Posts Tagged ‘trial penalty’

Fix the Trial Penalty

Saturday, June 13th, 2020

Here is what the Sixth Amendment says: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

In today’s America the right to a jury trial is blatantly abused by absurdly unjust plea bargain deals. Basically, prosecutors threaten, and corrupt legislators and judges let them threaten, wildly disproportionate punishment if someone goes to a jury trial and loses. This is morally evil and an affront to the United States Constitution.

Right now people can watch a new documentary on the problem, The Vanishing Trial. “Don’t forget to join our virtual panel discussion on Monday, June 15, 2020 at 7:00 PM ET featuring Sakira Cook, Leadership Conference on Civil and Human Rights, Brittany K. Barnett, Buried Alive Project, Clark Neily, Cato Institute, and Norman Riemer, National Association of Criminal Defense Lawyers. The panel will be streamed via Facebook Live on both the FAMM and NACDL Facebook pages.”

Neily on America’s Rotten Criminal Justice System

Sunday, June 7th, 2020

Clark Neily of the Cato Institute is out with a scorcher, appropriately. He discusses the problems of overcriminalization, “coercive plea bargaining,” and little “accountability for police and prosecutors.”

My idea for reforming plea bargaining is simply to say that prosecutors may not threaten anyone with a sentence of more than, say, 1.5 or 2 times what they’d otherwise get via a jury trial. I’m not sure, thought.

Update: Neily recommends, “Other reforms Congress should consider in the longer term include a statutory cap on the notorious ‘trial penalty,’ which is the often substantial differential between the sentence offered in a plea bargain and the much harsher sentence the defendant will receive if he exercises his right to trial; imposing a legal duty on prosecutors to provide materially favorable evidence to the defense before any plea discussions occur, something that is not always done currently; and the elimination of absolute prosecutorial immunity, a judicially invented legal doctrine that makes it impossible for victims of even the most blatant misconduct to sue prosecutors for anything they do in the course of their prosecutorial duties.” Neily also suggests that juries be fully informed, including about the criminal penalties at play.

Some years ago the “libertarian moment” came and fizzled. Now, it seems to me, the “libertarian moment” has arrived, at least in terms of a major line of thinking of the better libertarians, with criminal justice reform.