How much does the average person really know about the inner workings of the criminal justice system? For most of us, the closest we may come is our favorite television legal dramas. Not necessarily the most accurate source for real world court proceedings.
Plea Bargains Subvert Trial By Jury
For instance, while you may have a vague sense of trial penalty, you may not know it by name or have a very deep grasp of how widespread and insidious the practice is. We actually wrote a bit about a case that revolves around the right to a speedy trial but would like to specifically address trial penalty more here.
Here’s the setup. Despite the speedy trial idea actually being a guaranteed right spelled out in the U.S. Constitution, our legal system is so overwhelmed, it is a practical impossibility. With something like 10 million arrests in a year, and literally the highest incarceration rate in the world, if every case went to trial the entire system would come to a screeching halt.
I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution. ~ Thomas Jefferson
So, next best thing is to make a deal, right? Except there is an underhanded turn to how this plays out. It may be an occupational hazard that lawyers don’t like to lose and this may be especially true for prosecutors. There is a lot on the line from their reputation and career repercussions to genuine concern for the public good.
It is estimated that plea bargains rather than jury trials determine the outcome in 95 percent of cases, even higher at 97 percent for federal cases. Stop and think about how lopsided that is. With the significance of the right to trial by jury, that such an infinitesimal number of defendants are afforded one speaks volumes about the state of our judicial system.Simply put, the Trial Penalty is the array of penalties, paybacks, and repercussions that are inflicted upon criminal defendants who presume to insist upon exercising their Sixth Amendment right to a jury trial. Click To Tweet
Trial Penalties Aplenty
Clark Neily does a nice job explaining what a travesty trial penalty is and why it is so critical to curtail the practice.
“Simply put, the Trial Penalty is the array of penalties, paybacks, and repercussions that are inflicted upon criminal defendants who presume to insist upon exercising their Sixth Amendment right to a jury trial—or what Cato Research Fellow Trevor Burrus calls ‘bespoke justice.’…
“And that’s just the tip of the Trial-Penalty iceberg. Other tools that prosecutors can bring to bear include adding charges to an indictment to increase a defendant’s exposure, threatening to bring charges against friends and family, intimidating pro-defense witnesses to discourage them from testifying, and hiding potentially exculpatory evidence until the eve (or even the midst) of trial.
Translation: We are going to crucify this guy if he insists on going to trial, and only a crazy person would pass up the sweetheart plea deal we’ve offered him.
Read in full at The Trial Penalty.