Last month, Rogel Aguilera-Mederos, a 26-year-old truck driver with no criminal record, received a 110-year sentence for accidentally killing four people because his brakes failed as he approached stalled traffic on a Colorado highway.
This absurd sentence quickly inspired condemnation across the country, including a petition signed by more than 5 million people and a boycott of Colorado by truck drivers.
In a highly unusual move reflecting the injustice of the sentence, Colorado Gov. Jared Polis commuted the sentence from 110 to 10 years.
It is now clear that virtually no one believed the original sentence made any sense – not the judge who was forced to impose it, not the district attorney whose office prosecuted the case. What is truly abhorrent about this situation, however, is that Aguilera-Mederos’ journey – in which he was punished with an oppressive sentence after exercising his right to trial – is not an aberration but emblematic of how our criminal legal system operates today.
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Countless others who experience this absurdity won’t be saved by an executive commutation.
To understand this Alice-in-Wonderland moment, we must face the fundamental truth of the modern American criminal legal system: We have abandoned the system of public jury trials established by the Constitution and the Bill of Rights in favor of a shadow system of guilty pleas driven by the logic of prosecutorial power.
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If an accused has the audacity to insist on trial – as Aguilera-Mederos did – we go through the looking glass into a world of pain that the framers of the Constitution would have loathed and feared.
This reality collides with the stories we tell ourselves from civics class to the silver screen. We tell ourselves that we are protected from government abuse by a system of jury trials in which jurors decide guilt or innocence and judges determine sentences. We tell ourselves that this system is punctuated by plea bargaining that works just fine because the accused, assisted by counsel, can make rational decisions without fear of being punished for exercising their right to trial.
Unfortunately, plea bargaining does not work this way.
Modern plea bargaining consists of the delivery of an ultimatum by a prosecutor who threatens to double, triple or quadruple a sentence if the accused dares to exercise their right to trial. The unconscionable difference between a pretrial offer and the threatened much greater post-trial sentence – often called the “trial penalty” – amounts to legalized coercion by prosecutors beyond the reach even of judges, thanks to mandatory minimum sentencing laws.
Normalized across the face of the system, the trial penalty has virtually eliminated trials by breaking the will of one accused person after another. If this reality made its way into a “Law & Order” episode, the district attorney would simply slide the penal code across the table pointing to a 20-year mandatory sentencing provision, relying on the threat of an exponentially greater post-trial sentence rather than evidence in the case.
While all accused suffer from this shadow system of justice, people of color and the poor suffer more severely thanks to over-criminalization, over-policing, excessive use of pretrial detention, the need to rely on underfunded systems of public defense and, of course, systemic racism and implicit bias. Profound asymmetries of power in the legal system have ensured that prosecutors routinely break the will of most accused people and especially of the most vulnerable. These asymmetries of power – especially mandatory minimums – have transformed the framers’ vision into an assembly line of prosecutorial ultimatums masked as “bargains.”
Lest we think that this is someone else’s problem, we all pay the price for a system that normalizes coercive plea bargaining.
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First and foremost, the unchecked power of prosecutors has resulted in the lessening of trials in our criminal legal system, as the National Association of Criminal Defense Lawyers found. We can thank this culture, in which citizen oversight of government power has been virtually eliminated, for mass incarceration and greater police misconduct, including excessive force. Prosecutors can coerce pleas in virtually every case, often by demanding high sentences. These attorneys routinely require the accused to surrender virtually every right when accepting a plea deal, including the right to challenge police misconduct. Guilty pleas routinely require waivers of all the rights that the Constitution protects – from the right to bail and the right to be free of unreasonable searches and seizures, to the right to trial – and, as a result, the light of day seldom reaches government or police abuse.
It’s easy to see how Colorado managed to originally impose a 110-year sentence on Aguilera-Mederos. Simply put, the district attorney opted to seek charges that required 110 years because Aguilera-Mederos had the audacity to demand that the prosecutor prove guilt at trial.
Likewise, Kevin O’Brien Allen, a Black man, was charged in Louisiana for selling $20 of marijuana. Prosecutors offered him five years. But Allen opted to go to trial, lost and is now serving life without parole. Both men suffered for exercising a constitutional right, illustrating why the vast majority of the accused simply take the deal offered by the prosecutor whether they have a defense or not.
The framers who designed our criminal legal system would not recognize this culture. They envisioned a system of trials designed to shine light into every stage of the process.
Having surrendered this constitutional vision of justice, we have failed to protect ourselves, our families and our communities from police misconduct, mass incarceration and wrongful convictions.
To restore the balance, we must revoke mandatory minimum sentencing, elect prosecutors who use their power constitutionally rather than coercively, and empower judges to impose rational sentences as the Constitution requires. These policies might not make good late-night television, but they provide the foundation for the fair, just and humane constitutional order envisioned by the framers.
Martín Antonio Sabelli is the president of the National Association of Criminal Defense Lawyers.
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