What happened to the right to a trial by jury?
2022-11-28 · Guest: Carissa Hessick (Professor of Law at UNC) · 52:46
Plea bargaining and the criminal justice system
Bob Zadek interviews Professor Carissa Hessick about the pervasive and problematic nature of plea bargaining in the American criminal justice system. They discuss how prosecutorial leverage, excessive sentencing, and the decline of jury trials have undermined constitutional rights and democratic accountability.
Topics: Plea bargaining, criminal justice reform, 6th Amendment, jury trials, prosecutorial discretion, sentencing, over-criminalization
Speakers:
- Bob Zadek: Host
- Carissa Hessick: Randall Distinguished Professor of Law at the University of North Carolina School of Law and author of Punishment Without Trial
Introduction to Plea Bargaining [00:21]
Bob Zadek: Hello everyone, I’m Bob Zadek, host of the country’s longest-running libertarian broadcast, nationally streamed at 8:00 AM Pacific Time Sundays on the 860 AM app. My podcast contains more than a decade of historical issues and shows. BobZadek.com offers resource material, book lists, other topical podcasts, and much more. We strive to offer in-depth content on social, political, and economic issues that really matter, and always with the ideal guest—accessible and entertaining. Our rule: ideas, not attitude.
The Eighth Amendment to the Constitution protects prisoners from being subject to cruel and unusual punishments. Can you imagine a system where a prisoner might be able to accept a steak dinner in exchange for a waiver of these precious Eighth Amendment rights? Of course not. Our constitutional rights are too dear to be waived. How about a criminal suspect who waives a right to a fair trial in exchange for a promise of a reduced sentence? In America today, that’s just fine. The right to a fair trial is a throwaway right and basically non-existent. Want to know more? Today’s guest, Carissa Hessick, will explain. Carissa is the Randall Distinguished Professor of Law at the University of North Carolina School of Law, who has written Punishment Without Trial: Why Plea Bargaining is a Bad Deal. Carissa, welcome to the show this afternoon.
Carissa Hessick: Thank you so much, Bob. Happy to be here.
Bob Zadek: Now, the topic today is plea bargaining. It’s, of course, part of the criminal justice system, the trial part of the system. Let’s set up the issue for our audience. What is a plea bargain? Give us just the big picture—what it is and how it comes about, at what stage in the criminal justice process—and then we’ll go on from there.
Carissa Hessick: Sure. So, in order to understand plea bargaining, it’s important to remember that when someone is charged with a crime, they’re asked how they plead. Do they plead guilty or not guilty? And if they plead not guilty, then they’ll go and have a trial and the jury will decide whether to convict or not. But if they plead guilty, then they avoid a trial and they avoid a jury.
Now, plea bargaining capitalizes on the idea that defendants can plead guilty by allowing prosecutors to offer the defendant something in return. So, if the defendant is willing to plead guilty, then the prosecutor will give the defendant something that the defendant otherwise wouldn’t have gotten. Maybe that is a dismissal of some charges, an agreement to let the defendant plead guilty to a lesser charge than the charge, the crime that they’ve been charged with. Maybe it is a sentencing recommendation in front of the judge that the prosecutor promises to say, “You should get the minimum sentence,” or not the maximum sentence. Sometimes it could be as little as agreeing not to argue for a harsh sentence at sentencing. But the idea of a plea bargain is that the defendant agrees to plead guilty not just because he or she wants to plead guilty, but because they’ll get something in return from the prosecutor.
The Monopoly of the Prosecutor [03:58]
Bob Zadek: So therefore, from your explanation and from the very title of the subject, “plea bargain,” as we all know—I’m an attorney and I understand the basic, we all do, the basic concept of a contract. In a contract, two parties exchange promises. Why? Because each party believes they will be better off by what they get than from what they surrender. So it’s an exchange. When I make a purchase, I voluntary surrender some of my money. I’m worse off from an economic standpoint, but I am satisfied that what I’m getting in exchange for giving up money and its value, I’m getting something at least of equal value.
And we also know—non-lawyers know this as well just because they participate in economic life—everybody knows that in general, one is or ought to be bound by their contracts, and contracts are part of life. However, contracts, although generally enforceable, are not enforceable if they are tainted with things like fraud, coercion, or the like, which means the voluntariness of the contract is suspect. So, applying what I have just said, this primer on contracts, to the somewhat unique contract called a plea bargain, I will say—and I’m quickly going to say devil’s advocate, this is not really what I think, audience, so please don’t yell at me—but in the role of the devil, where I’m quite uncomfortable but I’ll try, in the role of the devil, I will say: “Hey, wait a minute. Here we have a human being who has decided, for whatever circumstance, agreeing to plead guilty, giving up the right to a trial, like the right to the money you spent. That plea bargainer is getting something at least of equal value.” So with that naive question, help us understand why this bargain is worthy of writing a whole book about.
