The New York Times has a new article on mandatory minimums and plea bargaining. The article notes the near-disappearance of the American criminal trial over the past generation:
Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts.
Although there are doubtlessly multiple causes for this trend, the article focuses particularly on the role of mandatory minimums, which have given prosecutors an ever-increasing amount of leverage in plea negotiations. Even an innocent defendant must think long and hard about going to trial when a plea would mean a sentence of only a couple of years of prison but a trial conviction might result in a mandatory minimum of ten years or more. The system has effectively made a lie of the constitutional promise of a right to a jury trial.
When I cover this subject in Criminal Procedure, students inevitably wonder how to reconcile the practice of threatening defendants with mandatory minimum charges if they go to trial with the prosecutorial vindictiveness doctrine of Blackledge v. Perry. The answer? The Supreme Court carved out an exception to Blackledge and gave its stamp of approval to coerced guilty pleas in Bordenkircher v. Hayes. A few years ago, I argued in this article that it was time for the Court to revisit Bordenkircher, especially in light of the Court’s revitalization of the jury-trial right in Apprendi v. New Jersey. Sadly, the Court has not yet given any indication that it has noticed my argument.
Hat tip to Tony Cotton.