I was delighted to see an excellent article in the Wall Street Journal earlier this month, titled “Federal Guilty Pleas Soar as Bargains Trump Trials”. I have written about the American plea bargaining system a number of times on this blog, including my post, “Torture and Plea Deals”. The plea bargaining system is an out-of-control farce which has taken over the American justice system. We no longer have a trial-by-jury system; instead, we have a plea bargaining system in which even innocent people are rationally better off lying about being guilty than they are risking a trial.
It is telling that, out of all the indictments brought against people in the Enron cases, only two convictions were achieved at trials that withstood appeals — that is an amazingly dismal record for the federal prosecutors, given the tens of millions of taxpayer dollars they wasted on the cases.
A shameful 97% of all federal cases pursued by the Department of Justice last year were resolved by guilty pleas, not by trials. And we know that innocent people routinely plead guilty — I will post the results of an academic study that found that more than half of innocent people, faced with the situation that defendants in criminal cases routinely face, plead guilty!
The reasons for this tragedy are not difficult to understand. Prosecutors routinely over-charge defendants to give themselves plea bargain negotiating power. The federal sentencing guidelines are now so draconian for white collar defendants that they have become completely ridiculous. And the punishments given to defendants who have the audacity to actually exercise their Constitutional right to defend themselves are totally out of proportion to the punishments given to defendants who lie for the prosecutors in a plea deal. Plus, the enormous financial cost of defending themselves is simply more than most defendants can bear, even defendants who are relatively well off — in the Enron Broadband cases, a number of the defendants drained their life savings defending themselves.
We now have an American justice system in which trial by jury is steadily disappearing. It is becoming increasingly difficult for defendants to find attorneys who have significant trial experience and who even have the will, attitude, and experience needed to defend their clients at trial. We have reached the sorry state in which it actually takes incredible courage for a defendant to simply defend himself — and this is true even for innocent defendants!
The death of trial by jury is bad for everyone who values their freedom. Without trials, the public learns very little about cases — we never see both sides of the issue and therefore know only of the propaganda of the prosecutors’ spin — I have learned first hand by studying the Enron cases how far from the facts the prosecutors’ stories can stray.
If this injustice doesn’t bother you when it is applied to people you don’t know or whom you dislike, consider how you will react when it is you or someone in your family being robbed of a trial!