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What happened to the right to a trial by jury?

What happened to the right to a trial by jury?

The founders thought it was important enough to mention in twice in the Constitution, yet 97% of convictions result without a trial

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“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” – Eighth Amendment to the Constitution

The 8th Amendment to the Constitution protects prisoners from being subjected to cruel and unusual punishment. Can you imagine a system where a prisoner might be able to accept a steak dinner in exchange for a waiver of these precious 8th Amendment rights? Of course not. Our constitutional rights are too dear to be waived. How about a criminal suspect who waives the right to a fair trial in exchange for a promise of a reduced sentence. In America today, that's just fine. The right to a fair trial is a throwaway right – basically, nonexistent.

Want to know more?

Carissa Hessick is the Ransdell Distinguished Professor of Law at the University of North Carolina School of Law. She has written Punishment Without Trial: Why Plea Bargaining is a Bad Deal, which will explain how we got here.

Links & Resources:

Book summary:

Essential Liberty
Punishment Without Trial: Why Plea Bargaining Is a Bad Deal.
📚 Subscribe to join my weekly Book Club for summaries of popular libertarian titles. 🖼️ Big Picture 👉 97% of convictions come from plea bargains. Most cases have been decided this way for some time but the trend is getting much worse. As courts become more “efficient” we end up with a larger and larger prison population…
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Not just another contract

Bob Zadek: Plea bargaining is of course part of the criminal justice system – the trial part of the system. What is a plea bargain? Give us just the big picture, what it is and how it comes about, and at what stage in the criminal justice process.

Carissa Byrne Hessick: In order to understand plea bargaining, it's important to remember that when someone is charged with a crime, they're asked how they plead. Do they plead guilty or not guilty? If they plead not guilty, then they'll have a trial, and the jury will decide whether to convict or not. But if they plead guilty, then they avoid a trial and they avoid a jury.

Now, plea bargaining capitalizes on the idea that defendants can plead guilty by allowing prosecutors to offer the defendant something in return. So, if the defendant is willing to plead guilty, then the prosecutor will give the defendant something that the defendant otherwise wouldn't have gotten. Maybe that is a dismissal of some charges – i.e., an agreement to let the defendant plead guilty to a lesser charge than the crime that they've been charged with. Maybe it is a sentencing recommendation in front of the judge, where the prosecutor promises to say, "You should get the minimum sentence or not the maximum sentence."

Sometimes, it could be as little as agreeing not to argue for a harsh sentence at sentencing. But the idea of a plea bargaining is that the defendant agrees to plead guilty, not just because he or she wants to plead guilty, but because they'll get something in return from the prosecutor.

Bob Zadek: As an attorney, I understand the basic concept of a contract. In a contract, two parties exchange promises. Why? Because each party believes they will be better off from what they get than from what they surrender. It's an exchange. When I make a purchase, I voluntarily surrender some of my money. I'm worse off from an economic standpoint, but I am satisfied that I'm getting something at least of equal value in exchange for giving up money and its value. Non-lawyers know this as well, just because they participate in economic life. Everybody knows that, in general, one is or ought to be bound by their contracts and contracts are part of life.

However, contracts, although generally enforceable, are not enforceable if they are tainted with things like fraud, coercion, or the like, which means the voluntariness of the contract is suspect.

Apply this primer on contracts to the somewhat unique contract called a plea bargain.

I'm quickly going to play devil's advocate, so please don't yell at me. [Carissa laughs]. I will say, "Hey, wait a minute. Here we have a human being who has decided that by agreeing to plead guilty – giving up the right to a trial, like the right to the money you spend – he is getting something at least of equal value."

So, with that naïve question, help us understand why this bargain is worthy of writing a whole book about.

