The constitutional law we negotiated



The Bill of Rights exists to protect individuals. It protects the right to freedom of expression, the right to due process, the right to a lawyer and the right not to be subjected to cruel and unusual punishment, to name a few. If a government official tries to deprive an individual of any of these constitutional rights, the courts are supposed to intervene.

But that’s not what happens when it comes to one of the most important rights for criminal defendants: the right to a jury trial. Instead of protecting the right of defendants to have their guilt or innocence decided by their peers, judges regularly punish defendants for exercising this right. Specifically, judges routinely impose longer sentences on defendants who insist on trial than on those who plead guilty. A 2018 report shows that, on average, defendants who insist on a trial receive sentences three times the length of those defendants who plead guilty. This practice is so common that it even has a name: the “sentence of judgment”.

The executive branch of government has followed the example of the courts; many prosecutors pressure defendants to negotiate their right to a jury. They will offer the defendants concessions, such as dropping certain criminal charges or recommending leniency at sentencing, in return for a guilty plea. Advocacy negotiations dominate the system. Only 3 percent of convictions result from a trial, the rest come from guilty pleas. As the Supreme Court said, “Criminal justice today is largely a system of advocacy, not a system of trials. “

Lawmakers are also helping prosecutors gut the right to a trial by passing new laws providing for mandatory minimum sentences. These laws give prosecutors more leverage in plea bargaining because they can offer defendants an agreement in which they plead guilty to a less serious charge that does not have a mandatory minimum sentence. In some cases, lawmakers have admitted voting in favor of these mandatory minimum sentences in order to give prosecutors greater influence. For example, in 2015, Senator Chuck Grassley successfully blocked efforts to reduce mandatory minimum sentences for federal drug crimes. Grassley opposed changing those sentences because he believed the tough drug laws served the “intended purpose” of pressuring defendants to cooperate with law enforcement.

The pressure defendants face can take the form of years in prison. For example, when Mohamed Taher was charged with importing and distributing marijuana in upstate New York, prosecutors offered him a 10-year sentence in exchange for a guilty plea. Taher refused the plea bargain and prosecutors responded by laying new charges with a mandatory minimum sentence of 22 years. Taher was put on trial and, although he was unarmed and did not commit any violent crime, he was sentenced to 25 years in prison. Indeed, Taher was sentenced to an additional 15 years in prison for insisting on his right to a jury trial.

If government actors tried to put people in jail for exercising other rights, such as the right to free speech, the right to belong to a church or the right to vote, judges would intervene quickly. and stop this practice. Yet not only has the Supreme Court authorized trial sentences and plea bargaining; he actually encouraged them.

Some proponents say the trial sentence does not punish people for exercising their right to a trial; it simply gives an advantage (a shorter sentence) to those who are prepared to plead guilty. Personally, I don’t see how to put someone in jail any longer because she insisted her right to a jury trial can be requalified as a benefit to another accused who pleads guilty. But even if it was a benefit, it shouldn’t make a constitutional difference. Courts generally don’t let government officials force you to give up your constitutional rights in order to get something in return. If, for example, the federal government told you that you must give up your right to vote to get Social Security benefits, judges would say that this is an “unconstitutional condition” and declare the practice illegal. But the judges did not extend their doctrine of unconstitutional conditions to plea bargaining or trial punishment.

The reason given by the Supreme Court for excluding the right to a jury trial from its ordinary constitutional rules is simple: resources. The Court does not believe that the criminal justice system could manage the granting of a trial to each accused. Without plea bargaining, the court said that “states and the federal government should multiply the number of judges and court facilities by several times.” Chief Justice Warren Burger, who wrote the opinion, delivered a speech in which he explained that the justice system depends on defendants pleading guilty. He said that “the court system – the number of judges, prosecutors and courtrooms – was based on the principle that about 90 percent of all defendants will plead guilty, leaving only 10 percent, more or less, to be judged “. Chief Justice Burger did not believe the system could handle more trials, warning that if only 80% of the accused pleaded guilty, the justice system should double the number of “judges, court reporters, bailiffs, clerks, jurors and courtrooms. “

At one level, the resource argument is compelling. It is certainly true that our courts could not hold trials for all criminal matters that go through the justice system. But this lack of capacity does not explain the few trials we currently have. In 1990, more than 7,800 criminal trials were held in federal court. In 2016, that number fell to less than 1,900. In other words, we’ve made it so easy for prosecutors to pressure defendants to plead guilty that we have less than a quarter of criminal trials. than 30 years ago, even though we have more judges and more prosecutors today than we did then. Resources therefore cannot explain the policies we have adopted to pressure almost all defendants to plead guilty. Even if we accept the logic of the resources argument, we could still protect the constitutional rights of thousands more Americans every year.

But is the resource argument a fair start? Of course, many Americans want government to be efficient and to cut costs. But the efficiency of the criminal justice system has a serious drawback: the easier and cheaper it can be managed, the more people end up doing it. Unfortunately, the United States has been incredibly good at locking people up. As a result, we are the world leader in the imprisonment of our citizens. The United States is home to about 20 percent of the world’s prisoners, although it is home to less than 5 percent of the world’s population. So maybe we should think about how we can make our system less effective.

It is not too late for the country to change course. The rise of originalism – the theory that the Constitution should be interpreted as it was understood when it was first written – may contain the solution to plea bargaining and mass incarceration. There is good evidence to suggest that the people who founded this country believed that plea bargaining should be banned. For example, Thomas Jefferson once said that if he had to choose between democratic participation in the legislature and democratic participation in the judiciary in the form of juries, he would choose juries. Likewise, John Adams wrote, “The common people should have as complete control … over every judgment of a court” as they do in the legislature. And the early English and American judges were incredibly hostile whenever they encountered this practice. This evidence is important because the originalist judges of the Court generally do not hesitate to set aside modern precedents when they have a strong historical reason for doing so.

But adopting an originalist view of the Constitution is not necessary to reject the constitutionality of plea bargaining and trial punishment. Whatever your constitutional theory of interpretation, punishing people for exercising their constitutional rights is totally incompatible with the very idea of ​​a constitutional right. That modern American courts have failed to recognize this is a complete failure. They must do their part in our constitutional system and protect, not negotiate, the rights of Americans.



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