“The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate.” — New York State Constitution

When charged with a crime, do New Yorkers call upon fellow citizens, sitting as a jury, to decide their guilt or innocence? No way.

Of the 429,642 New York State criminal cases resolved in 2019, according to the National Center for State Courts, only 1,586 (less than 1%) were decided by a jury trial. Instead of forcing the state to prove their guilt in a courtroom, criminally charged New Yorkers — one every minute — chose to convict themselves.

Trial by jury — in Alexander Hamilton’s view, “a safeguard to liberty,” and “the very palladium of free government” — is being replaced with assembly-line, do-it-yourself “justice” factories in which the accused’s defense attorney and a government prosecutor privately negotiate a guilty plea.

In a public courtroom, unlike backroom plea deals, the government must make its case to impartial jurors, and defendants are free to show jurors that the government’s evidence is not sufficient to prove one’s guilt beyond a reasonable doubt.

Before 1970 the U.S. Supreme Court had long disapproved of the practice of trading an admission of guilt for a lesser sentence and using threats of higher sentences to induce a guilty plea. That changed with the court’s decision in Brady v. United States (1970), when it declared that a negotiated guilty plea may be allowed if, “motivated by the defendant’s desire to accept the certainty or probability of a lesser penalty rather than face…a higher penalty authorized by law for the crime charged.”

With the top court’s blessing, state lawmakers began to stack the deck against defendants with harsh, mandatory minimum sentences for conviction of drug-related and many other crimes. These laws tie the hands of judges but give prosecutors the power to threaten to indict a defendant for additional, related crimes in order to get a guilty plea.

At first glance guilty pleas might look like a win all around. Defendants avoid the costs and uncertainty of a trial. Prosecutors avoid time consuming preparation for a lengthy courtroom trial. Judges too benefit by avoiding tedious courtroom trials.

But wait. A 2018 report by the National Association of Criminal Defense Lawyers and the Foundation for Criminal Justice, titled The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, exposes the popularity of plea-mania. For the same federal crime, the report finds post-trial sentences are indeed much harsher than plea-bargain sentences.

“In 2015,” for example, “the average sentence for fraud was three times as high (six years versus 1.9 years) for defendants who went to trial versus those who pled guilty … for burglary/breaking and entering it was nearly eight times as high (12.5 years versus 1.6 years).” The difference — a trial penalty — is the cost paid by defendants if convicted in a courtroom trial.

But at a trial not all are convicted. Using 2016-2017 data, the NCSC found that nationwide nearly one-third of felony jury trials ended in acquittal or dismissal. If, in 2019, 400,000 New Yorker’s had gone to trial rather than accept a guilty plea, well over 100,000 of them would likely have been found not guilty and gone free.

In other words, plea-mania may needlessly be putting thousands of New Yorkers behind bars each year.

The report concludes, “the threat of a substantially greater sentence following a conviction at trial is a powerful incentive for even an innocent person to forego his or her Constitutional rights…[and]…it is well established that the trial penalty is just as prevalent in state and local criminal prosecutions, and that the virtual extinction of jury trials is just as prevalent in these jurisdictions.”

What to do?

Since 1990, FAMM, a national organization, has successfully lobbied for sentencing reforms in dozens of states, including New York State. FAMM calls on: “Lawmakers to repeal mandatory and restrictive minimum sentencing laws” and return to judges “the authority to consider all the relevant facts and circumstances of a crime and an individual before imposing a fair punishment; Prosecutors to stop threatening people with decades in prison for exercising their right to trial; and, Courts to require mandatory plea-bargaining conferences that are supervised by judicial officers not involved in the case.”

Prosecutors now decide, out of the public’s view, who goes to jail and for how long. It is time to end this travesty of the open, jury-based justice system found in our Constitution.

Ronald Fraser, Ph.D., writes on public policy issues for the DKT Liberty Project, a Washington-based civil liberties organization. Write him at: fraserr@erols.com.

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