Carissa Hessick: Sure. That was very well put. So, let me say that I’m glad you framed this in terms of contracts because when judges talk about plea bargaining, or people who like plea bargaining talk about plea bargaining, they talk about it as a contract, as an agreement between two parties. And I think in doing that, they sort of rely on Americans’ sort of innate trust of free market principles.
But if you think about plea bargaining for more than a second, you’d realize that we can’t possibly have a free market here. So, if I’m the prosecutor and I have charged you, Bob, with a crime, and I offer you a discount in what punishment you’ll have to serve in prison if you plead guilty, if you don’t like my deal, you can’t approach a different prosecutor and ask for a different deal. It’s a take-it-or-leave-it proposition and I have a monopoly.
Layered on top of that is the fact that our criminal justice system isn’t designed to simply say, “Oh, it’s pretty clear that if you, Bob, committed shoplifting, that the appropriate punishment for shoplifting is, let’s say, one week in jail.” And then if you plead guilty, the discount is a day off, so you only have to spend six days in jail. And then you can decide whether you want that bargain or not. Because as a prosecutor, I usually have tools at my disposal to increase the pressure on you to accept my deal.
So, if you don’t want to accept my deal, then I can say things like, “Oh, but I see here that you have a prior conviction for shoplifting. That’s going to make you a habitual offender. And now suddenly, instead of facing one week in jail if you’re convicted, you’re facing a year in jail.” And I can choose—I can choose whether to treat you as a habitual offender. Or let’s say you weren’t a habitual offender, but you stole three things from the store when you shoplifted. I can say, “Look, the penalty for shoplifting is one week. And if you don’t want to plead guilty, I’m going to charge each thing that you stole as a separate shoplifting crime, and now you’re facing three weeks in jail.”
So we haven’t set up a system where we have a clear sense of what punishments are supposed to be and then people get discounts from them. Instead, what we’ve done is we’ve given prosecutors so many options for how to charge crimes that they can essentially up the ante to get someone to plead guilty. Now, to be clear, you do have another choice. You could go to trial and you could hope that a jury acquits you. But if you’re a rational person, at some point the prosecutor is going to have enough leverage that it’s actually like mathematically illogical for you to insist to go to trial.
The Risk-Adjusted Value of a Trial [06:10]
Carissa Hessick: This is kind of hard for people to understand. It’s like, Bob, do you have any of those friends who, like, they tell you when, like, the Powerball jackpot gets really high and they say it actually makes sense economically to buy a ticket? Do you know the people I’m talking about?
Bob Zadek: I do, but your premise is: do I have any friends who… I don’t have any friends. I have no friends, period. I just work. So therefore, I’m the wrong guy to ask, but because I’m aberrational, but I know what you mean. And sure, people rush to buy Powerball as the odds get worse.
Carissa Hessick: No, no, no, it’s as the value of the expected value of the ticket increases.
Bob Zadek: But the risk-adjusted value… Yeah, I mean, I’m not saying that they’re right. I’m saying that, like, this is what they say. So let me translate it for plea bargaining. So let’s say I have been accused of a crime, and that crime will require me to spend a year in prison if I’m convicted. And I think I have a decent chance of getting acquitted, right? I think I have a decent chance that the jury will say I’m not guilty. And so I want to go to trial. Like, let’s say I think I have a 50% chance of getting acquitted. If the prosecutor can come back and increase those charges so that it’s a better deal for me to plead guilty, then I should.
So think of it this way: one year in prison, I have a 50% chance of getting acquitted. What can the prosecutor do? Well, the prosecutor could offer me much less time in prison. What if the prosecutor says, “Okay, if you plead guilty, you only have to serve one month in prison”? It would be irrational for me to say no because mathematically, if I’m going to spend a year in prison if convicted and there’s a 50% chance of conviction, that means half a year is my expected punishment. So the prosecutors control what the price is, like what they’re willing to give you, and then to a certain extent, they control the outcome at trial if you get convicted. So they can always come up with sort of like a deal that’s too good to pass up. Does that make sense?
Systemic Secrecy and the Loss of Truth [08:04]
Bob Zadek: It makes total sense. In other words, the prosecutor can always make an offer you can’t refuse, to borrow from The Godfather.
Carissa Hessick: Exactly.
