We have written earlier about the fact that effective legal representation and trial by jury is a rarity making one of our cultural icons a complete sham. As Jed Rakoff has noted:
In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.
In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.
While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.1
The Podcast Serial
The podcast Serial has released Season Three – https://serialpodcast.org –
“Serial is heading back to court. This time, in Cleveland. A year inside a typical American courthouse. This season we tell you the extraordinary stories of ordinary cases. One courthouse, told week by week.”
I have only listened to the first two episodes, nevertheless, I highly recommend this podcast to anyone interested in how our justice system actually works.
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Also published on Medium.
- Why Innocent People Plead Guilty” by Jed Rakoff in New York Review of Books 11/20/2014 accessed 6/24/2017