Trial Distortion and the End of Innocence in Federal Criminal Law
83 Pages Posted: 12 Apr 2005
This article starts with a troubling and unnoticed development in federal criminal justice: acquittals have virtually disappeared from the system in the last 15 years, and for all the wrong reasons. It seems likely that prosecutors have increased the "trial penalty" so much that defendants with meaningful defenses feel compelled to plead guilty, undermining the truth-finding function of the criminal process.
The article examines these federal developments in light of a proposed "trial distortion theory." The theory I develop here evaluates the quality of plea negotiation practices in a jurisdiction by asking whether the system produces outcomes (convictions, acquittals and dismissals) similar to the outcomes that would occur if all the cases had gone to trial. The trial distortion amounts to a "mid-level" theory of plea bargaining. It is more demanding than the toothless standards that operate at the individual case level, focusing on the "voluntariness" of the defendant. On the other hand, it is more practically useful than "social purpose" theories that evaluate the global costs and benefits of plea bargaining as an institution. Given the stability and universal nature of the practice, the live questions about plea bargaining do not involve the virtues of abolition. Instead, what we need is a method to sort the positive from the negative plea negotiation practices. Trial distortion theory offers a handy diagnostic tool for evaluating plea practices in a particular jurisdiction.
The last half of the paper evaluates the federal system in light of trial distortion theory. Historical analysis of the federal system links the acquittal rates to prosecutor and judicial workload and the expanding role of defense counsel. The years since 1989 have produced the most troubling drop in acquittal rates, largely due to the federal sentencing guidelines and the power they give to prosecutors to make the trial penalty both larger and more certain. An empirical study of the 94 federal districts between 1994 and 2002 produces a regression analysis that identifies the prosecutorial practices with the strongest distorting effects on outcomes. These include heavy use of the "substantial assistance" departures and the enhanced "acceptance of responsibility" adjustments.
This topic is especially timely in light of the Supreme Court's January 2005 decision in Booker v. United States, holding that the federal sentencing guidelines are unconstitutional. I offer both specific recommendations for revising the sentencing guidelines, and more general principles for Congress to follow as it restructures the federal sentencing statutes over the next few months and years. Those principles aim to achieve a "separation of powers" for sentencing, with a proper balance of authority between the prosecutor and the judge.
Keywords: Criminal Procedure, Acquittals, Guilty Pleas, Plea Bargaining, Prosecutors, Sentencing Guidelines
JEL Classification: K14, K41, K42
Suggested Citation: Suggested Citation