Carissa Byrne Hessick: I'm glad you framed this in terms of contracts, because when judges talk about plea bargaining, they talk about it as a contract – an agreement between two parties. In doing that they rely on Americans' innate trust of free market principles. But if you think about plea bargaining for more than a second, you'd realize that we can't possibly have a free market here. So, if I'm the prosecutor and I have charged you, Bob, with a crime and I offer you a discount in what punishment you'll have to serve in prison if you plead guilty, if you don't like my deal, you can't approach a different prosecutor and ask for a different deal. It's a take it or leave it proposition and I have a monopoly. 

Layered on top of that is the fact that our criminal justice system isn't designed to simply say that if you, Bob, committed shoplifting, that the appropriate punishment for shoplifting is, let's say, one week in jail, and then if you plead guilty, the discount is a day off so you only have to spend six days in jail, and then, you can decide whether you want that bargain or not.

Because, as a prosecutor, I usually have tools at my disposal to increase the pressure on you to accept my deal. So, if you don't want to accept my deal, then I can say things like, "Oh, but I see here that you have a prior conviction for shoplifting. That's going to make you a habitual offender." And now suddenly, instead of facing one week in jail, if you're convicted, you're facing a year in jail. And I can choose whether to treat you as a habitual offender and so then I can say it's going to be a year. Or let's say, you weren't a habitual offender but you stole three things from the store when you shoplifted, I can say, "Look, the penalty for shoplifting is one week. And if you don't want to plead guilty, I'm going to charge each thing that you stole as a separate shoplifting crime, and now you're facing three weeks in jail."

So, we haven't set up a system where we have a clear sense of what punishments are supposed to be and then people get discounts from them. Instead, what we do is we've given prosecutors so many options for how to charge crimes that they can essentially up the ante to get someone to plead guilty. Now to be clear, you do have another choice. You could go to trial and you could hope that a jury acquits you. But if you're a rational person, at some point, the prosecutor is going to have enough leverage that it's actually mathematically illogical for you to insist to go to trial. This is hard for people to understand. Bob, do you have any of those friends who they tell you when the Powerball jackpot gets really high and they say it actually makes sense economically to buy a ticket. Do you know the people I'm talking about?

Bob Zadek: I do. But your premise is, "Do I have any friends who?" [Carissa laughs] I don't have any friends. I have no friends, period. I just work. [Carissa laughs] Therefore, I'm the wrong guy to ask because I'm aberrational, but I know what you mean. Sure, people rush to buy Powerball as the odds get worse. [laughs] 

Carissa Byrne Hessick: No, it's the expected value of the ticket increases-- [crosstalk] 

Bob Zadek: But the risk-adjusted value is-- [crosstalk] 

Carissa Byrne Hessick: Yeah. I'm not saying that they're right. 

Bob Zadek: Of course.

Carissa Byrne Hessick: I'm saying that this is what they say. So, let me translate it for plea bargaining. Let's say I have been accused of a crime and that crime will require me to spend a year in prison if I'm convicted. I think I have a decent chance of getting acquitted. I think I have a decent chance that the jury will say I'm not guilty, and so, I want to go to trial. Let's say, I think I have a 50% chance of getting acquitted. If the prosecutor can come back and increase those charges so that it's a better deal for me to plead guilty, then I should.

Think of it this way: One year in prison, I have a 50% chance of getting acquitted. What can the prosecutor do? Well, the prosecutor could offer me much less time in prison. What if the prosecutor says, "Okay, if you plead guilty, you only have to serve one month in prison"? It would be irrational for me to say no, because mathematically, if I'm going to spend a year in prison if convicted and there's a 50% chance of conviction, that means half a year is my expected punishment. So, the prosecutors control what the price is, like what they're willing to give you, and then to a certain extent, they control the outcome at trial if you get convicted so they can always come up with a deal that's too good to pass up. Does that make sense?

Bob Zadek: It makes total sense. In other words, the prosecutor can always make an offer you can't refuse, to borrow from The Godfather. Okay.

Carissa Byrne Hessick: Exactly.

