HCBA Lawyer Magazine Vol. 30, No. 3 | Page 72

the triaL PeNaLty aNd the disaPPeariNG CrimiNaL Jury triaL Trial & Litigation Section Chair: Morgan Streetman - Streetman Law “Penalizing individuals for exercising basic rights is stark injustice and there is an emerging consensus that it is time to stop it.” F or decades, the percentage of criminal defendants who go to trial has steadily decreased. A recent National Association of Criminal Defense Lawyers (NACDL) report, “The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It,” both illuminates and explains this concern. According to the NACDL Report, jury trials now occur in less than three percent of state and federal criminal cases. Criminal defendants in Florida are even less likely to take a case to trial. Statistics from the Florida Office of the State Courts Administrator show that out of the 164,820 felony criminal cases filed in Florida Circuit Courts in 2017-18, only about 1.6 percent of cases were resolved by jury trial, while the overwhelming majority of cases were resolved prior to trial, most often with pleas or other dispositions such as diversion programs. The reasons for this decline in the criminal jury trial are no mystery. A variety of systemic issues, including draconian mandatory minimum sentences and sentence reductions for defendants who plead guilty and/or assist the government, means that defendants who take cases to trial receive substantially higher sentences. For example, the NACDL Report 70 — Norman reimer, executive director of NaCdL demonstrates that in federal criminal cases sentenced in 2015, the average sentence for a defendant who pled guilty was 3.3 years, while the average sentence for a defendant who went to trial was 10.8 years — more than three times as long. The much-higher sentences imposed after a trial create tremendous pressure on defendants to plead guilty. Defendants’ understandable reluctance to risk trial has important consequences. The right to a jury trial is enshrined in our Constitution, because jury trials are in important check on government power and provide defendants with substantive and procedural protections. The heavy penalties attached to taking a case to trial can result in innocent people pleading guilty. As the NACDL Report explains, “[o]f the 354 individuals exonerated by DNA analysis, 11 percent had pled guilty to crimes they did not commit, and the National Registry of Exonerations has identified 359 exonerees who had pled guilty.” The NACDL Report proposes the implementation of procedures to ensure that defendants who go to trial are not punished for doing so by receiving substantially increased sentences. Since its release, it has gained widespread attention and support across the political spectrum. NACDL executive Norman Reimer has explained that the report has “garnered voices from across the ideological perspective, the academy, and the practicing bar all decrying the evisceration of fundamental rights caused by the trial penalty. Penalizing individuals by imposing extra years of imprisonment simply for exercising basic rights is stark injustice and there is an emerging consensus that it is time to stop it.” In the face of this consensus the members of the executive, legislative, and judicial branches must work together to protect the right to trial. n National Association of Criminal Defense Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, (2018), available at https://www.nacdl. org/getattachment/95b7f0f5-90df-4f9f- 9115-520b3f58036a/the-trial-penalty- the-sixth-amendment-right-to-trial-on- the-verge-of- extinction-and- how-to-save-it.pdf. 1 Author: Katherine Earle Yanes - Kynes, Markman & Felman JAN - FEB 2020 | HCBA LAWYER