2. NACDL has released a fascinating report about the trial penalty and recommendations on how to breath life back into the 6th Amendment. From the intro:
The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice systemReally, we need trial judges to step up and not crush people for going to trial. It's just not right. Judges publicly complain that there aren't enough trials. But if they wouldn't punish people for exercising their trial rights, you'd see a big uptick in people challenging the government.
This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident. The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout federal and state criminal justice systems. The Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.
Silly defense lawyer. If we don't hurt people for going to trial, more people would go to trial. More trials mean I have less time on the golf course. Should be pretty easier to understand.
ReplyDeleteWhy do you think I don't grant mistrials? Try the case again? I have a tee time.
ReplyDeleteSentencing for acquitted conduct is just a form of double jeopardy and a fraud upon the jury's verdict.
ReplyDeleteThe Supreme Court ruled clearly on Booker (part I) and it's Blakely progeny, but the USSC and Judges have chosen to ignore that part and jump back on the Guidelines are reasonable by default bandwagon.
Secondly, it's like the Parole office is so used to take guidance from the DOJ for those 97% of the cases, they forgot how to do their jobs and rather be told what guidelines to use.
909
DeleteI would argue calling it a fraud is a little strong. We look at all kinds of things under a preponderance standard at sentencing... why is acquitted misconduct different?
If a defendant is charged with bringing in 2 drug loads, convicted of 1 but acquitted of the other because important evidence was suppressed, should the sentencing judge pretend the defendant was only involved in 1 drug load?
Please consider the whole Booker decision, start with the Constitutional issues and not just the Remedial ruling. Being arbitrarily punished for a crime you were charged, tried and acquitted of is the very definition of Double Jeopardy.
DeleteThe preponderance standard is made-up, and incorrect. Here's a short read: https://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_cjmag_24_3_federalsentencing.authcheckdam.pdf
Also, here is 'future Justice' Kavanaugh concurring opinion on the DC Circuit's 2nd review of US v Henry.
https://www.leagle.com/decision/20071382472f3d91011379
Ok I dont think crushing someone just for going to trial is okay. But if someone goes to trial and perjures himself, is it okay to crush him? Isn't that person very different from the one who apologizes up front?
ReplyDeleteWhy are we talking about "crushing" anyone? These are human beings after all. Maybe you're like that AUSA who couldn't work on the weekend trying to get young children out of prison because she had dog sitting responsibilities. Yes if a person commits perjury the judge should take that into account. But please stop talking about having to "crush" someone.
ReplyDeleteUnless we also crush agents who lie, prosecutors and lawyers who lie and judges who lie.
1131
ReplyDeleteI totally agree. Using the word "crushing" is totally inappropriate. Its lewd, lascivious, salacious, outrageous!!!!
It's so funny talking about people going to prison. Haha.
ReplyDelete245 why gotta try to make people feel bad over nothing? You gotta lecture total strangers, for what reason? I suggest you go have a burger and a beer and cheer up
DeleteNelson needs to step up and stop these judges.
ReplyDelete
ReplyDeleteOh, you suggest as a way to comfort myself I eat a defenseless creature? Sick.
@8:46 - yes. But its not "pretending". If you aren't convicted of something, the government should not have the power to punish you for it.
ReplyDeleteSeems simple. I'm not sure why people find it difficult to understand.