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One thing that has become apparent is that the U.S. Sentencing Guidelines, along with mandatory minimum sentences, are causing the virtual extinction of jury trials in federal criminal cases. Whereas in 1980, 19 percent of all federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since.

In a recent publication, the National Association of Criminal Defense Lawyers (NACDL) found, “There is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk.”

In its Trial Penalty report, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident. The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout the federal and state criminal justice systems.

Read the report here: The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It

The report explains that guilty pleas have replaced trials because the risk of losing at trial carries the probability of receiving “exponentially higher sentences.” Defendants “almost uniformly surrender the right to trial,” the authors explain, “defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law … and judges dedicate their time to administering plea allocutions rather than evaluating the constitutional and legal aspects of the government’s case and police conduct.” Because these negotiations take place in secret, the public is deprived of its oversight role as envisioned by the Constitution’s framers.

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. A defendant may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.

As the U.S. Supreme Court stated in Lafler v. Cooper, our criminal justice system today “is, for the most part, a system of pleas, not a system of trials.” As a result, defense lawyers spend most of their time trying to negotiate the best plea bargain for their clients and then advocate before the sentencing court, which is otherwise generally silent in the process. Moreover, studies have revealed the tragic fact that the innocent will, at times, plead guilty in order to avoid the potential for a much longer sentence if they are convicted after a trial.

A case cited by NACDL in its report to demonstrate the gross disparity of sentences between a defendant who plead guilty versus a defendant who was found guilty at trial is that of Christian Allmendinger, who was involved in a complex case of purchasing life insurance policies. His co-conspirator pleaded guilty to the same offense and was sentenced to 10 years in prison. Allmendinger went to trial and was found guilty. He was sentenced to 45 years in prison. The co-conspirator subsequently had his sentence reduced to 5 years after testifying for the government at Allmendinger’s trial. According to NACDL, it is disparities like this that are just a few of the reasons we have a growing issue with our criminal justice system.

Another reason for such extreme sentencing disparities, according to a 2014 article in The New York Review of Books written by Jed S. Rakoff, is the combination of mandatory minimum sentences and the U.S. Sentencing Guidelines which “provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains.” The article explains:

“In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.

The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations. While much of this may be one-sided and inaccurate—the National Academy of Science’s recently released report on the unreliability of eyewitness identification well illustrates the danger—it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe overconfident, of the strength of his case.”

Read the full article here: Why Innocent People Plead Guilty