Below readers will find the preface, written by the Honorable Jonathan Lippman, former Chief Judge of New York and the New York Court of Appeals, on behalf of an important new report on the decades-long impact of the trial penalty in New York State. It was published by the New York State Association of Criminal Defense Lawyers [NYSACD] and the National Association of Criminal Defense Lawyers.
The report is entitled: THE NEW YORK STATE TRIAL PENALTY: The Constitutional Right to Trial Under Attack
The Honorable Mr. Lippman is the former Chief Judge of New York and Chief Judge of the New York Court of Appeals, the state’s highest court. He is in private practice now, with Latham & Watkins LLP
According to Latham and Watkins, “As the state’s Chief Judge, he championed equal access to justice issues in New York and around the country and took the leadership role in identifying permanent funding streams for civil legal services. Chief Judge Lippman made New York the first state in the country to require 50 hours of law-related pro bono work prior to bar admission and established the Pro Bono Scholars and Poverty Justice Solutions Programs to help alleviate the crisis in civil legal services. He strengthened the state’s indigent criminal defense system, addressed the systemic causes of wrongful convictions, created Human Trafficking Courts across New York State, and led efforts to reform New York’s juvenile justice, bail and pre-trial justice systems…
In 2008, Judge Lippman received the William H. Rehnquist Award for Judicial Excellence… In 2013, the American Lawyer named Chief Judge Lippman one of the Top 50 Innovators in Big Law in the Last 50 Years. A New York Times article in December 2015 stated that Judge Lippman had left an altered legal profession in New York by using ‘his authority to promote an ideal of lawyering as a public service.’
Judge Lippman was the 2016 American Bar Association’s John Marshall Award recipient, an award whose prior recipients include Supreme Court Justices Anthony Kennedy and Sandra Day O’Connor. Judge Lippman presently serves as the Chair of the Independent Commission on New York City Criminal Justice and Incarceration Reform, a 27 person blue-ribbon commission, formed to examine the future of the Riker’s Island jail facilities in the context of systemic criminal justice reform.”
By the Honorable Jonathan Lippman
(Ret.) Chief Judge of New York
Of Counsel, Latham & Watkin
Both the United States Constitution and the New York State Constitution guarantee those accused of a crime the right to a trial at which the state must prove guilt beyond a reasonable doubt. But in the modern criminal legal system, trials have become a scarcity.
Recent data shows that in New York State 99 percent of misdemeanor charges and 94 percent of felony charges are resolved by a guilty plea. New York is by no means an aberration.
Across the country criminal trials are vanishing at an alarming rate. A principal cause of this phenomenon is the simple fact that in virtually every jurisdiction people plead guilty to avoid significantly greater punishment, having nothing to do with their guilt or innocence.
If they contest the charge against them, litigate the legality of evidence that will be offered, or insist upon a trial, they will receive a much harsher sentence. This trial penalty has fundamentally transformed the criminal legal system into a plea system in which trials are nearly extinct.
This development is neither congruent with the principles upon which the nation was founded nor is it conducive to a healthy justice system. Nowhere is the right to a jury trial more sacred than in New York State.
Decades before the revolution, the importance of the jury trial was forever woven into the fabric of American
ideals in the trial of John Peter Zenger. Zenger’s vindication by a jury on a charge of seditious libel in 1735 has been
characterized as the spark that ignited the fire of the American revolution.
John Peter Zenger was a printer and publisher of a newspaper who broke the law by publishing articles critical of the colonial governor of New York. He was arrested. It was clear he broke the law, but the jury voted to acquit him effectively nullifying the law, and in effect granting freedom of the press to this land. The jury defied the prosecution and the judge, voting to acquit despite the clear evidence that he broke the law against criticizing the government.
An American founder, Gouverneur Morris, later wrote, “The trial of Zenger in 1735 was the germ of American Freedom, the morning star of liberty that subsequently revolutionized America.” [Quoted in “John Peter Zenger” by Livingston Rutherford (NY 1941]]
The Framers of the United States Constitution considered the right to a jury trial as important as the right to vote. John Adams wrote that “[r]epresentative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.”[ii The Revolutionary Writings of John Adams 55 (. Bradley Thompson ed]
You only get a jury when you go to trial. John Adams believed that jurors have a duty to vote their conscience even if it does not conform with the prosecutors’ interpretation of the law or the fairness of the law.
This bold statement reflected the consensus view of the Framers that trials not only afford a protection for the accused, but they protect everyone in society by promoting transparency and citizen participation when the government invokes
the awesome power to prosecute.
The current plea system, which has overtaken the criminal process, is anything but transparent and rarely involves public trials.
The ever-increasing size and scope of the criminal legal system has been accompanied by laws, policies, and practices that have shifted the historic authority of judges to fashion appropriate sentences to prosecutors who wield extraordinary power to determine the magnitude of criminal sentences through their unfettered charging power.
Mandatory minimums sentences, sentencing enhancements, and charge selection provide the prosecutor with the leverage to extract guilty pleas under the threat of vastly increased punishment upon those who assert their rights. This leverage is available from the first appearance, when the threat that a person will be unable to afford bail can be used to induce an early guilty plea, throughout the entire process, where, at each step of the way, waivers of various rights are the price of a reduced sentence.
In this way, guilty pleas operate to foreclose litigation that may expose unlawful government action or police misconduct.
Of course, sheer volume also places enormous pressure upon judges and defense counsel, as well as prosecutors, to process cases as quickly as possible.
Judges’ rightful concern that every case be heard and a woeful underfunding of the defense function have transformed many courts into guilty plea conveyor belts. While there is no doubt some value in promoting efficiency and early case disposition, it is a great concern when that objective overtakes the larger purposes of the justice system. When punishment is significantly enhanced merely because an individual asserts fundamental rights, it makes a mockery of the notion of proportional, individualized justice.
A report issued by the New York State Association of Criminal Defense Lawyers in collaboration with
the National Association of Criminal Defense Lawyers appropriately shines a light on the nature and breadth
of the trial penalty in New York State.
All stakeholders and policy makers should take note of the defense bar’s concerns and consider seriously the principles and proposed reforms. The data and the compelling stories recounted in this report should provoke informed debate over the nature and extent of the trial penalty and prompt a reconsideration of whether the palpable erosion of the right to trial is an acceptable feature of the modern criminal legal system.
Thomas Jefferson said that if he were forced to choose between a people’s right to vote or their right to be tried by a jury [versus a trial by the government], he would opt for the jury trial. He explained that anyone can make a law, but only a jury can approve a law. He said, “Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making [of] them.”
