Justice

The Vanishing Trial

The threat of a 'trial penalty' produces massive injustices.

By Kevin Ring  
on

Imagine you’re accused of committing a crime. You believe with every fiber of your being that you are innocent, but you understand why some people think what you did was wrong. You even recognize that some of your misdeeds are so legally gray that a jury might find you guilty.

What would you do? You’d fight, right? Hoping that the truth would set you free, you’d choose to exercise your right to a trial before a jury of your peers.

But what if the stakes were higher? What if you felt forced to consider a plea offer?

Imagine the prosecutor says he wants to make the “right decision” even easier for you, your nervous spouse, and your young children. Plead guilty and cooperate against others, he says, and he will all but guarantee you never go to prison. On the other hand, if you insist on going to trial, he will add five times as many charges and seek a prison sentence of more than 20 years. The choice is yours.

Actually, the choice was mine.

In 2008, I was accused of public corruption for my work as a lobbyist. After I had cooperated for two years with the government’s investigation, the prosecutors gave me the choice described above.

I would have loved to have pleaded guilty to ensure I would never spend a day away from my daughters. I knew going to trial was risky and that the costs would be greater than the million-plus in attorney fees. But I believed I was innocent (I still do) and my plea offer required me to testify — falsely, in my view — against others. I couldn’t do it.

Sponsored

I went to trial — twice, since the first jury couldn’t reach a verdict. Ultimately, I was convicted of half the counts at the second trial. As promised, the government recommended that the judge sentence me to 20 years in prison.

The judge gave me 20 months.

I was lucky, relatively speaking. My offenses did not carry mandatory minimum prison terms. My judge had discretion, but in the vast majority of cases, prosecutors get their way.

“The Vanishing Trial,” a new short documentary produced by FAMM and National Association of Criminal Defense Lawyers, reveals how prosecutors use the threat of lengthy prison terms to coerce defendants to forfeit their right to trial.

Their coercion works. Today, just three percent of criminal cases today go to trial. Many people accept plea offers because they are guilty. Admitting their wrongdoing and avoiding a costly trial is in their best interest. But in many other cases, the threat of a “trial penalty” — the term used to describe the substantial difference in the prison sentence that is offered as part of a plea deal and the sentence a person receives if they lose at trial — produces massive injustices.

Sponsored

First, we know the trial penalty forces some innocent people every year to plead guilty. According to the Innocence Project, 18 percent of people who were exonerated by DNA evidence or other means pleaded guilty to crimes they did not commit. When asked why they did, they said that they feared an even longer prison sentence if they were found guilty.

Second, the trial penalty results in sentences that are manifestly unjust. In “The Vanishing Trial,” for example, viewers learn about Chris Young, who was offered a plea deal of 14 years for a drug crime. The 22-year-old simply could not imagine spending that long in prison for his crime and believed he could do better with a judge. But when he was convicted at trial, Chris learned that the judge was forced to hand down a mandatory minimum sentence of life without parole.

I was lucky I was not facing a mandatory minimum sentence, but even now, I do not understand how my prosecutor believed that the appropriate punishment for my misconduct was either no time in prison or 20 years in prison, depending on whether I exercised my right to trial. Justice should not be a game of “Let’s Make a Deal.”

Kevin Ring is a former Capitol Hill staffer, Biglaw partner, and federal lobbyist. He is currently the president of FAMM, a nonprofit, nonpartisan criminal justice reform advocacy group. Back when ATL still had comments, “FREE KEVIN RING” was briefly a meme. You can follow him on Twitter @KevinARing.

Topics

, , ,