That's the title of this piece by Carrisa Byrne Hessick. Read the whole thing. It starts like this:
The Bill of Rights exists to protect individuals. It protects the right to free speech, the right to due process, the right to counsel, and the right to be free from cruel and unusual punishment, just to name a few. If a government official tries to deprive an individual of one of those constitutional rights, then the courts are supposed to intervene.
But that’s not what happens when it comes to one of the most important rights for criminal defendants—the right to a jury trial. Instead of protecting defendants’ right to have their guilt or innocence decided by their peers, judges routinely punish defendants for exercising that right. Specifically, judges regularly impose longer sentences on those defendants who insist on going to trial than on those defendants who plead guilty. A 2018 report shows that, on average, defendants who insist on a trial receive sentences three times longer than those of defendants who plead guilty. This practice is so common that it even has a name: the “trial penalty.”
The executive branch of government has followed the courts’ lead; many prosecutors pressure defendants to bargain away their right to a jury. They will offer defendants concessions—such as dropping some criminal charges or recommending leniency at sentencing—in return for a guilty plea. Plea bargains dominate the system. Only 3 percent of convictions are the result of a trial—the rest come from guilty pleas. As the Supreme Court put it, “Criminal justice today is for the most part a system of pleas, not a system of trials.”Legislators, too, help prosecutors gut the right to a trial by passing new laws with mandatory minimum sentences. Those laws give prosecutors more leverage in plea bargaining because they can offer defendants a deal in which they plead guilty to a lesser charge that doesn’t have a mandatory minimum. In some cases legislators have admitted that they voted for those mandatory minimums in order to give prosecutors greater sway. For example, in 2015, Senator Chuck Grassley successfully blocked efforts to lower the mandatory minimum sentences for federal drug crimes. Grassley opposed changing those sentences, because he thought the harsh drug laws served the “intended goal” of pressuring defendants to cooperate with law enforcement.
The pressure that defendants face can take the form of years in prison. For example, when Mohamed Taher was accused of importing and distributing marijuana in upstate New York, prosecutors offered him a 10-year sentence in return for a guilty plea. Taher turned down the plea bargain, and prosecutors responded by filing new charges carrying a mandatory minimum sentence of 22 years. Taher went to trial, and although he had been unarmed and committed no violent crimes, he was sentenced to 25 years in prison. In effect, Taher received an additional 15 years in jail for insisting on his right to a jury trial.
If government actors tried to put people in jail because they exercised other rights—such as the right to free speech, the right to belong to a church, or the right to vote—judges would quickly step in and stop that practice. Yet not only has the Supreme Court allowed the trial penalty and plea bargaining; it has actually encouraged them.
Some proponents say that the trial penalty doesn’t punish people for exercising their right to a trial; it just grants a benefit (a shorter sentence) to those who are willing to plead guilty. Personally, I don’t see how putting someone in jail for longer because she insisted on her right to a jury trial can be recharacterized as a benefit to some other defendant who pleads guilty. But even if it were a benefit, that shouldn’t make a difference as a constitutional matter. The courts don’t usually let government officials force you to waive your constitutional rights in order to get something in return. If, for example, the federal government told you that you have to give up your right to vote in order to get Social Security benefits, judges would say that was an “unconstitutional condition” and declare the practice unlawful. But judges haven’t extended their unconstitutional-conditions doctrine to plea bargaining or the trial penalty.The reason that the Supreme Court gives for carving out the jury-trial right from its ordinary constitutional rules is simple: resources.
12 comments:
I'm a civil litigator and have never participated in any way in the criminal justice system. I haven't even fought a traffic ticket. So, I have no dog in this fight.
I don't understand, at all, what criminal defense attorneys are talking about about when they discuss the "trial tax." No one is being "put in jail for longer because she insisted on her right to a jury trial." People are going to trial. Some of them are convicted, and when convicted, they are sentenced. That's it. If the sentence is unjust, appeal. Some of the people that go to trail are acquitted, and they don't receive any prison time at all.
On the other hand, criminal defendants who are willing to settle get less prison time than they might have otherwise gotten if convicted. That's what settling is - each side gives something up in exchange for a deal. The defendant is giving up the chance of zero prison in exchange for elimination of the chance of a very high sentence. The state is giving up the chance of getting a very high sentence in exchange for eliminating the risk of no conviction.
