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December 10, 2013

"Harsh Sentences Are Killing the Jury Trial"

The title of this post is the headline of this forceful commentary at The Atlantic authored by Andrew Guthrie Ferguson.  Here are lengthy excerpts from a piece that merits a full read:

[T]he Human Rights Watch Report, “An Offer You Can’t Refuse,” confirms that harsh sentencing laws have undermined the American jury system.  On average, 97 percent of defendants plead guilty in federal court.  For crimes that carry a minimum mandatory sentence, going to trial has simply become too risky. As Human Rights Watch reports: “Defendants convicted of drug offenses with mandatory minimum sentences who went to trial received sentences on average 11 years longer than those who pled guilty.”

This risk goes well beyond the traditional trade-offs.  Plea offers have been around since the 1800s and are a well-established and necessary part of criminal practice. But the new mandatory minimums and sentencing enhancements have given federal prosecutors new power to coerce pleas and avoid trials.  A prosecutor can now give a minor drug dealer this choice: “Plead guilty to a reduced charge, or go to trial and risk sentencing that will put you in jail for decades.” It’s not hard to understand why so many defendants — whether innocent, guilty, or not quite as guilty as charged — are taking the first option....

But, there is a secondary cost that is less often discussed but equally damaging to the criminal justice system.  Harsh sentencing laws are killing the jury trial.  And without trials, citizens have no say in the criminal justice system.

It is no accident that the jury trial is the only constitutional right to make a repeated appearance in the original Constitution and the Bill of Rights.  The founding fathers considered criminal juries to be the best mechanism for checking the power of judges and lawyers.  By interposing citizens between a prosecutor and a conviction, the constitutional system protected individual liberty.  This is not to say that colonial juries did not convict people quite regularly, and quite harshly.  But when they did, citizens, not prosecutors, were the ones condemning the law breakers.  It was this local, public participation that gave legitimacy to the larger system.

The modern domination of plea bargains has excised the role of the citizen-juror.  Without trials, citizens do not learn about what is happening in the criminal justice system, and they have no way of taking part in it.  Instead of seeing the consequences firsthand, ordinary Americans must rely on research reports and news stories.  This practice disconnects the people from their own democratically enacted laws, precluding them from evaluating these elective choices.

Unlike trials, plea bargains take place in secret, away from public scrutiny.  They involve negotiations between repeat players in the system — the lawyers.  And for many types of crimes, the bargains are influenced by federal policies, not local ones.  Thus, the jury system — with its emphasis on local authority and public participation — has been replaced with a system as insular as it is broken....

The push for jury trials in the Bill of Rights came from citizens — not judges, politicians, or prosecutors.  In fact, the perceived lack of citizen involvement in the legal system almost derailed the original Constitution, as Anti-Federalists saw it as a threat to their liberty.  Concerned citizens wrote, organized, and protested on behalf of their own role in the justice system.  They won, and that victory can still be read in the Sixth Amendment, which promises in rather emphatic terms that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”

Today, Americans of all political persuasions should embrace a greater role for juries, at least when it comes to federal prosecutions.  After all, Tea Party conservatives believe in local, accountable government, while progressive liberals believe in an equitable system of justice. More jury trials will mean more ordinary people engaged in the legal system — more citizens involved in their government. The result will not only be consistent with the original design of the Constitution but, like the jury system, itself, will encourage more local, democratic, participatory engagement with our government and its policies.

A few recent and older related posts on modern prosecutors and plea practices:

December 10, 2013 at 12:43 PM | Permalink


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True especially if an affirmative defense is available.

Posted by: Just Plain Jim (Just Another Guy) | Dec 10, 2013 12:46:36 PM

" Harsh sentencing laws are killing the jury trial. " Very true.

Posted by: Michael R. Levine | Dec 10, 2013 1:05:32 PM

What is killing the jury trial is a refusal to fund enough judges, prosecutors, and public defenders to potentially try 80% of the cases.

