Judge Wilkinson sees a system that is not a detriment to defendants because, in part, he observes that many defendants receive a “sweet deal”: they are factually guilty, but can bargain for lower charges and lower sentences by pleading guilty and relinquishing constitutional rights.
Even if true, this view is myopic. It at least ignores all the antecedent forces that go into defining who has “committed a crime” and who has not, including extreme disparities in surveillance and policing over race and wealth. While a nephew who throws a punch at his uncle in an over-policed community becomes “factually guilty” of assault-in-the-third-degree, rape on an Ivy League campus easily goes without arrest. While a low-level drug dealer in a housing project is charged with “conspiracy,” a college undergraduate runs a highly profitable drug enterprise with impunity. While a black body is subject to extreme police violence for jaywalking or selling untaxed cigarettes, a white police officer is immunized from facing homicide charges.
Plainly, just because a set of facts meets all the elements of a certain offense does not mean, in our criminal justice system today, that a person will be charged with that crime. Wealth, not culpability, largely determines whether somebody is hauled into court in the first place. The judge does not wrestle with this, because as Mr. Bright writes, he “does not get below the surface” in his characterization of the criminal justice system.