Why are federal trials becoming an endangered species?

The Vanishing Trial: The Era of Courtroom Performer and the Perils of Its Passing is interesting if only because the author Robert Katzberg is able to make his memoir more than a collection of war stories. He argues that jury trials are slowly but surely disappearing in the federal criminal justice system as more and more defendants decide to take a plea rather than risk a longer sentence with a trial. 

In 1990 there were 5,210 federal jury trials; in 2018 there were 1,879. In percentages, the share of defendants demanding a trial dropped from a little over 9 percent to slightly more than 2 percent. This, says Katzberg, has consequences for defendants, trial lawyers, and American society. (There has not been comparable drop in state criminal trials.)

Katzberg, a graduate of George Washington University Law School and a member of its Law Review, began his career as a law clerk in 1971 to the Honorable Oliver Gasch on the United States District Court for the District of Columbia. He served four years as an Assistant United States Attorney for the Eastern District of New York (i.e., a prosecutor with the U.S. government as his client). He and a friend formed Kaplan & Katzberg, a white collar criminal law boutique in New York where he was a defense attorney. He's is now consulting counsel to Holland & Knight, an international law firm, so he is writing with considerable experience.

The vanishing trial is an issue because U.S. justice is built on an adversarial system in which you are innocent until proven guilty and the state must prove guilt. "For the adversarial system to work as required," Katzberg writes, "due process is an absolute necessity, and the power of the sovereign must be challenged whenever necessary. It is only when the defense lawyer can effectively mount a strong defense in the courtroom that the adversarial system is truly tested and can function as required. Simply put, without capable defense attorneys, innocent people will be convicted of crimes they did not commit." With fewer and fewer federal trials, young defense attorneys have fewer and fewer opportunities to hone their courtroom skills, further tilting the scales toward government prosecutors.

Why so few trials? What changed? The main culprit is the Federal Sentencing Guidelines adopted in 1987. The goal was "to achieve greater nationwide uniformity in sentencing persons convicted of federal crimes by creating a mandatory sentencing regime . . .  which ascribes numerical equivalents to all federal offenses." They sound scientific and reasonable until you look at actual cases, actual trials, and actual judges who are "required to sentence the defendant within the prison range corresponding to the total level of [points] calculated." Forget mitigating factors. 

Mandatory minimum sentences tend to be much higher than those imposed before the Guidelines. Moreover, the Guidelines require a convict serve 85 percent of the sentence. Facing a choice—a sentence negotiated with the prosecution or a much longer sentence if found guilty by a jury—defendants who don't trust the system are choosing the plea. It tends, I suspect, to subtly distort the system. It certainly has filled federal prisons.

Katzberg has interesting thoughts about judges and the idea of "textualism" or "originalism," the idea that the meaning of a constitutional provision or statute is based on "how a reasonable reader of that text would have understood it at the time it was written." This discussion is worth a book of its own, but Katzberg is skeptical of the theory. "Are we to believe that the individual 'textualist/originalist' judge's personal views and life experiences will nonetheless not play a role in the decision-making process, consciously or otherwise?" A case can be made that an "originalist" is using the idea as a cover to impose conservative value judgments. 

As I've indicated, The Vanishing Trial is an accessible insight into one aspect of the criminal justice system. Katzberg is an entertaining writer who made me laugh more than once. For example, talking about the power and respect federal district court judges command, he once asked a former colleague what had been the biggest change since he became such a judge. He said, "My jokes have gotten a lot funnier."

The book is a worthy effort to introduce lay people to the realities of federal trials. It's worth reading even if you never expect to need a defense attorney who can represent you in a federal courtroom. If, by then, you can even find one with the experience to do so.