Police procedurals and paperbacks—not to mention the United States Constitution—would lead you to believe a trial by jury is the bedrock of the U.S. criminal justice system.
Trouble is, trials are rare. About 94 percent of felony convictions at the state level and about 97 percent at the federal level are the result of plea bargains. These are deals struck between the prosecution and the defense in which the defendant admits guilt and gives up their right to a trial in exchange for a shorter sentence, a lesser charge or more favorable terms. Plea bargains allow courts to clear cases faster and avoid trial costs.
Plea bargains aren’t just cheaper; legal experts say the system is too overwhelmed by the volume of cases to continue without them. Reliance on plea bargaining has created incentives for innocent people to plead guilty and led to a huge increase in the number of Americans with criminal records. It has also concentrated power with prosecutors.
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. It’s like trying to solve the transportation problem by giving Cadillacs to 2 percent of the population and making everybody else walk.
Prosecutors are among the most powerful players in the criminal justice system. They make the decisions about when—and if—to charge people with crimes, they determine what those charges should be, and they draft plea deals that lead to convictions. Prosecutors work closely with police, reviewing arrest information. And they often rely on police and sheriffs as key witnesses.
Most crimes, from murders to shoplifting, are handled by local prosecutors. (Federal prosecutors take cases like drug trafficking, public corruption and Constitutional violations.) In almost every state, the lead prosecutor in each office is elected—about 2,400 in all. Critics say prosecutors use their ability to choose charges as a cudgel, “overcharging” in order to coerce defendants into taking a plea.
Prosecutors also have a huge effect on sentencing. On average, in federal court, Black defendants receive sentences 19 percent longer than White defendants with similar crimes and backgrounds. One study traced this disparity back to prosecutors, who were more than twice as likely to charge Black defendants than White ones with crimes carrying mandatory minimums.
The majority of elected prosecutors are White men, according to researchers. One study found that about 95 percent of the 2,437 elected state and local prosecutors in the United States in 2014 were White. That same study found that 83 percent were men.
When someone is charged with a crime, they have the Constitutional right to a government-funded lawyer. Most Americans facing charges are poor, and about four out of five rely on public defenders and other court-appointed lawyers. There isn’t a uniform system to provide those lawyers, though.
The emphasis on courtrooms in TV dramas skews viewers’ perception of how the legal system actually works. Perhaps no show has influenced the way Americans perceive criminal justice as much as the “Law & Order” franchise. On the original show and its spinoffs, empathetic detectives crack each case through clever work and persistence, then hand over the evidence to a principled district attorney who most often goes to trial. Abuses of the legal system are the byproduct of a passion for justice rather than corruption or systemic bias. Most episodes say something profound about society or the criminal justice system, and the bad guys get what they deserve.
In the 1980s, in response to national anxiety over crack and cocaine, Congress introduced mandatory minimum sentences. The 1986 law required federal judges to hand down five- or 10-year prison sentences automatically—no accounting for circumstances—based on the weight of the drugs a defendant was caught with. People had to have 100 times the amount of powder cocaine as crack cocaine to trigger the same sentence, despite being the same drug. Many states followed suit, instituting their own mandatory minimums. Because crack was cheap and abundant in poor Black communities, and cocaine was costly and associated with wealthy White people, this resulted in a massive disparity in who served time. Eric Sterling, the congressional lawyer who drafted the federal law, later admitted the ratio was arbitrary: “We’re just jumping in and picking numbers out of our ass,” Sterling told producers of the “100:1” podcast. Congress reduced the disparity to 18-to-1 in 2011.
In the mid- to late ‘90s, state and federal “three strikes” laws triggered automatic life sentences for those convicted of multiple felonies, even when the final crime was stealing candy bars or a pair of socks. “Truth-in-sentencing” provisions eliminated or curtailed parole, and guaranteed that people would serve all or most of their sentences.
Although reform measures have taken baby steps toward rolling back the excesses of this era, harsh sentencing laws give state and federal prosecutors a powerful tool to induce guilty pleas: the threat of much longer sentences for those who go to trial and lose.
In 2012, the average sentence for a defendant convicted of a federal drug offense at trial was 16 years. The average after a guilty plea was five years and four months.
All 50 states allow, and many require, the punishment for a crime to include a fine. On top of fines, states also levy fees for confinement, electric monitoring—and legal proceedings. There are administrative clerk fees, jury fees, court automation fees and felony docket fees. In two-thirds of states, judges can charge for use of a public defender—a resource by definition only available to those who cannot afford a private attorney. Nebraska charges defendants a fee toward the state’s judicial retirement fund.
For defendants who do go to trial, the Sixth Amendment guarantees an “impartial jury” drawn from their community. That guarantee is routinely ignored.
Civil Rights Act outlaws race-based discrimination in jury service.
The Supreme Court overturns a West Virginia law restricting jury service to White people. States find other ways to exclude Black people from jury service, such as claiming they didn’t meet “experience” requirements or printing the names of Black potential jurors on a different color paper.
The high court says it’s not enough to overturn laws: categorically excluding Black people from juries by any means is unconstitutional. The practice still persists throughout the Jim Crow era.
The Supreme Court rules that the group a jury is ultimately drawn from must contain a “fair cross-section” of the community. Prosecutors respond by systematically striking Blacks during jury selection.
In Batson v. Kentucky, the high court rules that prosecutors can’t strike African-Americans because of their race; they have to provide a “race neutral reason.” In a corresponding opinion, Thurgood Marshall warns that unless the court eliminates discretionary strikes entirely, lawyers would always be able to come up with bogus pretexts to strike Black potential jurors.
2005, 2008, 2015 and 2019
The Supreme Court overturns rulings in Texas, Georgia, Louisiana and Mississippi in cases where prosecutors systematically excluded Black potential jurors by saying, for example, one was too close in age to the defendant (she was 34 and he was 19), and one had a son who had been convicted of “basically the same thing” (the son stole hubcaps; the defendant was accused of murder). In lower courts, dozens of cases with similar Batson violations have been overturned, but many courts have accepted prosecutors’ thinly veiled explanations.
The producers of “Serial” spent an entire year at a Cleveland, Ohio, courthouse documenting how ordinary people interact with the criminal justice system. The nine hour-long episodes offer a nuanced view of how it works—and doesn’t.