To Save The Jury Trial, Must We Kill The Plea Bargain?

Judge Richard Kopf doesn’t care much about the “vanishing jury trial,” mostly because he’s got so little faith in humanity.

Indeed, I sometimes joke that jury trials are unconstitutional because no sane person would randomly select from the great unwashed 12 stiffs to make a decision that can significantly impact both the public and the defendant. Besides, criminal jury trials are almost always a waste of time. With few exceptions, federal criminal jury trials are the equivalent of one long guilty plea where the defendant has rightly calculated that he or she has nothing to lose and is hoping to win the lottery.

Of course, Judge Kopf isn’t entirely serious when he says that, recognizing that the occasional innocent defendant gets indicted and, without a trial, he would never have the option of being maxed out on the back end to remind him of the folly of rolling the dice.

But there is a deeper institutional need for jury trials, that being the counterbalance to the government’s power to ram their plea offer down a defendant’s throat. The only response the defense has is to tell the government to “shove it, we’re going to trial.” But then, you have to be both willing and able to do so. That means the defense has to be prepared to try the case and the defense lawyer has to have the experience and ability to pose a threat to the prosecution’s assumption that it will win now or later, but either way, it will win.

This isn’t an insignificant problem. As former EDNY Judge John Gleeson says in the preface to the NACDL’s new report, The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It, we’ve gone from about 20% of all cases being tried in the days before the Sentencing Guidelines to less than 3% today. Obviously, that means we’re doing a far fewer jury trials, but it also means that defense lawyers who threaten trial have no history of actually going to trial and nothing to demonstrate they even have the capacity to try a case.

The same, by the way, is true for assistant United States attorneys, who can now manage to work through their commitment and never try a case. While this might make some people think there’s an advantage to be gained here, there’s a problem due to the different positions of the defense and prosecution. Neither lawyer may have the chops for trial, but if the defense loses, the defendant gets life plus cancer. If the prosecution loses, the prosecutor goes back to his office to suffer the humiliation of his peers, but then gets to go home that night.

Today, there will be a discussion at Cato about the purported culprit in this trying mess: Plea Bargaining: Good Policy or Good Riddance? The rationale is well-intended, but backwards. If plea bargaining was no longer permitted, every defendant would have to go to trial. Therefore, the jury trial would be back. Yay?

Snarky as Judge Kopf’s description might appear at first blush, the characterization of a jury trial as “one long guilty plea” isn’t entirely wrong in a great many cases. The problem with going to trial isn’t merely the “trial tax” on the post-trial sentence, but the tools that have developed favoring the prosecution since the mandatory Guidelines were held constitutional, until the Supreme added “just kidding” about the mandatory part.

Between snitches, search and Title III warrants, conspiracy charges that allow in every utterance by anyone you’ve ever known within five degrees of separation, the deck is so wildly stacked against the defense in most cases that going to trial is an act of suicide. And, frankly, most cases have no defense, and shouldn’t as the feds nailed the defendant good and hard. There are cases where defendants are grossly overcharged, not innocent but not as guilty as they say, but between the law of conspiracy and the absence of any way to calm the hyperbolic testimony of agents, there is little hope.

But there should be, both to save the wrongfully arrested and the overcharged, and to keep the government honest and in check. If there is no threat of trial, no counterbalance to their ramming a plea down a defendant’s throat, the system fails.

And yet, the question is whether, to save trials, we must kill plea bargains? This means there will be no safety valve for the defendants who can’t offer anything at trial other than tears and the attempted jab during cross. This is the long guilty plea Judge Kopf speaks of. This is a slaughter for no purpose. Unless we believe that watching fish being shot in barrels is good for society, and the sentences of life plus cancer are what Congress, and America, really, but really, wants to see imposed on defendants, this is not merely a farce, a huge waste of time and resources, but ridiculously harsh and pointless.

Whether the jury trial can be saved is a good question, regardless of what they want to do in Nebraska. But to murder the plea bargain in the hope of resuscitating the jury trial isn’t the solution.

19 thoughts on “To Save The Jury Trial, Must We Kill The Plea Bargain?

  1. Richard Kopf


    With sincere respect for CATO, the premise of the event at which you are featured is both theoretically flawed and wildly impractical.

    Do away with plea bargains? If you are a libertarian I should think that you would shrink from stripping defendants of the primary method of cutting their federal exposure. Moreover, there is no way plea bargains are going away and everyone knows it (except for a few in the academy or at think-tanks)–so why discuss such a notion. Mental masturbation is fun while it lasts, but it is not long lasting.