Criminal defense attorneys appear to be operating under the assumption that the sentence being offered at the bargain stage is (or should be) the prosecutor's best day. But if that were the case, no one would ever settle. That would be ridiculous. The defendant would be giving up the chance of zero sentence for no benefit.
The author of the article even acknowledges it, but then breezes by it like her words have no meaning. She says of prosecutors, "They will offer defendants concessions—such as dropping some criminal charges or recommending leniency at sentencing—in return for a guilty plea." The notion of "leniency" implies that the defendant gets a lower sentence than they should otherwise receive.
I am 1000 percent against the trial tax. It’s real. It exists ( so I have heard. You have to lose to get a trial tax).
But in those late night boozy debates with prosecutors and judges I have engaged in from time to time at establishments that serve such people , it’s hard to refute the argument that people who plea should get a benefit. In real life context it’s easy. The list of cases where sentences are double and triple enhanced and upward variances are issued are enough to win the factual argument. But the theoretical one is harder to refute.
"If the sentence is unjust, appeal." Yes, I do believe that you're a civil "litigator."
This guy is simply a fool who has no idea how the criminal federal system operates.
"No one is being 'put in jail for longer because she insisted on her right to a jury trial.'"
I suggest you read up on "lack of remorse" enhancements as applied to criminal defendants who exercise their right to trial. Trial by a jury of peers is a constitutional right. When exercising that right is penalized as "displaying a lack of remorse," and sentencing is enhanced on that basis, it is hard to deny that the trial penalty is real.
What you, sir/madam do no know, and have not experienced, is the process of going to trial and losing (something we do not often experience) and then having the prosecutors seek enhancements they never sought (in federal court) which move up the guidelines AND then have them file a sentencing memorandum seeking a sentence HIGHER than the guidelines. This is not about a person who pleas getting the bottom of the guidelines and the person who loses at trial getting the middle or upper end of the guidelines. This is about a systematic attempt to punish people and "send messages" to other defendants and defense attorneys about what happens when you ask for a trial and lose. And woe be the person upon whose back the message is carved. You do not experience prosecutors filing significantly more serious charges when a defendant declines to plead guilty. We do. This is what the trial tax is.
In state court, where guidelines are mostly meaningless, we see every week a prosecutor offer a run of the mill grand theft case probation and then ask for five years prison (the statutory max which is always allowed in state court even if the guidelines call for less time) when a defendant goes to trial and loses.
This is the blatant attack on the sixth amendment. Something we do a good job of fighting in South Florida, but something in other parts of the Country is accepted as standard practice.
The issue is not leniency for a plea. The issue is enhanced punishment for demanding a trial. The first is appropriate; the second is unconscionable, unconstitutional, and frequent and pervasive like Omicron.
You have been so advised, etc., etc.
Well, your client Ms. Maxwell didn't bargain away her right.
She insisted on her right to trial and she had her day in court.
And now she can enjoy the result.
https://nypost.com/2021/12/29/ghislaine-maxwell-convicted-of-sex-trafficking-victims-for-jeffrey-epstein/
In civil, you're just tricked into giving up jury trial rights
by forms requiring arbitration. Just try to get any goods or services without a waiver.
In criminal, the right exists on paper, but you're penalized if you exercise that right.
The level of civility of anonymous comments never fails to impress. At least 12:12 and Rump's comments go to the issue. The "lack of remorse" enhancement does sound like a problem and it is something I will have to think about. Thanks.
@1054 and 1156, kissy face emoji.
s/Real Fake Judge Shummie
Dear Civil lawyer- of course the comments are civil. (Pun intended). This is DOMs blog. Head on over to the wild west and see some sharp elbows thrown. I don't let it go too far, but it goes farther than the pensive, reflective comments herein, made while the authors are presumably taking a break from reading law review articles and the 1998 congressional testimony on the Jenks Act. Standard fare for this blog's readers.
Fellow civil lawyer: I used to do criminal. It seemed that half of the charges filed are legally incorrect, exaggerated, or based on nonexistent evidence. Offering to drop or reduce charges under these circumstances is only offering to remove the risk that a runaway jury will just check all the guilty boxes. Also the bargaining has been distorted, like price fixing, by the vast increases in mandatory sentences over our careers.
DOM, correct me I’m wrong, but I seem to recall that the 2 (or 3) level sentencing reduction for “acceptance of responsibility” was born when they wanted to INCREASE the sentencing level for people who went to trial, and when told that would be unconstitutional, they said fine, we’ll DECREASE it for people who don’t, and everyone thought “problem solved”. No?
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