NORML Founder Keith Stroup

NORML Founder Keith Stroup

For NORML’s 50th anniversary, every Friday we will be posting a blog from NORML’s Founder Keith Stroup as he reflects back on a lifetime as America’s foremost marijuana smoker and legalization advocate. This is the fourteenth in a series of blogs on the history of NORML and the legalization movement.

In a perfect world, anyone arrested for a marijuana offense (or any criminal offense, for that matter) would be provided with an experienced criminal defense attorney to assure they can raise a vigorous legal defense, receive a fair trial, and are provided with the full array of Constitutional protections guaranteed under the law. 

The 6th Amendment to the US Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further assures that, at trial, the accused will have the assistance of counsel, will have the opportunity to confront and cross-examine their accusers, and present evidence on their own behalf. And that a defendant may only be convicted if an impartial jury of their peers finds unanimously that they are guilty of the crime they are accused of beyond a reasonable doubt. 

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Penalized for Insisting on a Trial

But in our imperfect world, that is seldom how things work. Our criminal justice system is largely dysfunctional because of the dominant leverage given to prosecutors.  Due to the harsh sentencing guidelines in effect in many states, including mandatory minimum sentences, prosecutors far too often possess the ability to push for a conviction on a more serious charge — carrying a far longer sentence — if forced to go to trial. Therefore, defendants who reject a plea offer and insist on their right to go to trial runs a serious risk, if convicted, of receiving a sentence that is far harsher than what they would have received if they had accepted the plea prior to trial.  This “penalty” for insisting on one’s 6th Amendment right to trial is known among lawyers as the “trial penalty”. 

Nearly all criminal cases today end with a plea bargain in which the defendant pleads guilty and waives his right to trial in exchange for a sentence that is expected to be lower than they might receive if convicted following a trial.  According to a recent analysis by the PEW Research Center, 97% of all federal cases end with a plea bargain and 94% of all state cases end similarly. The right to a fair trial today is largely illusory for the great majority of criminal defendants. For those who do plead guilty, they waive both their right to a jury trial and to appeal their conviction.

Our current justice system has become less a search for justice and more of a streamlined process for converting millions of suspects into convicted criminals quickly, efficiently, and without the hassle of a constitutionally prescribed jury trial. By relying on the threat of a “trial penalty,” the prosecutor can coerce the vast majority of defendants to plead guilty, including many who are factually not guilty of the charges, but who are unwilling to risk a far longer sentence if convicted following a trial. A study published by the non-profit Innocence Project, a group that attempts to identify and assist those who have been wrongly convicted and imprisoned, estimates that 10% of those defendants they have managed to get out of prison had been coerced into accepting a guilty plea by the threat of an even longer sentence if convicted following a trial.

Defendants are not the only parties under pressure to accept a plea. Prosecutors are also incentivized to settle the great majority of cases with a guilty plea prior to trial in order to manage their ever-expanding case load. With their nearly unlimited discretion regarding which charges to pursue against an individual defendant, they have enormous leverage available to achieve the result they prefer.

Marijuana Justice

Most Defendants Represented by Low-Paid, Court-Appointed Counsel

Another factor contributing to the dysfunctional criminal justice system is that an estimated two-thirds of state defendants and 80% of federal defendants do not have the resources to hire a private criminal defense attorney and, therefore, they must rely on counsel appointed by the court to represent them. Unfortunately, those appointed counsel are generally paid only a few hundred dollars for each case. That reality creates a disincentive for appointed counsel to put in the extensive work required to prepare for a trial or otherwise mount a vigorous defense (a defense that may require the testimony of outside experts); and a powerful incentive for the defendant to accept a plea bargain offered by the prosecutor in advance of the trial. It is a formula for assuring that most defendants receive no trial at all. 

Many Good, Committed Appointed Counsel and Public Defenders

I do want to acknowledge that thousands of good, conscientious criminal defense attorneys also handle appointed cases in state and federal courts throughout the country, and many of them go to great lengths to prepare a vigorous defense, regardless of how little they are being paid and their limited access to outside resources. Most criminal defense attorneys feel an obligation to handle some pro bono cases in addition to their paying clients.

In addition, there are professionally run public defender offices in every state, and on the federal level (called Federal Defenders), those offices generally are filled with well-trained, talented and experienced counsel who do a good job for their clients. But the public defender offices can only handle a small portion of the criminal cases, so most criminal defendants must depend on the luck-of-the-draw with an appointed counsel. Some appointed counsel will be committed to assuring that their client receives the best possible outcome, whether via a plea bargain or a trial; while others will do the least amount of work possible to allow them to turn their attention to the next appointed case (and the next small fee).

With more than 600,000 marijuana arrests still occurring in our country each year, the reality is if each defendant would refuse to accept a plea bargain and demand their right to a jury trial, the criminal justice system would come to a grinding halt within just a few weeks, unable to deal with the increased workload. Newer cases would have to be scheduled months or even years in the future, and many would simply have to be dismissed. The problem with this strategy, and why it has not occurred, is it requires the disciplined self-sacrifice of a large number of defendants — tens of thousands of whom would likely end up with a jail or prison sentence before the procedural backlogs effectively shut the system down and forced some form of decriminalization to be adopted.

The harsh reality is that when one is arrested in this country, there is a strong likelihood of a conviction, and usually without the benefit of a trial. Unfortunately, that is the way our criminal justice system currently works. The only way to protect marijuana smokers from being abused by the criminal justice system is to legalize marijuana and stop the practice of defining marijuana users as criminals.

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