NACDL Report on Diminishing Number of Criminal Trials and Corrosive Effects (8/15/18)

The National Association of Criminal Defense Lawyers recently released a report titled: THE TRIAL PENALTY:The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (2018).  The report may be downloaded here.

The Executive Summary is (footnotes and blurbs omitted):

EXECUTIVE SUMMARY 

The Scope of the Problem 

In the words of John Adams, “[r]epresentative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.” President Adams’ colorful language reflected the strength of his view — a view shared by his  contemporaries — that the right to trial by jury protects our liberties every bit as much the right to cast votes for our representatives. 

To the modern ear, this view comes as a surprise. While Americans celebrate the notion of representative government just as much now as they did in the time of the Framers, few still think of trial by jury as a bulwark against the arbitrary and capricious use of government power. Why does this notion seem so surprising to the modern observer? What has become of the sense — so natural for Mr. Adams and his contemporaries — that trial by jury protects freedom? 

The answer, is simple: over the last fifty years, trial by jury has declined at an ever-increasing rate to the point that this institution now occurs in less than 3% of state and federal criminal cases. Trial by jury has been replaced by a “system of [guilty] pleas” which diminishes, to the point of obscurity, the role that the Framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system. 

Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt, defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law including the proof beyond a reasonable doubt standard, and judges dedicate their time to administering plea allocutions rather than evaluating the constitutional and legal aspects of the government’s case and police conduct. Equally important, the public rarely exercises the oversight function envisioned by the Framers and inherent in jury service. Further, the pressure to plead guilty, and plead early, is often accompanied by a requirement that accused persons waive many valuable rights, including the right to challenge unlawfully procured evidence and the right to appeal issues which have an impact not only in their cases but also for society at large.  

While scholars still debate the theoretical justifications for and against plea bargaining, neither the government nor the public have exhibited any significant resistance to its rise to dominance. This is not altogether surprising given the ostensible advantages of plea bargaining. Trials are lengthy, expensive processes that can leave victims waiting for years to obtain restitution and closure. Plea bargaining presents a seemingly reasonable alternative that promotes efficiency while providing defendants an opportunity for leniency and putting them on an early road to rehabilitation. Conventional wisdom understandably views this as a win/win solution, particularly because the Constitution affords defendants the right to choose to go to trial if they wish to do so. 

For most, however, the right to a trial is a choice in name only. Empirical studies and exoneration data have revealed that the pressures defendants face in the plea bargaining process are so strong even innocent people can be convinced to plead guilty to crimes they did not commit. This disturbing figure casts doubt on the assumption that defendants who plead guilty do so voluntarily. 

As this Report illustrates, there is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk. This “trial penalty” results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial. If there were no discrepancy at all, there would be far less incentive for defendants to plead guilty. But the gap between post-trial and post-plea sentences can be so wide, it becomes an overwhelming influence in a defendant’s consideration of a plea deal. When a prosecutor offers to reduce a multi-decade prison sentence to a number of years — from 30 years to 5 years, for example — any choice the defendant had in the matter is all but eliminated. Although comprehensive data regarding plea offers remains largely unavailable, anecdotal evidence suggests that offers of this nature are common. Prosecutors enjoy enormous discretion to force a defendant’s hand. While some may view prosecutors’ actions as generous, their willingness to reduce sentences so drastically raises serious doubt that the initial sentences were reasonable in the first place. 

Indeed, the ability of prosecutors to threaten exorbitant sentences permeates the federal criminal justice system and has spurred a mounting wave of criticism in recent years. In 2013, Human Rights Watch published a report detailing the ways federal prosecutors use the sentencing laws to coerce federal drug defendants to plead guilty. Building off of that work, NACDL has conducted its own study to examine the structures and mechanisms in the federal system that perpetuate the trial penalty in criminal cases across the board. In particular, NACDL canvassed previous scholarly research, judicial precedent and commentary, the history of and recent amendments to federal sentencing statutes and guidelines, and data and statistical studies published by the U.S. Sentencing Commission. NACDL also conducted a survey, interviewed defense counsel, and examined the case files of dozens of federal criminal defendants to identify real world instances of the trial penalty at play. The following report is the result of those efforts. 

As explained in greater detail below, the trial penalty cannot be attributed to any single cause. Rather, many shortcomings across the criminal justice system combine to perpetuate this injustice. Prosecutors — who serve in an adversarial role and are personally incentivized to achieve speedy convictions — enjoy unbridled discretion and informational advantages at the preliminary stages of criminal proceedings that have a significant impact on the sentence that will ultimately be imposed. That influence is exacerbated by the federal Sentencing Guidelines, which call for formulaic calculations that are ripe for manipulation, that often result in sentences far out of proportion with a defendant’s actual culpability, and that deliberately reward defendants who agree to plead guilty and do so quickly. Although judges nominally retain discretion to decide a defendant’s ultimate sentence, that discretion is frequently hampered by mandatory minimum statutory penalties which are triggered solely by the prosecutor’s charging decisions. In addition, many judges are reticent to meaningfully exert their discretion, preferring to cling to the tidy Guidelines calculations, which are virtually immune from reversal on appeal. As a result, when the rare defendant insists on his right to a trial, these forces converge to inflict excruciating penalties. Those penalties then serve as a warning to the next defendant who will know his only hope of obtaining a fair sentence is to forego the right to a trial. 