    By the way, if you get into the idea of judicial supervision of plea bargains, I hope you will resist. It is a very bad idea for a wide variety of reasons about which I am sure you are aware.

    In any event, you will bring to the CATO event, as this post so well reflects, a hard-edged reality. Groundlings are good! And you are at the top of that heap.

    Enjoy–the force is with you! All the best.


    1. SHG Post author

      While plea bargains, per se, may not go away, the impetus for this comes from Judge Godwin’s rejection of plea bargains based on the factors you outlined in your post about the Walker case. Even if plea bargains exist in a theoretical sense, if judges reject them under some “community catharsis” theory, we’re as screwed as the last group sacrificed to such a notion, the Christians thrown to the lions.

      1. Richard Kopf


        With vanishingly small exceptions, federal Judges should not reject plea bargains. If the community needs catharsis (a premise I reject) send the bunch to the shrinks. Talk therapy will produce all the crying jags that are needed and then the community will then be cleansed of the trauma–without imposing upon jurors.

        Do battle!

        All the best.


  2. Joe

    “So, you want a jury trial Mr. Defendant? Okay, we’ll schedule this for November, also, have probation come up and drug test Mr. Defendant. If he has anything in his system, his bond will be revoked.”

    Too often this is how a jury trial vanishes.

  3. CLS

    There’s live video of this. Holy cow.

    Get the popcorn. I know what I’m doing on my lunch break!

    Give ’em hell, Admiral!

  4. Boffin

    Just like possessions expand to fill all the closet space, convictions and sentences will be enough to fill all the cells.

    It’s just a question of what sort of kabuki theater is done to convince the masses that justice is being done.

  5. John Barleycorn

    Suja talks grand juries, how cool is that!!! But the “skunk at the garden party” can’t find the iron in his hotel room?

    That was fun. But emulating Cavanaugh’s sense of style will not get you on the short list for Ruth’s seat, esteemed one.

    Cheers to all three of you, as well as the moderator, for taking the time to encourage your peers to take a closer look at the can and ponder its fate before kicking it down the hallowed hallways.

    You should take these invites more often….

    1. Richard Kopf


      Scott was great. The others were talking pie in the sky (or face).

      All the best.


      1. John Barleycorn

        I thought all four of them did a pretty fine job especially considering the time restraints.

        Question is who is going to put out the white paper and when do I get to read the mother off all grand jury posts? Does Professor Suja blog?

        P.S. and…..tuth be told the esteemed one looked pretty good, but he would have killed it in a tailored shirt, a little more step in his game or something like that.

        1. SHG Post author

          I wore a bespoke blazer, bespoke shoes, but an off the rack shirt because I’m a man of the people. Still you bitch. There’s no pleasing some people.

      2. JAF

        Just had a chance to watch the video. Great job Scott, I think your pragmatic dissection of the problem carried the day.

        1. SHG Post author

          Some people get annoyed with me for always coming up with the reason why some radical change is a terrible idea, as it undermines their call for radical change (“something must be done!!!”). Unfortunately, the alternative to bad isn’t necessarily good, as things can always get worse.

  6. Jardinero1

    Too many laws. It is posited that supply creates its own demand. That is a factor here. The state, as an actor, is rewarded, by the legislature, for enforcing laws with more laws and more funds to enforce them. Other rewards include a diminution of the standard for criminal behavior. The elimination of mens rea for so many federal crimes comes to mind. The issue today is that the state has so many laws to foist on the public that it literally gives them away at a discount(plea bargaining) in order to keep the shop running.

    1. Hundred-Dollar Bill

      Nicely done, J1. Makes purfect sense. Likewise, me thought Boffin above made sense, contrary to the Host’s assessment. However, I’m on the outside looking in at a most inscrutable, self-perpetuating system on the planet. Can’t we all just get along? Do we really need all these officials and place holders ad naseum? Who produce chaos and mayhem! That is a “rhetorical question” du jour.

        1. Hundred-Dollar Bill

          Got blind-sided by unanticipated legal catastrophe which has rendered me homeless. Then the trusty PC which was my friend died a terrible death. No, it was not criminal; it was civil. The Barnstable court is totally corrupt. Does that fall under1st A? You do not have to believe me. Am not running for political office anymore.

          NPR does an interesting segment on the Ndretta this morning, the world’s largest and most powerful criminal enterprise, based in Calabria. They have “very strict rules and regulations.” How are they enforced? Dead bodies everywhere! Save for Reddit, off-topic-breath.

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