Given the lack of resources to try the majority of the cases, prosecutors (with some pressure from judges who want to keep their backlog of cases to a minimum) make offers allowing defendants to plead to charges that are less serious than the actual offense. Unless you want to eliminate the distinction between greater and lesser offenses (and my experience is that defense attorneys want more lesser-includeds not less), then there is always the possibility of an offer that is too good for a defendant to refuse.

If you set up a system that needs people to plead to function, then you will get plea offers that are drastically better than real offense sentencing. The problem is not necessarily that the penalties for the actual offense are inappropriate, but that prosecutors are willing to (feel that they have to) make offers that are significantly better than the penalty required by the actual offense in order to move "less significant" cases out of the way for to permit trials of those cases that "need" to be tried.

(The need to move cases is separate from any uncertainty hedge built into plea offers in a close case. e.g. If the defendant has a potentially credible alibi witness, is the offer the same or substantially lower than if he had no defense. If you want trials, than there should be no noticeable difference in the offers, but that is not the way it works in the real world and defense attorneys would be upset if a colorable defense did not win them some concession in the proposed plea offer.)

Posted by: tmm | Dec 10, 2013 2:12:56 PM

Higher proportion of repeat/guilty offenders.
[a more entrenched criminal class]

Posted by: Adamakis | Dec 10, 2013 2:17:52 PM

Once more, tmm strikes home.

In their eagerness to paint prosecutors as the devil and themselves as saintly and lily-white innocents, defendants put the blame for the dwindling number of jury trials on sentencing laws.

Anyone who has actually had a criminal practice for any length of time knows how "innocent" they are.

As tmm suggests, maybe we should stop to consider the possibility that it's not that sentences are so high, but that, on account of squeezed funding and the need simply to process a huge number of cases with a bundle more coming in the door tomorrow, prosecutors are offering bargain-basement deals. Defendants accept these deals, not because there's a gun to their heads, but for the same reason ANY normal person rushes off to grab bargain basement deals.

Wonder why defendants are flocking to scoop up plea bargains? It's not that hard: they actually are BARGAINS, in the old-fashioned, look-what-a-deal-I-got sense.

Posted by: Bill Otis | Dec 10, 2013 2:40:51 PM

I agree with this article 100%.

Posted by: Thinkaboutit | Dec 10, 2013 6:45:04 PM

Bill, greetings! You write "In their eagerness to paint prosecutors as the devil and themselves as saintly and lily-white innocents, defendants put the blame for the dwindling number of jury trials on sentencing laws.Anyone who has actually had a criminal practice for any length of time knows how "innocent" they are.:

Bill, I have "actually had a criminal practice" for more than 35 years. And, my good friend, I can tell you that mandatory sentencing laws are indeed a significant cause for the dwindling number of jury trials. Thirty years ago, I would try cases in federal court fairly frequently; now very rarely. The downside cost is just too great-usually a 5 or 10 year mandatory minimum-and I must urge defendants, even those who protest their innocence, to consider the draconian consequences of a guilty verdict, as opposed to accepting a plea agreement. And while I like like think we can trust a jury to do the right thing and actually acquit an innocent person, can I really advise a client to take the risk? Today, the presumption of innocence, regardless of any instruction to the contrary, is usually a presumption of guilt. See the case of Michael Morton

That's my two cents.

Best regards

Posted by: Michael R. Levine | Dec 10, 2013 11:01:37 PM

I have talked somewhat about my Federal Trial in 2011---where I was accused of buying a boat (among other similar charges...and yes, I DID buy a boat...which of course is NOT usually a crime)..but buying a boat could conceivably earn me a 20 year sentence. It all came down to "what did I know?" . This was the most frustrating experience for me. ---Recent entries have talked about the lack of trials, the trial penalty, etc. I have been in that position--the choice to plead, or to go to trial. The downside, as pointed out above, could be huge.
But I guess I did my part in doing what the article suggests: "Today, Americans of all political persuasions should embrace a greater role for juries, at least when it comes to federal prosecutions"
I was one of the 3% of Federal defendants who did not plead and gave the jury their day in court (actually 3 full weeks of days!)--
Perhaps to encourage more trials, there should be a random lottery of plea deal cases that would be Required to go to trial..(with the sentence/charges not to exceed the plea deal)--If prosecutors and defendants knew that a few of even the pleaded cases might have to go to trial--there may be more thoughtfulness on both sides. The roll of the dice for a possible acquittal would keep all parties on their toes--and as the article suggests, have a few more jury trials where the jury could see the strength of the case.

