Plea Bargains Are a Travesty. There’s Another Way.

The justice system is no longer set up to provide an innocent man his day in court. It is a machine for producing plea bargains in industrial quantities.

It can operate no other way, because the volume of cases is far larger than the court system can actually handle. So instead of trials that take a long time and cost a lot of money but ideally separate the guilty from the innocent, we have become dependent on an assembly line where the accused go in at one end and come out the other a (relatively) short time later — as convicted criminals, regardless of their guilt or innocence, but with shorter sentences than they would have faced if convicted at trial and with smaller lawyers’ bills than they would have faced if they had gone to trial.

As this suggests, there are real benefits to the plea-bargaining system, even for the defendants. But there is a drawback as well.

In 1979, law professor Malcolm Freeley published “The Process Is the Punishment,” a book in which he used the lens of the New Haven, Connecticut, court system to show the ways in which the trial itself — as separate from any sentence imposed — can function to punish people.

This can be a problem even if the defendant turns out to be guilty, but at least we have the option of compensating for this extra-judicial punishment by reducing the formal sentence. But when the system gets out of control, it produces Kafkaesque results even for guilty defendants: How many of us think that three years behind bars is the right sentence for the theft of a backpack?

And of course, when the defendant is innocent, this jail term is not merely excessive, but something close to a crime itself.

This is not what the machine was designed to produce.

The most obvious way to begin repairing this broken system is to spend more money building courtrooms and hiring judges, so that defendants actually do have a chance at their constitutionally guaranteed right to a speedy trial. We should also take a long, hard look at the number of things that are crimes, and the sentencing laws that require many crimes be requited with very harsh penalties.

Most our mass incarceration problem is a sentencing problem, driven by both mandatory minimums and prosecutors who are rewarded for being “tough on crime.”

These factors aggravate the flaws of the plea-bargaining system. Prosecutors can threaten to prosecute on…

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