Trial by jury has become so rare in modern American criminal jurisprudence that the chance of being convicted at trial is little more than one in one hundred.
That doesn't mean that people are not getting convicted. They are—in record number. America's prisons are literally filled to capacity.
In today's criminal justice system, convictions come by agreement. The tradition of being tried by one's peers, established centuries ago and affirmed by the Sixth Amendment to the U.S. Constitution has all but disappeared.
The plea bargain has made jury trials obsolete.
Ninety-seven percent of federal criminal prosecutions are resolved by plea bargain. In state courts the numbers are comparable. The plea bargain may be the grease that keeps the criminal justice system churning, but it may also be a sign of a system in need of repair.
Judge John Gleeson, of the U.S. District Court for the Eastern District of New York recently wrote, “An excessively high rate of guilty pleas is unhealthy for our justice system.”
Why? The only scrutiny a case may receive in federal court is that afforded by a grand jury and, as long-time Manhattan District Attorney Robert Morgenthau once said, he could get a grand jury to indict a “ham sandwich.”
At trial the government must prove a defendant guilty beyond a reasonable doubt. The government must firmly convince the jury of every element of the offense and that the defendant was the person who committed the crime.
But, as Gleeson observed, “Our [grand jury] system permits indictment to be returned on an ex parte presentation consisting entirely of inadmissible evidence.”
Much of the evidence presented to a grand jury would never see the light of day in a jury trial. The burden of proof before a grand jury requires merely a showing of probable cause; it does not require showing guilt beyond a reasonable doubt, and does not need unanimity of the grand jurors.
State court cases are often vetted at a preliminary hearing. The standard of proof required at that stage is prima facie. This means the government must prove it more likely than not a crime has been committed, and that the defendant is the one who committed the alleged crime.
The burden falls well below the “beyond a reasonable doubt” standard.
“The notion that defects in the grand jury's screening function will come out in the wash at trial is sound only if a meaningful percentage of cases go to trial,” wrote Gleeson.
The three percent of prosecutions which go before a jury is not a meaningful amount. As a result, the cleansing effect of trial has all but disappeared. “Beyond a reasonable doubt”— the bedrock of the criminal justice system—plays no role in an alarming number of cases.
What this means is that an insignificant number of offenders heading off to state or federal prison were proven guilty of anything. Sure, those defendants acknowledged their guilt by choosing to enter a guilty plea; but shouldn't the most revered legal system in the world provide something more in terms of protection for those accused of a crime? For 97 out of 100 people accused of a crime in federal court, all that has been proven against them is that a crime has been committed and that they “probably” committed it—the same standard that permits a police officer or federal agent to make an arrest.
Proof beyond a reasonable doubt never enters the equation.
So what is the big deal? No one innocent of a crime would plead guilty, right?
Some alarming statistics suggest that there is some incentive to enter a guilty plea regardless of guilt or innocence.
In some jurisdictions, particularly federal court, the gap between sentences following a plea and sentences following a trial has gotten very wide.
According to Human Rights Watch , the average sentence for federal drug offenders who pleaded guilty was five years, four months, based on raw federal sentencing data for 2012; for those convicted after trial the average sentence was 16 years.
A system that lowers the threshold for proving guilt and creates incentives for the innocent to plead guilty is “unhealthy” indeed.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, PA. You can read his blog at www.mattmangino.com and follow him on twitter @MatthewTMangino. He welcomes comments from readers.