Sticky comments on Rationality & Criminal Law: Some Questions - Less Wrong
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Looking at the comment thread here, it seems to me that many commenters are unaware, or at least fail to remember, that in the U.S. and Canada, and presumably many other Anglospheric common law jurisdictions, well over 90% of criminal cases are these days resolved by plea-bargaining and never reach trial.
This is an essential feature of how the criminal law system works today -- the whole infrastructure of criminal courts would be overwhelmed to the point of collapse if it actually had to provide jury trials for more than a tiny minority of all defendants who get convicted. In the contemporary socially atomized and thoroughly bureaucratized society, in which law has become complex, vast, and abstruse to the point where it's completely outside the intellectual grasp of the common person, trial by jury is little more than an ancient historical relic. Focusing on juries as a central issue of the modern criminal law makes little more sense than focusing on the monarchy as a central factor in the modern U.K. government and politics. Of course, jury trials provide good material for movies and TV shows, and like in many other things, folks who haven't had any personal experience with the system tend to mistake what they seen on TV for reality.
The true backbone of the contemporary American criminal law are the discretion of the police and prosecutors to investigate, arrest, and bring charges, and the subsequent plea-bargaining procedure. You can still insist on a jury trial, but the system has developed to the point where prosecutors can wield threats that will nearly always make it safer to plea-bargain. They can crank up the list of charges to the point where even with a very small probability of being found guilty, the probabilistic expected penalty is higher than what you're offered to plea-bargain for -- and even if you're innocent, it takes a good and very expensive lawyer to reduce this probability to a negligible level. Not to mention that if things reach trial, cops and prosecutors are sometimes -- and arguably quite often -- willing to use very dirty tricks, up to an including perjury and faked evidence.
All this is not necessarily bad. Honest cops and prosecutors may well be more accurate in determining guilt than typical juries -- but any realistic analysis of the system should focus on them as the central decision-making agents on whose accuracy and honesty the quality of the system hinges, not juries.
Most hands of poker are decided without showing the cards. Does that make the cards irrelevant? Of course not; everything that happens is conditioned by the probable outcome if there were a showdown, as judged by the players in the hand. Changing one player's hand could change everything, even if no one else ever sees it.
A change in the way verdicts are reached will be much more powerful, being seen by both sides. Therefore even if nothing is done about the plea bargain system (and something should be done), the key to the game is still the "showdown".