Trial Distortion and the End of Innocence in Federal Criminal Justice

Practitioners should ensure a “healthy” plea-bargaining system that replicates in its guilty pleas the same pattern of outcomes that trials could have achieved. To help reach this goal, the author introduces a mid-level “trial distortion theory” that focuses upon patterns in case outcomes instead of a macro-level analysis of how the system functions or a micro-level analysis of the specific negotiation practices employed. The theory interprets trends in guilty pleas and acquittals in the federal criminal justice system. The prevalence of plea-bargaining practices has caused a tremendous increase in the number of dysfunctional pleas and a significant decline in the number of trials, dismissals, and acquittals since the early 1970s. Prosecutors have accumulated so much bargaining power under current sentencing laws that they can effectively punish defendants for choosing a jury trial over their plea. Sentencing laws also offer defendants several incentives—including “substantial assistance” departures that reward defendants who cooperate with the government and “acceptance-of-responsibility” adjustments that mitigate sentences for those who plead guilty early— that perpetuate this phenomenon. These factors consequently distort the truth-finding function of trials. The federal government ought to enact sentencing reforms that combat prosecutors’ ever-increasing powers and discourage defendants’ hasty decisions to cooperate. Such a solution would restore balance and accuracy to the justice system.

“The relationship between acquittal rates and guilty plea rates is especially relevant for those who still hope to blunt the power of the plea bargain and to give force instead to the public’s negative views on bargain justice. Some forms of bargain justice are more harmful than others, and the critical task is to find economical ways of targeting and disposing of the greatest harms.” p. 155