PLEA BARGAINING HAS COME TO DOMinate the administration of justice in America. According to one legal scholar, "Every two seconds during a typical workday, a criminal case is disposed of in an American courtroom by way of a guilty plea or nolo contendere plea."
Even though plea bargaining pervades the justice system, I argue that the practice should be abolished because it is unconstitutional.
THE RISE AND FALL OF ADVERSARIAL TRIALS
Because any person who is accused of violating the criminal law can lose his liberty, and perhaps even his life depending on the offense and prescribed penalty, the Framers of the Constitution took pains to put explicit limits on the awesome powers of government. The Bill of Rights explicitly guarantees several safeguards to the accused, including the right to be informed of the charges, the right not to be compelled to incriminate oneself, the right to a speedy and public trial, the right to an impartial jury trial in the state and district where the offense allegedly took place, the right to cross-examine the state's witnesses, the right to call witnesses on one's own behalf, and the right to the assistance of counsel.
Justice Hugo Black once noted that, in America, the defendant "has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to 'Prove it!"' By limiting the powers of the police and prosecutors, the Bill of Rights safeguards freedom.
Given the Fifth Amendment's prohibition of compelled self-incrimination and the Sixth Amendment's guarantee of impartial juries, one would think that the administration of criminal justice in America would be marked by adversarial trials--and yet, the opposite is true. Fewer than 10 percent of the criminal cases brought by the federal government each year are actually tried before juries with all of the accompanying procedural safeguards noted above. More than 90 percent of the criminal cases in America are never tried, much less proven, to juries. The overwhelming majority of individuals who are accused of crime forgo their constitutional rights and plead guilty.
The rarity of jury trials is not the result of criminals who come into court to relieve a guilty conscience or save taxpayers the costs of a trial. The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used. And plea bargaining is the primary technique used by the government to bypass the institutional safeguards in trials.
Plea bargaining consists of an agreement (formal or informal) between the defendant and the prosecutor. The prosecutor typically agrees to a reduced prison sentence in return for the defendant's waiver of his constitutional right against self-incrimination and his right to trial. As one critic has written, "The leniency is payment to a defendant to induce him or her not to go to trial. The guilty plea or no contest plea is the quid pro quo for the concession; there is no other reason."
Plea bargaining unquestionably alleviates the workload of judges, prosecutors, and defense lawyers. But is it proper for a government that is constitutionally required to respect the right to trial by jury to use its charging and sentencing powers to pressure an individual to waive that right?
There is no doubt that government officials deliberately use their power to pressure people who have been accused of crime, and who are presumed innocent, to confess their guilt and waive their right to a formal trial. We know this to be true because prosecutors freely admit that this is what they do.
Watershed precedent Paul Lewis Hayes, for example, was …