The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It

As the Founding Fathers envisioned, the Sixth Amendment’s right to trial by jury protects criminal defendants from prosecutors’ ill-advised charging decisions. Over the last thirty years, however, the trial rate has declined from over twenty percent to approximately three percent, and a system of pleas prevails. Defendants who exercise their right to trial and lose face a “penalty” in the form of sentences that are exponentially higher than those pursuant to guilty pleas. Several factors perseverate this injustice: prosecutors enjoy unbridled discretion and asymmetrical access to information; prosecutors’ charging decisions trigger harsh penalties under mandatory minimum statutes; and judges adhere strictly to harsh, formulaic calculations prescribed by the once-mandatory Sentencing Guidelines. Defendants would rather waive their rights to trial, evidence-seeking, and appeal than challenge the Government to put up proof beyond a reasonable doubt. The pressures are so strong that even innocent defendants plead guilty to crimes they did not commit. The system diminishes judges’ traditional supervisory role and encourages prosecutors and police to abuse the law because their conduct will not be brought to public attention at a trial. Advocacy skills also decline with the number of trials. This report concludes with ten principles and ten recommendations—including banning mandatory minimums and encouraging judicial oversight—to guide the criminal justice system in its plea practices and restore the integrity of the jury trial.

“Federal prosecutors have used that power to make the trial penalty too severe, and the dramatic diminution in the federal trial rate is the result. Our system is too opaque and too severe, and everyone in it—judges, prosecutors, and defense attorneys—is losing the edge that trials once gave them. Most important of all, a system without a critical mass of trials cannot deliver on our constitutional promises.” p. 3