The Constitutional Right We Have Bargained Away

The Bill of Rights exists to protect individuals. It protects the right to free speech, the right to due process, the right to counsel, and the right to be free from cruel and unusual punishment, just to name a few. If a government official tries to deprive an individual of one of those constitutional rights, then the courts are supposed to intervene.

But that’s not what happens when it comes to one of the most important rights for criminal defendants—the right to a jury trial. Instead of protecting defendants’ right to have their guilt or innocence decided by their peers, judges routinely punish defendants for exercising that right. Specifically, judges regularly impose longer sentences on those defendants who insist on going to trial than on those defendants who plead guilty. A shows that, on average, defendants