FEBRUARY 9, 2018 9:51AM
The Trial Penalty
By CLARK NEILY
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Have you ever heard of the “Trial Penalty”? It is among the most important features of America’s criminal justice system, and yet there is no reference to it in the Constitution, it is not taught in high school civics classes or even law schools, and most lawyers have never heard of it. Nevertheless, the Trial Penalty is the grease that keeps the massive engine of American criminal justice humming along at peak efficiency.
So what is it? Simply put, the Trial Penalty is the array of penalties, paybacks, and repercussions that are inflicted upon criminal defendants who presume to insist upon exercising their Sixth Amendment right to a jury trial—or what Cato Research Fellow Trevor Burrus calls “bespoke justice.”
With more than 10 million arrests last year and the world’s highest incarceration rate, America’s criminal justice system simply cannot afford to provide each and every defendant with an expensive and time-consuming jury trial. Nor do we: These days, about 95 percent of criminal convictions are obtained through plea bargains rather than jury trials. In the federal system, the numbers are even higher—more than 97 percent of convictions come from plea bargains.
Think about that for a moment. The citizen jury is the cornerstone of American criminal justice. It is a historic and hallowed institution. Why would so few people choose to invoke such a precious and fundamental right as the opportunity to challenge the government’s case in court and force the prosecutors to convince a unanimous jury (in most jurisdictions) of guilt beyond a reasonable doubt?
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Up in NH, I took part in a jury outreach that had two aims:
- get every defendant to demand a jury trial — when the system was maxed out, the judge was forced to dismiss. The “serious crimes” would push the Marijuana “crimes” down the list and some, if not all, were pushed off and dismissed.
- get every juror to be aware that they could judge the law and the circumstances and vote “not guilty”. Regardless of what the judge said. “Keep quiet and vote to acquit.” Ever heard of Zenger and the reason we have “freedom of the press”?
Made me feel like I made a contribution to justice.
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