Bringing Transparency to the Criminal Justice System

Bob Zadek: Now, if we stopped there, I dare say, it wouldn't induce you to write a book. But you explained in your book, lots of examples and lots of explanation why this process, which can almost seem benign, when it's put into play in practice, it becomes obscene. It becomes an embarrassment to any member of a civil society. So, give us a sense of the type. You may want to use an example, because you are very generous in your book with examples, to help our audience understand the kinds of abuses that occur which make plea bargaining such an unholy contract.

Carissa Byrne Hessick: Sure. I want to be clear, I wanted to write the book in part, because I'm the first person in my family to go to law school. And then, when I became a criminal law professor, you get together with your family and they tell you how to do your job better. So, they were always telling me, "Oh, well, this, that and the other thing," and I kept having to say, "That's not how the system works." The criminal justice system doesn't work the way we see it on TV and in the movies. When students come into my classroom and they learn about the criminal justice system, they're really horrified.

They're like, "How can we have this system?" The truth is there are a lot of things wrong with the criminal justice system and many, though not all, of those things can be tied to the practice of plea bargaining. We've adopted this way of resolving cases that fundamentally warps the system that we have. It stands so many of the principles that we care about on their heads. And then, layered on top of that is the fact that people within the system know how it works. But people outside the system don't know how it works. They've changed things like what are the laws on the books. Can you charge somebody with three different counts of shoplifting for stealing an apple, a banana, and pear? The people who write these laws, they know about plea bargaining and they want the prosecutors to have this sort of leverage. 

It's a problem because that also leads to a series of other decisions. If we want people to plea bargain, which is where we are in the system now, we want people to plea bargain, the legislature, the prosecutor, and the judge in many cases, they all work together to make sure that a defendant doesn't go to trial. They do this for everyone. And so, what does that mean? It means that we don't have trials in this country. It also means we convict innocent people of crimes because we put this pressure on everyone, innocent and guilty alike. And it all happens in secret so that ordinary Americans don't know about it. Sometimes, they don't know about it and when they find out about it, they're really angry and upset about what's happening. When they don't know what's happening, which is most of the time, they aren't able to serve as a check on government power.

I talked to people who are politically conservative, liberal, and libertarians like yourself, and all of them for different reasons want there to be some checks on the government and what they're doing here. We want them for different reasons and we want them in different cases, but none of us want a system that is not transparent. So, it’s really hard for all of us to understand and impossible for us to control, and that's the system that we have now.

Bob Zadek: Now, give us either a hypothetical or real fact of the type of abuse that can occur or did occur, your choice, which is why you got yourself so worked up, you spent valuable time writing a book about it. So, either a real, or manufactured, or combined [Carissa laughs] example. It doesn't matter, because I want the audience to put, if you will, a face on the problem. So, give us an example. 

Carissa Byrne Hessick: I'm actually going to use two related examples. When I was first starting this book, I had the good fortune to talk to a judge in Ohio, who had over time gotten concerned about plea bargaining. And so, he had people who worked in the court with him pull together a bunch of information, because he saw that the prosecutors were doing a lot of plea bargaining in sex crime cases. The information that they pulled together were things like the case name, the original charges that were brought, and then the plea bargain. He sent me the spreadsheet. It was a huge spreadsheet. It had hundreds of cases on it. I went through it and I found that people who were accused of incredibly serious crimes, were pleading guilty to crimes that were not even a little bit serious.

I found example after example of people being arrested and charged with having sexually assaulted small children, and they would plead guilty to a crime in Ohio called interference with custody, which is a crime that you can bring up, I don't know, if somebody's, like, interfering with the rights of a parent. As you might imagine, that doesn't carry a very strong penalty. A lot of people were getting probation, some of them were getting six months in jail. 

Now if you live in Ohio, you have to wonder to yourself, what's going on here? Are people who commit really serious crimes getting away with it? Because they're taking a conviction but not for the crime they're getting charged with. I had an opportunity after I wrote the book to be on a radio show with a prosecutor in Ohio and he's like, "Plea bargaining is great. Plea bargaining doesn't interfere with truth and justice."

