Attorneys who regularly represent clients in federal court understand one disturbing trend—U.S. attorneys are doggedly trying to force criminal trials to a point of extinction. It can be said that many criminal defendants are, in fact, guilty and their admissions to that guilt are what keep the wheels of justice turning as smoothly and efficiently as possible.


That is a convenient argument, but it excuses the pressure U.S. Attorneys routinely employ in the federal system to remove criminal trials from the “search for truth” equation. And this pressure-to-plead strategy can have disturbing, even tragic consequences in our criminal justice system.


Exonerations Hit Record High


For example, the National Registry of Exonerations reported that 2015 set a record for exonerations in this country: 149. Sixty-five of those were for convictions based on guilty pleas and another 27 were for convictions based on false confessions. In other words, 92 of the exonerations involved criminal defendants who admitted to guilt for crimes they did not commit.


Federal Judge Presided Over One Criminal Trial in Four Years


Some federal and state judges are walking away from the bench in both disgust and concern about the vanishing criminal trial, according to a New York Times report published this past August. The Times article, written by Benjamin Weiser, opened with the lament from Manhattan’s U.S. District Court Judge Jesse M. Furman who has presided over just one criminal trial in his four years on the bench.


The situation is just as grim for many of Judge Furman’s federal brethren in New York – Judge J. Paul Oetken has presided over just four trials in six years on the bench, while Judge Lewis A. Kaplan, “who has handled some of the nation’s most important terrorism cases,” has not presided over a trial during the past eighteen months.


Federal Judges Not Happy with Loss of Trials


To say these federal judges are not happy about the diminishing criminal trial from our justice system puts it mildly.


“It’s a loss,” Judge Kaplan told the Times, “because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal trials, that is happening less frequently.”


As the Times article pointed out, the vanishing criminal trial has been noted in “law journal articles, bar association studies and judicial opinions.” To underscore this point, the Times called attention to three federal courthouses in the Southern District of New York: two in Manhattan and the third in White Plains.


System Tested by Public Trials


There were only 50 trials in the Southern District last year – down from 106 in 2005.


A veteran of 20 years on the Manhattan bench, Judge Jed S. Rakoff told the Times: “It’s hugely disappointing. A trial is the one place where the system really gets tested. Everything else is done behind closed doors.”


And it’s behind closed doors where U.S. Attorneys lean hard on criminal defense attorneys to advise their clients that a guilty plea is not only their best but perhaps their only option. Innocence or guilt is not the overriding concern of the federal prosecutors; they not only want to economize their resources but advance their professional careers with convictions. Guilty pleas, therefore, are seen in the federal system as the fastest and most efficient way to a conviction. It doesn’t matter that the defendant’s decision to plead guilty is influenced by the prosecutorial threat of receiving a much harsher sentence upon conviction following a trial than through a guilty plea.


Decline in Federal Trials Attributed to Sentencing Guidelines


As the Times put it: “Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.”


New York attorney Frederick P. Hafetz, the former chief of the criminal division of the U.S. Attorney’s Office in Manhattan, is researching the decline of criminal trials. He’s beginning his research with the premise that jury trials are supposed to be a “check against … the potential abuse of prosecutorial power.”


That’s right place to start. The Times article effectively described how the guilty plea process works in the federal system with this case example:


“Julia L. Gatto, a federal public defender, recalled the case of Oumar Issa, a Malian arrested in Africa in a 2009 sting operation on charges of narco-terrorism conspiracy, which carried a mandatory minimum 20-year sentence, and conspiring to support a terrorist organization, which had no minimum.


Risk of Increased Prison Time, Mandatory Minimums, Compel Pleas


“Although Ms. Gatto and her client believed that the elements of the case were weak and that there were strongly mitigating circumstances, Mr. Issa concluded that the risk of going to trial were too high. He pleaded guilty in 2012 to material support, with prosecutors dropping the other charge. He received 57 months in prison. ‘It was the only thing he could do,’ Ms. Gatto said. ‘His hands were tied.’”


Any criminal defense attorney who has practiced in federal court intimately understands the dilemma faced by both Ms. Gatto and Mr. Issa. They both understood that truth was not the overriding concern in the case; that the “mitigating circumstances,” if presented to a jury, may not have influenced jurors to see truth as they knew it to be.


And, then, there was that 20-year minimum hanging like an ominous cloud over their attorney-client discussions. The prosecutor had made it clear to Ms. Gatto that he or she would vigorously pursue the narco-terrorism conspiracy charge with its mandatory 20-year minimum that would have been enhanced by a collateral conviction for material support to a designated terrorist organization.


Ms. Gatta and Mr. Issa selected the only practicable option available to them—a guilty plea to the lesser included charge resulting in a sentence of less than five years.


This option is being selected more and more each day in the federal court system because of the unfair advantage prosecutors have with the threat of mandatory minimums.


The numbers provided by the Times bear out this harsh reality: in 1997, 3,200 out of 63,000 defendants exercised their right to a jury trial while only 1,650 out of 81,000 defendants did so in 2015.


Those are scary numbers.


Federal Guilty Plea Rate: 97 Percent


Former U.S. District Judge John Gleeson, who left the bench this past March, wrote in a 2013 opinion that the federal guilty plea rate grew from 81 percent in 1980 to 97 percent in 2013. Judge Gleeson’s opinion pointed out that U.S. Attorneys enter into plea negotiations before they even prepare for trial—negotiations precipitated by the “thin presentation” of evidence presented to a grand jury which “is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries,” and as a result, “the entire system loses an edge, and I have no doubt that the quality of justice in our courthouses has suffered as a result.”


The bottom line is this: the quality of justice has given way to the quantity of justice. More convictions, less jury trials, and justice and truth lost somewhere in between.