A New Report Says Yes
Defendants in federal cases face life changing choices once they have been charged, plead guilty and take a less severe penalty, or exercise their right to a trial and risk years (decades) in prison. It is no wonder that some have pondered whether innocent people are pleading guilty to crimes they did not commit.
A new paper published by the National Association of Criminal Defense Lawyers (NACDL) “The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.” We may not know every amendment to the Constitution, but we all embrace the fact that in the U.S. everyone is entitled to a fair trial by a jury of our peers. However, going to trial can be a gamble with one’s life. One conclusion reached by the NACDL was that “There is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk.“
The Federal Sentencing Guidelines, which I have written about here before, provides for stiff penalties, even life sentences, for a number of crimes that are usually categorized as non-violent (drug offenses, white collar crime, etc.). Some have speculated that President Trump’s former campaign manager, Paul Manafort, who is on trial for various fraud/tax charges, could face over 300 years in prison if convicted.
I recently attended what was supposed to be a guilty plea in federal court in Boston. The defendant, who was there on various drug-related charges, sat as a federal judge explained that pleading guilty would amount to waiving his rights to a jury trial. The plea would likely render a prison term of 30 years … so one can only imagine what the term would be if a jury trial resulted in a “guilty” verdict. The judge, to his credit, explained in great detail how much the government would have to prove in order to convict him and that a jury might find him innocent. The judge looked at the defendant and said, “Do you understand that?” To which the defendant replied, “I’d like to talk to my attorneys.” The hearing was adjourned while the defendant considered his options. The point is, I have witnessed the struggles that people have when they choose to waive their rights when they plead guilty.
Another case NACDL cited was that of Christian Allmendinger, another case that I have written about. Allmendinger was involved in a complex case of purchasing life insurance policies. He was partners with another guy, Brent Oncale. Onacle pleaded guilty and was sentenced to 10 years in prison. Allmendinger went to trial where Onacle testified against him … he was found guilty and sentenced to 45 years in prison. Onacle had his sentence reduced to 5 years after testifying. It is disparities like this that are just a few of the reasons we have a growing issue with our criminal justice system.
Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt, defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law including the proof beyond a reasonable doubt standard, and judges dedicate their time to administering plea allocutions rather than evaluating the constitutional and legal aspects of the government’s case and police conduct. Equally important, the public rarely exercises the oversight function envisioned by the Framers and inherent in jury service.
NACDL even called out former US Attorney Preet Bharara (Southern District of New York) for acknowledging that the Federal Sentencing Guidelines were often severe for economic (white collar crimes), but then went on to propose harsh penalties for those who were involved in criminal charges where there were no actual losses (insider trading and mortgage fraud). The fact is that prosecutors are winning cases because over 97% of defendants are pleading guilty. Even those pleas are resulting in long prison terms.
So what is the solution? It is complex. Often, cooperating co-defendants are powerful witnesses and the only way to catch those who are truly guilty. In addition, our federal justice system is currently unable to keep up with the current caseload, so if the defendants that chose to plead guilty went down to, say, 90%, the courts would be overwhelmed with cases.
There is no such thing as a perfect criminal justice system. But a healthy one is constantly introspective, never complacent, always searching for injustices within and determined to address them.
John Gleeson (former US District Judge Eastern District of New York, Partner, Debevoise & Plimpton)