The End of Trials

Trial by jury is one of the most sacrosanct and venerable concepts in our justice system. Indeed, jury trials have played a central role in civilized society at least since the time of Aristotle. Important trial safeguards are enshrined in our Bill of Rights. Most school children seem to appreciate the concept of having guilt or innocence decided by a jury of one's peers. While constant press coverage of high-profile trials and slick tv shows give the impression that jury trials remain the final arbiter of most defendants' guilt, the reality is that most defendants elect to forgo a trial altogether. And it's not because every guilty person suddenly has a come-to-Jesus awakening.

Perhaps the most significant factor is the scheme for doling out sentences. In this get-tough-on-crime era, even petty criminals face huge amounts of jail time. In Louisiana, a first time offender guilty of drug possession could get five years to think about his misdeeds. Of course, judges recognize the immense power they wield, and it is unlikely a first-time offender would be sent to jail for so long. Prosecutors and defense lawyers know that, too, and thus they usually negotiate a plea bargain. Thus, rather than go to trial, many defendants charged with a first offense will opt to plead guilty in exchange for probation and a suspended sentence: stay out of trouble during the probationary period, and you won't serve any time. The risks of going to trial and facing uncertainty in sentencing are simply too high.

For repeat offenders, the stakes are even higher. Under Louisiana's habitual offender statute, a person convicted as a two-time offender must be sentenced to a minimum of 50% of the statutory maximum, and the maximum allowable sentence is doubled. Thus, two-time drug user would face two and a half to ten years in jail. A third offense weighs heavier still, and a fourth offense results in a range of twenty years to life. (Louisiana has a traditional three-strikes law as well. Thus, for some crimes, even a third offense results in mandatory life in prison.)

No doubt, repeat offenders have a strong incentive to negotiate a favorable plea to avoid sentencing as a habitual offender. Needless to say, those who go to trial and lose don't get any favors. For someone with a record, even if truly innocent, the risks are simply too high for rolling the dice in the jury crap shoot at trial.

And that's just the problem. When only guilty people are forced to take pleas, saving the system the burden of trials, the system arguably is functioning as it should. But many defendants are innocent, or at least their guilt is in serious question, and juries are deprived of the opportunity to mediate the facts. That's a great disservice to our justice system. Juries not only determine facts in particular cases, but they act as checks on law enforcement. They keep the system honest by letting police know when they're overreaching (or by discrediting their testimony). They tell us when prosecutors have become persecutors (by over-charging cases). They tell us how much evidence is required before we send people off to jail. In short, they tell us what the limits of law enforcement should be.

Unfortunately, many innocent people have no choice but to take a plea to avoid the risk of sentencing after conviction. This is especially true for people who have criminal histories. It's natural to think, "once a criminal, always a criminal." Police, innocently or not, often work under this assumption and target felons for more arrests. Many of those defendants, however, are in fact innocent of the latest charges. But we'll never know because no one wants to roll the dice at trial when the stakes are so high.