The U.S. positions itself as a just country with a superior legal system where people are always considered innocent until proven guilty and always granted the right to a trial before a jury of their peers. Except this isn’t true at all. Despite the promise of the Sixth Amendment, we do not have an effective right to trial because today, the overwhelming majority of cases will never see a judge.
Some think that most criminal cases go to trial and that those who take a plea deal are always guilty. But in reality, only a third to a fourth off felony cases went to trial in the 1960s. Today, the figure is just one in twenty. 90% of the criminal convictions are the result of a plea deal, not a trial (The Outline). Most convictions happen after a defendant gives in to a prosecutor offering them a lighter sentence if they plead guilty or a much heavier sentence should they lose in court.
It’s not hard to imagine an innocent person who may have already spent months in jail deciding to take such a deal rather than risk a trial. This “trial penalty,” says the National Association of Criminal Defense Lawyers, “has virtually eliminated the constitutional right to a fair trial” (NACDL). In the words of Judge Jed S. Rakoff, “Our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone” (The Marshall Project). Only 2% of those facing federal charges go to trial, and that percentage drops every year (Pew). We now have a system where prosecutors use plea deals to simply assign sentences to the disproportionately Black and Brown people kidnapped by the American state.
The United States has the highest incarceration rate in the world (Equal Justice Initiative) and incarcerates a greater number of people than any other country. One out of every four people incarcerated today are locked up in the United States, despite the fact that it has less than 5% of the global population (ACLU). The vast majority of those incarcerated are neither convicted nor sentenced by a judge or jury. The American criminal justice system is exceptional in many ways, but it is hard to imagine that such a system is exceptionally just.
Decrying the drop in cases taken to trial doesn’t mean we should go back in time. American justice wasn’t just when slavery was the law of the land. American justice wasn’t just in the Jim Crow era, when “Black Codes” and the convict leasing system returned thousands of Black people to effective slavery. It wasn’t just in the 1950s and 60s, when civil rights protestors were convicted as criminals (Equal Justice Initiative). It wasn’t just before 1963, when poor defendants had no right to an attorney (Britannica), or before 2003, when gay sex was illegal in more than a dozen states (Britannica). The American justice system has never provided justice for the masses of Black and Brown people, queer and gender non-conforming people, or poor people in general. That today almost nobody receives even the formality of a trial is but the latest egregious chapter in a long, enraging story.
People in every country on Earth, from Azerbaijan to Zimbabwe, are taught that their country’s system is uniquely fair. Many Americans, despite all evidence, believe in the goodness of “our” system. Even after the uprisings of last summer, many seek minor reforms. If only we could modify the local police or change a few sentences of the legal code, the thinking goes, we could have the pure world of Law & Order episodes: intrepid cops who arrest the bad guy, a dashing prosecutor who uncovers incontrovertible proof, and a villain who tearfully confesses it all from the stand. The egregious reality of our court system suggests that we might instead look at limiting its power altogether. This means opposing incarceration, not only for drug or non-violent offenders but for everyone at all times (Prison Policy Initiative). This means opposing cages for people, whether they are in private prisons or prisons and jails run by the state. This means looking for transformation and justice within oppressed communities instead of demanding that prosecutors throw the book at alleged law-breakers (Teen Vogue).
Recognizing the lack of an effective right to a trial is one place to start.