Criminal courts make decisions about life, liberty, property and reputation. They are, therefore, one of the principal indicators of the character of a society. But criminal courts are also one of the most understudied institutions in America. In this context, Rob Perez’s series “Justice Delayed” provides much-needed insight (Star-Advertiser, June 17-19).

Perez shows that crowded court dockets and frequent continuances undermine criminal justice in Hawaii by failing to hold offenders accountable and by forcing victims to return to court many times before their cases are resolved.

He also suggests several possible causes. Courts have insufficient capacity to process their caseloads. The Legislature refuses to provide funding for more judges. The prosecution and the defense claim (with alarming frequency) that they are not ready for trial, and judges contribute to a “culture of continuances” by allowing cases to be repeatedly kicked down the road.

Yet there is a large truth that this series overlooks: criminal trials are vanishing — and not only in Hawaii.

Nationwide, approximately 95 percent of all persons convicted of a felony have waived their right to trial by entering a plea of guilty, and persons charged with misdemeanors plead guilty at even higher rates. And since 1985, there has been a significant rise in the percentage of cases disposed of through justice-without-trial. In Hawaii and the rest of the country, plea bargaining has triumphed so completely that it can hardly grow any more.

At root, prosecutors and defense lawyers routinely seek continuances, and judges routinely ratify them, because delay reduces the likelihood of trial, and because avoiding trial serves the interests of these criminal court insiders.

Although many of them claim that the press of heavy caseloads drives plea bargaining, this is more of an excuse than an explanation.

Caseloads in Hawaii have not risen continuously or dramatically, even for the few crimes on which Perez focuses. In 2017, for example, the number of domestic abuse protective orders (2,982) was about the same as the number in 2010 (2,940). And for DUI cases, court congestion today (as Perez acknowledged) “actually pales in comparison with the logjams from the early ’90s.”

Even in rural courts with light caseloads, plea bargaining is the usual way of dispensing criminal justice in America. Virtually everywhere in the country — urban, rural and suburban jurisdictions — criminal justice systems pressure defendants to give up their right to trial in exchange for concessions from the state.

The main mechanism for applying this pressure is what criminologists call the trial tax. Defendants who refuse to plead guilty and insist on their right to trial are threatened with significantly increased punishment. The penalty for going to trial (and losing) is often two, three, or even six times greater than the penalty prosecutors offer defendants during plea negotiations.

There is no principled justification for the obscenely ordinary practice of punishing criminal defendants with substantially increased harshness for exercising their right to trial.

In Hawaii, the culture of continuances is often a slow-motion means of coercing guilty pleas from criminal defendants who have the audacity to insist on exercising that right. Eventually, most give up, give in, and plead guilty. Conversely, continuances sought by defendants frequently reflect their concern about using a trial system that punishes them extra for exercising their rights.

Many scholars have observed that criminal trials in the United States are vanishing. The main cause is not some dictator’s ax. It is a slow and largely invisible process of democratic decay, and it is the triumph of backroom bureaucracy.

Rob Perez has sounded an alarm. Will it be heard?

David T. Johnson is a sociology professor at the University of Hawaii at Manoa.