The Trial Penalty

“The U.S. criminal justice system is often capricious, corrupt, and without accountability.” An essay which examines the faults of The Trial Penalty…

by: Audrey Levitin

I was recently called for jury duty and in our post-pandemic world, the first step of voir dire, or jury selection, is participation in a zoom call with hundreds of people. At 9 am, Essex County residents were greeted by a lovely and professional woman who explained how the morning would unfold. Peering into the zoom gallery function, I viewed the multi-ethnic, multi-generational community that was to spend the next several hours together, mostly trying to be released from the serious inconvenience of serving on a jury. 

The moderator introduced “You The Juror,” a 16-minute educational video sponsored by the New Jersey State Bar Foundation. The video began and Chief Justice Stuart Rabner came into view; a fatherly presence, wearing a judge’s robe, glasses, a white button down shirt and dark red tie, an American flag to his left. The Judge was earnest and reassuring as he gave the potential jurors a civics lesson about the responsibility to serve. 

Judge Rabner began his talk with the recognition that jury duty is inconvenient but asked us to step back from the process temporarily to appreciate how lucky we are to think of jury service in that light. He said “for centuries all throughout the world, people have fought for one of the most fundamental rights known to all of us, the right to be judged by a jury of one’s peers. Not by tyrants or dictators or professional jurists but by our fellow citizens.” He went on to say that this is a privilege enshrined in our federal and state constitutions, reassuring us that we are the envy of the world. 

The truth, however, is quite different. A trial by jury is no longer a right to be taken for granted. According to a report by the National Association of Criminal Defense Lawyers (NACDL), the sixth amendment right to a trial is no longer guaranteed. Instead, due to tough on crime policies in the 1980s, and strict zero-tolerance drug and violence policies, for many defendants it started to make sense to take a plea bargain — which are now the manner in which most cases are resolved, including people who are innocent of the crimes of which they are accused. In the mid-1980s, 15 to 20 percent of all cases went to trial. Today that number is three percent. Of the more than 300 people proven factually innocent by the Innocence Project, ten percent pled guilty. 

Plea bargaining makes it easier for the criminal legal system to manage the increasingly large numbers of people arrested and held, many for minor crimes. A strong defense is too costly to launch for most people, and can bankrupt families. Increasingly harsh sentences, including mandatory minimums of anywhere from five to 20 years and “three strikes” laws, incentivize negotiating a plea rather than standing trial. 

According to NACDL, the trial penalty has made the government the most powerful player in the criminal justice system. Government mistakes and misconduct are rarely uncovered without jury trials and defense counsel spend most of their time negotiating plea bargains. The National Registry of Exonerations (NRE), an organization that collects and analyzes information about wrongful convictions in the United States, has documented more than 3,400 exonerations since 1989 and of those, 26 percent originally pleaded guilty to crimes they didn’t commit. These are stories of people wrongly convicted of very serious crimes such as homicide, rape or armed robbery, to lower level offenses including drug offenses and traffic violations. With this much evidence of getting it wrong, forward-looking prosecutors offices are increasingly setting up Conviction Integrity Units to reconsider past cases  and remedy false convictions. the consequences of which are felt disproportionally by Black and brown people.

Rather than being the envy of the world, the evidence demonstrates that in case after case, exoneration after exoneration, the U.S. criminal justice system is often capricious, corrupt, and without accountability. 

One particularly egregious case is that of Rodney Roberts, who now works at the Innocence Project as a reentry coach after spending 18 years in prison for a crime he didn’t commit. Mr. Roberts was wrongfully accused, prosecuted, and convicted of a rape and kidnapping. It was 1996, and at the time he was a young man working as a salesman in a men’s store. He had an apartment in Montclair, New Jersey, and was going to school and raising his young son in Essex County.

His wrongful prosecution began when a sexual assault victim who was 17 years old, mistakenly picked him out of a photo lineup. Eyewitness misidentification is a leading cause of wrongful convictions. Mr. Roberts’ lawyer counseled him to plead guilty and suggested he would likely serve only two of the seven years and warned him that should he go to trial, he could receive a life sentence. 

Mr. Roberts explained: “I couldn’t go against the system and I thought to get home to my son and to salvage my life, the best thing I could do was to plead guilty and to fight it once I got home.”    

Once a person pleads guilty, they waive many of their rights including the right to appeal and the right to challenge unconstitutional police actions — and in so doing undermining the ability of courts and juries to ensure law enforcement accountability.

In Mr. Robert’s case, he was told he would serve 28 months of a seven year sentence. In an astonishing example of prosecutorial and judicial power, on the day Mr. Roberts was to be released, the New Jersey Attorney General’s Office obtained a court order to have him civilly committed. Civil commitment is a power that gives states the right to hold someone indefinitely. On the day he was to be released, Mr. Roberts was ordered kept in prison for ten additional years because he did not express enough remorse for a crime he never committed in the first place.

The evidence from the crime scene was eventually found through the efforts of a very dedicated attorney, Michael Pastacaldi, a pool attorney in Jersey City who consulted with Seton Hall’s Last Resort Exoneration Project. The rape kit was found and a new judge on the case vacated his conviction. The DNA cleared him. But when all was said and done, Rodney Roberts spent 18 years of his life in prison for a crime he didn’t commit.  

While Rodney Robert’s story is a dramatic example of injustice and lost decades of freedom, other people often plead guilty to misdemeanors rather than remain incarcerated in pre-trial detention, miss work, or leave their children without care. According to the Prison Policy Initiative, there are major consequences to pleading guilty for offenses as small as jaywalking, or sitting on a sidewalk. An estimated 13 million misdemeanor charges are made against Americans each year, offenses that PPI said account for about 25 percent of the jail population. Many people charged with low level offenses often take a guilty plea other than risk incarceration and are eager to put the incident behind them but nevertheless long-term consequences exist. According to the National Employment Law Project, approximately 65 million people in the United States have a criminal record impacting education employment, and housing.

More evidence of the guilty plea problem is demonstrated in group exonerations, where defendants are tied together by a common pattern of systematic official misconduct in the investigation and prosecution of cases. 

Since 1989, more than 33,000 defendants have been charged in group exonerations that followed large-scale police and forensic lab scandals in which officials systematically framed innocent defendants or presented fraudulent evidence. 

In one group exoneration listed by the NRE, in Tulia Texas, 35 people were arrested due to one corrupt police officer who planted drugs. Eight of the defendants went to trial and received sentences that went up to 47 years to life. The other 27 defendants plead guilty and received probation and fines or jail terms of a few months to two years. All 35 defendants were eventually pardoned once the undercover sheriff’s deputy was shown to have given false testimony.

The sixth amendment right to a jury trial increasingly does not exist in any meaningful way. The cost to launch a defense is largely prohibitive and as Rodney Roberts said, “I couldn’t go against the whole system.”   

I think back to jury duty, and to Judge Rabner’s’ civics lesson. In the case presented to me and my fellow Essex County residents, the person charged, a young Black man, likely didn’t have the resources needed to launch a defense, and I suspected it would be only a matter of time before we were told the words most potential jurors long to hear, “you are released.” In fact, that is what happened and I assume the case was settled. I never heard the evidence in court.


Audrey Levitin is Senior Counsel at CauseWired, a firm working with social service and human rights organizations. For 15 years she was the Chief Development Officer at the Innocence Project. Ms. Levitin is an essayist and her work has been seen in the Star Ledger, The Weekly Forward, and Cape Cod Life. She has also written about criminal justice reform in Occupy Wall Street and the Innocence Project. She and her husband, photographer Nick Levitin, live in West Orange, New Jersey.

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