As often happens, the prosecution and the defense have offered starkly different narratives regarding the events in question. According to the prosecution’s version, 17-year-old Kyle Rittenhouse was either an irresponsible cop-wannabe or a bloodthirsty vigilante who went looking for trouble with a gun and found it. The defense, by contrast, sought to portray Rittenhouse as a model citizen who armed himself in response to requests by local business owners to help protect their property from looters and spent the first part of the evening helping put out fires and rendering medical assistance to protesters and bystanders.
Although the evidence provides some support for both versions, it’s safe to say the prosecution’s case fared the worst at trial, with one of the purported “victims,” Grosskreutz, admitting on the stand that he pointed a gun at Rittenhouse, while other witnesses corroborated Rittenhouse’s testimony that the two decedents, Rosenbaum and Huber, were physically assaulting him when he fired at them.
Still, any lack of clarity is a useful reminder that in our system, close calls go to the defendant, not the prosecution. This is reflected in the aphorism that holds it’s better that 10 guilty men go free than one innocent man be convicted. We achieve this strong preference for mistaken acquittals over mistaken convictions by imposing substantial, asymmetric burdens on the prosecution such as proof beyond a reasonable doubt, jury unanimity, and the double jeopardy rule. Thus, if there is any real uncertainty about the veracity of a key witness, the applicability of a given statute, or whether the defendant acted in self-defense, then he goes free.
Throughout history, however, government actors have always sought to evade limits on their power, and that includes their power to obtain criminal convictions. Here in America, prosecutors have discovered a remarkable tool with which they can sidestep practically the entire Bill of Rights: coercive plea bargaining.
Imagine you’re a prosecutor whose case has serious weaknesses, as does the Rittenhouse prosecution. Maybe your theory of the case doesn’t square with the physical evidence, or your star witness lacks credibility, or perhaps the drugs at issue were the product of an unconstitutional search, and you’re worried they’ll be excluded as fruit of the poisonous tree. All of those problems go away if you can just get the defendant to waive his constitutional right to a trial and plead guilty instead. Unlike Kyle Rittenhouse, that’s precisely what the vast majority of criminal defendants do. In the federal system, for example, 97.8% of criminal convictions are obtained through guilty pleas , and only 2% of cases go to trial . It appears an even smaller percentage of cases go to trial at the state level.
In a system that provides as many protections and advantages to defendants as ours does, those numbers are deeply suspicious. What on Earth would induce so many people to exchange the possibility of acquittal and freedom if they exercise their right to trial for the certainty of conviction and punishment if they plead guilty? The answer is pressure, and lots of it.
Prosecutors and judges maintain the polite fiction that plea bargaining remains free from coercion, but this is demonstrably false: Innocent people regularly plead guilty to crimes they did not commit. Indeed, more than 10% of people exonerated by the Innocence Project using DNA evidence falsely pleaded guilty, as did more than 15% of those included in the National Registry of Exonerations . And this is scarcely surprising given the growing body of academic research that shows how easy it has become to induce innocent people to confess to things they did not do.
The array of tools available to modern prosecutors to induce guilty pleas is scarcely distinguishable in coercive effect from those wielded by their medieval European counterparts. Physical coercion in medieval times amounted to judicially sanctioned torture to obtain confessions; in our system, physical coercion includes pretrial confinement in a hellscape like Rikers Island. But many of the tools aren’t physical, a fact that does not lessen their efficacy. These include vastly increasing a defendant’s exposure to punishment through charge-stacking, the infamous trial penalty represented by the gap between the sentence offered during plea bargaining and the sentence a defendant faces after a jury trial, and even threatening to indict (or promising not to indict) a defendant’s loved ones simply to exert leverage — a strong-arm tactic that prosecutors use routinely and that multiple appellate courts have expressly condoned .
Despite the overwhelming evidence of coercion in the plea-bargaining process, the system makes no serious effort to combat it. Instead, courts hold a Kabuki-like “plea colloquy,” in which retired district court judge Nancy Gertner memorably described her role this way: “‘Has anyone coerced you to plead guilty,’ I would ask [the defendant], and I felt like adding, ‘like thumbscrews or waterboarding? Anything less than that — a threatened tripling of your sentence should you go to trial, for example — doesn’t count.’”
The good news is that just because we don’t bother to protect against coercion in plea bargaining doesn’t mean we’re unable to. On the contrary, there are plenty of reforms we could implement immediately if we had the will to overcome the system’s strong preference for efficiency over due process . I have already discussed in these pages the idea of creating a “plea integrity unit” that would scrutinize proposed plea agreements the way a new team of prosecutors did in the Michael Flynn case before concluding that the false-statements charge against him was unfounded. Other possible reforms include creating an audit process that would randomly send a certain percentage of cases to trial following a plea agreement in order to see what the outcome would have been, providing sentencing information to jurors so they know what the stakes will be for the defendant if they convict, and providing for the presumptive disbarment of any prosecutor who enters into a plea agreement with a defendant who is later exonerated.
This latter idea warrants further discussion, both because of how effective it would be and because it may strike some as extreme. In point of fact, it’s not extreme, and members of other high-stakes vocations routinely expose themselves to significant personal and professional risk in the course of their duties. Thus, loggers, fishermen, and pilots have the three deadliest jobs in America ; Navy captains can be court-martialed for the loss of their ship; and professional athletes put skin in the game literally. Moreover, anyone who is willing to fly commercially but not with an Alaskan bush pilot understands the difference between certain and not so certain. A prosecutor who refuses to risk her career on a given plea offer is speaking to us loud and clear. Perhaps we should listen.
Of course, it is true that there will be more trials if we implement reforms that make them relatively more attractive to defendants and plea bargaining relatively less attractive to prosecutors. But that’s a good thing. Having more trials will force prosecutors to be more realistic in assessing the strength of their cases and more selective about which ones to pursue . Will it be more expensive to provide more jury trials? Certainly. But if we’re unwilling to incur the cost of a trial, that seems like a good sign that the conduct at issue doesn’t merit incarceration. Criminal jury trials thus provide a constitutional gut check against mass incarceration.
Conservatives tout their commitment to textualism and originalism, as well they should. Speaking of text, the Bill of Rights spends more words on jury trials than any other topic, and it is the only right mentioned in the Bill of Rights and in the body of the Constitution. By contrast, there is not a single word about plea bargaining in the Constitution, and for good reason — the Founders understood perfectly well what a squalid business it is for government agents to elicit confessions, and they would have had no illusions about the impossibility of policing the line between permissible inducements and unconstitutional coercion.
Thomas Jefferson told Thomas Paine that “I consider the trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” He was right about that. Just ask Kyle Rittenhouse.