Bob Zadek: Okay. Now, if we stopped then, I dare say it wouldn’t induce you to write a book. But you explained in your book lots of examples and lots of explanation why this process, which can almost seem benign, when it’s put into play, in practice, it becomes obscene. It becomes an embarrassment to any member of a civil society. So give us a sense of the type—you may want to use an example or two, feel free because you were very generous in your book with examples—so if you want to give an example or two, as well as the mere narrative, help our audience understand the kinds of abuses that occur which make plea bargaining such an unholy contract.
Carissa Hessick: Sure. So, I want to be clear, I wanted to write the book because—well, I wanted to write the book in part because I’m like the first person in my family to go to law school. And then when I became a criminal law professor, you know, you get together with your family and they, you know, they tell you how to do your job better. So they were always telling me, “Oh, well, this, that, and the other thing,” and I kept having to say, “You know, that’s not how the system works.” Like, the criminal justice system doesn’t work the way we see it on TV and in the movies. And this is something that when the students come into my classroom and they learn about the criminal justice system, they’re really horrified. They’re like, “How can we have this system?”
And the truth is, there are a lot of things wrong with the criminal justice system, and many, though not all, but many of those things can be tied to the practice of plea bargaining. So we’ve adopted this way of resolving cases that fundamentally warps the system that we have. It stands so many of the principles that we care about on their heads. And then layered on top of that are the fact that people within the system know how it works, the people outside the system don’t know how it works, and they’ve changed things like what are the laws on the books. Can you charge somebody with three different counts of shoplifting for stealing an apple, a banana, and a pear? The people who write these laws, they know about plea bargaining, and they want the prosecutors to have this sort of leverage.
It’s a problem because that also leads to a series of other decisions. If we want people to plea bargain, which is where we are in the system now—we want people to plea bargain—the legislature, the prosecutor, and the judge in many cases, they all work together to make sure that a defendant doesn’t go to trial.
The Ohio Sex Crime Cases [10:41]
Carissa Hessick: They do this for everyone. And so what does that mean? It means that we don’t have trials in this country. It also means we convict innocent people of crimes because we put this pressure on everyone, right, innocent and guilty alike. And it all happens in secret so that ordinary Americans don’t know about it. And sometimes they don’t know about it, and when they find out about it, they’re really angry and upset about what’s happening. And when they don’t know what’s happening, which is most of the time, they aren’t able to serve as a check on government power.
Now, when I talk about this book, I talk to people who are politically conservative, people who are politically liberal, people who are libertarians like yourself, and all of them for different reasons want there to be some checks on the government and what they’re doing here. We want them for different reasons and we want them in different cases, but none of us want a system that is not transparent, so really hard for all of us to understand, and impossible for us to control. And that’s the system that we have now.
Bob Zadek: Now give us either a hypothetical or a real fact of the type of abuse that can occur or did occur, your choice, which is why you got yourself so worked up you spent valuable time writing a book about it. So either a real or manufactured or combined example, it doesn’t matter because I want the audience to put a, if you will, a face on the problem. So give us an example.
Carissa Hessick: Sure. Let me give you an example—I’m actually going to use two related examples. So, when I was first starting this book, I had the good fortune to talk to a judge, a judge in Ohio, who had over time gotten concerned about plea bargaining. And so he had people who worked in the court with him pull together a bunch of information because he saw that the prosecutors were doing a lot of plea bargaining in sex crime cases. And the information that they pulled together was, you know, like the case name, the original charges that were brought, and then like the plea bargain.
And he sent me this spreadsheet. It was a huge spreadsheet, it had like hundreds of cases on it. And I went through it and I found that people who were accused of incredibly serious crimes—like incredibly serious crimes—were pleading guilty to crimes that were not even a little bit serious. So I found, for example, example after example of people being arrested and charged with having sexually assaulted small children, like young children, and they would plead guilty to a crime in Ohio called “interference with custody,” which is like a crime that you can bring if, like, if somebody’s like, I don’t even know, like interfering with the rights of a parent is basically what it is. And as you might imagine, that doesn’t carry a very strong penalty. A lot of these people were getting probation, some of them were getting six months in jail.
Now, if you live in Ohio, you have to wonder to yourself, “What’s going on here? Are people who commit really serious crimes getting away with it because they’re taking a conviction, but not for the crime they’re getting charged with?” And I had an opportunity after I wrote the book to be on a radio show with a prosecutor in Ohio. And he’s like, “Plea bargaining is great. Plea bargaining doesn’t interfere with truth and justice.” And I brought up these cases. And he said, “You don’t understand. We would have lost those cases. So getting the plea bargain was a win.”
