It’s the dirty secret of the American criminal justice system: while it is the right of every citizen to be tried by a jury of their peers, that is rarely what actually happens.
A bare 3 per cent of federal convictions are handed down after a jury trial. All the rest are born of behind-closed-doors plea negotiations.
Some may argue that the new criminal court charge in Britain is the thin end of the wedge and could begin to encourage more people to plead guilty before a full trial when it may not be in their best interests.
In the US, it is a practice that really began to take hold early in the last century and became even more commonplace when crime rates soared in the 1970s and 1980s. Above all, it was a way to stop the court system from simply collapsing from the growing crush of cases.
The standard transaction goes like this: the prosecutor lays out what the likely sentence would be for the defendant if they are convicted at trial and then suggests they plead guilty to a reduced charge.
Thus the risk of a trial going wrong is obviated and the punishment will be less severe.
Short-circuiting the justice system in this way does not sit well with everybody. Pressure on defendants to accept a plea bargain is often immense and the risk inevitably exists that the innocent will agree to enter a guilty plea. The more a prosecutor stirs their terror, the more likely they are to buckle.
And while there is no explicit financial incentive for a person to accept a plea bargain and forgo a jury trial, the poor and the indigent may very well conclude that their chances of mounting an effective defence at trial are going to be a whole lot slimmer than if they were wealthy.
No high-priced defence lawyers for them; they have to rely on over-burdened public defenders.
“The typical person accused of a crime combines a troubled past with limited resources: he thus recognises that, even if he is innocent, his chances of mounting an effective defence at trial may be modest at best,” US District Judge Jed Rakoff said in a scathing attack on the plea bargain system in The New York Review of Books last November. “If his lawyer can obtain a plea bargain that will reduce his likely time in prison, he may find it ‘rational’ to take the plea.”Reuse content