The American criminal justice system is a national disgrace. Simply put, there are way too many people in prison. There are more prisoners in the United States than there are in China, even though China has four times our general population. In fact, 25% of all of the world’s prisoners are incarcerated in the United States.
There are a few reasons for this. One, of course, is that prosecutors have too much power. They have it because judges allow them to have it. Judges have proven unwilling to restrain prosecutors – after all, every one of the roughly 1.6 million people (that’s about the population of New Mexico, by the way, 1 in 100 Americans currently behind bars was sent there by a judge – and so the only possible check on America’s epidemic of mass incarceration is us: the defense bar.
And yet, according to the Supreme Court’s 2011 decision in Missouri v. Frye, “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” Of the remaining three and six percents respectively, I suspect that the majority go to bench, and not jury, trial, meaning that the jury trial has virtually disappeared from the American criminal courtroom.
So, whatever the problem is with our justice system (and I tend to think that a country that locks up one in 100 of its citizens has a problem), it’s not that the defense bar is trying too many cases. On the contrary, perhaps we’re trying too few.[Before I go further, let me make clear that no, I’m not telling you to try every case. In some cases (in fact, probably in most cases), going to trial is a bad idea. I suspect that it’s a good idea in more than the small percentage that actually make it to trial though.]
Here are three reasons to answer ready for trial.
Reason 1. Trials Publicize Injustices
Many people think that a lot of the crimes that people are now charged with – crimes like drug possession and prostitution – shouldn’t be crimes at all. Jury trial is an excellent way to immediately bring this dilemma to the public, both because the trials themselves are public, and because the trial exposes the issue to the public, twelve citizens at a time.
While it’s true that most jurisdictions (perhaps even all jurisdictions) bar explicit arguments regarding jury nullification (a practice that I disagree with and discuss elsewhere), courts can’t strip jurors of their innate sense of justice. There are ways to appeal to that without explicitly telling jurors to ignore the law.
Thus, taking a case to jury trial can be an excellent means of alerting a segment of society to a problem within society. It’s difficult for me to see the harm in that.
[I’d also note that, when you got your law degree, it didn’t come with restrictions. It didn’t say, for example, “use in court only.” If you really think a law is unjust, say something. Trying the issue in the court of public opinion is, perhaps, even more important than trying it in a court of law. Talk to your local paper about it. Start a website. ;)]Reason 2. Trials Can Get You Better Plea Offers
At the end of the day, the single best negotiating tool you have as a defense attorney is the threat of trial. Prosecutors don’t like to try cases because with trials come risks, and prosecutors like solid odds.
Also, prosecutors bring lots of cases (Why not? They all plead out anyway – see 3 below). They don’t have time to try your case. Thus, if they think you’re going to trial, they’ll make you a better offer, meaning no prison time, or less prison time for your client. Splendid.
The thing is though, in order to get those kinds of deals, you actually have to go to trial every now and then. And I’m not talking about bench trials. I’m talking about full-blown twelve-person juries with objections and everything. If you don’t do that, your threats are empty, and your clients suffer, and the prisons bulge.
Reason 3. Trials Force the Prosecution to Prioritize
The criminal justice system is not designed to handle trials; it’s designed to process pleas. This enables prosecutors to bring lots and lots of charges. But, if attorneys brought a few more cases to trial, that would put pressure on the system and prosecutors would have to be a little more discriminating. They might focus on the truly serious crimes – the murders, the sex assaults – instead of insisting that your client agree to three years for driving on a suspended license (and no, I don’t care how many priors he’s had).
I’m not saying that trials are all champagne and roses. There are serious drawbacks to trying a case, like losing, which often means more prison time for your client. You must take those into consideration when you advise your clients.
But, there are also benefits. Don’t ignore them.