A helpful reader made sure I did not miss these two recent interesting items related to the pernicious realities of the trial penalty:
Commentary from Shon Hopwood and Brett Tolman, “Amy Coney Barrett Could Help Repair Unconstitutional Aspects of the Criminal Justice System.” An excerpt (links from original):
The Constitution matters. Yet, in our current criminal justice system, every day a fundamental component of the U.S. Constitution is trampled upon. When a person accused of a crime chooses to defend themselves and to exercise their Sixth Amendment right to a “speedy and public trial” instead of accepting a plea deal, they should not be punished more severely for exercising this constitutional right. As the nation watched the confirmation hearing of constitutional scholar and jurist Amy Coney Barrett, it was apparent that her intellect, her adherence to the text of the Constitution, and her discipline in preserving constitutional rights and protections make her a fitting replacement to Justice Ruth Bader Ginsburg and a justice poised to help repair a broken and unconstitutional aspect of the criminal justice system: the trial penalty.
The “trial penalty” isn’t just some law school exam hypothetical, but the real-life consequence of choosing to exercise a constitutional right and make the government actually prove their case. A 2018 report from the National Association of Criminal Defense Lawyers found that “Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose.” Former federal judge, John Gleeson, wrote in the introduction to this “trial penalty” report, “[p]utting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.”
News Release from the National Association of Criminal Defense Lawyers, “NACDL Trial Penalty Clemency Project Submits First Set of Petitions to White House.” An excerpt (links from original):
On October 2, 2020, NACDL’s Trial Penalty Clemency Project submitted its first set of federal clemency petitions to the Office of the Pardon Attorney and to the White House. Of the six petitions, three concern individuals serving life sentences and a fourth concerns an individual serving an 835-year sentence. Taken together, the sentences of these six individuals, as compared to the sentences of their co-defendants or to the plea deals offered to them, represent over 100 years of punishment solely due to the fact that these individuals exercised their Sixth Amendment right to go to trial — a defining feature of the modern American criminal legal system known as the trial penalty.
While society is awakening to the number of wrongs embodied in the trial penalty, there are a number of individuals enduring the trial penalty as they serve excessively long prison sentences as a result of electing to go to trial and holding the government to its burden. The only remedy for these individuals is executive clemency. The Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition. Reform is needed to end the trial penalty. In the interim, this Project provides an opportunity for a second chance to those individuals who are living it….
In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.
In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled “The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End.”
A few prior related posts:
- “The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It”
- Latest (double) issue of FSR covers “The Tyranny of the Trial Penalty”: An introduction
- Two new open access articles from FSR issue on “The Tyranny of the Trial Penalty”
- Two more open access articles from FSR issue on “The Tyranny of the Trial Penalty”
- Another two more open access articles from FSR issue on “The Tyranny of the Trial Penalty”
- Big group of US Representatives urges Acting Pardon Attorney to make sure “trial penalty” is part of clemency considerations