Posted by: folly | Dec 11, 2013 9:04:20 AM

Thanks for an interesting post .

The writer of the post , needs to ask himself a very simple question :

Should all defenders get the best qualified and maximized representation , would they plead guilty ?? would they sign a plea bargain ??

The answer generally speaking , would be - hell not !! They would fight until the end !!

The simple truth is - that they can't afford a pit bull lawyer , who would give such fight until the last bit of it . Money !! simply money and resources needed !!

A determined and skilful lawyer , can shake and re- shake the hell out of a case , and reverse day to night .

Trust me on that !! But when a lawyer , is limited in his resources , he must notify the defendant that chances are slim !!

This is the core of the issue !!

Thanks ......

Posted by: el roam | Dec 11, 2013 10:59:36 AM

Michael R. Levine --

Good to see you posting again. I always enjoy what you have to say.

I would happily testify under oath that what tells the tale in the decision whether to plead is the strength of the evidence. Sure, there are marginal cases, but there are marginal cases in civil law and, indeed, in every decision a person makes in his life.

Left to my own devices, I would like to see every case go to trial. The current bargains-uber-alles method is no favorite of mine, because it rewards lazy lawyering on both sides, and delivers dumbed-down justice.

On the other hand, if I were back in the USAO and I DID insist on taking every case to trial, the local defense bar would tar and feather me, and demand to know why I was so much of a tough guy that I wouldn't bargain like every other prosecutor does!

Posted by: Bill Otis | Dec 11, 2013 11:32:45 AM

Dear bloger ,

It seems ( or actually it is so ...) that my name ( el roam ) has been replaced by another name ( folly) . Means actually that : my comment is on his name , and his on mine .......

Please be kind to switch it back . ( posted on dec 11 )

Thanks ......

Posted by: el roam | Dec 11, 2013 12:44:55 PM

This is the silliest argument on this blog.

The defendant is completely in charge. The prosecutor cannot compel the defense to make a deal.

Choose the deal or not. The reason there are so few jury trials is simply because the defendants are almost always guilty. What they want is a no risk, high reward trial option. Find another way to get your billable hours.

Posted by: TarlsQtr | Dec 11, 2013 12:52:25 PM

TarlsQtr you write "The reason there are so few jury trials is simply because the defendants are almost always guilty." You say "almost always." Do you care at all if even some innocent people plead guilty to avoid the consequences of a guilty verdict??

Posted by: anon | Dec 11, 2013 2:43:04 PM

Bill, the issue isn't whether to do away with plea agreements. It's whether it's acceptable that citizens who believe they are innocent/wrongly accused nonetheless feel compelled to take plea deals because prosecutors have the power/inclination to make going to trial seem like an irrational risk.

In a case I'm familiar with three young men who initially insisted on fighting fraud charges ultimately accepted plea deals. A number of factors figured in their decision including defense costs (upwards of $240,000 each) and tactics prosecutors use to pit co-defendants against each other -- e.g. if one holds out for trial, the others get progressively sweeter deals until they turn on the holdout in exchange for testimony that makes him appear more culpable at trial. But the deciding factor was the trial penalty...the plausible threat by prosecutors that each of them faced up to 30 years in prison if they somehow lost at trial.

The three threatened with 30-year prison terms each ended up doing six months probation (no prison time)...in addition, of course, to the life-long stigma of a felony conviction.

Bill likes to say the cases he saw/handled as a prosecutor were air-tight and I believe he believes what he's saying. Yet the only meaningful way to determine the strength of some cases is to put them to the test of a trial. Too often the trial penalty looks more like a tool of tyranny than an instrument of justice.

