Punishment without trial? It's the new normal
“How do you plea?”
It’s the first question the judge asks you in a criminal trial. But before the accused even has a chance to answer “guilty” or “not guilty,” there is another, prior legal proceeding that rarely gets talked about – even though it pre-empts the need for a trial in 97% of convictions. Jury trials were one of the founders’ critical safeguards against the tyranny of overzealous government prosecutors. Thomas Jefferson viewed the institution as the most vital form of democracy – above the ability to vote for legislators. And yet the American legal system has largely abandoned this bedrock principle in favor of the “efficiency” of the plea bargain.
Carissa Hessick is the director of the Prosecutors and Politics Project, Professor of Law at the University of North Carolina School of Law, and author of an important new book, Punishment Without Trial: Why Plea Bargaining Is a Bad Deal.
Professor Hessick joins me to explain how this practice persists as the norm, while jury trials have been turned into a rare exception. What would the Founders say about this state of affairs? And why hasn’t the Supreme Court done something about it?