And I was dumbstruck. So what is this guy telling me? They couldn’t prove that the people committed these crimes, and so they gave them really good deals because that’s better than nothing. But I’m just sort of like, “Wait a second, that’s not how this system is supposed to work. If you can’t convict someone, then don’t convict them, right?” If you can’t prove that somebody raped a small child, then they should go free. If you think you might lose that case, maybe you’ll lose that case, but that’s not the system that we have. Because who’s telling us that these people committed the crime? Law enforcement. They don’t think they can convince a jury that they’re right. That strikes me as a real problem. Like, either we need to have law enforcement working differently to solve cases and to prove crimes because these people are actually guilty, or these people didn’t commit a crime and they pleaded guilty for something that they didn’t do. Like, there’s no happy outcome here. Like, nothing here is good.
You have two options, right? These are either all Jeffrey Epstein cases where that guy, like, molested tons of, like, teenage girls and then got 14 months in jail because of some sweetheart plea bargain that he arrived at with prosecutors, or these are innocent people who are getting on probation and spending six months in prison for something they didn’t do. There’s no in-between. Nobody thinks that what these people did was interference with custody. They either think they’re innocent or they think they committed this terrible crime. And by saying we’re going to have these negotiated outcomes where we, if you can excuse the metaphor, split the baby, we’ve given up on the entire idea of truth in this system.
Plea Bargaining as an Anti-Democratic Force [15:52]
Bob Zadek: And the plea bargain—I’m going to focus on the word “bargain” again—in the plea bargain, the defendant, the alleged perpetrator, is staring down the barrel of a criminal trial and the possibility he could be convicted or she could be convicted. The possibility, risk-adjusted to something less than 100%, but it’s sure is there. And incarceration is a really big deal. It’s not like you lost $100 gambling. It’s a big deal. Okay. So the stakes are really, really high.
In exchange, the alleged perpetrator surrenders a constitutionally protected right. And as if that’s not enough, it is a right that legal history teaches us that the founders and those who preceded our founders felt this was a brutally important right because, after all, the revolution, the result of the revolution, the Constitution itself, spent a lot of its energy, if you will, in building protections against overreaching by the government. And many of the founders, Thomas Jefferson to be sure, believed that the jury system was a safeguard against the criminal justice system, which is the government, against the government’s overreaching. So it is a highly valued right. It’s not, as I said in my intro, a throwaway right. And I think the attention that Carissa gives to plea bargaining is because it’s such an unholy contract where somebody gives up a right that our history shows us is valuable and it’s too easily given away.
Carissa Hessick: Much too easily. And if I can just break in for a quick second—so like, I tell this story about these cases out of Ohio because I think they resonate with people for different reasons. Like, people who care about individual rights should be horrified because the innocent people who are being accused are getting pressured into giving up their right and they are taking a criminal conviction. The people who think these people might be guilty should also be horrified because dangerous people are going back into the community.
And for me, this is where I think we have to think about the jury right not just as an individual right against government tyranny, but a way for democracy to function. Like, people who live in communities should have the opportunity to decide whether the person who’s been arrested is a dangerous person who did a dangerous thing or somebody who was innocent and was wrongly accused. We’ve cut those people out of the system entirely, and I think that’s what Thomas Jefferson and John Adams and all of them cared about as well. They didn’t just care about protecting people from tyranny; they cared about having Americans involved in running this country. And juries, when we have them, play a huge role in deciding whether someone committed a crime or not, and we’ve taken them out of it and left it to bureaucrats.
The Separation of Powers Problem [18:48]
Bob Zadek: I want to draw, without inviting discussion, just an observation, that there is kind of a movement in this country to increase democracy. Now, democracy is a word—it means different things to different people. But what I mean in the statement I just made is, going back to 1913, we changed the election of senators from elected by state governments to elected by the people. In other words, more, if you will, power to the people. We moved primary selection of candidates from the proverbial backroom, smoke-filled backroom, to primaries, so people get to pick the candidates for each party. That’s the movement toward democracy. We over time diminished the value of the Electoral College, which in effect separated voters from direct election of president. So that’s been the movement.
The plea bargaining is the other way. It says all of a sudden other humans, 12 good men and true, other humans are ought to be denied a seat at the table in deciding the most important decision: should another human being be deprived of their liberty? It doesn’t get more important than that, and yet we take citizens out of the process while we strive in every other way to put citizens into the process. There’s a profound contradiction that gets ignored in the process.
Now, Carissa, the question I’ve been—I didn’t sleep that great last night because I couldn’t wait to ask the following question. And it’s going to seem like I just sold out, but I’m asking the question truly out of intellectual curiosity. Plea bargaining, as you have taught us, is the accused gives up the right to a trial in exchange gets the vague promise—it’s not binding until the judge—the vague promise, the expectation if you will, of a lower sentence than the accused would get at trial. So a trade-off.
