Recent years have seen a dramatic growth in the number of complaints, e.g., here, that criminal trials have all but disappeared in the United States and essentially have been replaced by plea bargaining. Closely related to this complaint is the argument that, mostly just to make their jobs easier and marginalize judges, prosecutors brandish long mandatory minimum sentences to bully defendants -- including the legion of innocent ones -- into prison. The idea is that defendants are offered the choice of taking a plea to a relatively lighter charge or going to trial on charges with much longer, and often mandatory, penalties. Defendants, even those with solid defenses, feel like they have no choice but to take the deal.
One thing seldom heard when the bellowing starts is even slight mention that exactly these arguments were presented to, and rejected by, the Supreme Court decades ago, in Bordenkircher v. Hayes, 434 U.S. 357 (1978), with Justice John Paul Stevens casting the deciding vote.
But still, what the heck. If this is what the defense bar and some of the bench think, is there something that could be done to address their concerns?
Give them what they say they want -- trials.
Absolutely nothing in the Constitution requires the prosecutor to offer a bargain, and, since that option has proven to be so terribly unpopular, I suggest we eliminate it. We could start on a trial (as it were) basis. That is, one jurisdiction or another could announce that for, say, the next six months or a year, every defendant is going to trial on the indictment as written. No offer will made, and none accepted. No prosecutorial "threats." No extortion by politer names. No sitting down at the table. No deals. Trials, period.
We could undertake this experiment in several states (the joys of federalism!) and/or in federal districts here and there, for a period of years, to see how judges and the defense bar would react to the banishment of this instrument of oppression, this lazy expedient that has made the Framers' designated mechanism for the resolution of felony charges all but extinct.
I have a few predictions.
From the judges: "The prosecutor, in a reckless if not unhinged abuse of his discretion, has decided to offer defendants no leniency by way of bargained for charge reductions, to insist on the public shaming of a trial in every case, and, worst of all, to cram my docket to the breaking point so that I can't even do my ABA speeches anymore."
From the defense bar: "As usual, prosecutors are into their Puritanical fantasies, and yearn to go back to the Puritan system. We all know our country can't afford to try every case; a decent regard for the public fisc demands that prosecutors stand down from this insanity. And even worse, prosecutors have walked away from what little humanity they used to show -- on occasion anyway -- and now want to stick it to every defendant every time. What happened to the days when prosecutors knew that a willingness to make a deal was the path, not only to frugality, but to compassion? It's extremely unfortunate they've decided to ignore what, with our help, they used to know: Plea bargains are the only way a humane system can work."