In business negotiations, both parties involved have the liberty to propose, counter-propose and adjust terms until a mutually beneficial agreement is reached. This process may involve bargaining over prices, delivery times, service levels, or other contract terms. If a party thinks the deal is not in their best interest, they can choose to discontinue the negotiations.
However, in plea negotiations — where the stakes are much higher — the freedom to walk away is often an illusion. Sure, the accused can assert their right to trial — but at what cost?
Ten years ago, my wife, a lawyer, and I volunteered to visit inmates who needed kindness and encouragement. We met someone who was serving time for a so-called “financial crime,” lying on a federal form about his bankruptcy. Prosecutors, no doubt under pressure because of the 2008 mortgage crisis, came in guns blazing offering a five- to seven-year plea deal for an offense that should have been no more than a misdemeanor. They warned that going to trial would be devastating.
Still, he chose trial. With the prosecutors stacking charges and seeking harsh punishment for this minor crime, he ended up with an 85-year sentence after trial. I couldn’t believe this could happen in America. After 13 years, he received a presidential commutation. He had to start life all over and all alone; that’s what an 85-year trial penalty sentence does.
The framers of our Constitution and Bill of Rights enshrined the accused’s right to trial because, as John Adams wrote, “representative government and trial by jury are the heart and lungs of liberty.” Nevertheless, at the federal and state levels, this principle has withered as prosecutors use every tool at their disposal to avoid trial by jury. The upshot is that 98 percent of all criminal convictions result from plea deals, even when the accused and society would have been better served by a jury trial.
What has caused the shift in the American justice system, with the trial rate dropping from 20 percent to 3 percent in the last two decades? It’s the threat by prosecutors of substantially higher sentences after trial, which many call the “trial penalty,” that makes almost all defendants cry “uncle” and give up.
Defendants and defense lawyers know that the price goes up — way up — if a person exercises their constitutional right and chooses to go to trial in a case. Walking away from the negotiating table costs years or decades of someone’s life for exercising a constitutional right. In effect, it is legally sanctioned coercion.
The trial penalty is a set of laws and tactics — to stack charges, threaten vindictive punishments and tie judges’ hands with mandatory sentences — that pervades the judicial system.
To move cases and chalk up convictions, prosecutors are shameless in threatening to penalize the accused for choosing to go to trial. Faced with the prospect of years or even decades behind bars and other devastating consequences, most are too scared to fight for themselves, and they take the plea “deal.” The search for the truth is eclipsed by the pursuit of efficiency, undermining public safety and government accountability.
Instead of pursuing justice and giving voice to juries as the conscience of the community, we have become a nation that treasures the efficiency of speedy plea bargains. This practice ensures that the less culpable are punished more harshly for their crimes and even sees prosecutors “successfully” push the innocent into quick plea deals instead of searching for the real perpetrators. These trial penalty victims are forced to gamble with years or decades of their lives if they choose to go to trial or fold and be treated as if they were guilty.
As an entrepreneur, innovator and libertarian, I view myself as a disruptor. And America’s criminal justice system is desperately in need of change. During the last two years, I have partnered with the National Association of Criminal Defense Lawyers in support of federal legislation to ameliorate the punitive, and frankly, unconstitutional, effects of the trial penalty.
A few weeks ago, the Right to Trial Act was introduced in the House with strong bipartisan support. The bill would allow federal judges to consider the trial penalty when handing down sentences and, when appropriate, ignore the harsh mandatory minimum sentences that frequently hammer defendants who exercise their constitutional right to trial.
I urge the House and Senate to pass this bill so that people in our criminal justice system aren’t punished for exercising their constitutional right to a trial.
Moving legislation in Congress, both the House and Senate, is a slow and grueling process no matter how vital to our democracy. Couple that with 50 state legislatures that need to do the same, and it may seem like a daunting task. We must persevere to uphold the essential right that America’s founders believed to be the cornerstone of our justice system.
