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July 31, 2019

Two more open access articles from FSR issue on "The Tyranny of the Trial Penalty"

In this post last month, I highlighted the publication of the latest extraordinary (double) issue of the Federal Sentencing Reporter titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  As mentioned before, this FSR issue includes 16(!) original pieces on various aspects of "The Trial Penalty," and it is fully available on-line at this link

As also mentioned before, though a full subscription to FSR is needed for full on-line access to all FSR content, the University of California Press has graciously agreed to make various articles from this special issue available to all on-line for a limited period.  Valuably, the issue's terrific introduction authored by Norman Reimer, executive director of NACDL, and his colleague Martín Sabelli, NACDL's second vice president, is to remain freely available for an extended period of time.  And now I see that these two additional pieces are now accessible to all (with a few paragraphs quoted here):

The “Virtual Extinction” of Criminal Trials: A Lawyer’s View from the Well of the Court by Frederick P. Hafetz

Twenty-five years earlier, nearly 20 percent of defendants in the federal criminal justice system went to trial.  By the time the Lorenzos were indicted in 2004, only 4 percent went to trial. That number has since decreased even further so that now less than 3 percent go to trial.  Since the mid-1980s, as Manhattan federal judge Jed Rakoff states, federal criminal trials have undergone a “virtual extinction.”

This dramatic decline in the frequency of criminal trials in the federal system is mirrored in the state system as well.  While data in the state criminal justice systems on the number of trials is not maintained as comprehensively as it is in the federal system, available data and studies show a similar pattern of decline, although not as sharp as in the federal system.  In New York, California, and Illinois, for example, the percentage of defendants going to trial is less than-one half of what it was thirty years ago.

Why the Founders Cherished the Jury by Vikrant P. Reddy and R. Jordan Richardson

You would be hard-pressed to find a Constitutional issue that garnered more agreement among the Founders than the right to trial by jury.  As historian William Nelson notes, “For Americans after the Revolution, as well as before, the right to trial by jury was probably the most valued of all civil rights.”  Writing in 1788, Alexander Hamilton observed that among the “friends and adversaries of the plan of the [Constitutional] convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.” Hamilton’s chief political rival, Thomas Jefferson, echoed these sentiments, and considered trial by jury as the “only anchor ever yet invented by man, by which a government can be held to the principles of its constitution.”

Prior related posts:

July 31, 2019 at 05:04 PM | Permalink


It has certainly become a plea-based system. Overcharge for political hype, then once the hype dies down, plead it out. I do blame the media for all of the scrutiny, which pressures plea deals. If the prosecutor loses, they are considered to have charged an innocent man/woman. If the prosecutor wins, they are considered to be too harsh on criminals. It's no win for anyone. And law school certainly does not teach trial skills, they teach theory primarily.

Posted by: Mike W. | Jul 31, 2019 5:32:49 PM

I’m tired of the trial penalty complaint because no one wants to change it. Judges don’t want trials because they are too much work (and this new crop of judges in my area wants everyone to agree). Prosecutors don’t want trials because they are hard work, they could lose, or someone might accuse them of misconduct. Defendants don’t want trials because the result is frequently worse for them than the favorable result dangled in front of them by the prosecutor or the judge (in jurisdictions where judges are allowed to participate in settlement). Defendants and defense lawyers also like the certainty.

Want more trials, limit plea bargaining. Limit the court’s ability to settle cases by giving indicated sentences and substantially reduce the amount of process pageantry that surrounds trials. Through excessive tinkering by the courts, the process of getting to trial has become incredibly burdensome. Trials and everything that leads up to them is a lengthy, expensive process fraught with opportunity for gamesmanship, stress and error.

Judges get to be fawned over in committees and community events more when they are not in trial. So do the prosecutors, and in some jurisdictions, defense counsel too. All the participants, because they not in trial, are far less likely to be found to have committed reversible error, prosecutorial misconduct, or ineffective assistance of counsel. Errors that are far easier today because the law has become so incredibly complex, both statutory and constitutionally.

Also, find a way to make trials shorter. Trials in my area take more than double the time the same case would have taken 20 years ago. Part of that is legal complexity, part is the over expertisation of everything surrounding crime, part is that jurors are less trusting of law enforcement, and part is the process includes more procedural rights than before.

None of these will happen, so we will just get more articles complaning about a system that no one really wants to change, except for the select few who either don’t regularly practice within the system or are idealistic.

Posted by: David | Aug 1, 2019 12:07:28 AM

Some reasonable complaints here, though I think there are a lot of changes both small and large that could increase the number of trials while also achieving other useful goals. For example, reducing use of pre-trial custody and eliminating mandatory minimums are likely good ideas on their own, and both seem likely to reduce the pressure to plea and the penalty for failing to do so.

I think the general public does not understand how bad this problem has become, in part because we see lots of trials on the TV law shows and a disproportionate number of high-profile cases go to trial (see, e.g., Bill Cosby and Paul Manafort for recent examples). Increasing awareness is an important first step for those interested in seeing reforms.

Posted by: Doug B | Aug 1, 2019 12:18:07 AM

I think it is difficult to discuss the founder's right to a jury trial because the modern jury trial is very different from the founder's jury trial. In the eighteenth century, most defendants represented themselves, evidence was more limited (allowing the same jury to hear multiple cases), and there were fewer degrees of offenses. When the typical case takes a week or more to try (not counting pre-trial and sentencing hearings) instead of half a day, the system is going to devise a way to minimize the number of cases that go to trial because you only have 40-50 trial slots per judge rather than 400-500 trial slots.

A lot of the "trial penalty" comes from having different degrees of offenses with different ranges of punishment. When I was on a legislative drafting committee revising our state's code with both prosecutors and defense attorneys, both sides wanted to have these lesser-includeds to better fit the punishment to the crime. However, that positive feature of the modern criminal justice system is also a bug. When different interpretations of the evidence support anything from -- for example -- armed robbery to misdemeanor theft, there is a lot of risk at going to trial and facing the penalty for the top level offense. And it is "easy" for the prosecution to agree to a plea to the lesser of strong arm robbery and a medium length sentence to avoid the risk of the jury rejecting the claim of force and finding a simple purse snatching. So the feature that is beneficial in the case in which the evidence is clear becomes a bug in a case in which the evidence is somewhat murky.

Posted by: tmm | Aug 1, 2019 1:04:00 PM

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