Now, let’s imagine—I’m going to ask you a two-part question. The first one is to suck you in, and the second one is the real question, but I’m telling it openly so that the audience understands, so they can see the answer. Somebody is holding up the answer you can’t see. The first question is this: let us assume an accused did it, did the crime, and gets nailed. Okay, got nailed. And now is presented with an opportunity: how do you plead? Okay, that drama you started the show with. And of course there will be conversations about plea bargaining. Now, this accused knows he’s going to lose. The prosecutor doesn’t know yet. But and let’s assume this is like not a likable accused, just to put a little color in my hypothetical. No one likes this accused. But he persuades, he tricks if you will, the prosecutor to let him get off with a violation or an infraction or a misdemeanor. And they sign a plea bargain. And the prosecutor says, “That’s a win.” Well, no, Mr. Prosecutor, you lost. You’ll never know. Now, are you still—what is your comment about that transaction? Does that offend you? Does that offend you because now it’s the prosecutor who’s deprived of the jury trial, not the accused? So tell us how you feel about that, and there’s a reason I’m asking it. So this is not the main question; this is the lead-in to the main question. But first, your answer to that question.
Carissa Hessick: Sure. I mean, I guess I’d say, look, defendants are always free to plead guilty. They don’t need a prosecutor to give them something in return. Like, we’ve just set up a system where that’s expected. And before plea bargaining or in places where plea bargaining sort of wasn’t the dominant way of resolving cases, we still saw a decent number of people plead guilty. So some people would plead guilty because they did it and because they didn’t want to have to go through the hassle of a trial where they’re just reminded of the fact that they did it.
Prosecutors—it’s funny that you said, like, the prosecutor lost and the prosecutor lost out on the jury trial, because I don’t think that that’s how prosecutors see it, right?
Bob Zadek: I know it doesn’t. I know they don’t. But I’m giving you your step back. You’re watching this carried out and now you’re commenting as an observer. Are you offended by plea bargaining in that case?
Carissa Hessick: So, I don’t like that plea bargain. I don’t like that plea bargain because I don’t think that it should be up to the defense attorney and the prosecutor to decide what happens in the case. Like, there’s a boring word for this: I’m a formalist, right? So I believe in the structures that we have and they’re supposed to serve certain purposes. And one thing that happens when the prosecutor and the defendant work out what the sentence is going to be and make that be part of their plea agreement and give it to the judge and then the judge gets to decide whether to accept it or not, is that the judge isn’t making decisions about sentencing, which if you value democracy and you think that James Madison was right that separating the powers is a good way to avoid tyranny, then you want another branch of government involved in that. Regardless of whether the deal is too good or too bad, you don’t want one person wielding that much power in our system, regardless of whether you think they’re being too lenient or too harsh. One person wielding power is just rarely something that I’m personally going to be comfortable with. So I’m sorry, I feel like I resisted your question.
Sentencing Enhancements as Leverage [21:38]
Bob Zadek: No, you didn’t. Not at all. But now, my real question. Because—and we’re going to continue for the rest of the hour to discuss plea bargaining—but in your describing the trade-off, the negotiation between prosecutor and suspect, you explained that the prosecutor has as a very valuable tool to put his or her thumb on the scales, if you will, is: “Well, unless you plead guilty, we can up the charges. It’s three offenses rather than one, or you were carrying a gun, or you have a previous gun conviction, or three strikes and you’re out.” Lots of tools. And the defendant says, “Oh my God, oh my God, oh my God, I’m going to be away forever. Okay, I’ll plead.”
Now, that was how you teed up the issue, and that’s what happens. But my question is: if you unpack that hypothetical, if the sentencing, if the penalty for the crime drafted by the legislature were not excessive, if it was, let’s say, more appropriate, and if there was no opportunity for enhancement by all this other stuff, so the prosecutor goes into the negotiation not with a lot of aces in the hole, and now it’s a more even negotiation. Does or does—I don’t want to prompt the witness—does your animosity towards, your disapproval of plea bargaining as a contract, as one transaction in the criminal justice process, does it become diminished? Because now the parties are more evenly matched, and now you have a defendant who may or may not have done it—it’s a trial, nobody knows for sure they’re going to win—and it’s a trial, both sides are looking at a toss-up. And now the prosecutor has less to offer and therefore has got to offer a reduced sentence on a much lower starting point. Do now you say, “I love it and I’m all in,” or not?
