justice as bargaining

No legal system has ever met its ideals, but we have shifted even our aspirations and principles for criminal law in troubling ways. We used to believe that a trial was an opportunity for a court (including both the professional judge and the lay jurors) to discover the truth, to reach a just verdict, and to communicate a message to the accused, the victims, and the community, all after deliberation that combined facts with values and that was constrained by law.

We now presume that the purpose of the criminal law is to assign the most appropriate verdict and penalty to each defendant in the most efficient way. A jury trial really doesn’t serve that goal very well, and thus we have almost completely abandoned trials in favor of plea-bargaining. When trials still occur, the jury no longer plays many of its traditional roles, such as directly questioning witnesses and setting penalties. The deliberative, communicative, symbolic, and explicitly moral aspects of the traditional process are gone, even as ideals.

In two decisions yesterday, the Supreme Court addressed a serious flaw in the modern system. If everything is plea-bargained, then the right to a competent counsel implies the right to be well represented during the negotiation process; incompetent representation creates a right to review. So the court decided. What interests me is the majority’s acknowledgement that justice is now defined by efficient bargaining among professionals. As Justice Kennedy wrote for the majority in Missouri v Freye (PDF):

Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. … Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.“ To a large extent . . . horse trading [between prosecutors and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). … In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant. … To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel during plea negotiations.

To be sure, competent representation is a necessary condition of justice, but it is hardly a sufficient one. Saving prosecutorial resources and shortening jail sentences (against a background of 2.3 million Americans in prison) are not the only valid objectives. Justice as bargaining is an idea that needs much more critical scrutiny.

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About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University's Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.