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

handle is hein.journals/fedsen31 and id is 302 raw text is: 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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