NACDL - Inside NACDL: Imagining a World Without the Trial Penalty: NACDL’s Next Major Reform Initiative

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

This month’s column is based on the welcoming remarks Norman Reimer delivered at NACDL’s West Coast White Collar Conference on June 22, 2017, in Santa Monica, California.

Imagine what it would be like to practice criminal defense in a system in which the following fundamental rules apply:

Clients could receive a sentence that is no more than 10 percent more severe following a conviction after trial than the most favorable plea offer made before trial.
Clients could not receive an enhancement for obstruction of justice for simply denying guilt in testimony, but rather there could be an obstruction enhancement only if there was an affirmative act to obstruct, such as bribing a witness to give false testimony.
A client could get credit for cooperation, not based on the government’s subjective determination of substantial assistance, but rather on the basis of good faith efforts to assist — as determined by the judge.
When law enforcement engages in a sting operation to invite a client to commit a crime, the prosecution could not charge a higher level crime or assign a fraud value, loss amount, or drug weight greater than occurred in the initial criminal encounter. In other words, sentencing entrapment — the process of egging a person on to commit repeated or more serious crimes — would be impermissible.
Prosecutors could not offer “exploding plea agreements.” In other words, there could be no deadline to accept a guilty plea prior to the completion of disclosure or a requirement to waive a constitutional right to seek suppression of unlawfully procured evidence under pain of facing a more severe plea offer if those basic rights are not waived.

In this fantasy world, the trial penalty would be a thing of the past and the fundamental constitutional right to a trial by jury,which has essentially been obliterated, would be alive and well. To be sure, this is a fantasy. As all criminal defense lawyers know only too well, trials are vanishing. None of the above rules currently exist in the American criminal justice system, and maybe never will. The scales of justice have been so thoroughly tipped in favor of prosecutors through a vast arsenal of charging and sentencing practices that the risk associated with a trial are so great that even innocent accused persons must balk at the assertion of the fundamental right to a trial. Recent statistics confirm that less than three percent of federal criminal cases proceed to trial, and state data is not much different.

This sorry state of affairs must change, and NACDL is prepared to lead the charge. In the coming weeks, NACDL will issue a major report on the trial penalty, and a compendium of reforms to address the problem. Whether or not the imaginary rules will be proposed is not known. But as this column is written, an outstanding task force comprised of members with extraordinarily broad experience is sifting through various proposals.¹ In the coming months, the final report and proposed recommendations will be considered by the NACDL Board of Directors for adoption as formal policy. NACDL members provided many of the accounts that vividly document the trial penalty and shape the report when they responded to a series of requests for case studies. This report will be a cornerstone of NACDL’s advocacy in the coming years. NACDL members should take great pride in this effort, and the Association’s determination to unmask and reverse the systematic assault on the right to a trial.

A system that insulates a prosecution from the searing light of a public trial invites the misuse and abuse of the criminal law. The notion that the exercise of a fundamental constitution right should be so burdened contravenes a core value that is at the heart of a democracy founded upon the concept that the power of government should be limited. Many people are quite rightly fiercely protective of the First Amendment right to freedom of speech and religion; legions are staunch defenders of the Second Amendment rightto bear arms; and others are equally passionate about the Fourth Amendment’s protections against government intrusion. But where is the constituency for the Sixth Amendment right to a trial by jury?

Accused persons should not have to gamble with years of their lives in order to have their day in court. No one should be subjected to geometrically increased punishment merely for putting the government to its proof. And no government should be able to wield the power to prosecute and condemn in a process that is rigged so that it virtually never has to show its hand. A system that has effectively consigned the right to a trial to the dustbin of history should not be tolerated. NACDL intends to use the forthcoming report to launch a national advocacy effort to resurrect this basic constitutional right. Stay tuned.

Notes

The following members serve on the task force: Andy Birrell and Ramon de la Cabada (co-chairs), John Cline, James Felman, Daniela Gordon, Marjorie Peerce, Barry Pollack, and Todd Pugh.