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News Release ~ 07/10/2018

Nation’s Criminal Defense Bar Releases Groundbreaking Report, Principles, and Recommendations Concerning the ‘Trial Penalty’ and the Decline of the Constitution’s Sixth Amendment Right to Trial

Washington, DC (July 10, 2018) – At a special event at the National Press Club earlier today, The National Association of Criminal Defense Lawyers (NACDL) released The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. The ‘trial penalty’ refers to the substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system. The release of this report garnered support from leading criminal justice reform entities, all of which agree that the incursion on the right to a trial poses a clear threat to justice.

This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident. The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout the federal and state criminal justice systems. The Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.

“It’s true that the trial penalty impacts everyone in our profession, everyone in the justice system, and everyone who finds themselves in the role of defendant,” said NACDL President Rick Jones. “But it inordinately impacts the poor and people of color. We have to be mindful of that every step of the way.”

“With the release of the report today, NACDL hopes to begin a reform movement that will save the basic right to a trial,” said NACDL Executive Director Norman L. Reimer. “The founders of this country recognized that the right to a trial – the interposition of one’s peers as a check on government abuse of the power of the prosecutor – was essential to the preservation of liberty. The ability to test evidence, both its legality and its factual sufficiency, is essential to prevent tyranny.”

The keynote speaker at today’s event was former U.S. Federal Judge John Gleeson (E.D.N.Y.). In addition to NACDL leadership including NACDL President Rick Jones, NACDL Immediate Past President Barry Pollack, and NACDL Executive Director Norman L. Reimer, representatives from numerous leading groups in the criminal justice reform movement from across the political spectrum agree that the trial penalty in the American criminal justice system is a serious problem that needs to be addressed. Those groups included the Cato Institute, Human Rights Watch, Right on Crime, Texas Public Policy Foundation, Families Against Mandatory Minimums, the ACLU, the Charles Koch Institute, the Innocence Project, and Fair Trials International. Pro Bono Counsel Don Salzman from the firm of Skadden, Arps, Slate, Meagher & Flom LLP also spoke, as did New York criminal defense attorney Frederick P. Hafetz. A link to a video recording of today’s event will be available in the coming days at www.nacdl.org/trialpenaltyreport.

Judge Gleeson, who also authored the foreword to the report, closed his keynote remarks today, saying: “Congratulations to NACDL for this fabulous report and to all these organizations who are here to support it. It’s a fundamentally important issue. The fact that this conversation is elevated by this report and by your presence here is so important, no matter how long it takes, for the reforms that are needed to come to pass.”

As the release of this report is a beginning point for tackling the dramatic encroachment upon the Constitution’s Sixth Amendment right to trial, NACDL is seeking to learn about more individual encounters with the trial penalty in the American criminal justice system, whether on the federal or state level. If you are interested in sharing a trial penalty story, please use this link to take a short survey: https://www.surveymonkey.com/r/TrialPenalty.

Information and a PDF of The Trial Penalty report are available at www.nacdl.org/trialpenaltyreport. A video and audio of the event will also be posted to this page in the coming days.

NACDL thanks the Foundation for Criminal Justice and various other donors whose financial support helped make this project possible. NACDL also extends its deep appreciation to the team of attorneys at the firm of Skadden, Arps, Slate, Meagher & Flom LLP who worked diligently on the extensive research and drafting involved in this critical project. NACDL also extends its thanks to the members of the NACDL Trial Penalty Recommendation Task Force who dedicated their time and effort to this report and the development of its principles and recommendations. This project also would not have been possible without the NACDL members and their clients who contributed their stories to this effort.

Contact

Ivan Dominguez, NACDL Director of Public Affairs and Communications, (202) 465-7662 or idominguez@nacdl.org 

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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