This fall the Cato Institute held a policy forum on plea bargaining featuring Clark Neily, vice president for criminal justice at Cato, Scott Hechinger of Brooklyn Defender Services, Bonnie Hoffman of the National Association of Criminal Defense Lawyers, and Somil Trivedi of the ACLU. Description:
Supreme Court Justice Anthony Kennedy has observed that “criminal justice today is for the most part a system of pleas, not a system of trials.”
Although nowhere mentioned in the text of the Constitution, plea bargaining has become the default mechanism for resolving criminal charges in the United States. Indeed, some 95 percent of criminal convictions today are obtained through plea bargains, which raises a number of serious concerns, including why so few people choose to exercise their hallowed and hard-won right to a jury trial. When one considers the many tools available to prosecutors to encourage defendants to accept plea offers, together with the incentive to resolve as many cases as efficiently as possible, one cannot help but ask how many plea agreements are truly voluntary and how many are the result of irresistible coercion. Are there constitutional or ethical limits on coercive plea bargaining, and if so, are they being properly enforced? And what should we make of an institution that has practically eliminated the criminal jury trial and with it the Framers’ painstaking efforts to ensure citizen participation in the administration of justice?
The Federalist Society also held a recent panel on the subject of plea bargaining, which David Lat covers here.