A favored outcome for those who disdain plea bargaining as a dirty backroom deal that freezes the judge and public out of decision making, and puts all the power in the hands of prosecutors, is that the return of trials would crash the system. Without plea deals, there is no way the system could handle the volume.
The crash is based on the assumption that the system couldn’t handle the volume, so it would either crash or the government would have to significantly cut the number of people it prosecutes. Putting aside the intermediate problem of the people crushed in the middle between the time when plea bargains were eliminated and the system crashed, there are alternatives which never make it onto people’s radar. The crash assumption is based on the expectation that trials, as currently conceived, would be the one thing that would remain a constant. After all, doesn’t the Constitution mandate that they be conducted as currently done?
Yes. But no. While the rights involved may be a matter of constitutional dictate, how those rights are provided is not. The notion of a trial today is very different than trial at the founding, where they were conducted promptly and expeditiously, not just in terms of speedy trial but in terms of the trial itself. Get arrested today, have a trial tomorrow, be sentenced the same day.
The message here is that the alternative to bad isn’t necessarily good. It can always get worse. To get a sense of what could happen should plea bargaining be eliminated and the system overwhelmed by the number of defendants compelled to go to trial, consider how Immigration Court is finding ways to accommodate its volume.
To detainees and their attorneys, video teleconference, or VTC, is an ad hoc solution and a valuable time-saving measure. As of 2015, nearly one-third of detained immigrants in the United States appeared in deportation hearings via televideo. In 2017, there were 114,000 hearings that used VTC, a 185 percent increase since 2007.
Technology could be employed to cut time to the quick. Picture going to trial after a five minute video conference with the defendant, a discovery dump an hour in advance of trial, ten minutes for voir dire and then “call your first witness, counselor.” Routine trials would be over in less than an hours. Big time trials could take a full day rather than a month or six. Move along, little doggy. We’ve got cases to try, defendants to convict. Adjournments? Are you kidding? Investigation? You had your fifteen minutes, counselor.
To anyone who has ever tried a case appreciates the constraints in the current system, the idea that defendants would fare better if they went to trial is laughable for most. They have no defense. They can’t testify. They may not be guilty, or at least as guilty as the government says, but there is no way for them to counter the snitch’s story or the agents’ officiousness. The results, of course, will be a sentence that often dwarfs that which they would have gotten by plea. If you think prisons are full now, you ain’t seen nothing yet.
There are other possibilities, such as the government building more courtrooms, hiring more agents and increasing the number of judges and prosecutors. The argument against this happening is that the cost will be prohibitive, which is curious given that money spent for law and order has always magically appeared, even while money for defense can never be found.
But it’s far more likely that the wheels of “justice” will continue to grind, just far more quickly and far more unfairly. The fuzzy images of due process will be there, but the substance of it will be a blur as defendants are marched in and out of the videoconferencing room at the local jail.
The system now may well be a nightmare, and in serious need of change and reform. But the assumption that change rammed down the system’s throat will be for the better is naive and likely disastrous. If you want more trials, you may get them, good and hard. But like food, they may be fast, and even appear palatable to the unwary, but that doesn’t mean they will be any good. We keep managing to wreak havoc with good intentions, and yet you assume this time will be different? This can always get worse.