This is a small, sobering book about some deep, heavy issues. In essence, “Punishment Without Trial: Why Plea Bargaining Is a Bad Deal” is Carissa Byrne Hessick’s way of explaining how one branch of government routinely performs unconstitutional acts against American citizens.
Much popular discussion of constitutionally guaranteed rights focuses on one of the first two amendments. The First Amendment addresses the separation of church and state, free speech, peaceable assembly and the right to petition the government for grievances; the Second Amendment is about the right to bear arms. These are excellent and wonderful rights, and there is a great deal of discussion about whether and by whom they are under attack.
What is not as often or loudly discussed is how, through something as seemingly benign as a plea bargain, local judicial systems daily violate at least five different amendments to the Constitution; specifically the Fourth through Sixth, the Eighth and the 14th Amendments. What is even less discussed is that we, as a population, have come to accept and sometimes even reinforce these practices.
So what is plea bargaining and how does it play into the consistent disregard of the rights of American citizens? Most people are probably familiar with the concept as a result of watching a crime drama of some sort or listening to true crime podcasts. Others may have had to accept a plea deal as an actual participant in the criminal justice system. In either case, though, the injustice in the procedure is not always apparent.
Accepting a plea bargain is something a defendant can do to avoid trial by jury or to have a sentence reduced, and here is where the Sixth Amendment is violated: the right to trial by jury.
Plea bargains have become a cornerstone of the judicial system, and, as Hessick points out, this is an issue of efficiency at the cost of truth. One of the results of plea bargaining is that defendants plead guilty to a crime in order to receive a lighter form of punishment and to avoid the time and cost of a trial. This means that very often a person will plead guilty to a crime they did not commit in order to be punished less than they might be if found guilty at trial. People lie about their guilt in order to avoid harsher punishment.
What’s more, Hessick details how in some jurisdictions judges force defendants to commit perjury by pleading guilty to a crime they didn’t commit after negotiating a sentence with the judge and lawyers prior to a hearing. Basically, the judge and lawyers come up with a punishment and fit a crime to it, then force the defendant to plead guilty to it.
And it isn’t just guilt or innocence that is being lied about. In order to wiggle through legal mandates, sometimes defendants will plead guilty to a different crime than the one they were arrested for in order to get the negotiated type and time of punishment required. The deft untangling of historic court rulings that Hessick cites to illustrate the evolution of this process is part of what makes this book so readable.
Any discussion on legal matters runs a razor-thin line of becoming unintelligible to the average reader — it’s not called “legalese” for nothing. But Hessick very plainly demonstrates the history of legal procedure that led to the system that is currently in place. This is a striking feat.
What is even more compelling is that the writer manages to show how a strange and perverted system exists without yelling or screaming. The even-handedness of her exposition helps to keep this book from being a political tirade or social justice harangue. At the same time, it is not a purely objective and soulless description of “the way things are.” Hessick is clear in her dislike of the system as it is and is in search of ways to improve it.
Another thing that becomes clear in “Punishment Without Trial” is just how much power prosecutors and judges have in the criminal justice system. Defense lawyers and defendants are at a constant disadvantage. In many ways, judges can decide what they want to do or not with little redress from any other party.
Judges and prosecutors have played a large part in making the system the one that it is today. And, as Hessick points out, they can also play a role in correcting some of the troubling trajectories it has taken. For example, Boston’s district attorney, Rachael Rollins, made a decision to stop prosecuting certain types of cases. Short of removing some laws from the books, there is the option to stop punishing people for breaking those laws.
Each of the five amendments has a moment in the book’s spotlight: bail reform, civil forfeiture, trial by jury, state versus federal prosecution and probable cause. The millions of people who are caught up in the system and consistently having their rights violated makes learning about the problems much more visceral.
The criminal justice system as it exists today violates the rights of millions of people every day. Plea bargaining is the cornerstone on which this system is built. Hessick brings this truth into stark focus and provides some hope for undoing the problems. One reason this situation was allowed to become so problematic is America’s mores concerning criminality. Criminals, in many people’s minds, are tainted or ruined individuals. They have gotten what they deserved. But as the war on crime continues, more and more people are drawn into the judicial system, and more and more people see just how askew it has become. But there is no lobby for the criminal like there is for the gun owner.
The social stigma of criminality is something to be addressed, and the outcomes of this social perception are all too visible in Hessick’s work. Perhaps with more lawyers and judges in her mold, truth and equity will reclaim space in the justice system.
Read more of the Jan. 18-24, 2023 issue.