Every resident of or frequent visitor to the United States should rejoice at the Supreme Court’s decision last week expanding the rights of defendants to effective counsel in plea-bargain negotiations. As Justice Anthony Kennedy wrote in the majority opinion, the country no longer has a “trial system,” but rather a system in which “the negotiation of a plea bargain, [instead of] the unfolding of a trial, is almost always the critical point for a defendant.” In federal cases, 97 percent of convictions — and in state cases, 94 percent of convictions — are the result of plea bargains.
Justice Kennedy, perhaps without realizing it, turned over the rock that hides the ghastly infirmity of the whole American criminal-justice system when he emphasized that the plea bargain is “the critical point for a defendant.” He didn’t say, “for a convicted defendant,” or “for a guilty defendant” — and thus implicitly recognized that over 90 percent of those charged are convicted. The sluggishness of the Supreme Court to grasp the implications of this makes the gently downward movement of molasses and even that of fresh cement seem like the rush of the Niagara River toward the falls, but at some point the high court is going to have to come to grips with this degeneration of American justice into virtual Star Chambers.
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