I brought up these cases and he said, "You don't understand. We would have lost those cases. So, getting the plea bargain was a win." I was dumbstruck. So, what is this guy telling me? They couldn't prove that the people committed these crimes. And so, they gave them really good deals, because that's better than nothing. But I'm just like, "Wait a second. That's not how this system is supposed to work. If you can't convict someone, then don't convict them." If you can't prove that somebody raped a small child, then they should go free. If you think you might lose that case, maybe you'll lose that case. But that's not the system that we have, because who's telling us that these people committed the crime? Law enforcement. They don't think they can convince a jury that they're right?

That strikes me as a real problem. Either we need to have law enforcement working differently to solve cases and to prove crimes, because these people are actually guilty or these people didn't commit a crime and they pleaded guilty for something that they didn't do. There's no happy outcome here. Nothing here is good.

These are either all Jeffrey Epstein cases, where that guy molested tons of teenage girls and then got 14 months in jail, because of some sweetheart plea bargain that he arrived at with prosecutors, or these are innocent people who are getting on probation and spending six months in prison for something they didn't do. There's no in between. Nobody thinks that what these people did was interfere with custody. They either think they're innocent or they think they committed this terrible crime. And by saying we're going to have these negotiated outcomes where we, if you can excuse the metaphor, split the baby, we've given up on the entire idea of truth in this system.

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What Would the Founders Say?

Bob Zadek: I'm going to focus on the word 'bargain' again. In the plea bargain, the defendant, the alleged perpetrator is staring down the barrel of a criminal trial and the possibility he could be convicted or she could be convicted. The possibility risk adjusted to something less than 100%, but it sure is there and incarceration is a really big deal. It's not like you lost $100 gambling.

So, the stakes are high. In exchange, the alleged perpetrator surrenders a constitutionally-protected right, and as if that's not enough, it is a right that legal history teaches us that the founders and those who preceded our founders felt was a brutally important right, because after all, the result of the American Revolution – the Constitution itself – spent a lot of its energy, if you will, in building protections against overreaching by the government.

Many of the founders – Thomas Jefferson to be sure – believed that the jury system was a safeguard against the criminal justice system, which is the government, against the government's overreaching. So, it is a highly valued right. It's not, as I said in my intro, a “throwaway right.”

The attention that Carissa gives to plea bargaining is because it's an agreement where somebody gives up a right that our history shows us is a valuable right and it's too easily given away.

Carissa Byrne Hessick: Much too easily. I tell this story about these cases out of Ohio, because I think they resonate with people for different reasons. People who care about individual rights should be horrified because the innocent people who are being accused are getting pressured into giving up their right and they are taking a criminal conviction. The people who think these people might be guilty should also be horrified, because dangerous people are going back into the community. And for me, this is where we have to think about the jury right not just as an individual right against government tyranny, but a way for democracy to function.

People who live in communities should have the opportunity to decide whether the person who's been arrested is a dangerous person who did a dangerous thing or somebody who was innocent and was wrongly accused. We've cut those people out of the system entirely. I think that's what Thomas Jefferson, and John Adams, and all of them cared about as well. They didn't just care about protecting people from tyranny – they cared about having Americans involved in running this country. And juries, when we have them, play a huge role in deciding whether someone committed a crime or not and we've taken them out of it and left it to bureaucrats.

“[The Founders] didn't just care about protecting people from tyranny – they cared about having Americans involved in running this country.”

Bob Zadek: There is a movement in this country to increase democracy. Now, democracy means different things to different people. Going back to 1913, we changed the election of Senators from being elected by state governments to being directly elected by the people. In other words, more, “power to the people.”

We move the selection of candidates from the proverbial smoke-filled back room to primaries so people get to pick the candidates for each party. That's movement toward democracy. We over time diminished the value of the electoral college, which in effect separated voters from direct election of President. So, that's been the movement.

