Speaker 1: Plea bargaining is the process by which a criminal defendant charged with a crime or multiple crimes agrees to waive his or her constitutional right to a jury trial.

Speaker 2: A criminal defendant is given an opportunity to plead guilty to a lesser charge in exchange for the prosecutor not bringing the higher charge. So a person who is charged perhaps with murder might plead down to a manslaughter charge instead. In exchange for that, the prosecutor chooses not to hold a full trial.

Speaker 1: The public has this image of jury trials as making up bulk of our criminal adjudications based on what they see on TV and in movies, and that is a vanishingly small part of our criminal justice system. This is a relatively recent process. This was absolutely unknown at the time of the founding. The Constitution makes no mention of plea bargaining whatsoever. The presumption, both historically and in the text of our Constitution, is that all criminal trials would be by juries.

Speaker 2: In the early period of American history, the right to a jury trial was not really considered as belonging to the criminal defendant. Essentially, it was a right that the public enjoyed, not the defendant. And as a result, criminal defendants were held to be not allowed to waive their right to a jury trial. That began to change in about the 1870s.

Speaker 1: It primarily arose because the criminal justice system simply was unable to process all of the criminal charges the government was bringing through the relatively more extensive, time-consuming process of the jury trial. Today, plea bargaining, rather than the jury trial, makes up the bulk of our criminal justice system. 97% of all federal convictions today are obtained through plea bargaining, not through jury trials.

Speaker 2: The principle behind plea bargaining, then, is that the right to a trial belongs to the criminal defendant, just like a piece of property does. And that, in essence, the defendant can sell the jury trial right to the prosecutor in exchange for a lower charge.

Speaker 1: I think where we are today is that this really can't be called a voluntary process, because you have criminal defendants who are being threatened with 20, 30, 40 years in prison. Who would possibly risk that when you could walk away with two years in prison?

Speaker 2: One of the benefits to the plea bargaining system to the criminal defendant is that it allows the criminal defendant to get on with their life by accepting guilt for a lower offense without having to go through the complicated, expensive, and time-consuming process, and humiliating process, of a trial in front of a jury. If a criminal defendant is willing to give up that right in exchange for a lower sentence, then society should be okay with that. That also saves taxpayers money and relieves the system of a burden that might otherwise make it difficult to keep the society safe. It allows prosecutors to concentrate their efforts on high-level offenders and bring those to trial without having to bring every case to trial that involves a relatively minor offense.

Speaker 1: There's a separate set of issues in terms of how you encourage certain defendants to testify against others. And in principle, you can certainly appreciate the goal of wanting to encourage certain members of a criminal organization to give honest testimony against others. But in practice, what you see happening is the prosecutor essentially coercing defendants into giving testimony that the prosecutors want, whether it's true or not. On the whole, the Supreme Court has been perfectly willing to bless plea bargains. You can understand why it's a difficult concept for the court to address, because exactly where the line is between coercive and voluntary pleas is a difficult question in principle.