With Congress considering imposing mandatory minimum sentences in sexual assault cases, an article published by The Atlantic on Friday (link) reminds us of “the trial penalty”:

This risk goes well beyond the traditional trade-offs. Plea offers have been around since the 1800s and are a well-established and necessary part of criminal practice. But the new mandatory minimums and sentencing enhancements have given federal prosecutors new power to coerce pleas and avoid trials. A prosecutor can now give a minor drug dealer this choice: “Plead guilty to a reduced charge, or go to trial and risk sentencing that will put you in jail for decades.” It’s not hard to understand why so many defendants—whether innocent, guilty, or not quite as guilty as charged—are taking the first option.

Lawyers call this “the trial penalty,” and even Supreme Court justices like Anthony Kennedy have concluded that “criminal justice today is for the most part a system of pleas, not a system of trials.” The cost—in terms of money and lives—has been noted by leaders on both sides of the political aisle, and has drawn the attention of Attorney General Eric Holder, himself, who has begun the process of rethinking some of the charging guidelines for mandatory minimum sentences.

But, there is a secondary cost that is less often discussed but equally damaging to the criminal justice system. Harsh sentencing laws are killing the jury trial. And without trials, citizens have no say in the criminal justice system.

Of course, we have the Care inquiry, but military defense counsel are familiar with the newest techniques for “client control.” Add mandatory minimums to sex offender registration, in a system where there is no jury, and the incentives to get an accused who professes innocence provident to a plea to a lesser offense may be overwhelming.

13 Responses to “A reason to fear mandatory sentences in military sexual assault cases”

  1. Kjrmiller says:

    I think that this needs to be put in perspective a bit more…most of the criticisms for mandatory minimum sentences discuss drug- related mandatory minimum sentences where there can be a huge disparity in some cases between the severity of the crime and the “harshness” of the sentence.  Even the second to last sentence in the quotation above clarifies the point by saying that it is not simply sentencing laws, but rather “harsh sentencing laws” which are killing the jury trial.  Now for some perspective – Congress is likely to pass a mandatory minimum law this year that requires when a servicemember commits the serious and violent crime of rape or sexual assault (this does not include abusive or aggravated sexual contact), then he/she will be given a dishonorable discharge.  It would seem from the RCM that this type of crime is exactly what the DD was intended for.

  2. Zachary D Spilman says:

    It’s true that the drug cases skew the stats for the rest of the system.

    But for “the serious and violent crime of rape or sexual assault” in the context of Article 120 (2012), see my post: A sexual assault Rorschach

  3. stewie says:

    As long as the mandatory minimum for a sexual assault case remains something like a DD or even a year or two, then it is still far outweighed by sex offender registration in the vast majority of cases such that I find it unlikely to believe that most accused would feel any compulsion to plead guilty.Now if it were life in prison or a significant term of years then I could easily see the compulsion, but the reality is sex offender registration will be a far stronger incentive to take a chance at an acquittal than a DD would be in the reverse.

  4. ExTC says:

    I agree with Stewie on this one. Man mins are hated by the defense bar and I understand why. But tacking on a year, even a couple and or DD, won’t make most military accused quake in their boots and plea. It’s offender reg, plain and simple.  I would much rather support a man min for violent rape, say a couple of years and DD, than for just the vague sexual assault. I just hope Congress gets it right, which I doubt. Violent rape is pretty rare in our system and if you do it, then you may deserve what befalls you.  It would also mean prosecutors cant charge rape and try to plea it down, since the facts rarely fit. Still, I have no hope anything rationale will come of it. 

  5. ResIpsaLoquitur says:

    I’m curious how somebody gets through a Care inquiry if they’re innocent but copping a plea, short of lying to both their defense counsel and the judge.

  6. Anonymous AF Senior Defense Counsel says:

    I disagree that “rape” as defined by the new, new Article 120, must be either serious or violent

  7. Contract Lawyer says:

    Playing with the current system will have unintended consequences.  We identify some here, but there will be plenty that pop up later.  

  8. Lampwriter says:

    It seems safe to say that the divorce between CAAFlog and NIMJ has been finalized, and that the joint blog lives on in name only (perhaps for the sake of the kids).  The pro-status quo voice of CAAFlog, not the pro-reform voice of NIMJ, is the only one now heard in posts and comments. 

  9. stewie says:

    bit of a broadside comment there with all due respect that isn’t well-supported.  I see a front page post attacking the status quo and I see comments for and against the status quo.  I don’t see any different pattern with the rest of the posts on here.  Should everyone be of one mind against the status quo for this blog to be legit in your eyes?

  10. Lampwriter says:

    Can you point to the last NIMJ post?  Neither can I.  

  11. RKincaid3 says:

    Please!  Tell me we that as a society have learned from the 30-year debacle known as “mandatory minimums.”  They don’t work except to force individuals to acede to the government’s allegations of criminal wrongding simply to avoid a “longer” time in jail.  It also avoid the significant legal costs of a full trial on the merits, which few can afford without risking bankruptcy.  Mandatory minimus are good for the system and collective security, but not good for either justice or individual liberty…either conceptually or in practice.  It simply changes the battle from determining IF someone is going to jail for having been adjudicated as being guilty of committing a crime into determining WHEN and how long one will go to jail to avoid forcing the government to prove its case.  In short, it allows the government to threaten an accused into submission for reasons that have nothing to do with guilt or innocence.  It punishes resistance to government allegations, thereby discouraging an accused from actually asserting in court his/her presumption of innocence not because they are guilty, but because they fear not being able to convince the jury/panel of their innocence.  We don’t allow punishments to be increased on appeal simply to avoid punishing the act of appealing.  Seems to me that the same logic applies in this case…mandatory minimus are a real problem and should be avoided.

  12. Advocaat says:

    Can anyone point to a study that has found mandatory minimum sentences enhance justice, deter crime, or are even cost effective?  I know, I know…objection, relevance.

  13. RKincaid3 says:

    Start with the below link…then do some research.  When considering what constitutes a “justice” system vice a “retribution” system, it is generally best to consider that there are fewer problems with a justice system lacking mandatory minimums than in a system with such a scheme. http://www.npr.org/blogs/thetwo-way/2013/12/05/248893775/report-threat-of-mandatory-minimums-used-to-coerce-guilty-pleas