Our Pretrial System Needs To Be Torn Down and Rebuilt

The Disappearance of Trial by Jury

by CLARK NEILY

Did you know there’s only one right that is mentioned both in the body of the unamended Constitution and the Bill of Rights? And that not only does the Bill of Rights spend more words on this subject than any other, but it was also one of the few things the Federalists and Anti-Federalists agreed upon as being indispensable to American government. It’s the right to a criminal jury trial, and it has been almost completely purged from our system by the ad hoc, extra-constitutional, and often extraordinarily coercive practice we call “plea bargaining.”

Unknown at the Founding and nowhere mentioned in the text of the Constitution, plea bargaining began creeping into our criminal justice system in the late nineteenth century and received a boost when the Supreme Court upheld it in a 1970 case called Brady v. United States and insulated it from any meaningful judicial scrutiny. It has since expanded to the point where Justice Kennedy observed in a 2012 case that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.”

The data bear this out. According to the U.S. Sentencing Commission’s 2021 Sourcebook, 98.3 percent of federal criminal convictions came from guilty pleas, and only two percent of cases went to trial. Figures from the states are less precise, but similar. What this means is that, contrary to the Founders’ decision to put citizen participation at the very heart of the administration of criminal justice, ordinary people have almost no personal involvement in deciding who gets charged, convicted, and incarcerated in America; instead, those decisions

are made by prosecutors with a strong incentive to maximize efficiency and convictions rates. The resulting system of plea-driven mass adjudication is profoundly pathological and fundamentally illiberal. The most significant problem with a plea-based system is the use of coercion to obtain guilty pleas. Judges and prosecutors assure us that inducements to plead guilty never cross the line from permissibly motivating to palpably coercive, but the evidence is clearly to the contrary. Thus, of the three thousand people on the National Registry of Exonerations, more than 15 percent falsely pleaded guilty to crimes they did not commit—a figure that surely represents just the tip of the iceberg given how resistant the system is to post-convictions claims of innocence. As Federal District Judge Jed Rakoff documents in chilling detail, Clark Neily there is every reason to believe innocent people in our system

According to the U.S. regularly plead guilty to crimes Sentencing Commission’s they did not commit. The second problem with 2021 Sourcebook, 98.3 plea bargaining is that it percent of federal favors quantity over quality. criminal convictions This is reflected in the current record-low rates of arrest for came from guilty pleas, serious crimes such as murder, and only two percent of rape, and robbery. Indeed, the cases went to trial. arrest (or “clearance”) rate for homicide today is less than 50 percent, while fewer than 30 percent of rapes and robberies are ever solved. When prosecutors know that most of their cases will result in guilty pleas they can afford to pursue marginal transgressions that would not merit the expense and inconvenience of a full-blown jury trial. America is by far the world’s leading jailer, with an incarceration rate five or six times that of