Latest (double) issue of FSR covers "The Tyranny of the Trial Penalty": An introduction

I am extraordinarily excited to be able to report the exciting news that the latest extraordinary issue of the Federal Sentencing Reporter is now fully available on-line at this link.  The cover page from the Issue, which lists the 16(!) original pieces on various aspects of "The Trial Penalty," can be accessed here.

This issue of FSR emerges from the publication of a great report last year by the National Association of Criminal Defense Lawyers (NACDL) titled "The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It" (blogged here).  Folks at FSR contacted the folks at NACDL to explore the idea of developing a set of new commentaries using "The Trial Penalty" report as a springboard.

Wonderfully, Norman Reimer, executive director of NACDL, working with his colleague Martín Sabelli, NACDL's second vice president, worked tirelessly to solicit an outstanding array of original articles for this issue.  They were so productive, the project became a special FSR double issue so that a lengthy reprint of the "The Trial Penalty" report could appear together with all the terrific solicited commentaries addressing the importance of criminal trials and their disappearance from historical, practical, empirical, and international perspectives.

As the title of this post hints, I think this new FSR double issue merits a series of posts to highlight all of its terrific contents.  So here I will start by recommending the issue's terrific introduction authored by Norman Reimer and Martín Sabelli, which is fully titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  Here is its opening paragraphs:

Every day, in virtually every criminal court throughout the nation, people plead guilty solely as a consequence of a prosecutor’s threat that they will receive an exponentially greater post-trial sentence compared to the pre-trial offer.  The process is simple and the logic inexorable: the prosecutor conveys a settlement offer to the defense attorney–very often at the outset of the case before the defense has investigated or received discovery–threatening a post-trial sentence much greater than the pre-trial offer.  The defense attorney–often before having had an opportunity to establish a relationship with the client–conveys that offer to her client who must choose between the opportunity and right to defend and the risk of adding years to the sentence if not decades after trial.  That differential is known as the trial penalty, and this scene unfolds routinely in courtrooms across the country as if the Framers had intended this legalized coercion to be the fulcrum of the criminal justice system.

The Framers did not so intend. The Framers, surprisingly for a modern reader, considered jury trials to be every bit as important as the right to cast votes for our representatives. In fact, John Adams declared that ‘‘[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 reflects the strength of his view — a view shared by his contemporaries and the Framers — that the right to trial by jury protects the liberties of all individuals, not just the accused.  The Framers imagined a process in which the accused, assisted by counsel, evaluated the charges, received the evidence, and elected to exercise or not exercise the right to compel the government to prove guilt beyond a reasonable doubt.