Due Process is Dead: A Staggering 95% of All Inmates in America Have Never Received a Trial

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In the Land of the Free, one-quarter of the entire planet’s prison population, some 2.2 million people, currently languish behind bars; yet, an astonishing number of them — around 2 million — have never been to trial. Indeed, these figures categorically debunk the notion the criminal justice system in the United States maintains any semblance of its formation’s original intent: to ensure the guilty suffer punishment befitting their crimes, while the innocent avoid false conviction.

As the fundamental basis for the justice system in the United States, the Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

Justice, as an untold — though no doubt, appalling — number can attest, has been utterly abandoned for the interests of the careless expedience, apathetic convenience, and unabashed profiteering of the U.S. prison-industrial machine.

“The reality is that almost no one who is imprisoned in America has gotten a trial,” explains award-winning journalist, Chris Hedges, in a recent Truthdig column. “There is rarely an impartial investigation. A staggering 97 percent of all federal cases and 95 percent of all state felony cases are resolved through plea bargaining.” Of those millions who bargained away their right to a trial by accepting plea deals, “significant percentages of them are innocent.”

Plea bargaining failed in its attempt to facilitate pragmatic justice seen in earlier courts, before the advent of the “adversary system and the related development of the law of evidence,” as John H. Langein once described. After the Civil War, as Judge Jed S. Rakoff explained in the New York Review of Books, rising crime and immigration rates began to burden the system and plea bargains offered an acceptable solution. In other words, court proceedings were at one time swift and simple, and though such expediency might have seemed a desirable quality in the past, the incontrovertible reality at present is a system wholly focused on speed at the expense of the necessary — in fact, imperative — assumption of innocence of the accused.

Indeed, for incontrovertible proof the court system no longer functions for the people — neither in its capacity to protect the public from the actual criminals, nor in its ostensible assurances no innocent person will be punished unfairly — take even a cursory glance at the trial system. Plea bargains have actualized a replacement of justice with a farcical, well-oiled machine of incarceration. “In actuality,” as Rakoff described,

“our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.”

Of all federal criminal cases, “fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.”

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Plea deals are presented to defendants as a way to escape the near certainty of a heavy-handed sentence should they be found guilty by a jury at trial — because defense attorneys’ and prosecutors’ most pressing goal is to prevent a trial in the first place. “Once you are charged in America,” Hedges said, “whether you did the crime or not, you are almost always found guilty.”

In part, such ‘unconditional guilt’ begat the need for The Innocence Project — “a national litigation and public policy organization dedicated to exonerating wrongfully convicted individuals through DNA testing and reforming the criminal justice system to prevent future injustice.” Since 1989, there have been 337 DNA-related exonerations with individuals having served a combined total of around 4,606 unjustified years — an average of 14 years, each, before being freed. Of those 337 cases, 31 individuals, who had served over 150 combined years, “pled guilty to crimes they didn’t commit — usually seeking to avoid the potential for a long sentence (or a death sentence),” states The Innocence Project’s website.

“If all of the accused went to trial, the judicial system, which is designed around plea agreements, would collapse. And this is why trial sentences are horrific. It is why public attorneys routinely urge their clients to accept a plea arrangement. Trials are a flashing red light to the accused: DO NOT DO THIS. It is the inversion of justice.” Of the students he teaches in prison, those “who have the longest sentences are usually the ones who demanded a trial.”

While the rich and powerful, especially those associated with corporations and banks, are able to escape significant punishment — even when their crimes affect millions of people, such as those complicit in the 2008 financial crash — the poor, whether guilty or not, fall victim to this slanted system. As Hedges summarized:

“If you are poor, you will be railroaded in an assembly-line production, from a town or city where there are no jobs, through the police stations, county jails and courts directly into prison. And if you are poor, because you don’t have any money for adequate legal defense, you will serve sentences that are decades longer than those for equivalent crimes anywhere else in the industrialized world … Being poor has become a crime. And this makes mass incarceration the most pressing civil rights issue of our era.”

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Claire Bernish began writing as an independent, investigative journalist in 2015, with works published and republished around the world. Not one to hold back, Claire’s particular areas of interest include U.S. foreign policy, analysis of international affairs, and everything pertaining to transparency and thwarting censorship. To keep up with the latest uncensored news, follow her on Facebook or Twitter: @Subversive_Pen.