"I've read transcripts in which judges say things like, if you plead before trial, you get mercy; after trial, you get justice," said Martín Sabelli, past president of the National Association of Criminal Defense Lawyers, told NPR. "That's a threat."
Sabelli said the system is most harsh on Black and
brown people, and low-income people — those who tend to have the least power.
"Every day, this results in the virtual
extinction of criminal trials from our criminal legal landscape and converts
our courtrooms into these ... assembly lines where people are just being
brought in one after another in these red, yellow, green, black
jumpsuits," he said.
Sabelli and a group of other legal and civil
liberties advocates are working to focus public attention on the trial penalty, which they
say has contributed to the near disappearance of criminal trials in many
In the federal system, about
98% of cases end in plea deals. In big states like Texas and New York, the
numbers are similar. And in one county in Arizona, there were no criminal
trials at all from 2010 to 2012, according
to a recent report from the American Bar Association.
The U.S. Constitution guarantees that people accused
of crimes have the right to a trial. But in recent years, trials have become an
"That's not what justice should be about,"
said Miriam Krinsky, a former prosecutor who now directs the reform-minded
group Fair and Just Prosecution. "You know, to the extent that there
should be some kind of an incentive to plead early and not put survivors or
others through the process and the trauma of going to trial, what does that
look like? And is something far more modest the right starting point, as
opposed to that draconian, three-time increase in a hammer over somebody's
Cully Stimson is another former prosecutor and a
senior legal fellow at the conservative Heritage Foundation, where he writes
about crime and justice. Stimson said the system works pretty well as it is.
"The fact that many cases result in a guilty
plea is not a problem, because in many cases — and I've been a criminal defense
attorney — the person is guilty and they're taking advantage of a plea deal
that subjects them to less time," he said. "So I don't think there is
a trial penalty. I think it's a trial privilege."
Stimson said there are lots of good reasons for
defense lawyers to encourage their clients to plead guilty. For example, the
clients may have a prior criminal record, and a plea bargain may be their only
way to win a shorter prison term.
But the advocates pressing for change say
prosecutors have too much power to stack up charges against defendants and
create a situation where they face so much prison time that even innocent
people feel pressure to strike plea deals.
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