Can Congress Legislate a “Right To Trial”?

The demise of the jury trial has been a frequent subject of inquiry from within the profession to academics and think tanks. The most common solution is to ban plea bargaining, thus forcing defendants to go to trial and, hopefully, constraining prosecutors from charging as many defendants as they do now because of the physical and logistical limitations of trying cases, a highly speculative and dubious outcome.

This solution is, as I’ve argue here* and at Cato Institute, simplistic and foolish, ignoring the complex reasons why pleas have overwhelmed trials and putting every defendant to go to trial, despite having no defense, and being at risk of being sentenced to life plus cancer with no safety valve or alternative.

At Sentencing Law & Policy, Doug Berman points at a new law, called the “Right To Trial Act,” proposed by Indiana Congresswoman Victoria Spartz taking a very different approach the death of jury trials.

U.S. Rep. Victoria Spartz (IN-05) introduced the bipartisan ‘Right to Trial Act’ with her colleagues Reps. Hakeem Jeffries (NY-08), Kelly Armstrong (ND-AL), Karen Bass (CA-37), Morgan Griffith (VA-09), Cathy McMorris Rodgers (WA-05), Guy Reschenthaler (PA-14), and David Trone (MD-06). This legislation would strengthen the constitutional right to trial and mitigate abuses of prosecutorial authority in our federal justice system.

“Our Founding Fathers provided for trial by jury in our Constitution as a safeguard of our liberties,” said Rep. Spartz.“This constitutional right is essential to protect against the tyranny of government and the police state.”

Approximately 97% of defendants subject to federal charges plead guilty, up from nearly 85% in the early 1990s. Despite their constitutional right to trial, defendants face steep mandatory minimum sentences if they choose to exercise this right—driving defendants into one-sided plea negotiations.

“Throughout my time as a district judge, I saw the extreme disparities between sentences offered in plea deals and sentences given to those who went to trial. Americans shouldn’t face drastically different judicial outcomes when exercising their constitutional rights,” said Rep. Reschenthaler. “The Right to Trial Act will address the trial penalty sentencing disparity and ensure our judicial system reflects the spirit of the Sixth Amendment.”

The ‘Right to Trial Act’ seeks to temper these incentives by granting federal courts the authority to impose sentences, in some circumstances, below established statutory minimums.

The law itself is short, a mere three pages, and essentially seeks to free judges from imposing mandatory minimum sentences when they would result in a significant disparity from the sentences imposed on co-defendants after pleas.

(9) in the case of—

(A) crimes involving similarly situated codefendants or group conduct, the plea offer, if applicable, and each sentence (and anticipated sentence) of any similarly situated codefendant or similarly situated other person charged in the same or related offense who pled guilty; and

(B) crimes not involving codefendants or group conduct, the plea agreements and the
sentences for similarly situated defendants who pled guilty to similar offenses; and

(10) whether imposition of a statutory minimum sentence would constitute a penalty for  asserting the constitutional right to a trial, thereby warranting imposition of a sentence below the statutory minimum.

Any law the frees a judge from imposing a mandatory minimum sentence is an inherently good law, as mandatory minimum sentences are inherently bad policy. But will this law accomplish its putative goal of promoting defendants to go to trial rather than take pleas? To some extent, the answer is yes, given that this adds an additional factor in favor of going to trial for those defendants trying to make one of the most difficult decisions of his life. Would it be possible that he can now go to trial and not get slammed with a sentence of decades longer than his co-defendants received who copped out? Absolutely, and this would certainly factor into the plea/trial equation.

But the real world question defendant will ask is whether this means they won’t get slammed and, rather, they will be sentenced to the same general term as their co-defendants. Can we guarantee it?

The answer to the question is twofold. If the judge asserts that she’s inclined, should the defendant go to trial and be found guilty, to impose a sentence consistent with that of co-defendants under the view that if the sentence was deemed sufficient by the government for the conduct involved under § 3551(a) for co-defendants, then it should be no less sufficient for the defendant exercising his constitutional rights by going to trial. It’s a perfectly reasonable and legally sound position to take.

If the judge informs the defense of this in advance of deciding whether to go to trial, then it enabled defense counsel to advise the defendant that there is a strong, if imperfect, likelihood that the trial tax, if any, will be minimal. But then, it’s an imperfect promise since the evidence at trial may give the judge reason to believe that the sentence imposed after plea was inadequate, or that the this defendant’s conduct is deserving of harsher sentence than others.

And if the judge doesn’t give any indication that a defendant’s exercise of his right to trial won’t result in a sentence of life plus cancer, even if it’s a possibility, it would be irresponsible for defense counsel to advise a client to take a shot in the dark because of an open issue at sentence unless a judge had a reputation of imposing a below mandatory sentence regularly.

So is if it a good law? Well, sure. But is it the fix that will turn around the guilty plea machine and restore the right to a jury trial? Probably not. Until the plea discount and trial tax are conformed in such a way that the disparity between the sentence at plea and after trial won’t be so great as to motivate most defendants not to roll the dice, the problem will persist. It might be a little better, but it won’t be solved.

*Judge Kopf, unsurprisingly, disagrees with my views on whether the “vanishing jury trial” is a problem at all.