Plea bargaining is the practice by which a criminal defendant agrees to plead guilty, usually to a lesser offense or on a recommended sentence, in exchange for the prosecution’s forbearance. Across several episodes of The Bob Zadek Show, host Bob Zadek and his guests treat the practice as a central and largely unexamined feature of American criminal justice — one that, on their account, has displaced the jury trial and converted the exercise of a constitutional right into a priced risk.
The mechanics and the numbers
Bob Zadek introduces the subject by invoking the jury trial as a cherished protection, tracing it to the Magna Carta of 1215 or before, and then observing that jury trials in criminal cases have virtually disappeared — “Silently, they are gone.” He puts the figure at about 97% of all convictions done without a jury trial, and asks whether that is healthy or merely efficient rachel_barkow_on_fixing_the_fundamentals_of_criminc. In a separate episode he gives a similar figure, saying that about 96 or 97 percent of all criminal cases are resolved by plea bargaining, and describes the practice as using the power of the statute to coerce people into signing confessions and accepting plea bargains [[episodes/joel_engel_on__scorched_worth__a_true_story_of_des|Joel Engel on Scorched Worth: A True Story of Destruction, Deceit, and Government Corruption, 6/3 (2018)]].
The mechanism Zadek describes is a threatened sentencing differential. Prosecutors tell a defendant that, because of sentencing guidelines, a trial could mean 45 years away, while a plea to a lesser offense would mean five years, or two and a half with good behavior. The defendant is asked whether to roll the dice [[episodes/joel_engel_on__scorched_worth__a_true_story_of_des|Joel Engel on Scorched Worth: A True Story of Destruction, Deceit, and Government Corruption, 6/3 (2018)]]. Zadek characterizes this as almost coercion and argues that the word “bargain” is misused, because the perpetrator has very little going for the perpetrator rachel_barkow_on_fixing_the_fundamentals_of_criminc.
The trial penalty
Rachel Barkow, asked by Zadek to explain the mechanics of plea bargains and how extreme threatened sentences affect them, reframes the term outright: she would call it a “trial penalty” instead of a plea bargain, describing it as putting a price tag on the ability to exercise a constitutional right to a jury. Prosecutors, she says, threaten people every day in America with sentences as long as life should they go to trial, saying they will charge a law carrying a life sentence or a mandatory minimum of 30 years but will recommend two years if the defendant pleads guilty. No one in their right mind, she argues, could think the prosecutor honestly believes the defendant deserves life or 30 if they are willing to take two; the threat is used to coerce people and to take the jury out of the process rachel_barkow_on_fixing_the_fundamentals_of_criminc.
Barkow ties the jury to popular sovereignty: the jury is the way that you and me and everyone else in this country gets involved in checking the government in individual cases, and the Framers knew how important it was — it was in the original Constitution even before the Bill of Rights. In her account, government employees, prosecutors, have basically taken the jury completely out, because they make it too expensive, too costly and too risky for any defendant to exercise that constitutional right. She attributes this to the Supreme Court having just not done its job in saying that this is an unconstitutional condition on the exercise of the jury trial right rachel_barkow_on_fixing_the_fundamentals_of_criminc.
Victims and restorative alternatives
A caller, Jacob, raises the absence of victims from the discussion, describing a hearing where, just a few days after the arrest of a burglary suspect, the prosecutor and the judge had already signed off on a plea agreement without even notifying the victims. He asks whether there should at a minimum be a probable cause hearing in all 50 states before any negotiated plea is signed off on rachel_barkow_on_fixing_the_fundamentals_of_criminc.
Barkow agrees that the question of whether American criminal justice serves people who have been victimized by crime is the right one, and says it fails there too. Most crimes go unreported, she notes, so millions of victims have so little confidence in how it will play out that they do not report at all. For those who do report, it is often the case that they do not want the sentence the government is offering — sometimes because it is too lenient, but sometimes because it is too harsh. She cites research asking victims whether they would rather have the person go to prison for a number of years or participate in restorative justice programs in places that offer them, in which the person who committed the crime confronts the victim, apologizes, and the parties try to figure out what would actually address the harm — community work, financial repayment, or programming for an underlying drug issue. A lot of victims want that, she says, and they are not asked; the prosecutor just assumes without ever consulting them. Because 95% of people come back out again, it matters to victims that those returning will not do the same things to other people rachel_barkow_on_fixing_the_fundamentals_of_criminc.
