Plea Bargaining Or Jury Trial Which Can You Afford?

The Sixth Amendment of the United States Constitution guarantees every criminally accused the right to a trial by an impartial jury. Likewise, every state in the union, including Michigan, has a similar provision in their respective constitutions. No matter what state you are in—you have the right to a trial by jury. However, a troubling development has strengthened where the “collateral costs” of going to trial have forced the majority of defendants to engage in plea bargaining, even when they are innocent, and forego their Constitutional right to a trial by jury.

Plea bargaining has largely replaced the use of jury trials for a number of practical reasons. Often, prosecutors “overcharge” a criminal defendant with the number, or severity, of the charges. In cases of repeat offenders, prosecutors use potential sentencing enhancements to bully defendants into pleading guilty or face the prospects of lengthy prison stays. In other instances, defendants who cannot afford bail elect to plead guilty in exchange for an agreed sentence that secures their release to probation. Collectively and individually, each of these reasons—and countless others—have led to a criminal justice system where plea bargaining has become the norm, and the increasing elimination of jury trials.

The collateral costs of plea bargaining described above represent what I call the “Jury Trial Penalty”. The Jury Trial Penalty is made up of all the practical costs driving a criminal defendant away from a trial and to a plea bargain. In Michigan, the Jury Trial Penalty is so expensive that over 90% of criminal cases are resolved through plea bargaining. This blog will address the Jury Trial Penalty, with an emphasis on how it continues to eliminate jury trials within the State of Michigan.

• The Jury Trial Penalty: A study was completed earlier this year on how the collateral consequences of a jury trial has led to its’ near extinction. The New York State Trial Penalty, which was prepared by the New York Association of Criminal Defense Lawyers (NYACDL) and National Association of Criminal Defense Lawyers (NACDL), details how jury trials have declined. The premise of the New York State Trial Penalty is that a penalty exists whenever a criminal defendant exercises his or her right to a trial by jury. Id. According to the New York State Trial Penalty 99 percent of misdemeanor charges and 94 percent of felony charges in New York are resolved by way of a guilty plea. Consider these sobering numbers:

• Juries determine less than four percent of all criminal cases;
• Defendants plead guilty approximately 95% of the time; and,
• Ten percent of defendants later found innocent actually pled guilty[1].

Jury trials are simply not being used in America today because of the “costs”. There are a number of metrics that influence a criminal defendant to forego his or her right to a trial by jury. In essence, a defendant must evaluate the risk of going to trial against the benefits of a plea bargain. The dangers attendant to exercising the right to a jury trial may persuade a defendant to plead guilty. The most frightening concern to any criminally accused is the risk of receiving a longer term of incarceration if he or she goes to trial. One study, based on all federal criminal cases from 2006 to 2008, found that those who exercised their right to trial received sentences that were a staggering 64% longer than similarly situated individuals who pled guilty prior to trial. Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study, 84 Miss. L.J. 1195, 1202 (2015).

Compounding the risk of longer sentences in dissuading a defendant from exercising his or her right to a jury trial is the overwhelming acceptance of plea bargaining by the judiciary. The United States Supreme Court has long embraced the merits of plea bargaining by defendants trying to reduce his punishment. Bordenkircher v. Hayes, 434 U.S. 357, 358; 98 S. Ct. 663; 54 L. Ed. 2d 604 (1978). Incredibly, the SCOTUS has even recognized the merits of a defendant, who claims his innocence, pleading guilty to avoid a more punitive sentence. North Carolina v. Alford, 400 U.S. 25, 37-38; 91 S. Ct. 160; 27 L. Ed. 2d 162 (1970). If the Supreme Court is willing to embrace the efficiency of plea bargaining over protecting the rights of the innocent, then the country’s move away from jury trials in favor of plea bargaining should come as no surprise.

• Michigan’s Problem: The Michigan version of the Jury Trial Penalty similar to the one identified by the New York Trial Penalty. Michigan defendants are often overcharged and face longer sentences unless they agree to plea bargains that require them to plead guilty to a lesser charge, forego appellate rights, and waive numerous Constitutional Rights—including the right to a jury trial.

What is unique to the Michigan Jury Trial Penalty is that judges can be prohibited from entering into the plea bargaining process. People v. Killebrew, 416 Mich. 189, 194; 330 N.W.2d 834 (1982). Yet, the Michigan Supreme Court seemed to contradict itself nine years later by holding that “at the request of a party, and not on the judge’s own initiative, a judge may state on the record the length of sentence” to be imposed “if the prosecutor is offering to reduce the charge in exchange for a plea of guilty…” People v. Cobbs, 443 Mich. 276, 277; 505 N.W.2d 208 (1993). The goals of Killebrew and Cobbs are to help criminal defendants know what their likely sentence would be if he or she accepts a pre-trial plea offer and forgoes his or her right to a jury trial.

Certainly, for many defendants there are benefits to both Killebrew and Cobbs. These cases allow defendants to know the impact of a plea on their potential sentence before agreeing to plead guilty. The downside to Killebrew and Cobbs is that many judges will further punish defendants who reject a plea offer, go to trial, and are ultimately convicted by the jury, by sentencing them to longer sentences than what was previously offered. This is a perfect example of how the Jury Trial Penalty leads to defendants pleading guilty instead of having a jury trial. The New York Trial Penalty identified this phenomenon in one dramatic example where a defendant was offered a plea to 10 years just five minutes before the jury convicted him. The New York Trial Penalty reports the defendant was sentenced to 40 years in prison. For this particular man, the Jury Trial Penalty was an extra thirty years to his prison sentence.

The Michigan Supreme Court decisions in Killebrew and Cobbs create an environment where if you are a criminal defendant, then you can engage in effective plea bargaining, or pay the Jury Trial Penalty by exercising your Sixth Amendment Right to a Jury Trial. Put differently, if you reject a plea offer and go to a jury trial, then you better win or you will face the high probability of serving a longer sentence.

• Summary: Every criminal defendant must understand his or her rights. Amongst those rights is the Sixth Amendment Right to a Jury Trial. Part of your decision to exercise your right to a jury trial includes understanding how much the Jury Trial Penalty might cost you. The range of costs for choosing to exercise your right to a trial by jury over plea bargaining may include facing more charges, a lengthier prison sentence, and/or a longer time in jail waiting for trial.

Each of the potential costs comprising the Jury Trial Penalty is affected by a number of factors you should discuss with your attorney. What are your charges? How strong is the Prosecutor’s case against you? How good is your defense? Are there other charges the prosecutor could bring? What charges against you can the prosecutor prove? Are you a repeat offender subject to sentencing enhancement? What is your possible sentence for pleading guilty? What is your possible sentence if you have a trial by jury? Your answers to each of these questions will have an impact on how much you will pay for the Jury Trial Penalty.