AFTER years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”…
But in this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.
This is a finance blog, so we can bring in the concept of the efficient frontier and tradeoffs.
A lot of decisions are viewed in terms of tradeoffs. Can your financial portfolio get a higher return without taking on more risk? In the modern portfolio theory there’s a point where you can’t – any higher return will require a tradeoff in more risk.
Tradeoffs are everyone in economics. For instance, government policy is often viewed as a tradeoff between equity and efficiency. Now this only makes sense if you are at the frontier of policy and have exhausted all the potential opportunities to increase both. Only then are tradeoffs strictly necessary.
Now when it comes to criminal sentencing and plea bargaining, the government hasn’t found that it is required to face tradeoffs. My favorite fact about plea bargaining, from William Stuntz’s Collapse of the Criminal Justice system (italics in original):
The Court’s decision allowed the government to do two things that, in combination, were hard to pull off: raise the guilty plea rate and raise the average sentences, at the same time. Plea bargains involve compromise-the defendant agrees not to take his case to trial; the prosecution agrees to less severe punishment than the law might allow. More guilty pleas means more such compromises, which in turn should mean lower average sentences. But if the law allows for punishment more severe than even prosecutors wish-as it did in Bordenkircher, and as it did increasingly often in the twentieth century’s last years-these “compromises” are easy ones for prosecutors to make.
An increase in plea bargains should require an almost mechanical tradeoff in a decrease in average sentence length. If you are taking a plea bargain you should get a shorter sentence than if you had gone to trial and lost, therefore more guilty plea bargains should increase the proportion of shorter sentences, lowering that number.
Yet during this time period you had both go up. No tradeoff! Which you can do if you pass harsh mandatory minimum sentencing, remove discretion from judges and legally threaten people with harsher sentences for exercising their constitutional rights.
Stuntz also argues that arrests went up almost sevenfold with only a 60 percent increase in prosecutors – which gives you a sense of how efficiently this machine runs now.