In both Missouri v. Frye and Lafler v. Cooper, the United States Supreme Court correctly recognized that “criminal justice today is for the most part a system of pleas, not a system of trials.”  These cases each dealt with the question as to what extent ineffective assistance of counsel claims could be recognized in the context of a plea bargain.  In holding in Lafler that defendants are entitled to the effective assistance of counsel when negotiating pleas (even if the the defendant ultimately goes to trial and receives effective assistance during that part of the representation) the court understood that negotiating a good plea agreement has become one of the most important attributes of a criminal defense lawyer.  Over 90% of all criminal cases are resolved through a plea agreement, so attorneys that fail to adequately assess a case and competently advise a client as to whether to accept or reject a plea offer is tremendously important.

However, our system of pleas is not necessarily fair even with the best representation.  Sure, defendants get the benefit of reduced charges and prison time, and the state gets to save some money, time, and effort.  But the two sides are hardly negotiating at arms length as is the case in other forms of negotiation. The state holds the hammer.  One of the more egregious parts of the system is the decision of prosecutors to overcharge defendants in order to force them into accepting pleas.  Instead of charging a defendant with only the most pertinent offenses, based upon the defendant’s actual conduct, the state often “stacks” any and all conceivable charges into an indictment so that defendants are looking at a very, very long time in prison if they do not prevail at trial.  Further, there is the dreaded “trial tax.”

While it is actually unconstitutional for a court to punish a defendant for exercising his or her constitutional right to a jury trial, the trial tax is very much real.  Make no mistake about it, a defendant that chooses to go to trial is most likely going to receive a much stiffer sentence if found guilty than he otherwise would have received had he entered a guilty plea.  So, in short, prosecutors, who are imbued with unfettered discretion to charge a defendant with whatever crimes strike their fancy, have effectively been able to make trials largely disappear.  Is that a good thing?  Of course not, but until there are reforms, those of us that practice criminal law are going to have to deal with it.

How does the system get fixed?  Legislatures aren’t taking crimes off the books.  In fact, more and more criminal offenses are past every year.  Politicians don’t get reelected by not passing laws so they can claim to be “tough on crime.”  The prosecutor’s tool box of possible crimes to charge is only getting larger and larger.  So there must be a different approach to reform if fairness is to creep into our “system of pleas.”  Many organizations have proposed reforms, and the newest entity to throw its hat into the ring is Human Rights Watch.

In a lengthy report, “An Offer You Can’t Refuse,”, HRW reiterates many of the concerns and complaints that criminal defense attorneys have shouted a thousand times over.   The report opens with offering some interesting vignettes before addressing the root of the problems plaguing our system of pleas and concludes with advocating some specific reforms.  While the report is focused on the federal system and its treatment of drug offenses, many of the issues highlighted are equally applicable to state laws.  I’m not aware of any state in our union that has retained a “system of trials.”

The specific reforms directed to the Attorney General include:

• “Establish just sentences as a Department of Justice goal for all drug offenders regardless of whether they plead guilty or go to trial. Define just sentences as those which are proportionate to the defendant’s individual conduct and culpability and which are no longer than necessary to further the purposes of punishment in each individual case.
• Direct prosecutors to seek indictments only for charges that would yield a fair and proportionate sentence for each individual defendant in light of the facts known about that defendant. If an offense carrying a fair sentence has been charged, prosecutors may offer a modest sentencing benefit to reward a defendant for pleading guilty, but should not offer to reduce the defendant’s sentence to such an extent as to coerce the defendant into waiving the right to trial.  We urge the Department of Justice to establish parameters for what such a modest reward might be. In addition, the Department of Justice should explicitly prohibit prosecutors from: 1) threatening higher sentences to secure pleas from drug defendants and 2) filing superseding indictments that raise the sentence faced by a defendant solely because the defendant refused to plead guilty.”

As other commentators have pointed out, while the report’s recommendations are a well-meaning attempt to revive the dying trial, it would likely work against the interests of defendants in practice.  Specifically, the trial tax will still be ever present.  And by not allowing prosecutors to offer anything more than a “modest reduction,” defendants would be deprived of the one benefit they do get in our system of pleas – the opportunity for significantly reduced sentences.  Most judges are still going to hammer a defendant for going to trial.

Trials will still clog the docket and “waste resources” in the eyes of the guy in the black robe.  So if the huge disincentive to proceed to trial is still very much alive, then the proposed reforms will only lengthen the sentences for defendants in the end.  Defendants will have to choose between “modest reductions” or the trial tax.

The only real way to resuscitate the trial is to do away with the trial tax.  If a defendant were not penalized for exercising his constitutional right to have a jury of his peers determine whether he is guilty or not, we’d have more trials.  It’s that simple.  Unfortunately, there is not a viable way to end the trial tax.  As long as judges sentence within the bounds of the statutory amounts, appellate courts won’t find error, even if it is readily apparent that the court penalized the guy for fighting for an acquittal.  So where does this leave us?  In a system of pleas, with the occasional trial, and no real solution to the existing problem. One day we might get somewhere.