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.