Matthew T. Mangino
GateHouse Media
July 13, 2018
week the National Association of Criminal
Defense Lawyers (NACDL) issued a report on the “trial penalty.” According to
the report defendants “are being coerced to plead guilty” because the penalty
for exercising their constitutional right to be proven guilty beyond a
reasonable doubt at trial is “simply too high to risk.”
According to the NACDL’s website, the report
identifies and exposes the underlying causes of the decline of the federal
criminal trial and puts forth meaningful, achievable recommendations to address
this crisis.
In the report, NACDL examines sentencing and other
data underlying the fact that, after a 50-year decline, fewer than 3 percent of
federal criminal cases result in a trial.
Former Eastern District of New York Judge John
Gleeson authored a foreword to the report suggesting, “Putting the government
to its proof is a constitutional right, enshrined in the Sixth Amendment; no
one should be required to gamble with years and often decades of their liberty
to exercise it.”
Judge Gleeson is the same judge who told the New
York Times in 2014,“Prosecutors routinely threaten ultraharsh, enhanced
mandatory sentences that no one — not even the prosecutors themselves — thinks
are appropriate.” Judge Gleeson said the way prosecutors use trial penalty, “coerces
guilty pleas and produces sentences so excessively severe they take your breath
away.”
The report contends that trial by jury has been
replaced by a “system of pleas” which diminishes, to the point of obscurity,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 go 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. The report contends that defense lawyers spend most of their time
negotiating guilty pleas rather than ensuring that police and the government
respect the boundaries of the law.
Beyond a reasonable doubt — the bedrock of the
criminal justice system — plays no role in an alarming number of cases. What
this means is that an insignificant number of offenders heading off to state or
federal prison were proven guilty of anything. Sure, those defendants
acknowledged their guilt by choosing to enter a guilty plea; but shouldn’t the
most revered legal system in the world provide something more in terms of
protection for those accused of a crime?
On the other hand, can the criminal justice system
function without plea bargains? The plea bargain, however unpopular or
unseemly, is a much needed tool in the administration of justice. If the plea
bargain were to disappear the criminal courts would grind to a halt. Several
years ago, U.S. Supreme Court Justice Anthony Kennedy said plea bargaining
determines “who goes to jail and for how long. It is not some adjunct to the
criminal justice system. It is the criminal justice system.”
Why shouldn’t there be a trial penalty? What
reasonably prudent defendant, represented by a reasonably competent attorney,
would plead guilty if she knew a conviction at trial would bring the same
penalty as pleading guilty. A defendant would have nothing to lose by going to
trial. The number of trials would increase as would the direct appeals and
collateral challenges. A system that is already overburdened would be pushed to
the limit.
The question is how to balance the fundamental
principles of the U.S. Constitution with the mechanics of the criminal justice
system? The NACDL report may well be a first step in finding that balance.
— Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was
released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.
2 comments:
Court justice Anthony Kennedy is not speaking from the perspective of a defendant who does have everything to lose by fighting for his rights. By not pleading guilty he will carry a burden of heavy expense during the cost of his defense. It may cost him his house or at least second mortgage his savings or at least all his cash. A reasonably prudent defend it must weigh the cost of a defense against the financial burden to his family. Government has very deep pockets much deeper than most citizens..The playing field of defense is not equal, not equal in revenue or resources. Government has at his beck and call all the experts that they want without constraints of cost. Sadly our government can bankrupt individuals intent on truth liberty and justice.
Many defendants are coerced into accepting an Alford Doctrine plea, because they cant afford to go to trial.
After paying a large retainer, the defendant is often told "you can go to trial, it will cost X thousands of dollars" after months of regular court appearances at $500 /hr,
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