Extract

Well over 90 percent of all convictions in the United States result not from trial but from a guilty plea, which is usually the product of negotiation between the prosecutor and the defense attorney. As the Supreme Court recognized in Lafler v. Cooper,1 “criminal justice today is for the most part a system of pleas, not of trials.” Judges play only a minor role in these cases, and juries play no role at all; the lawyers, and in particular, the prosecutor, control the adjudication process. The much-vaunted ideal of the adversarial, public jury trial is simply too expensive to provide to more than a small portion of criminal defendants. Thus, in most cases, cross-examination of witnesses never occurs, and laypeople have no input into the determination of guilt and innocence. In many cases, guilty pleas may even obviate discovery, preliminary hearings, and grand jury proceedings.

To ensure that most defendants plead guilty rather than go to trial, there must be a substantial punishment differential between pleabased sentences and sentences imposed after trial. Research has found that, in state courts, the post-plea/post-trial sentence increase ranges from 13 percent to 461 percent, depending on the jurisdiction and the crime;2 in Lafler, the increase was 350 percent. Under the federal sentencing guidelines, the formal discount for a guilty plea is 25 to 35 percent, and the informal discount is much higher.3

Resolution of criminal charges through plea bargaining and guilty pleas streamlines the process and allows the...