The Conviction Factory: Trials Are Vanishing as the Rules of Court Procedure Tilt the Scales in Favor of the Government

There is a federal courthouse in Del Rio, Texas where criminal defendants are regularly lined up in chains to participate in mass guilty plea ceremonies. U.S. District Judge Alia Moses presides over the federal court district on the U.S./Mexican border with an unusually high criminal caseload. Judge Moses recently said that as many as sixteen defendants, each prosecuted in separate cases, may participate together in the conviction rituals. Speaking in Dallas at the annual convention of the Academy of Criminal Justice Sciences, Judge Moses told an audience that her courtroom has occasionally accommodated more than ninety felony guilty pleas in a single day.

We often hear anecdotes about police traffic-ticket quotas around the country. But we rarely hear about prosecution quotas. At a Federalist Society symposium in Austin, Texas on March 2, a former federal prosecutor named Julie Rose O’Sullivan (now an Associate Dean and Professor of Law at Georgetown University) admitted in public that federal prosecutors file charges simply to get their “numbers up” by the end of the year. By increasing their “numbers” of prosecutions, O’Sullivan said, a U.S. Attorneys Office gets more funding the following year. (Start listening at the 54 minute mark.) Professor O’Sullivan even said that the various state and federal prosecutors around New York City fight intensely among each other for cases, so vast are their collective resources compared to the level of actual crime in the greater New York area.

Today’s criminal courts – especially those at the federal level – are just barely adversarial. In practice, modern American criminal procedure grants an advantage to the prosecution that is comparable to that of the Spanish Inquisition courts of the 1300s. The pleading requirements, the rules of procedure and the case law overwhelmingly favor the government.

Virtually every measurement illustrates the increased tendency of American courts to favor the prosecution during the past century. Numbers and percentages of Americans being prosecuted have steadily grown; rates of multi-count and multi-defendant indictments have gone up steadily; conviction rates have increased; numbers of prisoners have quintupled since the 1980s; and average prison sentences have lengthened. Even average bail amounts have increased much faster than the rate of inflation.

As the playing field has tilted, the vast majority of defendants now simply surrender and plead guilty. Consequently, trials are disappearing. University of Wisconsin Law Professor Marc Galanter attributes this trend to “a shift in ideology and practice among litigants, lawyers, and judges.” In essence, the legal profession has abandoned its commitment to adversarial technicalities and has embraced the greater efficiency of top-down inquisitorial justice. In a study prepared for an American Bar Association symposium entitled, “The Vanishing Trial,” Galanter remarked that:

Every other part of the legal world grows: there are more statutes, more regulations, more case law, more scholarship, more lawyers, more expenditure, more presence in public consciousness. In all these respects the growth of the legal world outstrips that of the society or the economy. But trials are shrinking, not only in relation to the rest of the legal world, but relative to the society and the economy.

And although the number of appeals has increased, reversal rates have decreased. In fact, most appeals at the federal level (and in several states) are now decided on the basis of briefs alone. Defendants or their lawyers don’t even have an opportunity to present their cases in oral argument. Increasingly, the courts of appeals simply ratify what was done in the courts below. And in some federal circuits, eighty percent of all decisions go unpublished.