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The Sausage Being Made: Trial-less Criminal Justice

Mandatory minimums have all sorts of bad consequences. They take power (and discretion) away from a judge and give it to a prosecutor. As in the case where they can stack creating outrageous mandatory minimum sentences that effectively strip the trial option away from the defendant.

And that's the key. The Government almost always wants to avoid trial. Prosecutors want to extract the highest possible plea, while at the same time avoiding the hassle and cost of a trial. That's because the government's case load can only be effectively managed by pleas.

Mandatory minimums make trials much more rare, especially in a “guns and drugs” district like the Eastern District of North Carolina.

Where in the 1980s – before the advent of mandatory minimums – judges might try 30 cases each year, by 2014, that number had been reduced to the single digits.

Now, that might be cause for celebration: so many cases efficiently decided and ajudged using barely any court time. A 20-minute arraignment followed by a 30 minute sentencing hearing five months later. Some use of the United States Probation Office in between. For the government, a minimum use of prosecutor time.

For the court system, a minimal use of either Federal Public Defender or Criminal Justice Act appointed lawyer time – and expense.

Wham-bam. What's not to like?

Let me count the problems:

One: We are raising a generation of federal criminal defense lawyers who have barely tried any cases. Theyu are mitigation lawyers. And while mitigation is great, important, valuable, etc., it is not the same thing as participating in the cruciable that is a jury trial.

A criminal defense lawyer who does not try case does not, by definition, effectively represent his client. That lawyer cannot offer the client an effective alternative to plea. Every case needs to start with the assumption that it is going to trial. In many cases, it becomes obvious that the case is not likely to go to trial. That's just a fact about the circumstances behind cases.

But a lawyer must be able to offer trial as an alternative; otherwise a lawyer is not offering his client a true option.

Two: With so few cases being tried, democracy suffers. How can a judge – or the public – really know about what's going on behind the scenes, when so many plea deals are the result of a defendant's decision to plead guilty rather than face a prosecutor's wrath of tacking on additional mandatory minimums in a superseding indictment.

A judge at the very least – and the public generally – needs to know how the sausage is made. Right now, the sausage in many federal courts is made with a lot of nails and bricks that the judge never hears about. In addition to raising a generation of trial-less attorneys, we are raising a generation of trial-less judges who do not know truly what is going on in their courtrooms.

Three: Law enforcement suffers. A democracy holds police officers' feet to the fire by a defense lawyer vigorously cross-examining a police officer about his or her actions.

Trials help cops become better cops: more effective in their investigations, more diligent in their conduct, and more respectful of defendants and the public.

Without trials, cops never truly learn how to police effectively in a democracy.




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