Do U.S. Prosecutors Have Too Much Power In Plea Bargains?


American prosecutors are more powerful than ever before, says The Economist. Legal changes have empowered them. The first is the explosion of plea bargaining, where a suspect agrees to plead guilty to a lesser charge if the more serious charges against him are dropped. Plea bargains were unobtainable in the early years of U.S. justice, but today more than 95 percent of cases end in such deals. Federal judge Jed Rakoff of New York City thinks it unlikely that 95 percent of defendants are guilty.

Of 2.3 million Americans behind bars, he thinks it possible that “thousands, perhaps tens of thousands” confessed despite being innocent. One reason they might do so is because mandatory-minimum sentencing rules can make such a choice rational. Rather than risk a trial and a 30-year sentence, some cop a plea and accept a much shorter one. Disquiet over prosecutorial power is growing. Several states now require third-party corroboration of a co-operator's version of events or have barred testimony by co-operators with drug or mental-health problems. Rakoff proposes scrapping mandatory-minimum sentences and reducing the prosecutor's role in plea-bargaining—for instance by bringing in a magistrate judge to act as a broker.

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