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May 16, 2024

"Trial Ambivalence"

The title of this post is the title of this new article authored by Thea Johnson available via SSRN. Here is its abstract:

Much of the rhetoric about criminal justice reform posits that trials are good and pleas are bad.  Trials provide full, public adversarial process, while plea bargaining is secretive, coercive, and unfair.  As such, a thread of reform has emerged calling for more trials and fewer pleas.  As this Article argues, underlying these reform efforts is an unspoken ambivalence about trials among the very reformers who clamor for more of them.  This ambivalence stems from the often unacknowledged reality that many of the common harms associated with plea bargaining are frequently benefits when viewed through the lens of trial avoidance.

This ambivalence is not new.  Indeed, in its plea bargaining jurisprudence the Supreme Court has long demonstrated its own ambivalence about the American trial system, even while romanticizing the trial.  Modern-day criminal justice reformers often wax poetically about trials, while simultaneously resisting efforts to actually require more trials. The ambivalence unearthed here demonstrates how little legal stakeholders — lawyers, judges and reformers — trust the American jury process to produce just results.  As long as the romantic narrative of trials persists in tandem with this ambivalence, reform efforts may actually more deeply entrench plea bargaining.

May 16, 2024 at 10:06 PM | Permalink


“The ambivalence unearthed here demonstrates how little legal stakeholders — lawyers, judges and reformers — trust the American jury process to produce just results.”

It demonstrates how often the accused is guilty as hell and any time shaved off a sentence is a plus.

Posted by: TarlsQtr | May 18, 2024 9:40:50 PM

I would say it's not that the defense doesn't trust the jury system, it's that they want the defendant to not face the full consequences for what he actually did. If your client committed murder in the first degree (a premeditated homicide) and you can get the State to agree to a plea of murder in the second degree, that's a win.

And, while the State generally trusts the jury system, there is always the slight risk of a rogue jury or delay causing the loss of a witness or the appellate court doing something screwy that gives the defendant a second trial. So getting a plea to murder in the second degree today can be appealing to the State to avoid the 1 in 10 chance that the defendant might get away with it in a trial in two years.

In rare cases, you actually have a real conflict in the evidence and both sides would rather split the baby down the middle or gamble on what will ultimately be a credibility call by the jury. In a he said-she said rape case, both sides might agree to a sexual misconduct plea (with a significantly lower range of punishment) than go to trial where the equally likely outcomes are guilty of rape or guilty of nothing. All or nothing might be right in terms of justice, but it is hard to take if you are the defendant (and get hit with a harsh sentence) or the victim (and see your rapist go free).

Posted by: tmm | May 20, 2024 4:13:04 PM

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