The disappearing right to a trial – Inside Sources

In business negotiations, both parties have the freedom to make proposals, counter-proposals and adjust terms until a mutually beneficial agreement is reached. This process may include negotiations on prices, delivery times, service levels or other contract terms. If one party feels that the deal is not in their best interest, they can walk away from negotiations.

However, at a plea bargain, where the stakes are much higher, the freedom to stop proceedings is often an illusion. Of course, defendants can assert their right to a trial – but at what cost?

Ten years ago, my wife, a lawyer, and I volunteered to visit inmates who needed kindness and encouragement. We met someone who was in prison for what they called a “financial crime” for lying on a federal form about his bankruptcy. Prosecutors, no doubt under pressure because of the 2008 mortgage crisis, came with guns drawn and offered a five- to seven-year sentence for what should have been no more than a misdemeanor, warning that a trial would have devastating consequences.

Nevertheless, he decided to go to trial. As prosecutors continued to add charges and demanded a harsh punishment for this minor crime, he was sentenced to 85 years in prison after the trial. I couldn't believe that something like that could happen in America. After 13 years, the President commuted his sentence. He had to start his life all over again, all alone; that's the result of an 85-year prison sentence.

The framers of our Constitution and Bill of Rights enshrined the defendant's right to a jury trial because, as John Adams wrote, “representative government and juries are the heart and lungs of liberty.” Yet this principle has atrophied at the federal and state levels as prosecutors use every tool at their disposal to avoid jury trials. The result is that 98 percent of all convictions are the result of plea bargains, even when the defendant and society would be better served by a jury.

What has caused the shift in the American justice system that has seen the trial rate drop from 20 percent to three percent over the past two decades? It is the threat by prosecutors of significantly higher post-trial penalties, which many refer to as “trial punishment,” that causes almost all defendants to cry “uncle” and give up.

Defendants and defense attorneys know that the price goes up—significantly—when a person exercises their constitutional right and chooses to go to trial. Leaving the trial table costs someone years or decades of their life for exercising their constitutional right. In effect, it is legally sanctioned coercion.

Trial punishment is a set of laws and tactics that permeate the entire justice system – piling up charges, threatening retaliatory punishments, and tying judges' hands with mandatory sentences.

To move cases forward and secure convictions, prosecutors shamelessly threaten penalties for defendants who choose to go to trial. Faced with the prospect of years or even decades behind bars and other devastating consequences, most are too afraid to fight for themselves and take the confession “deal.” The search for truth is eclipsed by the pursuit of efficiency, undermining public safety and government accountability.

Instead of pursuing justice and giving juries a voice as the conscience of the community, we have become a nation that values ​​the efficiency of quick plea bargains. This practice ensures that the less guilty are punished more harshly for their crimes and that prosecutors even “successfully” pressure innocents into quick plea bargains rather than searching for the real perpetrators. These victims of punishment are forced to risk years or decades of their lives if they choose to go to trial or if they plead guilty and are treated as if they were guilty.

As an entrepreneur, innovator, and libertarian, I see myself as a disruptor. And the American criminal justice system desperately needs change. For the past two years, I have worked with the National Association of Criminal Defense Lawyers to support federal legislation that would mitigate the punitive and frankly unconstitutional impact of trial sentencing.

A few weeks ago, the Right to Trial Act was introduced in the House of Representatives with strong bipartisan support. The bill would allow federal judges to consider the penalty for trial when handing down sentences and, when appropriate, to override the harsh minimum sentences often faced by defendants who exercise their constitutional right to a trial.

I urge the House and Senate to pass this bill so that no one is punished in our criminal justice system for exercising their constitutional right to a trial.

Passing legislation in Congress, both the House and Senate, is a slow and arduous process, no matter how important it is to our democracy. When you consider that 50 state legislatures must do the same, it can seem like a daunting task. We must steadfastly hold on to the fundamental law that America's Founding Fathers considered the cornerstone of our legal system.