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<aside> 🔑 97% of convictions come from plea bargains. Most cases have been decided this way for some time but the trend is getting much worse. As courts become more “efficient” we end up with a larger and larger prison population.
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<aside> 👉 The Founders placed a strong emphasis on jury trials as a form of democracy that was as important or more important than voting in elections. The Originalist interpretation of the Constitution favors more jury trials, but the Supreme Court upheld plea bargaining’s constitutionality in the 1970s, and holds that it is the only way to deal with high case volumes.
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<aside> 👉 In addition to violating due process and interfering with separation of powers, plea bargains are inherent unjust in certain situations because they pressure people to give up their rights. We don’t tolerate this in other areas, why should we when it comes to the right to a trial?
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Hessick writes the book against the back drop of record prison populations – a product of a criminal justice system that makes it too easy to lock people up, both guilty and innocent.
We need more than slightly less harsh laws and prosecutors who take a less punitive approach to their jobs. We need to make it more difficult for the government to punish people without trials. – Location 147
Efficiency has warped the criminal process so that it no longer looks like something that an ordinary American would recognize as the system we learned about in school—a system in which you are innocent until proven guilty beyond a reasonable doubt. – Location 157
Plea bargains have become the default way for prosecutors to earn a conviction because it avoids time-consuming and expensive jury trials. Defendants are encouraged to plead guilty and are offered a lighter sentence compared with what they would receive if they plead innocent but were ultimately found guilty.
The shift towards plea bargaining, ”damages the very foundation of our criminal justice system,” says Hessick. People are not charged with the crimes they committed, but merely to charges negotiated outside of court.
Instead of providing a process that is supposed to sort out the truth of what happened, our system just lets lawyers negotiate an outcome. – Location 127
Beyond plea bargaining, the system has also embraced pretrial detention, where posting bail is a condition for staying out of jail before the court date, and civil asset forfeiture, where money is seized in cases of suspected criminal activity before a person gets a fair trial. All of these violations of due process result from the drive towards greater efficiency.
Justice Scalia, although skeptical of the rise of plea bargaining, called it a “ncessary evil.” Hessick quotes him saying that, “without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.”