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Your Right to Trial and the "Trial Penalty"

Posted by Ian M. L'Heureux | Feb 27, 2021 | 0 Comments

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

Above is the text of the Sixth Amendment of the Constitution of the United States. The Constitution of the State of Maine uses similar language in its "Section Six" which practically plagiarizes from the federal Constitution. The Sixth Amendment, in my opinion, is the absolute cornerstone of our criminal justice system. In the text of this amendment is the guarantee to every individual that if the government accuses you of having committed a crime, you can fight back. 

There is no justice without the ability of individuals to challenge the government. Point blank, if the government was simply able to point the finger and jail people purely on its own belief that they found a guilty person, then mark my words the government would be jailing innocent people left and right. There are several reasons for this that I think people all throughout the political spectrum understand even if we sometimes find it difficult to articulate.

Bottom line though, is that America was founded on the idea that we value the rights of individuals over the interests of the government and that government is a necessary evil, but an evil all the same. As such, the only tolerable government is one with limited power and every citizen must enjoy rights that cannot be invaded by the government.

The rights guaranteed by the Sixth Amendment, however, are slipping away from us. Or, more accurately, are being extorted from us. More specifically, the absolute right to a trial by jury is being robbed from us at gunpoint. It has become standard practice by prosecutors around the country in both federal and state courts to threaten defendants, individual citizens, with the government's power to take away their liberty and impose sentences that are wildly disproportionate to criminal conduct alleged to have occurred. 

In no other sphere of American life is it acceptable for the government to intimidate and extort citizens to "choose" not to exercise their rights. We could not fathom, for instance, incurring a fine for voting, going to church, or expressing an opinion. In the criminal justice system though, we allow exactly that to happen when it comes to exercising the right to jury trial.

We refer to this as "the Trial Penalty."

I am not going to pretend that this observation is original or ground-breaking. This has been a problem for decades that critics have been pointing out more and more loudly and forcefully even as the number of jury trials in America have been declining and the punishments for exercising your rights are climbing. 

According to the National Association of Criminal Defense Lawyers, approximately 97% of federal criminal cases are resolved by plea bargain. In a recent editorial to the Wall Street Journal, famous lawyer and Harvard Law Professor Alan Dershowitz explains that this is mostly due to the fact that criminal defendants (even the innocent ones) are presented with plea bargains that basically amount to threats not to exercise your Sixth Amendment right to trial. Prosecutors will offer the Defendant a lighter sentence to plea guilty, but will tell the Defendant that if he goes to trial, he will ask the judge for a sentence ten times greater if the the jury returns a verdict of guilty. 

When people are up against all of the resources of the government (federal or state) and faced with the prospect of (as Professor Dershowitz puts it) adding zeroes onto the amount of time they spend locked up in a 12x10 cell that locks from the outside, it is no wonder why man people choose to give up their rights for a bad guaranteed outcome then risk a possible worse outcome. 

Hell, nowadays even if you are not looking at jail time the consequences are still scary. For many people, even a misdemeanor criminal convictions means their lives are thrown wildly off course. It becomes significantly more difficult to find and hold down a respectable job if you are carrying around a black market on your record or wearing a scarlet letter "C" on your chest for "criminal."

Most people simply do not care about this problem because they assume everyone pleading guilty is actually guilty. If only that were true. The fact of the matter is, however, that the government gets things wrong much more often than we like to admit; and in the age of the Innocence Project we have all watched over the last few decades as innocent people are released from prison. Even if those numbers are still relatively overall low, it does not excuse taking away precious years of the only life a person will ever live for crimes they did not commit. Besides, it is equally unjust to lock someone away for more time than they deserve than they deserve as it is to lock someone up who is in fact innocent. 

Make no mistake, the practice of plea bargaining absolutely artificially inflates the cost of going to trial and brings up the total sentences served overall. Prosecutors are incentivized to resolve cases as quickly as possible so that they can keep the dockets moving. The result is an assembly line type justice system that is efficient but cranks out shoddy craftsmanship, which in the legal system means unjust results.

I am not going to pretend that plea bargaining does not sometimes make sense, because sometimes it does. Unfortunately, more often than not, Defendants are still choosing to waive their right to a trial by jury because of one reason: fear. They don't care about the strength of their case, they don't care that they are being pushed around by the biggest bully on the block, they are just plain scared of having their lives ruined. 

 If you are accused of a crime, you can expect to be bullied by the government whether you are guilty or not. You can expect them to threaten your liberty and your livelihood. You can expect them to play dirty. You can expect them to care more about their win/loss ratio than individual justice. You can expect that your choices will consist of either laying down on the track allowing the train to run over you, or risking it all demanding your Constitutional rights. 

About the Author

Ian M. L'Heureux

Ian L'Heureux is originally from Sanford, Maine and graduated from Norwich University, The Military College of Vermont, in 2014 with a Bachelor of Arts in Political Science. Afterwards, he worked for a year as a Juvenile Program Worker at Long Creek Youth Development Center before entering the Un...


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