By Inimai M. Chettiar, Policy Counsel at the American Civil Liberties Union. Ms. Chettiar serves as national legislative counsel to achieve smart criminal justice reform in states across the country. She has published scholarship on the use of economic analysis to promote laws advancing social welfare.
Yesterday’s New York Times article highlighting the coercive practice of plea bargaining is not news to advocates of criminal justice reform. Over the last three decades, this country’s excessively long sentencing schemes, inflexible mandatory minimum laws, and arbitrary three-strikes-you’re-out legislation have created a “justice” system in which prosecutors wield ridiculous amounts of leverage to extract guilty pleas from defendants. NYU’s Rachel Barkow sums it up best: “When you have that attitude you penalize people who have the nerve to go to trial.” Almost 100 percent of federal defendants plead guilty.
Our criminal justice system has made a farce of our constitutional rights to a fair trial before our peers, to effective representation by legal counsel, and to equal protection under the law. In a misguided attempt to be "tough on crime," the United States has chosen the irrational tactic of pouring billions of dollars into building more prisons and jails (and arresting and prosecuting more low-level and nonviolent offenses) while cutting back services to help people stay out of them. We increasingly throw people into the system for absurdly petty crimes, incarcerate people presumed innocent even before they have their day in court (often for months or years before trial), provide them with subpar defense resources, ensure that they remain imprisoned in humiliating and inhumane conditions for excessively long periods of time, and then release them with nothing more than the shirts on their backs and criminal records.
All these practices, among others, have led us to become the largest incarcerator in the world.