It is no secret that the American justice system, premised on an individual’s right to a fair trial, has turned into a plea-bargain factory. Case after case is resolved by a plea rather than a trial in front of one’s peers. Not because every defendant is guilty, but because the pain and risks of taking a case to trial typically outweigh the benefits. According to one recent article, “[t]he vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher.” The primary reason for this trend? Immense and virtually unreviewable prosecutorial power infects the system. Combined with over-criminalization and mass incarceration, this power overruns the potential check that judges and juries could pose against prosecutorial abuses. A new report by the National Association of Criminal Defense Lawyers (NACDL) brings the trend into sharp relief. Called “The Trial Penalty,” the report is worth a read.

The report’s stirring introduction, authored by John Gleeson, a former judge and former federal prosecutor, is a persuasive summation of how unfettered prosecutorial power can corrupt justice.

A grand jury presentation can consist entirely of information that would be inadmissible at trial. A prosecutor may knowingly use illegally-obtained evidence to obtain an indictment, and if she has evidence in her possession that substantially exculpates the target, she may withhold it from the grand jury. The presentation need only establish probable cause to believe the target committed the crime. If 11 of the 23 grand jurors are unconvinced that even that low threshold has been met, an indictment can still be obtained. And of course it’s all ex parte, so no one is even there to question the prosecutor’s presentation.

The report, which focuses on the federal criminal system, emphasizes one of the federal system’s most devastating and damning features: “individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose.”

Prosecutors’ ability to extract pleas stems from both the wide discretion they enjoy in levying criminal charges and the punitive sentencing ranges available under federal law. Overcharging thus enables prosecutors to offer substantial reductions to charges or potential sentences in exchange for a guilty plea. And a defendant can hardly be blamed for considering a “deal” even if he is innocent when staring down decades or even a lifetime in prison on the risk that he is convicted. As the report explains (on page six): “[p]rosecutors enjoy enormous discretion to force a defendant’s hand. While some may view prosecutors’ actions as generous, their willingness to reduce sentences so drastically raises serious doubt that the initial sentences were reasonable.”

As pleas have come to dominate the landscape, the opportunities for citizens to hold the government accountable for overreach have diminished. Fewer trials mean “[g]overnment mistakes and misconduct are rarely uncovered, or are simply resolved in a more favorable plea bargain. Moreover, the ease of conviction can encourage sloppiness, and a diminution of the government’s obligation to fairness.” Lawyers in the federal system in particular have very little trial experience. Instead, they operate in a world of negotiations, where leverage is everything. Prosecutors constantly seek more leverage. According to the report (on page 30): “prosecutors actively advocate for amendments to the law to increase their bargaining power. The Department of Justice frequently pushes Congress and the Sentencing Commission for higher and higher penalties, further evidence of a strong desire to enhance their negotiating leverage.”

One of the most objectionable features of the federal system is that when a defendant is found guilty at trial, the Government can later rely on acquitted conduct to obtain a harsher punishment in sentencing. That’s right; even if the jury found the defendant not guilty of certain charges, the sentencing judge can use the conduct that triggered the charge to issue a longer sentence. This doctrine (discussed on pages 11 and 34 of the report), in the truest sense, underscores how the concept of a fair trial has been transformed from a constitutional right into a threatened penalty.

Again, this report is detailed, and is worth the time. For more context, consider reading a few other pieces as well. In 2013, Human Rights Watch issued a report describing how U.S. Attorneys effectively compel criminal defendants to plead guilty in federal drug cases. In 2016, we published a post about how federal prosecutors regularly rely on vague conspiracy laws to hammer defendants and coerce plea bargains. And, in 2017, Maura Ewing wrote an article establishing that federal prosecutors actively lobby for laws that will enhance their power.