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August 9, 2019

"Prisons are packed because prosecutors are coercing plea deals. And, yes, it's totally legal."

The title of this post is the title of this new commentary authored by Clark Neily, and it has this subheading: "American prosecutors are equipped with a fearsome array of tools they can and do use to discourage people from exercising their right to a jury trial." I recommend the full piece and here are excerpts:

America is the most prosperous country in the history of the world.  We excel at innovation and mass production — and nowhere is that more true today than our criminal justice system, which features a streamlined process for transforming millions of suspects into convicted criminals quickly, efficiently and without the hassle of a constitutionally prescribed jury trial.

It’s called coercive plea bargaining, and it’s the secret sauce that helps us maintain the world’s highest incarceration rate.

According to a recent study from the Pew Research Center, of the roughly 80,000 federal prosecutions initiated in 2018, just two percent went to trial.  More than 97 percent of federal criminal convictions are obtained through plea bargains, and the states are not far behind at 94 percent.  Why are people so eager to confess their guilt instead of challenging the government to prove their guilt beyond a reasonable doubt to the satisfaction of a unanimous jury?

The answer is simple and stark: They’re being coerced.

Though physical torture remains off limits, American prosecutors are equipped with a fearsome array of tools they can use to extract confessions and discourage people from exercising their right to a jury trial.  These tools include charge-stacking (charging more or more serious crimes than the conduct really merits), legislatively-ordered mandatory-minimum sentences, pretrial detention with unaffordable bail, threats to investigate and indict friends or family members, and the so-called trial penalty — what the National Association of Criminal Defense Lawyers calls the “substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after a trial.”...

The framers of the U.S. Constitution put citizen participation at the very heart of our criminal justice system in the form of jury trials.  With coercive plea bargaining, prosecutors have ripped that heart right out of that system and made sure that ordinary citizens have almost nothing to do with the administration of criminal justice in America.

Our system wasn’t designed to function that way, and growing public disillusionment suggests that it won’t — not for much longer, anyway.

August 9, 2019 at 06:14 PM | Permalink


“New Commentary” but same old story. Crying about the trial penalty, minimum mandatorys and the fake claim of charge stacking (as if somehow a defendant should get a discount for additional criminality). The article then leads with the federal system as if it is representative. There are 50 states, few are structured like the feds. Most state minimum mandatory crimes are not controversial. California alone is as big or bigger than the feds and California has very few minimum mandatory sentences, murder is one of the few.

Because so many state prisoners are serving prison time for violent crime, and as a result of a plea bargain, I reject that it is for the reason stated, coercion. In fact, most defendants are thrilled by their bargain, because they are serving far less time than what what they would get from a court (one with flexibility) than if they were convicted for what they, in fact, did.

In my experience, defendants plead because that is what the judges and defendants want, not the prosecutors alleged fearsome array of tools suggested in this article. I am tired of this same old trope. The article’s complaints may be true in the federal system but those claims may not explain why so many plead guilty, especially in the state systems which are quite different. California has enormous flexibility in sentencing by the court in virtually every case, yet they are still pleasing in droves. Please explain, because it is not minimum mandatories, charge stacking, or prosecutors threats to indict family members (this one shows a lack of seriousness by the author because whatever truth there is to the point it certainly Is not prevalent enough be statistically significant).

I’ve been a prosecutor for 25 years, and I’ve seen both the federal and state systems up close. At least in California for state prosecution, this article is fantasy.

Posted by: Eric | Aug 10, 2019 1:40:32 AM

I'm sorry to bust your bubble but the article is not fantasy. As a former "Prosecutor" for 25 years, you are out of touch!

Here in Texas, if a woman wants out of a relationship, she will say or do anything because there is no penalty and the prosecutor will run with it and put an innocent man in prison. There does not have to be any evidence. The small town jury is kept ignorant of their rights as a juror. Some prosecutors have a "hand picked" jury that they manipulate. There is a lot of bias in the Trial Courts. The biggest criminals have been taken down with a charge of sexual misconduct, which prosecutors admit is hard to defend. I personally know of women that use their children to get out of a relationship that was not convenient for them, then steal the mans possessions ( home, car and ect.)

Posted by: LC in Texas | Aug 10, 2019 1:56:24 PM

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