The plea bargaining story runs the other way. It says, all of a sudden, 12 other humans ought to be denied a seat at the table in deciding the most important decision – should another human being be deprived of their liberty? It doesn't get more important than that. And yet, we take citizens out of the process while we strive in every other way to put citizens into the process. There's a profound contradiction that gets ignored in the process.

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Formalism and the Proper Separation of Powers

Bob Zadek: Plea bargaining, as you have taught us, is where the accused gives up the right to a trial, in exchange gets the vague promise. It's not binding until the judge weighs in.

Let us assume the accused did the crime and got nailed, and now is presented with an opportunity, "How do you plead?"

Of course, there will be conversations about plea bargaining. Now, this accused knows he's going to lose. The prosecutor doesn't know yet. Let's assume this is not a likable accused – just to put a little color in my hypothetical. No one likes this accused, but he tricks the prosecutor to let him get off with a violation, or an infraction, or a misdemeanor and they sign a plea bargain. The prosecutor says, "That's a win."

"Well, no, Mr. Prosecutor, you lost, you'll never know."

Now, what is your comment about that transaction? Does that offend you? Because now it's the prosecutor who is deprived of the jury trial, not the accused. So, tell us how you feel about that.

Carissa Byrne Hessick: I'd say, look, defendants are always free to plead guilty. They don't need a prosecutor to give them something in return. We've just set up a system where that's expected. Before plea bargaining, or in places where plea bargaining wasn't the dominant way of resolving cases, we still saw a decent number of people plead guilty. So, some people would plead guilty because they did it and because they didn't want to have to go through the hassle of a trial, where they're just reminded of the fact that they did it. It's funny that you said the prosecutor lost out on the jury trial, because I don't think that that's how prosecutors see it.

I don't like that plea bargain, because I don't think that it should be up to the defense attorney and the prosecutor to decide what happens in the case. There's a boring word for this: I'm a formalist. I believe in the structures that we have and they're supposed to serve certain purposes.

When the prosecutor and the defendant work out what the sentence is going to be as part of their plea agreement, then the judge isn't making decisions about sentencing. If you value democracy and you think that James Madison was right that separating the powers is a good way to avoid tyranny, then you want another branch of government involved in that. Regardless of whether the deal is too good or too bad, you don't want one person wielding that much power in our system, regardless of whether you think they're being too lenient or too harsh. One person wielding power is just rarely something that I'm personally going to be comfortable with. I'm sorry. I feel like I resisted your question.

Bob Zadek: You didn't, not at all. But now, my real question: in describing the tradeoff – the negotiation between prosecutor and suspect – you explained that the prosecutor has a very valuable tool to put his or her thumb on the scales. He can say, "Well, unless you plead guilty, we can up the charges. It's three offenses rather than one, or you are carrying a gun, or you have a previous gun conviction, or three strikes and you're out," lots of tools.

The defendant says, "Oh, my God, oh, my God, oh, my God, I'm going to be away forever. Okay, I plead guilty." Now, that was how you teed up the issue and that's what happens. 

If you unpack that hypothetical, if the penalty for the crime drafted by the legislature was not excessive, if it was more appropriate and if there was no opportunity for enhancement by all this other stuff, and now it's a more even negotiation, does your disapproval of plea bargaining as a contract – as one transaction in the criminal justice process – diminish, now that the parties are more evenly matched?

Carissa Byrne Hessick: I don't, but I do think it changes things. Sometimes, I say, “Look, plea bargaining is bad for so many reasons. It's bad for defendants. It's bad for victims. It's bad for truth. It's bad for justice. It's bad for democracy.” In the scenario that you've given me, it's no longer bad for defendants, but it's still bad for all of those other reasons. So, I would say it's less bad than it used to be, because you've taken away one of the reasons that it's bad, but the other reasons that it's bad are still there.

