Trial Distortion and the End of Innocence in Federal Criminal Justice

Abstract

Gwen Filosa, Woman Changes Guilty Plea in Killing, TIMES-PICAYUNE (New Orleans), May 4, 2004, at B-1 (internal quotation marks omitted) (quoting a murder victim's mother after the alleged killer changed her guilty plea); see also Carol Demare, Victim at Peace with Boxley Plea Deal, TIMES UNION (Albany), Dec. 24, 2003, at B1 (quoting the sexual assault victim of a politically powerful defendant as saying, "[a]ctually, I was relieved that a plea bargain could be reached," and noting that she was "extremely nervous" about testifying). Thomasi McDonald, Parents Accept Wreck Penalty, NEWS & OBSERVER (Raleigh), July 2, 2004, at BI (internal quotation marks omitted) (quoting a manslaughter victim's father, who was responding to the killer's acceptance of a plea bargain); see also Demare, supra note 1, at B1 (quoting the victim as saying, "I felt most importantly that Boxley be held accountable for what he did and [the plea] took care of that").

Trial Penalties in Federal Sentencing: Extra‐Guidelines Factors and District Variation

“…One immediate point of interest is the relative scarcity of trials-only 5% of sentenced defendants went to trial, confirming Wright's (2005) observation that federal trial rates have been declining since the early 1980s. Almost 90% defendants who plead guilty get a reduction for acceptance of responsibility, and about one in five benefit from a substantial assistance departure (5K1) motion.…”

“…Trials serve important symbolic functions, particularly in the federal court system (Wright, 2005). For example, trials symbolically demonstrate the full machinery of due process and the exercise of the U.S. Constitution's Sixth Amendment.…”

“…Trials serve important symbolic functions, particularly in the federal court system (Wright, 2005)-they serve as a check on prosecutorial power and symbolize the full exercise of due process for federal defendants. Yet substantial evidence exists that federal defendants who exercise their rights to trial and lose receive more severe sentences, a practice known as a "trial penalty" (e.g., Albonetti, 1997Albonetti, , 1998Johnson, Ulmer, & Kramer, 2008;Kautt, 2002).…”

Judicial Independence and the Rationing of Constitutional Remedies

“…In 1981, for example, the new Attorney General William French Smith, convened a task force to determine how federal resources could be switched from white-collar to street crime. 309 311 Indeed, the "number of federal criminal prosecutions has grown steadily, with little fluctuation, since 1980, at a rate of about 1,500 additional cases per year" with "a significant part" of that growth due to "the growing number of controlled substance prosecutions and stepped-up enforcement against immigration law violators." 312 As a result, the number of federal offenders imprisoned for drug offenses ballooned from 4,900 in 1980 to 98,675 in 2007.…”

Calling Your Bluff: How Prosecutors and Defense Attorneys Adapt Plea Bargaining Strategies to Increased Formalization

“…This debate has lead to a qualified defense of the practice by some (Bar-Gill & Ayal, 2006Goodman & Porter, 2002Heumann, 1978;Lee, 2005;McDonald & Cramer, 1992;Rosett & Cressey, 1978;Utz, 1978) while others have 4 BOWEN & Bassett, 2004;Stunts, 2004;Uviller, 2000;Wright, 2005;Wright & Miller, 2002). Yet, two problems exist in relying on this empirical work.…”