To Save The Jury Trial, Must We Kill The Plea Bargain?

Judge Richard Kopf doesn’t care much about the “vanishing jury trial,” mostly because he’s got so little faith in humanity.

Indeed, I sometimes joke that jury trials are unconstitutional because no sane person would randomly select from the great unwashed 12 stiffs to make a decision that can significantly impact both the public and the defendant. Besides, criminal jury trials are almost always a waste of time. With few exceptions, federal criminal jury trials are the equivalent of one long guilty plea where the defendant has rightly calculated that he or she has nothing to lose and is hoping to win the lottery.

Of course, Judge Kopf isn’t entirely serious when he says that, recognizing that the occasional innocent defendant gets indicted and, without a trial, he would never have the option of being maxed out on the back end to remind him of the folly of rolling the dice.

But there is a deeper institutional need for jury trials, that being the counterbalance to the government’s power to ram their plea offer down a defendant’s throat. The only response the defense has is to tell the government to “shove it, we’re going to trial.” But then, you have to be both willing and able to do so. That means the defense has to be prepared to try the case and the defense lawyer has to have the experience and ability to pose a threat to the prosecution’s assumption that it will win now or later, but either way, it will win.

This isn’t an insignificant problem. As former EDNY Judge John Gleeson says in the preface to the NACDL’s new report, The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It, we’ve gone from about 20% of all cases being tried in the days before the Sentencing Guidelines to less than 3% today. Obviously, that means we’re doing a far fewer jury trials, but it also means that defense lawyers who threaten trial have no history of actually going to trial and nothing to demonstrate they even have the capacity to try a case.

The same, by the way, is true for assistant United States attorneys, who can now manage to work through their commitment and never try a case. While this might make some people think there’s an advantage to be gained here, there’s a problem due to the different positions of the defense and prosecution. Neither lawyer may have the chops for trial, but if the defense loses, the defendant gets life plus cancer. If the prosecution loses, the prosecutor goes back to his office to suffer the humiliation of his peers, but then gets to go home that night.

Today, there will be a discussion at Cato about the purported culprit in this trying mess: Plea Bargaining: Good Policy or Good Riddance? The rationale is well-intended, but backwards. If plea bargaining was no longer permitted, every defendant would have to go to trial. Therefore, the jury trial would be back. Yay?

Snarky as Judge Kopf’s description might appear at first blush, the characterization of a jury trial as “one long guilty plea” isn’t entirely wrong in a great many cases. The problem with going to trial isn’t merely the “trial tax” on the post-trial sentence, but the tools that have developed favoring the prosecution since the mandatory Guidelines were held constitutional, until the Supreme added “just kidding” about the mandatory part.

Between snitches, search and Title III warrants, conspiracy charges that allow in every utterance by anyone you’ve ever known within five degrees of separation, the deck is so wildly stacked against the defense in most cases that going to trial is an act of suicide. And, frankly, most cases have no defense, and shouldn’t as the feds nailed the defendant good and hard. There are cases where defendants are grossly overcharged, not innocent but not as guilty as they say, but between the law of conspiracy and the absence of any way to calm the hyperbolic testimony of agents, there is little hope.

But there should be, both to save the wrongfully arrested and the overcharged, and to keep the government honest and in check. If there is no threat of trial, no counterbalance to their ramming a plea down a defendant’s throat, the system fails.

And yet, the question is whether, to save trials, we must kill plea bargains? This means there will be no safety valve for the defendants who can’t offer anything at trial other than tears and the attempted jab during cross. This is the long guilty plea Judge Kopf speaks of. This is a slaughter for no purpose. Unless we believe that watching fish being shot in barrels is good for society, and the sentences of life plus cancer are what Congress, and America, really, but really, wants to see imposed on defendants, this is not merely a farce, a huge waste of time and resources, but ridiculously harsh and pointless.

Whether the jury trial can be saved is a good question, regardless of what they want to do in Nebraska. But to murder the plea bargain in the hope of resuscitating the jury trial isn’t the solution.