Paying the Jury Trial Penalty
One important tenet of the American criminal justice system is that individuals should not be punished for exercising their constitutional rights. To impose such a penalty, is to discourage the exercise of such rights, thereby depriving the right. The right to a trial by jury is such a right. The Sixth Amendment makes no bones about it:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
However, we who represent individuals charged with a crime will tell you that if you exercise this right, and are found guilty at a jury trial, the penalty you will face will generally be much more severe than what could be bargained for or otherwise obtained with a plea of guilty. This is justified by the claim that the increased penalty is not a punishment for exercising the right to trial by jury, but instead, the decreased penalty on a guilty plea is a “discount” of the expected penalty. To acknowledge guilt without a trial is seen as a mitigating factor, and the penalties suffered on a guilty plea are reduced accordingly.
I have met at least one judge who refused to impose a different sanction after a jury trial than other defendants received for similar offenses on a plea. After loosing a jury trial, the prosecutor asked for a year in jail for the conviction, and the judge imposed no jail time (suspended sentence) noting that this was the “standard” penalty imposed for the crime involved, and to increase the penalty for my client would penalize him for taking the case to a jury trial. But this is a rarity (he was a visiting judge and has since died in tragic circumstances).
Much more common was the result in the first jury trial I lost on a criminal case. The defendant faced a minor felony charge for theft. We tried the case and lost. The “standard” penalty for first time theft in that court was a reduction of the charge to a misdemeanor and maybe 30 days in the county jail. At sentencing, this is about what I requested, seeking to save my client from becoming a felon. The trial judge imposed the presumptive sentence on the felony charge: 1 and 1/2 years in prison.
Most judges will impose significantly harsher sentences after trial. The reason for this is clear, jury trials take a significant amount of the court’s time. You can fit an entire jury trial into a single day on a simple case, but most jury trials, even on misdemeanors, will take 2-3 days. A bench trial (trial to the judge) on a simple misdemeanor generally takes about an hour, by comparison, and most judges can knock out a guilty plea in about 10 minutes. In a busy misdemeanor court where the state is filing 75 - 100 cases each week, or more, you can easily see that the system would break down immediately if most cases were not worked out through a plea, or tried to the bench. Thus, there is a need to give people big incentives to avoid a jury trial.
I bring this issue up at this point because an attorney in Ohio has recently sued the Hamilton County Public Defender’s Office in federal court, claiming that, as less than 1% of the office’s misdemeanor cases go to jury trial, indigent defendants are suffering the loss of their right to trial by jury. This lawsuit comes on the heals of a study conducted by New York lawyer Paul Callan at the request of the local county commissioners concluded that the public defender’s office was overloaded and underfunded, putting indigent defendants at risk of wrongful conviction.
Robert Newman, the Cincinnati lawyer who filed the lawsuit in U.S. District Court was quoted as saying: “The Public Defender’s Office is acting in accordance with expediency rather than what’s best for its clients.”
