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Crime and Punishment
Bring Back the 12 Angry Men

The New York Times has a sobering report on the steep decline in criminal jury trials—yet another democratic institution that is under strain thanks to a mix of overweening bureaucracy, elite failure, and popular neglect:

The Southern District held only 50 criminal jury trials last year, the lowest since 2004, according to data provided by the court. The pace remains slow this year.

In 2005, records show, there were more than double the number of trials: 106. And decades ago, legal experts said, the numbers were much higher. […]

The hallowed jury trial is a right enshrined in the Constitution and immortalized in American culture. But these days, said Daniel C. Richman, a professor at Columbia Law School, “‘12 Angry Men’ is more a cultural concept than a regular happening.”

The root of the problem has to do with the plea bargaining system. It is in the interest of the vast majority of defendants to cut a deal with prosecutors rather than spend time and money on a trial that could end up landing them much harsher sentences. This might make our criminal justice system more “efficient”—trials are expensive—but it also exacerbates the problem of mass incarceration and corrodes one of the historical underpinnings of American self-rule.
The good news is that there are clever policy fixes that can help address the problem. The first, which we’ve linked to before, comes from University of Tennessee law professor Glenn Reynolds’s 2013 Columbia Law Review article, “Ham Sandwich Nation: Due Process When Everything is a Crime.” Reynolds suggests cutting back on plea bargains, either by banning them altogether, or, more realistically, requiring that plea offers be subject to greater oversight from judges and juries:
The “nuclear option” of prosecutorial accountability would involve banning plea bargains. An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. It would also drastically reduce the number of criminal convictions achieved by our justice system. But given that America is a world leader in incarceration, it is fair to suggest that this might be not a bug, but a feature. Our criminal justice system, as presently practiced, is basically a plea bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.

A less dramatic option might be to require that the prosecution’s plea offers be presented to a jury or judge after a conviction, before sentencing. Judges or jurors might then wonder why they are being asked to sentence a defendant to twenty years without parole when the prosecution was willing to settle for five. Fifteen years in jail seems a rather stiff punishment for making the state undergo the bother of a trial.

Another route for reform involves pre-trial bail practices. A new paper from researchers at Columbia University and the Maryland Public Defender’s Office (“The Heavy Costs of High Bail: Evidence from Judge Randomization”) finds that defendants who are required to put up bail are substantially more likely to be convicted, in part because those who cannot afford to post bail face strong pressures to accept a plea bargain, rather than waiting in jail (possibly for years) for their trial date:

Using a large sample of criminal cases in Philadelphia and Pittsburgh, we analyze the consequences of the money bail system by exploiting the variation in bail-setting tendencies among randomly assigned bail judges. Our estimates suggest that the assignment of money bail causes a 12% rise in the likelihood of conviction, and a 6–9% rise in recidivism. […]

Our data do not permit complete analysis of whether convictions result from plea bargains or trials. However, we have strong results when focusing on cases in which we can explicitly observe plea behavior, and cases proceeding to trial appear in our sample only rarely. We believe our estimates are primarily driven by defendant plea behavior.

Of course, bail will always need to be issued for some defendants. But one of the implications of the paper is that cutting back on pre-trial money bail, and experimenting more aggressively with alternative approaches—like ankle-bracelets or probational monitoring—could help curb the rise in plea bargaining, push more cases into the sunlight of the courtroom, and ultimately help reinvigorate a key democratic institution: the jury trial.
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  • WigWag

    Reduce the number of attorneys employed by the Justice Department by 50 percent. Reduce the number of clerks for Federal Judges by 75 percent. Reduce the number of FBI agents by 15 percent. All of this would dramatically improve the federal criminal justice system.

    • Tom


  • rheddles

    Do we have any idea how many innocent defendants accept plea bargains? Unless this number is greater than 1%, I’m not that worried about plea bargains.

    • John Schwartz

      It’s basically impossible to answer your question because plea bargains skip the whole “finding out who is actually guilty” part of the process.

      However there is a study published in PNAS that looked at death penalty exonerations, and calculated that about one in twenty five condemned criminals are actually innocent.

      Since death penalty cases undergo a lot more scrutiny than most other trials, it’s safe to say that the number of innocent people accepting plea bargains is probably above one percent.

      Here’s the url for the study –

    • f1b0nacc1

      Given the existence of plea bargains heavily incentivizes prosecutors to ‘overcharge’, thus forcing a defendant to choose between draconian punishment if convicted (and lets be clear, innocent people DO get convicted sometimes) and accepting a plea even if innocent. If the punishment is severe enough, even risking a ‘wrong’ conviction can become a losing proposition, thus setting up very severe miscarriages of justice even if the prosecutor has no ill intent.

  • FriendlyGoat

    The more people you have in prisons or jails, the more jobs you have for all workers in the system who put or keep them there. The more people you have in prisons or jails, the fewer people you have competing for available jobs outside which such people could perform if not incarcerated. These are cynical observations, but they have something to do with why we do what we do. The best answer to this is to create such demand for workers that employers are pleading for society to not “waste” our resources on having so many locked up and so many others guarding them. (No, I don’t know how to do it. I just know that jobs can help avoid crime in the first place and incarceration often-to-usually makes semi-bad people become worse.)

    • f1b0nacc1

      Shockingly enough, we agree on this.
      I have little love for most government run enterprises, but prisons are one of those that I absolutely defend. The notion of privately run prisons is an almost textbook example of conflict of interest. As for jobs as a method of reducing prison populations, I am less than convinced (if you have spent much time working with inmates, you discover quite quickly that many — most? — would be there if there were jobs lined up waiting for them, but that is another matter), but on the other hand eliminating the pointless punishments associated with the ill-fated ‘war on drugs’ would go a long way towards emptying the prisons and allowing people to live productive lives.

      • FriendlyGoat

        I do know that many inmates are sort of “hopeless cases” for being productive on the outside. But being “in there” is a good way to make them worse—-because of the influence of the surroundings. The other inmates are problematic and so—-usually—are the custody workers.
        We do agree on not having privatized prisons and jails. Even with the public-sector institutions, though, it’s depressing how much private contracting is involved for food service, medical service, phone service, prison equipment. Making a buck off of this game is too much of an art form.

        • f1b0nacc1

          I am a bit more tolerant of the contracting side of the game, but only a bit….sadly I must concede your point that there is a great deal of temptation for abuse in the system. We might disagree about some times where government involvement is necessary (or desirable), but here it is clearly both.

          • FriendlyGoat

            One of the frustrating things now is that the “newer” game is that of trying to make money from the offenders themselves and from their families. It is amazing how much can now be charged for phone calls out of prison, for high-priced commissary items in the prison, for ankle monitoring, for DWI ignition interlocks, for court costs on traffic matters, for parole supervision, even jail room and board. We all know how these things come about in the business and political worlds, and yet, when one examines the effect in practice one can certainly question where the money comes from (often other family members) and where it goes. There is something here akin to many states running their lotteries and scratch-off games as major profit centers while granting other kinds of tax cuts—raise the money from people who have the least of it.

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