Plea Bargaining: Punishing people for exercising their constitutional rights is entirely incompatible with the very idea of a constitutional right

Good evidence suggests that the people who founded this country thought that plea bargaining should be prohibited

writes Carissa Byrne Hessick, the author of Punishment Without Trial: Why Plea Bargaining Is a Bad Deal (which is reminiscent of Instapundit law professor Glenn Reynolds's The Judiciary's Class War and Ham Sandwich Nation [Due Process When Everything is a Crime]), in The Atlantic. 

"Nearly every aspect of our criminal justice system encourages defendants—whether they're innocent or guilty—to take a plea deal." Punishment Without Trial "showcases how plea bargaining has undermined justice at every turn[, forcing] the hand of lawyers, judges, and defendants, turning our legal system into a ruthlessly efficient mass incarceration machine that is dogging our jails and pun­ishing citizens because it's the path of least resistance."

Instead of protecting defendants’ right to have their guilt or innocence decided by their peers, judges routinely punish defendants for exercising that right. Specifically, judges regularly impose longer sentences on those defendants who insist on going to trial than on those defendants who plead guilty. A 2018 report shows that, on average, defendants who insist on a trial receive sentences three times longer than those of defendants who plead guilty.

 … The reason that the Supreme Court gives for carving out the jury-trial right from its ordinary constitutional rules is simple: resources. The Court doesn’t think that the criminal-justice system could handle granting every criminal defendant a trial. Without plea bargaining, the Court said, “the States and the Federal Government would need to multiply by many times the number of judges and court facilities.”

 … On some level, the resources argument is convincing. It is certainly true that our courts could not possibly hold trials for all of the criminal cases that come through the justice system. But this lack of capacity does not explain how few trials we have now. In 1990, more than 7,800 criminal trials were held in federal court. By 2016, that number fell to fewer than 1,900. In other words, we have made it so easy for prosecutors to pressure defendants into pleading guilty that we have less than a quarter of the criminal trials that we had 30 years ago, even though we have more judges and more prosecutors now than we did then. So resources can’t explain the policies that we have adopted to pressure nearly every defendant to plead guilty. Even if we accept the resources-argument logic, we could still protect the constitutional rights of thousands more Americans each year.

But is the resources argument right to begin with? Of course, many Americans want government to be efficient and keep costs down. But efficiency in the criminal-justice system has a serious downside: The more easily and cheaply it can be run, the more people end up in it. Unfortunately, the United States has been incredibly efficient at locking people up. As a result, we are the world’s leader in imprisoning our citizens. … So maybe we should be thinking about how we can make our system less efficient.

It isn’t too late for the country to change its course. The rise of originalism—the theory that the Constitution should be interpreted as it was understood when it was first written—could hold the solution to plea bargaining and mass incarceration. Good evidence suggests that the people who founded this country thought that plea bargaining should be prohibited.

 … But adopting an originalist view of the Constitution isn’t necessary to reject the constitutionality of plea bargaining and the trial penalty. No matter what your constitutional theory of interpretation, punishing people for exercising their constitutional rights is entirely incompatible with the very idea of a constitutional right.