“Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That’s what plea bargaining is. It is not some adjunct to the criminal justice system. It is the criminal justice system.”

-Supreme Court Justice Anthony Kennedy


Imagine going to a baseball game. You grab a beer and a $12 hotdog and mosey your way through die-hard fans in face paint, kids stumbling in oversized jerseys down to their knees, and elderly couples marveling at the stadium’s big screen TVs. The buzz of the crowd fills the stadium, the crisp, fresh air pulses with anticipation. You plop down in your hard plastic seat. The players take the field!

The opposing teams walk to the mound.

Conversation ensues.

The umpire announces that the teams have come to a disposition: the home team has won by a score of 5 – 3.

The game is over.

The entire crowd stands up and begins the trek to the parking lot. Thousands of plastic chairs flap upward with a resounding thwap-thwap-thwap-thwap. You remain seated. Full beer in one hand, warm hotdog in the other. You yell out to a passing cotton candy vendor. “Hey! What about the game?” He shakes his head and grumbles, “They rarely play games anymore. 95% of the time they decide who wins without throwing a pitch.” As he hikes up the cement steps you’re left wondering: wait, is this really baseball?

That is our criminal justice system.

We believe that the trial is the backbone of the judicial process when in reality the proceedings only take place in 5% of all cases. The remaining 95% of cases that result in convictions all end in plea bargains. In these anticlimactic, too-boring-for-television events defendants plead guilty or no contest in exchange for a prosecutor’s offer of a more lenient sentence or agreement to drop other charges.

Take the case of Beatriz Gutierrez, a petite 21-year-old with an unruly messy bun who appeared before the court last month. Gutierrez was charged with one count of grand theft auto and one count of recklessly evading a police officer. After her arrest and arraignment, Guitierrez’s public defender conferred with a deputy district attorney.

Together they reached a disposition: the charge of grand theft auto would be dropped in exchange for her guilty plea to the charge of reckless evasion.

Gutierrez was ushered into the court by the bailiff and sat beside her public defender with her fidgeting hands cuffed behind her back. The prosecutor opened a script and rattled off the formal legalese of the plea. Guitierrez was asked to confirm her full name and her birthday, she was asked to give up her right to a trial and asked if she had been given enough time to discuss the plea with her counsel. To each flat formless inquiry Guitierrez gave a repetitive “Yes.” Each affirmation seemed void of any meaning, just another slam of the battering ram of “Let’s get this over with.” In the end, Guitierrez pleaded no contest to the charge of reckless evasion and was sentenced to 16 months in state prison.

The whole affair took no more than 8 minutes. It takes longer to watch an episode of Seinfeld. I take longer cold showers. Kraft Mac and Cheese takes more time – the minutes boiling noodles and seconds sprinkling fluorescent cheese powder.

It’s wham-bam-thank-you-ma’am.

When it’s done, the jail door slams.

The realization that plea bargains dominate our criminal justice system is a mind-warping paradigm shift akin to realizing that Santa Claus isn’t real. It is simultaneously upsetting and embarrassingly obvious at the same time. After all, in California alone more than 4.5 million criminal cases are filed annually. It would be impossible for each of those cases to go to trial, to undergo the entire procedure of a jury selection, openings, testimony, closings, deliberations, verdicts and sentencing – a process that can take anywhere from a few days to several months. The fiscal cost and quantity of infrastructure required to give every case its day in court is impossibly prohibitive.

But if it’s impossible for every criminal case to go to trial and expedient plea bargains give defendants a more lenient sentence then why should we complain?

Home field advantage.

I’m not talking about the rally roar of a crowd that bolsters the team’s morale; I mean something that feels like cheating. Imagine an advantage so great that it gave the home team victory every time– sometimes the losers admitted defeat and sometimes they just sat in the grass and yelled “no contest.” Some items may be up for debate – did the opposing team lose by two or by four? – but make no mistake: they lost.

Prosecutors have an enormous amount of leverage in plea negotiations because they are allowed to stack charges and then threaten a trial on all of those charges as a penalty. Stacking of charges occurs when prosecutors choose to charge defendants with multiple offenses, often to excess. For example for one alleged act of fraud you could be charged for every step of that crime resulting in charges of computer fraud, mail fraud, and bank fraud. For one alleged act of drug trafficking you could be charged for drug possession, conspiracy, and possession of drug paraphernalia. One alleged act of graffiti vandalism might be stacked with a gang enhancement.

Or, as was the case with Beatriz Gutierrez, one alleged act of reckless evasion could be stacked with the charge of grand theft auto, not because you hotwired a car but because the vehicle was taken from a relative without their express permission.

Stacking charges disrupts the playing field. It’s like giving prosecutors aluminum bats while the defense plays with wood. The trial penalty is what happens when the umpire looks away while prosecutors use their advantage to use a loaded bat.

The thing about stacked charges is that they can blow up to an inflated sentence, one that often doesn’t feel proportionate to the crime. A verbal fight with a stranger can lead to a life sentence, spray painting a wall can result in several years in prison, and shoplifting a chicken can be punished by months in jail.

In Beatriz Gutierrez’s case, she faced a maximum sentence of 6 years in prison – three years for the felony reckless evasion charge and three years for grand theft auto. If Gutierrez decided to go to trial she would have to risk the chance that a jury could convict her and a judge could force her to serve all 6 years. That “trial penalty” is why when a prosecutor offered her 16 months in state prison she took it.

Plea bargains are not bargains: they are coercion.

Due to the leveraging power of the DA’s office, even an innocent person might plead guilty, simply because the risk of going to trial and facing stacked charges is too terrifying to contemplate. Logic lends a cruel hand to the blameless defendant who has the choice of serving six months in jail or pursuing a trial that could end with years in prison.

95% of all criminal cases result in these plea-bargains, these edifices that are propped up by stacked charges, and trial penalties and abject fear. If what we think of as justice is a trial in which both sides present arguments and an impartial jury decides a verdict, then is this still justice?

Are we even playing baseball anymore?