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31 Fed. Sent'g Rep. 284 (2018-2019)
Jury Empowerment as an Antidote to Coercive Plea Bargaining

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Jury Empowerment as an Antidote to Coercive

Plea Bargaining


CLARK NEILY
Vice President for
Criminal Justice,
the Cato Institute


Once the centerpiece of American criminal justice, jury
trials are now practically extinct. Today, more than 95 per-
cent of criminal convictions are obtained through guilty
pleas, which raises a profound question: Why are so many
defendants so eager to confess, and forego the right to have
the government prove their guilt beyond a reasonable doubt
to the satisfaction of a unanimous jury?
   The answer is straightforward: coercive plea bargaining.
As in so many regimes throughout  history, prosecutors in
America  are given a fearsome array of tools with which to
extract confessions from the accused. We are assured those
tools may only be used to encourage confessions, not coerce
them,2 but that simply is not true.3 In reality, many defen-
dants plead guilty not from a sense of civic duty or in
response to some modest  consideration for sparing the
inconvenience of a pointless trial, but instead because the
government  ensures that the alternative is intolerable. As
U.S. District Judge John Gleason observed in a 2013 ruling,
the government's use of certain draconian sentencing
provisions during plea bargaining coerces guilty pleas and
produces sentences so excessively severe they take your
breath away.4
   The  line between constitutionally permissible pro-
mises  of leniency and unconstitutionally coercive threats
is admittedly difficult to draw, let alone enforce. But it is
among  the most important  lines for a civilized country to
draw, because the failure to do so erodes public confidence
in the criminal justice system and eventually destroys its
moral  and political legitimacy. But despite recognizing
that there is a line between permissible and impermissible
inducements  to plead guilty, the courts have made zero
effort to police it. The result is a system in which innocent
people regularly confess to crimes they did not commit,
and  defendants wlio exercise their right to trial and lose
receive sentences that are far more severe than they truly
deserve.
   The  Supreme  Court has acknowledged  that criminal
justice today is for the most part a system of pleas, not
a system of trials.5 Indeed, the conventional wisdom is that
America's criminal justice system would grind to a halt
without plea bargaining. But this is both hyperbolic6 and
imprecise. Moreover, it is not the institution of plea bar-
gaining itself that produces so many confessions; rather, it
is the government's ability to set the terms of the negotia-
tion. Consider the following illustration.


            Federal Sentencing Reporter, Vol. 31, No. 4-5, Pp. 284-298, ISSN 1053-9867, electronic ISSNtI533-8363.
            © 2019 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy
        or reproduce article content through the University of California Press's Reprints and Permissions web page,
          https://www.ucpress.edu/journals/reprints-permissions. DOI: https://doi.org/iO.r525/fsr.2o9.3I.4-5.284.


FEDERAL   SENTENCING REPORTER * VOL. 31, NO. 4-5 * APRIL/JUNE 2019


284


   Imagine a jurisdiction in which roughly half of those
charged with driving under the influence of alcohol plead
guilty, while the remainder exercise their right to contest
the charge at trial. Not only are trials expensive for the
government-costs   include attorney time, court staff and
facilities, and a modest per diem for jurors-they are also
risky: in one state, nearly 6o percent of DUI cases that go to
trial result in acquittals.7 So is the government simply stuck
with that risk and those costs? Not at all. In fact, there is
a remarkably simple way for the government to set the ratio
of guilty pleas to trials pretty much wherever it wants: just
keep ratcheting up the severity of the punishment for
a given offense until the desired proportion of defendants
plead guilty. Can there be any doubt that if the punishment
for driving under the influence were life in prison without
the possibility of parole, nearly oo percent of defendants
would  plead guilty in return for a few weeks in jail, a stiff
fine, or the loss of their driver's license?8
   And  this turns out to be a key driver of America's sky-
high plea-bargaining rates: We give legislators free rein to
make  the punishment  for various crimes as severe as they
like-even  for the express purpose of increasing prosecu-
torial leverage to extract confessions-and we equip pro-
secutors with unfettered discretion to bring that leverage to
bear in the service of a system that has chosen the efficiency
of coerced confessions over the transparency, accountabil-
ity, and legitimacy of jury trials.
   The  question confronting America's criminal justice
system is not whether plea bargaining can be coercive-
plainly it can. Nor is the question whether plea bargaining
actually does become coercive in some cases-the sheer
number   of false confessions makes clear that it does.9
Instead, the question is what we can do to ameliorate the
pathology of coercive plea bargaining in a system that pre-
tends it does not exist or, if it does exist, that it raises no
concerns worth  doing anything about.
   The  article proceeds as follows. Part I explains the origin
 of plea bargaining in America. Part II describes the various
 levers that are applied to induce defendants to forgo their
 right to a jury trial and plead guilty instead. Part III explains
 that coercive plea bargaining raises a number of serious
 concerns, including false confessions, unduly harsh pun-
 ishments, insufficient transparency and accountability, and
 a criminal justice system that pursues efficiency at the cost
 of legitimacy. Part IV summarizes several proposals for

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