February 9, 2018 9:51AM

The Trial Penalty

Have you ever heard of the “Trial Penalty”? It is among the most important features of America’s criminal justice system, and yet there is no reference to it in the Constitution, it is not taught in high school civics classes or even law schools, and most lawyers have never heard of it. Nevertheless, the Trial Penalty is the grease that keeps the massive engine of American criminal justice humming along at peak efficiency.

So what is it? Simply put, the Trial Penalty is the array of penalties, paybacks, and repercussions that are inflicted upon criminal defendants who presume to insist upon exercising their Sixth Amendment right to a jury trial—or what Cato Research Fellow Trevor Burrus calls “bespoke justice.”

With more than 10 million arrests last year and the world’s highest incarceration rate, America’s criminal justice system simply cannot afford to provide each and every defendant with an expensive and time-consuming jury trial. Nor do we: These days, about 95 percent of criminal convictions are obtained through plea bargains rather than jury trials. In the federal system, the numbers are even higher—more than 97 percent of convictions come from plea bargains.

Think about that for a moment. The citizen jury is the cornerstone of American criminal justice. It is a historic and hallowed institution. Why would so few people choose to invoke such a precious and fundamental right as the opportunity to challenge the government’s case in court and force the prosecutors to convince a unanimous jury (in most jurisdictions) of guilt beyond a reasonable doubt?

The answer is the Trial Penalty, and a recent case from the Second Circuit Court of Appeals in New York, United States v. Tigano, illustrates what a pernicious and sordid tool of injustice it is.

Joseph Tigano and his father were arrested by the DEA in July of 2008, and charged with manufacturing 1,000 or more marijuana plants, conspiracy to distribute marijuana, and weapons charges. Those are extremely serious crimes, with penalties ranging from decades in prison to life. No doubt the prosecutors expected the case to play out like most criminal cases do, with the defendants agreeing to plead guilty in exchange for the government dropping some of the charges and/or recommending leniency at sentencing. And that is precisely what Tigano’s father did, in what looks like a pretty sweet deal: he pleaded guilty to a single count of manufacturing 50 or more marijuana plants; the conspiracy and weapons charges were dropped.

But Tigano not only declined to plead guilty, he also invoked his right to a speedy trial under the Sixth Amendment. Tigano’s refusal to engage in plea negotiations, and his insistence on going to trial promptly, were perceived as so extraordinary that the trial judge ordered him to undergo a mental competency exam. After receiving a clean bill of mental health, Tigano again insisted on his right to a speedy trial and also declared his intention to represent himself. This resulted in another competency exam and, when Tigano persisted in rejecting the prosecution’s plea offers, a third and final competency exam. This went on for nearly seven years while Tigano rotted in jail, repeatedly insisting upon—but not receiving the benefit of—his constitutional right to a speedy trial.

When his case finally did go to trial, Tigano was convicted on five of the six charges. But he appealed, arguing, among other things, that the violation of his speedy-trial rights meant his conviction should be vacated.

The Second Circuit agreed, noting that the competency exams—and the delays they entailed—“appear to have been prompted largely by Tigano’s repeated invocation of his speedy trial rights.” Indeed, one of the prosecutors told the trial judge that the rationale for a third evaluation was “not necessarily the competency question, but whether there is some other psychological problem that’s going to prevent [Tigano] from understanding the difference between what he potentially looks at as far as a conviction as well as what’s being offered by way of this plea.”

Translation: We are going to crucify this guy if he insists on going to trial, and only a crazy person would pass up the sweetheart plea deal we’ve offered him.

Unfortunately, we don’t know from the court documents precisely what sort of a deal Tigano passed up, but we do know that prosecutors exercise jaw-dropping discretion when it comes to plea offers—such as the six months offered to Aaron Schwartz, who was facing 35 years for breaking into a computer closet at MIT and downloading articles from a restricted academic database. (Schwartz committed suicide in 2013, while the charges were pending.)

And that’s just the tip of the Trial-Penalty iceberg. Other tools that prosecutors can bring to bear include adding charges to an indictment to increase a defendant’s exposure, threatening to bring charges against friends and family, intimidating pro-defense witnesses to discourage them from testifying, and hiding potentially exculpatory evidence until the eve (or even the midst) of trial.

Jury trials are time-consuming, expensive, inefficient, and—perhaps most importantly from the prosecutor’s standpoint—unpredictable. As a result, prosecutors have a strong incentive to avoid them, and they pass that incentive on to defendants via the Trial Penalty.

As Americans, we should be deeply suspicious of a criminal justice system in which people almost never choose to exercise their constitutional right to a jury trial. The fewer trials there are, the less opportunity there is for citizens to participate in the process and the less transparent—and accountable—our criminal justice system becomes. As Thomas Jefferson observed to Thomas Paine, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

Mass plea-bargaining may be good for prosecutors looking to keep their numbers up, but it severely undermines the integrity of our criminal justice system. The Constitution does not countenance a Trial Penalty and neither should we.