In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.

In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty—approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.”

Why, then, are criminal defense lawyers able to persuade the vast majority of their clients to plead guilty, even those who are actually innocent? Put simply, it is because our system punishes so severely those who go to trial and lose. If we are serious about both minimizing the conviction of the innocent and sentencing reform, we must address this reality. This essay, therefore, focuses on two pernicious features of our current criminal justice system—misuse of plea bargaining and misuse of informants—that explain why so few criminal defendants exercise their right to trial. We conclude with proposals that might ameliorate those features of our system.

Joy, Peter A. and Uphoff, Rodney J., Sentencing Reform: Fixing Root Problems (October 2, 2018). 87 UMKC Law Review 97 (2018); University of Missouri School of Law Legal Studies Research Paper No. 2018-31. Available at SSRN: https://ssrn.com/abstract=3259278


Peter A. Joy

Peter A. Joy is a professor at Washington University in St. Louis, School of Law. He is well known for his work in clinical legal education, legal ethics, criminal justice, and trial practice. As director of the Criminal Justice Clinic, he supervises student-lawyers who provide direct legal representation to clients and work with experienced public defenders on criminal matters. In addition to his clinical work and teaching, Professor Joy has written extensively and presented nationally and internationally on legal ethics, lawyer and judicial professionalism, clinical legal education, and access to justice issues. 

Rodney J. Uphoff

Rodney J. Uphoff is first Elwood L. Thomas Missouri Endowed Professor of Law at the University of Missouri, where he also served as the associate dean of academic affairs for three years. In 2006, Uphoff was selected to be the director of the University of Missouri South Africa Educational Program, representing the four University of Missouri System campuses. He also directs the School of Law’s study abroad program in Cape Town, South Africa.


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