In justifying the practice, prosecutors and courts play word games, denying that a far harsher sentence is a “punishment.” Rather, they say, it’s what the defendant deserved for the crime, and the relative lenience of a plea bargain is a “reward” for saving the government the expense, inconvenience and risks of a trial. As the Supreme Court put it: “We cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State” (emphasis added).

Yet imagine if the government, instead of directly punishing disfavored speech, accomplished the same objective in a roundabout way by offering a tax rebate for people who waive their First Amendment rights. Any judge would see through the maneuver. So why do the courts invoke the same meaningless distinction when it comes to the right to trial?

Because more than 90% of defendants waive the right to trial, usually for fear of the trial penalty. If the penalty were held unconstitutional, it could overwhelm the system. But is that a good enough reason to trample a constitutional right? Under America’s Constitution, rights are the absolutes to which practical considerations must adapt. We can build more courthouses and appoint more judges and prosecutors to accommodate the right to trial. We can also decriminalize many actions that are today treated as crimes, beginning with drug use.