And Justice For All


As a would-be immigrant, I am an admirer of most things distinctively American. I wouldn't be here otherwise. The great exception -- also the most frightening and perplexing -- is this country's system of criminal justice. I am not talking about the death penalty, that standard European complaint, though on balance I'm opposed to it. I am not even talking about the country's zeal for incarceration, though I don't like that, either. What I find far harder to understand is that the country has accepted the de facto abolition of the jury trial, and goes along with a system that does not so much invite prosecutorial abuse as beg for it.

America has institutionalized carelessness about criminalizing the innocent. Whenever I think about this I am shocked.

At the center of it all is the plea bargain--hazardous under any circumstances, and an affront to justice if there ever was one. Combine that with the harsh mandatory sentences favored by posturing legislators, and you confer on prosecutors extraordinary powers of coercion.

Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts.

Cases like Florida v. Shane Guthrie help explain why. After Mr. Guthrie, 24, was arrested here last year, accused of beating his girlfriend and threatening her with a knife, the prosecutor offered him a deal for two years in prison plus probation.

Mr. Guthrie rejected that, and a later offer of five years, because he believed that he was not guilty, his lawyer said. But the prosecutor's response was severe: he filed a more serious charge that would mean life imprisonment if Mr. Guthrie is convicted later this year.

Because of a state law that increased punishments for people who had recently been in prison, like Mr. Guthrie, the sentence would be mandatory. So what he could have resolved for a two-year term could keep him locked up for 50 years or more.

Most prosecutors are disinterested pursuers of justice, I expect. One can only hope so. Out of mere administrative necessity, the plea bargain has replaced the trial. Laws and regulations defining new federal crimes are multiplying at an astonishing rate. And to cap it all, "guilty intent" is fast becoming an option, rather than a bedrock requirement, before you threaten to lock somebody up. (See also these other articles in a fine WSJ series: here, here, here, and here.)

Tell me, how did this happen in the land of the free?

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Clive Crook is a senior editor of The Atlantic and a columnist for Bloomberg View. He was the Washington columnist for the Financial Times, and before that worked at The Economist for more than 20 years, including 11 years as deputy editor. Crook writes about the intersection of politics and economics. More

Crook writes about the intersection of politics and economics.

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