other liberal democracies such as Canada, Australia, Supreme Court has effectively held can be limitless. and England. A question that should haunt all of us Incredibly, courts have also approved the practice is whether we would pursue that many convictions if of threatening to indict (or refrain from indicting) we had to pay the full constitutional cost—including a defendant’s family members just to exert plea a jury trial—for every one of them. The oft-heard leverage. Short of physical torture, a more coercive refrain that “the system tactic is difficult to imagine. would grind to a halt” The Founders were without plea bargaining no strangers to tyranny, The most significant problem strongly suggests that the they would recognize with a plea-based system is the and answer is no. it instantly in a system use of coercion to obtain Finally, the practice of that depends on people to inducing people to condemn confess their guilt instead guilty pleas. themselves is an inherently of proving it beyond a squalid business that has reasonable doubt to the been embraced and abused by the worst regimes satisfaction of a unanimous jury. Citizen participation throughout history. This is manifested in various is indispensable to the administration of criminal plea-bargaining practices, including the notorious justice. The Framers knew this, and they wrote it “trial penalty,” which is the differential between the into the Constitution with unmistakable clarity. Or sentence offered to the defendant if he pleads guilty so they might have thought. RF versus the sentence he is threatened with if he goes to trial and loses—a differential that routinely exceeds Clark Neily is Senior Vice President for Legal Studies three hundred percent in our system and that the at the Cato Institute.
RIPON FORUM May 2022
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