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NEWS

Gambling with justice… Why defendants won’t risk going to trial in the USA

admin - July 18, 2018 - The disappearing trial, plea bargain, trial waiver systems

It’s no secret that the United States has a problem with its criminal justice and prison systems. With almost 2.3 million people behind bars, the United States holds more than 20% of the world’s prison population, despite making up less than 5% of the world’s general population. It has become such a glaring issue that even in these politically divisive times, there is bipartisan support for criminal justice reform. Issues like abolishing cash bail and reducing sentences have developed massive, bipartisan momentum for reforms at both national and state levels. But the dominance of plea bargaining in the US system, which Fair Trials and others have identified as a major driver of overincarceration and criminalisation, has not so far been the subject of such reforms. With the publication of the National Association of Criminal Defense Lawyers' new report, The Trial Penalty, that may be about to change.

In the United States, 97% of cases are now resolved with a guilty plea. NACDL’s new report explores the history of plea-bargaining in the United States, and notes that the Supreme Court had held the practice as unconstitutional until 1970. When the Court shifted its stance, it began the process of eroding a constitutional right- to the point where it is now only exercised by 3% of criminal defendants, and all for the sake of expediency.

The report highlights that up to 27% of people that plead guilty are later found to be innocent, but the threat of facing harsher charges and longer sentences if found guilty at trial is so coercive that defendants are left with no choice but to waive their right to a trial and accept punishment. NACDL found that the price that defendants pay for going to trial is a sentence three times longer in fraud cases, and eight times longer in cases involving burglary, breaking and entering, or embezzlement. This phenomenon has come to be known as the trial penalty.  

The trial penalty is largely due to the fact that prosecutors have the discretion to choose what a defendant will be charged with, and frequently levy enhanced or additional charges if a defendant chooses to proceed to trial. Prosecutors can choose to bring charges that carry high penalties or mandatory minimum sentences under the U.S. Sentencing Guidelines. They can also "stack" multiple charges stemming from the same conduct. The report also cites a judicial culture that encourages judges to remain passive in plea negotiations and to continue to sentence according to the Sentencing Guidelines, despite recent caselaw which allows them discretion to sentence outside the guidelines.

The report has been supported by criminal justice reformers across the ideological spectrum, from the American Civil Liberties Union to the Charles Koch Institute, suggesting that the reforms recommended by NACDL in the report could find bipartisan support: equal access to evidence, ending mandatory minimum sentencing, ending the litigation penalty, and providing a level of judicial oversight of the plea-bargaining process. 

At the launch of the report, keynote speaker United States District Court Judge John Gleeson, noted that it should not be the case that the analogy associated with exercising a criminal defendant’s constitutional right to a trial is that of rolling the dice, and there is something seriously wrong when constitutional rights are so easily analogized to gambling.

Find out more about the growth of plea bargaining in the USA and globally in our report, The Disappearing Trial.


This post was written by Mahad Ghani, a legal and policy intern at Fair Trials based in Washington, D.C.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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