Carissa Hessick: So I don’t, but I do think it changes things. And that’s because, you know, when I talk about this sometimes, I say, “Look, plea bargaining is bad for so many reasons. It’s bad for defendants, it’s bad for victims, it’s bad for truth, it’s bad for justice, it’s bad for democracy.” I think the scenario that you’ve given me, it’s no longer bad for defendants, but it’s still bad for all of those other reasons. So I guess I would say it’s less bad than it used to be because you’ve taken away one of the reasons that it’s bad, but the other reasons that it’s bad are still there.
Bob Zadek: So what we—so I agree, I agree 100%. But I wanted this dialogue because the issue is a little bit more nuanced. And once the audience appreciates that we are really talking about two problems in civil society, not one: we are talking about excessive sentencing and enhancements because legislatures rarely get re-elected if they reduce criminal sentencing. That’s not the path to the White House. And so there’s an inherent bias in favor of legislators voting just to throw away the key. And that has the byproduct of now making the bargaining power unfair.
Because as you were explaining, and you said a defendant always has the right to plead guilty, well, a plea bargain is just the exercise of that right, except with a little bit of inducement. So it’s not, as I said, it’s sort of tainted by coercion because the other guy’s like, “Your money or your life.” And it’s not really a fair—“Well, I’ll get back to you on that one. Call me in a week and I’ll tell you about my money or my life.” No, people don’t say that.
The “Right to Vote” Analogy for Waiving Rights [24:36]
Carissa Hessick: But Bob, can I say for a second? I mean, I agree with you that the coercion piece of it is bad. But if we can just abstract this out like just for a second, can we change the right? Can instead of making it a jury trial, can we make it the right to vote? So imagine that the government comes to me and they say, “Carissa, you’re on Social Security. We’re going to withhold your Social Security check unless you vote for so-and-so.” That would be coercion about how I exercise my right.
Change the situation where I’m not on Social Security, they’re not withholding something, but they say, “What if we give you a million dollars so you vote for that guy?” That’s bad too. It’s just bad for a different reason. Like, we have set these rights up, especially these like structural rights like the right to vote and the right to a jury, because we have a certain—not we, we didn’t set them up, you and I, Bob—the people who wrote our Constitution set up these systems because they wanted a particular type of government run a particular way that was less likely to become tyrannical. And paying people to vote a certain way and giving them sweetheart deals so that they don’t have juries are of the same ilk, where you have government bureaucrats not going to the people to get them to sign off on the decisions that are being made. Like, they’re bad, but they’re bad for different reasons, right?
Bob Zadek: Exactly right. Exactly. Now you, in your book, there are two important points I’m going to help you bring out from your book. First is an easy one, it’s a factoid. Give the audience an appreciation—if we start with the people who died at Valley Forge to protect our right to be tried by a jury of our peers, that is incredibly important to the founders and to those people who built our system of government. And yet, the jury trial was crucial. And by the way, a little plug as I’m talking about jury trials: best movie ever made, 12 Angry Men, Henry Fonda, must watch. Stop listening to this podcast, turn it off, put it on pause, go watch 12 Angry Men, then come back. Okay, I had to sneak that in, I love Henry Fonda’s portrayal. Okay, back to the show.
The Statistics of Conviction [27:39]
Bob Zadek: So we have—what percentage of criminal trials are resolved by a jury the way it’s supposed to happen, and what percentage do not?
Carissa Hessick: So, I just want to caveat this for a quick second because when we’re talking about the statistics that we have, they are about convictions. So they’re not necessarily about trials or cases that are brought because that gets a little bit more complicated. But in terms of convictions, so when we convict people, it looks like if you average out all the convictions in the country in both federal and state court, we’re at somewhere around 97 or 98% of convictions are the result of a guilty plea. And we can’t always figure out how many of those are plea bargains, but lots and lots of them are.
And I should say, those like 2% of convictions that are the result of trials, they’re not evenly spaced. Like, some places we have zero trials. Like Rhode Island, federal convictions in 2021: zero trials in the entire state. So it’s, you know, Justice Kennedy about 10 years ago was hearing some case about something involving plea bargaining, and he has a line in the case that says, “You know, plea bargaining is not something that’s like adjacent to the criminal justice system. In a very real sense, plea bargaining is the criminal justice system.”
Bob Zadek: And so we—taking that statistic of only 2.5% of the convictions result from a jury trial, it means that a constitutionally protected right is a right which, based upon that statistic, has basically been written out of our country’s jurisprudence. It’s a right that exists only in theory. And when it happens, it’s like it makes the headlines because it’s so rare. It’s a unicorn.
So the astonishing thing is—I challenge anybody to name or identify another specifically enumerated right in the Bill of Rights or in the Constitution proper (but there are no rights really in the Constitution proper), but in the Bill of Rights, I defy you to find any right that is 98% of the time waived by the holder of the right. The right to free speech, the right to practice your religion, the right to be free of unreasonable searches and seizures, the right to protect your property against eminent domain—no other right is waived 98% of the time except for jury trial. It’s become a throwaway right, and that in and of itself is offensive.
