Sentencing Reform: Fixing Root Problems

17 Pages Posted: 3 Oct 2018

See all articles by Peter A. Joy

Peter A. Joy

Washington University in St. Louis - School of Law

Rodney J. Uphoff

University of Missouri School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: October 2, 2018


In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.

In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty—approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.”

Why, then, are criminal defense lawyers able to persuade the vast majority of their clients to plead guilty, even those who are actually innocent? Put simply, it is because our system punishes so severely those who go to trial and lose. If we are serious about both minimizing the conviction of the innocent and sentencing reform, we must address this reality. This essay, therefore, focuses on two pernicious features of our current criminal justice system—misuse of plea bargaining and misuse of informants—that explain why so few criminal defendants exercise their right to trial. We conclude with proposals that might ameliorate those features of our system.

Keywords: sentencing, reform, plea, bargaining, guilty, innocent, crimes, justice

Suggested Citation

Joy, Peter A. and Uphoff, Rodney J., Sentencing Reform: Fixing Root Problems (October 2, 2018). 87 UMKC Law Review 97 (2018), University of Missouri School of Law Legal Studies Research Paper No. 2018-31, Available at SSRN:

Peter A. Joy

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
313-935-6445 (Phone)

Rodney J. Uphoff (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO MO 65211
United States

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