Peter A. Joy and Rodney J. Uphoff (Washington University in St. Louis – School of Law and University of Missouri School of Law) have posted Sentencing Reform: Fixing Root Problems (University of Missouri-Kansas City Law Review, Vol. 87, No. 1, 2018) on SSRN. Here is the abstract:
In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.
In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty—approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.” Why, then, are criminal defense lawyers able to persuade the vast majority of their clients to plead guilty, even those who are actually innocent? Put simply, it is because our system punishes so severely those who go to trial and lose. If we are serious about both minimizing the conviction of the innocent and sentencing reform, we must address this reality. This essay, therefore, focuses on two pernicious features of our current criminal justice system—misuse of plea bargaining and misuse of informants—that explain why so few criminal defendants exercise their right to trial. We conclude with proposals that might ameliorate those features of our system.