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
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HCBA LAWYER