The Supreme Court issued two rulings today related to plea bargaining. What if a defense attorney fails to pass along a prosecutor’s offer to his client? And what if a defense attorney gives a client really bad advice so an offer is rejected and, after a trial, the client gets a lengthy prison sentence? The Supreme Court grappled with what should be the appropriate remedy, if any, in such circumstances.

Lurking in the background of these cases is the practice of plea bargaining itself. Most Americans mistakenly think that we have a system of jury trials because they tend to hear about such cases on the news. Well, yes, some people have jury trials and some people win the lottery–most do not. According to the figures cited by the Court, “ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” Of the nine justices on the Court, seven did not perceive any problem with this situation.

Justices Scalia and Thomas couldn’t ignore the elephant in the room. Unlike the majority, they said plea bargaining is a “necessary evil” and that it has been “a somewhat embarrassing adjunct to our criminal justice system.” Here’s an excerpt from the Scalia dissent in Lafler v. Cooper (joined by Thomas):

In the United States, we have plea bargaining a‑plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law prescribes for the actual crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.

Well, that is the standard explanation offered, but as I noted in this article for Reason magazine, please observe that the main justification for the way in which the overwhelming number of cases are handled is a pragmatic argument–i.e. there’s just no other way of handling so many cases! The argument is not that plea bargaining is a terrific way to administer justice. And what about that “risk” of “compelling” persons to plead guilty–does that not threaten, you know, the constitutional right to trial by jury? Without much elaboration, Justice Scalia just says we “accept” it for pragmatic reasons. Oh. Today is just not a day for originalism I guess.

For additional background, go here.