The Case Against Plea Bargaining
Plea bargaining has come to dominate the administration of justice in America. According to one legal scholar, “Every two seconds during a typical workday, a criminal case is disposed of in an American courtroom by way of a guilty plea or nolo contendere plea.” Even though plea bargaining pervades the justice system, I argue that the practice should be abolished because it is unconstitutional...
Thomas Jefferson famously observed that “the natural progress of things is for liberty to yield and government to gain ground.” The American experience with plea bargaining is yet another confirmation of that truth. The Supreme Court unleashed a runaway train when it sanctioned plea bargaining in Bordenkircher v. Hayes. Despite a steady media diet of titillating criminal trials in recent years, there is an increasing recognition that jury trials are now a rarity in America — and that something, somewhere, is seriously amiss. That “something” is plea bargaining.
As with so many other areas of constitutional law, the Court must stop tinkering around the edges of the issue and return to first principles. It is true that plea bargaining speeds caseload disposition, but it does so in an unconstitutional manner. The Framers of the Constitution were aware of less time-consuming trial procedures when they wrote the Bill of Rights, but chose not to adopt them. The Framers believed the Bill of Rights, and the freedom it secured, was well worth any costs that resulted. If that vision is to endure, the Supreme Court must come to its defense.