The Supreme Court’s Role [30:30]
Bob Zadek: Now, one would—since this is a process that developed over time and relatively recently—in much of our history as a country, there isn’t a lot of history of plea bargaining, but it grew and grew and grew and grew. One would—at least the question should be asked, and you answer it in your book, and please share your answer—what’s been the role of the Supreme Court? Have they been offended by it? Is there an indication that when the right plea bargaining case comes before the Supreme Court, they’re going to weaken its usage, or do they embrace it, or do they pretend it doesn’t exist? Tell us the role of the Supreme Court, because so many of us look upon the Supreme Court as the great hope and the protector of our rights.
Carissa Hessick: Yeah, so the sadly, like, judges aren’t the hero in this story. In fact, I think you can place a lot of blame at the feet of the US Supreme Court itself. And it didn’t have to be that way. Like, as you mentioned, Bob, plea bargaining is a relatively recent phenomenon. There were some pockets of it in like the 19th century, but when courts found out about the plea bargains, they would react very badly and a lot of state courts would throw out the convictions and say that they were unconstitutional. The US Supreme Court actually got a case involving something that looked an awful lot like a plea bargain, and they refused to enforce the agreement because they said the prosecutor didn’t have that power. But they didn’t really sort of like put a bow on it, and it was a slightly weird type of plea bargain.
So fast forward to the 20th century. It’s not until like the 1930s and ’40s that plea bargaining really seems to be out in the open and starting to get accepted. The Supreme Court manages to duck the issue for decades. It’s not until the early 1970s that they agree to hear a case that was about the constitutionality of plea bargaining. And they just let it happen. I mean, it was very strange. They had all of these previous cases that said things like, “You can’t punish people for exercising constitutional rights.” But they had this ability to enforce a plea bargain—to enforce a plea bargain so the prosecutor had backed out and the defendant wanted to get the benefit of the bargain. And the Supreme Court said yes, this is a case called Santobello v. New York. The Supreme Court said, “Yes, we have to enforce this. Plea bargaining is an important feature of the modern criminal justice system and it’s to be encouraged when done properly.” So that’s when they recognized the legitimacy of plea bargaining.
And then it wasn’t until a little while after that that I think the constitutionality of plea bargaining got challenged, where you had one of those coercive cases like the one you talked about. This guy was facing five years in prison—that’s the plea he was being offered—and the prosecutor said, “If you don’t take my five-year deal, I’m going to add new charges that mean you have to spend life in prison.” And this was for, by the way, in case you’re wondering, passing a bad check. The guy had some priors, passing the bad check he qualified under like the three strikes law in, I think it was Kentucky. He challenges it and he says to the Supreme Court, “Look, you guys have all these other cases that say you can’t penalize people for exercising their rights.” And the Supreme Court’s like, “Yeah, we did say that. But we also said plea bargaining’s good. And if we’re going to say plea bargaining’s good, then we can’t really like step on the toes of prosecutors and deprive them of the ability to get more plea bargains.” So basically what they said was, “You are right, we have all of these constitutional rules that don’t allow what this prosecutor is doing, but if we recognize those rules, if we continue to enforce those rules, then we’d have fewer plea bargains and that would be bad.”
The Resource Argument and Over-Criminalization [33:40]
Bob Zadek: The Supreme Court, I believe I learned this from your book, the Supreme Court in a decision justified, or kind of justified, their comfort with plea bargaining with specific reference to the cost of a jury trial, what it would do to the system if there were no plea bargains. It means we’d have, instead of 2% trials, 100% trials, and everybody in the country would spend all their time on juries, and we’d be a country of jurors and a few people to put out fires and everyone else would be sitting in jury rooms. So they defended it based upon the system can’t possibly try everybody. So explain that, and then we’ll discuss for a few minutes because I think that has no intellectual basis at all. When I learned that, I said to myself, “What were these people thinking when they wrote that?” But so explain that, and then we’ll embellish it a little bit if it needs expanding, as the justification by the Supreme Court why they tolerate plea bargaining.
Carissa Hessick: Yeah, so this was Justice Burger said this like right after the Santobello case, when they said plea bargaining is to be encouraged. And that was the one where they enforced the bargain, not the one where they were dealing with the constitutional attack. But I have to say, like, this argument—“We have to have plea bargaining because we don’t have the resources to try all cases”—I think that this is the argument that most people find persuasive when it comes to plea bargaining. And it’s the one that I hear from people all the time that are like, “Yeah, you know, look, plea bargaining is bad, but we need it. We can’t try every case.”
