The transfer of power to prosecutors from judges has been so profound that an important trial ritual has become in some measure a lie, Mr. deVlaming said — the instructions judges read stating that the jury determines guilt or innocence, and the judge a proper sentence. The latter part is no longer true when mandatory minimums and, in many cases, sentencing guidelines apply, but jurors often do not know that.
Legal scholars like Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describe the power shift as a zero-sum game.
“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” Mr. Cassell said. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”
Without question, plea bargains benefit many defendants who have committed crimes and receive lighter sentences than they might after trial. It also limits cases that require considerable time and expense in court.
But many defendants who opt for trial effectively face more prison time for rejecting a plea than for committing the alleged crime.