In a November 2016 post, we made this observation about the vanishing trial in the federal court system:


“ … 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 more 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.”


Quality of Justice Gives Way to Quantity of Convictions


The end result, as we pointed out then and as we remain so convinced today, is that the quality of justice in the federal system has given way to the quantity of justice. More convictions, fewer trials, and the truth seeking process lost somewhere in between.


The National Association of Criminal Defense Lawyers (NACDL) issued a report earlier this year that reached pretty much the same conclusion we reached in 2016. The NACDL report, titled “The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It,” drew this specific conclusion:


“Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt, defense lawyers spend most of their time negotiating guilty pleas rather than ensuing that police and the government respect the boundaries of the law including the proof beyond a reasonable doubt standard, and judges dedicate their time to administering plea allocutions rather than evaluating the constitutional and legal aspect of the government’s case and police conduct. Equally important, the public rarely exercises the oversight function envisioned by the Framers and inherent in jury service. Further, the pressure to plead guilty, and plead early, is often accompanied by a requirement that accused persons waive many valuable rights, including the right to challenge unlawfully procured evidence and the right to appeal issues which have an impact not only in their cases but also for society at large.”


11% of DNA Exonerees Pled Guilty to Crimes They Did Not Commit


The guilty plea pressure syndrome is not without serious consequence as pointed out by the NACDL: prosecutorial and police misconduct goes undiscovered; the government’s obligation to fairness and pursuit of justice reduced; the trial skills of defense attorneys, prosecutors and judges are diminished; and finally, and worst of all, of the more than 350 individuals exonerated through DNA evidence, 11 percent of them had pled guilty to crimes they did not commit.


The NACDL report outlined 10 principles and recommendations. They are worth repeating here.




  1. The trial penalty—the substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after trial—undermines the integrity of the criminal justice system.
  2. Trials protect the presumption of innocence and encourage the government to charge cases based only on sufficient legally obtained evidence to satisfy the reasonable doubt standard.
  3. The decline in the frequency of trials impacts the quality of prosecutorial decision-making, defense advocacy, and judicial supervision.
  4. The decline in the frequency of trials tends to encourage longer sentences thereby contributing to mass incarceration, including mass incarceration of people of color and the poor.
  5. The decline in the frequency of trials erodes the oversight function of the jury thereby muting the voice of lay people in the criminal justice system and also undercuts the role of appellate courts in supervising the work of trial courts.
  6. The trial penalty creates a coercive effect which profoundly undermines the integrity of the plea bargaining process.
  7. A reduction for accepting responsibility through a guilty plea is appropriate. The same or similar reduction should be available after trial if an individual convicted at trial sincerely accepts responsibility after trial regardless of whether the accused testified at trial or not.
  8. No one should be punished for exercising her or his rights, including seeking pre-trial release and discovery, investigating a case, and filing and litigation of pre-trial statutory and constitutional motions.
  9. Mandatory minimum sentences undermine the integrity of plea bargaining (by creating a coercive effect) and the integrity of the sentencing process (by imposing categorical minimums rather than case-by-case evaluation). At the very least safety valve provisions should be enacted to permit a judge to sentence below mandatory minimum sentences if justice dictates.
  10. If mandatory minimums are not abolished, the government should not be permitted to use mandatory minimum sentences to retaliate against an accused person’s decision to exercise her or his constitutional or statutory rights. That is, the state should not be allowed to file charges carrying mandatory minimum sentences in response to a defendant rejecting a plea offer or invoking her or his rights including the right to trial or to challenge unconstitutional government action.




  1. Relevant Conduct: USSG 1B1.3 should be amended to prohibit the use of evidence from acquired conduct as relevant conduct.
  2. Acceptance of Responsibility: USSG 3E1.1(b) should be amended to authorize courts to award a third point for acceptance of responsibility if the interests of justice dictate without a motion from the government and even after trial.
  3. Obstruction of Justice: USSG 3C1.1 should be amended to clarify that this adjustment should not be assessed solely for the act by an accused testifying in her or his defense. Application Note 2 should also be clarified in this respect.
  4. Mandatory Minimum Sentencing: Mandatory minimum sentencing statutes should be repealed or subject to a judicial “safety valve” in cases where the court determines that individual circumstance justify a sentence below the mandatory minimum.
  5. Full Discovery: Defendants should have full access to all relevant evidence, including any exculpatory information, prior to the entry of any guilty plea.
  6. Remove the Litigation Penalty: The government should not be permitted to condition plea offers on waiver of statutory or constitutions’ rights necessary for an accused person to make an intelligent and knowing decision to plead guilty. This includes an accused person’s decision to seek pre-trial release or discovery, investigate a case, or litigate statutory or constitutional pre-trial motions.
  7. Limited Judicial Oversight of Plea Bargaining: There should be mandatory plea-bargaining conferences in every criminal case supervised by a judicial officer who is not presiding over the case unless the defendant, fully informed, waives the opportunity. These conferences would require the participation of the parties but could not require either party to make or accept an offer. In some cases, one or more parties might elect not to participate beyond attendance.
  8. Judicial “Second Looks”: After substantial service of sentence, courts could review lengthy sentences to ensure that sentences are proportionate over time.
  9. Proportionality Between Pre-Trial and Post-Trial Sentencing: Procedures should be adopted to ensure that the accused are not punished with substantially longer sentences for exercising their right to trial, or to related rights. Concretely post-trial sentences should not increase by more than the following denial of acceptance of responsibility (if appropriate); obstruction of justice (if proved); and the development of facts unknown before trial.
  10. Amendment to 18 U.S.C. 3553(a)(6): In assessing whether a post-trial sentencing disparity is unwarranted, the sentencing court shall consider the sentences imposed for similarly situated defendants (including, if available, a defendant who pled guilty in the same matter) and the defendant who was convicted at trial. The sentencing court shall consider whether any differential between similarly situated defendants would undermine the Sixth Amendment right to trial.


The NACDL quoted John Adams: “Representative government and trial by jury are the heart and lungs liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”


That is where we are today in criminal justice—unarmed innocent black men being shot and killed by mostly white police officers; mass incarceration of more than 2.2 million people, most of whom are people of color who could be released without any risk to society; defendants of color are sentenced more harshly than white defendants; and people with financial means are able to afford a higher quality of justice.


The criminal justice system is not fair or just, assuming that ever was. At best it is dispute resolution and an exercise in risk tolerance.  A key reason for the staggering unfairness and overwhelming injustice is the near extinction of the jury trial. Justice today is administered by whim, caprice and circumstance—not fairness or equity.


And that is why we embrace and solidly endorse all the Principles and Recommendation put forth in the NACDL report.