Discover more from David Friedman’s Substack
To my previous post
A commenter on this post raised the idea of simply abolishing plea bargaining, which started me thinking about what it would take to make that a practical option. At present about 98% of cases are resolved by a plea bargain; if all of them got tried instead and nothing else changed we would have about fifty times as many trials, requiring the legal system to employ vastly more judges and lawyers, draft a lot more jurors. But other things could change or be changed: the length of trials or the number of indictments.
Langbein points out that in 18th century England a single jury could try twelve to twenty cases in a day. It is hard to imagine trying cases that fast today. But, since twenty-first century America is much richer than eighteenth century England was, it should be able to afford longer trials, even if not as long as trials currently take.
There might be reforms to the present rules that would shorten trials substantially without increasing the error rate. Even if shortening trials did raise the error rate, convicted more innocent defendants or acquitted more guilty ones, only a few percent of defendants in the present system get a trial. The error rate of a shorter trial might still be lower than the error rate produced by the present system.
What about ways of cutting the number of cases? One is to legalize victimless crimes such as drugs, gambling and prostitution, which should cut the number of cases at least some; a quick google suggests that victimless crimes represent something between ten and fifty percent of criminal charges. Penalizing either the government or the prosecutor for charging people who turn out to be innocent, as I suggested above, should also reduce the number of indictments, in particular the number of indictments of innocent defendants.
Even without those changes, abolishing plea bargaining raises the cost to the prosecution of charging someone with a crime, since unless the defendant decides to plead guilty without the incentive of a reduced sentence there will be a trial and trials absorb prosecutorial resources. If charging people becomes more expensive to the organization that does it the number charged should go down.
Would some combination of such effects make it possible to abolish plea bargaining without greatly increasing the resources spent on trying cases? I do not know.
[I have also added this to the previous post for the benefit of anyone who reads it in the future]