Plea Bargaining for the People

Our criminal justice system must be democratic enough to allow for significant citizen participation. Unfortunately, our current system cuts the people out. Instead of juries, plea bargaining professionals like prosecutors, defense attorneys, and judges decide most cases. Plea bargaining does efficiently process cases but, in addition to its well-known coercive aspects that warp case outcomes, ignores what I call “criminal justice citizenship.” This refers to the people’s privilege to participate on an equal basis in the criminal justice system.

That participation strengthens our democracy, shores up the legitimacy of the system, and helps to ensure that the system, within constitutional constraints, does not become untethered from the people it is supposed to serve. Because the jury trial has all but disappeared, other participatory democratic institutions, like grand juries and plea juries, must play a more prominent role.