Criminal defense lawyers have long known that trials are vanishing. This is an unacceptable development, and not just because the art of trying a case is atrophying. The virtual elimination of the option of taking a case to trial has so thoroughly tipped the scales of justice against the accused that the danger of government overreach is ever-present. And on a human level, for the defense attorney there is no more heartwrenching task that explaining to client who very likely may be innocent that they must seriously consider pleading guilty or risk the utter devastation of the remainder of their life with incalculable impacts on family.  

This Report documents the corrosive effect of the trial penalty on the system of criminal justice. It examines the relationship between the trial penalty and numerous characteristics of modern criminal justice including virtually unfettered prosecutorial charging discretion,5 mandatory minimum sentencing statutes, and the federal Sentencing Guidelines. The Report highlights specific cases to demonstrate that individuals are being punished simply for holding the government to its burden of proof and, in some cases, that the trial penalty has coerced innocent individuals, later exonerated, to plead guilty for fear of devastating long posttrial sentences. 

In calling out these mechanisms that perpetuate the trial penalty, NACDL does not intend to censure any particular participants or constituencies. Nor is the goal of this report to denounce or abolish plea bargaining. Instead, in identifying the flaws in the plea bargaining and sentencing processes, NACDL seeks to provoke a larger conversation on how those processes can be reformed to reduce the prevalence of coercion. To that end, NACDL offers a series of recommendations for specific reform in various areas of the criminal justice process in the hope that, by enacting these reforms, criminal defendants can be truly free to choose to exercise their constitutional rights. 

A system that insulates a prosecution from the searing light of a public trial invites the misuse and abuse of the criminal law. The notion that the exercise of a fundamental constitutional right should be so burdened contravenes a core value that is at the heart of a democracy founded upon the concept that the power of government should be limited. Accused persons should not have to gamble with years of their lives in order to have their day in court. No one should be subjected to geometrically increased punishment merely for putting the government to its proof. And no government should be able to wield the power to prosecute and condemn in a process that is rigged so that it virtually never has to show its hand. A system that has effectively consigned the right to a trial to the dustbin of history should not be tolerated. 

Finally, while this report focuses on federal criminal practice, it is well-established that the trial penalty is just as prevalent in state and local criminal prosecutions, and that the virtual extinction of jury trials is just as prevalent in these jurisdictions. NACDL hopes to partner with its many affiliates and other criminal justice reform groups to tackle the roots causes of the trial penalty and restore the balance essential to a fair and just criminal justice system. 

The Impact of the Trial Penalty 

The trial penalty has profoundly altered a criminal justice system designed as an adversarial battle between the government and defense lawyers, presided over by a judge, with a jury as the final arbiter of guilt.  

• The trial penalty has made the government the most powerful player in the criminal justice system. Although the defendant is cloaked in the presumption of innocence and the prosecutor theoretically has the burden of proof, as the Report makes clear, the mere decision to charge triggers a domino effect making a guilty plea the only rational choice in most cases. And as trials and hearings decline, so too does government accountability. Government mistakes and misconduct are rarely uncovered, or are simply resolved in a more favorable plea bargain. Moreover, the ease of conviction can encourage sloppiness, and a diminution of the government’s obligation to fairness. u Defense counsel, whose role is to ensure that “all other rights of the accused are protected,” spend most of their time negotiating plea bargains and drafting sentencing memoranda. As a result of the trial penalty, not only are defense counsel trying fewer cases, they are frequently forced to settle cases before meaningful investigation and litigation of the government’s case. 
• The prevalence of guilty pleas sidelines judges from their traditional supervisory role. Rather than scrutinizing the sufficiency and legality of the government’s case, they are reduced to rubberstamping plea bargains. If a mandatory minimum sentencing statute controls, judges do not even exercise their traditional sentencing role.
• The decline in the number of trials, and the litigation that precedes them, also causes advocacy skills to atrophy on both sides of the adversarial system. The federal courthouse in Manhattan, for example, held only 50 trials in 2015. Many defense lawyers and prosecutors have not tried cases in years, and many of the federal judges have similarly not presided over a trial in years. As one judge summed up the impact of the vanishing trial: “The entire system loses an edge and . . . the quality of justice in our courthouses has suffered as a result.”
• The capacity of the government to process large caseloads without hearings or trials has resulted in an exponential increase in incarceration. Wreaking devastation in lives and communities, and selectively concentrated among the poor and people of color, the nation’s mass incarceration has rightly been described as “the great unappreciated civil rights issue of our time.”
• Exoneration research has revealed one of the most tragic aspects of the criminal justice system: The pressure defendants face to plead guilty can even cause innocent people to plead guilty. Of the 354 individuals exonerated by DNA analysis, 11% had pled guilty to crimes they did not commit, and the National Registry of Exonerations has identified 359 exonerees who pled guilty. Additionally, the potential for such wrongful convictions is compounded in bargained-for-justice because, besides a trial, the defendant gives up many protections designed to ensure that no innocent defendant faces punishment.
• Finally, the decline in jury trials deprives society of an important community check on excesses of criminal justice system. Juries not only determine whether the prosecutors have met their high burden. They also apply their own sense of fair play — frequently convicting of lesser-included offenses or even acquitting entirely where the prosecution is perceived as over-reaching. They are a reminder that the government is not omnipotent, but instead remains subject to the will of the people. As the U.S. criminal justice system churns some 11 million people through its courtroom doors every year, trial by jury actively engage the public in this critical process of democracy.