Criminal Justice Process

Plea bargaining also offers an interesting perspective on the criminal justice process as a whole. The Constitution as construed by the Supreme Court places significant limits on police investigations and secures every defendant the right to a rigorous trial. But the limits on the police and the right to trial may be waived by defendants, and police and prosecutors have virtually limitless discretion in selecting targets for investigation and prosecution. The key features of the system are not due process and equal protection, but waiver and discretion.

If defendants could not waive their rights, the system would be required by the Constitution to devote much greater resources to the trial process. If prosecutors did not have discretion to drop and add charges, the state would be disabled from giving defendants an incentive to waive their rights. Because the courts have imposed extensive constitutional requirements on criminal procedure, but have left the substantive criminal law virtually unregulated, discretion and waiver have invited legislatures to authorize extremely harsh sentences. Legislature who adopt harsh penalties know that very few defendants will receive the maximums authorized by statute, because prosecutors have discretion not to bring every charge supported by the evidence. Long potential maximum sentences in turn give the prosecutor powerful leverage in plea negotiations.

Waiver and discretion are both perfectly defensible in theory. In practice they have given us not one criminal justice process, but two. In one system the accused really receives the protections promised by the Constitution. This system is reserved for those who know their legal rights and can afford to assert them. As discretion is generally not exercised to target such individuals anyway, this system only rarely comes into play. The other system tolerates pressures that in fact induce most suspects to waive their rights. In this, the everyday system, defense counsel enters the process only after the police have completed the investigation. Once counsel does enter the picture, defense lawyers cooperate with prosecutors in negotiating an acceptable plea in an environment in which the prosecution largely determines the terms of trade. The right to trial operates primarily as a bargaining chip the defense can play to counter the prosecution's ability to unilaterally determine the severity of the charges.

An honest view of the process does not necessarily entail cynicism. If defendants could not waive their rights it would not be long before those rights were substantially curtailed. If prosecutors were compelled to bring every charge supported by the evidence legislatures would be forced to modify the substantive criminal law or to ante up billions of dollars for prisons. The present arrangement permits society to retain a strong set of procedural safeguards that might protect sophisticated defendants against politically motivated prosecutions. Waiver keeps the cost of these safeguards, in terms of crime control, to a practical minimum.

The role played by wealth in determining the type of justice accorded to different defendants is certainly troubling, but so long as individuals have the right to use their own money to defend themselves against criminal charges it is hard to see how that role could be eliminated. Society could do much more to improve the process and reduce the disparity between rich and poor by raising the floor beneath which justice for the poor is not allowed to fall. This would require the commitment of additional resources, especially but by no means exclusively for indigent defense. Thus far the political will for such reforms has not developed.