The American Criminal Justice System is Dead (Pro Libertate)
Thursday May 8th, 2014
A profoundly troubling study published by the University of Texas School of Law concludes that the American criminal justice system is dead in everything but name. The paper, entitled “Waiving the Criminal Justice System,” describes how the adversarial process through which the state must prove the guilt of a defendant has been supplanted with a system of administrative law in which prosecutors extract plea bargains in exchange for relatively lenient sentences. This is why federal prosecutors win more than ninety percent of their cases through plea bargains, rather than jury trials.
This is a lamentable state of affairs, and to many observers a familiar story. This study, however, breaks new ground by showing that prosecutors at both the state and federal levels require defendants to waive due process rights that are vital for post-conviction appeals – such as the right to effective assistance of counsel, and the right to obtain exculpatory evidence that can be used to overturn a conviction or at least obtain a new trial.
In the American tradition, the purpose of a trial was to establish the truth of an accusation against a defendant who is presumed to be innocent. The purpose of our post-constitutional criminal system is to ratify the defendant's guilt, irrespective of the facts.