Bob Zadek: I agree 100%, but I wanted this dialogue, because the issue is a little bit more nuanced. We are really talking about two problems in civic society – not one – we are talking about excessive sentencing and enhancements, because legislators rarely get reelected if they support a bill to reduce criminal sentencing. That's not the path to the White House. So, there's an inherent bias in favor of legislators voting just to throw away the key. That has the byproduct of now making the bargaining power unfair. Because as you were explaining and you said a defendant always has the right to plead guilty, well, a plea bargain is just the exercise of that right, except with a little bit of inducement. As I said, it's tainted by coercion, because the other guy is like, "Your money or your life." And it's not really fair.

"Well, I'll get back to you on that one." No, people don't say that. "Call me in a week, and I'll give you an answer.”

Carissa Byrne Hessick: I agree with you that the coercion piece of it is bad. But can we just abstract this out just for a second? Can we change the right – instead of making it a jury trial, can we make it the right to vote? Imagine that the government comes to me and they say, "Carissa, you're on Social Security. We're going to withhold your Social Security check unless you vote for so and so."

That would be coercion about how I exercise my right. Change the situation where I'm not on Social Security, they're not withholding something, but they say, "What if we give you a million dollars so you vote for that guy?" That's bad too. It's just bad for a different reason. The people who wrote our constitution set up these systems because they wanted a particular type of government run a particular way that was less likely to become tyrannical. Paying people to vote a certain way and giving them sweetheart deals so that they don't have juries are of the same ilk where you have government bureaucrats not going to the people to get them to sign off on the decisions that are being made. They're bad, but they're bad for different reasons, right?

The New Normal: How the Supreme Court Solidified the Role of Plea Bargaining in the Criminal Justice System

Bob Zadek: The jury trial was crucial. Men died at Valley Forge to protect our right to be tried by a jury of our peers – it was incredibly important to the Founders and to those people who built our system of government. By the way, the best movie ever made – 12 Angry Men – starring Henry Fonda, is a must watch. Stop listening to this podcast, go watch 12 Angry Men, then come back.

What percentage of criminal trials are resolved by a jury the way it's supposed to happen and what percentage do not?

Carissa Byrne Hessick: I just want to caveat this for a quick second, because the statistics that we have are about convictions. They're not necessarily about trials or cases that are brought, because that gets a little bit more complicated. But if you average out all the convictions in the country in both federal and state court, around 97% or 98% of convictions are the result of a guilty plea. We can't always figure out how many of those are plea bargains, but lots and lots of them are. I should say those 2% of convictions that are the result of trials, are not evenly spaced. Some places, we have zero trials. Rhode Island federal convictions in 2021, there were zero trials in the entire state. Justice Kennedy, about 10 years ago, was hearing some case about something involving plea bargaining and he has a line in the case that says, "Plea bargaining is not something that's adjacent to the criminal justice system. In a very real sense, plea bargaining is the criminal justice system."

“Around 97% or 98% of convictions are the result of a guilty plea.”

Bob Zadek: If we're taking that statistic of only 2.5% percent of the convictions were the ultimate jury trial, it means that a constitutionally protected right is a right which, based upon that statistic, has basically been written out of our country’s jurisprudence. It's a right that exists only in theory. It's a unicorn. So, the astonishing thing is, I challenge anybody to name or identify another specifically enumerated right in the Bill of Rights or in the Constitution that is waived by the holder of the right 97% of the time. The right to free speech, the right to practice your religion, the right to be free of unreasonable searches and seizures, the right to protect your property against eminent domain? No other right is waived 98% of the time except for jury trial. It's become a throwaway right. And that in and of itself is offensive. 

Now, since this is a process that developed over time and relatively recently, in much of our history as a country, there isn't a lot of history of plea bargaining, but it grew and grew and grew and grew. At least, the question should be asked and you answered it in your book and please share your answer, what's been the role of the Supreme Court? Have they been offended by it? Is there an indication that when the right plea bargaining case comes before the Supreme Court, they weaken its usage, or do they embrace it, or they pretend it doesn't exist? Tell us the role of the Supreme Court, because so many of us look upon the Supreme Court as the great hope and the protector of all rights.

