A new article in the Harvard Law Review by NYU Law Professor Emma Kaufman shows that plea bargaining violates the historical meaning of the Constitution. She explains that throughout the nineteenth century, still-familiar constitutional rules governed criminal procedure: a case could be prosecuted only if there existed a proper indictment, trial by a twelve-person jury in the correct venue, and respect for the defendant’s rights against self-incrimination and to be represented by counsel.
However, there was a foundational difference between the law back then and what it has become. These rules were not understood as rights belonging to defendants. Rather, they were considered the basis for courts’ jurisdiction to try cases. That meant defendants could not waive these rules. They belonged to the public and set the basic requirements for criminal adjudication.
Plea bargaining depends on the new, revised understanding of the rules. It involves defendants yielding their “right” to have a jury trial and all the procedural protections that come from it. The corruption of jurisdictional rules into flimsy, waivable rights, Kaufman concludes, “paved the way for modern criminal justice, with all its pathologies.”
Cato has a long track record of attacking both those pathologies and the twin ailments from which they arise—plea bargaining and the erosion of the jury trial. Every time we do so, we bear witness to America’s constitutional heritage.
