From the President: Through the Looking Glass — Criminal Justice Without Trials

We tell ourselves that we are protected from government abuse by a system of jury trials in which jurors decide guilt or innocence and judges determine sentences. What is the reality? We have abandoned the system of public jury trials established in the Constitution and Bill of Rights in favor of a shadow system of guilty pleas driven by the logic of prosecutorial power.

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Last December, Rogel Aguilera-Mederos — a 23-year-old truck driver with no criminal record — received a 110-year sentence for accidentally killing four people because his brakes failed as he approached stalled traffic on a Colorado highway. This absurd sentence inspired immediate and heartfelt condemnation across the country, a petition to reduce the sentence signed by almost five million people,{1} 1  Julian Mark, A Truck Driver Got 110 Years in Prison for a Deadly Collision. Millions Signed a Petition Calling That Excessive, Wash. Post, Dec. 20, 2021, and even a boycott of Colorado by truck drivers.{2} 2  Ryan Erik King, Trucker’s Prison Sentence Sparks a Trucker Boycott of Colorado,, Dec. 19, 2021, In fact, within days of the sentencing, it was clear that virtually no one believed that the sentence made any sense — not the judge who imposed the sentence,{3} 3  Shelly Bradbury, Trucker Sentenced to 110 Years in Prison for Fiery 28-Car Pileup Crash That Killed 4, East Bay Times, Dec. 14, 2021, (“I will state that if I had the discretion, it would not be my sentence,” the judge said.). not even the district attorney whose office prosecuted the case.{4} 4  Alex Burness, Jeffco DA to Ask Judge to Reduce Rogel Aguilera-Mederos’ Sentence to 20-30 Years in Fatal I-70 Crash, Denver Post, Dec. 23, 2021, 

To understand this Alice-in-Wonderland moment, we must face the fundamental truth of the modern American criminal legal system: We have abandoned the system of public jury trials established in the Constitution and Bill of Rights in favor of a shadow system of guilty pleas driven by the logic of prosecutorial power. If an accused has the audacity to insist on trial — as Mr. Aguilera-Mederos did — we go through the looking glass into a world of pain, resulting from the exercise of prosecutorial power, that the Framers of the Constitution would have loathed and feared.

This reality collides with the stories that we tell ourselves from civics class to the silver screen. We tell ourselves that we are protected from government abuse by a system of jury trials in which jurors decide guilt or innocence and judges determine sentences. We tell ourselves that this system is punctuated by plea bargaining that works just fine because people accused of crime, assisted by counsel, can make rational decisions without fear of being punished for exercising their right to trial — just like the last 10 minutes of most episodes of “Law & Order” when the accused, the defense lawyer, the prosecutor, and the lead police officer gather around a table in a county jail. Confronted by irrefutable and lawfully obtained evidence, the accused inevitably confesses. Justice prevails as the final step of a balanced negotiation between reasonable and ethical public servants armed with truth, on one side, and a well-informed accused person assisted by a competent lawyer, on the other.

Unfortunately, plea bargaining does not work this way off-screen. Modern plea bargaining consists of the delivery of an ultimatum by a prosecutor who threatens to double, triple, or quadruple a sentence if the accused dares to exercise the right to trial. The unconscionable difference between a pretrial offer and the threatened much greater post-trial sentence — often called the “trial penalty” — amounts to legalized coercion by prosecutors beyond the reach even of judges thanks to mandatory minimum sentencing laws. Normalized across the face of the system, the trial penalty has virtually eliminated trials by breaking the will of one accused person after another. If this reality made its way into a “Law & Order” episode, the DA would simply slide the Penal Code across the table, point to a 20-year mandatory sentencing provision, and rely on the threat of an exponentially greater post-trial sentence rather than evidence in the case.

While all accused suffer from this shadow system of justice, people of color and the poor suffer more severely thanks to overcriminalization, overpolicing, excessive use of pretrial detention, the need to rely on underfunded systems of public defense, and, of course, systemic racism and implicit bias. Profound asymmetries of power in the legal system have ensured that prosecutors routinely break the will of most accused people and especially of the most vulnerable. These asymmetries of power — especially mandatory minimums — have transformed the Framers’ vision into an assembly line of prosecutorial ultimatums masked as “bargains.”

Lest we think that this is someone else’s problem, we all pay the price for a system that normalizes coercive plea bargaining. First and foremost, the unchecked power of prosecutors has resulted in the disappearance of trials from the criminal legal system, as NACDL found.{5} 5  Nat’l Assn. Criminal Def. Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (2018); We can thank this culture, in which citizen oversight of government power has been virtually eliminated, for mass incarceration and greater police misconduct, including excessive force. Mass incarceration follows because prosecutors can coerce pleas in virtually every case, often by demanding high sentences. Police misconduct follows because prosecutors routinely require the accused to surrender virtually every right to accept a plea deal, including the right to challenge police misconduct. Guilty pleas routinely require waivers of all the rights that the Constitution protects — from the right to bail and the right to be free of unreasonable searches and seizures to the right to trial — and, as a result, the light of day seldom reaches government or police abuse.

Using this framework, we can better understand how Colorado managed to impose a 110-year sentence on Mr. Aguilera-Mederos. Simply put, the district attorney opted to seek charges that required 110 years because Mr. Aguilera-Mederos had the audacity to demand that the prosecutor prove guilt at trial. Unfortunately, as suggested above, Mr. Aguilera-Mederos is far from alone in paying the price for exercising his constitutional right to trial,{6} 6  For example, Kevin O’Brien Allen, a Black man, was charged in Louisiana for selling $20 of marijuana. Prosecutors offered him five years, but Mr. Allen opted to go to trial, lost, and is now serving life without parole. John Simerman & Jeff Adelson, A Life Sentence for $20 of Weed? Louisiana Stands Out for Its Unequal Use of Repeat Offender Laws,, Dec. 20, 2021, which explains why the vast majority of accused simply take the deal offered by the prosecutor whether they are guilty or innocent and whether they have a defense or not.

The Framers who designed our criminal legal system would not recognize this culture. They envisioned a system of trials designed to shine light into every stage of the process. Having surrendered this constitutional vision of justice, we have failed to protect ourselves, our families, and our communities from police misconduct, mass incarceration, and wrongful convictions. To restore the balance, we must revoke mandatory minimum sentencing, elect prosecutors who use their power constitutionally rather than coercively, and empower judges to impose rational sentences as the Constitution requires. These policies might not sync well with the televised world of “Law & Order,” but they provide the foundation for the fair, just, and humane constitutional order envisioned by the Framers.

A version of this piece appeared as an op-ed in USA Today on Jan. 19, 2022.

About the Author

Martín Sabelli represents individuals in state and federal courts in a wide range of civil and criminal matters from the simplest of cases and gang-related prosecutions to the most complex white collar investigations and death penalty prosecutions. He is a speaker at seminars and trial training programs for NACDL, the National Criminal Defense College, and other defense programs around the world.

Martín A. Sabelli (NACDL Life Member)
Law Offices of Martín A. Sabelli
San Francisco, California

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