Posted by: John K | Dec 11, 2013 6:20:40 PM

John K --

You omit the key piece: Did the three men do it or not?

I'm not talking about any subjective chimera, like whether they "believe" they did (or didn't) do it. I'm not talking about some fancy psychiatric defense, like, "I did the acts, but I had PTSD." I'm talking about objective evidence of behavior.

Did they do it or not?

Posted by: Bill Otis | Dec 11, 2013 7:43:22 PM

Consider the historical child sexual molestation case. Little Susie says Uncle Billy ten years ago when she was nine molested her. When Uncle Billy is questioned by the police, he denies it and says nothing at all that can be used for impeachment.

The case is tried to a jury. The judge, prosecutor, and defense attorney do their jobs. The jury does its job and decides.

Whether the verdict is guilty or not guilty, does anyone other than Susie and Billy know for a fact whether he did it or not?

Correctly or incorrectly, all the verdict did was publicly and finally settle the issue, both of which are good things. But it did not find the truth, notwithstanding how loudly the allies of the one vindicated by the verdict will claim otherwise.

Posted by: Fred | Dec 11, 2013 10:18:03 PM

When Bill addresses John K. in a "Did they do it?" question on a fraud case--that is where a true question comes in. My co-defendants in my Federal trial were charged with fraud (I was not). There is no question that they were "associated" with the business, that was LATER found to be possibly a fraud...but with many business dealings there is a question of who knew what, and when. Sometimes there is a point where a legitimate business tips over into an illigetimate one, and the point is not so clear
when it happens to those who were involved...but if your name comes up a, you CAN suffer from the spill-over effect (try getting a judge to sever you from that "possibility"--it's impossible)
What I explain to my friends about my spouse's conviction at a Federal fraud trial...I ask them to picture a murder trial...which through media (news, movies, etc)--they seem to be most familiar with. The jury is faced with a binary choice..."yes, this person did it"---as one choice...but the "no" choice is NOT just a belief that person did NOT do it...but rather did the defense attorney convince the jury that it might have been somebody else? that the evidence was circumstantial and therefore not proof beyond a reasonable doubt?, etc. There seems to be a good chance that the binary choice might get you an acquittal (OJ Simpson? etc)
With the fraud case, circumstantial evidence (on review at appeal) can lead the appeals court to conclude that the jury could INFER that the defendant's guilt stands (the possibility of INFERENCE seems in conflict to Me with BEYOND A REASONABLE DOUBT)--couple this with complicated business dealings with lots of moving parts and an undeniable association (not necessarily with the crime, but with the business)...and there seems to be a high probability of conviction in Federal fraud trials.
If you are associated, you could be convicted on the perception that you should have figured it out and stopped it...and because you didn't, you will be held responsible for that. Couple this with the factor creep of allowable sentences (look at fraud cases---many are PSR recommendation of Life, often because of "enhancements")--and any sentence the judge wants to recommend will stand as reasonable.(Rubashkin being a recent example) When my spouse went to trial---it could not be imagined that a recommendation of Life would actually apply--...but it did, when a judge can "find" factors (try getting out of "sophisticated"--it applies to Everything!)...and the harsh sentence received? looking back would there be a plea? in spite of the belief of innocence? quite possibly...when contemplating the long sentence that is now underway---not because of the belief still, but as a tradeoff for the POSSIBILITY of such punishment (this post is My view--not necessarily spouse's...who knows who's reading this while direct appeal still underway?)

Posted by: folly | Dec 12, 2013 7:53:42 AM

folly --

John K. was talking about three men who got convicted of fraud and given very light sentences (straight probation).

In assessing whether the outcome was just, however, John K. omitted the key fact: Did they do it?

When a person gets convicted of something he actually did, why should I or anyone be upset? The omission to say whether or not they did it is central. I don't know how anyone could evaluate John K.'s story without knowing that.