Carissa Byrne Hessick: Sadly, judges aren't the hero in this story. In fact, I think you can place a lot of blame at the feet of the US Supreme Court itself. And it didn't have to be that way. As you mentioned, Bob, plea bargaining is a relatively recent phenomenon. There were some pockets of it in the 19th century. But when courts found out about the plea bargains, they would react very badly. A lot of state courts would throw out the convictions and say that they were unconstitutional. The US Supreme Court actually got a case involving something that looked an awful lot like a plea bargain and they refused to enforce the agreement, because they said the prosecutor didn't have that power. But they didn't really put a bow on it and it was a slightly weird type of plea bargain.

Fast forward to the 20th century, it's not until the 1930s and 1940s that plea bargaining really seems to be out in the open and starting to get accepted. The Supreme Court manages to duck the issue for decades. It's not until the early 1970s that they agreed to hear a case that was about the constitutionality of plea bargaining. They just let it happen. It was very strange. They had all of these previous cases that said things like, "You can't punish people for exercising constitutional rights." But they had this ability to enforce a plea bargain so the prosecutor had backed out and the defendant wanted to get the benefit of the bargain.This is a case called Santobello v. New York. The Supreme Court said, "Yes, we have to enforce this. Plea bargaining is an important feature of the modern criminal justice system. When done properly, it's to be encouraged." That's when they recognize the legitimacy of plea bargaining.

It wasn't until a little while after that that the constitutionality of plea bargaining was challenged, where you had one of those coercive cases like the one you talked about. This guy was facing five years in prison, And the prosecutor said, "If you don't take my five-year deal, I'm going to add new charges, and you have to spend life in prison." This is for, by the way, in case you're wondering, passing a bad check. The guy had some priors. Passing a bad check, he qualified under the three strikes law and I think it was Kentucky. He challenges it and he says in a quick, "Look, you guys have all these other cases that say you can't penalize people for exercising their right."

And the Supreme Court's like, "Yeah, we did say that. But we also said plea bargaining is good. And if we're going to say plea bargaining is good, then we can't really step on the toes of prosecutors and deprive them of the ability to get more plea bargains."

So, basically, what they said was, "You're right. We have all of these constitutional rules that don't allow what this prosecutor is doing. But if we recognize those rules, if we continue to enforce those rules, then we'd have fewer plea bargains and that would be bad." [laughs] 

Bob Zadek: The Supreme Court justified their conflict over plea bargaining with specific reference to the cost of a jury trial, and what it would do to the system. When

If there were no plea bargains, it means we have instead of 2%, 100% trials and everybody in the country would spend all their time on juries. We'd be a country of juries and a few people to put out fires – everyone else will be sitting in jury rooms. So, they defended it based upon “the system can't possibly try everybody.” I learned that, I said to myself, "What were these people thinking when they wrote that?"

I look to the Supreme Court with reverence. But occasional issues such as this, I say they were not present when that was happening. So, tell us why they tolerate plea bargaining.

Carissa Byrne Hessick: Justice Burger said this right after the Santobello case, when they said, "Plea bargaining is to be encouraged." That was the one where they enforced the bargain, not the one where they were dealing with the constitutional attack. This argument, that we have to have plea bargaining, because we don't have the resources to try all cases, is the argument that most people find persuasive.

It's the one that I hear from people all the time that are like, "Yeah, look, plea bargaining is bad, but we need it. We can't try every case." This is where I tried to dig down a little bit deeper, because as a general matter, I'm like, "Well, why can't we try every case? What's going on?"

Something that I found that struck me as surprising. Even though I teach criminal law, when we talk about criminal law and we talk about crimes, we tend to talk about serious crimes like murder, or arson, or sexual assault, or those sorts of things. But if you look at what we use our court system for, it actually looks really different.

