Law does not govern criminal justice. The menu has grown too large; prosecutors have too many options. Bordenkircher is by no means solely responsible for that concentration of power. But the Court’s decision does bear some responsibility for the punitive turn America’s criminal justice system has taken — for its harshness, for the sheer magnitude of our two-million-plus inmate population. Also for the inexorable rise of plea bargaining, now the means by which nearly nineteen of every twenty convicted felons reach that status. And there is another effect, more important even than the prison population and the guilty plea rate. As the prisoners have multiplied, laws have multiplied as well, adding more criminal prohibitions and harsher sentences to criminal codes. As those bodies of law have grown in size, they have shrunk in consequence. In the criminal justice system, the men and women who work in district attorneys’ offices increasingly rule. The law no longer does.
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