The Constitutional Right We Have Bargained Away

By Carissa Byrne Hessick

The Atlantic

The Bill of Rights exists to protect individuals. It protects the right to free speech, the right to due process, the right to counsel, and the right to be free from cruel and unusual punishment, just to name a few. If a government official tries to deprive an individual of one of those constitutional rights, then the courts are supposed to intervene.

But that’s not what happens when it comes to one of the most important rights for criminal defendants—the right to a jury trial. 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. This practice is so common that it even has a name: the “trial penalty.”

The executive branch of government has followed the courts’ lead; many prosecutors pressure defendants to bargain away their right to a jury. They will offer defendants concessions—such as dropping some criminal charges or recommending leniency at sentencing—in return for a guilty plea. Plea bargains dominate the system. Only 3 percent of convictions are the result of a trial—the rest come from guilty pleas. As the Supreme Court put it, “Criminal justice today is for the most part a system of pleas, not a system of trials.”

Continue to full article . . .

Picture: National Archives and Records Administration, Public domain, via Wikimedia Commons

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