? A mild cold? The flu? Pneumonia? No—it’s far worse than that. Properly understood, coercive plea bargaining is akin to a highly aggressive Stage IV cancer, and it should be treated as such by those committed to due process, equal justice, and the rule of law. As with cancer, the question isn’t whether a particular prescription to combat coercive plea bargaining is too strong; the question is whether it’s strong enough. So far, the answer is no—not remotely. Libertarians and progressives should do something about that because the key to combatting mass incarceration is ending plea‐driven mass adjudication.
