From the President: Legalized Coercion and Mass Incarceration: Why the Trial Penalty Does Greater Violence to People of Color and the Poor
By Martín A. Sabelli, NACDL President
September-October 2021 issue of The Champion
In my first column, I touched on NACDL’s commitment to eliminate the trial penalty — the profoundly and unconscionably coercive difference between a pretrial settlement offer and a post-trial sentence. In this column, I explore a painful reality that anyone in the trenches has experienced: The trial penalty punishes everyone caught in the machinery of the criminal legal system but injures people of color and the poor much more harshly than others. Tragically, the machinery of the modern criminal legal system — aptly characterized as “assembly-line justice” by Justice Douglas¹ — does greater harm to those exposed to systemic racism (including overcriminalization, disparate policing practices, and mass incarceration), implicit bias, underfunding of public defense, and mandatory minimum sentencing. “Bargaining” for the most vulnerable means little, if anything, given the overwhelming asymmetry of power.²
This asymmetry of power — rooted in the nature of the “assembly line” and not in the facts of any particular case — does violence to our clients every day. Like most of you, I have sat across the table from indigent clients, many clients of color, who “choose” to plead guilty in this context of legalized and normalized coercion. Some clients have stared across the table — usually in the concrete and steel of pretrial detention — and dissected their reality with heartbreaking clarity knowing, as I did, that their fate had already been decided by a legislature’s politically driven vote for mandatory minimums rather than the votes of 12 peers after trial. This legalized coercion, which is the norm across state and federal courts, bears only sinister resemblance to the balanced, fulsome, and adversarial process contemplated by the Framers of the Constitution and Bill of Rights.
Speaking of the Framers, many of us have read during law school — with varying levels of enthusiasm — the observations of a 19th century French nobleman, Alexis de Tocqueville, regarding the beauty of our adversarial system and of jury trials. Were de Tocqueville to retrace his steps today, he would doubtless be astonished that jury trials have virtually disappeared despite the parchment protections of the Bill of Rights, generally, and the Sixth Amendment, in particular. Rather than seeing these “little schools of democracy” in action in courtrooms across America, the modern de Tocqueville would be compelled to eavesdrop on conversations in the corridors of courthouses, judges’ chambers, or jail cells housing pretrial detainees.³ Rather than observing cross-examination — the engine of truth — in public trials, he would be compelled to listen in as prosecutors and judges — directly or through defense counsel — effectively coerce guilty pleas from the innocent and guilty alike through the explicit threat of unconscionably greater penalties after trial. He would hear phrases like “take two years now or roll the dice on 20 after trial” or “take the drug program or risk five years in the pen after trial.” Make no mistake — this is legalized coercion, and it defines our criminal legal system.
The modern de Tocqueville would also observe the “secondary” effects of the trial penalty on the adversarial process: The trial penalty effectively undermines every procedural and substantive right that we (should) hold dear. Prosecutors use the trial penalty — whether intentionally or not — to silence the defense, contrary to the logic of an adversarial system of justice. File a motion for release? No deal. File a motion to suppress based on police misconduct? No deal. File a discovery motion? No deal. Ask for a lawyer before deciding on a plea offer? No deal.⁴ Even worse, as those in the trenches know, “no deal” often means being subjected to mandatory minimum sentences, which judges cannot adjust to the facts and circumstances of a case despite our shared ideal of individualized justice.
To be clear, the trial penalty has not only eliminated trials. It has also eliminated true “bargaining” — especially for people of color and the poor who lack the resources to fight back. Thanks to the trial penalty, and especially mandatory minimums, the “bargaining” element of plea bargaining has been reduced to an empty, if not deceptive, formality. You cannot bargain if your opponent has, legally, placed a gun to your head which is, of course, what a 20-year mandatory minimum sentence represents for the innocent and guilty alike though the threat comes with the dignified imprimatur of a state or federal prosecutor’s office. “Bargaining” means even less if the accused knows that she or he will have to overcome systemic racism and implicit bias at trial or in pretrial litigation. A process is not truly adversarial, and bargaining is not bargaining, given the profound asymmetry of power.⁵ If you work in the trenches, you cannot escape this reality.⁶
Aside from undermining the logic of the adversarial system, the trial penalty offends the fundamental principles of due process and equal protection because it hits the most vulnerable hardest, and in modern America this means people of color and the poor. Why? First, people of color and the poor — often overlapping constituencies in modern America — have fewer resources to help them resist the trial penalty compared to the wealthy and white who can avoid the consequences of chronically underfunded indigent defense systems, systemic racism (including disparate policing practices), and implicit racial bias. To paraphrase former NACDL President Rick Jones and Cornelius Cornelssen, whereas those with substantial economic resources have the means to avoid some of the most abusive aspects of the trial penalty, such as the use of bail as ransom, people of color and the poor are easy pickings for an assembly-line system of justice. As Jones and Cornelssen observe, where lawyers are scarce and defenders shoulder crushing caseloads, accused persons can languish for weeks or months without access to counsel. But lack of lawyers and heavy caseloads do not stop the system from extracting guilty pleas from unrepresented accused persons, notwithstanding the enormous and life-altering collateral consequences of a conviction, including misdemeanor convictions.
