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If plea bargains don't protect defendants, why do we have them?

The Atlantic magazine recently looked into the history and current state of plea bargaining in America and found it's not everything we would hope it could be. In most states and the federal system, fully 97 percent of criminal cases are resolved via plea bargain, even though the right to a speedy and public trial is enshrined in our Constitution's Sixth Amendment. That means that the vast majority of criminal defendants are foregoing the protections of a trial by jury.

"We put together the most cumbersome and expensive trial system that the world has ever seen, and then we decided we can't do it for all but a tiny, tiny portion of people," says an expert on plea bargains. "It's like trying to solve the transportation problem by giving Cadillacs to 2 percent of the population and making everybody else walk."

Moreover, there's very little standardization of what reductions in charging or sentencing should be available in what types of cases, and there's virtually no oversight of prosecutorial discretion in the process. And, according to the National Registry of Exonerations, 18 percent of exonerees were convicted via plea bargain.

The result is a system where the justice of any particular outcome is unclear. There is no easy way to compare one defendant's deal with another, similar person's. Prosecutors can threaten to add charges and stack sentences -- even to add layers of mandatory sentences -- if a defendant demands a jury trial. Other than ethics, the only limitation a prosecutor has on plea bargaining is that they're not allowed to make illegal threats, The Atlantic writes.

The main, although not the only, reason the American systems of justice rely so heavily on plea bargaining is simply the volume of criminal charges filed every year. It's impossible to hold trials for even a tiny portion of defendants. This is one argument in favor of ending the War on Drugs; drug defendants made up about half of all federal and state defendants sentenced in 2015.

In most jurisdictions, judges are not actively involved in the plea bargaining process, which not only leaves the prosecutor without oversight but also leaves no auditable trail to serve as a check on injustice.

"Trials are an important window into how the system is functioning--they're a form of audit," notes another law professor in the story. "They shine light on investigatory and prosecutorial behavior and air them publicly."

We highly recommend reading the entire piece in the Atlantic to understand the issues and possible solutions. In the meantime, if you find yourself charged with a crime, don't assume a plea bargain is your best option. Be sure to discuss any offer with a criminal defense attorney.

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