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by Peter Moskos

May 11, 2012

The right to trial by jury

The Sixth Amendment states, in rather uncompromising terms: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." But the system can't handle those rights. That's why but a very small fraction of cases is decided by a trial, much less a jury trial (the other option is a "bench trial," where the judge decides.

The problem is that if you choose to exercise this right, they'll throw the book at you. Because they want you to plead guilty. From the Houston Chronicle:
"Our criminal justice system is broke; it needs to be completely revamped," declared Terry Nelson, who was a federal agent for over 30 years and is on the executive board of Law Enforcement Against Prohibition. "They have the power, and if you don't play the game, they'll throw the book at you."

Castillo maintains her innocence, saying she was tricked into unknowingly helping transport drugs and money for a big trafficker in Mexico. But she refused to plead guilty and went to trial.

In 2010, of 1,766 defendants prosecuted for federal drug offenses in the Southern District of Texas - a region that reaches from Houston to the border - 93.2 percent pleaded guilty rather than face trial, according to the U.S. government. Of the defendants who didn't plead not guilty, 10 defendants were acquitted at trial. Also, 82 saw their cases dismissed.

The statistics are similar nationwide.
Is this case a 56-year old grandmother and first-time offender was convicted of conspiracy to smuggle a ton of cocaine from Mexico. She maintains her innocence. Had she plead guilty, she would have got a few years behind bars. But because she demanded her constitutional right to jury trial, they sentenced her to life without parole.


Anonymous said...

I agree with you on one point. There should never be a life sentence for a drug offense.

On another point, I disagree. The assertion that the plea bargain percentages in federal cases are anything sinister is wrong. The feds only pick up slam dunk cases because they can. They pass on anything with any legal issues, lack of evidence, or anything they don't want to work.

They are more concerned with their conviction rates than fighting for a case. If an AUSA picks up a case, the likelihood of conviction is always going to be good. Plea bargains should be given less time, otherwise everything would go to trial and the courts would grind to a halt.

A percentage that probably isn't captured but that would shed some light on this is the percentage of cases referred to the feds for prosecution that are actually adopted. I bet it is less than 25% in most districts.


hotrod said...


However correct your statistics may be, why would we limit it to what the feds do?

Look right here (and note who the prosecutor is) -


AUSA involvement isn't the common thread, nor are drugs - the thread is prosecutors with enormous power and essentially no intra-system pushback. Mandatory minimums push power to the prosecutors and cheapen the role of judges.

In the case Peter cited, a woman will live out her life at staggering expense to the taxpayer. Her family/support structure is shattered. What does the AUSA care? Good job, hero.

In the case I chose, a woman who, however dramatic her life, didn't hurt anybody and who was probably a better parent than her husband, will live twenty years (leaving parole out of it for now) at staggering expense to the taxpayer. Her kids will go home, for now, to a probably violent man (solely my assessment off of media reports). Because she didn't take an offer for three years (three years for something that didn't involve anyone outside the family and where no one was hurt is kind of crazy itself). What does Angela Corey care? She doesn't have to foot the bill or raise the kids. Hell, she'll probably get to pad her stats on them in a few years. Good job hero.

Mandatory minimum sentences are cheap electoral soundbites that rarely last past a single election, but are the gift that keeps on giving to the public and society.

"(O)therwise everything would go to trial" - yeah, heaven forbid a prosecutors office be forced to set priorities and be held accountable by the public for their choices.

Jay Livingston said...

Punishing someone for exercising their Sixth Amendment rights has nothing to do with justice and everything to do with bureaucracy (and maybe the DA's ego). The other component of this stupidity and injustice is the war on crime and drugs -- mandatory, inhumane, and wasteful sentences, especially for drugs.

Anonymous said...


You and I would probably agree on a lot of cases in the South. They are backwards. I'm from the Northwest. You have to kill someone to get twenty years on anything in my state, and its still a maybe.


I agree with your idealistic thoughts in principle, but the reality is if they had to prepare and prosecute every federal case, it would effectively seize up the system and the criminals would win. There has to be an advantage in taking the plea and in the federal system it is just more pronounced.


Ebenezer Scrooge said...

I'm not bothered by a smallish add-on for forcing the state to prove its case. It is somewhat unjust, but it is also expedient. For example, I can tolerate a choice between four years for fraud on a plea-bargain, and five years if the defendant wants a trial.

What I found outrageous is when the prosecution offers a choice between a short plea-bargain and hard time. This makes it very easy to prosecutors to keep their numbers good, even for probably innocent defendants.