Sunday, July 22, 2018

Trial penalties and the Sixth Amendment

To penalize an individual because he chooses to exercise his fundamental right to trial by his peers violates the Sixth Amendment.

Hence the remand for resentencing by the Ninth Circuit in United States v. Hernandez, this month where the record reflected that the district court penalized the defendant “by increasing his sentence based on his decision to go to trial.” Writing for the majority, Judge McKeown quipped that a district court merely reciting a boilerplate statement regarding its consideration of Section 3553(a) factors, while “chastising” the defendant for going to trial, cannot “cure the infirmities” in the sentence imposed.   

Importantly, the Hernandez court recognized, too, that “a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.” It’s a good reminder that a defendant may neither be penalized for exercising his fundamental right to a jury trial nor automatically precluded from receiving an acceptance-of-responsibility reduction after going to trial.

In remanding for resentencing in Hernandez, Judge McKeown aptly noted that “[e]nhancing a sentence solely because a defendant chooses to go to trial risks chilling future criminal defendants from exercising their constitutional rights. And imposing a penalty for asserting a constitutional right heightens the risk that future defendants will plead guilty not to accept responsibility but to escape the sentencing court’s wrath.”

We must continue to jealously safeguard these axiomatic principles upon which our liberty is founded. NACDL’s recent report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (worthy of a full read) reiterates what we well know: we are functioning within a system in which over 97% of defendants—including those innocent of the crimes charged—choose to plead guilty to avoid the risk of an astronomically increased sentence if convicted after trial. As a result, society is being deprived (at an ever-increasing and alarming pace) of necessary and vital checks on the excesses of prosecutorial power and the criminal justice system as a whole. “When the risk of exercising this crucial human right are too great for all but 3% of federal criminal defendants, the system is in need of repair.”

Hernandez and NACDL’s Report may be used to combat post-trial sentencing practices that undermine the Sixth Amendment's right-to-trial guarantee--that is, challenge on Sixth Amendment grounds unwarranted sentences, sentencing disparities, and denial of acceptance-of-responsibility reductions for those increasingly rare clients who do choose to exercise the fundamental right to a trial by their peers. 

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