The Trial Penalty

That’s the title of this new report by the National Association of Criminal Defense Lawyers. It looks at the steep decline of jury trials in our system, explains why that matters, and examines how to preserve this important right to trial by jury.

What is the trial penalty? It refers to the big difference in sentences that people receive when they take a deal and plead guilty versus when they take a case to trial.

The calculus is clear: if you stack the deck and threaten someone with annihilation, then offer them a swat on the wrist if they just plead guilty, most everyone will capitulate. That may paint an extreme picture, but it happens, and it shows how easily the government can coerce a plea even when it’s not so extreme.

How important is this? Consider the following words from the foreword to the report. They’re written by a former federal judge who was a federal prosecutor before that. They begin with a comment on how easy it is to charge someone with a crime:

“A grand jury presentation can consist entirely of information that would be inadmissible at trial. A prosecutor may knowingly use illegally-obtained evidence to obtain an indictment, and if she has evidence in her possession that substantially exculpates the target, she may withhold it from the grand jury. The presentation need only establish probable cause to believe the target committed the crime. If 11 of the 23 grand jurors are unconvinced that even that low threshold has been met, an indictment can still be obtained. And of course it’s all ex parte, so no one is even there to question the prosecutor’s presentation.

What accounts for all this? Why do our Supreme Court decisions and federal rules establish a charging process that guarantees that imperfect, ill-advised criminal charges can make it through if the prosecutor presses them? The answer is simple: because of trials. Those imperfect, ill-advised charges will come out in the wash when they are subjected to the cleansing effects of a criminal trial in open court. Indeed, when prosecutors know that such charges will go to trial, where they must be proved beyond a reasonable doubt to the satisfaction of a unanimous jury based on admissible evidence that is subject to vigorous challenge by defense counsel to whom exculpatory evidence must be disclosed, they are not likely to bring them in the first place.

This report is a major contribution to the discussion of one of the most important issues in criminal justice today: the vanishing trial. Once the centerpiece of our criminal justice ecosystem, the trial is now spotted so infrequently that if we don’t do something to bring it back, we will need to rethink many other features of our system that contribute to fair and just results only when trials occur in meaningful numbers.”