Anna Rouw is an OK Policy summer intern. She recently graduated from the University of Tulsa.

One of the most basic rights for Americans accused of a crime is the right to a fair trial before a jury. However, the vast majority of criminal convictions – 90 to 95 percent – don’t happen at trial. Instead, they’re the result of a guilty plea, a deal negotiated by prosecutors and defense attorneys absent a trial. Plea deals allow defendants to avoid the uncertainty of a months-long trial, and in exchange for a guilty plea, prosecutors generally agree to reduced charges or more lenient sentences. Plea deals are the norm for a number of reasons, but the justice system’s dependence on them is a serious problem. When nearly all criminal cases are resolved outside of the courtroom, the dangers include racially biased sentences, convicting innocent defendants, and a criminal justice system with little transparency or accountability.

What are plea deals?

Plea deals are agreements between prosecutors and defense attorneys. In a plea deal, the defendant pleads guilty to a crime in exchange for a more lenient sentence than what the prosecutor would seek if the case went to trial. For defendants, plea deals offer the chance for a speedy resolution to their case. Going to trial takes a huge amount of time and resources that most defendants don’t have. At a jury trial, a defendant has the chance to be acquitted, but if he or she is convicted, the punishment is often severe. For example, a defendant could be charged with first degree burglary and facing 7-20 years imprisonment. A plea deal could offer the chance to reduce the charge to second degree burglary with only 5 years imprisonment.

And while they offer advantages to defendants, plea deals are also necessary for our overburdened criminal justice system. Due to underfunding, the Oklahoma Indigent Defense System has been on the brink of a constitutional crisis in recent years, and attorneys have caseloads that are over two and a half times higher than national standards. District Attorneys have struggled to keep their offices afloat as state revenues have dried up. Bringing more cases to trial simply isn’t feasible in this type of environment.

Plea deals tip the scales in favor of prosecutors

The reliance of the justice system on plea deals gives prosecutors a great deal of power in negotiating the resolution of criminal cases. Many defendants cannot afford bail or pay a bondsman to be released before their case is resolved, so many defendants see plea deals as a way to get out of jail as soon as possible. With this leverage, prosecutors can press for incarceration or supervision with little resistance from defendants. Desperate to get back to their families, many defendants take the deal. This power imbalance may even influence an innocent defendant to plead guilty merely because they lack the resources to undergo a lengthy trial process.

Nearly 80 percent of jail inmates are held in custody, not because they have been convicted, but because they are waiting to resolve their case. This is despite the fact that only about 9 in 10 are neither a threat to public safety nor a flight risk. In Tulsa County, the pretrial detention rate has exceeded the growth in its overall incarceration rate for the past three decades. With more people stuck in jail before their trials, prosecutors have more leverage: plea deals offer the chance to return to normal life.

Relying on plea deals also reinforces inequalities throughout the justice system by favoring well-off and well-connected defendants. One study found that white defendants had a significantly higher chance of receiving a reduced charge in a plea deal than black defendants. Another found more favorable plea deals for white and Asian-American defendants than for Latino and African-American defendants.

These trends reflect larger problems of power imbalance within the justice system. Unsurprisingly, plea deals are influenced not only by evidence and seriousness of offense, but also by contextual factors. Personal relationships with judges, for instance, tip the scales further for people with money and connections.

Judges and lawmakers can take steps to reduce the harms of plea deals

Judges could put plea negotiations on more even ground by releasing more people who can’t afford bail through nonmonetary release, such as recognizance bonds, taking away the pressure for defendants to take the first deal they’re offered. Some Oklahoma counties have already begun to widen the use of nonmonetary release resulting in fewer people in jail. In one study, pretrial releases were found to reduce defendants’ probability of pleading guilty by 12 percent.

Another way to reduce plea deals is to make trials more common. Because jury trials are extremely resource-intensive, judges in other states have increased the use of a less onerous alternative called bench trials. Bench trials allow both prosecutors and defenders to make their cases before a judge without a jury. This practice has reduced the number of defendants pleading guilty and allowed them to present evidence that may avoid a conviction or reduce their sentence. North Carolina approved bench trials in 2014, and in 2016, nearly two in three felony cases were resolved at a bench trial.

Increasing funding to the Oklahoma Indigent Defense System would also give defendants more power. The Indigent Defense System provides public defenders to poor defendants in all counties except Tulsa and Oklahoma Counties, and has received less funding despite growing caseloads over the last two decades. Similarly, divestment from Oklahoma’s district courts has reduced the capacity of courts to hear more trials. Increasing funding for both of these critical institutions would allow public defenders to prepare more cases for trial and give courts the resources to accommodate them.

There are other steps lawmakers can take to reduce the impact of plea deals. These include reducing mandatory minimum sentencing and reducing felony charges to misdemeanors. Oklahoma has already begun to reduce sentences for many crimes, such as reducing minimum sentencing for drug offenders and reclassifying simple drug possession as a misdemeanor. However, there is still a long way to go. Oklahoma’s criminal statutes contain numerous mandatory minimum sentences, such as a minimum of 7 years for first-degree forgery and a minimum of 3 years for automobile theft.

Justice requires a fair hearing for everyone accused of a crime

Scarce resources and large caseloads mean that plea deals will continue to be the norm in Oklahoma’s criminal justice system for the foreseeable future. However, district judges and state legislators have options to curb the most problematic elements of plea deals. Increasing pretrial release through bail reform, expanding the use of bench trials, investing more resources in our justice institutions, and reducing sentencing laws could help to level the playing field between prosecutors and defense attorneys. It’s true that these measures would require increased effort and innovation. But judges and lawmakers should embrace them as steps to prioritize justice over convenience.