Every year, we have about 1 million felony cases. Felony is like the catch-all for serious cases, where the penalty is going to be more than a year in prison. Misdemeanors are less serious cases. You can get probation or maybe you can get a few months in jail. Okay, so we have 1 million felony cases here. We have 13 million misdemeanor cases every year. We're saying we can't process all of the cases consistently with the Constitution, because there are too many cases.

My question is, what's going on with those 13 million misdemeanors? Should those things be crimes? Should we deal with them through the criminal justice system? Some misdemeanors are domestic assault, like domestic violence. Some of them are a DUI. Some of them are somebody urinated in public or drove too fast. Not all of these things have to go through the criminal justice system. We have other options here. A lot of regulations adopted by administrative agencies, if you violate them, at the very end, they tack on, "This is a misdemeanor," and maybe it's punishable by a fine and those sorts of things. 

I have to say, when I talk to libertarians about the book, this is the piece that tends to get them very excited, because they say, "Wait a second. If we had to try cases, would we stop increasing the scope of criminal law and be more thoughtful and say like, ‘Well, we care about robberies. So, maybe let's try the robberies'"? We don't really care that much about whether somebody's smoking weed on the corner. If you want to bring 17 cases of somebody smoking weed and that's going to get in the way of the one robbery case, then there's a problem. 

Bob Zadek: Is your suggested cure legislative or in the courts? What would you hope would be the positive result of people learning from the lessons of your book?

Carissa Byrne Hessick: I have a chapter in the book with a number of recommendations, because we didn't get here right away. We slowly got to 97%, 98% of convictions not with trials. It was a slow process to get here and I think it would be a slow process to get out the other way. Judges have to make some changes, legislatures have to make some changes, prosecutors have to make some changes. But we as ordinary Americans, need to understand what's going on, so that when somebody's running for office saying, "We need this mandatory minimum to get these dangerous people off the street," we know what they're really saying is we need this mandatory minimum to give prosecutors more leveraged for plea bargaining.

Basically, what I'm trying to say is we need ordinary Americans to understand how the system really works so that they don't keep falling for the half-truths and sometimes, flat out lies that have allowed us all to become complicit in this big, overbloated system that we have.


Bob Zadek: To me, the real harm is it cheapens a right. You don't want to do that. And it takes the people out of the process. As you pointed out in your book, we value our checks and balances. Not only does it take the people out of the process, but as your book explains, it takes the judge out of the process. It takes the people and the judge out of the process and along the way, it gives the prosecutor the role of both prosecutor and judge.

Carissa Byrne Hessick: And jury.

Bob Zadek: And jury. The system works if your hypothetical is, "Every accused absolutely did it or why would they have been arrested?" is the way the sentence ends. If you start with that point of view, which many people do, "The police don't arrest innocent people," kind of thing, then the plea bargaining make sense. But if you start with "innocent until proven guilty," the plea bargain fails.

Thank you so much, Carissa, for bringing this practice to the attention of the reading public. Your book is readable both by lawyers who are immersed in this stuff and by citizens who just want to actively participate in our government.

Carissa's book is called Punishment Without Trial: Why Plea Bargaining is a Bad Deal. Thank you so much, Carissa. I hope you have found it to be a mutually beneficial exchange. Thank you so much.

Carissa Byrne Hessick: Thanks, Bob.

Essential Liberty
The Bob Zadek Show
Bob talks about the issues that affect our lives on a daily basis from a purely libertarian standpoint. He believes in small government, fewer taxes, and greater personal freedom.<br /><br />America has lost its way, but it cannot and does not need to be reinvented. Our founders were correct about their approach to government, as were John Locke, Adam Smith and the other great political philosophers who influenced them. The country’s first principles are economic and social freedom, republicanism, the rule of law, and liberty. Bob believes we must take the best of our founding principles and work from them because a country without principles is just a landmass.