This is the Cato Daily Podcast for Monday, July 19th, 2021.

I'm Caleb Brown.

Most criminal cases end in plea deals and prosecutors like it that way.

But does it serve justice?

So Mel Trevetti is a senior staff attorney at the American Civil Liberties Union.

The ACLU has launched a lawsuit in Maricopa County, Arizona challenging how plea bargains happen.

A prosecutor's job is to seek justice.

Is that fair?

That's not only fair, uh, Caleb, but it's their professional obligation under their rules of ethics that they seek justice and not simply convictions.

But as we know all too well, that paradigm has been reversed over the last 50 years and

do almost entirely to coercive plea bargaining.

Okay so you say coercive plea bargaining, you have made the claim that plea bargaining as an institution, as a set of rules, is itself coercive. Let's try to dig down a little bit into exactly

what makes plea bargaining coercive. If plea bargaining did not exist, cases would either get dropped or

cases would go to trial. Is that right? That's right and then we'd have a

better approximation of what the state considered serious and worthy of its resources.

Not all plea bargaining has to be coercive, it's not a necessary element of the

regime it's just that the way it's been practiced in all of its history has

become unduly coercive and I'll tell you why.

Because we have as a society unfortunately handed prosecutors

ever more punitive tools to make it not a bargain at all but rather an exercise in

extraction and coercion and by that I mean almost ubiquitous pretrial detention which

gives people an undue incentive to take whatever

...