Resolution on Ensuring the Constitutional Right to Trial by Ameliorating the Trial Penalty
WHEREAS the power to prosecute, imprison, and restrict liberty is the most coercive power that the government regularly exercises against its citizens;
WHEREAS the Framers considered the right to trial by jury to be necessary to preserve and protect individual liberty and to restrain government tyranny;
WHEREAS the Framers considered the right to trial by jury to be “the heart and lungs of liberty” and “the only anchor ever yet imagined by man, by which a government can be held to the principals of its constitution”;
WHEREAS the right to jury trial is the only right established and guaranteed in both the original text of the Constitution and in the Bill of Rights;
WHEREAS the right to jury trial in criminal cases is also protected by the constitutions of each state;
WHEREAS the right to trial not only protects the accused but also empowers citizens, through jury service, to oversee government use of the power to prosecute, imprison, and restrict liberty;
WHEREAS trials have virtually disappeared despite their importance to the Framers and their central place in the Constitution and Bill of Rights;
WHEREAS only approximately 3% of criminal convictions in our country are a result of jury trials while 97% are plea bargains;
WHEREAS plea bargains routinely require waiver of rights in the Bill of Rights thereby eviscerating the rights to bail, to see exculpatory evidence, to be free of unreasonable searches and seizures, and to effective assistance of counsel;
WHEREAS the Supreme Court has acknowledged that “criminal justice today is for the most part a system of pleas, not a system of trials”; and that plea bargaining is “not some adjunct to the criminal justice system; it is the criminal justice system”;
WHEREAS the sharp decline in the frequency of trials has numerous causes including discovery practices, overcriminalization, overuse of pre-trial detention, prosecution policies requiring waiver of rights in the Bill of Rights, and the extreme disparity between plea bargains and post-trial sentences;
WHEREAS the criminal justice system incentivizes prosecutors to rely on laws, including mandatory minimum sentencing, and policies, including waivers of rights, to maximize the number of guilty pleas rather than criminal jury trials;
WHEREAS the prison sentences accused persons receive after being convicted at trial are frequently substantially longer than sentences received after accepting a plea bargain thereby imposing coercive pressure for those accused of a crime to waive their right to trial;
WHEREAS the tremendous disparity in post-trial versus plea bargained sentences – often called the trial penalty – often coerces the accused to accept pleas rather than assert their constitutional right to trial;
WHEREAS this disparity has eviscerated the trial right that the Framers believed was fundamental to liberty;
WHEREAS the trial penalty can coerce innocent defendants to plead guilty because they fear the extreme sentence facing them if they are convicted at trial;
WHEREAS the trial penalty is inconsistent with public safety because less culpable individuals frequently face less favorable plea offers and post-trial sentences than higher ups, and because plea coercion of innocent people means the actual perpetrators of those crimes remain free; and
WHEREAS Americans should never be punished for exercising their constitutional rights, nor coerced into waiving those rights;
THEREFORE, BE IT RESOLVED:
States should review and amend laws, practices, and procedures to reduce the risk of coercion and eliminate the trial penalty by:
- Re-examining the use and effect of mandatory minimum sentencing, and considering safety valves that protect the right to trial;
- Requiring that the defendant receive constitutionally required information in discovery prior to a plea agreement;
- Prohibiting waivers of constitutional rights which are not necessary for an accused to make a voluntary, intelligent, and informed decision to plead guilty (but allowing those that are necessary to waive the right to trial) as a condition of a plea agreement;
- Prohibiting waivers of collateral remedies including but not limited to parole, second look judicial review, and record sealing and expunction to the extent otherwise available in the jurisdiction, as a condition of a plea agreement;
- Ensuring proportionality between plea offer sentences and post-trial sentences, including requiring judges, juries and other decision makers to consider the plea offer and sentences of similarly situated defendants as one factor in their sentencing decisions or post-conviction sentence adjustments;
- Considering mechanisms to review and adjust prison sentences to better achieve proportionality and fairness and account for good behavior and other factors; and
- Considering the impact of new laws, policies and practices on the trial penalty, and undertaking a comprehensive review of the jurisdiction’s existing laws, policies and practices to assess the need for changes or additional data gathering.
 John Adams, The Revolutionary Writings of John Adams 55 (C. Bradley Thompson ed., 2000).
 Thomas Jefferson, Letter to Thomas Paine (July 11, 1789), in The Life and Selected Writings of Thomas Jefferson (Adrienne Koch & William Peden, eds., 1998).
 U.S. Const. art. III, §2, cl. 3 (“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . .”).
 U.S. Const. amend. VI (“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 . . .”).
 See NACDL, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (2018), https://www.nacdl.org/getattachment/95b7f0f5-90df-4f9f-9115-520b3f58036a/the-trial-penalty-the-sixth-amendment-right-to-trial-on-the-verge-of-extinction-and-how-to-save-it.pdf, at 14 (97% of convictions in federal criminal cases are the result of guilty pleas); NACDL & N.Y. State Ass’n of Criminal Defense Lawyers, The New York State Trial Penalty: The Constitutional Right to Trial Under Attack, at 15 (2021) (finding that 96% of felony convictions and 99% of misdemeanor convictions in New York State cases are guilty pleas); U.S. Sentencing Comm’n, 2021 Annual Report and Sourcebook of Federal Sentencing Statistics, at 56, table 11 (showing that 98.3% of federal criminal convictions in fiscal year 2021 were the result of guilty pleas).
 Lafler v. Cooper, 566 U.S. 156, 170 (2012).
 Missouri v. Frye, 566 U.S. 134, 144 (2012) (emphasis in original).
 NACDL, Trial Penalty, supra n. 5, at 20-21 fig. 1; See also Brian D. Johnson, Trials and Tribulations: The Trial Tax and the Process of Punishment (2019), https://www.journals.uchicago.edu/doi/epdf/10.1086/701713.
 Data from the National Registry of Exonerations shows that 18% of exonerees—people who have been found innocent and completely cleared of the crime they were once convicted of—pleaded guilty. See The National Registry of Exonerations, Browse Cases, https://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx?View=%7BFAF6EDDB-5A68-4F8F-8A52-2C61F5BF9EA7%7D&FilterField1=Group&FilterValue1=P.