Overview
Plea bargaining is the practice by which criminal cases are resolved through a negotiated guilty plea rather than a trial. In the excerpts it is treated less as a bargain than as a mechanism of coercion. Bob Zadek, introducing the subject on his show, said that jury trials in criminal cases have virtually disappeared and that about 97 percent of all convictions are done without a jury trial, asking whether that is healthy or simply efficient rachel_barkow_on_fixing_the_fundamentals_of_criminc. On an earlier episode he put the figure at “about 96 or 97 percent of all criminal cases,” describing plea bargaining as a confession extracted through the threat of a long sentence [[episodes/joel_engel_on__scorched_worth__a_true_story_of_des|Joel Engel on Scorched Worth: A True Story of Destruction, Deceit, and Government Corruption, 6/3 (2018)]].
The mechanics of coercion
Zadek’s account of the mechanics is concrete: prosecutors tell a defendant that sentencing guidelines could put him away for 45 years, but that a plea to a lesser offense would mean five years, or two and a half with good behavior. The defendant is asked whether he wants to roll the dice [[episodes/joel_engel_on__scorched_worth__a_true_story_of_des|Joel Engel on Scorched Worth: A True Story of Destruction, Deceit, and Government Corruption, 6/3 (2018)]]. Zadek called this the use of the power of the statute to coerce people into signing confessions and accepting plea bargains, and said it eliminates the jury system and exacts wins for the prosecution.
Rachel Barkow agreed with the framing but rejected the vocabulary. She said she would call it a “trial penalty” instead of a plea bargain, describing it as putting a price tag on the ability to exercise the constitutional right to a jury rachel_barkow_on_fixing_the_fundamentals_of_criminc. Prosecutors, she said, threaten people every day in America with sentences as long as life should they go to trial, saying they will charge a law carrying a life sentence or a mandatory minimum of 30 years but recommend two years if the defendant pleads guilty. No one in their right mind, she argued, could think the prosecutor honestly believes the defendant deserves life or 30 years if he is willing to take two. The jury, on her account, is the way citizens get involved in checking the government in individual cases, and the Framers knew its importance — it was in the original Constitution even before the Bill of Rights.
Victims and the missing hearing
A caller identified as Jacob raised the position of victims, describing a hearing where a judge, just days after the arrest of a burglary suspect, had already signed off on a plea agreement with the prosecutor without notifying the victims. He asked whether there should at a minimum be a probable cause hearing in all 50 states before any negotiated plea is signed off on rachel_barkow_on_fixing_the_fundamentals_of_criminc.
Barkow said Jacob was right that the system fails people who have been victimized. Most crimes go unreported, she said, so millions of victims never enter the formal process at all. For those who do report, it is often the case that they do not want the sentence the government is offering — sometimes because it is too lenient, but sometimes because it is too harsh. She cited research showing that when victims are asked whether they would rather have the person go to prison for a number of years or participate in a restorative justice program — confronting the person, receiving an apology, and figuring out what would actually address the harm, whether community work, repayment, or programming for an underlying drug issue — a lot of victims want that. They are not asked, and it is not presented as an option; the prosecutor assumes what they want without consulting them.
The Supreme Court’s role
Carissa Hessick placed much of the blame for plea bargaining’s dominance on the Supreme Court itself. Plea bargaining, she said, is a relatively recent phenomenon; there were pockets of it in the 19th century, but when courts found out about plea bargains they reacted badly, and a lot of state courts threw out convictions as unconstitutional. The US Supreme Court got a case involving something that looked an awful lot like a plea bargain and refused to enforce the agreement because the prosecutor did not have that power, though Hessick said the Court did not put a bow on it and the case was a slightly weird type of plea bargain What happened to the right to a trial by jury? (2022).
Plea bargaining only came out into the open and began to be accepted in the 1930s and ’40s, she said, and the Supreme Court managed to duck the issue for decades. It was not until the early 1970s that the Court agreed to hear a case about the constitutionality of plea bargaining. In Santobello v. New York, the Court enforced a plea bargain the prosecutor had backed out of, saying plea bargaining is an important feature of the modern criminal justice system and is to be encouraged when done properly. Hessick noted the tension: the Court had previously said things like you cannot punish people for exercising constitutional rights.
The constitutionality of plea bargaining was challenged again later in a coercive case. A defendant was offered five years, and the prosecutor said that if he did not take the deal, new charges would be added that meant life in prison. The underlying offense was passing a bad check; the defendant had priors and qualified under a three strikes law, which Hessick placed in Kentucky. The defendant argued that the Court’s earlier cases said you cannot penalize people for exercising their rights. Hessick’s account of the Court’s response: yes, we did say that, but we also said plea bargaining is good, and if we say plea bargaining is good then we cannot step on the toes of prosecutors and deprive them of the ability to get more plea bargains. In her telling, the Court effectively acknowledged that its constitutional rules did not allow what the prosecutor was doing, but declined to enforce them because doing so would mean fewer plea bargains.
Plea bargaining as constitutional extortion
On an episode about the new civil liberties movement, Zadek raised plea bargaining with Philip Hamburger as an example of government using coercive power to take away rights on one hand and give them back conditionally on the other. Zadek asked how plea bargaining fits into that conversation, and the excerpt labels the section “Plea Bargaining and Constitutional Extortion” The New Civil Liberties Movement (2021). Hamburger’s answer does not appear in the excerpt; the transcript breaks off at his name.
Across episodes
The topic recurs across four episodes, and the treatment is consistent rather than developing: Zadek supplies the same 96–97 percent figure in 2018 and 2019, Barkow supplies the “trial penalty” formulation in 2019, and Hessick supplies the doctrinal history in 2022. The one shift is one of framing rather than substance — Zadek’s 2018 use of plea bargaining is an analogy for a civil settlement coerced by a threatened billion-dollar damages figure, while the later episodes treat it as the central institution of criminal adjudication in its own right. In a fifth episode, Zadek names jury reform and plea bargaining as an important issue the show did not have time to cover The Libertarian Dream Team - Ilya Somin (2022).
What the sources do not cover
The excerpts do not state the holding or citation of any case beyond the names Brady v. Maryland and Santobello v. New York, nor which constitutional amendment the jury trial right rests on. They do not give the title of Barkow’s or Hessick’s books, the jurisdiction of the three strikes case beyond Hessick’s tentative placement, or the content of Hamburger’s answer. No source describes a legislative or judicial remedy that has been adopted.