January 16, 2014

BRAD SCHLESINGER: How The Drug War Disappeared The Jury Trial.

The criminal jury trial is a vital check against prosecutorial excesses, police misconduct, and arbitrary state power. But over the last three decades, criminal justice policy has transferred enormous amounts of power to prosecutors and away from juries and judges. Judges once had wide discretion in weighing the facts and circumstances of each case prior to sentencing. Mandatory sentencing laws give control of sentencing proceedings to prosecutors instead, leading one federal judge to describe the process of sentencing someone to years in prison as having “all the solemnity of a driver’s license renewal and [taking] a small fraction of the time.”

For example, when United States Army veteran Ronald Thompson fired two warning shots into the ground, he intended to scare off his friend’s grandson, who was attempting to enter her home after she denied him entry. He never imagined his actions would leave him facing decades in prison.

He was charged “with four counts of aggravated assault with a firearm” under Florida’s 10-20-Life mandatory minimum gun law. Prosecutors used the minimum twenty years in prison he faced to try to avoid a trial by asking him to accept three years in prison. While the deal remained on the table throughout the trial, he was ultimately convicted and sentenced to twenty years in prison.

Ronald Thompson’s case, and so many others, reveals that prosecutors don’t think that twenty-year sentences for shooting into the ground constitute justice. Why else would the plea bargain stay on the table.

The case is an example of the trial penalty in action. Utilized by prosecutors to scare accused citizens into pleading guilty, the trial penalty threatens severe sentencing outcomes if found guilty at trial compared to the plea. And the the last thirty plus years have shown that it works. . . . The prosecutor alone chooses whether to charge the accused, which charges to file, whether to drop charges, and whether or not a plea on lesser charges will be offered, outside of any judicial oversight. These unilateral discretionary decisions “often predetermine the outcome of a case since the sentencing judge has little, if any, discretion in determining the length, nature, and severity of the sentence.” This results in radically different sentencing outcomes between the sentence a defendant receives who loses at trial compared to one who pleads guilty.

These enormously different outcomes effectively coerce criminal defendants into pleading guilty. Mandatory minimum sentencing laws give prosecutors the leverage and superior bargaining position needed to coax accused citizens, many of whom are completely innocent, into surrendering a fundamental right for a perceived benefit – a significantly lesser sentence for forgoing a jury trial and pleading guilty.

I think that bullying people into foregoing a trial is a deprivation of constitutional rights. This is a topic I have addressed before.

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