And this is where I tried to dig down a little bit deeper because as a general matter, I’m sort of like, “Well, why can’t we try every case? Like, what’s going on?” And I found something that struck me as surprising. So even though I teach criminal law, like when we talk about criminal law and we talk about crimes, we tend to talk about serious crimes, like murder or arson or sexual assault or those sorts of things. But if you look at what we use our court system for, it actually looks really different. Every year we have about 1 million felony cases, and felonies are sort of like the catch-all for serious cases, cases where the penalty is going to be more than a year in prison. That’s a felony. And then misdemeanors are less serious cases; you can get probation or maybe you can get a few months in jail. Okay. So we have 1 million felony cases a year. We have 13 million misdemeanor cases every year.
We’re saying we can’t process all of the cases consistently with the Constitution because there are too many cases, and my question is: what’s going on with those 13 million misdemeanors? Should those things be crimes? Should we deal with them through the criminal justice system? I mean, some of these things are like—some misdemeanors are, you know, domestic assault, like domestic violence. Some of them are, you know, a DUI. Some of them are like somebody urinated in public, or, you know, drove too fast. Like, we don’t—not all of these things have to go through the criminal justice system. We have other options here. Like a lot of regulation—like a lot of regulations adopted by administrative agencies, if you violate them, at the very end they tack on “this is a misdemeanor” and maybe it’s punishable by a fine and those sorts of things.
So I have to say, when I talk to libertarians about the book, this is the piece that tends to get them very excited because they say, “Wait a second, if we had to try cases, would we stop increasing the scope of criminal law and be more thoughtful and say, like, well, we care about robberies, so maybe let’s try the robberies. We don’t really care that much about whether somebody’s smoking weed on the corner, and if you want to bring 17 cases of somebody smoking weed and that’s going to get in the way of the one robbery case, then like there’s a problem.”
Bob Zadek: My God, it’s exactly, exactly—I feel like I must have mind-to-mind manipulated you. That’s exactly, exactly where I thought I would, if I asked exactly the right questions, I’d get you to say exactly what I wanted to close the show with. So thank you so much.
Conclusion [36:40]
Bob Zadek: Now, we only have a couple of minutes left, regrettably. I’m having a great time. Regrettably. So my question is: is your recommended, hoped-for, or suggested cure legislative or in the courts? And if so, and either it’s neither or what would you hope would be the positive result of people learning from the lessons of your book?
Carissa Hessick: Yeah, so I have a chapter in the book with a number of recommendations because we didn’t get here right away, right? We slowly got to 97, 98% of convictions not with trials. So it was a slow process to get here, and I think it would be a slow process to get out the other way. Judges have to make some changes, legislatures have to make some changes, prosecutors have to make some changes. But we as ordinary Americans, we need to understand what’s going on so that when somebody’s running for office saying, “We need this mandatory minimum to get these dangerous people off the street,” we know what they’re really saying is, “We need this mandatory minimum to give prosecutors more leverage for plea bargaining.” Basically, what I’m trying to say is we need ordinary Americans to understand how the system really works so that they don’t keep falling for the half-truths and sometimes flat-out lies that have allowed us all to become complicit in this big over-bloated system that we have.
Bob Zadek: But it’s crucial—and we’ll end with this—that to me, the real harm is it cheapens a right. You don’t want to make—you don’t want to do that. And it takes the people out of the process. And as you pointed out in your book, we value our checks and balances. And not only does it take the people out of the process, but as your book explains, it takes the judge out of the process. It sort of takes the people and the judge out of the process, and along the way it gives the prosecutor the role of both prosecutor and judge.
Carissa Hessick: And jury.
Bob Zadek: And jury. And so the system works if your hypothetical is every accused absolutely did it, sort of “why would they have been arrested” is the way the sentence ends. And if you start with that point of view, which many people do—the police don’t arrest innocent people kind of thing—then the plea bargaining is kind of makes sense. But if you start with innocent until proven guilty, the plea bargain fails.
Thank you so much, Carissa, for bringing this device, this practice, to the attention of the reading public. Your book is readable both by lawyers who are immersed in this stuff and by citizens who just want to actively participate in our government. So thank you so much. Carissa’s book is called Punishment Without Trial: Why Plea Bargaining is a Bad Deal. Carissa Byrne Hessick, H-E-S-S-I-C-K. Thank you so much, Carissa, for giving us your time. And thank you to my friends out there for giving us an hour of your very, very valuable time. I hope you have found it to be a mutually beneficial exchange. Thank you so much.
Carissa Hessick: Thanks, Bob.