In this post last month, I highlighted the publication of the latest extraordinary (double) issue of the Federal Sentencing Reporter titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End." As mentioned before, this FSR issue includes 16(!) original pieces on various aspects of "The Trial Penalty," and it is fully available on-line at this link.
As also mentioned before, though a full subscription to FSR is needed for full on-line access to all FSR content, the University of California Press has graciously agreed to make various articles from this special issue available to all on-line for a limited period. Valuably, the issue's terrific introduction authored by Norman Reimer, executive director of NACDL, and his colleague Martín Sabelli, NACDL's second vice president, is to remain freely available for an extended period of time. And now I see that these two additional pieces are now accessible to all (with a few paragraphs quoted here):
The “Virtual Extinction” of Criminal Trials: A Lawyer’s View from the Well of the Court by
Twenty-five years earlier, nearly 20 percent of defendants in the federal criminal justice system went to trial. By the time the Lorenzos were indicted in 2004, only 4 percent went to trial. That number has since decreased even further so that now less than 3 percent go to trial. Since the mid-1980s, as Manhattan federal judge Jed Rakoff states, federal criminal trials have undergone a “virtual extinction.”
This dramatic decline in the frequency of criminal trials in the federal system is mirrored in the state system as well. While data in the state criminal justice systems on the number of trials is not maintained as comprehensively as it is in the federal system, available data and studies show a similar pattern of decline, although not as sharp as in the federal system. In New York, California, and Illinois, for example, the percentage of defendants going to trial is less than-one half of what it was thirty years ago.
Why the Founders Cherished the Jury by
You would be hard-pressed to find a Constitutional issue that garnered more agreement among the Founders than the right to trial by jury. As historian William Nelson notes, “For Americans after the Revolution, as well as before, the right to trial by jury was probably the most valued of all civil rights.” Writing in 1788, Alexander Hamilton observed that among the “friends and adversaries of the plan of the [Constitutional] convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.” Hamilton’s chief political rival, Thomas Jefferson, echoed these sentiments, and considered trial by jury as the “only anchor ever yet invented by man, by which a government can be held to the principles of its constitution.”
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