Trial Ambivalence

Abstract

Much of the rhetoric about criminal justice reform posits that trials are good and pleas are bad. Trials provide full, public adversarial process, while plea bargaining is secretive, coercive, and unfair. As such, a thread of reform has emerged calling for more trials and fewer pleas. As this Article argues, underlying these reform efforts is an unspoken ambivalence about trials among the very reformers who clamor for more of them. This ambivalence stems from the often unacknowledged reality that many of the common harms associated with plea bargaining are frequently benefits when viewed through the lens of trial avoidance.

This ambivalence is not new. Indeed, in its plea bargaining jurisprudence the Supreme Court has long demonstrated its own ambivalence about the American trial system, even while romanticizing the trial. Modern-day criminal justice reformers often wax poetically about trials, while simultaneously resisting efforts to actually require more trials. The ambivalence unearthed here demonstrates how little legal stakeholders— lawyers, judges and reformers—trust the American jury process to produce just results. As long as the romantic narrative of trials persists in tandem with this ambivalence, reform efforts may actually more deeply entrench plea bargaining.

Keywords: trial, plea bargaining, pleas, courts, public defense, criminal justice reform