The Trial Penalty: An International Perspective

Two major ground-breaking reports in recent years, Human Rights Watch's An Offer You Can't Refuse, and the National Association of Criminal Defense Lawyers (NACDL)'s The Trial Penalty, have demonstrated the way in which guilty pleas, in the form of plea bargaining, have eclipsed the Constitutional guarantee to a trial by jury in the United States. In so doing, plea bargaining is seriously undermining Constitutional enforcement of individual rights and driving the scourge of mass criminalization. Despite modest reductions in recent years, the scale of mass incarceration in the United States has no worldwide rival, with a rate of incarceration of 655 incarcerated people per 100,000. As the United States moves haltingly toward reform of the criminal justice system primarily through bail and sentencing reform at federal, state, and local levels, plea bargaining has until recently seemed stubbornly immune to reform. It is too often seen by players in the justice system as an integral and indispensable part of the adversarial system, approved as Constitutional4 even in its most extreme forms by the Supreme Court of the United States.