The Washington PostDemocracy Dies in Darkness

On TV every defendant gets a trial. But in real life, trials are rare.

How plea bargaining undermines justice.

7 min

In February 2022, the story of Pamela Moses made headlines not just because she was prosecuted for attempting to vote, but because she was sentenced to prison for exercising another right Americans hold sacred: the right to a jury trial. Tennessee prosecutor Amy Weirich told Moses that she could either plead guilty to a misdemeanor and receive no jail time or face felony charges — and perhaps steeper penalties — at trial. Moses maintained her innocence, so the state forced her to go before a jury and gamble away years of her life. She lost.

The judge in Moses’s case ordered a new trial, but not because of Weirich’s conduct. Threatening a defendant with more serious charges for going to trial may sound unfair to the general public, but legal insiders know that it’s actually common for prosecutors to force a “trial penalty” against a defendant who refuses to plead guilty. It happens every day, in every criminal court in America.

For many, the jury trial represents the cornerstone of criminal justice itself: a truth-seeking mission that allows a person to be judged by a panel of peers. But trials have become rare. Around 97 percent of all criminal cases don’t go to trial but instead end in guilty pleas, most of them the result of a bargaining process driven by prosecutors with the power to coerce defendants into giving up their right to a trial.

The incredible power of the prosecutor and the resulting eradication of most jury trials are products of elite campaigns to maintain the status quo and to keep lower classes uninvolved, uneducated and out of the courthouse. The history of plea bargaining shows us that these campaigns succeeded.

American plea bargaining began as a secretive practice in Boston in the early 19th century. For decades, New England’s ruling classes maintained power by making it a crime for workers to organize. But by the 1830s, an increasingly class-conscious population of European immigrant workers, combined with the expansion of universal White male suffrage, threatened the existing boundaries of democratic authority.

Shifting demographics of voting blocs and jury boxes made it too risky for the state to continue criminalizing organized labor outright. For example, in the 1842 case of Commonwealth v. Hunt, the judge explicitly instructed the jury to find a group of Boston labor activists guilty of conspiracy. But outside the courthouse, people sympathetic to the workers on trial protested by attacking a witness for the prosecution for “interfering with what was none of his business.” On appeal, the convictions of so-called “combinations” of workers were overturned. The ruling classes were forced to recognize that boot makers, millworkers, coal heavers and others were going to organize, and that attempts to police them would be met with unrest.

The powers-that-were needed new ways to discourage working-class solidarity, so they prosecuted individual workers en masse for behaviors such as vagrancy, being “drunk and disorderly” and a whole host of other broadly construed, ill-defined crimes.

Slapping the criminal label on a large percentage of the workforce served a dual purpose: It brought the rabble under the watchful eye of the state, and it stigmatized individual workers, stifling collective action. The sleek, efficient plea bargain allowed these prosecutions to occur without the risk of interference from sympathetic juries. The accused, mostly of meager means, often believed themselves beneficiaries of this new practice; they had received a “deal” for admitting guilt, seemingly with no one to blame but themselves.

From the 1840s on, plea bargaining replaced jury trials in New England at an astonishing rate. Guilty pleas, rarities before the 1830s, accounted for the outcomes of more than half of all criminal cases in Boston by 1850. By 1880, the number had ballooned to 88 percent, worrying some academics, trial lawyers and even the courts themselves. The Wisconsin Supreme Court decried plea bargaining as a “direct sale of justice.”

But in the early 20th century, criminal law and its enforcement expanded dramatically to accommodate Prohibition and White, Protestant panic over a diversifying America. There were simply too many new “criminals” and not enough time to bring them all to trial. As such, the plea bargain found more adherents and quickly became the dominant mode of resolving cases nationwide.

The 1950s and ’60s were something of a crossroads for American criminal justice. More women and people of color gained access to jury service, and the Supreme Court established new protections for defendants, including the right to counsel in nearly all felony cases. Plus, some in the legal community were fiercely opposed to bargained justice. As late as 1973, the National Advisory Commission on Criminal Justice Standards and Goals recommended that all plea bargaining be eliminated nationwide.

Yet trials were already on the path to extinction, and the guarantee of a defense lawyer provided a mere facade of fairness for a system obsessed with expediency. What’s more, the drug wars, tough-on-crime politics and White America’s desire to keep people of color at the bottom of the newly integrated social hierarchy, proved too strong to resist.

The question of how far prosecutors could go to coerce a defendant into giving up their right to trial was finally resolved in 1978 with the Supreme Court ruling in Bordenkircher v. Hayes. Paul Hayes was a 29-year-old horse transporter in Lexington, Ky., when he was arrested for trying to cash a bad check for $88.30 at a grocery store. The prosecutor offered Hayes five years in prison for a guilty plea. Hayes thought five years was too steep a penalty, so he rejected the deal. Frustrated by Hayes’s refusal, the prosecutor threatened to charge him under the state’s habitual offender statute which carried a mandatory penalty of life behind bars. But Hayes insisted he was innocent. At trial, the prosecutor scolded Hayes for refusing to “save the court the inconvenience and necessity of a trial.” Hayes was promptly convicted and sentenced to life.

On appeal, the Supreme Court found nothing unconstitutional, or even unfair, in condemning someone to life in prison for exercising their right to demand a trial. The court’s opinion cited the “mutuality of advantage” that plea bargaining gives both defendants and prosecutors. The prosecutor’s job, according to Justice Potter Stewart, is to “persuade the defendant to forgo his right to plead not guilty.” Because Hayes was not persuaded, he was sentenced to spend his life in prison over an $88.30 check. Tough break, said the court.

Thus the “trial penalty” was codified by the court, and plea bargaining became the default. Police and prosecutors, armed with an array of techniques to coax, cajole and compel defendants into pleading, had the power to make thousands of new criminals each day without the inconvenience of jury trials.

Even as the lore of the jury trial lives on in popular entertainment — film, TV, literature and podcasts — the real-life administration of justice is often divorced from that lawful process altogether.

Two generations after the Hayes case, American lawyers treat plea bargains as the default. They expect that a deal will be offered and that a prosecutor will threaten a defendant with anything — additional charges, enhancements, infinite jail time, even the death penalty — to get them to take that deal. And they expect that a defendant will eventually plead, even if it’s to a charge that has nothing to do with the conduct they were arrested for.

That’s why someone like Pamela Moses can get years behind bars for demanding a trial, and the result provokes little outrage from the judiciary, the bar or in legal academia. Two hundred years after the ruling classes sought to restrict the public’s access to trial courts, those who administer American criminal justice have become so accustomed to a system based on wagers and threats that we can’t imagine any other way.