The Supreme Court’s role
Carissa Hessick, asked what role the Supreme Court has played and whether it has been offended by plea bargaining, answers that judges are not the hero in this story and that a lot of blame can be placed at the feet of the US Supreme Court itself. Plea bargaining, she says, is a relatively recent phenomenon; there were pockets of it in the 19th century, but when courts found out about plea bargains they reacted very badly, and a lot of state courts would throw out the convictions and say they were unconstitutional. The US Supreme Court got a case involving something that looked an awful lot like a plea bargain and refused to enforce the agreement because the prosecutor did not have that power, though it did not put a bow on it and the case was a slightly weird type of plea bargain What happened to the right to a trial by jury? (2022).
It was not until the 1930s and ’40s, Hessick says, that plea bargaining really seemed to be out in the open and starting to get accepted, and the Supreme Court managed to duck the issue for decades. Not until the early 1970s did the Court agree to hear a case about the constitutionality of plea bargaining — and it just let it happen. Despite previous cases saying you cannot punish people for exercising constitutional rights, in Santobello v. New York the Court said a plea bargain must be enforced, that plea bargaining is an important feature of the modern criminal justice system and is to be encouraged when done properly. That, she says, is when the Court recognized the legitimacy of plea bargaining What happened to the right to a trial by jury? (2022).
Later, the constitutionality of plea bargaining was challenged in a coercive case: a defendant facing a five-year offer was told that if he did not take the deal the prosecutor would add new charges carrying life in prison. The underlying offense was passing a bad check, and with priors he qualified under a three strikes law in, Hessick thinks, Kentucky. He argued that the Court’s other cases said you cannot penalize people for exercising their rights. The Court’s response, as she characterizes it, was that it had said that, but it had also said plea bargaining is good — and if plea bargaining is good, the Court cannot step on the toes of prosecutors and deprive them of the ability to get more plea bargains. In effect, she says, the Court acknowledged its constitutional rules did not allow what the prosecutor was doing, but recognized that enforcing those rules would mean fewer plea bargains, and that would be bad What happened to the right to a trial by jury? (2022).
Plea bargaining as a civil-liberties problem
In an episode on the new civil liberties movement, Zadek raises plea bargaining with Philip Hamburger as an example of government using coercive power to take away rights on one hand and then give them back conditionally on the other, asking how plea bargaining fits into that conversation. Hamburger’s answer does not appear in the excerpt, which breaks off at his name The New Civil Liberties Movement (2021).
Zadek makes a related structural argument in that episode: much of what he and Hamburger discuss amounts to a usurpation of state and local power by the federal government, which cannot act directly because the Constitution prohibited it, and which therefore proceeds by a technique that, with the Supreme Court’s endorsement, has contributed to the irrelevancy of states. He frames the stakes in federalist terms — whether states are separate and equal branches of government vis-à-vis Washington, with somewhat exclusive areas of power, and whether one favors the concept of federalism as delivered in 1787 The New Civil Liberties Movement (2021).
Across episodes
The excerpts show no development in the argument across episodes; the same question is raised in four separate conversations with four different guests, and the treatment is consistent rather than evolving. Bob Zadek supplies the framing and the near-identical statistics in the Joel Engel episode and the Rachel Barkow episode, Rachel Barkow supplies the “trial penalty” formulation and the restorative-justice alternative, Carissa Hessick supplies the Supreme Court history, and Philip Hamburger is asked to connect plea bargaining to conditional rights but the excerpt ends before he answers. Ilya Somin’s episode touches the topic only in Zadek’s closing remark that jury reform and plea bargaining, and the almost total disappearance of criminal jury trials in America, are a serious problem the show did not have time to cover The Libertarian Dream Team - Ilya Somin (2022).
What the sources do not cover
The excerpts do not state the governing law or constitutional provision under which plea bargaining was challenged, beyond Hessick’s reference to cases holding that people cannot be punished for exercising constitutional rights. They do not give the outcome or citation of the bad-check case Hessick describes, nor the date of Santobello v. New York beyond the early 1970s. No excerpt states the name of any bill, the state in which any city mentioned sits, or the title and field of any speaker beyond what the labels and Zadek’s own introductions supply. Hamburger’s explanation of plea bargaining as conditional rights is absent because the excerpt breaks off at his name.