Put simply, the trial penalty undermines the adversarial process for all of us. But for people of color and the poor, the trial penalty converts plea bargaining into nothing more than the delivery of a state-sanctioned ultimatum — an offer you cannot refuse. The reality underlying the ultimatum — the gun held to the head of the accused — is much starker for the vulnerable than for others. This reality includes a greater range and severity of mandatory minimum sentences, the availability of vague conspiracy laws (especially in “gang” cases which allow prosecutors to demand mandatory minimums for those associated in any way despite actual involvement in a crime),⁷ the discretionary nature of sentencing guidelines that enable rather than limit implicit bias and explicit racism, and, of course, prosecutorial discretion, especially in fact and charge bargaining.
In closing, I want to convey in the strongest terms that NACDL has taken on the unconscionable, legalized, and normalized reality of the trial penalty and especially of the trial penalty’s heightened impact on the most vulnerable. NACDL is committed to restoring the constitutional balance, that is, putting the “adversarial” element back in the “adversarial process” and putting the “bargaining” element back into to “plea bargaining” for everyone and especially for the most vulnerable who are most often, directly and painfully, punished by the asymmetries of power in the criminal legal system. In fact, I have made this effort the focus of my year and of a “roll-up-our-sleeves” working Presidential Summit this December that represents a first and substantial step in building a national coalition to eliminate the trial penalty — whether this commitment takes two years or 20.
1. This term, used by Justice Douglas in reference to misdemeanors, captures the automated, de-individualized nature of modern plea bargaining. Argersinger v. Hamlin, 407 U.S. 25 (1972).
2. See Rick Jones & Cornelius Cornelssen, Coerced Consent: Plea Bargaining, the Trial Penalty, and American Racism, 31 Fed. Sent’g Rep. 265 (April/June 2019).
3. A slightly more cynical version of myself imagines the modern de Tocqueville being arrested and charged for obstruction of justice for attempting to chronicle the reality of the trial penalty — not unlike the treatment of Anna Harris, a reform-minded court observer, by authorities in Texas. https://www.washingtonpost.com/opinions/2021/08/24/anna-harris-texas-indigent-defendants-arrested-retaliation.
4. Emma Anderson (ACLU) and Jeffery Robinson (Who We Are Project) noted these issues in their article. See Emma Andersson & Jeffery Robinson, The Insidious Injustice of the Trial Penalty: ‘It is not the injustice by the duration of pain that breaks the will to resist,’ 31 Fed. Sent’g Rep. 222 (April/June 2019).
5. See Rick Jones & Cornelius Cornelssen, Coerced Consent: Plea Bargaining, the Trial Penalty, and American Racism, 31 Fed. Sent’g Rep. 265 (April/June 2019). Jones and Cornelssen are both at Neighborhood Defender Services.
6. Not being able to escape this reality is not the same as facing this reality. As Jeff Robinson of the Who We Are Project has observed (drawing on the troubled imagination of William S. Burroughs), we have managed to avoid looking at what we have at the end of our fork — the Naked Lunch — which no one can stomach once faced. Once we face the reality of the trial penalty, especially its impact on the most vulnerable, we must act.
7. Perhaps the most extreme example — the baroque expression of the unlimited reach of conspiracy laws — is the modern federal trend of charging “RICO conspiracies.” Having defended many, I still cannot quite make sense of the notion of an “agreement to join an association,” but I have seen that broad prosecutorial discretion (aka subjectivity) in this context releases the worst aspects of the trial penalty including implicit bias and the use of mandatory minimums to break the will of marginally involved clients by threatening them with LWOP sentences or 20-year mandatory minimums based on their “agreement to associate.”
About the Author
Martín Sabelli represents individuals in state and federal courts in a wide range of civil and criminal matters from the simplest of cases and gang-related prosecutions to the most complex white collar investigations and death penalty prosecutions. He is a speaker at seminars and trial training programs for NACDL, the National Criminal Defense College, and other defense programs around the world.
© 2021, National Association of Criminal Defense Lawyers. All rights reserved. This article originally appeared in The Champion magazine and is reprinted with permission.