Californian Brian Banks wanted to pursue a professional football career. Instead he spent six years in prison for a crime he did not commit. After he was accused of rape and kidnapping in 2002, reports ABC News, “his attorneys encouraged him to plead no contest instead of going to trial before a jury and risking 41 years in prison.” This year, his accuser recanted.
Banks’ case points to a broader concern. True, often those guilty of crimes plead guilty, thereby saving taxpayers the expense of a trial. But, by threatening the accused with drastically more severe potential penalties if they exercise their right to a trial by jury, prosecutors undermine that right and sometimes compel the innocent to plead guilty.
Colorado criminal statistics for the years 2006 through 2011 show that Colorado prosecutors rely on plea bargains to reach convictions an overwhelming 97.6 percent of the time, according to documents obtained by the Independence Institute through a Colorado Open Records Act request.
According to those documents, only 4,241 felony convictions resulted from a jury trial, or 2.4 percent of the total of 175,015 felony convictions. A total of 6,101 felony cases went to trial, so the conviction rate at trial was 70 percent.
Drug cases accounted for 54,321 felony filings (23 percent) of 238,987 total filings. In terms of convictions, drug cases accounted for 43,034 (25 percent) of the total. Of the 790 drug cases that went to trial, 611 resulted in a conviction, meaning that only 1.4 percent of drug convictions resulted from a jury trial.
The national trend is away from jury trials to plea bargains. The New York Times reported last year that, within nine states that kept statistics, the number of felony cases going to trial has fallen dramatically since the 1970s, when the figure was over 8 percent.
State Public Defender Douglas Wilson sees this is a problem. “Those accused of crimes have had their right to jury trial limited by the Draconian sentencing laws,” he said.
During the past legislative session, Sen. Pat Steadman sponsored an unsuccessful bill that might have influenced some to go to trial rather than plead guilty. Among other things, SB105 would have required courts to notify the accused of the “collateral consequences” of a conviction, such as the rigors of parole and the effects on potential employment.
Steadman said, “I was a big proponent of the fact that people should be on notice of what are the consequences and make a knowing plea agreement if that’s what they’re doing.”
Steadman’s bill, however, would have done nothing to reduce the power of prosecutors to threaten the accused with severe sentences for daring to take their case before a jury. Steadman said of the bill’s language, “I don’t know that it really cuts a great deal in the opposite direction from the heavy-handed pressure of the district attorney.”
A possible broader reform is to limit the difference between the punishments resulting from a plea bargain versus a jury conviction. Yes, this likely would lead to more jury trials and drive up court costs, at least in the short run. It might also cause prosecutors to re-examine weak cases before pushing for a conviction. And it might encourage legislators to rethink some of the activities they criminalize and some of the sentences they allow for various crimes. So be it.
The right to trial by jury is a central feature of Western justice. Following a long tradition of jury trials going back to ancient Greece, the Magna Carta, and of course the U.S. Bill of Rights, Colorado’s Bill of Rights states, “The right of trial by jury shall remain inviolate in criminal cases” (Article II, Section 23).
By giving prosecutors such overwhelming power to pressure the accused into pleading guilty without a trial, the Legislature fails to live up to the spirit, if not the letter, of this provision.
Ari Armstrong wrote this article for the Independence Institute, a free market think tank in Denver.