What would happen to industrialized nations’ economies if they did not expand their reach abroad?
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D. force the government to provide defendants with a lawyer.
The trial penalty has made the government the most powerful player in the criminal justice system.
Although the defendantis cloaked in the presumption ofinnocence and the prosecutor theoretically
has the burden of proof, as the Report makes clear, the mere decision to charge triggers a domino
effect making a guilty plea the only rational choice in most cases. And as trials and hearings decline,
so too does government accountability. Government mistakes and misconduct are rarely uncovered,
or are simply resolved in a more favorable plea bargain.
Moreover, the ease of conviction can
encourage sloppiness, and a diminution of the government’s obligation to fairness.
Defense counsel, whose role is to ensure that “all other rights of the accused are protected, spend
most of their time negotiating plea bargains and drafting sentencing memoranda. As a result of
the trial penalty, not only are defense counsel trying fewer cases, they are frequently forced to settle
cases before meaningful investigation and litigation of the government’s case.
The prevalence of guilty pleas sidelines judges from their traditional supervisory role. Rather than
scrutinizing the sufficiency and legality of the government’s case, they are reduced to rubberstamping plea bargains. If a mandatory minimum sentencing statute controls, judges do not even
exercise their traditional sentencing role.
The decline in the number of trials, and the litigation that precedes them, also causes advocacy
skills to atrophy on both sides of the adversarial system. The federal courthouse in Manhattan,
for example, held only 50 trials in 2015. Many defense lawyers and prosecutors have not tried cases
in years, and many of the federal judges have similarly not presided over a trial in years.
As one
judge summed up the impact of the vanishing trial: “The entire system loses an edge and . . . the
quality of justice in our courthouses has suffered as a result.
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