As to the more general proposition that we can never really "know" anything -- baloney. Every person who reads this blog draws hundreds of conclusions each day about the truths in the world around him. Do we have enough toothpaste, or do I need to go to the store? Is the furnace working? Can I cross the street, or is a car coming? Can I safely leave the keys to my car in my desk while I go to lunch?

These questions, like the question, "Did the defendant stick the incriminating internal audit in the shredder?" have definite answers. The world simply is not the dream-state, solipsistic fog that defense lawyers like to portray.

Some truths are harder to find out than others, sure, and human beings can make mistakes. But the idea that truth is unknowable is a fraud, as the everyday experience of life proves.

P.S. You are literally living proof of the falsity of the proposition that the harshness of potential sentences "forces" defendants to plead.

Posted by: Bill Otis | Dec 12, 2013 9:17:41 AM

John K raises an issue that always gets mentioned but rarely appreciated: the cost of defense. Assuming you are not indigent, you will have to pay the bill, and even if you don't hire the cream of the white collar defense world, it will likely bankrupt you. White collar cases are particularly expensive and that's why only the super rich go to trial. Mark Cuban just beat the SEC, Roger Clemens and John Edwards won their trials, but all three had the means to fight. In my case, I faced not only the threat of a prison term I can't believe the prosecutors seriously believe was warranted, but financial ruin. And that's what happened. The first jury hung so I had to pay for two trials. Even if I won the second trial, I would have been in debt for the rest of of my life. Tom DeLay was innocent, but it took him several million dollars to establish that. For a family facing an indictment, the money involved is a huge consideration. I wish I could subscribe to Bill's idea that all innocent people can and should plead not guilty, but it is so much more difficult than that when other people's lives are at stake.

Posted by: Thinkaboutit | Dec 12, 2013 9:26:23 AM

So did Uncle Billy do it or not?

I have both prosecuted and defended cases before a jury identical to the Susie-Billy scenario I described above. These cases are not uncommon in state court. All the verdict does is settle the issue. Whether an outsider agrees or disagrees with the verdict in a case like this is determined by the outsider's confirmatory biases.

I picked this scenario because it is an extreme example of the ambiguity that exists in many, but not all, cases tried to a jury. Not every case tried to a jury has as much ambiguity as a Susie-Billy case. And the existence of ambiguity does not mean that a jury can't and doesn't get it right.

Anyone who tries cases to a jury regularly understands that ambiguities of one sort of another exist in nearly every case. And anyone who tries cases to a jury regularly understands that in order to effectively represent their side of the case these ambiguities have to be identified and addressed.

It is easy to ignore the ambiguities post-verdict, particularly if the verdict supports one's confirmatory biases, which has nothing to do with whether the jury got it right. After all the jury has spoken. High fives, all around.

There is no ambiguity with guilty pleas, and this is good. But I am seriously troubled by the certainty some people, who aren't lawyers or who are lawyers but haven't tried cases regularly to a jury, have that every defendant is guilty.

So did Uncle Billy do it or not?

Posted by: Fred | Dec 12, 2013 11:07:30 AM

Did they do it? You tell me. It was a RICO case...meaning the vagaries of "derivative crimes" and the sweeping nature of the charges (wire fraud and money laundering) can easily be stretched to cover virtually any conduct the authorities allege to be part of a corrupt "pattern and practice."

The essence of the charges against them was that they omitted the source of down payment on mortgage-loan applications ("material omission")? Did they do that? Yes...just as they'd been instructed to do by the chosen "victim" in their case -- the major investment banking company that funded the loans. The bank had urged my three guys (and no doubt hundreds of other loan originators) to omit information that might needlessly raise red flags in its automated underwriting process. That instruction didn't seem all that sinister to the defendants at the time. The loans being processed were classified as sub-A (sub-prime, liars' loans). The bank told them to limit borrower information to credit scores and debt ratios. However, after it had the completed sub-A loan docs in hand, the bank on its own upgraded them to A loans...presumably to make them more attractive for bundling and marketing on Wall Street.

