State's do-it-yourself justice system stacks deck against defendants | Opinion

“That the right of trial by jury shall remain inviolate.” Tennessee Constitution

When charged with a crime, do Tennesseans call upon fellow citizens, sitting as a jury, to decide their guilt or innocence? No way.

Of the 1,681 federal criminal cases resolved in Tennessee in 2019, according to the United States Sentencing Commission, only 51, or 3.0%, were decided by a jury trial. While many thousands more state criminal cases are resolved in Tennessee each year, it is even less likely a case will go to trial in state court than in federal court.

Tennesseans choose to convict themselves

Instead of forcing the state to prove their guilt in a courtroom, around 98%, or 980 of every 1,000 criminally charged Tennesseans, choose to convict themselves.

Trial by jury — in Alexander Hamilton’s view, “a safeguard to liberty” — is being replaced with assembly-line, do-it-yourself “justice” factories in which the accused’s defense attorney and a government prosecutor privately negotiate a guilty plea.

Reversing earlier decisions, the U.S. Supreme Court in Brady v. United States (1970) declared that a negotiated guilty plea may be allowed if “motivated by the defendant’s desire to accept the certainty or probability of a lesser penalty rather than face … a higher penalty authorized by law for the crime charged.”

With the top court’s blessing, state lawmakers stacked the deck against defendants with harsh, mandatory minimum sentences for convictions on drug-related and many other crimes. These laws tie the hands of judges but give prosecutors the power to threaten to indict a defendant for additional, related crimes in order to get a guilty plea.

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At first glance, guilty pleas might look like a win all around. Defendants avoid the costs and uncertainty of a trial. Prosecutors avoid time-consuming preparation for a lengthy courtroom trial. Judges also benefit by avoiding tedious courtroom trials.

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Plea mania

But wait. A 2018 report by the National Association of Criminal Defense Lawyers and the Foundation for Criminal Justice titled "The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It," exposes the popularity of plea mania. For the same federal crime, post-trial sentences are indeed much harsher than plea-bargain sentences.

“In 2015,” for example, “the average sentence for fraud was three times as high (six years versus 1.9 years) for defendants who went to trial versus those who pled guilty … [and] for burglary/breaking and entering was nearly eight times as high (12.5 years versus 1.6 years),” the report stated. The difference — a trial penalty — is the cost paid by defendants if convicted in a courtroom trial.

The report concludes, “the threat of a substantially greater sentence following a conviction at trial is a powerful incentive for even an innocent person to forego his or her Constitutional rights … [and] … it is well established that the trial penalty is just as prevalent in state and local criminal prosecutions, and that the virtual extinction of jury trials is just as prevalent in these jurisdictions.”

But at a trial not all are convicted. In a public courtroom, unlike backroom plea deals, the government must make its case to impartial jurors, and defendants are free to show jurors that the government’s evidence is not sufficient to prove one’s guilt beyond a reasonable doubt.

Using 2016-2017 data, the National Center for State Courts found that nationwide nearly one-third of felony jury trials ended in acquittal or dismissal, suggesting that if 90% of criminally charged Tennesseans were to go to trial rather than accept a guilty plea each year, three in 10 would likely be found not guilty and go free.

In other words, plea mania may needlessly be putting thousands of Tennesseans behind bars each year.

What lawmakers should do

What to do?

Since 1990, Families Against Mandatory Minimums, a national organization, has successfully lobbied for sentencing reforms in dozens of states, including Tennessee. FAMM calls on “Lawmakers to repeal mandatory and restrictive minimum sentencing laws” and return to judges “the authority to consider all the relevant facts and circumstances of a crime and an individual before imposing a fair punishment;

"Prosecutors to stop threatening people with decades in prison for exercising their right to trial; and

"Courts to require mandatory plea-bargaining conferences that are supervised by judicial officers not involved in the case.”

Prosecutors now decide, out of the public’s view, who goes to jail and for how long. It is time to end this travesty of the open, jury-based justice system found in our Constitution.

Ronald Fraser, Ph.D., writes on public policy issues for the DKT Liberty Project, a Washington-based civil liberties organization. Write him at fraserr@erols.com.

This article originally appeared on Nashville Tennessean: State's do-it-yourself justice system stacks deck against defendants