The Constitutional Right We Have Bargained Away

Instead of protecting defendants’ right to have their guilt or innocence decided by their peers, judges routinely punish defendants for exercising that right.

Illustration of a balanced scale holding two hands shaking.
Getty; The Atlantic

About the author: Carissa Byrne Hessick is the Ransdell Distinguished Professor of Law at the University of North Carolina School of Law. She is the author of Punishment Without Trial: Why Plea Bargaining Is a Bad Deal.

The Bill of Rights exists to protect individuals. It protects the right to free speech, the right to due process, the right to counsel, and the right to be free from cruel and unusual punishment, just to name a few. If a government official tries to deprive an individual of one of those constitutional rights, then the courts are supposed to intervene.

But that’s not what happens when it comes to one of the most important rights for criminal defendants—the right to a jury trial. Instead of protecting defendants’ right to have their guilt or innocence decided by their peers, judges routinely punish defendants for exercising that right. Specifically, judges regularly impose longer sentences on those defendants who insist on going to trial than on those defendants who plead guilty. A 2018 report shows that, on average, defendants who insist on a trial receive sentences three times longer than those of defendants who plead guilty. This practice is so common that it even has a name: the “trial penalty.”

The executive branch of government has followed the courts’ lead; many prosecutors pressure defendants to bargain away their right to a jury. They will offer defendants concessions—such as dropping some criminal charges or recommending leniency at sentencing—in return for a guilty plea. Plea bargains dominate the system. Only 3 percent of convictions are the result of a trial—the rest come from guilty pleas. As the Supreme Court put it, “Criminal justice today is for the most part a system of pleas, not a system of trials.”

Legislators, too, help prosecutors gut the right to a trial by passing new laws with mandatory minimum sentences. Those laws give prosecutors more leverage in plea bargaining because they can offer defendants a deal in which they plead guilty to a lesser charge that doesn’t have a mandatory minimum. In some cases legislators have admitted that they voted for those mandatory minimums in order to give prosecutors greater sway. For example, in 2015, Senator Chuck Grassley successfully blocked efforts to lower the mandatory minimum sentences for federal drug crimes. Grassley opposed changing those sentences, because he thought the harsh drug laws served the “intended goal” of pressuring defendants to cooperate with law enforcement.

The pressure that defendants face can take the form of years in prison. For example, when Mohamed Taher was accused of importing and distributing marijuana in upstate New York, prosecutors offered him a 10-year sentence in return for a guilty plea. Taher turned down the plea bargain, and prosecutors responded by filing new charges carrying a mandatory minimum sentence of 22 years. Taher went to trial, and although he had been unarmed and committed no violent crimes, he was sentenced to 25 years in prison. In effect, Taher received an additional 15 years in prison for insisting on his right to a jury trial.

If government actors tried to put people away because they exercised other rights—such as the right to free speech, the right to belong to a church, or the right to vote—judges would quickly step in and stop that practice. Yet not only has the Supreme Court allowed the trial penalty and plea bargaining; it has actually encouraged them.

Some proponents say that the trial penalty doesn’t punish people for exercising their right to a trial; it just grants a benefit (a shorter sentence) to those who are willing to plead guilty. Personally, I don’t see how putting someone in prison for longer because she insisted on her right to a jury trial can be recharacterized as a benefit to some other defendant who pleads guilty. But even if it were a benefit, that shouldn’t make a difference as a constitutional matter. The courts don’t usually let government officials force you to waive your constitutional rights in order to get something in return. If, for example, the federal government told you that you have to give up your right to vote in order to get Social Security benefits, judges would say that was an “unconstitutional condition” and declare the practice unlawful. But judges haven’t extended their unconstitutional-conditions doctrine to plea bargaining or the trial penalty.

The reason that the Supreme Court gives for carving out the jury-trial right from its ordinary constitutional rules is simple: resources. The Court doesn’t think that the criminal-justice system could handle granting every criminal defendant a trial. Without plea bargaining, the Court said, “the States and the Federal Government would need to multiply by many times the number of judges and court facilities.” Chief Justice Warren Burger, who wrote that opinion, gave a speech in which he explained that the justice system depends on defendants pleading guilty. He said the “system of courts—the number of judges, prosecutors, and of courtrooms—has been based on the premise that approximately 90 percent of all defendants will plead guilty, leaving only 10 percent, more or less, to be tried.” Chief Justice Burger did not believe that the system could handle more trials, warning that if only 80 percent of defendants pleaded guilty, then the court system would have to double the number of “judges, court reporters, bailiffs, clerks, jurors, and courtrooms.”

On some level, the resources argument is convincing. It is certainly true that our courts could not possibly hold trials for all of the criminal cases that come through the justice system. But this lack of capacity does not explain how few trials we have now. In 1990, more than 7,800 criminal trials were held in federal court. By 2016, that number fell to fewer than 1,900. In other words, we have made it so easy for prosecutors to pressure defendants into pleading guilty that we have less than a quarter of the criminal trials that we had 30 years ago, even though we have more judges and more prosecutors now than we did then. So resources can’t explain the policies that we have adopted to pressure nearly every defendant to plead guilty. Even if we accept the resources-argument logic, we could still protect the constitutional rights of thousands more Americans each year.

But is the resources argument right to begin with? Of course, many Americans want government to be efficient and keep costs down. But efficiency in the criminal-justice system has a serious downside: The more easily and cheaply it can be run, the more people end up in it. Unfortunately, the United States has been incredibly efficient at locking people up. As a result, we are the world’s leader in imprisoning our citizens. The United States houses approximately 20 percent of the world’s prisoners, though it is home to less than 5 percent of the world’s population. So maybe we should be thinking about how we can make our system less efficient.

It isn’t too late for the country to change its course. The rise of originalism—the theory that the Constitution should be interpreted as it was understood when it was first written—could hold the solution to plea bargaining and mass incarceration. Good evidence suggests that the people who founded this country thought that plea bargaining should be prohibited. For example, Thomas Jefferson once said that if he had to choose between democratic participation in the legislature and democratic participation in the judicial branch in the form of juries, he would choose juries. Similarly, John Adams wrote, “The common people, should have as complete a control … in every judgment of a court” as they do in the legislature. And early English and American judges were incredibly hostile whenever they encountered the practice. This evidence matters because the Court’s originalist justices usually aren’t shy about overruling modern precedent when they have a strong historical reason to do so.

But adopting an originalist view of the Constitution isn’t necessary to reject the constitutionality of plea bargaining and the trial penalty. No matter what your constitutional theory of interpretation, punishing people for exercising their constitutional rights is entirely incompatible with the very idea of a constitutional right. That modern American courts have not acknowledged this is a complete failure. They need to do their part in our constitutional system and protect, not negotiate away, Americans’ rights.