Had the case gone to trial, the jury would have learned that in the same year the three men's cases were litigated, the victim bank paid $44 million in a settlement with the government after admitting its employees had "forged" underwriters' signatures to "thousands of loan documents in at least four states."

But back to your simplistic question, Bill. Yes, the three men complied with the lender's request by omitting source of down payment. Yes, they then faxed those loan docs across state lines (wire fraud). Yes, they deposited their commission checks in their businesses' bank accounts (money laundering).

Of course, the FBI and prosecutors ignored the deceptive, destructive behavior of the lending banks (except for the token fine) and came down like a hammer on low-level commission-earning guys like the ones I wrote about. None of the rogue, reckless, conniving bankers has yet to be prosecuted for their role in the housing-market collapse.

BTW the government initially trotted out a lurid, elaborate $17 million organized-crime story that identified my three guys as little fish and promised additional prosecutions against officials of more than a dozen businesses and their lawyers. None was subsequently prosecuted.

Bill, I have no illusions any of this will persuade you the three were treated unjustly...or that leveraging the threat of a 30-year prison sentence to secure a conviction and probationary sentence might be excessive.

Posted by: John K | Dec 12, 2013 4:01:49 PM

I agree with Mr. Levine's comment above. I've had several defendants over the years adamantly professing their innocence and determined to try the case even though a very generous plea offer was on the table. Given the mandatory mimimums in play, my duty was to explain the draconian consequences of a guilty verdict on them and their families. I was personally convinced of these clients' innocence, but nevertheless felt duty bound to outline risks of conviction particularly given the "presumption of guilt" that is now persuasive among the public. Mandatory minimums and draconian guidelines have indeed diminished the number of jury trials.

Posted by: anon13 | Dec 12, 2013 9:42:54 PM

anon13 --

"I've had several defendants over the years adamantly professing their innocence and determined to try the case even though a very generous plea offer was on the table."

Adamant, and utterly false, protestations of innocence are the stock-in-trade of defense lawyering. The only people lied to more fervently, and frequently, than prosecutors are defense lawyers. By their clients, of course.

I have no doubt they were afraid to go to trial. They were afraid because the truth outs. It is that prospect that had them spooked, as I suspect you know at some level.

Posted by: Bill Otis | Dec 16, 2013 2:14:15 AM

Fred --

Your story is curious and, more to the point, wildly atypical of the sort of evidence that gets presented in felony cases. You posit a nine year-old abuse victim called upon to recount the events ten years later.

OK, what percentage of felony trials depend, and depend solely, on the perceptions of a nine year-old? And how many concern a single tranche of evidence a decade old?

Right. The correct answer is practically none. So your "example" exemplifies virtually nothing (except that you're decently good at fiction).

But just to add a few things to the story that you omitted (now why was that?): The government bears the BOP BRD; the defendant walks unless there is unanimous agreement that this standard has been met; the defense lawyer will make sure the jury has lots of members with kids, and who thus know that kids make things up; the defense will also have called experts to testify about false memories, even if the story isn't exactly made up; the defense will point to the lack of any contemporaneous accusation by the girl, the lack of physical evidence, and the lack of a fall-off in grades or social interactions or other things that are characteristic signs of sex abuse; it will also point to coaching by parents/teachers/counselors/peers who encourage this sort of stuff; it will ask the girl if she has ever told a lie (waiting to pounce on a denial and elaborate for hours on an affirmance); it will point to the recent feud (real or concocted) between the parents and Uncle Billy and the motive the kid has to provide ammunition; etc., etc.

With all that, the chances of a false (or for that matter, a true) determination of guilt are quite low.

Yes, quite low isn't zero. But no system on earth gets verdicts right 100% of the time, error being endemic in ANY human enterprise. Complaining about that is like complaining that the sun rises in the East.

This is not new, it is not avoidable, and it is not a refutation that in the overwhelming majority of legal cases (and elsewhere), factual truth is ascertainable with a very high degree of confidence.

Posted by: Bill Otis | Dec 16, 2013 2:43:41 AM

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