The Equal Justice Initiative reports that a 2017 study by Carlos Berdejó of Loyola Law School analyzed more than 30,000 Wisconsin cases over a seven-year period and found significant racial disparities in the plea-bargaining process. White defendants were 25 percent more likely than Black defendants to have their most serious initial charge dropped or reduced to a less severe charge; Black defendants were more likely than whites to be convicted of their highest initial charge. As a result, white defendants who faced initial felony charges were approximately 15 percent more likely than similar Black defendants to be convicted of a misdemeanor instead. White defendants with no prior convictions were over 25 percent more likely than Black defendants with no prior convictions to receive a charge reduction.

The Sixth Amendment to the U.S. Constitution guarantees a right to trial by jury, but a new report documents that in the U.S. criminal justice system, trials have become the rare exception, not the rule.

“The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It” was published in July by the National Association of Criminal Defense Lawyers (“NACDL”).

It has added to the volumes of scholarship on the topic, concluding that the right to a jury trial in criminal courts has all but gone extinct in the United States. In more precise terms, the report says only about 3 percent of criminal court cases go to trial, with the rest put to bed via plea bargaining.

The “trial penalty,” details the report, “results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial.”

“If there were no discrepancy at all, there would be far less incentive for defendants to plead guilty. But the gap between post-trial and post-plea sentences can be so wide, it becomes an overwhelming influence in a defendant’s consideration of a plea deal,” reads the report. “When a prosecutor offers to reduce a multi-decade prison sentence to a number of years – from 30 years to 5 years, for example – any choice the defendant had in the matter is all but eliminated.”

The right to a jury trial in criminal courts has all but gone extinct in the United States.

This trend, the report concludes, has bolstered the hands of prosecutors and disempowered both criminal defense attorneys and democracy itself. The report says democracy at large is at stake because citizens, as a result of pretrial plea bargains, have become less involved in the criminal justice system with the accompanying inability to serve on juries.

The report also concludes that it makes criminal defense lawyers less competent at their jobs and more akin to plea-deal brokers, with prosecutors also getting worse at their jobs and more prone to sloppy work. The current system allows for this sloppiness to be settled pretrial before the full facts are discovered or heard by a jury at a trial, giving prosecutors an inherent advantage in criminal cases.

It is a problem long in the making, the report shows through the painstaking history of jurisprudence on the issue, and one that has reached a crisis level.

“Once the centerpiece of our criminal justice ecosystem, the trial is now spotted so infrequently that if we don’t do something to bring it back, we will need to rethink many other features of our system that contribute to fair and just results only when trials occur in meaningful numbers,” the report explains.

“Our Constitution claims to protect the guilty as well, affording them a presumption of innocence and protecting them from punishment unless the government can prove them guilty beyond a reasonable doubt. A system characterized by extravagant trial penalties produces guilty pleas in cases where the government cannot satisfy that burden, hollowing out those protections and producing effects no less pernicious than innocents pleading guilty.”

This story first appeared in Criminal Legal News.

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