Wednesday, July 11th, 2018

NACDL Report on the Trial Penalty

The National Association of Criminal Defense Lawyers (NACDL) recently released a report that is somewhat provocatively, but fairly, titled: The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.  The report, available here, offers a succinct assessment of the legal and institutional pressures that coerce 97% of state and federal defendants into plea bargains.

From the Executive Summary:

[O]ver the last fifty years, trial by jury has declined at an ever-increasing rate to the point that this institution now occurs in less than 3% of state and federal criminal cases. Trial by jury has been replaced by a “system of [guilty] pleas”3 which diminishes, to the point of obscurity, the role that the Framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.

Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt, defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law including the proof beyond a reasonable doubt standard, 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. Equally important, the public rarely exercises the oversight function envisioned by the Framers and inherent in jury service. Further, the pressure to plead guilty, and plead early, is often accompanied by a requirement that accused persons waive many valuable rights, including the right to challenge unlawfully procured evidence and the right to appeal issues which have an impact not only in their cases but also for society at large.

The Report’s goes on to offer the following policy and judicial recommendations:

1. Relevant Conduct: USSG §1B1.3 should be amended to prohibit the use of evidence from acquitted conduct as relevant conduct.

2. Acceptance of Responsibility: USSG §3E1.1(b) should be amended to authorize courts to award a third point for acceptance of responsibility if the interests of justice dictate without a motion from the government and even after trial.

3. Obstruction of Justice: USSG §3C1.1 should be amended to clarify that this adjustment should not be assessed solely for the act of an accused testifying in her or his defense. Application Note 2 should also be clarified in this respect.

4. Mandatory Minimum Sentencing: Mandatory minimum sentencing statutes should be repealed or subject to a judicial “safety valve” in cases where the court determines that individual circumstances justify a sentence below the mandatory minimum.

5. Full Discovery: Defendants should have full access to all relevant evidence, including any exculpatory information, prior to entry of any guilty plea.

6. Remove the Litigation Penalty: The government should not be permitted to condition plea offers on waiver of statutory or constitutional rights necessary for an accused person to make an intelligent and knowing decision to plead guilty. This includes an accused person’s decision to seek pre-trial release or discovery, investigate a case, or litigate statutory or constitutional pre-trial motions.

The FDNY’s David Patton served on the NACDL task force that produced the Report.

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