They say lady justice is blind, for her blindfold represents objectivity, the ability to allocate justice without the fright of bribe, without the influence of money, wealth, power and identity. But many today feel like the system has failed them, as does a client who was in our office this morning and told me that he took a plea as opposed to going to trial because he was confident that he would not get true justice in this system. This is a major problem. There are many who firmly believe, and it is a popular political topic these days to opine that justice system is by design discriminative towards minorities of race, ethnicity, gender, sexual orientation, and class, and that it needs to be fixed. However, I want to raise a different problem, one that particularly disturbs me, as well as the highly regarded former United States District Court Judge, John Gleeson, who recently wrote about this topic. This issue is this: “the vanishing criminal trial.”
Once a centerpiece of our criminal justice world, the criminal trial is now spotted so infrequently that if we don’t do something to bring it back, the integrity of the criminal justice system will be undermined for everyone, regardless of race, class or creed.
Over the last fifty years, trial by jury has declined at an ever-increasing rate to the point that this institution occurs in less than 3% of state and federal criminal cases. The “trial by a jury of your peers” has been replaced by a “system of guilty pleas.” President John Adams, who was also a criminal defense attorney, said “representative government and trial by jury are the heart and lungs of liberty. Without them, we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothes like swine hounds.” WOW. What is happening as a result of the disappearing trial is a diminishing of the role that the Framers envisioned for jury trials as the primary protection for individual liberties against the Government. Why has this happened?
As Judge Gleeson explains, guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their 6th Amendment right to trial face exponentially higher sentences if they go to trial and lose. Also, the enactment of mandatory minimum sentencing provisions have played a major role in reducing our trial rate from 20% thirty years ago to where it is today. These overly used harsh mandatory sentences have the effect of strong-arming guilty pleas, whether the person is guilty or not. Faced with this “roll the dice” scenario, most individuals surrender their right to a trial rather than insist that the prosecutor prove their guilt beyond a reasonable doubt. As a result, a growing number of defense lawyers spend most of their time negotiating plea deals, rather than ensuring the police and prosecutors do not overstep the bounds of the law and have enough evidence to convince a group of jurors of their clients’ guilt. As a result, mistakes and misconduct often gets buried.
The penalty of going to trial and losing is undermining our criminal justice system. It is an individuals’ right to put the government to its proof, and there should not be extravagant penalties and sentences for individuals who force the government to actually prove them guilty. When the trial disappears, everyone loses – including judges, prosecutors, defense attorneys and defendants.
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